Lobbyists could have wings clipped by court decision
Question remains whether key rules will be enforced by ethics commissioners.
by Ish Theilheimer, with Melanie Ogilvie
OTTAWA, March 27, 2009, PublicValues.ca: It seems common-sense that lobbyists should not be able to offer public office-holders any sort of gift or favour, but it took more than 20 years to get a federal court to rule these acts are illegal.
On March 12 the Federal Court of Appeal in Toronto ruled, in a case launched by the citizens group Democracy Watch, that the Lobbyists' Code of Conduct should indeed prohibit a lobbyist from doing anything to create a private interest for a public office holder that may compete with that public office holder's public duty.
The Court rejected the weak standard set out in former Ethics Counselor Howard Wilson's September 2002 Advisory Opinion about Rule 8 that claimed a federal lobbyist only violates Rule 8 if the lobbyist's actions demonstrably interfere with and change the decisions of a public office holder in a way that amounts to a "wrongful constraint". This broad interpretation opened the door to considerable abuse, says Democracy Watch coordinator Duff Conacher.
"It's been a nine-year saga with this particular complaint and court case," Conacher told Straight Goods News. "But overall, the whole 15 years that Democracy Watch has been operating, we've been trying to get these ethics rules enforced that say: This stuff is illegal, but the rules have never been enforced. And now we won a ruling that orders the commissioner of lobbying to enforce them."
Duff Conacher of Democracy Watch speaks about lobbyists and the law (10:02)
Although Brian Mulroney brought in lobbyists' regulations in 1986, there has never been an effective enforcement arm, he says, and the various commissioners appointed to rule on related matters have been compromised by their political connections.
Although the criminal code is available for cases of real bribery, Conacher says lobbyists gain influence in other ways. "... This is more subtle, where someone wouldn't ask for a favour, they would just give you a gift, or a few gifts over time, do favours for you. And that would influence your decisions."
A lobbyist's code was introduced in 1997, "but neither the Ethics Counselor — now Ethics Commissioner — nor the Registrar of Lobbyists — and now the position's called the Commissioner of Lobbying — none of them were enforcing these rules. And we had filed many complaints, about half a dozen. It took six years to get a ruling on them, initially. Then we challenged it in court.
"So now, finally, March 12, 2009, the Federal Court of Appeal has said: 'This is what this rule means: lobbyists cannot give these gifts or do favours for policy-makers they're lobbying. And last year, the Ethics Commissioner issued a guideline saying that the politicians and policy-makers can't accept the gifts or other favours from people who are lobbying them."
Lobbyists curry the favour of office-holders through basic psychology, says Conacher. "... What's been shown, by a guy named Robert Cialdini, mostly — but there's other researchers, as well, throughout North America — is that giving these kinds of gifts and doing these kind of favours is, scientifically, psychologically, the most potent way to influence someone."
Lobbyists use "subtle ways of trading favours," Conacher says, "wining and dining people, and just getting to know them and build the relationship, and then sort of trading on that relationship. And then there's the more direct: giving big donations, doing huge fundraising efforts, working on election campaigns, helping out in very direct and substantial ways with politicians. And with government officials, as well — you're not involved in elections, but, you know, giving them weekends at chalets and those kinds of larger gifts."
If giving away merchandise and junkets to doctors can influence what drugs they prescribe, says Conacher, it's reasonable to expect that bestowing favours on public officials will influence their decisions.
It's difficult, he says, to judge how often it goes on. "How many golf games there are, and dinners out and lunches?" he asks. "It's very difficult to tell, because everyone's participating in it, and so no one really wants it to stop. The lobbyists are getting influence and access. The politicians are getting all sorts of nice perks, and support for being re-elected, and funds for their campaigns. So, who knows, exactly? I think the complaints, the stuff that has been made public, some of the most serious cases — is really just the tip of the iceberg."
Ish Theilheimer has been Publisher of the leading, and oldest, independent Canadian online newsmagazine, StraightGoods.ca, since founding it in September 1999. He is also Managing Editor of PublicValues.ca. Melanie Ogilvie is Associate Editor of PublicValues.ca.