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Federal Conservatives' Changes Will Not End Secret, Unethical Lobbying

Set out below is a letter-to-the-editor by Democracy Watch Coordinator Duff Conacher which was published in the September 27, 2010 issue of the Hill Times

The federal Conservatives' regulation that came into effect on Monday, September 20, 2010 to extend rules to require lobbyists to disclose some types of their communications with MPs, senators and the opposition leader's senior staff, and to apply the five-year ban on becoming a registered lobbyist after leaving office to MPs, senators and opposition leader's senior staff, are nowhere near enough to end secret, unethical lobbying because of loopholes in the rules in the federal Lobbying Act.

Currently, lobbyists are not required to register and disclose their activities on the existing Internet registry:

if they are not paid;
if they work as an employee of a corporation and lobby less than 20 percent of their work time, or;
if they lobby about the enforcement of a law.

As well, currently only pre-arranged oral communications initiated by registered lobbyists (or, in the case of a financing decision, initiated by anyone) are required to be disclosed -- secret emails, letters, and secret informal phone calls and meetings are still legal even with these people.

As a result, Cabinet ministers, their staff and government officials can all be lobbied in secret, and can all leave office and legally lobby the next day -- as long as they are careful about whom they lobby, and on what issues they lobby (NOTE: Rahim Jaffer's actions are still being investigated by the federal Commissioner of Lobbying, along with an investigation by the Ethics Commissioner of the actions of Helena Guergis, former Conservative MP and Parliamentary Secretary, and other Conservative Cabinet ministers and staff).

Extending these loophole-filled rules to MPs, senators and the opposition leader's senior staff will not make it illegal for them to be lobbied in secret, or for them to leave office and lobby the next day.

Secret, unethical lobbying would already be illegal if the Conservatives had kept the spirit of their 2006 election promise to "Require ministers and senior government officials to disclose their contacts with lobbyists".

To end secret lobbying, all politicians, political staff and decision-making public servants must be required under the Lobbying Act to disclose on the existing Internet registry all direct and indirect communications by anyone connected to an organized effort aimed at their decisions (except for informal, casual communications from voters).

To ensure an actual ban on lobbying after leaving office, anyone doing such communicating aimed at affecting decisions must be defined as a lobbyist under the Lobbying Act. The ban should be on a sliding scale from 1-5 years depending on the power of the politician, staff or official.

These changes, and many other changes proposed by Democracy Watch (some of which have also been recommended by the Oliphant Commission) must be made when the federal Lobbying Act is reviewed this fall or secret, unethical lobbying of those involved in federal politics and government will continue to be legal.

Similar changes must be made to provincial, territorial and municipal laws across Canada to make secret, unethical lobbying of those governments illegal.

Commissioner of Lobbying Karen Shepherd's weak enforcement record

Democracy Watch's opinion is that Commissioner of Lobbying Karen Shepherd has not been enforcing the Lobbying Act (Act) and the Lobbyists' Code of Conduct (Lobbyists' Code) effectively, as follows:

Commissioner Shepherd does not randomly audit anyone's activities, including former public office holder's activities, to ensure they are complying with the rules she enforces that: require anyone paid to lobby to register and disclose details about their lobbying (sections 5, 7 and 7.1 of the Act); prohibit any registered lobbyist from being paid a contingency (success) fee (section 10.1 of the Act); prohibit former public office holders from being a registered lobbyist for five years after they leave office (section 10.11 of the Act), and; prohibit lobbyists from proposing or doing anything that puts a public office holder in a conflict of interest (Rule 8 of the Lobbyists' Code);
Commissioner Shepherd has set up the Registry of Lobbyists in a way that does not require lobbyists to disclose the details of the subject matter of their lobbying in their monthly communication returns -- even though the Lobbying Act requires disclosure of details about the subject (in clauses 5(3)(a)(iii) and 7(4)(a)(iii));
Commissioner Shepherd has taken almost one year to rule on complaints that included all the key facts about fundraising events held last September by Conservative Cabinet minister Lisa Raitt and Conservative Parliamentary Secretary Rick Dykstra, and;
Commissioner Shepherd has taken more than two years to rule on five past complaints filed by Democracy Watch concerning favours lobbyists have done for past public office holders, and has not even contacted Democracy Watch about the complaints.

For more details, go to Democracy Watch's Government Ethics Campaign page