According to Transparency International’s Global Corruption Barometer (2013), 58% of EU citizens believe that their national government is to a large extent or entirely controlled by a few big interests. Although with less emphasis, this belief is usually extended to European institutions as well. Indeed, the well-documented decline in trust in national and international executive and legislative bodies has been accompanied by a pessimistic perception of the influence of corporate and group interests on those institutions. As it turns out, this perception is not totally unjustified, although being mostly based on distorted premises.
The latter mainly relate to an array of surprisingly widespread misconceptions about the concept of lobbying: what it really is, who the actors of the lobbying process are, how it impacts democracy and the decision-making process, and finally, what the current regulation on lobbying is and what can be done to improve it. The aim of this article is to answer most of these questions, focusing, of course, on the European Union and its Member States.
Lobbying: beyond the myth
A comprehensive definition of lobbying is given in Transparency International’s 2020 report on the subject: “Lobbying is any direct or indirect communication with public officials, political decision-makers or representatives for the purposes of influencing public decision-making, and carried out by or on behalf of any organized group”. Hence, lobbyists are people carrying out such activities, working for organizations such as public affairs consultancies, law firms, NGOs, think-tanks, corporate lobby units or trade associations. This definition by itself allows us to go beyond the mythical representation of lobbyists seen in works of fiction such as “Thank you for smoking” or “House of Cards”, and start recognizing their work as a fundamental part of democratic decision-making.
Indeed, the activity of lobbying, also called interest representation, is not by definition aimed at capturing the decision-maker, but rather at providing them with all the information and expertise they need to actually take decisions. In an increasingly complex world, politicians and bureaucrats are forced to deal with increasingly complex, ambiguous and multi-stakeholder issues, such as cybersecurity, pharmaceuticals or environmental protection. Unfortunately, they rarely have, if ever, a complete understanding of the multi-faceted consequences of the decision and actions they take, either because they lack specific competences on the subject or because they have limited information on the relevant context.
In principle, a well-functioning lobbying system has two advantages with respect to this information or competence gap. The first takes the form of better informed and more efficient institutions and bureaucracies. The decisions and policies implemented within such an interest representation process are expected to tackle the target issue more precisely and with smaller collateral costs to the relevant stakeholders. Secondly, lobbying should promote a more participatory and inclusive vision of democracy, where citizens and stakeholders are both the main initiators and drivers of policy making. This would imply greater responsibility and involvement of civil society on one hand, and greater accountability for institutions and bureaucracies on the other.
Ça va sans dire, the interest representation process also benefits those whose interest is being represented. Indeed, this is usually the risk people fear the most regarding lobbying: if a decision has positive effects on a large cohort of relatively powerless and disinterested individuals, but negative effects on a small group of powerful and concerned individuals, are we sure that those in charge will manage to resist the organized and persistent pressure of the latter in favor of the more general interests of the former? The answer to this variation of the famous “tragedy of the commons” problem is: it depends. Where the practice of lobbying is regulated in such a way to guarantee sufficient levels of transparency, integrity and fairness, the risk of unbalanced influence is minimized, and the overall soundness of democracy is greatly improved. Where instead this is not the case the risk is greater, and it becomes difficult to distinguish interest representation from corruption.
Whether we like it or not, market forces operate even in the realm of politics, and in order for the democratic process and society in general to benefit from the work of lobbyists, it is crucial that knowledge and competence remain the only currencies accepted in exchange for influence. When money and soft power become (il)legal tender, the political market fails.
Regulation on interest representation
To ensure that the “good” kind of interest representation emerges in a country, it is necessary for its legal system to recognize the practice and to regulate it. However, a sufficiently comprehensive lobbying regulation does not exist in most democracies, and where there is one, the presence of legal gaps and regulatory loopholes risks undermining its effectiveness. The United States, Canada and the United Kingdom can be considered as the pioneers of lobbying regulation, thanks to the series of laws and acts implemented in the course of the last century. Still, even the regulatory framework in these countries is often criticized for being too shallow and too susceptible to unchallenged corporate interests. In Europe, the situation is far from perfect, but it is showing signs of improvement.
Only 9 out of 27 Member States have a statutory lobbying regulation (these are Austria, Belgium, France, Ireland, Italy, Lithuania, Netherlands, Poland, Slovenia). These usually consist of mandatory registers for lobbyists and more-or-less rigid transparency requirements and codes of conduct for lobbying activities. Notably, Germany was one of the first countries in the world to introduce restrictions to interest representation. However, its mainly voluntary registration for lobbying in the Bundestag results, to a certain extent, inadequate nowadays. Only time will tell whether the rapid increase in regulatory acts on interest representation passed in the last decades indicates the beginning of a long-awaited reckoning of political institutions to the demands of citizens and lobbying actors alike, or is just a flash in the pan.