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Before making any other changes, make the 5-year ban on federal lobbying an actual ban, and make it fair, and strengthen enforcement

The following op-ed, by Democracy Watch Co-founder Duff Conacher, was published in the Hill Times on May 16, 2016

Rather than scrap the so-called five-year ban on lobbying as some high-powered, high-priced lobbyists are proposing (which will only increase the level of unethical lobbying in Ottawa, as a May 3rd Globe and Mail editorial pointed out), how about actually making it a ban, and then adjusting it to make it more fair and effective.

As is unfortunately usually not mentioned, the five-year ban is only a ban on being a registered lobbyist, not on lobbying. Technical loopholes in the rules in the Lobbying Act and the Conflict of Interest Act allow the Prime Minister, Cabinet ministers, and senior government officials to be paid to lobby some federal government institutions the day after they leave office (and to lobby all government institutions one to two years after they leave).

Only one of those loopholes, and not the biggest one, is mentioned most articles about the federal lobbying law — the rule that allows people employed by businesses and other organizations to lobby without registering as long as collectively all employees don’t lobby more than 20 pecent of their time.

Probably the biggest loophole, which former PM Harper adviser Bruce Carson exploited, is that unpaid lobbying does not have to be registered or disclosed. As a result, former public office holders can easily have anyone pay them for advice while lobbying for them for free (in secret, and right after they leave office). The loophole is so huge prosecutors didn’t even charge Carson when he was caught lobbying without registering for a water filtration company — both he and his client simply said he wasn’t paid for the lobbying.

Another huge loophole is that no one is required to register when lobbying a law enforcement agency of any kind about “the enforcement, interpretation or application” of a law or regulation that applies to them. This is a very active area of business lobbying especially, and public office holders can do this lobbying and be paid for it the day after they leave their position.

Until all the loopholes are closed, secret, unethical lobbying will continue to undermine and corrupt our democracy.

When these loopholes are closed — when secret, unregistered lobbying is actually made illegal — we will actually have a five-year ban. Then, and only then, the five-year ban should be modified.

Right now backbench MPs have the same cooling-off period as the PM, Cabinet ministers and senior government officials. That doesn’t make sense in most cases. The ban should be changed into a sliding scale from one to five years that applies to all politicians, staff, appointees and government officials — with a longer cooling-off period for people who have more power and connections, and a shorter cooling-off period for people with neither. The Commissioner of Lobbying should be empowered to decide the specific period for each person.

The length of any public office holder’s cooling-off period should be based on the appearance of a conflict of interest standard. That would mean an opposition backbench MP who is a good friend of his/her party’s leader and senior MPs who loses his/her seat in an election may, if his/her party wins that election, have a longer cooling-off period from lobbying some public office holders or departments than a defeated Cabinet minister from the party that was in power.

This would be a more complicated system for the Commissioner of Lobbying to administer, but no more complicated than the current post-employment cooling-off system that the Ethics Commissioner administers. And it would also be more fair, and prevent apparent conflicts of interest more directly and comprehensively.

Whether the Commissioner of Lobbying position and the Ethics Commissioner position are ever combined, as some have proposed, the positions should be changed into three-member commissions. The current commissioners have had reigns of error since 2007 in enforcing the Lobbying Act and Lobbyists’ Code of Conduct and the Conflict of Interest Act and Conflict of Interest Code for MPs, during which both of them have issued dozens of secret rulings, and let dozens of people who have clearly violated various rules off the hook (they have both let off more than 75% of rule violators).

Even worse, it is likely, given that both commissioners have failed to conduct random audits (which are key to effective enforcement of any law), that only five percent of rule violators have been caught. This means since 2007 likely more than 1,500 public office holders have violated ethics rules, and likely more than 1,500 lobbyists have violated lobbying rules, without getting caught.

The unfortunate, very weak enforcement records of the Commissioner of Lobbying and the Ethics Commissioner have shown clearly that not only would it be a very bad idea to re-appoint either of them this July to a new term, but also that one person should not be trusted with enforcing these key democratic good government laws and codes. A commission with three members will ensure that weak enforcement will be checked, and will make it more difficult for the ruling party to appoint a negligent lapdog “czar” who rubber stamps most everything they do as ethical and legal.

As the Supreme Court stated in a 1996 ruling, and the Federal Court of Appeal echoed in a 2009 ruling, if we don’t have strong ethics rules and lobbying restrictions, both strongly enforced, we won’t have a democratic government.

Because it’s 2016, Canadians deserve these and other real changes, finally, to clean up federal politics.