Transparency and regulation of lobbies in Europe and SpainManuel Villoria Mendieta
The study of interest groups may be related to various topics of interest; to the study on the quality of democracy (LIJPHART, 2012), to studies on political decision-making models (Lindblom, 2001), to analyzes of specific public policies (García Aguado...), on those involved of democracy (Molins and Casademunt, 2001), industrial relations (Medina and Molins, 2014, Oliet, 2004) or, among others, corruption, which is where we focus. Our study proceeds to systematize series of previous research in which we have participated and that, together, we believe can give relevant information, both theoretically and empirically, on how the interest groups work and what the institutional framework is of those which are implanted in Europe.
To do this, we have to begin by indicating that the concern for the relationship between interest groups and corruption must be understood from a conception of corruption that is not merely from a legal standpoint, but is inserted in a more political and normative vision. "Legal" corruption refers to all practices that violate the basic principles that delineate the boundaries between the political and the economic, through means that may be legal, used to create policies or laws designed to favour private economic interests and (Seldes, 2014). For Friedrich (1989), corruption exists when a person in charge of a public position, with defined functions and attributions, is, by monetary or other means, induced to betray their duties and act favouring those who provides the benefit and, therefore, damage the public and their interests. This definition could include any public policy or programme that is adopted or implemented considering the interests of only one affected party, given the extra benefits that this party can provide to the politicians or public employees responsible for the decision. Taking this type of approach as a reference, one of the most influential, profitable and harmful forms of corruption is "policy capture", that is to say, the control by large interest groups of policy areas within a State, in such a way that the leaders cannot - or often do not want to - formulate policies autonomously in that area (See, among others, Shafer, 1994, Benink and Schmidt, 2004).
For example, in February 2009, the European Commissioner for Markets and Interior Services, Charlie McCreevy, told a conference at the Institute of International and European Affairs in Dublin that "I am convinced that for years there has been too much regulatory capture in the financial services sales market: its lobbies are strong and powerful." The results of the financial sector lobbies are impressive: 1975, deregulation of the New York Stock Exchange in "May Day"; 1986, deregulation of the London Stock Exchange; 1992, the Directive of the U.E. On banking activities; 1999, annulment of the Glass-Steagall Act. The Glass-Steagall Act, approved in 1934, in the heat of the financial crisis of 1929, was intended to prevent banks from being on both sides of the market, doing commercial banking and investing, for it required separation of both activities and to control the tendency of the banks to make risky investments and to approve credits to insolvent companies in which the banks had invested, besides encouraging its clients to invest in these shares. The annulment of the aforementioned law was defined by Ed Yingling, Lobbies director of the American Bankers Association, as "the most heavily supported and most expensive intervention to Congress in a generation." Indeed, only between 1997 and 1998, the banking lobby donated $58 million to Congressional candidates, $87 million to political parties, and $163 million more than support for law-abatement, according to the Centre for Responsive Politics.
Corruption exists when a person in charge of a public position, with defined functions and attributions, is, by monetary or other means, induced to betray their duties and act favouring those who provides the benefit and, therefore, damage the public and their interests
The risk of corruption or bad practices related to lobbying are found in all phases of the policy-making process, from policy formulation (1), decision-making and implementation. Some examples of practices and activities that may involve the risk of corruption or unethical practices are:
1. Financing of political parties to obtain beneficial regulations once the parties financed are in power;
2. Revolving doors;
3. Regulatory and technical capture (for example, by controlling groups of experts, funding biased research, or funding congresses and professional meetings in exchange for diffuse support to the interests of funders);
4. Adoption of standards that voluntarily generate gaps or loopholes to avoid true controls (diluting regulation);
5. Adoption of rules that weaken restrictions until certain laws are converted into a true example of façade or window dressing (debilitating restrictions)
6. Weakening of controls and enforcement of laws in the weakened enforcement phase;
7. Disruption of the application of sanctions through pressures to the decision makers (weakened penalties);
8. Fraudulent writing of terms of reference in a public contract to ensure that it obtains a privileged consideration, and so on.
In all these cases, the regulator, or the person responsible for implementing the policy, abuses their power to favour specific private interests, damaging the general interest or at least disregarding it.
Definition of Lobbiesing activity and justification of its regulation
The general definition of lobbying we use is "any direct or indirect communication with public agents, public decision-makers or political representatives for the purpose of influencing public decision-making, grown by or on behalf of an organized group". (2)
The risk of corruption risks or bad practices related to lobbying occur at all stages of the public policy-making process
Lobbyists can be not only be professional lobbyists (intermediaries of special interests) but also private sector representatives dedicated to this work from in-house lobbyists, public relations consultants, NGO representatives, corporations, industry and professional associations, trade unions, think tanks, law firms, religious and academic organisations, and so on (3). In the case of Spain, given the decentralised nature of our State and without contradicting the global definition, it would be possible to include a group of quite special agents as "lobbyists": representatives of regional governments (Autonomous Regions) and local defence of the interests of their region/municipality before the central regulators. At local level, influence is sometimes produced through an association such as the Spanish Federation of Municipalities and Provinces (FEMP). At times, any citizen could be a lobbyist if he participates, consciously or unconsciously, in an influence activity guided by a stakeholder group.
Certainly, some interest groups have used means of dubious morality to achieve their goals, such as "astroturfing" (4). To combat these means, we need to not to "use a sledgehammer to crack a nut", making every person who signs a petition or participates in an online voting be listed in a registry, the key is that whoever initiates a petition of this type, or the funding behind it must be known and registered, as it is usually an NGO used as a smokescreen by the powerful interests that are behind it. In 2012 in the United Kingdom, the Health Department issued a complaint against the tobacco lobby, as it was shown that it had launched a sign-off campaign - "Hands off our packs" - through a covert group of Lobby -Forest-, which was aimed at collecting millions of signatures, but found that in addition to be using astroturfing, as they had falsified thousands of signatures. Ireland is the first European country to have regulated this system, requiring transparency and registration of such groups in its recent Law on the Regulation of Lobbying.
In general, it would be positive when talking about lobbying being regulated to avoid excessive generalization. The essential activity of political influence is to effectively influence the formulation of public policies and important decision-making processes related to the implementation of policies, reflected essentially in laws, regulatory and sanctioning work, spaces where there is sufficient discretion so that Influence has meaning; and, in addition, that it be done in a professional manner or, at least, be dedicate an substantial part of the working day to this activity.
Regulation and results in the EU
Let us begin by summarizing some ideas from a report investigating lobbying practices and attempts to regulate it in the 19 European countries and within three key EU institutions. The report focuses on examining three critical and interrelated elements for effective lobbying regulation: first, whether interactions between lobbyists and public civil servants/representatives are transparent and open to public debate (transparency); Secondly, whether there are clear and applicable standards of ethical conduct for both lobbyists and public servants (integrity), and finally, whether public decision-making is open to a plurality of voices representing a wide range of interests (Equal access). Any serious desire to combat undue influence in politics must recognize that transparency measures must be accompanied by broader measures aimed at strengthening public integrity and promoting opportunities for access to the political system for a wide range of sectors of the general public.
In most countries, lobbying as a profession and consulting services are still under development. However, as the EU integration process is increasingly turning Brussels into a policy-making centre, Lobbies industry is becoming more and more professionalized. At the national level, the system of sectorial representation and institutionalized relations with the Government, especially trade unions and business organisations, is still present. However, a new pattern is beginning to emerge in which more resourceful agents, particularly the larger corporate agents, are increasingly lobbying directly rather than resorting to representation through business associations.
The vast majority of European countries do not have comprehensive lobbying regulation or a system for systematically recording contacts between lobbyists and decision-makers
The vast majority of the European countries examined do not have a comprehensive regulation of Lobbies, nor a system for systematically recording contacts between lobbyists and decision-makers. In this matter, Europe is further behind than Canada or the United States. Of the 19 countries examined, only 7 have laws or regulations specifically designed to regulate lobbying activities (Austria, Slovenia, France, Ireland, Lithuania, Poland and the United Kingdom). Many of the rules and regulations that exist in Europe are, to a greater or lesser extent, flawed or unfit for purpose. There are also problems related to the poor implementation and lack of enforcement of existing standards.
Only one country, Slovenia, and the European Commission have managed to score more than 50% in the established measurement model. However, they are also facing a number of problems that include lags in regulatory coverage, legal voids and poor implementation of standards. It is noteworthy that most of the countries featuring prominently in the financial crisis (Cyprus, Spain, Italy and Portugal) occupy -together with Hungary- the bottom places in the table. Another worrying factor is the performance of the Council of the EU, one of the most powerful institutions in Europe, which scored only 19%, placing it in the second-last position (a score totally opposite to that of the European Commission).
Despite serious shortcomings in regulatory frameworks across the EU, there are still signs of a positive impetus for reform. A growing number of countries -including Estonia, France, Italy and Lithuania- are demonstrating their willingness to tackle the problem, with proposals at different stages of development. For all its shortcomings, the recently adopted Irish Lobby Act raises the bar for the quality of regulation in Europe. There are also a few more promising practices in Europe. Thus more and more corporate bodies and professional lobbyists are committing themselves to higher ethical standards in their interactions with government and in fact support reforms, as they recognize not only the moral imperative to do so, but also the benefits for their reputation and the need for equality of competition. There have also been positive developments in Brussels, and there has been constant work on an internal legal mechanism governing lobbying under the supervision of the Council of Europe.
The score obtained by the countries analyzed is based on a study of 65 indicators in each country. The 65 indicators correspond to three main dimensions and 10 sub-dimensions, which are considered as an integral scope to the regulation of lobbies. The three main dimensions are transparency, integrity and equal access:
- The extent of transparency indicates how open the decision-making is and to what extent the public can access information about who is lobbying civil servants and representatives, on what issues, when and how they are lobbying them, how much is being spent on the process and what the results of these lobbying efforts are.
- The level of integrity demonstrates the effectiveness of countries in ensuring ethical conduct among civil servants, representatives and lobbyists;
- The level of equal access indicates the extent to which the system allows a plurality of opinions in public decision-making and the contribution of ideas and evidence across a wide range of interests.
The 10 sub-dimensions are outlined below:
The results were:
After analyzing the institutional framework of regulations governing lobbies at European level, we can conclude that there is an increasing tendency to develop regulations quite similar to that established in the United States and other Anglo-Saxon countries, with a pluralistic configuration of relations between State And society. This model can help introduce greater transparency and formal integrity into the system of relations between public and private agents in the face of influence in the development of public policies, and perhaps a system of greater balance of oligarchies in the field of play, after analyzing the American experience, we could say that if it is not accompanied by a system of clear limits on electoral and party expenses, a system of political financing that avoids capture and strict and impartial regulation, legal corruption could be the norm rather than the exception in post-industrial democracies. Michael Johnston (2005) already anticipated this form of corruption in developed countries would be that of "markets of influence," a space where income seekers install legally-sanctioned corruption based on party financing and capturing regulators. Unfortunately, our democracies are increasingly approaching a governance of oligarchs dedicated to financial rentierism (Seldes, 2014, 59).
(1) See, with respect to the phases of public policies, for example: J. Subirats, P. Knoepfel, C. Larrue, F. Varone (2008), Analysis and management of public policies, Barcelona: Ariel.
(2) This definition is essentially based on the Sunlight Foundation's "Lobbying Guidelines (http://sunlightfoundation.com/policy/lobbying/guidelines/), Draft Report on Progress made in implementing the OECD Principles for Transparency and Integrity (Published in November 2014 as Lobbyists, Governments and Public Trust, Volume 3: Implementing the OECD Principles for Transparency and Integrity in Lobbying, OECD Publishing, 2014), and Council of Europe Assembly Recommendation 1908 (2010) On "Lobbying in a democratic society".
(3) Transparency International (2012), Regional Policy Paper 'Lobbying in the European Union: Leveling the Playing Field': http://www.transparency.de/fileadmin/pdfs/Themen/Politik/ENIS_Regional_Policy_Paper_Lobbying.pdf.
(4) Astroturfing is a marketing technique that consists of hiding the true source of an publicity or propagandistic message, and making it go through a popular and spontaneous expression. Through this controversial method, fictitious popularity and massiveness are created, so that other people are more inclined to accept the idea, brand or product being promoted. There are several ways to carry out astroturfing, most of them used social networks. One of the most common techniques is the purchase of followers, which can be done in Twitter, Facebook, YouTube, Google Plus and all the most popular social networks.
(5) In 2014, national assessments were carried out in Austria, Bulgaria, Cyprus, the Czech Republic, Estonia, France, Hungary, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Spain, Czech Republic. The EU institutions that were examined are the European Commission, the European Parliament and the EU Council.
(6) The indicators have been constructed on the basis of internationally recognized standards for lobbying regulation and the prevention of undue influence. These standards include, inter alia, the OECD's "10 Principles for Transparency and Integrity in Lobbying" and the agency's progress report on the implementation of these principles, the Report on the role of extra-institutional agents in the democratic Transparency International's report on the role of non-institutional agents within the democratic system of the Venice Commission, Transparency International's Open Governance Scorecard Standards, the International Lobbying Disclosure Guidelines [ International guidelines for disclosure on Lobbies] of the Sunlight Foundation and the Access InfoEurope Standards of Lobbying Disclosure.
Manuel Villoria is Director of the Department of Government, Administration and Public Policies of the Ortega y Gasset University Institute; PhD in Political Science and Sociology from the Universidad Complutense de Madrid, Bachelor of Law and Bachelor of Philology. He was a Fulbright Scholar in the USA, where he studied the Master in Public Affairs from Indiana University. He currently holds a Chair in Political Science and Administration at the Rey Juan Carlos University in Madrid. He is the author of more than one hundred publications (books and articles) on public administration and administrative ethics. Invited professor at several Spanish and foreign universities, as well as in various public administration institutes, he has participated in different study and reform commissions of the Administration in Spain and Latin America.
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