This article is part of our special report Lawmaking in the dark.
Over time, the business of influence has been honed into a fine art in Western democracies. But that art is becoming increasingly regulated, even if the average citizen perceives lobbyists as cigar-smoking men in suits wining and dining lawmakers to gain an unfair advantage.
What they may not think of is the long-haired environmentalist who is pushing for renewable energy support, or the farmer who is trying to explain to his MP why a new pesticide regulation could put him out of business.
“Speaking with interest representatives is a normal part of our work,” Frans Timmermans, the First Vice-President of the European Commission, told EURACTIV.com. “We need to listen to what stakeholders have to say to get it right. But citizens must also be able to know who is speaking to us – who they are, who they represent, how much they spend on lobbying.”
The European Parliament and European Commission have a voluntary transparency register in place to record this information. Commissioners and their cabinets will not meet with anyone who is not on the register. But this does not apply to lower-level civil servants such as heads of unit, where many of the real decisions are made.
Members of the European Parliament have their own standards for how to use the transparency register. “I refuse to receive any lobbyist that’s not registered,” Jean-Marie Cavada, a liberal MEP from France, said at a recent transparency event in Brussels. “I’ve never seen a lobbyist alone in my office.”
Up till now this code of conduct has been discretionary for MEPs, but a new proposal from the European Commission seeks to make it mandatory, and to extend the regime to the Council of Ministers – the representations of the 28 national governments in the EU. Under the proposal, no lawmaker could meet with a lobbyist unless they are in the register.
But how useful is the register really? Lobbyists have to say who they are, how many lobbyists they employ, and how much they spend on lobbying. But Vitor Teixeira, a policy officer for EU integrity with the group Transparency International, says that the information provided is often laughably inaccurate.
“The quality of the information provided is terrible,” he says. The problem is that many people don’t know how to fill out the form. Small farmers mistakenly say they spend millions on lobbying while large multinationals claim they spend none. And there is no mechanism to force accuracy. Many people fulfill the online form requirements simply by putting dashes in some fields.
Vlad Olteanu, a lobbyist with cigarette manufacturing company JTI, agrees that the functioning of the register could be further improved. He notes that many people are able to escape having to register, or do not register in a meaningful way.
“We fully support a mandatory transparency register,” he says. “We want full transparency for everybody, and we don’t want to be less transparent or more transparent than others.”
“I’ve been in Brussels since 1999,” he says. “When I look at the register, it’s somehow odd that so few law firms are on it. Law firms are perceived in Brussels as not being fully transparent.”
The status of law firms is still unclear. Many of them have public affairs departments in addition to their legal activities. But they claim they cannot sign up to the register because they have confidentiality requirements in order to stay on the bar in Belgium.
If the proposal to make the register mandatory is adopted, that may force law firms to get on the list.
A climate of fear?
Olteanu says he frequently sees double standards for who is the focus of transparency drives. “Some NGOs who get financing from the Commission are not transparent about it,” he says. But these NGOs are rarely in the crosshairs of transparency advocates.
The tobacco industry is often in these crosshairs. This is partly because there are specific requirements for what type of interactions they can have with lawmakers under guidelines from the World Health Organization called the Framework Convention on Tobacco Control. It seeks to limit the amount of interaction between tobacco lobbyists and lawmakers.
Olteanu says that though the framework does not forbid all interaction between tobacco and lawmakers, NGOs often use it to intimidate lawmakers into refusing any meeting with the tobacco industry. People smoke, and it is a heavily regulated area. The industry needs to be consulted for their expertise when crafting these laws or they will not work, he says. But lawmakers are sometimes intimidated against having these meetings.
Frans Timmermans has in the past expressed resistance to the idea of regulating the transparency of some sectors more than others. The Commission’s health department publishes online all meetings its staff have with tobacco industry representatives and the minutes of those meetings, something it does not do for other sectors.
Following a complaint by Corporate Europe Observatory, European Ombudsman Emily O’Reilly recommended that this tobacco policy be extended to all departments in the Commission. But this was rejected by Timmermans, who told the European Parliament, “the Commission does not intend to implement specific rules for the tobacco sector as it considers the overall rules sufficient.”
But transparency advocates say the tobacco industry’s history of undue influence with policy makers justifies the special treatment. They also dispute the idea that increased transparency will make lawmakers afraid to meet with ‘unpopular’ industries, even when their technical expertise is needed.
“We have heard these concerns, for example from MEPs who say they want to feel free to seek out all opinions, and that perhaps this will cause fear,” says Teixeira. “But in our view, it is the contrary. It reinforces democracy, to say that I met all the stakeholders in your name, and even after listening to everyone, I chose this, because of A, B and C.”
“What we see many times is when scandals happen, it’s the lack of transparency that causes the scandals and not who they met with,” he adds. “It’s the lack of transparency that causes the big public outcry.”