While the practice of interest groups and citizens attempting to shape political decisions is nothing new in most countries, over the last few decades it has become a sophisticated industry, and one that is underpinned by large amounts of money.
Within the European Union (EU), institutions are responsible for both EU-wide policy making and implementation, and also for member states' national laws in areas such as food, climate change, trade, tobacco, pesticides, arms, data privacy, and banking, and legislation in any of these areas is going to have massive implications on business, civil society, public health administrations, as well as trade unions and consumers.
Clearly there are many interests at stake in EU policy negotiations, and a large number of voices seeking a chance to shape the debates in ways that take their own interests into account. All very fertile ground for ‘lobbying’, defined as: the act of trying “to persuade a politician, the government, or an official group, that a particular thing should or should not happen, or that a law should be changed”.
Any organisation seeking to promote its interests can recur to lobbying, and as a swarm of some 30,000 lobbyists regularly walking the corridors of EU institutions would indicate, lobbying is a thriving industry, influencing an estimated 75 percent of legislative decisions in the EU .
It includes professional lobbyists, NGOs representatives, corporations, private sector representatives, trade unions, think-tanks, law firms, academics as well as faith-based organisations.
Lobbying is indeed an important part of the democratic process, and lobbyists can help bring important issues to the policy-making table. The trick is to ensure that policy makers and agenda setters are exposed to a fair representation of different interests and voices, so that they have the fullest possible picture at their disposal, before making policy decisions that can impact the lives of millions.
No mean feat. Yet there are many examples to show that when done in the public interest, lobbying can be a hugely transformative and positive force, whether within human rights, public health, environmental protection or consumer rights. From the abolition of slavery to equal voting rights for women, from legislation on equal opportunity for minority groups such as the LGBTQI community, the disabled and ethnic minorities, to legislation on food labelling, from smoking bans to carbon emission caps, from restrictions on the use of Genetically Modified Organisms to compensation for victims of corporate environmental disasters, a myriad of stakeholders have been, and are, relentless in lobbying for reform for the public good. Despite this, the word 'lobbying' often has a dark undertone to it.
So What is the Problem?
As diverse as the lobbying industry might be, it is perhaps unsurprising that when it comes to influencing decision makers, it is the well-resourced corporate lobbyists who speak the loudest and get their voices heard. They do so through a variety of methods, formal or informal, ranging from the legitimate, to the ‘fuzzy’ to the sometimes plain illegal.
Formal and legitimate methods include public hearings during consultations, formal meetings with decision makers and providing evidence for or against proposed legislative measures.
Other more dubious methods include mobilising the public through PR campaigns, the funding of advocacy organisations and the use of grassroots campaigns as a front in order to gain public support and credibility for effectively privately-funded causes.
One example is the National Smokers Alliance, a front group funded by the Tobacco industry, formed in 1993 in the USA to campaign against anti-smoking legislation. Other examples in the US include: the Center for Consumers Freedom, a food industry-sponsored group seeking to challenge ‘myths’ around obesity or animal rights, or the Safe Fruits and Veggies platform, offering science-based information on organic and conventional crops, or like the National Alliance on Mental Health Issue (NAMI), whose pharmaceutical funders are no secret in their annual report.
Misinformation, such as when interest groups present EU institutions with distorted information about the possible economic, social or environmental impact of legislative proposals, can also be used as a lobbying instrument and a rather fraudulent one at that.
In their Lobbying Europe: Hidden Influence, Privileged Access report, Transparency International (TI) investigates lobbying and its regulations within 19 EU national governments and the three main EU institutions: the European Commission, the EU Parliament and the EU Council. The report found that within the ‘informal realm’, lobbying occurs mostly within social settings.
Golf clubs, corporate boxes at sport stadiums or horseracing tracks, parliamentary bars, all-expenses paid trips to conferences, gala dinners are all used by lobbyists to entice and engage the political ear of the day. Invisible to the public eye, such methods are not just off-the-record, but mostly the reserve of the well-resourced.
This article reports how the Austrian independent Member of the European Parliament (MEP) Hans-Peter Martin listed on his website all invitations he received from lobbyists, which included free luxury travels, test drives, gala dinners, private concerts and free-of-charge stays at luxury hotels. According to the article, such ''gifts'' have exceeded a value of ten thousand Euro per week, and have come with simultaneous pressure to amend or support specific EU-directives.
In making such activities public, Hans-Peter Martin went way beyond reporting requirements for MEPs. Without proper regulation, and without a full picture of what exactly is being pursued, by whom, with whom, and by what means, lobbying activities in the EU are indeed allowed to take place below the radar.
In its report, TI confirms that the EU and the majority of the 19 EU countries investigated do not have a mandatory register of lobbying activities. Instead, an EU voluntary Transparency Register is used which, by its voluntary nature, is often inaccurately filled out or simply ignored, and therefore falls short of reaching the very aims it purports to pursue.
For all its flaws however, such a register does seem to corroborate the fact that big corporates, consultancies and law-firms outnumber and outspend civil society, trade unions, NGOs, and other non-profit groups in lobbying EU institutions.
The fact that some organisations do not see themselves, or do not like to be seen as lobbyists, while others prefer to describe their work as ‘advocacy’ renders the picture that little bit fuzzier still, with the line between lobbying and advocacy a fine one indeed.
As a general rule, lobbying is an activity that seeks to specifically affect legislation and therefore involves interacting with law-making individuals, whereas advocacy is geared more generally towards changing behaviour and societal norms, and involves interacting with administrative or other non-law making officials. (For some distinctions, see here and here)
The TI report highlights for example that lawyers are particularly reluctant to define themselves as lobbyists, and of the 7,000 entries on the Transparency Register, only 88 are law-firms.
This status quo also means that it is not just the lobbyists who are being cagey about their activities, but that the EU Commission itself also can refuse to proactively publish information about meetings between its officials and lobbyists, with only a few MEPs, such as Hans-Peter Martin above, making such information available.
Shining a Light on EU Lobbying
Civil society organisations such as Transparency International, the Corporate Europe Observatory and LobbyFacts.eu are all helping shine the light on lobbying and seeking to promote fairer, more transparent and ethical practices in political agenda setting.
Transparency International uses the following three main criteria as the basis for their latest research:
- Transparency – are interactions between lobbyists and public officials transparent and open to public scrutiny?
- Integrity – is there a clear and enforceable code of behaviour that ensures lobbying is conducted ethically?
- Equality of access – how diverse is the range of voices affecting decision making, how widely accessible is the political system to a wide range of citizens?
Overall the study finds:
- Ineffective and piecemeal lobbying regulations across EU countries and institutions:
With only seven (Austria, France, Ireland, Lithuania, Poland, Slovenia and the United Kingdom) of the 19 countries investigated having some kind of lobbying regulation in place, and even then it being either poorly designed or not properly implemented, it is clear that transparency, integrity and equality of access remain elusive goals.
Due to its narrow focus on ministers, permanent secretaries and special advisers - but not on members of parliament or local councillors, the staff of regulatory bodies and private companies providing public services - the UK Lobbying Act (2014) for example is estimated by the Association of Professional Political Consultants to only be able to capture around one percent of those who engage in lobbying activities.
- That much of the influence is exercised through informal relationships away from the public eye:
Hungry lobbyists told of how their travelling with international business delegations or attending football matches provided opportunity for lobbying; in Milan, the Alitalia lounge in Linate’s Airport is a renowned meeting point between lobbyists and politicians who are waiting to catch their flight to Rome. In Dublin, the coffee dock at the Dali Bar in the parliamentary Leinster House complex is a well-frequented lobbying spot. Regulation is of course doomed to fail to capture any such type of exchanges, which are off-the-record by design;
- That serious conflicts of interest exists, and particular groups do enjoy privileged access to decision makers:
With the largest sums of money spent, the pharmaceutical, finance, energy and telecommunications sectors tend to dominate the lobbying landscape. In 2012, the official figure for spending by the pharmaceutical sector alone was 40 million Euro. According to the report, a more realistic figure for the sector is however 91 million Euro.
The study also finds that an increasingly intertwined relationship between politics and business, the ‘revolving door’ between public and private sectors, poses serious risks of regulatory and policy capture.
While a cooling-off period before former public officials can lobby their former colleagues is in place in most countries, the report finds that none of the 19 EU countries have effective monitoring and enforcement of their revolving door provision.
In France for example, since 2013 legislation requires a three-year cooling-off period between the end of a public service mandate and a role within a company that the official previously had interactions with as part of his or her mandate.
In practice, effective monitoring is likely to be impeded by the very limited resources available to monitoring bodies, such as the Public Service Ethics Commission, versus the scope of their monitoring responsibilities – for the Public Service Ethics Commission this is over some 5.5 million public officials. Another flaw of the legislation is that MPs are exempt from such cooling-off periods.
LobbyFacts.eu’s own findings on lobbying in Europe are also in line with the above trends:
- “Over 60 per cent of EU lobbyists represent corporate interests”
- “US corporations are the biggest spenders in Brussels lobbying” - Top of the list, tobacco giant Philip Morris who in 2013, the year of the crucial debate on the EU Tobacco Directive, increased its lobbying budget to five million Euros from 1.25m in 2012.
- “Many large companies lobbying in Brussels are not in the lobby register” - The lobby register is in fact a voluntary tool and is therefore not used by many. Some 157 firms are currently missing from the EU Transparency register, which also contains inaccuracies and under-reporting.
- “Five lobby firms have 130 lobbyists accredited to the European Parliament between them” – this means 130 people with an official European parliament lobbyist pass.
- “The 10 biggest lobby spending companies together spend over 39 million euros a year on lobbying” – They are: Philip Morris International, ExxonMobil Petroleum & Chemical, Microsoft, Shell Companies, Siemens, GDF SUEZ, General Electric Company, Huawei Technologies, Bayer, and Telekom Austria Group.
What About the Rest of the World?
In the US, mandatory disclosure of lobbying means that more information is generally available for public scrutiny. Yet, while disclosure guidelines at the federal level are uniform and fairly detailed, different reporting requirements at the state level, each with their own laws and deadlines, means making sense of the information is not always straightforward, something which Follow the Money seeks to address.
In the US lobbying activities and money spent on lobbying have been decreasing recently. In 2009, in a bid against undue influence of corporate lobbying, and to promote greater transparency and fairness in politics, Obama issued the Ethics Pledge, Executive Order, banning all non-registered lobbying in his administration.
Yet, while the number of registered lobbyists, and amounts of money spent on lobbying activities, has indeed decreased since the order came into effect, Lee Fang of The Nation argues that the act has in fact been driving lobbying underground.
Many lobbying firms have de-registered or rebranded themselves, such as the League of Lobbyists now being known as the Association of Government Affairs Professionals. And lobbying firms’ employees are no longer lobbyists but have been morphing into Public Affair Directors, or Government Affairs Associates.
Fang argues that such tactics are therefore now concealing much lobbying activity that previously had to be disclosed.
Other commentators also highlight how regulatory loopholes and increasingly sophisticated lobbying strategies are enabling more money to be spent in the shadows.
Narrow definitions of lobbying restrict the activities for which disclosure is mandatory: money spent on television, digital and social media campaigns, or on public relations attempts to build support amongst voters, or money spent on grassroots mobilisation for example need not be disclosed.
Organisations such as Opensecrets.org, Influenceexplorer.com and Followthemoney.org above are some of the US initiatives that promote greater transparency in lobbying, seek to make sense of the complexity of lobbying data and to facilitate the job of anyone researching the topic.
Some ‘Shady Lobbying’ Examples
There is no shortage of recent examples of dubious policy deals between corporate players and officials, in which policy capture and privileged access to decision makers is in question.
A report by Friends of the Earth and Corporate Europe Observatory highlights that in the recently set-up ‘EU Commission Advisory Network on Fracking’, 14 members are Commission staff, five members come from civil society, and 43 members represent or have financial links to the fracking industry. Also, two thirds of the academic organisations involved have links to the fracking industry.
The report argues that given Europeans' opposition to fracking, this advisory group does not represent the views of most and has been set up to move the debate from ‘if’ to ‘how’ fracking should be pursued. (For some infographics on the findings, click here)
A document released to the Guardian reveals how Shell successfully lobbied the Commission for weaker renewable energy targets in the lead up to the deal on carbon emission cuts which was reached in October 2014.
In this article, evidence of ‘revolving door’ practices in the debate on the toxicity and safety of glyphosate, an ingredient in Monsanto’s best-selling herbicide RoundUp and in numerous other herbicides on the market, is provided.
Glyphosate has been found to be ‘probably carcinogenic’ by the World Health Organisation (WHO) Cancer Research Agency and is therefore classified by WHO to that extent. Yet even with serious implications for public health at stake, French, German, and EU administrations have been dragging their feet in regulating or banning its use: as highlighted in the article, that the same people in charge of evaluating the evidence on the toxicity of Glyphosate are also employees within the very companies producing it may have something to do with it.
Lobbying, Transparency and the Digital Age
The democratic potential of our digital era, with ever new smartphone applications and technologies giving ordinary citizens access to all sorts of information, is yet to be fully reaped within the lobbying regulation arena where accuracy and transparency issues hamper the effectiveness of such technology.
Yet, numerous efforts in this direction are evident, with online platforms and searches seeking to disentangle complex lobbying activity information, and make it simpler to navigate.
In the US, Influence Explorer for example has neatly categorised data sets on: money spent by largest corporate donors (Fixed Fortunes); on influence on US policy and public opinion by foreign players (Foreign Influence Explorer); as well as their new Real-Time Influence Explorer, which finds and filters electronic finance filings made to the Federal Election Commission during 2013/14 and 2015/16.
In Malaysia, the Sinar Project uses open source technology to promote government transparency and accountability. Their Accountable project is one initiative they are developing to this end.
In Canada, The Lobbying Monitor offers its subscribers up-to-date information on developments in lobbying, including analysis of lobbying campaigns and their actors, information on key players, on the latest policy news, and on best practice.
In Europe, the already-mentioned Corporate Europe Observatory and LobbyFacts.eu also help us navigate through the labyrinth that is lobbying.
The latest research by TI has shown that a lack of transparent mandatory reporting is keeping lobbying under a veil of secrecy in the EU, allowing large corporate interests to apply unfair influence on legislative outcomes.
Nevertheless the efforts of civil society organisations such as Transparency International, the Corporate Europe Observatory or LobbyFacts.eu (in addressing precisely such a transparency black hole, in raising awareness, and in keeping lobbying regulation a top campaigning issue) should not be underestimated.
Supporting them could be the single most important thing we do in seeking to redress the imbalance of voices in both national and EU political decision-making arenas, in demanding that clearer and more accurate information is available to us, and to ensure that social, environmental and economic reforms are not hijacked to serve the interest of a few corporate elites.
Only by ensuring that governments enforce regulation and actually challenge and crack down on unethical and illegal practices when these are revealed, will we have a system in place which ensures that when it comes to political agendas, people come before profits.
Author: Annalisa Dorigo / RESET Editorial