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August 8th, 2017

Legal Newsletter

Lobby - Bureaucracy, transparency and accountability?

A significant portion of the articles on government or institutional relations and/or lobby published in 2017 mentions two aspects that have received increasing attention: transparency and accountability, broader and more precise concepts than the mere bureaucratization, which does not necessarily lead to the desired outcome.

Legal Newsletter

A significant portion of the articles on government or institutional relations and/or lobby published in 2017 mentions two aspects that have received increasing attention: transparency and accountability, broader and more precise concepts than the mere bureaucratization, which does not necessarily lead to the desired outcome.

Of the fifteen bills proposed between 1984 and 2014, whether in the Chamber of Deputies or the Federal Senate, which mention the need for regulation of lobby, only four continue their path for becoming a Law. Among them, the one which has received most media attention is Bill 1202/2007, by Deputy Carlos Zarattini (PT-SP), which proposes to discipline the so-called "lobby", expressly mentioning this activity, and the performance of pressure or interest groups in the organs and entities of the Public Power. The Project defines as "lobbyist" or "interest group agent," (i) a person, whether an independent professional or not, (ii) a company, (iii) an association or nongovernmental entity of any nature engaged in “pressure directed at a public agent (...) with the aim of achieving an administrative or legislative decision favorable to the interest group it representes, or contrary to the interests of third parties, when appropriate to the interest group it represents"(article 2, VII). The project provides for the accreditation of these professionals, who must register in the organ in which they act or intend to act, identifying the entity to which they belong. The law would also beapplicable to public agents who lobby to defend their interests before public administration bodies (art. 3, paragraph 2).

The Bill, in addition, prohibits that individuals and legal entities accredited for the exercise of "lobbying" activities influence the presentation of a legislative proposal with the objective of being hired to influence its approval or rejection in the Legislative Power, which would culminate in the withdrawal of their credentials, as well as the possible criminal responsibility (art. 4, caput and single paragraph). Article 9 of the Bill defines as an act of administrative impropriety, the perception, by public servant or political agent, of any advantage that may affect the exemption in its judgment, granted by lobbyist. In addition to providing for the need for regulation by Resolution of the National Court of Auditors, the infringement of the above mentioned article would culminate in dismissal of the server.

Recently, the Proposal for Amendment to the Constitution 47, of 2016 (PEC 47/2016, or "PEC of the lobby") was elaborated, with the purpose of adding in Title III of the Federal Constitution, which deals with State Organization, more specifically to Chapter VII, entitled "Of the public administration", a subsection that regulates the activity of representating interests before the Public Administration. According to reasons portayed by the PEC, in regulating the activity of representation of interests before the Public Power, a practice known as "lobby" or institutional lobby, it establishes prerogatives to the so-called "lobbyists", and provides for the possibility of accountability of these professionals for acts thay may violate the prohibitions established, such as interference in the activities of jurisdictional provision, the offering of benefits to public agents, among others (article 1, §6).

It can be seen that, like in Bill 1202/2007, the PEC is meant to guarantee transparency: the thesis which supports these propositions is that, by demonstrating who are the actors that officially meet with congressmen, it would be possible to watch over for the respect of principles such as publicity, morality and legality, which should be dear to public and private activities in the country.

Of the twenty-nine parliamentarians who proposed the PEC, nine are members of the PMDB, eight from the so called Social Democratic Block (PSDB and DEM). There is also a PR parliamentarian, two of the PP, one of the PT, two of the PSB and four out of mandate.[1] Most of the parliamentarians are businessmen, lawyers or engineers. The fact that parliamentarians from parties with such disparate agendas came together around a common goal is interesting. In the meantime, since 09.20.2016 - that is, almost a year ago - the proposal has been awaiting for the appointment of a rapporteur in the Constitution and Justice Commission (CCJ), which must, in accordance with articles 101, I and 356 of the Senate’s Statute (RISF), issue an opinion on the constitutionality, legality and concordance with the Statute of the matters submitted to its appreciation, particularly with regard to PECs.

The rapporteur's designation, or not, and the consequent vote on the proposal, will depend on the political will thet the proposal goes forward, something that depends, even, on the agenda of priorities of the Congress and the interest of the parliamentarians to show dedication to the subject.

The proposals of bureaucratic regulation of the activity of governmental relations presuppose that the political influence only stems from official and structured meetings - initiatives and strategies of indirect influence, through social networks, press, technical studies, publications in the media, among others, are ignored. This may indicate the anachronism of the premise: form may be valued at the expense of content.

Furthermore, any restrictions on communication between members of the society and members of the Public Authority may even be challenged from a constitutional perspective, since the enactment of a law restricting direct manifestation, petition rights and democratic interaction is contrary to the rights anticipated in our Constitution, a support for real Democracy.

Perhaps the ultimate aim of ending corruption would be best achieved by rapid and effective prosecution, combined with exemplary punishment of misdemeanors, creating enough coercion for the actors to self-limitate themselves. Bureaucratic regulation is not enough to prevent moral misdemeanors, which can be easily covered up by simulated formality. Regulatory barriers of form induce concentration in favor of the most heavily financed and structured players, and present an additional challenge that discourages and weakens new ones. The initiative to formalize corporate electoral donations after the PC Farias scandal and the news of its misuse in recent events, militates, in fact, against the hypothesis that formalizing and bureaucratizing inhibits ethical deviations.

Even without regulation, groups organized around a common objective continue to express the interests of the most diverse sectors of society before Legislative and Executive bodies, which is not only legitimate by itself but also useful for broadening the debate and informing the legislative process and Decision-making in relation to unseen aspects or even social anxiety. The activity of sensitizing and sharing information with public and political agents does not imply, nor does it presuppose, corruption; on the contrary: it makes the social pact for the governed citizens bearable and productive. In order to verify if this debate will be updated and adjusted to the new world and Brazilian order we must follow what the unfolding of these legislative initiatives, when or if they actually occur.

[1] The followinf parlamentarians are no longer serving their mandates: Pastor Valadares, ex-PDT; José Aníbal, ex-PSDB; Deca, ex-PSDB, and Aloysio Nunes, ex-PSDB, current Minister of Foreign Relations - MRE. The authors of the PEC 47/2016 are the following Senators: Romero Jucá (PMDB); Aécio Neves (PSDB); Aloysio Nunes Ferreira (out of Office, currently in the MRE); Ana Amélia (PP); Ataídes Oliveira (PSDB); Dalírio Beber (PSDB); Dário Berger (PMDB); Deca (out of office – he was in the Senate for being the substitute of Sen. Cássio Cunha Lima); Edison Lobão (PMDB); Eduardo Braga (PMDB); Elmano Férrer (PMDB); Eunício Oliveira (PMDB); Fernando Bezerra Coelho (PSB); Flexa Ribeiro (PSDB); Hélio José (PMDB); José Agripino (DEM); José Aníbal (out of office – he was in the Senate for being the substitute of Sen. José Serra, nominated to become MRE);  Pastor Valadares (he was in the Senate for being the substitute of Sen. Acir Gurgacz); Paulo Bauer (PSDB); Paulo Rocha (PT); Raimundo Lira (PMDB); Ricardo Ferraço (PSDB); Roberto Muniz (PP); Ronaldo Caiado (DEM); Rose de Freitas (PMDB); Tasso Jereissati (PSDB); Valdir Raupp (PMDB); Wellington Fagundes (PR); Zezé Perrella (PMDB).