The 3,664 lobbyists duly registered, as required by law, to try to influence the federal government are hardly a model of professional solidarity. In-house government relations specialists for blue-chip corporations often clash with idealistic advocates for non-profit groups. The lobbyists-for-hire who trade on their partisan connections divide along Conservative and Liberal lines. Lately, though, this typically fractious community of clout, clustered around Parliament Hill, is united—by anxiety over a new official interpretation of the federal “Lobbyists’ Code of Conduct,” which they say might unfairly ban them from approaching politicians they’ve legitimately supported in past elections and leadership campaigns. If they’re right, the age-old linkage between partisanship and influence might have been unexpectedly ruptured.
The uproar is over a guidance bulletin, issued early last month by Karen Shepherd, the government’s commissioner of lobbying, on what constitutes an illegal conflict of interest between a public office holder and a lobbyist. Shepherd said potential cases of “improper influence” will continue to be judged individually, but she sweepingly warned that from now on, “political activities” might create such conflicts. Asked by Maclean’s exactly what activities in support of political candidates might mean a lobbyist would then be prevented from actually lobbying those politicians once they’re in power, her office listed “fundraising, communications, logistics, speech writing, etc.” In other words, just about anything.
The problem is that Shepherd declines to spell out exactly when such partisan work might disqualify lobbying later on. “This is so vague,” said Michael Robinson, a lobbyist with influential Earnscliffe Strategy Group and long-time Liberal strategist, “as to make it impossible for somebody to conduct their behaviour in a way that they’re confident they won’t cross a line.” Tories are no more sure of what’s being outlawed. “What I think this interpretation has essentially done is say, ‘There is no black and white, there is only grey,’ ” said Goldy Hyder, the senior Conservative who heads the powerhouse Hill & Knowlton consulting group’s Ottawa office.
This isn’t the first attempt to put some distance between lobbyists and public office holders. Starting last year, for example, the Conservatives imposed a controversial rule banning former cabinet ministers, their staffers and other senior public servants from lobbying the government for five years after leaving their jobs. But the sort of volunteer partisan work many lobbyists routinely take on—raising money for a cabinet minister’s re-election, say, or helping a party out with campaign strategy—wasn’t previously thought to disqualify future lobbying.
Democracy Watch, a persistent government-ethics advocacy group, launched a court case to try to change that. The group fought a long legal battle over a 1999 fundraising dinner organized by a Liberal lobbyist for a Liberal cabinet minister. Last March, the Federal Court of Appeal ruled that indeed created a conflict of interest. “Where the lobbyist’s effectiveness depends upon the decision maker’s personal sense of obligation to the lobbyist,” the court said, “the line between legitimate lobbying and illegitimate lobbying has been crossed.”
Ever since the ruling, lobbyists had been waiting for Shepherd to clearly draw that line. Some had expected her to focus on banning party insiders from lobbying politicians for whom they have raised money. But her guidance bulletin last month was far broader, and more vague. She did nothing to clear matters up when she participated recently in a panel discussion on the Hill. The session, organized by the usually low-key Canadian Study of Parliament Group, turned fiery when lobbyists in the room demanded clarity. Shepherd wasn’t offering any. “In the world of lobbying and the activities that you all perform,” she said, “something may be acceptable in one circumstance and not in another.”
She suggested lobbyists consider how an ordinary citizen might judge their linkages with politicians they support and later lobby. “If you were to put a sign on your lawn,” she said, “and you were lobbying the government, no matter at what level, would most Canadians see that as a conflict of interest? If you were fundraising for a political party and lobbying, whatever, would most people see that as a conflict of interest?”
Was she hinting that lawn signs are okay but fundraising isn’t? Lobbyists who attended the panel discussion weren’t sure. “The test of what Canadians think doesn’t give me much comfort,” said Kim Doran, a veteran Liberal organizer and lobbyist with Tactix Government Consulting. “I’d like to know what the test is from the commissioner of lobbying, because that’s who I report to.”
Democracy Watch coordinator Duff Conacher, however, said Shepherd was right to refuse to be pinned down and instead “set out a general standard.” A whole class of political insiders has been left guessing when they might be violating that standard—and worrying that if they guess wrong, they might end up being the test case that defines their profession’s new legal limits.