On February 23, the Office of the Commissioner of Lobbying published a report, outlining a series of proposed changes to the Lobbying Act.
The report, titled Improving the Lobbying Act: Preliminary recommendations, comes in response to a November 2020 request from the House of Commons Standing Committee on Access to Information, Privacy and Ethics. Each of the recommendations aims to “enhance the values of transparency, fairness, clarity, and efficiency” - which the report deemed essential to registration, compliance, and the effective administration of the federal lobbying regime.
It’s important to note that, as of the time of publication, none of these recommendations have been officially implemented. However, they speak to a broader effort to improve transparency and accountability in the government relations profession, and are worthy of further examination.
1. Amend the in-house lobbyist registration threshold
The first proposed change looks to address the “significant part of duties” threshold for registration. Under the Lobbying Act, one of the criteria for registration of in-house lobbying activity is that the activities comprise a, “significant part of the duties of one employee or would constitute a significant part of the duties of one employee if they were performed by only one employee.”
The Act never defined the term ‘significant’, though guidance later issued from the commissioner’s office has implemented a threshold of 20% of an employee’s duties. Applied to a standard 40 hour work-week, this amounts to roughly 32 working hours per month of lobbying activity before registration is required. When combined with the Act’s narrow definition of “lobbying activities”, there is plenty of room for potential abuse.
The report recommends the Lobbying Act be amended to remove the “significant part of duties” registration threshold for in-house lobbyists. Instead, organizations would have an obligation to register lobbying activities by default.
For municipal lobbyists in Toronto and Ottawa, this will sound very familiar - as these jurisdictions require registration by default. In most other jurisdictions across the country, registration is based on a time or percentage-based threshold, over a given time. The very narrow scope of the proposed exemption (small organization; less than one day of lobbying activity per three month period; not mandated as an advocacy organization) allows for some flexibility in the case of infrequent lobbying engagement by very small organizations - so as to not create an undue burden that would serve to limit access.
Registration by default would serve to mitigate some of the behind-the scenes accounting that occurs within in-house lobby teams, allowing for more time to be spent on value-add activities.
2. Harmonize registration time limits
The second recommendation is to amend the Lobbying Act to harmonize the registration deadline for consultant and in-house lobbyists. Consultant lobbyists are currently required to register within 10 days of starting work for a new client. In-house teams, on the other hand, are not required to register until 60 days after the “significant duties” threshold is met. Following a review of both comparable jurisdictions and the rate of late submissions by type, the report recommends that the registration time limit for both in-house and consultant lobbyists be set at 15 days. The new timeline aims to improve compliance and reduce the number of late registrations from consultant lobbyists, while improving transparency by harmonizing timelines.
3. Make reporting requirements the same for all in-house lobbyist registrations
The third recommendation is to align the registration requirements for in-house lobbyists, whether they represent a corporation or an organization. Depending on the classification of the group lobbying, there are considerable differences in the threshold for including in-house lobbyists by name in the entity’s registration, as well as the requirement to disclose any of the entity’s memberships or controlling interests.
The report proposes to harmonize these requirements, mandating that all in-house lobbyists be named on an entity’s registration, and that all memberships or controlling interests be disclosed.
4. Deem members of boards of directors to be employees of corporations and organizations
The Commissioner’s proposal to deem board members employees of the organization serves to combat the use of board members as un-registered or unofficial lobbyists. As non-employees, their activities are not already included in the “significant duties” calculation - though paid board members are required to register as consultant lobbyists if applicable. By considering board members employees, all lobbying activities in support of an organization will be captured under its registration and reporting requirements.
5. Expand reporting requirements for monthly communication reports
At present, monthly communication reports (for in-house lobbyists) require only ‘oral and arranged’ communications be reported. Further, the names of participants (other than those classified as Designated Public Office Holders) are not required to be listed. The Commissioner’s recommendations include expanding reporting requirements to list all attendees (both internal and non-DPOH level external attendees), and all forms of oral communication. Consultant lobbyists would be required to report this information for client meetings - even if the consultant did not attend (as arranging meetings is a reportable activity.
6. Add reporting of additional contextual information in monthly communication reports
Similar to recommendation number 5, this recommendation would serve to expand the contextual information required in monthly reports - including whether the lobbying activity took place on a sponsored trip or at an event paid for by the lobbyist or their client(s). Further, gifts or past political contributions would need to be reported.
7. Harmonize the five-year prohibition on lobbying
Under the present regime, former designated public office holders are prohibited from engaging in any lobbying activity - but only if they are serving as a consultant lobbyist or in-house lobbyist for an organization. If the former DPOH is employed by a corporation, however, they can engage in lobbying activities - so long as they do not exceed the “significant duties” threshold. The commissioner recommends closing this loophole - either by instituting a blanket five-year prohibition on lobbying for former DPOHs, or by providing clarity on the “significant duties” threshold.
8. Introduce new compliance measures
Despite the sense of existential dread that can accompany submitting monthly communications reports, the penalties for most forms of noncompliance are minimal. The Commissioner’s recommendations include adding a range of compliance measures - including training, administrative monetary penalties and temporary prohibitions - to allow for greater flexibility and proportionality in addressing violations of the Act.
9. Make orders enforceable
The Commissioner is permitted, under the act, to issue summons and compel disclosure, but has limited capacity to enforce these actions. Conversely, while best positioned to carry out these functions, Federal courts lack the explicit statutory jurisdiction to enforce orders issued by the Commissioner. This report recommends that the Act be amended to allow orders, i.e. summonses and production orders, issued by the Commissioner of Lobbying to be given the same legal enforcement capacity as orders made within the Federal Court system.
10. Allow referrals to appropriate authority
Under the Lobbying Act, the Commissioner is required to suspend an investigation and refer the matter to a peace officer in the appropriate jurisdiction if there is reason to believe an offense has been committed. However, the referral process is not entirely clear, which leads to gaps in enforcement and questions of jurisdiction. The report calls for greater clarity and capacity to refer possible offenses to peace officers and relevant other authorities - such as provincial regulators - to continue an investigation and act as required.
11. Provide immunity against civil or criminal proceedings
Finally, the report calls for formal civil and criminal immunity for the Commissioner (and those acting on their behalf).
Across the board, there is a clear signal that the proposed reforms are intended to assuage public concerns and perceptions of influence peddling. As anyone who has been in the government relations practice for any meaningful length of time, public perception of our industry - and the ethical/moral compass of its practitioners - could certainly be improved.
The proposed recommendations, at least on first review, would seem to address many of the common objections to the field - lack of transparency, gaps in the regulatory and enforcement framework, and inequalities of access to government. Harmonizing regulations across practice types will also level the playing field between consultant and in-house teams, while ensuring timely and appropriate public disclosure.
In expanding the scope of reportable communications, required registrations, and other information that must be submitted, the Commissioner’s recommendations would serve to slightly increase the amount of information collected and retained by government relations practitioners. By requiring more detailed records keeping, lobbyists will need a secure, accessible hub to store all of their advocacy and practice data. By using a dedicated, government relations-focused database solution - such as PoliTraQ - keeping tabs on your reportable contacts is easier than ever.
By using a GR-focused CRM like PoliTraQ, you and your team will be able to make real, data-driven decisions, monitor progress on KPI’s and demonstrate the value of your advocacy efforts. To learn more or to arrange a demo, please visit PoliTraQ or email Chris@PoliTraQ.com.