Lobbyists are rarely held accountable when they break the rules, according to Canada’s top government accountability organization.
In a March press release, Democracy Watch accused Canada’s Lobbying Commissioner Nancy Bélanger of not enforcing the Lobbying Act rigorously enough. Bélanger has been in office since 2017 and was recently reappointed for another seven-year term.
“[T]he Commissioner of Lobbying and RCMP are covering up scandalous situations, protecting the lobbyists and the politicians and public officials they were lobbying,” Democracy Watch’s co-founder Duff Conacher said in the release.
The Lobbying Act requires lobbyists to register their activities and disclose certain communications with senior public office holders. It aims to improve transparency around communications that could influence government decisions.
In Bélanger’s eight-year tenure, she has referred 19 potential breaches of the act to the RCMP. This could be for potential breaches such as lobbying officials without registering, or failing to disclose required communications.
On March 9, Bélanger testified before a parliamentary committee that the RCMP had laid charges in two of those cases, and that four remain under investigation. In the 13 cases that have been returned to her office, the RCMP did not lay charges.
Conacher says Bélanger could — and should — have publicly identified the 13 lobbyists referred back to her office.
“She could have found them all guilty of violating the Lobbyists’ Code,” Conacher told Canadian Affairs in an interview. This code stipulates standards for transparency, integrity and professionalism in lobbying activities.
Bélanger disagrees.
A spokesperson for Bélanger’s office said in an email that federal access to information laws require the commissioner to generally withhold information obtained during its investigations, including files referred to police — and even after a file has been closed.
Conacher disputes this interpretation of the law. Their disagreement is now the subject of a complaint before the federal Information Commissioner.
Christopher Cotton, a professor of economics and lobbying researcher at Queen’s University, says there is inadequate transparency around lobbying violations.
“We have a system where lobbying rules violation allegations raised by the Commissioner of Lobbying are often placed into a bureaucratic black hole and never acted upon or made public,” Cotton told Canadian Affairs in an email.
He also noted the commissioner may lack the incentive to expose wrongdoing.
“The career of the Commissioner, Canada’s chief lobbying watchdog, depends heavily on keeping the politicians they are supposed to be overseeing happy,” he added.
“Their reappointment depends on the ongoing support of the Government. So, we end up with a system where even when the watchdog could continue to push a case rather than letting it disappear into the black hole, they may have an incentive to avoid doing so.”
Structural loopholes
In March, Bélanger’s office proposed nearly two dozen reforms to strengthen Canada’s lobbying regime.
A key substantive proposal includes a requirement for companies’ in-house lobbyists to register by default. Under current rules, in-house lobbyists are only required to register if they spend at least eight hours a week over four consecutive weeks lobbying.
Bélanger also recommended requiring all communications with certain officials to be disclosed. Currently, lobbyists are only required to report on certain oral, pre-arranged communications with designated officials.
Bélanger also asked for her office to have more robust enforcement powers, such as the ability to impose monetary penalties and temporarily prohibit lobbying.
Conacher says Bélanger already has the tools at her disposal to better enforce lobbying laws. She has simply failed to use them, he says.
But he also believes her recommendations for reform do not go far enough.
“ [Bélanger] says, ‘We need transparency, we need transparency,’” said Conacher. “But then her recommendations don’t address huge secret lobbying loopholes.”
Democracy Watch would like to see the Lobbying Act cover a broader range of lobbying activities.
Currently, the law does not apply to individuals, such as strategic advisors, who may indirectly influence policy decisions.
“ It is the biggest loophole,” said Conacher. “ All consultant lobbyists, if they [receive] a contract that says, ‘I’m paid to give you strategic advice, but not for lobbying’, then they don’t have to register.”
Democracy Watch has also called for the entire disclosure system to be redesigned so public officials bear responsibility for reporting lobbying activity, rather than lobbyists themselves.
“ You just require politicians, their staff, government appointees and employees, and political party officials, to register anyone who communicates with them in any way about any of their decision-making processes that they’re involved in,” said Conacher.
“Then you catch everyone.”
Persuasion at the edge
Cotton, of Queen’s University, says lobbying plays an important — and often misunderstood — part in the policy-making process.
“The public often perceives lobbying as backroom deals and quid pro quo agreements between politicians and special interests,” he told Canadian Affairs in an email.
“More often, it involves the sharing of information or presenting a persuasive case in favour of a beneficial position or against a harmful one,” he said.
But he noted that disclosure rules are important for ensuring the public can see who is influencing government decisions. On this, Canada’s current rules are inadequate, he says.
“Canada has disclosure rules that sound like they may be sufficient to ensure transparency and accountability.
“But, the bureaucratic and political reality in how the rules are applied and enforced make it too easy to sidestep the reporting requirements and avoid consequences for unethical or illegal activities,” he said.
For there to be accountability, there must be transparency, he says.
“Who are politicians, bureaucrats and staff talking with? About what? On whose behalf? Are lobbyists or those they represent also making political contributions?
Lobbying plays an important role, so we would not want to simply ban it, he noted.
“But we do want to hold politicians and special interests accountable.”
