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Federal Lobbying Law Still Has Loopholes, and Enforcer of Lobbyists Code of Conduct Still Lacks Needed Independence and Resources

(The following letter-to-the-editor, by Duff Conacher, Coordinator of Democracy Watch, was published in slightly different form in the Hill Times on July 4, 2005)

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Dear Editor,

As the only organization in Canada that has ever pushed to make the federal Lobbyists Registration Act effective at disclosing all lobbying activities of all lobbyists, Democracy Watch is celebrating one more step forward in its 11-year struggle with the coming into force of Bill C-15.

However, Bill C-15 is only one step forward, and it also contains a step backward and leaves many loopholes that will allow mainly corporate lobbyists to hide the extent of their lobbying.

Very unfortunately, your article and editorial about changes to the lobbying law contains a couple of serious errors and leaves an impression (mainly because you only quote corporate lobbyists and your own columnist) that there is and will be effective enforcement of the law.  In addition, your editorial unfortunately gives credit where credit is not due, and ignores well-known policy proposals that would actually ensure that lobbying activities are transparent.

First, in contrast to your article's and editorial's claim, under the new Bill C-15 measures the registration requirements for corporations will still be much weaker than those for non-profit groups such as Democracy Watch (as the Liberals continue their deliberate efforts to tilt the lobbying playing field in favour of hiding corporate lobbying, in part to hide just how much the Liberals are driven by corporate lobbyists).  Corporations will still not be required to disclose the identities of all employees involved in lobbying, only those spending 20% of their work time on lobbying activities (non-profit groups have been required for 10 years to disclose the identities of all employees who spend any time lobbying).

In addition to hiding the extent of corporate lobbying, this loophole also means that all corporate lobbyists spending less than 20% of their time on lobbying efforts will not have to comply with the Lobbyists' Code of Conduct (in contrast, all non-profit group employees involved in lobbying are required to comply with the Code) and will not have to disclose past work in the federal government (thereby hiding exactly how many people cash in after leaving their so-called "public service" and sell out to the highest bidder interested in their inside access and influence).  This loophole is one part of the federal Liberals' multi-part recipe for corruption -- another similar part is the loophole Prime Minister Paul Martin created in December 2003 exempting all part-time ministerial staffers from federal ethics laws .

Second, under the new measures the Registrar for Lobbyists is not required to contact the police if the Registrar finds evidence of criminal offences during an investigation under the Act (as the article and editorial claim) -- the Registrar is only required to do so during an investigation of a violation of the Lobbyists' Code (and is required to report evidence of all legal violations to all enforcement agencies, not just criminal offences to the police).

Even if this requirement extended to evidence discovered by the Registrar during all investigations, it and all other enforcement measures in the lobbying law are largely meaningless because the Registrar is completely under the control of the Industry Minister and is not, as a result, effectively enforcing the law or the Code.

One only has to look at the Registrar's interpretation bulletin about the new exemption from the registration requirement when only requesting information to see that the Registrar is helping the Liberals hide lobbying activities.  The bulletin states that one type of request for information that does not require registration is "Participation in consultations, hearings, roundtables, or like activities when the name of the participants, the government participating organizations and the subject matters are readily available publicly."  These activities have nothing to do with requesting information, and nothing in the Act exempts lobbyists from disclosure when undertaking such activities.  In effect, the Registrar decided to create a whole new exemption himself (which he has no legal authority to do).

Hopefully, given that the Act states clearly that Registrar bulletin's are not legally binding, any court will disregard such a biased bulletin and focus instead on the actual requirements of the Act.  Hopefully also, the Liberals will soon stop playing games with the Act and repeal the "requesting information" exemption as it is deliberately designed to attempt to create a technical loophole that will allow the Liberals' corporate lobbyist friends to escape prosecution for failing to register.

Even if the lobbyist Registrar was not under the control of the Industry Minister (for example, the Minister's can remove the Registrar from his position at any time for any reason), the Registrar does not have anywhere near the resources needed to enforce the law and Code (it is simply not believable that the Registrar and a couple of other people can effectively ensure that the 2,500 current lobbyists are fully and accurately registered, and that the new, expanded registration requirements will be complied with fully).

Also very unfortunately, your editorial gives credit to Aaron Freeman (your own columnist) and Craig Forcese for the proposals that the federal lobbying law should require disclosure of lobbyists' fees and how much is spent on lobbying campaigns, and should ban contingency fee arrangements with lobbyists.  In fact, these proposals were originally made by Democracy Watch years ago (after a comprehensive review of lobbying laws in the U.S.), and have been advocated by Democracy Watch ever since.

You also quote Freeman and Forcese as proposing that lobbyists be required to file annually a declaration of their political work.  Even federal Ethics Commissioner Bernard Shapiro (despite there being much evidence of his bias and incompetence) has recognized that people lobbying for a federal government decision put politicians in a conflict of interest by working for them in any way (as he ruled in his report on the Judy Sgro situation).

The Registrar for Lobbyists is currently re-considering several complaints Democracy Watch has made in the past about lobbyists working for politicians (after the Federal Court ruled in July 2004 that the former Ethics Counsellor's rulings on the complaints were biased and therefore invalid -- but given the Industry Minister's control of the Registrar, Democracy Watch has requested that the Registrar ensure that a fully independent, impartial body review the complaints (and Democracy Watch will soon challenge in court the Registrar's lack of independence)). Federal Court 2004 ruling, Summary of Democracy Watch's Eight Outstanding Ethics Complaints

Because of the past sham enforcement of federal ethics laws by the Ethics Counsellor, and the ongoing sham enforcement by the Registrar and the Ethics Commissioner, it will unfortunately take more time before the ethics laws are clearly and impartially interpreted.  However, given how strict and strong the laws are on the subject, Democracy Watch expects that when all the complaints are ruled on and all court cases decided it will be clear to everyone that it is a violation of the laws for a lobbyist to be involved in political work.

As a result, Freeman and Forcese's proposal to require disclosure of political work by lobbyists would, in effect, require lobbyists to admit they are guilty of breaking the law -- not something usually done in a democracy or advocated by those committed to democratic principles.

Finally, I was surprised that you would endorse such limited disclosure proposals as made by Freeman and Forcese while ignoring the much more effective proposal advocated by Democracy Watch (and endorsed by the 30 citizen groups in the Government Ethics Coalition who represent a total of more than 3 million Canadians).  The proposal is that everyone should stop pretending that the Act is in any way effective at making even most lobbying activities transparent, and expand the Act to require public officials to disclose the identities of everyone who lobbies them on the online registry.

Anyone interested in effective (as opposed to loophole-filled) transparency in government will endorse this measure, and any political party interested in effective transparency have this measure in their election platform.

Duff Conacher, Coordinator
Democracy Watch

To see another Democracy Watch op-ed on problems with the Registrar for Lobbyists and enforcement of the federal Lobbyists Registration Act, click here

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