A recent Globe and Mail editorial posed the question: "Is the web of rules governing lobbying really working?" (Beyond Mr. Dingwall-September 30). All Canadians should ask why the Globe and Mail would pose such a question when the past 16 years has provided extensive, conclusive evidence (much of it revealed by Democracy Watch) that the federal Lobbyists Registration Act and Lobbyists' Code of Conduct are full of loopholes and completely ineffectively enforced (as are the similar lobbying regulations that exist in four provinces).
The editorial is even more questionable given that Jeffrey Simpson's column in the same paper describes lobbying accurately as "a part of Ottawa that operates largely in the shadows and depends on access, influence and political connections." (The mighty masters of meal chits and lobbying-September 30).
The fatal flaws in Canada's lobbying regulation systems are well-known to anyone who has been paying attention, and have been highlighted several times just in the past year by several scandals involving mainly the waste of public money, but also other damages to Canadians and Canadian communities. Most recently, the scandal involving illegal pay-for-success schemes between lobbyists (including former Liberal Cabinet minister David Dingwall) and companies attempting to obtain grants from the federal Technology Partnerships Canada fund has revealed clearly that lobbying rules are not at all effectively enforced.
So federal lobbying rules do not effectively "compel lobbyists to do everything above board" (as the Globe and Mail editorial claimed), and the effectiveness of the rules does not "need looking into" (as the editorial concluded). In contrast, it is very clear that not only the federal government, but also provincial, territorial and city governments across Canada, urgently need to strengthen currently ineffective ethics and lobbying restrictions, and enforcement systems, and penalties for violators.
The fact alone that the federal law has been amended in significant ways four times since it came into effect 1989 is proof that the law has always been flawed, and there are still many serious loopholes.
Secret lobbying, especially by corporate lobbyists, is legal because loopholes in the federal Act's definition of lobbying mean that many lobbyists are not required to disclose their activities. Because politicians and bureaucrats wrote the Act, they acted in their self-interest (instead of in the public interest) and did not require themselves to disclose the identity of everyone who lobbies them (which would have been a much more effective system).
The front-line person (called the Registrar of Lobbyists (and formerly the Ethics Counsellor)), who is responsible for enforcing the Act and Code (which came into effect in 1997) has always been completely under the control of a Cabinet minister, and still is.
A few people have served in the position of Registrar, and as a result of their weak enforcement policies and lack of independence from Cabinet and lack of resources, literally hundreds of lobbyists have not been effectively required to follow the Act and Code.
Similarly, the rules in the federal Conflict of Interest and Post-Employment Code for Public Office Holders Code prohibiting Cabinet ministers, their staff members, and most Cabinet appointees from becoming lobbyists for one to two years after they leave the government have never been effectively enforced.
There was no enforcement officer for the rules from 1985 (when the rules were passed) until 1994. The Ethics Counsellor who enforced the rules from 1994 to 2004 was completely under the control of the Prime Minister (and therefore was a biased, ineffective lapdog, as the Federal Court concluded in a July 2004 ruling).
Very unfortunately, the new Ethics Commissioner Bernard Shapiro, who has more independence from Cabinet and powers and resources than the Ethics Counsellor did, has an extremely weak enforcement attitude and no experience nor expertise, and as a result he is simply not upholding the Public Office Holders Code rules in any way effectively.
Democracy Watch has recently launched a court challenge of the Registrar of Lobbyists aimed at ending Cabinet control of this key ethics watchdog, and also a court challenge of the Ethics Commissioner for failing to enforce the ethics rules properly.
As a result of the ongoing weak federal ethics enforcement system, Democracy Watch has also been waiting for five years for a fair, impartial review of eight ethics complaints it filed against lobbyists and Cabinet ministers.
However, even if the federal Registrar and Ethics Commissioner were stronger in every way, the loopholes in the rules allow more than just secret lobbying.
There are no specific rules prohibiting lobbyists from working for Cabinet ministers and government departments they are lobbying, or on political party and election candidate campaigns. This huge loophole allows lobbyists to develop inside access, "I'll scratch your back, you scratch my back" relationships with politicians and bureaucrats, and therefore to have undue, unethical influence over governments.
Lobbyists are also not required to disclose how much they spend on their lobbying campaigns (as they are in 33 U.S. states), thereby hiding just how much money is an undemocratic means of influence over government decisions in Canada.
In addition, there is no effective whistleblower protection for anyone who witnesses and wants to report wrongdoing by either lobbyists or Cabinet ministers and other public office holders.
Finally, there are no penalties for violating the federal ethics codes for lobbyists and politicians (and if someone is not caught within two years of violating the federal lobbying law, they can't be charged). And the federal Cabinet's ethics rules are constantly vulnerable to being weakened because the Prime Minister can change them from one day to the next without any review by Parliament.
All provinces and territories have ethics rules for politicians, while only B.C., Ontario, Quebec and Nova Scotia have lobbyist registration laws (and only Quebec has ethics rules for lobbyists). All of these rules and laws are fatally flawed in ways similar to the federal system, mainly because the provinces and territories essentially copied the federal model when setting up their systems (although at least most of them are full laws, as opposed to codes, and so they are less vulnerable to weakening).
The City of Toronto council is currently considering strengthening its ethics and lobbying regulation system following an inquiry into a serious over-spending scandal in its computer leasing program, and has an opportunity to avoid the mistakes of federal, provincial and territorial governments.
But it is likely that the City of Toronto will repeat the mistakes, because the mistakes are intentional. The federal Liberals and the Tories before them, as well as provincial, territorial and city governments across Canada, have all been trying for decades to hide the extent to which they regularly make secret, behind-closed-doors-deals with corporate, union and other wealthy, special-interest-group lobbyists. Often these deals are done with private interests who have supported politicians or parties with donations of money or services, or with volunteer labour during election campaigns, or in other ways.
The politicians and bureaucrats who run all of these governments are in a conflict of interest when considering lobbying regulation laws, and other laws, codes, rules and policies that address their own accountability. However, they refuse to acknowledge their conflict of interest, and consistently act in their own self-interest by refusing to create strong, loophole-free rules and enforcement and penalty systems that will effectively require them to act honestly, ethically, openly, fairly, representatively, and to prevent waste.
Canadians deserve stronger lobbying and government accountability laws, and in every poll conducted in the past 20 years Canadians have said they want these effective laws. In 1996, the Supreme Court of Canada stated in a ruling that government integrity is necessary to have a democracy and that, given the powers of Canadian politicians and bureaucrats, it is appropriate that they be required to comply with "codes of conduct which, for an ordinary person, would be quite severe."
Canadian governments have been able to get away with delaying effective government accountability measures in part because while the Canadian media regularly exposes and covers scandalous activities by public officials, it usually dismisses the behaviour as the act of a few unethical people. Well-known flaws in the system that encourage dishonest, unethical, secretive, wasteful actions are usually ignored or glossed over, as in the recent Globe and Mail editorial.
One can only hope that a critical mass of politicians and bureaucrats will take actions to uphold the Supreme Court's high ethical standard, and that the media will do its part to have that day arrive sooner than later by highlighting systemic government accountability flaws. Until that day arrives, however, Canadians will remain in constant danger of being harmed, and the public interest undermined, by the secret, unethical deals governments regularly make with wealthy special interests and their lobbyists, and the lack of accountability of everyone involved in such deals.
FOR MORE INFORMATION, CONTACT:
Duff Conacher, Coordinator of Democracy Watch
Tel: (613) 241-5179
Democracy Watch's Government Ethics Campaign
Democracy Watch homepage