At the time this article was published
Mitchell Sharp was Commissioner of the Northern Pipeline Agency. This is a
revised version of an address to a Canadian Study of Parliament Group meeting
in March 1986.
There has been much discussion recently
about lobbying and the registration of lobbyists. What is the purpose of
registering lobbyists? Is it to prevent bribery of government officials or MPs?
This is already a crime under the Criminal Code. Is it to prevent preferential
treatment of paid lobbyists by MPs or government officials? This is already
forbidden by Conflict of Interest Guidelines applying to ministers and
government officials. Is it to identify the clients of paid lobbyists? Why
should lobbyists want to hide the identity of their clients when making
representations on their behalf? If there are concerns on that account, it
should be sufficient to add to the Conflict of Interest Guidelines a
requirement that when representations are made by a lobbyist, ministers and
government officials demand the disclosure of the clients on whose behalf the
lobbyist is appearing.
What seems to be in the minds of those who
advocate registration of paid lobbyists is that it will meet public concern
that paid lobbyists and particularly friends of the government are secretly
receiving preferential treatment for their clients with respect to government
policy, administration or legislation.
The argument apparently is that by requiring
paid lobbyists to register and to reveal the names of their clients it will be
publicly known who is representing business interests in Ottawa (apart from the
individual companies themselves and business associations like the Chamber of
Commerce, the Canadian Federation of Independent Business and the Canadian
Manufacturers Association). It will be easier to identify those who are seeking
Two private members' bills, C-248 and C-256,
in the names of James McGrath and John Rodriguez respectively incorporate essentially
two tests as to who is a paid lobbyist. First, that the lobbyist be paid for
his services. Second, that for payment they attempt to influence directly or
indirectly legislation before Parliament or administrative decisions by the
This definition rules out individual
companies and associations that make representations on their own behalf. They
may be lobbyists but they do not attempt to conceal their activities by hiding
behind a front man or woman. After listening to Mr. Rodriguez explain his bill
I was confused, because he seemed to say that an employee or even officer of a
company like INCO, for example, making representations on behalf of his company
would be considered a paid lobbyist and would be required to register.
Another ambiguity of this definition lies in
the phrase "influence, directly or indirectly". The intention seems
to be to require the registration of paid lobbyists who make representations to
MPs or government officials on behalf of their clients. It does not appear to include
consultants who advise their clients as to how to make effective
representations. What about consultants who advise their clients and then make
appointments for them with ministers, MPs or government officials, but do not
attend the interviews? Does this constitute lobbying? At first sight the answer
would seem to be in the negative, and yet it could well be that because of his
friendship with the government the consultant exercised influence by obtaining
the appointment, thereby indicating his appreciation of favourable treatment of
his client. The consultant might indeed make this clear to the official when
arranging the interview.
The use of the word "influence" by
the two MPs in drafting their bills indicates that alternative wording such as
"making representations" would not be broad enough for the purpose
they had in mind. On the other hand, "influence" is so broad a word
that it would be extremely difficult for the business community, the
administrators and the Courts to interpret it in particular cases.
This is a very important point because there
are some consultants who advise their clients but do not make substantive
representations on their behalf, i.e. they do not engage in what is generally
thought to be lobbying. Should they be required to register simply in order to
arrange appointments with ministers, or MPs or government officials? Surely it
is not in the public interest to put obstacles in the path of people who know
their way about in the bureaucracy and can save the time of both the business
enterprise and the officials.
Is there any other form of words that would
accomplish what seems to be the purpose of registration and would be more
precise in its definition of lobbying? I doubt it. Influence peddling is
presumably the essence of the concern.
Lobbying may be a perfectly acceptable
activity in modern democracy; indeed, given the complexity of government,
lobbying may be essential to the assembly of facts on which Parliament and
governments have to base decisions. The very fact, however, that legislation is
being contemplated shows that there is public and parliamentary concern about
lobbying activities by those who seek preferential treatment, i.e. who peddle,
not their knowledge, expertise and analysis, but their influence. Hence resistance
could be expected from those who do not want to find themselves on the same
list as persons who do peddle influence.
Registration might have one effect and that
would be to increase competition for clients amongst the paid lobbyists and it might
lead to assessments in the press and elsewhere of their relative success in
achieving results. Whether publicity would lead to a modification of influence
peddling by those who are in a position to engage in this activity is doubtful,
although one Could expect some virulent attacks in Parliament upon the
activities of supposed friends of the government who register as paid
My feeling is that those paid lobbyists
whose main attraction to clients is their inside track with the government would
have no objection to registration. For them, registration would be evidence of
respectability, putting them in the same category as all other paid lobbyists
who peddle their expertise rather than their influence. It would be their
answer to attacks upon them for influence peddling.
Another question is what penalties should
there be for non compliance with the requirement to register? The McGrath and
Rodriguez bills provide for fines for non compliance, accompanied by
prohibition from acting as a lobbyist for a period of three years. The
Rodriguez bill contains a curious section denying access to Parliament Hill to
I have been trying to imagine the
circumstances under which a complaint would be laid against a lobbyist for
failing to register. I suppose an ordinary MP who was suspicious of the
activities of lobbyists might do so if he were approached with respect to some
legislation before Parliament and discovered that the person who approached him
had not registered as a paid lobbyist. This is highly unlikely, since the
so-called lobbyist might simply reply that he was expressing his own views to
an MP, which he was entitled to do as a citizen. For much the same reasons, it
is even less likely that a Minister of the Crown would lay a complaint.
Whatever complaints that were laid would
therefore originate with civil servants. Here again, I try to imagine the
circumstances. Someone representing a business concern meets with a civil
servant and wants to lay before him information relating to a decision the
civil servant has to make or to recommend to his superior. The civil servant
asks him if he is being paid to represent the business concern and if so
whether he has registered as a paid lobbyist. The representative replies that
he is being paid but that he is not attempting to influence the decision. He is
simply providing information that the civil servant should have before reaching
a decision. Will the civil servant lay a complaint? Presumably he would have to
have the approval of his superior and perhaps of his minister before doing so.
The most probable outcome would be to do nothing.
Another possible approach to penalties for
non registration would be to issue a licence to registered lobbyists and to
modify the Conflict of Interest rules to require civil servants to refuse to
meet paid representatives who did not produce their licence. I do not think MPs
including ministers, could be forbidden from seeing citizens who wished to make
representations on their own behalf or on behalf of clients. Indeed, I would
hope that if any rules which had this effect were to be proposed, either by
legislation or by regulation, MPs would rise in their wrath to protest.
The requirement to produce a licence when
meeting with a civil servant to discuss the business of a client would be a
more effective way of achieving compliance than a fine or other penalty for non
compliance. But since those who are peddling influence are not likely to object
to registration and licensing, a more effective system does not mean that there
will be less influence peddling or better control over this kind of activity.
I have heard suggestions that even if
lobbyists paid by domestic clients should not be required to register,
lobbyists paid by foreigners should be required to do so and to list their
foreign clients as in the United States. Indeed, in the United States, foreign
agents not only are required to list their clients, they also have to reveal
their activities and their fees "to ensure that the Government and the people
of the United States would be informed of the identity of the persons engaging
in political activities for or on behalf of foreign governments, foreign
political parties and other foreign principals". In reports under the
Foreign Agents Registration Act can be found, for example, the fees paid by the
Government of Canada to various law firms, other United States citizens and
organizations for advancing Canada's interests with the Administration, the
Congress and the people of the United States.
The registration of Canadians paid to
promote the interests of foreigners raises questions of a different kind from
the registration of Canadians paid to represent other Canadians. It is assumed
that even those paid lobbyists peddling their influence on behalf of other
Canadians are patriotic or at least the results of their activities only affect
the distribution of wealth within Canada. The same assumption cannot be made
about Canadians who promote the interests of foreigners, particularly their
political interests. Moreover, their activity may be of a different kind from
what is generally thought of as lobbying. They may never, for example, give
advice to their clients as to how to deal with the Government of Canada or may
never represent them in dealings either with the Government or with Parliament.
They may simply give them legal or financial advice concerning Canadian laws or
regulations or they may distribute literature or films. They are not so much
paid lobbyists as agents or representatives.
The principal difficulty that I see in
formulating an approach to the identification of foreign agents is to define
the nature of the activities that require an agent to register. I think one is
driven to something like the definitions contained in the United States Foreign
Agents Registration Act.