From the Hill Times

The Hill Times, August 24, 2009

Five-year ban on lobbying too restrictive for industry's future

Federal government should conduct a review on the Lobbying Act next year to see if objectives are being met.

By Bea Vongdouangchanh

The Lobbying Act's new provisions are like taking a sledgehammer to kill a fly, say lobbyists, who think the changes to improve transparency and accountability are too restrictive for the future of the industry.

"There is no question the Lobbying Act truly handcuffs future generations from learning more about public service and then applying what they've learned. It is a sledgehammer used to kill a fly," said Joe MacDonald, president of the Public Affairs Association of Canada. "A five year ban is far too long.

It discourages younger minds from joining politics and the public service, and it inhibits those already involved from transferring their skills, knowledge and experience to the private and broader public sectors. For all of that, Canadian politics and political discourse in general is much the poorer." Changes to the Lobbying Act came into effect last July, under the Federal Accountability Act.

The changes include creating an independent office of the Commissioner of Lobbying, eliminating contingency fees, imposing a five-year ban on lobbying by designated public office holders who leave the government, requiring registration and communications disclosures by all lobbyists if their job in government relations takes up more than 20 per cent of their time and doubling the fine for infringing the new rules (from between $50,000 and $200,000).

In an editorial in the Montreal Gazette last week, Toronto lawyer James Morton said the new rules restrict freedom of speech and expects someone to bring a court challenge to its constitutionality in the near future. "Canadians are so used to the freedoms of speech and expression that we are shocked when we see them denied, as recently in Iran," Mr. Morton wrote.

"Despite this, we have a federal law that bars some of our most talented and engaged citizens from petitioning the government except under limited circumstances." Mr. Morton pointed out that designated public office holders—including ministers, ministers' exempt staff, and senior bureaucrats such as heads of departments, associate and assistant deputy ministers and senior members of the Canadian Forces—who have extensive knowledge and expertise in their fields are banned from lobbying governments for five years and this could mean that "some of Canada's brightest policy minds will be strictly limited in what they can do once they leave government."

Mr. Morton said he believes that either a bureaucrat who wants to continue working after retiring from the civil service or a government relations firm who wants to hire a retired bureaucrat will likely bring the issue to court. "Certainly the answer is not obvious—it might well be the Lobbying Act prohibition is unconstitutional. A judge might well find that the objective could be met with a shorter ban or with limitations on dealing with the very people the official worked with as an official," Mr. Morton wrote.

"Regardless, it's only a matter of time before someone challenges it." Joe Jordan, a consultant with the Capital Hill Group and a former Liberal MP, said last week that the Lobbying Act is too restrictive and that he agrees with Mr. Morton about a constitutional challenge. "I'm not sure [the five-year ban] keeps the best and brightest out of the policy debate, but to restrict people's right to work, I agree with him saying this will be tested in a court and in all likelihood, I think the courts are going to punt those aspects of the bill. I think it's unconstitutional," he said.

"The courts are going to look at what is the reason for restricting basis rights. I don't think potential for harm is high enough. There is a lot of solid politics around this stuff and that can't be disputed, but in terms of policy, I think it was a little overkill. But time will tell. This will sort itself out." Mr. Jordan noted that the rule previously was a one-year ban on issues and files the designated public office holder was directly working on, and a two year ban if you were a minister.

He said a five-year total ban is too long. He argued this two years ago when he appeared before the Senate Legal and Constitutional Affairs Committee when it was studying the Federal Accountability Act and said a two year total ban might be more appropriate. "It needs to be looked at," he said at the committee, adding that the ban should be extended to opposition and backbench MPs in the governing party if the goal is complete transparency and accountability. "You are trying to tell me that a 20-year-old staffer who is keeping a minister's schedule is banking political currency at a rate that exceeds that of a backbencher? MPs should be demonstrating outside in protest because they know stuff too.

If it is that serious, then include them in it. It makes no sense to pick on the staffers only, who, from my own experience, spend a great deal of time fighting with the bureaucracy because they are defending the interests of their ministers against the interests of the department. It is not always a holding-of-hands situation," Mr. Jordan said. "The public might think that five years sounds good and would be a good thing—as I said in my opening remarks, "good politics"—but if you truly think it is that serious, then make it wider and include MPs and senators in the five-year ban. Personally, I think that five years is too long."

Summa Strategies vice-president Tim Powers said that while no legislation is flawless, improvements could always be made. He said the government would have sought legal advice on the bill's constitutionality before putting the bill forward and so a challenge may or may not be successful. "Nonetheless, I will be watching how this develops," he said. Mr. MacDonald said that he's unsure whether a constitutional challenge would be successful, but noted that "the Lobbying Act is a curious bit of work."

He told The Hill Times in an email last week, that "As Mr. Morton pointed out, when we deny the now designated public office holders 'the right to speak to government, ... we lose something important.'" For Leo Duguay, a government relations consultant with the Rothwell Group and a former Progressive Conservative MP, a simple review of the act would be helpful, rather than opening up a constitutional debate about the merits of a five-year ban on lobbying by designated public office holders.

The previous act, the Lobbyist Registration Act, had a three-year statutory review, and that's something the government should look at, Mr. Duguay said. "When this act was introduced, a lot of us felt that it was using an elephant gun on a mosquito, but having said that, we've now had the act for a year," he said. "I think the government might want to review and hear testimony from people in the field, and hear testimony from departments and to see whether the requirement, the exigency of transparency has gone beyond the norm and whether that's in fact now actually hurting public policy, which I think is Mr. Morton's point. You want to be sure that you have these twin objectives that everybody in Canada who has a view about public policy can voice it fairly and we want it to be transparent.

I think this is a matter of finding the happy middle ground. My view was that we exceeded the happy middle ground." Mr. MacDonald said the industry is not afraid of regulations, registrations and being transparent and accountable. The issue is whether the rules in the Lobbying Act meet those objectives well. "Both policy makers and elected officials of the highest standing are indirectly portrayed as buffoons and hayseeds, swept up by the fast talkin', big spendin' sharps from the big city, totally befuddled by the complexities of government and utterly unable to resist the seductive whispers from the shadows in the halls of Parliament Hill. Clearly that simply isn't the case," he said.

"Our public policy process continues to evolve with more voices clamouring to be heard and greater access to the resources needed to develop a message and get it out. But developing policy, creating regulations and standards does require some level of expertise. If that expertise is no longer available, what hope do we have for the increased transparency and accountability that is the stated goal of the Act?

A constitutional challenge, successful or not, may clear the air of rhetoric and put the issues at play clearly on the table. And that would be a good thing." bvongdou@hilltimes.com The Hill Times