Scholar: East Europeans see lobbying as ‘corruption in disguise’

Agnieszka Cianciara is a senior teaching assistant at the College
of Europe (Natolin campus; Warsaw). She is also a lecturer at Collegium
Civitas in Warsaw.

She holds a PhD (2010) from the Institute of Political Studies at the Polish Academy of Sciences.

Her research interests include lobbying and interest representation
in the EU and Central and Eastern European countries, EU politics and
institutions and Polish foreign policy.

She was speaking to EurActiv Czech Republic’s Jan Vitásek.

Do you see legislation as the right way to proceed with
lobbying regulation? Opponents of legislation often warn that
registration of meetings between lobbyists and those being lobbied may
increase bureaucracy without significantly improving transparency.

Some say that those who want to avoid transparency will find a
way to get around any legislative requirements. Also, lobbying is hard
to define legally…

Carrying out any state function requires bureaucracy. People also avoid
paying taxes, but widespread consensus exists around the necessity to
establish rules and procedures that reduce tax evasion, including highly
specialised tax police forces. The fact that some people do not follow
certain rules does not mean that it is pointless having those rules.

Legal regulation of lobbying activities is only one way of regulating
contacts between interest representatives and decision-makers. It should
not be seen in isolation and clearly not as the perfect solution, bound
to increase transparency and eliminate corruption in public life.

Lobbying regulation should be part and parcel of a wider approach to
governance, based on the principles of openness, transparency,
participation and disclosure. At the same time, legal provisions can
easily be instrumentalised and become counter-productive if they are not
matched by a certain level of political culture and ethics in politics.
That is why self-regulation of the profession is also important and
should be encouraged in parallel.

Despite some attempts, legal regulation of lobbying is not very
common in Europe, having been introduced mostly in post-communist
countries, where it is seemingly used more as a tool to beat corruption.
Do you think it is a suitable tool to fight corruption?

Lobbying regulation has been recently more and more considered in
Europe, for example in the UK. In CEECs lobbying is very often
understood as corruption in sophisticated disguise. This is why calls to
‘ban lobbying’ can be heard every now and then.

This is obviously a huge misunderstanding. Lobbying is an inherent part
of the democratic decision-making process also in countries that are
ranked by Transparency International as almost corruption-free.
Corruption is often highest in political systems where no adequate or
sufficient channels of communication with decision-makers exist.

In this sense, establishing comprehensive openness and disclosure
mechanisms as part of the broader approach to lobbying regulation can of
course contribute to reducing corruption.

In 2005, Poland passed a law on lobbying, which was mostly
inspired by US regulations considered by some experts as a success. But
for your country, the legislation did not work as expected. What were
the main reasons for this?

This inspiration was extremely superficial. It was mainly about
importing ‘labels’ (registration, reporting, definition of ‘lobbyist’),
whereas the actual detailed content of the provisions does not have much
in common with the US legislation. As a consequence, perverse effects
were produced by the process of implementation in Poland.

More importantly, however, the reality of interest representation in
Poland differs substantially from that in the US. The number of public
affairs consultancies is limited, thus regulation focused exclusively on
professional lobbyists and consultants brings to light only a fraction
of actual lobbying activities.

For instance, businessmen seeking to contact the government while
representing their company’s interests are not considered lobbyists
under the current legislation, as they are not acting in the interest of
third parties but their own.

The 2005 legislation was passed in the aftermath of a corruption
scandal involving an independent lobbyist-consultant. It seems that the
main political aim was to ‘punish’ professional lobbyists, at least in
the eyes of public opinion, and not to foster more transparency in the
decision-making process.

In Prague, you said that there were deficiencies in the way
lobbyists were defined by law, implementation guidelines were missing,
and also public hearings could easily be called off. Can you comment
more on these points?

As mentioned above, the consequence of a narrow definition of
‘lobbyist’ is that in the Polish political reality, most activities that
in fact constitute lobbying, escape public scrutiny.

One major problem is implementation, as the 2005 act does not provide
any general guidelines on how officials should deal with lobbyists. As a
result, every ministry or central public administration body should
define its own guidelines and many of them have failed to do so.

Combined, the narrow definition and lack of guidelines allow the
ministries to publish yearly reports where absolutely no lobbying
activities were registered! Public hearings, introduced by the 2005
legislation, have not become an important element of the decision-making
process. They are very rarely organised and can be called off almost
without reason.

One MP in the government coalition went as far as to claim that public
hearings obstruct the functioning of democracy, while unnecessarily
delaying the decision-making process in the parliament!

In 2010, an attempt was made to amend lobbying regulation in
Poland. Based on current public debate, what improvements (or
potentially new problems) may come with new legal initiatives?

The 2010 draft proposal was extremely criticised at the early stage of
preparation and never reached the parliament. Both the proposal and the
debate have been buried and have not been resuscitated since.

In fact, not only had the 2010 draft failed to improve the current
framework, but it created a new problem of explicitly violating the
principle of equal access to decision-makers. It proposed
differentiation between professional and non-professional lobbyists,
while foreseeing different sets of rights and obligations for each
group.

As a result, a representative of an NGO (non-professional lobbyist)
would only be entitled to address the decision-maker in writing and not
personally and will not be able to attend meetings of parliamentary
committees. At the same time, there will be no reporting obligation for
the NGO.

On the other hand, an in-house lobbyist for a company or a public
affairs consultant would be able to meet decision-makers in person and
attend the parliamentary meetings in exchange for a yearly detailed
report on lobbying activities.

The good news is that the proposal was abandoned as it clearly violated
basic principles of democratic governance. The bad news is that the
reform moment might be missed and Poland would be stuck with very weak
and counterproductive legislation for a longer period of time.

What lessons can countries such as the Czech Republic learn from the Polish example?

One lesson is that there is no point in having legislation just for the
sake of ticking it off the list of things to do. Regulation that
creates legal fiction, making Poland a ‘no lobbying’ land, is not really
better than having no legislation at all.

Another lesson is that a comprehensive approach should be adopted for
lobbying regulation if it is to have any chance of being successful. The
main regulatory tools, namely registration and reporting, should
constitute part and parcel of the framework, but they have to be
designed and implemented carefully in order to prove effective in
fostering transparency and allowing for public scrutiny.

An effective register of lobbying activity should be implemented in the
form of one comprehensive and easily updated online platform, where
information on both lobbyists and the lobbied (parliamentarians, high
officials – categories need to be clearly defined) is provided.

In terms of content, the register should be based on reporting by both
lobbyists and the lobbied. It should contain information on clients and
lobbying campaign funding, as well as public office previously held by
lobbyists, but also on the interests and career track of politicians
(civil servants), as well as information about lobbying contacts.

Obviously, no matter how carefully the regulatory provisions are
designed, they will not work without the public authorities’ commitment
to implementing good governance principles.

This involves due publication of all relevant documents, calls and
results of consultations, as well as reports covering contacts with
lobbyists. Adequate training of public officials, as well as enforcement
of procedures for sanctioning misconduct, also constitutes a key to
success.

Last but not least, the role of the media, think-tanks and watchdogs
seems to be of tremendous importance, as it is them who carry out
scrutiny tasks on behalf of citizens and on the basis of the information
provided by registration and reporting tools.

Indeed, their role in supervising the conduct of both lobbyists and the
lobbied lies at the heart of successful implementation of the lobbying
regulatory framework.