Sarah Mercer, a shareholder at Brownstein Hyatt Farber Schreck in its government relations practice, might be successful in the political landscape because of her ability to work with clients on their legal issues, as well as the aspects of client advocacy that require an understanding of the communications components involved in arguing before or negotiating with lawmakers. Last year, that involved assisting clients with the Paycheck Protection Program, challenging Gov. Jared Polis’ executive order on ballot measure signature collection among other work. It helps that she does have her own political experience to pull from.
“I’ve always been very interested in how societies organize themselves,” she said.
Mercer was first inspired to go into governmental work after reading Robert Putnam’s Bowling Alone, which discussed how communities were changing. She also served as a clerk for former Chief Justice Michael Bender after law school and became his chief of staff, which gave her a view of the inner workings of the judicial branch. She got her first experience lobbying when she lobbied the Joint Budget Committee on the judicial branch’s budget. She also served as a city council member for Edgewater.
As a city council member, Mercer said one of her proudest accomplishments was on a seemingly small issue: figuring out how to get the recycling picked up with the trash. Mercer recalled working with the city manager to brainstorm the solution and eventually worked out a public-private partnership to contract with a trash company to pick up the trash and recycling. “It was through that experience that I really saw how business can help to make government better if there’s a partnership,” she said. Mercer learned through her time on city council that state and local governments have the opportunity to change things quickly.
Now, at Brownstein, she steps in on issues where a client might have a problem with a potential political solution. During the pandemic, she worked with a client to challenge the Polis’ ballot measure executive order after she and colleagues at Brownstein heard “chatter” that the governor might be considering the action. She discussed with her colleague Chris Murray whether there could be a constitutional challenge. Once the executive order was announced, the team worked with Colorado Concern to file a complaint that same afternoon.
“I think it really did start from that place of knowing what the law is and having a concern that, of course, the governor should have and does have extraordinarily expansive powers in a pandemic — in the situation that we were in for the first time — but there are limits to that, and really being willing to very thoughtfully try to figure out where those limits were and talk to potential clients about who might be willing to throw their hat in the ring to raise that issue.”
Mercer said the litigation moved quickly once they were ready to act. She and her team, which included Murray and Brownstein shareholder Julian Ellis, worked day and night to prepare a motion for a temporary restraining order. Besides the pace, she said the other challenge came from questioning whether their argument would be sound. “You always worry that there’s some stone that you’ve left unturned that has the answer that you just didn’t see that was so obvious.”
The team successfully convinced the Colorado Supreme Court to overturn the order. “Ensuring the integrity of that process is, I think, is just critical to our democracy,” she said. “We have to abide by the strictures of our Constitution. And I think that sometimes calls for raising challenges that may be politically challenging or also maybe, from a communications perspective, might be a little bit difficult.”
Additionally, Mercer worked with clients on quickly understanding and deciding whether to apply for the Paycheck Protection Program.
“I’m someone who just like loves to dive into the abyss,” she said, “so when the federal government was rolling out this aid, it made so much sense for me to just jump into that space because no one knew any answers. So, I was able to just help clients figure it out along the way.”
Mercer believes she was successful in that area because of her ability to be comfortable when there’s friction. She is at ease delivering news her clients might not want to hear. She said she had to be able to tell them there was not a clear answer regarding whether to pursue loans because it was a completely new subject. To help her clients, Mercer worked with them to make the risk assessment.
Every client wanted to take advantage of government assistance if it was available to them, she said. At the same time, many high-profile clients were concerned about any negative public relations backlash they might get if they were perceived as overstepping or taking money they weren’t entitled to, she said. “I had clients come to really different conclusions,” she said. “I had some clients who were more aggressive and would say, ‘we feel like we’re entitled to this funding, and it doesn’t really matter what the what the PR or reputational costs are, we back this up legally, let’s go for it,’ and I had other clients who said, ‘look, at the end of the day we could take this money, but we’re actually just going to leave it on the table and maybe another business will take it.’ Really, I got to see a lot of differences in the cultures of our clients. Giving clients space to even have to find their own answers to those questions was something I was doing on a daily basis.”
She said that experience was not only useful to her clients but helped her advance as an attorney. “In addition to all the substantive knowledge, legally, that I’ve gained. I really have developed a much more self-confident and fuller sense of what I bring to the table for clients,” she said.