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B.C. NDP lobbying bill leaves huge secret, unethical lobbying loopholes

Bill 8 prohibits only registered lobbying for two years – many loopholes allow for lobbying without registering

Maximum penalty of $25,000 fine much too weak to discourage violations – law will remain a sad joke until these flaws are corrected (and municipal law should also be enacted with strong measures and penalties)

Wednesday, October 4, 2017

OTTAWA – Today, Democracy Watch criticized the B.C. NDP government’s Bill 8 proposing changes to the provincial Lobbyists Registration Act because it leaves huge loopholes that allow for secret, unethical lobbying of provincial politicians and government officials, and allow all those politicians, and Cabinet ministers, to lobby government the day after leaving their position.

Despite the government’s claim that the bill imposes a two-year prohibition on lobbying after Cabinet ministers and other officials leave office, loopholes in the definition of “lobbying” in the Act mean that everyone is allowed to lobby the government the day after they leave office (although Cabinet ministers would have to be careful about whom they lobby concerning contracts and a couple of other things, under the provincial Conflict of Interest Act, clauses 8(4)(b) and (c) and subsection 8(7)).

“The B.C. NDP’s bill doesn’t close huge loopholes in the province’s lobbying law that allow for secret, unethical lobbying, and as a result Cabinet ministers and other senior government officials will continue to be allowed to lobby the government the day after they leave office, selling their inside access and influence to the highest bidder,” said Duff Conacher, Co-founder of Democracy Watch and part-time professor of law and political science at the University of Ottawa. “The law is a sad joke and makes it easy to lobby in secret, and with some lobbyists making hundreds of thousands of dollars trying to win benefits that are worth tens of millions of dollars, the penalties are much too low to discourage violations.”

The huge secret lobbying loopholes in the Act that Bill 8 fails to close are as follows:

  1. secret lobbying will still be legal if the lobbyist is not paid for their lobbying or only paid expenses (under the definitions in section 1 of the Act — a consultant lobbyist can easily arrange for clients to pay them for other services while lobbying for free; former Cabinet ministers and senior government officials collecting rich pensions can afford to lobby for free, and; businesses and other organizations can easily use unpaid board members to do their lobbying);
  2. secret lobbying will still be legal if the lobbyist is invited by a politician or government official to lobby (under clause 2(2)(c) of the Act);
  3. secret lobbying will still be legal if a lobbyist is lobbying about the enforcement, interpretation or application of laws and regulations (under clause 2(2)(b) of the Act, which is a huge area of lobbying, especially for big businesses), and;
  4. secret lobbying will still be legal for in-house lobbyists at businesses and other organizations who lobby for less than 100 hours annually (under section 1 definition of in-house lobbyist in the Act), and;
  5. secret emails, texts, phone calls and even meetings between lobbyists and Cabinet ministers and senior government officials will still be legal (which will be used whenever they want to have secret, unethical relations with a lobbyist – all communications should be required to be disclosed).

To actually make secret lobbying in B.C. illegal, the provincial law must be changed in the following ways (and a law covering municipalities should also be enacted with the same measures):

  1. require Ministers, their staff, Cabinet appointees and other senior government officials, members of the legislature and senators and all their staff to disclose all their contacts in an online, searchable database with anyone who communicates with them in any way about their decisions;
  2. require lobbyists to disclose how much they and their clients are spending on their campaigns (as required in 33 U.S. states);
  3. require lobbyists to disclose past work with political parties, candidates for federal public office and governments;
  4. prohibit lobbyists from serving in senior positions for political parties and candidates (as prohibited by the federal Lobbyists’ Code of Conduct, and by laws in Maryland and New Mexico);
  5. prohibit lobbyists from doing work for government departments (such as providing advice on communications) and from having any business connections with anyone who does such work;
  6. eliminate the corporate tax deduction for lobbying expenses.

And to close down the revolving door in B.C. to stop former politicians, their staff and government appointees and officials from using their inside access to have unethical influence, the following changes must be made:

  1. increasing the post-public service restriction (“cooling-off period”) on taking a job with a person, company or organization that you had significant dealings with while in office to 3 years for Cabinet ministers, and to 2 years for Cabinet staff and senior government officials and opposition party leaders and critics, and to 1 year for backbench politicians, to help ensure that companies and organizations can’t offer jobs as a payoff to politicians and officials for what they did while in office;
  2. increasing the post-public service lobbying restriction for Cabinet ministers, their staff, Cabinet appointees and senior government officials to 3-5 years (depending on the decision-making power of the person), and for backbench politicians and senators and their staff, and junior government officials and employees to 1-4 years depending on their decision-making powers (to help close the revolving door through which these people sell their expertise and inside knowledge to private interests when they retire, are defeated in an election, or leave their position for another reason), and;
  3. requiring all these people to report their post-public service activities to the ethics enforcement agency during the cooling-off period to ensure they are complying with the rules.

And penalties should be increased for violating all good government laws in B.C. at the provincial and municipal level to match the current penalties for violating the federal Lobbying Act (ie. $50,000 to $200,000 fines and jail terms of 6 months to 2 years), along with a loss of any severance payment, and a partial clawback of any government pension payments.

Finally, to ensure the law (and all of B.C.’s good government laws) are enforced properly, the following changes should be made, covering all provincial government and municipal government institutions (including any entity that receives significant public funding:

  1. ensure a “whistleblower” protection law exists that gives anyone the right to reports a violation of any law, policy, code, guideline etc. to a fully independent integrity commissioner who has the power and resources to fully investigate complaints, and to protect all whistleblowers from retaliation and to compensate them fully if they suffer retaliation;
  2. appoint all ethics, integrity or lobbying commissioners for fixed, non-renewable terms (to remove the incentive for them to please politicians with weak enforcement and rulings in order to be renewed for another term);
  3. require all integrity, ethics and lobbying commissioners to conduct regular, unannounced audits of the activities of the people who are covered by the law they enforce, to ensure everyone is complying with the rules;
  4. require all integrity, ethics and lobbying commissioners to review complaints filed by the public, and rule publicly on every complaint;
  5. require the commissioners to issue a ruling every time they give advice to anyone on how the law/code rules apply to specific situations, and;
  6. allow complainants to go to court if the integrity, ethics or lobbying commissioner delays an investigation an unreasonable length of time, or makes any legal or factual error in a ruling.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
[email protected]

Democracy Watch’s Government Ethics Campaign