The Organisation for Economic Co-operation and Development (OECD) has started the consultation process for its new recommendation on lobbying regulation.
And as the principal author of the draft, I’d like to see many meaningful comments and suggestions from all kinds of stakeholders.
The rationale behind the revision of the original 2010 OECD Recommendation on Lobbying and most notable changes, are as follows.
Getting lobbying regulation right has proven a gargantuan task.
In many countries, lobbying regulation bills repeatedly got stuck in various stages of the legislative process, often despite having been designed as a bare version and further stripped down in previous stages.
In those countries with lobbying regulations in place, dissatisfaction with its functioning is common.
The new OECD recommendation is meant to help.
Lobbying is a strange thing.
The need for regulating it is evident, but even defining it is extremely hard because lobbyists argue it is simply communication, seeking the shelter of free-speech protections.
Combine this with the lobbyists’ reluctance to be labelled as such — and it’s clear that the grey area around lobbying and lobbyists is enormous. Arguably, as a result, any regulation built around these definitions is doomed to fail.
The revised OECD recommendation avoids the dependence on the definition of the very subject it is meant to regulate. Instead of regulating ephemeral lobbyists, “lobbying” regulations should fight any undue influence on public decision-making processes — and the revised Recommendation has been built around this principle.
‘I’m not a lobbyist’ — and the game is over
Principles aside, the revised recommendation contains particular provisions that might prove game-changing. Among them is the so-called regulatory footprint, a register of influence activities related to a particular public decision-making process.
Merely mentioned in the 2010 recommendation, the regulatory footprint is now considered a mandatory part of the recommended regulatory setup.
At first sight another meaningless red tape, the regulatory footprint enables cross-checking the information about influence activities submitted by lobbyists in so-called lobbying registries.
These have been required since the 2010 OECD Recommendation on Lobbying and almost all lobbying regulations around the world are built around them. But they alone can hardly be considered a powerful enforcement tool.
Lobbyists simply do not declare themselves as lobbyists, and thus submit no information into the lobbying register — and thus game over for transparency.
Under a regulation based on the revised recommendation, a public official will disclose the lobbyist’s efforts in the regulatory footprint — and anyone can reveal the discrepancy.
Of course, such non-compliance alone might become yet another non-existent issue for the (non)-lobbyist — unless the lobbying regulation really builds on the revised recommendation.
It provides that standards and guidelines for public officials require them to check the credibility of whoever they deal with. Credibility of a lobbyist who fails to fulfil their basic duty cannot be high and the public official must take it into account…see how powerful this combination might be if the revised recommendation is implemented in a serious way?
The revised recommendation contains many further changes. I think an overhaul was needed after those years of countries’ efforts to get lobbying regulation right (and enforceable) — and given how fast is the influence landscape changing.
Hopefully, the stakeholders will provide us with valuable feedback and the final version of the recommendation will be a helpful resource for countries in their efforts to reinforce their frameworks for fighting undue influence and improving their decision-making.