Lobbying in Canada

What is Lobbying?

Lobbying is the process through which individuals and groups articulate their interests to public office holders to influence public policy. Professional lobbyists are paid to assist others to represent their concerns to government. The federal Lobbying Act defines lobbying as any paid communication with a public officer about: federal policy (including amending, developing or making legislation, resolutions, regulations or programs); federal grants or other financial contributions and benefits; federal contracts; or setting up a meeting between a client and a public office holder.

Lobbying is related to patronage. It involves relationships between private groups and individuals and public officers — people who are either elected or appointed to a legislature (like Parliament or the Senate); or are employed in the public service. A patronage appointment is when a person is appointed to a position by a public officer because of that person’s relationship with a public officer. Close relationships or exchanges of gifts or favours between public officers and private groups or individuals often raise issues of conflict of interest. In such cases, a public officer may appear to direct public policy for their own gain rather than for the benefit of the public.

The lobbying system has potential for abuse. But it is also a major driver of political advocacy and policy change. The system is regulated through conflict of interest legislation and lobbyist registries at the federal, provincial and municipal levels. Generally, lobbyists must register with the lobbyist regulator. They must report all meetings, and the subject matter of those meetings, with public officers.

History of Lobbying Regulation

Lobbying is as ancient as the art of politics. It first attracted widespread public interest and concern at the end of the 19th century, when journalists and reformers exposed its extensive abuse and corrupt application in American politics. By 1890, Massachusetts proclaimed an anti-lobbying act. It served as a model for the legislation of Maryland (1900), Wisconsin (1905) and a few other states.

The Anti-Lobbying Act was based upon the publicity principle. It is the general idea that publicity and transparency in government decision-making will decrease corruption. The Act required counsel and other legislative agents to register with the sergeant-at-arms. They were required to provide the names and addresses of their employers and the date, term and character of their employment.

Lobbying has been a part of Canadian politics from the earliest colonial period. The grants, monopolies and concessions that made possible the early voyages of Cartier, Frobisher, Hudson and others were obtained through lobbying at court, for example. The decisions that favoured the Family Compact and the Château Clique were also the result of lobbying the British cabinet and Parliament.

Once responsible government was attained, followed by Confederation in 1867, lobbyists turned their attention to the federal and provincial governments. At first they focused on political parties, the legislature and the government of the day. But governments then became more complex. Their influence extended into virtually every aspect of social and economic life. As a result, lobbyists came to pay more attention to the bureaucracy and cabinet, than to the legislature and to political parties. Today’s federal lobbyists attempt to influence policy by meeting with Members of Parliament and senators; as well as with ministers and public officials.

What Do Lobbyists Do?

Lobbyists are commonly seen as corrupting figures who hijack public policy for their own gain. This figure can certainly be found in the many scandals that Canada has experienced, from the Pacific Scandal (1872–73) onwards. However, few lobbyists work to achieve their ends through venal lobbying, which is essentially bribery. The great majority earn their salaries by applying their knowledge of how policy is made and how to obtain access to the policy processes.

Knowledge of the policy-making process is valuable. Knowing who does what, and where, helps the lobbyist make the best use of the information he or she possesses. For example, an experienced lobbyist will know what minor technical problems can be handled by which junior officials. They will also know where and when to take major policy issues to senior public servants and ministers. He or she will know which problems can be resolved with a single telephone call. They will also know which issues will require the formation of coalitions and the building of supportive public opinion that can be expressed through “grassroots lobbying.”

The lobbyist’s knowledge is brought to bear in one of three ways: (1) by representing interests to government; (2) by providing a “dating” service; or (3) by “mapping” decision processes for clients. Representation involves presenting the needs and views of a particular interest to officials, politicians and sometimes the general public. Permanent employees of trade associations, for example, and other pressure groups spend a great deal of time in this sort of activity. The “dating” service puts clients in touch with appropriate officials. It advises them on how best to present their case. “Mapping” services are more elaborate and expensive. The lobbyist has to help the client develop a strategy for taking the proposal through the entire decision process.

Projects and Policy Change

Rather than focusing on broad policy issues, most lobbyists work on a project basis. They help clients obtain such things as government supply contracts; industrial incentive grants; licences; access to natural resources; or minor regulatory changes. This type of lobbying does not have to involve influence peddling. (See Political Corruption.) Rather, it has been described as the “dull, repetitive, time-consuming and expensive” task of advising clients on how to apply for grants and submit proposals.

Lobbying for broad policy change is time-consuming and expensive. It often takes many years to accomplish and engages participants on an international basis. The tobacco industry and the health lobby, for example, have locked horns for decades over the regulation of tobacco products. Each side formed coalitions with like-minded organizations, in Canada and internationally. They cultivated grassroots support; lobbied directly with ministers and civil servants, using lobbying firms as well as associations; financed research in support of their claims; and commenced court actions against each other and the government. The health lobby has largely succeeded in turning public opinion and implementing restrictive policies. But the battle continues.

Lobbying Sector and Public Suspicion

The lobbying industry in Canada is concentrated in Ottawa for federal-level issues and in provincial capitals for provincial-level issues. It often extends to municipal-level issues. Lobbyists may be consultants who lobby on behalf of others. They may also be salaried employees of interest groups, corporations and unions; these are often referred to as “in-house lobbyists.” Law firms and public relations firms also frequently engage in lobbying. Professional lobbying firms may be narrow in their scope; focusing on certain types of procurement, for example. Or they may have broad practices. These may include an affiliation with high-profile multinational corporations that can provide clients with advertising, public relations and polling support in addition to lobbying activities.

Lobbyists attempt to influence the direction of government for their own benefit. As a result, the practice is often the target of public suspicion. While the practice is regulated, the content of required disclosure is minimal. The costs associated with lobbying tend to give more power to the wealthy. In Canada, federal and provincial legislatures have enacted laws to counteract the opaque nature of the business and the inherent inequality of access. Public confidence in the system relies not just on regulation, but on effective management and compliance.

The Lobbying Act

Lobbyists of the federal government are governed by the Lobbying Act. It came into force in 1989 as the Lobbyists Registration Act. Initially, the law only required lobbyists to register, identify their clients, the agencies they were approaching, and the object of lobbying. Lobbyists working for associations or corporations were asked only to identify themselves and their employers. Critics found these information requirements too modest; the sanctions imposed on those who did not register inadequate; and the investigative powers of the registrar too limited. They also criticized the lack of an arm’s-length relationship between the registrar and the government. One opposition member called the Act the “business card bill” because it required so little information it could be kept on a business card.

In response to pressure for more transparency and accountability, the Act went through a series of changes. It was amended four times (1995, 1996, 2003, 2004) before it was rebranded and revamped as the Lobbying Act in 2006. The updated Act came into force on 2 July 2008. The new Act abolished the previous position of Registrar of Lobbyists and replaced it with the Commissioner of Lobbying. The commissioner is an independent agent of Parliament. They are theoretically less prone to political influence and have investigative powers; as well as a mandate to educate through the Lobbyists’ Code of Conduct. The new Act also introduced a five-year ban on lobbying activities for all designated public office holders after they leave office. This includes all Members of Parliament and the Senate and their employees; as well as senior executive-level public office holders.

Previously, infractions or violations of the Lobbying Act or the Lobbyists’ Code of Conduct could only be investigated and prosecuted up to two years from the violation. The Lobbying Act extended that limitation period to 10 years. It also increased the penalties for breaching the Lobbying Act to a fine of up to $200,000, up to two years in jail, or both. Further, the commissioner can prohibit lobbyists convicted under the Act from lobbying for up to two years.

Lobbyist Registration and Returns under the Lobbying Act

The Lobbying Act divides lobbyists into two categories: consultant lobbyists (persons hired by a client to communicate with a public office holder, or to set up meetings between the client and public office holders); and in-house lobbyists (employees of the organization on whose behalf they are lobbying). In-house lobbyists are divided into corporations (for-profit entities) and organizations (not-for-profit entities).

Certain individuals are not considered lobbyists under the Act. They include members of provincial, municipal and Indigenous governments and their staff-members; as well as diplomatic, consular, and foreign representatives; or members, officials, or representatives of the United Nations. Private citizens and volunteers (people who are not paid to make communications) are not considered lobbyists under the Act.

Consultant lobbyists are required to register with the Office of the Commissioner of Lobbying within 10 days of being retained as a lobbyist for a particular client. In-house lobbyists must register within two months of the beginning of their lobbying activities. All lobbyists must file monthly reports of their lobbying activities. These reports must include the public office holder(s) contacted; the dates of the contact; and the subject matter discussed. Lobbyists are required to explain the nature of their lobbying for a client in their registration. They are also required to disclose any public offices they have previously held.

Lobbyists must submit a monthly return to the Office of the Commissioner of Lobbying within 15 days of the end of the month if they have made an oral and arranged communication with a designated public office holder in the previous month; if previous information needs to be corrected; if new information needs to be added to a previous return; or if the lobbying activity has ceased. All returns and registrations, as well as statistics on compliance investigations by the commissioner are searchable online through the Office of the Commissioner of Lobbying.

Issues

The Lobbying Act and the Lobbyists’ Code of Conduct treat the issue of political influence and potential conflicts of interest seriously. The Act bans any lobbying activity by a former designated public office holder for five years. This ban may be lifted by the commissioner at his or her discretion. Additionally, the Lobbyists’ Code of Conduct cautions lobbyists who wish to participate in political activities from creating a sense of obligation in a public office holder according to a “reasonable person.” This is not a hard and fast rule against political activity. However, the Code is concerned as much with real conflict of interest as with the perception of one, and advocates for a careful approach.

Despite reforms to the Act, there are still deficiencies. For example, officials are not required to keep formal records of their contacts with lobbyists. Designated public office holders must only confirm the content of lobbying as reported by the lobbyist. Additionally, lobbyists may no longer work on a contingency basis. They must be paid regardless of the success of the lobbying effort. However, unpaid or “volunteer” lobbyists are exempt from registration, as are private individuals. Wealthy and connected volunteers may thus contact and influence public office holders without scrutiny.

Breaches of the Lobbying Act — like failing to register or making false or misleading statements on documents submitted to the commissioner — are punishable criminally. ( See also Criminal Investigation.) Breaches of the Lobbyists’ Code of Conduct do not attract similar punishment. Such breaches only require that the breach be made public in a report by the commissioner to Parliament.

See also Pressure Group; Political Patronage in Canada.