Okay.
The statutory review of the Lobbying Act is thus an excellent opportunity to improve the legal framework for lobbying and its related activities in order to restore confidence.
My presentation will centre on what we see as three major gaps in the act as it stands: the revolving door, the fact that some activities are not registered, and the lack of transparency for the funding of certain organizations that engage in lobbying activities.
Let us first look at the revolving door. The revolving door problem refers to public office holders (POHs) moving into jobs in the sectors they were responsible for while in office or, conversely, professionals in these sectors becoming POHs.
The revolving door is generally associated with the creation of an influence network that can obtain benefits for its members, particularly through access to inside information from outgoing POHs or the complacency of incoming POHs toward the sector they will regulate and in which they were previously employed.
A number of jurisdictions have tried to better constrain their departures by establishing post-employment rules. These rules impose a waiting period before outgoing POHs can become lobbyists for a sector they were previously regulating. The Lobbying Act seems the strictest in the world in this regard, as it imposes a five-year waiting period on public office holders before they can become lobbyists.
However, it seems that beneath this harsh veneer there are in fact major gaps, of the sort that the spirit of the act is regularly violated. This is a result of the extremely narrow definition of what constitutes a lobbying activity. The Lobbying Act focuses on oral and organized communication with a POH. As a result, a former POH who uses inside knowledge of a file to establish a political strategy for a given client and prepares that client for a possible meeting with one or more POHs would not be lobbying under the restricted definition of the act, so long as the former POH does not communicate personally with the POH in question. Yet, it seems quite clear that in such a situation the client would have a leg up on competitors by having access either to inside information or informal information that fosters the relationship with the POH being lobbied. We believe that both situations are contrary to the spirit of the act, especially the logic behind establishing post-employment rules. Indeed, these concerns call for redefining what constitutes lobbying. We will return to this point.
Second, I would like to look at the issue dealing with activities not included in the Registry of Lobbyists. Under the Lobbying Act, paid lobbyists must register their lobbying activities in the Registry of Lobbyists if lobbying is a significant part of their overall duties. The threshold for deeming lobbying activities to be a significant part of one person’s duties was set at 20% of those duties.
In her first five-year report, the Commissioner of Lobbying mentions her concern about the effects of the 20% rule, which seems to be a major obstacle to transparency, as a number of lobbyists are choosing not to register their activities on the basis that they do not reach the 20% threshold. To rectify this problem, the commissioner recommends eliminating the significant part principle so that any lobbying activity must be registered.
Moreover, to ensure that eliminating this threshold does not restrict access to POHs, the commissioner suggests introducing certain exemptions allowing community and charitable organizations not to register.
We have serious reservations about introducing such exemptions. The Quebec legislature took this approach and, as a result, the Quebec legal framework for lobbying does not apply to any person whose job or function consists in lobbying on behalf of an association or other non-profit group. The result is selective transparency and widespread suspicion of for-profit organizations while non-profit organizations are deemed virtuous in advance and thus removed from the dirty practice of influence-peddling. In the spirit of the Quebec law, these organizations do not engage in lobbying; they advocate for the common good. That may be debatable.
Consequently, we think it is quite clear that introducing a series of exemptions would be a definite step backward for transparency. We believe instead that revamping the definition of lobbying is a much more conducive way to close the two gaps just described.
It seems appropriate to expand the definition of lobbying to include consulting, research and strategizing in preparation for actual lobbying activities. The definition of lobbying entrenched in the American act could be a model in this regard because it refers to both contacts and the efforts in support of them, and specifies that these efforts can serve the lobbying activities of others.
By adopting a similar definition, Parliament would also largely address the concerns of the Commissioner of Lobbying regarding the 20% rule.
This expanded definition would encompass activities in preparation for communication with a POH. It is therefore conceivable that paid lobbyists who currently skirt the registration requirement by arguing that they do not reach the 20% threshold would then have to register. Moreover, it is possible that this change would not increase the burden on small organizations, such as community or charitable groups, which do not focus on lobbying. It would therefore be a clear step forward in upholding the spirit of the act.
However, an expanded definition would also undoubtedly have the detrimental effect of applying to the work of former junior-level POHs, such as political staffers, who are likely to be asked to do preparatory work for potential lobbying activities conducted by their superiors, even though this research might not necessarily be based on inside information.
Expanding the definition of lobbying as proposed would prohibit such preparatory work for the five years following the POH’s time in office. This may seem excessive. It would be a shame if overly strict post-employment rules, which could be seen as a burden in future careers outside the public sector, become a deterrent to accepting a political staff position.
We should therefore review the scope of the waiting period either by revising the definition of those who are subject to it or by establishing different waiting periods based on the strategic importance of the POH position.
Third, I would like to clarify the nature of certain organizations in the Registry of Lobbyists. While the nature of most entities in the Registry of Lobbyists is clear, the goals of certain less well-known groups may be less clear to the layperson. It is often particularly difficult to determine these groups’ funding sources, even on their official platforms.
This lack of transparency is worrying, given the existence of astroturfing. This rapidly growing phenomenon is expressly about pursuing a communications strategy whose true source is hidden and which falsely claims to be citizen-based. Let us think about MONCHOIX in Canada, for example. This so-called citizen-based group that claims the right to smoke in public places is in fact funded by large tobacco companies.
By simply adding to the registry a requirement that organizations reveal their external funding sources when they exceed a certain amount, Parliament could take concrete action on this issue and provide more transparency for one aspect—funding—at the heart of the influence game.
Consequently, we believe this measure would affect only certain organizations, such as coalitions, whose funding sources can be obscure, and especially astroturf groups. By revealing the background of these groups, this measure would do much to curb astroturfing.
Taken together, our observations lead us to make three recommendations to improve the Lobbying Act.
First, we recommend that the definition of lobbying activities be expanded to include activities in preparation for communication with public office holders.
Second, given this first recommendation, we suggest that the scope of the waiting period be changed to account for the circumstances of some POHs, who could see political experience as a major burden to any future career.
Third, to increase transparency regarding the background of certain pressure groups, we recommend that the external funding sources of any organization employing a registered lobbyist be included in the information declared in the Registry of Lobbyists when this funding meets a certain threshold.
I hope that these remarks will be useful to you. Thank you for your attention.