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• C H A P T E R O N E
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The Many Ways of Negotiating with Governments
‘‘You can’t fight city hall.’’
—ANONYMOUS
You may not be able to fight city hall, but you certainly can negotiate with it. In fact, short of successful armed insurrection, the only way any individual or company can deal effectively with any government—
local, state, national, or foreign—is through negotiation.
If it’s true, as Edmund Burke has said, that ‘‘government is a contrivance of human wisdom to provide for human needs,’’ it is also true that governments do not necessarily provide for your needs automatically. You have to negotiate to get them.
The Scope of Dealings with Governments
Dealings with governments by individuals and organizations cover a wide variety of participants, a multiplicity of purposes, and a broad array of processes. In this first chapter, we examine the scope of dealing with governments by focusing on three key elements:
participants, purposes, and processes. They are the conceptual building blocks for analyzing and thinking about any kind of interaction with a government.
Participants in Dealings with Governments
Although governments and governmental units deal with each other constantly, the focus of this book is how individuals and non-governmental organizations can best deal with governments to get what they want. In those kinds of interactions, there are potentially three participants: a governmental unit; an individual or organization; and the public. Let’s examine the special characteristics of each one.
Governments as Participants
Any time you have to deal with a government, you are actually negotiating with a governmental unit, rather than an entire government a and in particular, with individuals within that unit. Governmental units take many forms and have many names:
department, agency, board, council, court, legislature, or commission a to list just a few. They are agents of governmental power, and the power they exercise may be legislative (to the extent that they make laws, regulations, or rules), executive (to the extent that they apply laws, regulations, and rules to individuals and organizations) a or judicial (to the extent that they judge disputes concerning these laws, regulations, and rules and their application). In the
United States alone in 2005, there were some 88,000 federal, state a and local governmental units employing approximately 19 million people, not to mention the countless governmental entities existing in the 192 other sovereign states of the world. Consequently, unless you are a hermit in the wilderness, you are bound to have to deal with one of them at some time or other.
Governments as Ghost Participants at the Negotiating
Table
Even when a government entity is not physically present at the negotiating table, it may be lurking in the wings as a ‘‘ghost negotiator’’
that has a powerful influence on the parties who are actually engaged in face-to-face negotiations. For example, any deal you make with a private defense contractor will almost always require
U.S. government approval, and in most foreign countries any sizable transaction at all needs a nod from the governing authorities.
So even if you are not negotiating directly with a government in those situations, you still will eventually have to deal with one or more governmental units if you hope to make the transaction you want. In any significant negotiation, you should always ask two important questions:
1. To what extent does a government have an actual or potential interest in this deal?
2. How might that government intervene in the negotiation or the resulting transaction to protect that interest?
Individuals and Organizations as Participants
All of us have to deal with governmental units at one time or other.
Some of us do it only occasionally. Others do it every day.We deal with governments in our individual capacity and we deal with them in our capacity as representatives of the companies and organization that we work for. Whether we are seeking a building permit from our local zoning board to put an addition on our house a an authorization from the state to open a new charter school, or a contract to sell software to the U.S. Defense Department, we have to negotiate with some government agency to get what we want.
If you are in business, dealing with local, state, federal, and even foreign regulators can be a constant task requiring you to reach agreement with government agencies as diverse as the New
York City Department of Planning, the California Air Resources
Board, the U.S. Environmental Protection Agency, and even the
European Union’s Competition Directorate General, to name just a few. And if you want to undertake a really big project or transaction a you normally have to negotiate with several government departments to achieve your goal. For example, when the St.
Lawrence Cement Company decided to build a new $300 million coal-fired cement plant in the Hudson Valley south of Albany in
1999, it faced the daunting challenge of securing seventeen permits from various local, state, and federal departments and agencies before it could turn over one shovel of ground. That meant it had to engage in at least seventeen separate negotiations, a process that would go on for years.1
In many other situations, you negotiate with a government not to obtain a benefit, but to avoid or reduce a burden. At the end of an IRS audit, you may negotiate hard to escape a tax penalty.
When you are stopped by a state trooper for speeding on the highway a you may try to negotiate to avoid a ticket. And if you get in real trouble with the law, you will likely find yourself engaged in plea bargaining with the prosecutor since that is the way the vast majority of criminal prosecutions end.
While we may like to think that we live in a world dominated by private enterprise, where the state is increasingly ceding its economic role to private persons and companies, governments, both in the United States and abroad, are still powerful players with whom all businesses and organizations must learn to deal. Governments regulate and tax business activity. They buy from and sell to private companies. They invest as partners in all manner of deals. So being in business means you have to learn to deal with governments. Organizations in the non-profit world, like charities a universities, and museums, also deal regularly with governments a whether they are seeking government grants, service contracts, or just permission to operate. Indeed, if you are the leader of a state college, municipal hospital, or a federal institute, you are engaged in a constant process of negotiating with both the legislative and executive branches of some government in order to obtain the budget you need to function and at the same time preserve your autonomy from government control.
Few organizations today have the luxury or even the possibility of functioning without negotiating with some government unit in some way. As a result, most substantial companies and organizations have established and staffed sizable ‘‘government affairs’’
or ‘‘government relations’’ departments and offices whose primary function is to deal with—that is, to negotiate with—governments.
In this connection, they also often have outposts in Washington,
D.C., Albany, N.Y., or Brussels, Belgium, in order to be close to the governmental authorities they negotiate with.
Hired Help for Individuals and Organizations Dealing with
Governments
Regardless of what the law may say, it’s not easy for an individual or a private organization to actually engage a government in meaningful negotiations. Governments are usually busy, big, and powerful. Despite their size, they often suffer from a shortage of staff and resources necessary to accomplish the tasks they are supposed to carry out. Consequently, the many persons and organizations that seek their attention often find that dealing with a government is a lengthy and in some cases futile process. Moreover a for the ordinary citizen with a problem or an issue needing government attention, it is often difficult to know which governmental officials can handle the problem, where they are located a how to contact them and secure a hearing, and if a meeting is granted how to persuade them to take action in the citizen’s favor.
So even though the U.S. Constitution guarantees you the ‘‘right to petition,’’ you may not have the knowledge, experience, contacts a and resources to engage in meaningful and effective petitioning that will allow you to advance your interests.
In order to overcome the special challenges of negotiating with governments, many organizations hire third persons, such as lobbyists a advisors, and lawyers, with the necessary expertise, relationships a and access to help in government negotiations. Third parties with special access to and knowledge of government have probably existed to help in negotiating with governments since the very idea of government began. Throughout history, courtiers a scribes, hangers-on, royal relatives, and aristocratic mistresses were always available for a fee or a favor to help bring a citizen’s petition to the attention of the king.
Today, individuals and organizations spend billions of dollars each year employing lobbyists, law firms, and public relations organizations to help them with this ages-old task. As a result, these third parties have become permanent fixtures in any significant negotiations with government, and few companies would consider undertaking governmental negotiations without this kind of hired help.
