Thursday, 3 September 2015
Lobbyists are being punished for all the wrong, insignificant reasons.
The Globe and Mail today published this piece of mine on the Lobbyist Registration Act - they wrote the headline, which pretty well sums it up.
As British Columbia’s attorney-general, I introduced the province’s first lobbying legislation in 2001. Its basic objective was transparency – to shine a light on the interactions between government and lobbyists. Underlying the bill was the idea that while lobbying is a perfectly legitimate fact of political life, the public has a right to know who is trying to influence the government.
It’s one thing to express a public-policy objective and another to make it work. We’ve now had more than a decade of experience with the Lobbyists Registration Act and its administration. In short, the objective remains sound, but it is increasingly being undermined by a misdirected focus on trivial violations of filing requirements.
The original framework was deliberately simple: Establish a registry; require those who are paid to lobby government to register; appoint an official, called a registrar, with the power to verify the information provided; make the register accessible to the public.
The idea was to give the public a window into how the government works, not to impose a highly technical, onerous regime – to regulate lobbying, not lobbyists.
This was the spirit and intent of the law. In hindsight, that objective may have been naive. But not, perhaps, in the way that one would expect.
The act’s original framework was implemented. There is a register, it is publicly available and there is widespread compliance. There are certainly instances where significant lapses occur, but they are isolated and rare, not systemic or pervasive.
However, the temptation of creating an elaborate bureaucracy of rule enforcement proved irresistible to later governments, and so in 2009 the act was amended to introduce a full-scale regulatory regime, with powers of investigation, hearings, sanctions, penalties and more.
For a time, the registrar focused on educating to improve compliance, rather than punishing the miscreants. Alas, this has now changed, with the result that the registrar now regularly imposes penalties for infractions in the thousands of dollars. What kinds of infractions? Late filings; incorrect dates in filings; incorrect descriptions of the details of the lobbying activities; registering too soon.
Most of these errors are the moral equivalent of returning an overdue library book. It’s a bad thing, but it’s not that bad.
This insistence on enforcing clerical compliance may have reached a new high point this month when the registrar published a decision in which the original issue was a late filing of a registration in circumstances where no actual lobbying ever occurred. What makes the case look like a textbook example of regulatory overkill is the fact that this was a formal reconsideration of the findings of a previous investigation, which itself flowed from a previous investigation report, which flowed from an earlier reconsideration. That’s a lot of legal process for a filing error.
Enforcing precise compliance with registration requirements is particularly aggravating because the online registration system is inflexible, and remarkably insensitive to the often quite unstructured practical reality of lobbying. You might start by planning to speak directly to a minister, and then decide on second thought that you should begin by raising the matter with the deputy minister, and then what actually occurs is that you see the minister’s political assistant at a social event and decide to start the discussion right then.
That is how the actual world of lobbying works. It evolves as it proceeds. But every minor change of plan requires a new filing, and every filing mistake is a potential occasion for an investigation and a fine.
There are larger issues at play here. The evolution of the administration of this act is a good example of what often happens when a policy objective is legislated. The focus changes from achieving the policy objective to the technical business of rule compliance.
For example, speed limits are enacted because driving too fast is unsafe. But once speed limits are enacted, it is not so important whether you are driving unsafely. What matters more is whether you are driving 51 kilometres an hour in a 50-km/h zone.
Of course, when rules are broken, there is an expectation of some consequence. Even library fines are supposed to be paid. But law enforcement always includes an element of discretion, and excessive rule enforcement for its own sake may undermine, rather than reinforce, the public-policy objective of the law. In this case, too much of the wrong kind of punishment may serve to drive lobbying underground, which is exactly the opposite of the law’s intent.
The irony – the failure of foresight, if you will – is that in introducing the first Lobbyists Registration Act all those years ago, my concern was that the act might fail because lobbyists would somehow find a way to ignore it. Instead, they are now being punished for their errors in trying to comply with it.
It’s time for the registrar of lobbyists to lighten up.