Luiz Alberto dos Santos *
On December 7, 2016, the Committee on Constitution, Justice and Citizenship of the Brazilian Chamber of Deputies approved the proposal of the rapporteur, Dep. Cristiane Brasil (PTB-RJ), to the Draft Law No. 1202, of 2007, by Carlos Zarattini, who intends to regulate the lobby on the Federal Legislative and Executive Branches.
After almost ten years of examination, and the Bill having been approved, without amendments, by the Committee of Labor, Administration and Public Service of the Chamber in 2008, the bill should be considered by the Chamber’s Floor, since it deals with the regulation of the subject related to individual rights. If approved it will be sent to the Federal Senate.
Although backed by longstanding debate, and justified by the urgency and relevance of the subject, given the repeated critical situations involving the practice of crimes of influence and corruption that are considered a lobbying activity by the media, society and public prosecutors, the Bill, as approved by the Committee of Constitution and Justice, suffers from serious misunderstandings and weaknesses that make it almost a decorative piece, which will contribute little or nothing to fulfill the OECD recommendations on the subject and the needs of the Brazilian political-administrative system.
According to the OECD, the regulation of lobbying, a phenomenon that is intensifying in the world, particularly in developed countries, must meet some validity requirements.
The OECD Council Resolution of 18 February 2010, recognizing the need for each country to adopt the appropriate solution to its context, proposes, among other measures, a comprehensive definition of lobbying and lobby, the adoption of rules to ensure fairness in access to decision-makers and mechanisms for recording and controlling the activities carried out and increase the accountability of lobbyists, easily accessible by the public at large and by the authorities, allowing such activities to be subject to permanent scrutiny, in order to achieve the goal of ensure transparency and public integrity in these activities, in favor of preserving trust in public institutions and agents.
Regrettably, almost 30 years after the presentation of the first legislative proposal to regulate lobby in Brazil, it must be acknowledged that the new proposal under consideration is far from satisfactory.
Indeed, the alternative proposal approved by the Committee of Constitution and Justice does not provide a system of accreditation or mandatory registration of lobbyists, but a optional one, which prevents lobby contacts from being subject to mechanisms of control over their performance, which, even, are fundamental so that those who act in the shadows and commit improprieties are removed from this activity.
It thus seems innocuous to predict that the agent of government relations who has been convicted of an act of corruption, influence peddling, concussion, administrative advocacy or improper administrative behavior will be denied registration – which lobbyists are not obliged to apply for.
The definition of who is a lobbyist is seriously undermined. One, because the focus of the lobbying regulation law shifts to the simple discipline of “activity of representing interests in government relations”; on the other side, because the scope of this discipline is limited to the relations between Administration and administered or decision-making processes that imply suggestion, modification, interpretation, revocation or extinction of a legal norm.
In other words, all other decision-making processes where lobbying is common, intense and often spurious, especially in relation to the formulation or implementation of public policies, are excluded from regulation, although the search for influence in these activities is often confused with influence peddling and the pursuit of undue advantages. The reporting of these activities to the control bodies, through periodical reports that are published online, is totally ignored and omitted.
In another direction, however, the law assures lobbyists who are called “government relations professionals”, special prerogatives of action, by guaranteeing the right to present analysis of the impact of a legislative or regulatory proposition; studies, technical notes, opinions and the like, with a view to examining the decision-making process; suggestions for amendments, substitutions, requirements and other documents within the scope of the legislative or regulatory process; and suggestion of request of realization or participation in public hearings.
Although such proposals are not binding, it is clear that the scope of the norm, which will be converted, instead of a mean of control, scrutiny and transparency of the lobby, the increase its empowerment in the search for influence.
None article in the proposal operates in the sense of guaranteeing equal access. Nothing is established that obliges the decision maker, when he or she meets a specific interest group, to offer equal access to the opposite interest, as is necessary in a pluralistic society and democratic.
Neither is there any rule that affects the performance of government lobbyists, that is, those who represent the interests of public administration bodies and entities, and who already have special prerogatives of access to public decision makers.
It is a fact that a system of lobby regulation must be adjusted to the possibilities of its implementation and compliance by those involved, the constitutional guarantees of the right of association and petition to the public powers, and can not become a barrier to the legitimate performance of representation of interests, which is inherent in democracy.
But the proposition as approved by the Committee of Constitution and Justice does not fulfill practically any of the objectives that a Lobby Law must do. It seems to be another smokescreen in the line of “I pretend to regulate, you pretend to obey regulation.”
Building a balanced legislation that favors transparency and integrity of the lobby, broadening equal access and scrutiny of government decision-making is a challenge. Several countries adopt rigid and detailed regulations, of which the United States is the main example, as a result of contexts with high degrees of corruption involving lobby activities.
It is argued that over-rigor may end up impeding the application of rules and produces contouring solutions for their mockery, as occurred in USA after the introduction of the Honest Leadership and Open Government Act (HLOGA), when shadow lobbying increased as a result of stronger disclosure and penalties for registered lobbyists. It is true. On the other hand, a loose law is, as it was pointed out until 1995, in the USA, about the law passed in 1946, then in force, a “toothless lion”, which has little or no effect to legitimize the lobby and avoid spurious practices.
Countries such as Canada have already adopted, through successive revisions, a balanced and comprehensive legislation that adheres to all the principles and objectives of a Lobby Law consistently.
Others, like Chile, have adopted “minimal laws” with a merely formal character, wasting the political opportunity that the introduction of lobbying laws produces for institutional improvement.
The European Community, which adopts soft regulation, is currently discussing ways to make its legislation broader, more effective and consistent, notably by requiring a mandatory definition and broadening of transparency of the lobby, which is comprehensively defined.
The proposal of Dep. Cristiane Brasil, that substitutes the original Bill, is going to be appreciated by the Floor of the Chamber of Deputies, an opportunity in which it can be improved and rescued essential aspects that have been lost along the way.
In the Senate, Senator’s Walter Pinheiro (S/P-BA) Bill 336 of 2015, is under the analysys of Senator Ricardo Ferraço (PSDB-ES). This Bill offers to debate a complete and detailed legislation, but flexible enough, in line with debates developed over the years under the leadership of the Civil House of the Presidency, Office of the Comptroller General and the Ministry of Justice, in order to comply with the recommendations of the Council for Transparency and Combating Corruption and the National Strategy for Combating Corruption and Money Laundering (ENCCLA).
So in order to not to lose the historical opportunity to produce an adequate law, and that is not contaminated by the corporatist and defensive bias of those who do not, in fact, accept control and transparency about the activity, it will be essential that the members of Parliament, sensitive to the demands of society for greater transparency, integrity and equity, review the text under discussion and avoid, at the end, the concretization of Horatius’s expression “parturient montes, nascetur mus”, frustrating the expectations that have been so much nourished.
Last version: 20.09.2017
* Legislative consultant of the Federal Senate and Lawyer, he has a master’s degree in Administration and a doctorate in Social Sciences. Professor at EBAPE / FGV and former deputy minister for Analysis and Monitoring of Government Policies at the Civil House of the Presidency of the Republic (2003-2014).