The Accountability Act helped create a negative perception of lobbying and created walls between the public and private sector.

With the passage of the Federal Accountability Act (FAA), something changed in the way lobbying was perceived. Perhaps it was the way that politicians invoked the name of lobbyists in public statements. Perhaps it was the renewed implication that special interests were somehow able to effect change in ways ordinary citizens could not. But the tone of conversations between the private and public sectors suddenly shifted. There was a new skepticism around lobbying, despite the preamble of the Lobbying Act, which celebrates its important role in policy-making.

That skepticism has persisted. Prime Minister Justin Trudeau’s Open and Accountable Government document says that “Ministers, Parliamentary Secretaries and their staff should exercise caution in meeting with consultant lobbyists, and should give particular consideration to whether it is appropriate to meet a consultant lobbyist in the absence of the lobbyist’s client.” Why are consultant lobbyists (of any political stripe) seen as a threat? It is because the tone has changed.

The FAA transformed the Lobbyists Registration Act into the Lobbying Act. Stephen Harper’s government made it seem like they were ushering in a new era of transparency and accountability in the lobbying sphere compared with the corrupt dystopia that allegedly existed before the 2006 election.

But changing the title was cosmetic. The Accountability Act was never intended to regulate lobbying activity. Beyond the rules to regulate where certain bureaucrats and political staffers could work after retiring, the legislation contains no specific limitations on the practice of lobbying itself.

Lobbying is an important tool of the citizenry in petitioning their government. But the FAA has hampered the ability of many Canadians to share their policy viewpoints with the government. It has also infringed on the free speech of the lobbying community, disrespected Parliament and unfairly targeted some in the civil service.

Just before the 2006 election, Harper noted, “I have told my own MPs and parliamentary staffers that if they have ambitions to use public office to advance their own interests or get rich lobbying a future Conservative government, they had better make different plans, or leave.”

As it turns out, many of them can’t even make a living lobbying, let alone get rich. The most tangible manifestation of the FAA ten years after it was introduced is the five-year ban on lobbying for some former public servants and political staff, who became known as “designated public office holders,” or DPOHs. The vast majority of ministerial staffers who are covered by the five-year ban on lobbying continue to find it extremely difficult to find work in Ottawa once they leave office. This may have a little to do with their partisanship. It has a lot more to do with those scarlet letter(s) with which they have been branded: DPOHs.

When the FAA was introduced, it adversely affected career public servants — even though they didn’t sign up for the same kind of work as political staffers did — by limiting their career options outside of government. Ten years ago, they may not have anticipated this onerous constraint, which applies equally to a deputy minister and to a policy adviser in a minister’s office.

Few people acknowledged the disconnect between the goal of the policy and the impact it had on the career prospects of an ever growing number of public servants. This could be interpreted as a limitation on their ability to pursue a career outside of the civil service, potentially frustrating their section 6(2)(b) Charter rights  (the freedom of movement and the ability to be gainfully employed in Canada). Ultimately, Canadian society loses out, because bright young people won’t choose a career in the public arena.

Who benefits from the policy? Well, current lobbyists do, of course. This limitation shields them directly from new competition for clients or employment opportunities.

Treatment of corporations and organizations is the same, but different: The Accountability Act created a strange exception to the DPOH rules by drawing a distinction based on where the DPOH later worked. If the DPOH becomes a “consultant lobbyist,” they are barred from lobbying for five years. If that person is employed by an organization – like a trade association, a not-for-profit, or a union – they are also barred from lobbying for five years. But if they are employed by a profit-seeking corporation, lobbying is not entirely verboten, provided that their role does not amount to a “significant portion of their duties.” This has been interpreted to mean less than 20 percent of their duties.

It seems an odd distinction to make. I understand preventing someone from renting out their connections as a consultant lobbyist. I also understand why a person working for an organization whose primary purpose is to represent an industry is similarly precluded. But exempting corporations outright seems wholly inconsistent with all of the motives alluded to by Harper and the Treasury Board president at the time of the passage of the Accountability Act. To allow a former DPOH to work for a corporation where profit is at the centre of their employer’s motive seems antithetical to the objective of the legislation.

The Registry of Lobbyists: The other sea-change in lobbying that is a direct result of the FAA is the monthly reports now required under the Lobbying Act. These “reportable communications,” filed on a monthly basis by lobbyists, are public documents that are posted online. Ironically, the Conservative government created a new registry, the Registry of Lobbyists, while simultaneously complaining about the wastefulness of the long-gun registry. The result? Lobbyists — hired guns — were registered more conspicuously than actual guns.

Again, while this requirement certainly creates a discernible, though incalculable, public benefit in the form of transparency, the sure-fire winners as a result of these changes are those seeking to influence public policy.  If nothing else, the registry helps map out a strategy to respond to (or complement) a lobbyists’ plan to influence the government.

There are critics of the registry, however, who feel that its existence was much more about keeping tabs on civil servants, who became DPOHs along with ministers’ political staff. These same critics have lamented how it became more difficult to meet increasingly senior bureaucrats after the registry was established. In fact, they allege that the very tool that was designed to improve transparency is now driving certain meetings below the radar. I believe that the registry has erected walls between the public and private sectors, as some public servants are reluctant to see their names reported in it. This is problematic because the country benefits when government and business better understand each other.

The swaths of communications reports now required by the law don’t really hurt anyone: making more information available to the public about its government is surely worthwhile. What must be articulated, however, is what those reports have meant for policy dialogue — public servants may feel their names are being attached to some sort of awkward or embarrassing activity. The communication reports should be seen as evidence of consultation, not an excuse to avoid it.

Fixing the FAA: People in government affairs often lament that when a lobbyist is the subject of a news story for doing something untoward, the reaction is that it’s time to crack down on lobbyists. But the most egregious behaviour that has been reported in the media over the past dozen years has been, without exception, dealt with through the proper authorities under the existing law. Former Liberal Party official Jamie Carroll was convicted on April 18 of violating the law by not filing a report on his activities with the commissioner. Making things that are already covered under the Accountability Act “illegaler” will not solve the problem.

To reiterate, the real problems with the Lobbying Act are the unfair career limitations imposed on Canadians in the public service and the obstacles erected around their participation in public policy discussions. Fortunately, Parliament is required to undertake its own statutory review every five years, and that review is long overdue.

Most importantly, the absolute five-year ban on lobbying imposes a disproportionately harsh limit on those who fall under its ambit. What may seem like a perfectly reasonable regime for a senior mandarin or political adviser cannot be appropriate for the most junior of staffers, who are nevertheless ensnared in its net. Regardless of Parliament’s intent, there is no logic in treating a minister’s chief of staff the same as the people who report to them.

The other important issue to be addressed is that political staff and public service executives should not be treated in the same way under the regulations, as they came to their respective offices in different ways. The lobbying restrictions for public servants should be in the terms of their contracts.

One possible solution is to maintain the five-year ban for the department that the DPOH served in, but limit the ban to a one-year prohibition for all other departments and agencies. Another one is a legislated sliding scale based on the role of the individual in question, or tying the cooling-off period to the person to whom the DPOH reported. Parliament can also instruct the lobbying commissioner to grant more waivers under the Accountability Act to more appropriately limit lobbying activity

It is for Parliament to balance these distinctions between designated public office holders. The regulations that establish who is a DPOH should be incorporated directly into the Lobbying Act as a schedule. This would enfranchise parliamentarians to schedule the list of affected public servants accordingly. Investing this power specifically in Parliament would restore an affront to parliamentary privilege previously implemented by the Crown.

Through the regulatory process, the governor in council added senators and members of Parliament to those who were captured under the DPOH provisions. This might have been a violation of the principles laid out in the Magna Carta, arguably the first constitutional document that limits the Crown’s powers. To do this would, however, be fair game for Parliament — it is up to Parliament to limit the future of parliamentarians, not the Crown.

Assuming the above changes to the rules governing DPOHs are made, I would also recommend eliminating the exemption that allows them to leave government and work for corporations and lobby for part of their time. In this way corporate employees would no longer have to do complicated arithmetic to figure out exactly how much time they spend lobbying.

The future of the Lobbying Act:  The Lobbying Act needs to be reviewed in the context of the current administration’s “open government” initiative, which is meant to encourage more public dialogue in policy-making.

Instead, the guidance and interpretations of the Lobbyist’s Code of Conduct mandated by the Lobbying Act are acting as a barrier to meaningful policy engagement to both parliamentarians and the government.

As well, recent changes and guidance issued under the Lobbyists Code of Conduct seem to have expanded the authority of the lobbying commissioner and created de facto limitations on the constitutional rights of Canadians. For example, the commissioner recently cautioned lobbyists against giving public office holders free tickets to charity and other events. Under section 3 of the Canadian Charter of Rights and Freedoms, the right to participate in the democratic process, as interpreted by the Supreme Court of Canada in the case of Figueroa v. Canada, has been placed in jeopardy. Parliament contemplated the creation of a code of conduct, not guidelines that could significantly curtail constitutionally protected activity.

Parliament contemplated the creation of a code of conduct, not guidelines that could significantly curtail constitutionally protected activity.

The changes to the Lobbyists Code have fundamentally changed the role of the commissioner to include acting as the unofficial watchdog of the activities and relationships of lobbyists. That change could threaten transparency, which is a core principle of the Lobbying Act. Why? Because activities that would have otherwise been reported on the registry of lobbyists may now materialize in other ways that are not necessarily “oral” and “arranged in advance.” This is really just a polite way of saying that added burdens on the activities of lobbyists may lead them to look for ways around the rules.

In recent public forums, lobbyists have lamented that as a result of the new provisions of the code, they did not participate to the fullest extent possible in the recent federal election. While most lobbyists recognize that they are still entitled to participate in elections and engage in free speech and assembly, I believe that the new code is effectively restricting certain expressive and democratic activities of lobbyists by forcing them to choose between those rights and their vocation. The restriction comes after the constitutionally protected activity has occurred, meaning that the section 3 Charter right is preserved, but the prohibition on lobbying results is connected to that activity. This has forced lobbyists to choose one activity over another. It is my view that this is inconsistent with if not the letter, then the spirit, of the Charter.

While these recent changes to the Lobbyists Code were not a direct result of the Accountability Act, they nevertheless reflect a change in attitudes around lobbying over the past decade. The current government needs to remind itself, and the country, of the Lobbying Act’s preamble. Lobbying is a legitimate activity. Open access to government is in the public interest. The registration (and reports) of paid lobbyists should not impede free and open access to government. Let’s hope it doesn’t take another decade to remind ourselves of these points, and to change the tone.

This article is part of The Federal Accountability Act: Ten Years Later special feature.

 


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