Backgrounder on federal Commissioner of Lobbying’s attempt to gut key ethics rules in the Lobbyists’ Code of Conduct
(Democracy Watch: February 2023)
Commissioner of Lobbying Nancy Bélanger first proposed to reduce the cooling-off period during which a lobbyist would not be allowed to lobby from 5 years down to 1 to 2 years in her December 2021 draft of the new proposed Code.
Big businesses and unions pushed for even shorter cooling-off periods, and Commissioner Bélanger rolled over like a lapdog and gave them what they want by creating a huge loophole in proposed Rule 6 in the proposed new Code (November 2022 version), and in the proposed new definition of “other political work” in the new Code’s Appendix, that will allow lobbyists to fundraise and campaign for Cabinet ministers, political parties and MPs at the same time as lobbying them. Proposed new Rule 6 will also allow the Commissioner to secretly shorten the 1-2 year prohibition on lobbying that the Commissioner is proposing for lobbyists who work full-time on campaigns for politicians or parties.
Commissioner Bélanger also fails in her proposed new Code to specify exactly whom a lobbyist will be prohibited from lobbying if they campaign or fundraise for a party. Will they be prohibited from lobbying the party leader only or, given assisting a party assists everyone in the party, will they be prohibited from lobbying everyone in the party?
In complete contrast, the Commissioner’s new Code proposes to limit lobbyists to giving (directly or indirectly) no more than $80 annually in gifts or hospitality to politicians, political staff or government officials they are lobbying.
If a lobbyist giving gifts or hospitality to a politician worth more than $80 annually is unethical, so is a lobbyist raising thousands of dollars, campaigning or doing other valuable favours for a politician or their political party.
Commissioner Bélanger’s proposed new Rule 6 blatantly contradicts the proposed new Objectives and Expectations sections, and proposed Rules 5, 7.1 and 7.2, in the new Code, all of which strictly prohibit lobbying when there is even an appearance of a conflict of interest. New Rule 6 also blatantly contradicts the proposed new Rules 3 and 4 that prohibit lobbyists giving gifts or hospitality worth more than $30 annually. New Rule 6 also blatantly the 5-year prohibition in the Lobbying Act on lobbying by ministers, their staff and MPs after they leave their position.
By gutting the Code rules in ways that allow lobbyists to do favours for Cabinet ministers and MPs and Senators, the Commissioner will also likely gut the ethics rules for ministers, MPs and Senators. How? All of those ethics rules currently have a blanket rule that says you can’t “improperly” further another person’s or entity’s interests.
It would, of course, be improper for a Cabinet minister or MP or Senator to further the interests of a lobbyist who had raised money for them or done other favours for them. However, by changing the Lobbyists’ Code to legalize unlimited fundraising and favour-doing by lobbyists for ministers and other federal politicians, the Commissioner is effectively saying that it is proper for lobbyists to do these favours. As a result, it will no longer be “improper”.
That means that the Ethics Commissioner, or a court, could also conclude that it is no longer “improper” for a Cabinet minister to do favours for a lobbyist who has done favours for the minister or the minister’s party, no matter how badly that favour-trading smells.
The Commissioner has also made the very questionable claim that the current 4-year cooling-off period violates the Charter right to freedom of expression, based on one opinion that the Commissioner paid law firm Goldblatt Partners for in a sole-source contract that was extended twice, increasing from $11,300 to $45,200 and then up to $90,400. Several Supreme Court of Canada and other Canadian court rulings have clearly stated that Charter rights must be restricted to protect government integrity, and as a result it is clear that the current 4-year cooling-off period complies with the Charter.
Commissioner Bélanger has also backed off from requiring lobbyists to be honest always. In her December 2021 draft of the proposed new Code, Rule 2 clearly prohibited lobbyists making false claims to office holders and the public. In her latest draft, Rule 2.1 is has been weakened to only require taking reasonable steps to avoid misleading office holders and the public.
Details of the Commissioner’s proposed gutting of key ethical lobbying rules
Commissioner Bélanger gave no hint in her initial consultation in December 2020 on possible Lobbyists’ Code changes that she was planning to gut these key rules in the Code to roll back ethics standards for federal lobbyists 25 years in ways that will, once again, allow for rampant unethical lobbying and corrupt favour-trading between lobbyists and Cabinet ministers and other federal politicians.
Under the current Lobbyists’ Code rules, if a person does significant campaigning, or any fundraising, for a federal politician or political party, they are prohibited from lobbying for 4 years until after the next election (Click here to see the Commissioner’s guideline on current Code Rule 9).
The Commissioner proposes in the new draft Code Rule 6 (and in the proposed definition of “other political work” in the Appendix of the new Code) to allow lobbyists to secretly fundraise, campaign and do other favours for Cabinet ministers, MPs and Senators at the same time as lobbying them, as long as the lobbyist does those activities less than nearly full-time and without significant contact with the politician. No disclosure will be required of any lobbyist’s fundraising or campaigning activities for any politician or party.
For lobbyists who work full-time on politician or political party campaigns or fundraise for them to help them win an election, the Commissioner is proposing that they only be prohibited from lobbying for 1-2 years. As a result, these lobbyists will be allowed to lobby people they helped win the last election before the next election, with again no disclosure of their campaigning and fundraising.
The Commissioner is also proposing to give herself the power under new Code Rule 6 to secretly shorten the already-too-short 1-2 year lobbying prohibitions.
Democracy Watch’s interventions to stop the gutting of the rules
Democracy Watch filed a submission in December 2020, and a second submission in February 2022, and a third submission in June 2022, all calling for key changes to strengthen key Lobbyists’ Code rules, and enforcement, and the second submission also called on the Commissioner to stop proposing to gut key ethics rules in the Code.
By changing the rules, Commissioner Bélanger is also trying to negate the effect of an upcoming Federal Court ruling on two cases Democracy Watch filed in August 2020. The cases challenge the Commissioner’s rulings that let lobbyists Ben Bergen and Dana O’Born of the Council of Canadian Innovators (CCI) off even though they co-chaired Chrystia Freeland’s 2015 election campaign, and served in her riding association, and then lobbied her office. The ruling will determine whether the Commissioner failed to enforce the current Code rules.
“Commissioner Bélanger not only has an equally bad record as past lobbying lapdogs, she is now proposing to change some of the rules she enforces to try to avoid being found guilty of failing to enforce those rules,” said Duff Conacher, Co-founder of Democracy Watch. “The lobbying law needs to be changed to close huge loopholes that allow for secret, unethical lobbying, and to require effective enforcement by the Commissioner.”
“It is unfortunately not surprising that Commissioner Bélanger is trying to gut key federal ethics rules for lobbyists, given that she was handpicked by the Trudeau Cabinet through a secretive, dishonest process that the Federal Court of Appeal ruled was biased,” said Conacher.
History of Canada’s federal ethical lobbying rules
Since 1997 when the Lobbyists’ Code became federal law, it has been illegal for a registered lobbyist to do anything for, or give anything to, a federal politician, political staff person, government official or employee that would create even the appearance of a conflict of interest, including fundraising or campaigning for a politician or party and then lobbying them soon afterwards. Huge loopholes in the federal Lobbying Act unfortunately allow for secret, unregistered lobbying that is not covered by the Code’s rules.
Former Commissioner of Lobbying Karen Shepherd, forced by a unanimous Federal Court of Appeal ruling won by Democracy Watch in 2009, set a five-year cooling-off period under the Code that prohibited lobbying after fundraising or campaigning for a politician or party (Click here to see archive doc re: the Commissioner’s five-year rule, in “The risk diminishes with time” subsection).
Five years is still much too short, as the appearance of a conflict of interest continues for much longer, but it at least prohibits registered lobbyists from lobbying politicians they had helped until after the next election. The Lobbying Act also prohibits former office holders from being a registered lobbyist for five years after they leave office (Click here to see the five-year rule in section 10.11 of the Act).
Now, in her proposed new Code made public in late November, Commissioner Bélanger is gutting that rule and proposing new rules that will allow lobbyists to lobby politicians and parties soon after they fundraise or campaign for them – right after or one or two years later, depending on how much they fundraise or help the politician or party, and possibly an even shorter cooling-off period if the Commissioner grants a reduction. Click here to see the Commissioner’s proposed new Code Rule 6 and, in the Appendix, the “Political Work” section which sets out specific rules related to Rule 6’s no time, and one- and two-year prohibitions.