February 17, 2009
The discussion about an EU register for lobbyists in Brussels seems to be currently shifting to rather technical issues, forgetting the big picture. But lobbyists and institutions in Brussels should not lose sight of the broader perspective and learn from Washington’s experiences: both the good and the bad ones.
Being the centre of the EU institutions, Brussels has – along with Washington, D.C. – become one of two main hubs for lobbying activities worldwide. According to latest estimates, around 20,000 lobbyists work here to represent the interests of many different groups before the EU.
And there is reason to believe that the lobbying industry in Brussels might continue growing, as US companies discover the importance of Brussels as a place of global policymaking. Lobbying is booming.
But any industry that booms sooner or later also becomes the target of a regulator. And so does lobbying.
When the Abramoff scandal occurred in Washington, D.C., the EU asked itself whether such a thing could have happened in Brussels as well. It would be entirely naive not to see that the US and the European lobbying systems have many things in common. Decisions and legislation in both places nowadays affect the lives and interests of hundreds of millions of citizens on a transatlantic scale.
Furthermore, even though Washington and Brussels are on different continents, their lobbying communities are not on different planets, since many of the companies acting in both economies today are the same.
Politicians and officials on both sides of the pond are only human beings. So, yes: Abramoff in Europe is possible. And regulating lobbying might prevent it. The planned registration of lobbyists in the EU – following the US model – is the first step in this process.
The registration of lobbyists in the US is an accepted and necessary regulatory instrument to control the exercising of lobbying rights provided by the US Constitution. The activities involved in US lobbying are intertwined with fundamental First Amendment rights of speech, association and petition, and facilitate the exchange of important information and ideas between the government and private parties.
For those in the US who act in a representative capacity for a client, lobbying the legislature for a change in the state of the law is an important part of the services provided to the client. Because of the potential for undue or wrongful influence by those who are paid to influence the legislative process, a body of law and rules to regulate lobbying activities have developed, as well as to regulate the activities of public officials in their interactions with those who lobby.
Therefore, unlike in Europe, US lobbying has already been regulated since after the Second World War. In 1995, the US Congress completely rewrote this 50-year old law, the Federal Regulation of Lobbying Act of 1946, which had required certain registrations and disclosures of lobbying activities directed at members of Congress.
The US Congress replaced this with the Lobbying Disclosure Act of 1995 (LDA) to adapt the rules to a rapidly changing lobbying environment in Washington, D.C. The Lobbying Disclosure Act of 1995 provided more specific thresholds, and clearer and broader definitions of who is a ‘lobbyist’ and what ‘lobbying’ activities and contacts will trigger the requirements for the registration and reporting of persons who are compensated to engage in lobbying.
After the Abramoff scandal, US Congress decided to take an even closer look at the lobbying scene in Washington, D.C. The LDA was amended substantially in 2007 in the Honest Leadership and Open Government Act of 2007 (HLOGA) to provide further and more frequent disclosures, information and reporting from professional lobbyists covered by the Lobbying Disclosure Act of 1995.
The new reporting and disclosures apply to the information which is required to be filed in the calendar quarters since January 1, 2008. Other information to be included in reports, concerning particularly the interaction of covered lobbyists and government officials in the making or offering of gifts, donations, payments or contributions from such lobbyists and their clients to or on behalf of federal public officials, is to be filed semi-annually concerning those six-month periods after January 1, 2008.
The 2007 amendments to the lobbying disclosure laws were not intended primarily to increase the number of persons who are required to register and report as ‘lobbyists’ under the LDA. Thus, the definitions of who is a covered lobbyist, and of what are lobbying contacts and lobbying activities — and therefore who must register and report under the law — were not substantively amended by the 2007 Act.
The threshold amounts of time and money spent or received to qualify one as a lobbyist are adjusted (halved) to conform to the new quarterly (rather than semi annual) filing, but the thresholds are not otherwise lowered with the intention of covering more persons as lobbyists.
Assuming a pro-rata expenditure of time and money, more persons will not necessarily qualify as lobbyists under the amended law, but the new provisions do have the effect of lowering by half the thresholds for minimum or sporadic lobbying efforts.
Rather, the amendments in 2007 were substantially directed at providing more transparency — broader disclosures, more information, and more frequent reporting — on lobbying activities from those lobbyists already required to register and report under the law.
Additionally, the new lobbying law amendments require lobbyists to be familiar with the restrictions, limitations, and prohibitions in internal House and Senate rules on the receipt of gifts from private sources by members and staff of Congress, as the new lobbying laws expressly prohibit lobbyists and organisations with employee-lobbyists from offering gifts and travel prohibited by such rules, and requires certification by registrants that no such gifts have been offered.
The Honest Leadership and Open Government Act signed by the US President on 14 September 2007, which was approved by Congress in early August, is the most ambitious federal lobbying reform bill enacted since the Lobbying Disclosure Act of 1995. While opinions on the new law vary significantly, HLOGA is unquestionably far-reaching, imposing a wide array of new requirements on lobbyists and elected officials alike.
Looking at the impact of the Abramoff scandal in the United States, the EU must take preventive steps. A poll from the Gallup Institute in 2006 showed that while before the Abramoff scandal, 38 percent of Americans believed most members of Congress to be corrupt, after Abramoff, that figure rose to 47 percent.
The regulatory demands set up by the European Commission therefore only set the absolute minimum standard of control over lobbying activities in the EU. They still lack far behind the control mechanisms in the US.
Reading through the new US catalogue reviewed above, only too many of the issues mentioned seem well known in the EU, too. One might just think of the latest EU scandals on industry stealth coalitions pretending to be NGOs for the good of mankind, travel abuse by officials and gift receptions.
It probably is therefore only a matter of time before the EU institutions will face the same problems as the US lobbying scene. There seems to be only one way to make sure that EU lobbying develops into the serious and highly professionalised legislative advocacy tool it ought to be, accepted and supported by the European public as an indispensable part of modern democracy: by permanently monitoring all activities in this area as closely as possible and sanctioning any wrongdoing immediately.
Mandatory registration of lobbyists is only the first step. Learning from the US experience, many more steps have to follow.
Dr. Andreas Geiger, M.E.S. is founder and managing partner of Alber & Geiger, a leading EU government relations law firm with offices in Brussels and Berlin. Before that, Geiger was Head of the EU Law Center of Ernst & Young, and President & CEO of Cassidy & Associates Europe. He has written a handbook on lobbying the EU.Author : Andreas