What to expect as the clock approaches midnight

Here’s what you need to know…

These last two months of the Trump Administration have been very different than what the country is accustomed to seeing during a presidential transition period, with serious and weighty issues at hand when it comes to the peaceful transition of power that is a cornerstone of our democracy. While industries and public affairs professionals continue to monitor the developments of this past week, they must also be aware of last-minute regulatory changes being finalized by federal agencies that will have implications long past President Trump’s departure on January 20th.

These so-called “midnight rules” are typical of outgoing administrations, and set the debate for key industry sectors going into the next presidential term, even if they end up being suspended, challenged, or rolled back in what we’ve previously referred to as “the next match of regulatory ping pong.” Across a wide range of sectors, here’s what public affairs professionals  need to know to prepare for these rules:

  • Environmental Issues: The Trump Administration has made a concerted effort over the last four years to roll-back Obama-era regulatory burdens on the energy industry that were aimed at addressing climate change. These efforts have continued during the Administration’s final days, with the Environmental Protection Agency this week finalizing a Scientific Transparency Rule that limits the type of research the agency can use by “giv[ing] greater consideration to studies where the underlying dose-response data are available in a manner sufficient for independent validation.” The EPA also recently codified changes to the Clean Air Act that takes the economic impact of proposed regulations into greater consideration and has declined to increase soot emission regulations, despite pressures from environmentalist organizations.
  • Energy Policy: In a move to capitalize on domestic production of natural gas, the Energy Department finalized a rule that clarifies the department does not need to conduct reviews under the National Environmental Policy Act before approving LNG export facilities. However, not all of the Administration’s last-minute rules are welcome news for the oil and gas industry. Following a court decisionputting the existing Nationwide Permit (NWP) 12 in jeopardy, the U.S. Army Corps of Engineers is set to finalize a rule updating the Nationwide Permit program, splitting out oil and gas infrastructure from other utility infrastructure that previously used NWP 12 for Clean Water Act permitting. According to analysts at ClearView Energy Partners, the decision to split pipelines may make it easier for the Biden Administration to remove oil and natural gas pipelines from the NWP program altogether.
  • Healthcare: As we noted in our last TL;DR, the Trump Administration recently finalized the Most Favored Nations rule in an attempt to lower drug prices. However, a United States District Court has already issued a nationwide injunction on the order that was set to go into effect on January 1st. While the Administration faced a setback on this rule, it is still trying to lock in what it has already done to reform Medicare and the Affordable Care Act (aka Obamacare). In an effort to cement its legacy of cutting regulatory red tape, the Department of Health and Human Services is currently considering a proposed sunset regulation that would set expirations on new and existing HHS regulations. This would require a review of the regulations ten years after they are put in place and ensure they remain properly constructed and have not proven overly burdensome to the economy.
  • Labor And Employment: Independent contractors were thrust into the national spotlight the past two years as California passed Assembly Bill 5 to reshape the gig economy and Californians passed Proposition 22 to exempt many workers from that reshaping. On Wednesday, the U.S. Department of Labor issued a final rule clarifying what constitutes a an employee versus an independent contractor, relaxing the Fair Labor Standards Act’s definition if favor of an “economic reality” test that examines two “core factors” to determine what meets the standard of an independent contractor.
  • Financial Services: In another significant ruling, the Department of Labor has made it more difficult for pension managers to consider anything other than financial factors when it comes to choosing investments, an effort aimed at discouraging environmental and social impact considerations that recently became popular among financial institutions in response to public interest in social impact. Meanwhile, the Office of the Comptroller of Currency has been aggressively trying to finalize the Fair Access to Financial Services rule that would block banks with more than $100 billion in assets from “red-lining” politically disfavored industries such as gun manufacturers and oil companies.

The incoming Biden Administration has already vowed to issue a memo on Inauguration day freezing or delaying any midnight regulations the Trump Administration has put forward. Incoming White House spokeswoman Jen Psaki specifically said the Administration will target Labor’s independent contractor rule, stating that “if it takes effect, the rule will make it easier to misclassify employees.” Beyond the power of the pen, President-elect Biden also will now have the ability to utilize the Congressional Review Act (CRA) thanks to his party’s victories in Georgia’s U.S. Senate runoff elections earlier this week. CRA allows Congress to review and reverse recent (de)regulation efforts, and could leave public affairs professionals and industry leaders scrambling to both ends of Pennsylvania Avenue trying to reduce the uncertainty around which rules will survive. As the current Administration winds down and the new one takes office, the research and monitoring teams at Delve stand by to ensure you have an information advantage.

Bridges, Broadband, and Batteries

Here’s what you need to know…

As the dust settles on the election results, it is clear that regardless of the outcomes in the Georgia Senate runoffs, President-elect Biden will face the most closely divided government in 20 years, with the thinnest margins separating the parties in Congress since President Bush took office in 2000. Similar to the forthcoming 117th Congress, in 2001, the 107th Congress had a 9-seat majority in the House and an evenly divided Senate (until Jim Jeffords switched parties in May of 2001).

At first, this division seems like a uniquely challenging circumstance that will ensure continued gridlock, but history suggests that may not be the case on every issue. Indeed, closely divided government has been the norm over the past four decades, which has seen only four instances of one-party controlled government. Through all of those presidencies – even the vitriolic past four years – major legislation became law when there was cross partisan agreement on a solution to an issue that had an existing coalition of support. We saw this sort of bipartisan compromise for major legislation in 2001with No Child Left Behind, in 2012 with the JOBS Act, and most recently with 2020’s Great American Outdoors Act.

This history suggests Biden will have an opportunity to pass major legislation in his first two years in office, but what issue fits the criteria for success? While Infrastructure Week has become a running joke in Washington, infrastructure investment could provide such an opportunity for major bipartisan legislation. Whether infrastructure spending proves to be Groundhog Day for obstruction or Ground Zero for compromise depends on what the definition of infrastructure is. Here’s what you need to know to leverage this opportunity:

Is there an on ramp for roads and bridges?

Earlier this fall, Congress once again punted on a long-term surface transportation spending bill. In September, after facing pressure by many leaders in the transportation industry, Congress passed a one-year funding extension for the Fixing America’s Surface Transportation Act. The extension for this Obama era bill included over $13 billion for the Highway Trust Fund and provided some certainty to states and municipalities grappling with budget shortfalls stemming from the pandemic. Hopes of a long-term reauthorization bill – which is required every five years after the last bill is passed – faded when Republicans balked at the Democrats’ $494 billion highway bill that passed the House over the summer. The main source of contention was inclusion of measures to address climate and environmental concerns.

Little is likely to change in the forthcoming Congress, as the House will continue its climate push and the debate over how to pay for the bill remains unsettled. The gas tax revenue that traditionally funds highway projects under the law has dwindled as CAFE standards lead to more fuel efficient vehicles and more hybrids and electric vehicles hit the road. That means companies and industries hoping to see infrastructure investment pass Congress will need to get creative about where such investments might focus.

Can the digital divide bring Washington together?

In his campaign plan to “Build Back Better,” President-elect Biden noted, “As the COVID-19 crisis has revealed, Americans everywhere need universal, reliable, affordable, and high-speed internet to do their jobs, participate equally in remote school learning and stay connected.” Biden pledged, “This digital divide needs to be closed everywhere, from lower-income urban schools to rural America …” The pandemic has indeed exposed and exacerbated the digital divide for both online learning to remote working, with tens of millions of Americans in both rural areas and urban centers lacking the internet connectivity to log on and join their peers. This challenge provides a unique cross-partisan opportunity for lawmakers to build an urban/rural coalition to bring high speed internet access to underserved communities. In addition to President-elect Biden’s plan, Senators John Cornyn (R-TX) and Joe Manchin (D-WV) have introduced the Eliminate the Digital Divide Act.

Delivering high-speed broadband to underserved urban and rural communities would positively impact agriculture, healthcare and educational outcomes while opening up more opportunities for more workers to work remotely. Of course, reaching bipartisan agreement on the goal does not mean the debate is settled. From how to pay for broadband rollout, to whether a return of net neutrality rules discouraging private sector investment, to what equipment can or should be used in 5G networks – not to mention by whom and how those networks should be built – remain to be settled. 

The energy transition has to be built before it can happen.

President-elect Biden has made clear he will move aggressively to address climate change in his Administration. While much of those plans will face opposition from Republicans – and even some Democrats – on Capitol Hill, some of his plans may find bipartisan agreement. Biden’s vow to add 500,000 public charging stations for electric vehicles to highways and roads across the nation provides business opportunities for EV manufacturers, utilities, and charging equipment and service companies. These private sector entities are all hoping to lead the way in filling the “range anxiety” inducing void of charging stations across much of the country. However, regulators have to let them do it. Meanwhile, efforts to phase out internal combustion vehicles have begun cropping up. In California, Governor Gavin Newsom recently signed an executive order that prohibits the sale of new internal combustion vehicles in the Golden State after 2035, and regulators in New Jersey recently recommended the state adopt similar measures. However, such moves require enough places to “fill up” citizens’ EVs.

Beyond his plan to accelerate the nation’s transition to electric vehicles, Biden has emphasized his ambitious plan to invest heavily in renewable energy infrastructure for both economic stimulus and emissions reductions. Such plans could be hindered by Republican skepticism as well as progressive demands. Renewable infrastructure requires a range of approvals, like any other such project, and Biden will face progressive pressure to return environmental regulations that were reduced by the Trump Administration to ease infrastructure reviews and approvals. In addition, renewables such as wind and solar remain intermittent power sources requiring peak demand support from natural gas powered plants and other existing energy fuel sources until such time as battery storage technology can mature. As Sen. Lisa Murkowski (R-AK) has signaled, while Republicans seek to protect domestic oil and natural gas production, they could support federal spending to boost research and development of wind and solar technologies, as well as investments in smart grid and electric vehicle infrastructure. However, such support is likely to require the Biden Administration to recognize some of these realities. 

Success doesn’t happen by accident.

As we approach the next Congress, savvy public affairs professionals are preparing for the coalitions of strange bedfellows that may emerge to reach a bipartisan consensus on key legislation. Shaping the debate to advance your infrastructure initiatives means understanding the full range of stakeholders involved in policy discussions while mapping out the operating landscape to gauge potential emerging consensus. As always, Delve is here to provide the insights you need to see around the corner and anticipate any risks or opportunities.

The gig is not up…yet

Here’s what you need to know…

In the 2020 general election, voters considered 120 statewide ballot initiatives on matters ranging from legalizing heroin in Oregon to taxing oil companies in Alaska. But perhaps the biggest changes came in measures governing labor practices. From Florida’s passage of a $15/hour minimum wage to California voters’ overwhelmingly passing Proposition 22, which overturned legislation that strongly curtails the state’s booming “gig economy.” Business advocates warn that such overhauls are not only disastrous for jobs and the economy at-large but also could fundamentally disrupt the way people interact in the labor marketplace. Despite the win at the California ballot box a few weeks ago, these desired policy changes should have public affairs professionals on high alert, as any major overhaul of independent contracting parameters could affect a wide array of industries and interests.

Here’s what you need to know about the fight over the gig economy in California and what it could mean nationally.

California legislators set fire to the gig economy. On election day, voters extinguished some of the flames.

Easy as ABC?: Earlier this year, Governor Gavin Newsom (D-Calif.) signed California Assembly Bill 5 (AB5) into law with the gig economy in mind. The bill codified the ABC Test, first outlined in the California Supreme Court’s ruling in the controversial 2018 court case Dynamex Operations West, Inc. vs. Superior Court. The court’s ruling provided a possible three-prong assessment to determine if a worker classified as a contractor should instead be designated an employee. Once AB5 cemented the ABC Test as law, gig economy workers in California could no longer be considered independent contractors unless their employers met exacting exceptions – though its implications reached well beyond those technology platforms. The final version of the bill did provide industry-specific carveouts successfully negotiated by certain opponents to the measures, including professionals in more than a dozen industries ranging from doctors to travel agents. However, notably excluded from these carve outs were app-based ridesharing and delivery services.

Your Ballot Measure Has Arrived: In response to AB5’s passage, DoorDash, Uber, and Lyft each committed $30 million to pass a ballot initiative that would exempt rideshare and delivery drivers, while others like Instacart activated their team members to help win public support. The coalition argued that it had already made good faith efforts to guarantee better benefits for contractors, like a minimum $21 per hour wage while on a trip, sick leave, and even endorsed a drivers’ labor union. However, lawmakers’ insistence on classifying these contractors as employees, these companies said, could limit the flexibility their drivers enjoyed and greatly curtail their ability to earn a living. Activist groups set up demonstrations to express their displeasure at the companies’ response, even attempting to stage protests at the homes of Uber executives. After months of passionate campaigning from both sides, rideshare and delivery companies were victorious, and Proposition 22, which created exemptions for their shared industry, passed with a more than 17-point margin.

20th Century labor laws won’t work in modern times. So, what’s next for the gig economy?

Proposition with Conditions: Proposition 22 provided narrow exemptions for workers at large rideshare or delivery companies, like Uber and DoorDash. They have already committed to employing a similar strategy if faced with similar state-based or national legislation. But, for millions of other contract workers in California who don’t meet current exemptions, AB5 remains a major obstacle to finding and keeping work. Some are using social media to strategize about ways to get around the law. Meanwhile, professional coalitions, like the International Franchise Association and a hotel owners association, are gearing up for well-funded battles against the law in court. These organizations view union efforts to dismantle the gig economy as part of a larger strategy to significantly reshape labor practices in the U.S. by passing long-hoped-for policy initiatives, like compulsory membership, card check, higher payroll taxes, and more employer-sponsored benefits.

Future Fights Ahead: Groups mounting challenges to AB5 understand that this policy debate will not only impact the millions of workers in the nation’s largest state, but that California can be a leading indicator of policy initiatives across the country. Prominent Democratic lawmakers, including President-elect Joe Biden, have already vocalized support for the law and indicated they would like to see it adopted nationwide. Biden has also endorsed the federal PRO Act, which would make it more difficult for workers to be classified as independent contractors. Estimates project that these changes could cost already struggling businesses up to an additional $12.1 billion annually. However, with the chances for a divided government seeming likely, the PRO Act is unlikely to pass in the Senate. Still, California Attorney General, Democrat Xavier Becerra, who is responsible for defending AB5, is widely regarded as a top tier pick in a Biden Administration. If he were picked to be U.S. Attorney General, Becerra could muster the might of the U.S. Department of Justice to beat back any attempts to prevent measures similar to AB5 from passing in other states while encouraging stronger federal enforcement on the use of contractors. A Biden Administration is also likely to reverse the direction of a Trump Administration proposed rule that would make it harder to win employment rights for independent contractors. However, Uber CEO Dara Khosrowshahi has already vowed to fight to  make the Prop 22 model a national standard and told investors that Uber will  “loudly advocate” for similar measures in states across the country.

How Public Affairs Professionals Can Prepare: While an industry may not at first seem to be caught in the crossfire, new rules on contractors could affect more than 13 million workers who create $1.6 trillion in annual economic output, amounting to about They come from every industry, from aestheticians to farmers to maintenance workers to medical professionals. It would also undermine the significant shift in how people and companies interact in the labor marketplace that has been under way thanks to the rise of online, mobile platforms that connect willing workers with companies and individuals willing to pay them for work on demand. Public affairs professionals must monitor not only the ongoing organizing of activists in key states, but also deliberations over how the incoming president may shape this debate. Competitive intelligence is the key to anticipating these challenges, rising to the occasion, and winning when it really counts.

Five Ways to Stay Ahead During the Transition

It may be some time until we know for sure who will be sworn in as president on January 20, 2021, but behind the scenes both candidates’ teams are preparing for the transition in earnest. Even when the election outcome is clear, “The Swamp” is never murkier than in the heat of a presidential transition. That poses a challenge for public affairs professionals helping their organizations anticipate the impact of the next administration.

In 2016, Delve launched “The Administration Project,” a unique policy and personnel analysis service that gave our clients the expert insights they needed to thrive in a new and often surprising administration. We learned a lot from this venture, and we’re passing that knowledge to you. Here’s what you need to know to successfully navigate the transition and big policy debates ahead:

Read beyond the headlines.

In the days and weeks ahead, ballot counting and ongoing litigation will dominate the headlines, but both Trump and Biden are already deep into planning their transitions. Even once the counting ends, what you read in Twitter punditry and bite-sized newsletter updates may signal a common theme, but they don’t often tell the full or real story. So, beware of following the media’s focus, framing, and editorializing. Often, political reporters begin with a narrative, write a story around it, and then seek sources who, no matter how “in the know” they really are, confirm the reporter’s assumptions. Add in editors seeking headlines that get people clicking and sharing, even if those headlines overstate or misconstrue the supposed news in the story, and it can be hard to discern what news matters to you. With younger and more inexperienced journalists now dictating a lot of public discourse thanks to a range of trends in the media industry, much of modern media coverage lacks the institutional knowledge to provide an accurate depiction of perennial events like a transition. So, while others may focus on the sensational headlines, public affairs professionals will need to pay attention to what’s practical to them – even if it is buried deep in the story or actually in a primary source rather than the news.

Filter out the noise.

The transition presents a classic Washington silly season, and any silly season is going to be, well, silly. Because we know this likelihood, it shouldn’t surprise us when the next few weeks and months are filled with tabloid-style political melodramas, complete with breathless quotes from anonymous sources, wild speculation from those who should know better, and supposed clashes that may only exist on Twitter. To better discern what’s real and what’s a distraction, stick close to reliable sources beyond the media while ensuring you understand the relevant institutions and their histories. What do presidential transition teams look for when determining key posts? With a near-certain GOP majority in the Senate, how will that shape what kinds of appointments the next president can make? What policy changes can an administration actually achieve within the parameters of their executive authority? By considering these questions, you will have an advantage in forecasting who might fill key administration spots or what policies really are on the docket. If you’re overwhelmed with trivial things that we’ll all forget in a few days’ time, you’ll miss the critical opportunity to get ahead. Commit to using your time for the things that matter.

But make sure you don’t miss a thing!

While it may seem counterintuitive to filtering out the noise, these two tips go hand-in-hand. With a better grip on what’s important, you’ll have more time and brainpower to dedicate to the things you really don’t want to miss. After all, fear of missing a critical development is a major concern for public affairs professionals. To overcome that fear, be sure to look beyond news clips and TV hits. See what different industry coalitions and activist groups are saying. Tap into the social media accounts of reliable, plugged-in sources of influence. Is there a pattern or trend? Are there places you should be looking often and others you can ignore? You should also develop a plan to organize your work and stick to what you know you’ll need to know. News that matters does not come fully formed until it is too late to act on it. Organizing the drips and drabs of news as they come out from disparate sources lets you connect the dots faster. This will help you avoid the race to catch up to breaking news that fades or reacting to things that really don’t matter. Following a wide variety of sources while filtering out the noise can be overwhelming, so you might consider leveraging a competitive intelligence partner to keep you ahead of the curve.

Understand motives and agendas.

Once you know what you should care about and how you’ll analyze information as you receive it, it’s important to factor in what motives and agendas could be at play throughout the transition. We know the media and their sources all have their own objectives, and they’re eager for a variety of audiences to be persuaded by their efforts. Common agenda-setting in press coverage may mean that a source’s quote is misrepresented or missing key context. There’s also a possibility that a quoted source, named or anonymous, isn’t actually an informed one, but instead, just someone eager to talk to a reporter. Don’t forget: anyone in Washington can feign expertise or connectivity to people in power. So, when you learn of a new name floated for a particular post, read beyond the headlines and ask yourself: is this a trial balloon for a legitimate candidate, or is this just a dutiful staffer anonymously stroking the ego of his or her boss? A trial balloon may indicate real interest on the side of either the administration or the prospective job candidate. Or, it might the administration testing the public or industries’ tolerance for another pick altogether. To avoid getting swept up in the craze, analyze whether or not a candidate is a good fit on paper, has the right personality for the administration, and if he or she could survive a Senate confirmation fight.

Map the influencers.

It’s not always the marquee names who shape public policy. Much of the media speculation and industry and activist groups’ attention may focus on Cabinet picks, but sub-cabinet and staff-level appointees are far more likely to make a meaningful impact on the rules and regulations that affect key industries, particularly those tapped for “beachhead” or “jump” teams parachuting into agencies to figure out what’s what and shepherd in the new administration’s agenda. To figure out who these people might be, watch the bundlers, buddies, and backers – political friends and allies who an administration trusts to give them direction in filling the thousands of posts that are open, as well as campaign staffers and volunteers who earned spots by getting the boss elected. Understand not just who these allies are, but who stands in the wings behind them. Knowing a president’s kitchen cabinet may be obvious, but all of those kitchen cabinet members have their own kitchen cabinets as well. Consider how Sen. Jim Inhofe (R-Okla.) helped guide the Trump Administration’s environmental appointments, recommending fellow Oklahoman Scott Pruitt to run the Environmental Protection Agency (EPA) and then helping Pruitt staff the agency with his own trusted staffers – including Pruitt’s successor Andrew Wheeler.

From WOTUS to POTUS: Environmental Uncertainty in the Next Administration

Over the past several weeks, we have dived deep into the increasingly permanent state of regulatory uncertainty in Washington. Besides perhaps trade policy, there is no arena in which this state is more prevalent than the various and sometimes obscure environmental rules that govern everything from energy to agriculture to transportation to infrastructure to manufacturing and beyond. No matter who wins in November, the litigation of these key rules – in courts of public opinion as well as law – will continue unabated.

Beyond what happens with the controversial Paris Climate Accord, public affairs professionals can expect continued debate on an alphabet soup of rules like WOTUS, NEPA, ACE, TSCA, and beyond. How these rules are written and implemented will determine how industries can operate and what it will cost the consumers they serve. To prepare for what comes next in these debates, and ensure you know which acronym to deploy when, here’s what you need to know:

The Next Administration’s Application Of The Clean Water Act Can Set Industries Back Or Move Them Forward. The Obama Administration 2015 “Waters of the United States” (WOTUS) update to the Clean Water Act angered farmers, developers, and other critics, who argued WOTUS created onerous bureaucracy surrounding land use and increased uncertainty. In 2020, the Trump Administration replaced WOTUS with the Navigable Waters Protection Rule to “streamline the definition so that it includes four simple categories of jurisdictional waters.” Environmental activists and their allies argue Trump’s “Dirty Water Rule” “significantly reduce[d] the range of protected wetlands” and turned to the courts to stall or prevent its implementation. Because Clean Water Act rules can be challenged in any of the nation’s nearly 100 federal courts, opponents intend to continue flooding the courts with challenges, while supporters, like agriculture advocates and homebuilding coalitions, are preparing to fight back.

  • What Happens Next? See You In Court. If President Trump wins a second term, opponents of his rule will double down on their legal challenges, leaving the EPA to fight a multifront war in the courts. If Vice President Biden is elected, public affairs professionals can anticipate more stringent regulations, leaving key industries in limbo as they try to figure out whether these rules will ebb or flow.

One Reason Infrastructure Week Feels More Like Groundhog Day: NEPA. Both Republicans and Democrats say they want more infrastructure, but the maze of federal regulations make such investments difficult, with time-consuming, labor-intensive, and expensive environmental rules slowing progress. The “Magna Carta” of these laws, the National Environmental Policy Act (NEPA), has for 50 years required federal agencies to produce “environmental impact statements” to determine the effects of proposed projects such as highways or energy projects and given community and outside stakeholders the ability to challenge or appeal these assessments. As we’ve noted in the past, the Trump Administration has advanced reforms of NEPA to “ensure that the Federal environmental review and permitting process for infrastructure projects is coordinated, predictable, and transparent.” Supporters say that this streamlining untangles a bureaucratic web that inhibits the construction of worthwhile projects. Opponents claim a weaker NEPA would “sell out our clean air, clean water, and safe climate” to corporations by lessening environmental and community activists’ ability to raise concerns.

  • What Happens Next? Building Projects Keeps Getting Harder. If President Trump is re-elected, his administration will likely be forced to defend his NEPA reforms in court for years to come. If Joe Biden is elected, the outcome of NEPA reform remains unclear. Biden will likely look to rollback President Trump’s NEPA reforms, while still attempting to follow-through on his commitment to spend $2 trillion in infrastructure. Without adjustments to NEPA’s rules, however, getting projects – even environmentally friendly ones like renewable energy generation – will prove more difficult for his administration.

The Never-Ending Power Emissions Debate. In 2018, the Trump Administration proposed the Affordable Clean Energy (ACE) Rule to “establish emission guidelines for states” regarding power plants. ACE replaced the Obama Administration’s Clean Power Plan, which the Trump EPA argued had exceeded EPA’s authority under the Clean Air Act. Democratic attorneys-general from states across the U.S. filed suit in August 2019 challenging ACE, insisting that the new rule only made modest emissions reductions, increased carbon emissions and pollutions in more than a dozen states, and greatly curtailed states’ abilities to create their own compliance requirements on energy companies.

  • Will It “Land at Some Point”? Court watchers say that the Trump Administration has an uphill battle in defending their regulation, and experts say that, should Biden win, ACE will never get a ruling. A Biden EPA will almost certainly replace ACE with a rule even more stringent than the Clean Power Plan. Should a Biden Administration enact these greater CO2 emission limitations, Politico’s Alex Guillen observes, “get ready for yet another day of marathon arguments over Biden’s replacement rule in another four years or so. (Though notably it’s been 13 years since the Supreme Court said EPA has greenhouse gas authority, so something’s gotta land at some point.).”

TSCA May Have More Drama Than La Tosca As Chemical Fights Compound Uncertainty For Regulators And Industries. Created in 1976, and amended in 2016, the Toxic Substances Control Act (TSCA) regulates new or already existing chemicals. Critics of the administration argue the Trump EPA is too “industry-friendly,” and is endangering the public by exposing them to chemicals that can’t be confirmed as harmless. In November 2019, the 9th Circuit Court of Appeals agreed, gearing up yet another fight for a Trump Administration in a second term – or for a prospective President Biden to ditch once he’s in office. Moreover, industry suspects a Biden Administration “could interpret TSCA, and the many legal, science and policy issues it invites,

  • But There’s More: Debate On This Chemical Could Upend Medical Supply Chains Amidst The Pandemic. Beyond the TSCA fights, under outside pressure EPA has indicated it will consider action on an increasingly high profile chemical in 2021: ethylene oxide (EtO). EtO is a common sterilizer used on medical devices, but it has also been deemed a carcinogen by the EPA. As EPA looks to regulate the gas in 2021, any closures of EtO plants could bring the United States to “the cusp of a major medical logistical failure,” all while the country tries to navigate the COVID-19 pandemic.

CAFE Standards Remain On The Menu… Arguing it would allow the auto industry to make cheaper, safer vehicles, the Trump Administration finalized a roll back of the Obama era Corporate Average Fuel Economy (CAFE) standards in March 2020. The administration also upped the CAFE standards fight by revoking California’s federal waiver on emissions, calling for a uniform national standard and denying California’s assertion that the state needs more stringent emissions standards.

  • … And California Just Upped The Ante. The CAFE fight will certainly continue beyond election day, especially with California’s new mandate that all new passenger cars and trucks sold in the state much be emissions free by 2035, which now has found interest among Congressional Democrats as a national objective. While Biden is likely to restore California’s CAFÉ waiver and allow the state to move forward with such a ban, Trump’s EPA Administrator has indicated his agency would need to approve California’s ban on gas-powered vehicles.

Regardless Of Who Wins In November, Public Affairs Professionals Will Have A Daunting Task In These Environmental Debates. Energy and environmental issues are among the top concerns for any presidential administration, but the increasing contentious fights over how to address climate change means that each regulatory action becomes a knock-down, drag-out fight. Ever-changing rules combined with stalled implementation compound uncertainty for sectors that require reliable, stable policy direction to get things done. Their public affairs professionals always have their work cut out for them, but now more than ever, affecting policymaking remains a daunting task. With Delve in your corner, you can better anticipate what’s next.

The Art of the (Trade) Deal

Here’s what you need to know…

In 2016, then-candidate Donald Trump was able to leverage already growing angst on trade to advance his quest for The White House. Now, after nearly four years of trade wars, supply chain disruption, and sanctions, America has its greatest trade deficit in 14 years. Complicating matters is election year uncertainty about what the next presidential administration – be it a Trump second term or a transition to Joe Biden – will mean for how companies conduct business at home and abroad.

This uncertainty clearly has C-suites concerned, with a 2020 Conference Board survey of CEOs from around the world ranking trade disruptions as their second biggest external worry. In the U.S., corporate executives say it’s their fourth biggest worry, tied with the related issue of global political instability. This pain is felt here at home, according to the Mercatus Institute, which determined that uncertainty about shifts in trade policy has resulted in an approximate $53.4 billion decline in foreign direct investment flows to the U.S.

There is no question trade policy instability – already exacerbated by the pandemic – will keep public affairs professionals on their toes in the coming administration, no matter who wins. For the industries and coalitions impacted by trade, the debate is more than just tariffs and saber rattling. The future of America’s supply chain and relations with key allies and competitors around the world is at stake. To help these professionals anticipate what is next in the trade debates, here is what you need to know.

The trade wars have only just begun.

European Friends in Diplomacy, Foes in Trade?: While Joe Biden vows to end the “artificial trade war” launched by the Trump Administration against the EU, experts argue his trade policies would actually make matters worse, citing Biden’s penchant for “preferential treatment for U.S.-made goods, a long list of subsidies to domestic industries, and a ban on foreign companies from government procurement,” policies that Foreign Policy notes are often “widely abused by governments and corporations, and often lead to a spiral of retaliation by other countries.”

Fighting the Red Dragon: Both candidates are vowing increased pressure on China but have different ideas on how to get it done, a phenomenon the Los Angeles Times dubbed the “same diagnosis, different prescription.” The biggest difference, the Times explains, is that Biden would seek more international backing for any retaliation against China, while Trump acts independently. Of particular interest is what will happen to the Trans-Pacific Partnership (TPP), a 12-nation trade deal initiated by President Obama while Biden was vice president and from which Trump withdrew. Because so many Democratic lawmakers and leftwing activists opposed the TPP, it is uncertain whether Biden would consider reviving U.S. participation.

WTO Woes:  President Trump has been very critical of the World Trade Organization, arguing repeatedly that the international body had been too soft on China, and his administration has, “undermined the organization’s highest dispute-resolution forum, the Appellate Body, by locking the nomination of new judges until in December [2019] it was no longer able to operate.” In retaliation, 17 WTO members, including the EU, Brazil, and China, set up their own parallel WTO court without the U.S. Undeterred by repeated measures from the WTO to stifle American action, Trump continued to criticize the organization and promised to act in American interests. While pro-trade advocates had hoped Biden would be a better ally than Trump, critics warn he won’t fix the system, but instead, advance policies similar to those from Trump.

The next president wants you to “Buy American.”

A Trade Consensus … Sort Of: In the 2016 election, Donald Trump stressed the importance of rebuilding American industries. In 2020, both he and Joe Biden are making it a large part of their platforms. In fact, even Democrats once skeptical of protectionist measures enacted by the Trump Administration, including Rep. Earl Blumenauer (D-Ore.), are embracing a “Buy American” approach, urging Biden to consider maintaining some of the previous administration’s tariffs if he is elected. While their ideas may be different on how to transform trade, it seems that, at least for the foreseeable future, “Buy American” is politically popular (75 percent said they would support such policies) and will be around for a while.

It’s Still All About China: With the Trump Administration’s laser focus on China as the coronavirus culprit, a second Trump term would inevitably feature new punitive actions against the Asian nation. These actions extend far beyond tariffs, with President Trump banning federal contracts with companies that use Huawei and other Chinese companies and issuing an executive order attempting to force a sale of Tik Tok and restrictions on WeChat. The public overwhelmingly supports an anti-China approach, with record numbers of Americans holding unfavorable views of China. Even prior to the coronavirus outbreak, 77 percent said they thought tariffs were an important way to discourage U.S. companies from moving abroad. While both parties are open to tariffs, Republicans offer businesses via regulatory reform and tax reform as a carrot, while Democrats instead prefer fees and fines as a stick.

Coronavirus Spurs Continued Supply Chain Scrutiny: Harvard Business Review called the pandemic a “wake-up call for supply chain management.” Indeed, coronavirus has exposed how fragile our supply chain is, especially for delivering resources critical to public health and national security. The Department of Defense has long warned about the problem, with experts citing China’s role in manufacturing and distributing vital drugs, equipment, and supplies. Now, both political parties want to incentivize repatriation of critical industries to the U.S. The Biden campaign has announced a variety of rules it will implement, including filling the Strategic National Stockpile with American-made goods as much as possible. Meanwhile, the Trump Administration says supply chains should be entirely in the U.S. Critics argue that these measures are needlessly costly, while supporters insist it’s in the best interest of jobs and national security for the country. In either case, a variety of interests will want their voices heard, from labor unions eager to have a say in what those jobs look like to corporations trying to make sense of what tax, regulatory, labor and trade conditions may arise.

Sanctions may shift from snapbacks to solidarity, but they’re here to stay.

Iran Deal Drama: Much to the chagrin of European allies, the Trump Administration has acted aggressively to stop Iran’s global threat, backing out of the controversial Obama era Iran Deal, which the administration described as “one of the worst and most one-sided transactions the United State has entered into.” In 2019, the Trump Administration notified the U.N. Security Council that it would “restore virtually all of the previously suspending United Nations on Iran,” using a “snapback” provision in the deal used by the Obama Administration to assure wary Senators. This move drew the consternation of fellow U.N. Security Council members, and few allies have joined the renewed U.S. sanctions regime. Meanwhile, critics argued that restrictions on doing business with Iran make things difficult for the banking and energy sectors, while some scholars and progressive activists have promoted lifting sanctions to benefit both Iran’s and America’s economies. More hawkish voices continue to advocate against any step to normalize relations with Iran, a state they feel is hostile to American interests, allies, and security. While Biden has already promised to “offer Tehran a credible path to diplomacy,” there are no indications that Trump would back down from his strong stance on Iran.

Dealing with Bad Actors: Sanctions on countries engaged in human rights offenses and illegal economic practices are also likely to continue in the next term. The Trump Administration enjoyed broad bipartisan support for its sanctions on Venezuela, and Joe Biden says he’ll push for more sanctions against Maduro’s regime if they can be accomplished multilaterally. While existing sanctions are focused on thwarting public sector economic activity for the socialist regime, some worry that pressures could bleed into the private sector, affecting international businesses and important American trading partners, like India. America also has enacted sanctions upon China for a myriad of offenses, including its military aggression, illegal trade practices, and its ongoing persecution of religious minorities, including Uyghur Muslims. Sanctions are also being used to address China’s forceful takeover of the once-independent Hong Kong.

Russia, Russia, Russia: Meanwhile, many in Washington remain concerned about Russia’s growing influence in the world. Title III of the Countering America’s Adversaries Through Sanctions Act (CAATSA), sanctions Russian oil and gas, defense and security, and banking sectors in response to the country’s aggression in Ukraine and interference in the 2016 presidential elections. Democrats want to take that law a step further with the Defending Elections against Trolls from Enemy Regimes (DETER) Act as another way to punish Russia for what they feel was undue influence in the previous presidential election by banning these individuals from entering the U.S. Given the likelihood of continued Russian – as well as Iranian and Chinese – interference in the current election, the next president will be forced to weigh further sanctions on nations fundamentally at odds with American values while fortifying America’s and the world’s economies as they recover from the global pandemic.

Going at It Alone or Building Consensus: Conventional wisdom and history suggest it is effective to have multiple parties join in sanctions efforts. For the Trump Administration, wielding power via sanctions often meant “going at it alone.” With Democrats more interested in building international consensus, this could mean reversing key efforts by the Trump Administration that lacked support from other countries. This wildly different approach will greatly affect the ability of industries to forecast how policies may change with a new administration, and in particular, what thresholds will need to be met for major overhauls in trade policy.

Prepare for the coming upheaval.

In an increasingly globalized marketplace, trade policy has never been more important – in politics and in business. The variability from one administration to the next, and an ever-changing list of friends and foes on either side of a policy, makes navigating these challenges even more difficult for the public affairs professionals representing industries doing business at home and abroad. Competitive intelligence is the key to seeing what’s around the corner and being prepared to meet it head-on. Delve stands ready to help you tackle the trade upheavals ahead – and anything else the next administration will bring.

Grab Your Paddle. More Regulatory Ping-Pong is Coming

“In a range of large industries — technology, energy, resources, financial services, transportation, trade — the regulatory situation is volatile and prone to significant change,” senior leaders from PricewaterhouseCoopers recently declared. Leave it to accountants to make what could be an understatement of the year. Over the past several decades, the federal government has grown to an unprecedented size, with Americans and U.S. businesses now contending with a $2 trillion regulatory burden each year, equal to 12 percent of overall domestic spending. Adding to that burden is ongoing regulatory uncertainty whose economic repercussions are bad for American families and businesses, holding up key business deals and even restricting Americans’ access to credit.

Indeed, well before the pandemic hit, regulatory fights had intensified, with many rules remaining unsettled and continuously litigated between administrations based on the policy preferences and political expectations from their supporters and allies. In response, each administration’s opponents turn to the judicial system and court public pressure to delay or throw out new rules or changes they don’t like. The result, as a National Association of Manufacturers’ study of business leaders found, is regulatory instability that hurts U.S. competitiveness internationally and economic growth at home.

While forward-thinking public affairs professionals are gearing up for the “mad dash” of the transition period following the November election, they must also prepare for the next match of regulatory ping pong on key labor and healthcare rules in the coming administration. Here’s what you need to know to get ready:

State of Play: With more financial backing and an expanded ability to activate supporters than ever before, an ever-broadening range of advocacy and interest groups can relentlessly litigate rules and regulations – shifting seamlessly from influencing a sympathetic administration to doing battle against the next if it’s hostile to their views. As the PwC leaders wrote, “Many organizations have found that these shifts impact their industry, the specific markets in which they operate, and the general environment for business.” Unfortunately for these businesses caught amid never-settled rules, “hiding under a rock is not a suitable option.”

Labor Loops: Labor standards are among the most ostensible ways that the federal government affects the day-to-day life of working Americans, and as such, are often a top priority for presidential administrations. After just 10 days in office, President Barack Obama rolled back three significant Bush era labor regulations to make it easier for unions, who had strongly backed his presidential bid, to organize. When President Trump took office eight years later, he began an overhaul of these and other major rules enacted by the Obama Administration, none of which remain fully settled if outside interests have their way next year. These include:

  • Among the more contentious of these reversals were the Trump Administration’s actions on the Persuader Rule, created by the Obama White House to force businesses to disclose to the federal government any firms they hired to help in negotiations with organized labor. The National Federal of Independent Business fought the rule in court, arguing that it compromised businesses’ ability to confidentially interact with their legal counsel. When a federal court judge in Texas blocked the regulation from taking effect in 2016, the Trump Administration formally rescinded it in June 2017, calling it a win for the “rights of Americans to ask a question of their attorney without mandated disclosure to the government,” while the leftwing Economic Policy Institute condemned it as a “huge blow to workers’ abilities to negotiate for better treatment on the job,” reaffirming that the two political parties couldn’t be farther apart on the issue.
  • Meanwhile, overtime regulations continue to be caught in the back-and-forth of presidential transitions. According to the Department of Labor, businesses are exempt from paying overtime if their workers are considered “white collar” and make above a certain pay threshold. The Obama Administration more than doubled this cap and enacted a rule that included an automatic update provision increasing it every three years. The business community largely opposed this regulation, as it would have been costly to deem between 2.8 million and 4.2 million more workers eligible for overtime. A coalition of states and business groups opposed the measure, filing suit in district court asking for a preliminary injunction to halt the implementation of the rules. A judge agreed, deciding the Obama Administration overstepped its authority in its rulemaking. With an appeal pending, the Trump Administration updated the regulations in a way that would expand benefits but scale back the number of qualified workers to just 1.3 million. While business leaders heralded it as a major achievement, union conglomerates, like the AFL-CIO, called it a “pay cut for working people” that would compound over time.
  • The National Labor Relations Board, which adjudicates major labor disputes on behalf of the federal government, typically changes control of its five-person board when a president appoints a new representative to fill a five-year term. Currently, there’s a 3-2 majority for the GOP, which recently ruled against “micro-unions,” a multitude of smaller labor groups within the same company that many corporations say make it impossible for them to negotiate unified terms among their employees. Democrats and their progressive allies are strong proponents of micro-unions, as they help expand labor union control in workplaces. If party control shifts, the panel could greenlight micro-unions again, costing industries billions of dollars in new administrative costs.
  • The Joint Employer Rule remains one of the most controversial in labor policy, as it affects upwards of 14 million American workers. In February 2020, the Trump Administration reinstated the decades-old joint employer standard under the National Labor Relations Act that “an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employer’s employees.” This rule overturned one created by the Obama Administration that many believed unfairly targeted franchise businesses or those who outsource services, like cleaning and maintenance. The International Franchise Association (IFA), for example, argued that the Obama rule would cost upwards of $33 billion in annual compliance costs and remove 376,000 job opportunities. Labor activists have fought hard against the Trump reversal alongside important allies, including blue state attorneys general like New York’s Attorney General Letitia James. James demanded the Trump Administration stop the implementation of the new rule, while the IFA and other business coalitions joined forces to oppose these efforts. In early September, a Manhattan-based federal judge agreed with the demands of the state AGs, halting the implementation of the Department of Labor’s new test. The Trump Administration has vowed to continue fighting for it, though a Biden Administration would likely return to the Obama era standard that drew the ire of a range of business advocates, who would certainly once again fight a standard they view as unfair and burdensome.

The Fight That Will Never End. Perhaps one of the greatest regulatory uncertainties for businesses’ labor practices is the disjointed implementation of Obamacare. Much of President Obama’s landmark legislation is applied via regulation, which makes key provisions easily reversible once a new administration takes office. The Trump Administration has undone many foundational components of the law, such as the contraceptive mandate, which forced all employers to provide birth control and abortion coverage in their employees’ health care plans, and the individual mandate, which required all eligible Americans to carry health insurance policies. They also reduced the open enrollment period from 90 days to 45, while ending cost-sharing reduction payments and enacting new Medicaid work requirements. Whether via executive action, legislative overhauls with Republican Congressional leaders, or defending their positions in court, the Trump Administration has sought to dismantle sizable portions of Obamacare piece-by-piece, leaving businesses constantly adapting to an ever-changing regulatory environment in health care policy. Even a decade later, many of these fights have only just begun, with activists are vowing to reinstate provisions the Trump Administration has removed, while the presidential campaigns are making it a centerpiece of their electoral efforts – and courts at every level will continue to hear cases about different aspects of the law.

Competitive Intelligence Is Your Spin Move: On each of the aforementioned issues, public affairs professionals must face not only their ideological opponents on key matters but also activists mobilized to stand in their way. No longer can industries wait to find out who is going to be in office in a few months. Instead, they must lay the groundwork among policymakers, interest groups, and aligned industry organizations, understanding that a regulation they support or oppose could end up in the crossfire of other political fighting or draw unprecedented attention from those who wish to thwart their aims. To navigate this uncertainty, competitive intelligence is key. It is not enough to have a few ideas about what an organization wants to see in an administration’s regulatory policy, or even to be closely allied with the decisionmaker. Public affairs professionals need to know far more if they want to prevail: who is on which teams, what their motivations may be, what their tactics are, and how they connect and collaborate with policymakers and other stakeholders. Delve can give you the intelligence advantage to prepare for tomorrow’s matches today – and win.

You Will Have 78 Days

Here’s what you need to know…

Labor Day signifies the home stretch to the election, but here at Delve, we are already thinking about what happens next. After the election comes policymaking that will impact a range of businesses and other interests – both in the frenzy of yearend deals and beyond. To help public affairs professionals prepare, this fall TL;DR will focus on the key challenges and opportunities companies and industries will face after the election is over and as the next administration (and Congress) prepares to govern.

To kick off this series, we focus on the 78 days between the 2020 general election and the 2021 presidential inauguration. If the election results are contested or uncertain, the country could be torn apart – and other policymaking put on hold while the results become clearer. There is also likely to be a “lame duck” legislation session with a potential rush of consequential legislation. Plus, the presidential transition – whether to a second Trump term or the new Biden administration – will spark jockeying to shape policy agendas and the personnel appointments that advance and undermine them.

All of these pose risks and opportunities for public affairs professionals, so to maximize your organization’s impact in those 78 days, here’s what you need to know.

If you think the presidential campaign is contentious now, imagine what it will be like if election results are in doubt.

The Never-Ending Election Night?: With historic numbers of mail-in ballots expected in the 2020 general election, some experts warn that it could take “weeks” to decisively determine an election winner, while others are saying that come election night, it may appear that President Trump could have “won,” only for Joe Biden to be declared victor once mail-in votes are all counted. As our nation treads uncertain waters, the distrust in government and the news media will leave a void, and many will turn to more trusted institutions to fill it.

Electoral Uncertainty Could Force Corporate America To Choose Sides. Amidst the chaos of an unclear result, many Americans, or at least the online activists who profess to speak on their behalf, will demand action. With companies far more trusted than government and increasingly comfortable speaking out on social issues, there will be considerable pressure for companies and their CEOs to speak out and take sides on who won, both directly and through signaling partisan alignment on issues like “voting rights” and election integrity. In an age when “silence is violence,” many consumers will expect trusted brands to take a stand, even when it seems illogical to get involved in politics. A failure to act – or at least signal agreement with the most vociferous voices haranguing them – could result in social media backlash, boycotts, and even pain in the stock market.

Companies Should Prepare Now For The Onslaught. This potential scenario means that public affairs professionals will need to prepare business leaders across the country to have an outsized voice in the weeks between the election and when the winner is announced. To do so, it will be crucial to have a thorough understanding of who your stakeholders are – from political and community leaders to policymakers to financial markets to employees and customers – as well as where they are likely to stand in this debate. Shaping your messaging and engaging these stakeholders cannot wait until the uncertainty have arrived. To add more confusion, while planning for such vulnerabilities, public affairs professionals must also consider how they will navigate and engage two possible transition teams – a prospect unseen in twenty years.

What Congress hasn’t finished by September will be taken up in the “lame duck.” Public affairs professionals need to be ready.

Lame Ducks Can Still Hold Surprises: The headlines for the lame duck are likely to focus on a continuing resolution to keep the government funded and other must pass spending bills like the National Defense Authorization Act and the Water Resources Development Act. However, it is what happens below the headlines that can keep public affairs professionals on their toes. The rush to finish legislation before the term ends is ripe for last minute provisions that can catch advocates off guard if they have not properly assessed the landscape and put the right monitoring program in place. Industries must anticipate that policy fights thought vanquished by one side are seen as unfinished by another. With the right Congressional champion, such fights can return in a blink amidst the lame duck deal making.

The presidential transition is already underway – are you prepared?

As Nominations Replace the Horse Race as Media Obsession, Companies Can Shape The Next Cabinet: It is safe to say that both the Trump Administration and the Biden campaign are already plotting the course for the next presidential term and which allies could fill key executive and judicial posts. When The White House switches party control, cabinet secretaries, including those in seemingly apolitical posts, will always be expected to resign with the notable exception of Secretaries of Defense during active wartime, and even re-elected presidents tend to have considerable post-election turnover. Political prognostication and leaks from campaigns, transition teams and likely administration officials will be ubiquitous. To ensure their interests are protected before nominees are announced, public affairs professionals need a strategy to connect with decision makers backed by thorough vetting of possible nominees and careful monitoring of new developments. Once a nominee is announced, it may be too late to stop them.

Nomination Fights Have Become Professionalized Advocacy Operations – Make Sure You Are Ready to Win: The days when presidents nearly always enjoyed the privilege of appointing whomever they wished for cabinet and judicial positions – absent a glaring character or professional failure – have long since passed. Now, no matter who wins the presidency in November, each of his nominees are likely to face an onslaught of criticism and organized, well-funded efforts to thwart their nomination. Highly connected groups of activists, buttressed by tens of millions of dollars in political funding, stand ready to disrupt hearings, flood Congressional switchboards, and make media plays to get their way. Supportive organizations and their activists will also do their part. Meanwhile, public affairs professionals also have an important role to play in this process. To the Senators considering nominees and the general public watching it all unfold, the voices of respected industry coalitions really do matter, and it can affect perceptions of a nominee as he or she proceeds through the confirmation. Because things happen so quickly, public affairs professionals must be prepared to navigate any potential nominee, as well as anticipate how his or her nomination could go.

Stay calm in the mad dash with the right insights.

The 78 days between the 2020 general election and the next presidential inauguration will bring Thanksgiving, Hanukkah, Christmas, and New Year celebrations. They’ll also bring a policy mad dash when the “lame duck” session welcomes contentious legislative negotiations and last-minute deadlines, as well as a media frenzy on potential appointments for a new presidential term. In today’s fast-changing political environment, public affairs professionals cannot wait until the election is over to think about what comes next. They must see whatever sits waiting for their organization around the corner, whether it is an opportunity or a challenge. Delve’s insights can help them do so.

A Fair Hearing

Here’s what you need to know…

Watching the four major technology industry CEOs be called before a Congressional committee this week, public affairs professionals inside and outside the Beltway could only think, “There but for the grace of the news cycle goes my boss.” Indeed, that hearing was just one of several prominent hearings held this week that highlighted a challenging recent trend to which public affairs teams must adapt to protect their companies’ and industries’ reputation and policy interests.

Congressional hearings as theater is certainly not new, but like many other aspects of today’s civic discourse, the rancor has reached new depths. From how and why hearings are held to how Members of Congress use (and “reclaim”) their time for questions to whether witnesses even get to answer those questions to the speed and volume of reporting and messaging around a hearing, the spotlights on seats at the witness table produce more heat (and less light) than ever before.

To ensure their principal is prepared for this hot seat, public affairs professionals need to dig deeper to ensure they understand their side’s vulnerabilities and challenges, anticipate the motivations and messages of the legislators, and be fully aware of the other stakeholders and advocates looking to use the hearing to their advantage. Because hearings happen in an echo chamber, not a vacuum, here’s what you need to know to navigate them successfully.

Congressional hearings have changed – so must your strategy to survive them.

For most of history, Congressional hearings have been largely focused on legitimate fact-finding. Lawmakers would interview witnesses as they sought to understand current events, solve a problem, or craft legislation. These days, however, Congressional hearings provide lawmakers uninterrupted camera time in the hopes of creating a viral moment their allies and supporters can highlight well after the hearing concludes. And during the Trump Administration, much of the posturing in hearings is meant to prove or disprove the validity of executive action or statements, even when the witnesses are from the private sector.

Disconnecting Congressional hearings from their legislative purpose also means witnesses can be called up time and time again to keep the spotlight on an issue, leaving little hope that a matter is closed once a long day of hearings is done. To be prepared for a marathon of scrutiny that may never end, public affairs teams must have a long-term strategy grounded in consistent, actionable intelligence. Getting and keeping the information advantage offered by such intelligence means following these three rules of hearing survival.

The first rule of hearing survival: know thyself.

Vet Your Witness: Smart witnesses know they should have as much knowledge about their own vulnerabilities and challenges as they do about the others in the committee room. These concern not only the individual testifying but also the organization and industry they represent. Lawmakers, fellow witnesses, and the press may call into question educational and professional qualifications, social affiliations, political leanings, media controversies, social media posts, or articles written long ago in different times. An edgy Facebook post may have gotten laughs in 2008, but it may be out of bounds in 2020. “Liked” a tweet to bookmark it for later reading? Get ready for it to be viewed as an endorsement of another Twitter user’s views. These days, nothing is off limits, and no one is given the benefit of the doubt. Witnesses must accept this reality and anticipate potential challenges it could pose. A thorough vulnerability analysis of the principal and organization ensures there are no surprise questions or fumbles that could have been avoided.

Assess Your Organization and Industry: Lawmakers and the press may also dig deeper into the state of the organization a witness represents, forcing them to deftly and truthfully respond to inquiries about employee welfare, investment practices, hiring standards, profits, executive compensation, and international relationships. Here, again, political contributions and advocacy of the witness, organization, and its affiliated industry can come into question.

A witness should also be prepared to address past organizational or industry problems, as well as provide concrete examples of how these wrongs have been righted and how leaders have taken accountability to correct the course. Throughout preparations and the hearing, public affairs professionals should keep in mind how their organization and industry are currently being viewed by lawmakers, stakeholders, the public, and the press. If current views are negative, they must develop messaging that is not merely defensive, but instead, explains its merits and justifies the validity of their testimony. Without a clear-eyed assessment of your risks and challenges, you cannot survive such questions in a public hearing unscathed.

The second rule of hearing survival: read – and research – the room.

Understand Legislators’ Motivations and Expectations: Hearings are usually intended to generate headlines. So in addition to the obvious logistics of a hearing, public affairs professionals should consider the motivations and expectations of those calling the hearing – whether they are to drive a public narrative, glean actual knowledge about a topic, or merely use the witness as a proxy for the opposing party or administration. There are also interest groups – labor unions, trial lawyers, advocates, industry coalitions – who want hearings called and who provide lawmakers with materials to frame the debate. It is often these same groups with whom a witness’s organization frequently interacts, whether positively or negatively. Keeping a careful watch of these stakeholders’ and advocates’ ongoing activities, messaging, and tactics can give a witness a better grasp on why a hearing is taking place and how others might want to use it.

Know Who is on the Dais: Beyond the hearing setup, witnesses must be keenly aware of the personalities and agenda at play on the dais – who is friend and who is foe, and who has hidden interests or connections? Lawmakers may have a specific policy passion that guides much of their political philosophy and work on the Hill, and naturally, they may have their own conflicts of interest, too. Lawmakers also have sizable research teams, both in their personal offices and on the committee staff, not to mention the materials provided from advocates and lobbyists, so they will be ready to ask the hard questions. Not only should witnesses be prepared to answer those questions, but they should also know why they are being asked.

The third rule of hearing survival: echo chambers require echoes.

Lights, Camera, Action: For many lawmakers, hearings present a rare opportunity for uninterrupted camera time. This new reality can transform committee hearings from fact-finding missions to live performances, complete with dramatic displays and pithy one-liners, often at the witness’s expense. In recent weeks, Americans have seen firsthand the manic tendency of lawmakers to “reclaim [their] time,” giving a witness few or no seconds to answer a question or respond to an accusation made about them.

Unfortunately, lawmakers sometimes have little to no basic knowledge about a topic of a hearing. They typically rely upon notes and prepared questions from staffers, but they might not understand answers a witness gives or the complex issues they are ostensibly trying to explore. To save face, some lean into bombastic and fact-less tirades, leaving the witness no choice but to sit silently as he or she is smeared. If a witness is prepared, he or she won’t be rattled. Instead, the witness will fully expect a lawmaker or fellow witness to act on behalf of a particular agenda and will know how to anticipate, pre-but, and navigate it.

Identify Who Really Drives the Narrative: While they might not have an actual seat at the table in the committee room, there are other players to consider in a Congressional hearing. The media can frame a hearing however they’d like, often looking for “gotcha” questions that embarrass a witness or a sensational exchange that may get clicks without including any substantive content. In the era of soundbites and Twitter quips, a quote can be sliced and diced without context to create a totally imagined reality. Thorough, insightful research can help a principal better prepare by increasing his or her awareness of how the subject matter, an organization, or a witness is likely to be portrayed by the press.

Prepare to Preempt: While activists may not always be in the committee room, they can still shape what happens, whether with in-person protests or by flooding social media feeds with hostile messaging. Effective competitive intelligence is more than watching when it happens. It requires tracking previous activities, projecting their future plans, and anticipating risks to those they target. It also means fully grasping the extent of their influence, as well as questioning their credibility. They, too, have biases and vulnerabilities to consider. 

Use these rules to adapt. Public affairs is now survival of the smartest.

“Always be prepared” is more than the Boy Scouts’ motto. It is how smart public affairs professionals regard the work they must do to be ready for such a moment long before it arises. Organizations need to know what their friends and foes say about them, and they should be prepared to address any attack that could come their way. That takes more than monitoring media mentions. It means understanding how their detractors talk about them, organize against them, and plan to make life difficult for them. This requires a long-term investment in competitive intelligence. By the time you think you need it, it may be too late to learn all you need to know.

If the future of work is remote, when will policymakers login?

Here’s what you need to know…

Coronavirus has changed so much about how we live our lives – and many of those life modifications just may turn out to be permanent. Perhaps the most significant of these changes is the shift among businesses to allow more work to be done remotely. While time-honored traditions like the business lunch may return, many Americans are eager to cling to one particular aspect of the new way of working: teleworking. In fact, 6 in 10 respondents told Gallup pollsters they’d like to continue working from home after the coronavirus crisis is over.

As companies become more comfortable with allowing telework, however, they are finding a surprising reality welcoming them. While some of those surprises are pleasant, such as the increased productivity of remote workers and greater flexibility for parents balancing work with “Zoom school,” there are also unpleasant surprises as companies learn more about the confusing tangle of state and local regulations and unexpected costs awaiting them when employees can work from anywhere.

So before public affairs professionals celebrate their companies’ decision to move all operations offsite or allow employees to work remotely, here’s what you need to know to ensure the decision does not come with unexpected costs and compliance challenges thanks to regulatory regimes still largely based on a business’ physical footprint that is increasingly inapplicable to the future of work.

COVID-19 showed employers productive telework is possible, and employees want to keep the flexibility.

The Big Shift: In 2014, just 6 percent of respondents told Gallup they worked at least 20 hours each week from home. By the time pandemic shutdowns began nationwide in mid-March 2020, 31 percent of Americans were working remotely. In the weeks that followed, that number doubled. According to Pew Research, 90 percent of those who lost jobs due to COVID-19 shutdowns worked in industries or for organizations where telework was either not permitted or impossible. For Americans able to work virtually, technology provided job security – jobs they might have otherwise lost if Internet-based tools were unavailable. For employers, the promising results of this great remote work experiment means many are thinking employees could live anywhere, reducing relocation costs and expanding the talent pool nationwide.

Now What? With a return to normal appearing slowly on the horizon, organizations are preparing for what a future with reduced in-person office presence would look like. According to CNBC, 43 percent of employees said they would like to continue teleworking permanently. Employers sensed this trend, and by late March, 74 percent of company executives interviewed by Gartner said they anticipated at least 5 percent of their company workforces would telework after the pandemic concluded.

Indeed, many organizations have already begun that transition for great numbers of their employees. Most notably, Facebook, which had once given $10,000 bonuses to team members who lived within 10 miles of their offices, says it will now permanently shift tens of thousands of its employees to remote work. Other tech companies like Google, Twitter, and Shopify have also announced making virtual collaboration from home permanent, and because the industry often sets trends for top employers across the nation, many more will likely follow suit to compete for the best talent. However, as organizations cast a wider net in their recruiting and retention strategies, picking the best candidates from far and wide, there are hidden costs and complexities that may surprise them.

Before moving operations online, organizations should anticipate compliance costs and confusion.

Postcards from Paradise: Now unbound from their offices, teleworking employees have the opportunity to pick where they live, not based on where a job may be but on where they want to be. While employees may move to the Florida Keys or atop a mountain in Montana, their mobility comes at a price to their employers. The new virtual workspace will require organizations to be familiar with the rules governing a myriad of potential residences of their employees, both current and future. Benefits like workers’ compensation, disability insurance, and unemployment insurance vary wildly from state to state. So, too, do licensure and business registration requirements, which often are not clear because they were written for a physical world of business with storefronts and official offices, not for a virtual world. Organizations will now have to look into whether or not they’re required to register in each state where an employee lives, which means that 12 employees living in 12 different states could potentially necessitate 12 different registrations, with such costs rising exponentially and unexpectedly for employers.

Even More Tax Men Come Calling: Another complication facing organizations considering virtual work options are the vastly different tax structures for different states and municipalities. Some states, like Texas and Florida, do not have state income tax. Then, there are issues with sales tax, as rates and what is taxable can differ wildly from locality to locality. These considerations include not only e-commerce transactions but also state and municipal sales taxes imposed on service-based offerings such as consulting or digital subscriptions. Still other locations have different withholding and pay stub requirements.

All of these can leave human resources and accounting departments scrambling to ensure they are constantly in compliance with thousands of different tax conditions simultaneously. When all the accounting is complete, many companies will face a shocking uptick in taxes owed and compliance costs – expenditures for which they might not have budgeted prior to a remote working shift. Indeed, many organizations choose their operating base on a location’s tax and regulatory environment. With team members scattered across the country, these considerations are no longer in the hands of corporate officers, but of employees who are moving with other considerations in mind.

Jurisdictional Confusion: A persistent concern among employers remains the correct application of rules that depend on number of employees within a firm, office location, or certain jurisdiction. For example, the Family Medical Leave Act (FMLA). Current regulations say that in order to receive qualified medical leave, an eligible employee must be “employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.” This complicates matters for teleworking employees, whose employers may think that they are not covered by FMLA if they live elsewhere.

According to legal experts at Lowenstein Sandler, LLP, however, the employee’s worksite “is the office to which the employee reports and from which assignments are made,” not where the employee lives. “So, for example, the lone Massachusetts employee who works from her home, but who receives all of her work assignments from her supervisor in New York where the company employs more than 50 employees, may be eligible for FMLA leave,” Lowenstein explains, adding, “State leave laws may impose additional leave obligations upon employers.” Multiply that across various jurisdictions and a plethora of federal, state, and local work rules, which often conflict with each other, and companies shifting to remote work could face considerable legal and regulatory confusion.

Despite a few emerging solutions, policymakers are still applying 20th century rules to 21st century work.

Practical Solutions: In one of the country’s regions most devastated by coronavirus, business advocates have come up with solutions to navigate each state’s tax laws for employees working from home. There’s a growing movement in the tristate area of New York, New Jersey, and Connecticut to allow for reciprocity, so employees can avoid paying taxes in multiple states as they work from home for an extended period. Illinois already has a similar arrangement with nearby states, so employees working there but living in Kentucky, Michigan, Wisconsin, or Iowa may pay taxes where they live. Employees across America may soon demand the Illinois model, especially if they reside in states with low or no income tax but work in states that charge it.

20th Century Rules Meet A 21st Century Workforce: Most of the rules and regulations governing labor in the U.S. originate from 20th century practices and standards. However, the future of work was changing even before the pandemic, and with the American workforce increasingly going virtual, compliance requirements must change, too. This leaves organizations in a tough spot: their workforce demands the kind of flexibility that working from home provides, while the laws and regulations make delivering these benefits difficult, time-consuming, and expensive. As companies try to adapt while maintaining compliance, mistakes are inevitable, leaving them exposed to reputational and legal challenges.

No More HQ2 Competitions? This shift to a more remote workforce could also add complications for states, counties, and cities, who for years have wooed businesses to their territory for the promise of tax income and jobs. Now, employees can vote with their feet, regardless of where the business chooses to locate its headquarters. This shift in power dynamics means something like the Amazon HQ2 competition may be a relic of the past.

Work from home is here to stay, and in the months ahead, we will discover just how many Americans will maintain their telework flexibility. As organizations modify their practices to accommodate this trend, they will have to navigate a compliance landscape that is more complicated than they may have realized. They will also need to consider new challenges that can arise as a result. By understanding these challenges ahead of time, leaders will be able to save themselves time, money, and headaches while creating a safe, desirable workplace that keeps current team members happy and recruits the best and brightest, too.