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Lobbying regulation: beyond trading in influence

Luís de Sousa (Universidade de Aveiro)
Susana Coroado (ICS-University of Lisbon)*
Bertram Lang (College of Europe)

POLITICAL STUDIES ASSOCIATION (PSA)

SPECIALIST GROUP ON CORRUPTION AND POLITICAL MISCONDUCT

First Annual Conference

27‐28 August 2015
University of Sussex, Brighton

*Author for correspondence: Susana.coroado@gmail.com

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Abstract

Lobbying is the process of seeking to shape the public policy agenda in

order to influence government (and its institutions) and the legislative
programme (Zetter 2011). Some degree of tentative influences of public
policy by individual or collective agents is inevitable and has been
acknowledged by political systems, namely in the US and the EU.
Lobbying practices may fall within the scope of conflict of interest
regulation or influence peddling crimes, particularly when there is a lack
of regulation and transparency. It may lead to corruption, but it may also
be mistaken by it (Campos and Giovannoni 2007).
Looking at theoretical and legal definitions of conflict of interest, influence
peddling and lobbying, this paper investigates the relationship and the
differences between those concepts. In addition, it will also seek to
understand how lobbying regulation can be coordinated with conflict of
interest and influence peddling standards and fill in the gaps left by them.
Finally, it will examine how this regulation can improve the identification
and supervision of conflict of interest and influence peddling, by clarifying
the scope of each of the concepts.

Keywords: Lobbying, Trading in Influence, Corruption

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Introduction

Lobbying has found its place on the public agenda. Either in the aftermath
of scandals or due to increasing demands by civil society and international
organizations for more public transparency and accountability, the debate
about lobbying is open in countries both with and without formal rules to
regulate this very common political practice. In the past ten years, over a
dozen countries have introduced some form of regulation and many
others have opened the debate over it.
The existence of interest groups in society that influence or try to
influence political decision-making has been widely acknowledged in the
academic debate. Policies are defined through the interaction between
interest groups and decision-makers. This interaction can take many
forms: some legitimate others improper if not illegal. The complexity of
decision-making at the diversity of domains, which policy makers are
required to address, creates room for outside influence not just as a
function of representation – decision-makers cannot afford to remain
indifferent to their constituents’ demands – but also as a matter of
capacitation – decision-makers need to seek or procure expertise or
contrast opinions over matters that they are not so familiar with, do not
have sufficient knowledge or are over issues that are too sensitive to risky
to assume a unilateral decision. Lobbying is a mechanism through which
pressure groups, individuals, corporations, fellow legislators, constituents
or advocacy groups can exercise legitimate influence over decision-
makers, in particular (local, national or regional) government officials,

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legislators, regulatory officials or senior public officials responsible for
implementing or managing government programs.
It is also interesting to see that, even in unregulated contexts, lobbying
has become an acknowledged activity among decision-makers (Burson
and Marsteller 2013). Nevertheless, the word ‘lobbying’ is prone to raising
public suspicions and it is common for lobbyists to label themselves with
different categories, such as “Government Relations Professionals”,
“Public Affairs consultants” and so on. Lobbying has also been connected
with powerful groups, big corporations, an uneven level playing field and
illicit practices that, in its worst form, may amount to corruption. It has
been suggested that “lobbying is the preferred mean for exerting political
influence in rich countries and corruption the preferred one in poor
countries.” (Campos and Giovanonni 2006) Nevertheless, the industry of
lobbying consultancy is growing and more and more states are regulating
it or considering so. On the other hand, even in regulated contexts, risks
about this practice have been acknowledged.
This paper will try to bring some definitional clarifications into the debate
and promote a theoretical debate on the differences between legitimate
forms of lobbying and illicit forms of practising influence, namely trading
in influence.

Literature Review

In liberal democracies, the people choose their representatives through

general and periodic elections. Schumpeter’s definition of democracy is
based on this view: “the democratic method is that institutional
arrangement for arriving at political decisions in which individuals acquire
the power to decide by means of a competitive struggle for the people’s
vote." (Schumpeter 2003:269). However, political participation is not
limited to electoral mobilisation. The central issue in democracies is not
simply who gets elected, when and with what level of support, but how
decisions are made and actions taken, given the existence of multiple

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legitimate interests (Austin 2006: 678) and decision-making processes
permeable to the ‘interaction between economic interests and power’
(McFarland 2010). In a scenario where various interest groups with
conflicting objectives operate, the State, through the political power,
functions as a regulator of those interests. By enabling groups with
interests in a particular policy to be heard, provide information and
present their arguments, policymakers manage differences between them
and look for the ‘minimal consensus necessary for the functioning of a
democratic society’, which, as Downs (1962) explains, can be considered
the public interest. To be successful, the choice that benefits one
particular interest group must be defendable as public interest as well,
either by the group that represents it (Pereira 2008) or the public
decision-makers that opt for it (Downs 1962).
The role of interest groups in political decision-making processes is more
common in pluralism systems. Nevertheless, the reactivation of pluralist
ideals and the spread of lobbyism from their Anglo-Saxon stronghold to
countries with corporatist or neocorporatist traditions could be seen as
political theory's response to an ongoing "erosion of corporatist interest
representation" (Winter 2010: 122) in continental Europe due, among
other factors, to a parallel decline in membership and political influence of
traditional corporatist associations (especially unions) and a growing
diversity of the ‘interest group landscape’ through the rapid growth and
professionalization of existing as well as the emergence of new, issue-
oriented interest groups, including many civil society organisations. In
addition, the supranational pluralism of EU law-making and the influence
of other economic international organizations, the Anglo-Saxon style
market economy and the spread of US-style lobbying strategies through
multinational companies are contributing to new needs for interest
representation and have opened political debates on how to ‘regulate
lobbying’ even in staunchly corporatist countries. The recent introduction
of a lobby registry in France, where the defence of “particularistic

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interests” used to be vilified as an anathema to the Jacobine idea of the
republic, is a very good case in point.

The more recent scholarship on interest groups tends to focus on those

few industrialized countries which have regulation on lobbying in place or
are developing it, first and foremost the US legislation at federal and state
level, or analyse the situation in other countries with explicit reference to
the existent lack of regulation (cf. Hogan/Murphy/Chari 2008). Despite
the controversy around lobbying and the bad reputation it has, lobbying
in non-regulated contexts has not been the object of study by political
scientists. This gap in the literature seems to have two major
consequences: i) the activity is only legitimated by regulation, making the
law the sole source of definition; ii) there is a lack of distinction between
lobbying and with similar concepts of influence, such as corruption and
what constitute legitimate and illegitimate lobbying, with the exception of
Campos and Giovanonni (2007).

From Lobbying to Trading in Influence: definitions

Lobbying has been considered a mechanism to defend or advance private

interests in a public institutional setting, but so has trading in influence.
This problematic lack of distinction has rarely been fully acknowledged,
and mostly by stating that both lobbying and corruption “are ways of
obtaining help from the public sector in exchange for some favour”
(Campos and Giovanonni 2006:1). The distinction between the two,
however, becomes all the more crucial when new lobbying regulations are
introduced - which often amount to a de facto legitimisation of formal
lobbying in countries where traditional suspicions against particularism
prevail. The definition of these concepts is contentious and at the same
time decisive for further theoretical and empirical work. It is also the
distinction of both concepts that aid in the evaluation of the legitimacy of
interest representation (Figueiredo 2012:24). In addition, the distinction

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plays an important role in corporatist systems that adopt lobbying
regulations, as they create a parallel path on decision-making processes
by adding new actors and influence channels that were not traditionally
accommodated by the respective constitutions.
Baumgartner and Leech (1998:33) propose a simple but broad definition:
lobbying is “an effort to influence the policy process”. More detailed,
Hogan, Chari and Murphy (2010:4) regard it as “the act of individuals or
groups, each with varying and specific interests, attempting to influence
decisions taken at the political level.” It is interesting to notice that legal
definitions are much more extensive and precise than theoretical ones. By
not being so specific about means and actors, theoretical definitions
accommodate means and actors involved in influence that otherwise find
their way in order not to fit in the framework. However, they also present
two significant disadvantages. The first is that by simply defining it as an
attempt to influence politics it might include all forms of political
participation, such as demonstrations, petitions, media campaigns (even
terrorism, for all that matters). The second disadvantage is the fact that,
by being all-inclusive, it does not make a distinction between what is a
legitimate and illegitimate influence attempt. Theoretical definitions,
despite providing useful guidance, are not entirely helpful in separating
lobbying from corruption forms. Legal definitions seem to be the
compromise between clashing views on the issue and a reflection of
practices on the ground.
Lobbying is linked to other similar concepts, such as interest
representation, advocacy (speaking out on issues or supporting a
proposal or a cause) or public affairs (also about working with other
policy-making or influencing bodies such as regulators, commercial bodies
and an organization’s stakeholders). It is not clear, however, the
difference between all these concepts (McGrath n/d). It is possible that
they are used instead of lobbying, due to the negative connotation the
later enjoys.

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Table 1 – Lobbying definitions

Council of Europe Lobbying is generally understood as a concerted

effort to influence policy formulation and decision-
making with a view to obtaining some designated
result from government authorities and elected
representatives. In a wider sense, the term may
refer to public actions (such as demonstrations) or
‘public affairs’ activities by various institutions
(associations, consultancies, advocacy groups,
think-tanks, NGOs, lawyers, etc.); in a more
restrictive sense, it would mean the protection of
economic interests by the corporate sector
(corporate lobbying) commensurate to its weight
on a national or global scene.4

European Lobbying involves solicited communications, oral or

Commission written, with a public official to influence
legislation, policy or administrative decisions.

Lobbying Lobbying activities are lobbying contacts and

Disclosure Act of efforts in support of such contacts, including
1995 (EUA) preparation and planning activities, research and
other background work that is intended, at the
time it is performed, for use in contacts, and co-
ordination with the lobbying activities

OCDE Effort to influence different levels of

government (local, national, regional or
transnational) or different branches of government
(judicial, legislative or executive).

Transparency The attempts of interest groups to influence

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International decisions made by the government, legislators or
members of regulatory agencies.

On the other extreme, there is corruption and more specifically trading in

influence. The Council of Europe proposes the following definition: “When
committed intentionally, the promising, giving or offering, directly or
indirectly, of any undue advantage to anyone who asserts or confirms
that he or she is able to exert an improper influence over the decision-
making of any person referred [political and public officials] in
consideration thereof, whether the undue advantage is for himself or
herself or for anyone else, as well as the request, receipt or the
acceptance of the offer or the promise of such an advantage, in
consideration of that influence, whether or not the influence is exerted or
whether or not the supposed influence leads to the intended result.” (CoE
1999, art. 12). OECD adds another definition: “Trading in influence occurs
when a person who has real or apparent influence on the decision-making
of a public official exchanges this influence for an undue advantage.”
(OECD 2008: 29). Of the forty-three States that have ratified the Criminal
Law Convention on Corruption of the Council of Europe, more than a
quarter presented reservations about article 12, which recommends the
criminalization of trading in influence. Some of the arguments for this
opting out were that this provision could affect legitimate and recognized
lobbying activities, as well as limiting the freedom of expression, through
which citizens can seek to influence the government in a democratic way
(Slingerland 2010). In addition, most OECD Istanbul Action Plan countries
have not criminalised trading in influence. According to the OECD, this
may be due to problems in distinguishing between acceptable lobbying
and illegal trading in influence. (OECD 2007). Other countries, such as
Portugal, and until recently France, criminalized trading in influence, but
lacked regulations on lobbying.

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These are illustrations of the thin line between lobbying and trading in
influence. Both include influence over a public official, frequently
conducted by a broker or an intermediary between that official and the
special interest.
The major difference in the definitions of both concepts lays in the
existence of “undue advantage” or the lack of it. In other words, "all
pressure activities of organizations whose purpose is to defend rights or
legitimate points of view do not mean trading in influence." (Pereira 1998:
312). This leads to the questions of what constitutes undue advantage
and what makes influence legitimate or not? Several factors contribute to
answer these questions, namely actors, their conduct and their means of
action. In the definition of lobbying, who counts as a lobbyist and what
counts as lobbying activity has far-reaching implications for the discussion
of risks or regulatory rules. Liebert calls for the differentiation of lobbyism
and “corruptive or clientelist networks”, based on three points: 1)
“lobbyism maybe be made more transparent”; 2) “lobbyism is based on
professionalization” and 3) “lobbyist activities may be delegated”. This
view is unsatisfactory for many reasons, the first being the fact that is
based on a very narrow view of lobbying that does not fit most
definitions. The definitions do not include any professionalization element.
In fact, as McGrath (2005) explains, the professionalization of lobbying is
still an open debate in the literature. In addition, professionalization does
not guarantee illicit behaviour. The proposal is also based in too many
“may”, which does not contribute to the end of the blurriness.
Our proposal is a theoretical distinction based on processes and
outcomes. First, we look at the similarities between lobbying and trading
in influence, looking particularly at the actors involved. Then, we identify
and analyse the distinctive features. We suggest that the legitimacy of the
influence can be accessed through i) its procedural mechanisms and the
relationship established between the actors involved and ii) through the
outcomes of the public decision.

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Similarities: Actors and Access

Influence takes place between (i) a passive agent, who holds a position of
public authority (decision-maker, legislator, regulator, senior public
official), (ii) an active agent, who wants to push forward public decisions
for its own benefit (individuals, companies, interest groups), with an
eventual participation of (iii) a professional intermediary/broker that
facilitates the contact between his client (the active agent) and the target
(the passive agent) in exchange for some sort of compensation.
Passive subjects are the target of the pressure exerted by the influencers,
as the former hold the powers that can be used for the benefit of the
latter’s private interests. Literature traditionally regards political officials,
especially MPs and Ministers, as the most important targets of influence.
These actors are considered privileged targets due to their legislative and
executive decision-making powers, but also because they hold the power
to influence their colleagues, to promote a certain topic and place it in the
public agenda or to vote for a given issue (Kaye 2003). However, it is also
crucial to consider cabinet Special Advisors (Miller and Dinan 2008) and
political parties as influence targets. Despite not holding direct decision-
making powers, they have the ability to influence their principals or
provide access to them, making these almost a second category of
intermediaries. In the case of systems with strong political parties, it has
been suggested that these are more likely to be lobbied than individual
MPs (Yadav 2011). Public officials, such as senior civil servants and
regulators, should also be considers influence targets. They do not hold
legislative powers, but similarly to Special Advisors, they have the
capacity of advising political decision-makers, besides contributing to
policy-making, conducting policy implementation and holding spending
powers.

Interest groups play the active role in the influence process. They have
their own private interests which they want to defend in the context of
policy or law making. Usually interest groups are viewed as the private

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economic sector, which includes companies, producers, traders and their
associations. Other groups such as churches, non-governmental
organizations (NGO) and other non-profit organizations (NPO) are
sometimes excluded from the category of lobbying (see the CoE
Convention). Alternatively, some literature refers to these groups as
"lobbies of public interest" (McFarland 1976, Graziano 1997, Berry 2015),
which may lead to the conclusion that only they defend public interest and
business lobbies do not. This classification may prove incorrect or at least
inadequate. One may think, for example, of a company planning to build
a factory and create jobs in an economically depressed region. Its
installation may, however, lead to environmental damage, according to an
environmental NGO that opposes the project. Is environment protection
more in line with public interest than job creation? Other cases may be
that of a NGO that is primarily financed by companies or a specific
business sector or a think tank which is used as an instrument of powerful
private interests?

Access is, therefore, crucial to the influence business. If large

corporations, top businessmen and CEOs do not have problems in
reaching decision-makers, small and medium size groups may have a
problem in accessing them. It is under these circumstances that
professional lobbyists come into play: they become brokers between the
decision-makers and the interest group that wants to influence them.
Professional lobbyists that those that are paid for their ability to reach the
“people that matter”. The market of lobbying services and the
professionalization of the activity have, therefore, considerably grown
(SCPC 1994).Therefore, a lobbyist is the mediator that manages
information between the public official and the interest group. It can be
an in-house lobbyist (an employee who has the task of influencing public
powers on behalf of his/her employer) or a professional that offers
outsourced services. A lobbyist can be defined as “a person designated by
an interest group to facilitate influencing of public policy in that group’s

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favour by performing one or more of the following for the group: (1)
directly contacting public officials: (2) monitoring political and
governmental activity; (3) advising on political strategies and tactics and
(4) developing and orchestrating the group’s lobbying effort” (Thomas
and Hrenebar 2000).
Professional lobbyists are gaining more relevance in the field of influence.
Society, economy and politics are becoming more complex and decision
levels have multiplied, which demands more complex strategies. On the
other hand, a mediator decreases the risk of transaction between public
officials and interested stakeholders, by helping to shift possible blame
from the principal to the agent.
Not all interest groups resort to the services of lobbying firms, consultants
or in-house lobbyists. It is possible that in contexts of small and medium-
sized States, with small-size elites and relatively closed economies, large
national corporations actually exercise influence in similar ways, according
to unwritten rules. Portuguese lobbyist Martins Lampreia has stated that
in Portugal “major companies never experienced any problems reaching
top decision makers” (Duarte 2007). This is also confirmed by several
studies on other smaller or medium-sized countries, notably in Eastern
Europe (see for example Kalniņš 2011 or Salai 2013). But due to the
complete lack of reliable information or possible means of investigation, it
is very hard to define the nature of these company leaders' interests, i.e.
whether they are primarily defending their employers’ interests or playing
their own game. Nevertheless, it seems that there are different levels of
capacitation for exercising direct influence in the decision-making
process: there is a clear difference between those active agents who have
such capacity and those who haven’t or who may feel that they need a
professional broker to be heard. Along this line, lobbying appears as a
mechanism of the weak against the power of influence of the stronger.

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Differences: Processes and Exchanges

If the agents involved in lobbying or in trading in influence play similar

roles, it is necessary to identify the differences between the two concepts.
These differences must reside in the processes and exchanges between
those agents.
Political officials hold a representative mandate, which makes them
accountable towards their voters, but they also must ensure the defence
of the common good, which cannot be the mere sum of private interests.
They may end up making an illegitimate use of their power, “selling” the
influence that derives from their decision-making powers to promote
certain interests and provide access to privileged information to interest
groups.
The number of lobbyists that a decision-maker is willing or has the ability
to listen to during policy-making is limited. Thus, he needs incentives for
meeting a certain lobbyist, which can be of two natures. One is how
familiar he is with the cause defended or the individual who requests the
meeting. This is suggested by the results of the 2013 Burson Marsteller
survey on lobbying: an average 24% of respondents around Europe
agreed with this, but the percentage rises up to 67% in Estonia, 40% in
France and 37% in Finland.
A second nature of incentives might be what the decision-maker receives
back from the lobbyist, whether that is money, information or a promise
of future benefits. Some authors consider lobbying and corruption closely
linked, since both are "ways to get assistance from the public sector in
exchange for some kind of favour" provided by the interest group to the
public official (Campos and Giavannoni 2006:1). The difference lies,
among other factors, in the nature of the favour, whether it is legitimate
or not. These favours can be bribery (corruption), partisan or electoral
funding (may or may not constitute corruption, depending on the
regulation of political financing) or supply of prime and important
information for the policymaker (idem; Grossman and Helpman 2001).
Party and electoral financing appears as a delicate issue. Although a

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monetary contribution does not necessarily demands retribution when the
candidate or party comes to office, it helps placing them in a potential
situation of dependency to who held the contribution. In the Portuguese
context, where the law prohibits funding of political donations in genus or
species by companies, such problem does not exist. In other contexts,
such as the US, the issue becomes more complex, since electoral
campaigns demand large means and resources and are dependent on
funding civil society, in particular (and especially) corporations. However,
literature has failed to demonstrate empirically that contributions to
political campaigns have a direct effect on the adoption of certain
legislation (Johnston 2005: 87). Some argue that contributions aim to
"buy access to the decision-maker", i.e., allowing the lobbyist to access
the elected politician and present its arguments, since access to decision
makers is very limited (idem).

Information constitutes another "access good" the lobbyist has to offer to

the decision maker, which can be crucial to the decision making process.
Information may be technical knowledge (most commonly made offered
by companies) or information about the needs of more comprehensive
interests (i.e., the position of a given sector companies, represented by
an association) (Bouwen 2003). This view raises again to the question of
access as a rare or limited good. Since decision makers are not be
available to listen to all parties who contact them, the more the lobbyist
has to offer, the better chances they have of being received. This "offer"
may be the above-mentioned technical and specialized information or a
more comprehensive view of stakeholders, so as more representative of a
sector or interests a lobbyist is, the better chances he has of ensuring a
meeting.

Lobbying or trading in influence? Problems and risks in

unregulated contexts

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Lobbying regulation - still patchy, even in Europe
The conceptual framework of different groups of actors and practices
involved in the lobbying process relies on some clear definitional
distinctions as prerequisites for further analyses of influence. However, it
should have become clear so far that such a distinction between “due”
and “undue” influence hinges upon the availability of sufficient
information about the nature of actors, exchanges and transactions.
However, all too often a substantial lack of transparency makes it very
hard to assess and compare different means of influence or draw a clear
line between different kinds thereof. Insofar as the criteria for undue
influence are determined by a penal provision (e.g. on traffic of
influence), these practices may be subject to legal investigation, but this
will often leave aside a series of lobbying practices and conflicts of
interest that may nonetheless be detrimental to the public good. As
criminal law will and can only cover a set of very exceptional cases, it
cannot adequately address the problem at hand.
The need to manage these interactions by other means may explain the
spread of regulation and supervision in some countries over the last years
and decades, a trend which has generally improved the availability of data
and increased civil society’s potential to scrutinise political interactions
more closely. However, political systems with stringent lobbying
regulation in place still remain the exception rather than the rule and
most systems worldwide are better described as ‘unregulated contexts’
for lobbying activity. These unregulated systems are characterized
precisely by the absence of clear distinctions between what does and what
does not constitute ‘undue influence’. Indeed, the very definition of who
can be said to be a ‘lobbyist’ or what constitutes ‘lobbying’ of political
decision-makers remains ambiguous in contexts where almost all
influence is exerted through informal channels.
Even between different Western European countries, the level of public
acknowledgement of lobbying in unregulated contexts is extensively wide.
Portugal, for instance, has little or no lobbying tradition and there is only

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an incipient market for professional lobbyists. The UK, on the other hand,
not only admits the existence of lobbying, but its parliament even actively
promotes it among constituents by advertising and explaining what it
consists of and how citizens can lobby their representatives.1 Germany, in
turn, certainly has a strong lobbying industry and well-established
channels of influence as well, but its parliamentary registry lacks
coerciveness and politicians tend to underline the virtues of voluntary
disclosure rather than adopting official transparency rules.

The patchy regulation of lobbying is in obvious contrast with the

substantial number of channels for citizens’ (discursive) participation in
the policy process, such as through public consultation mechanisms 2,
constituents meetings with MPs3, petitions and participatory budgeting,

1
UK Parliament (n/a), “Lobbying”, available at http://www.parliament.uk/get-
involved/have-your-say/lobbying/
2
In 1998, at least 19 OECD countries used it in some situations, cf. OEDC (n/a),
Background Document on Public Consultation, OEDC
3
For instance, the UK Parliament: Contacting your MP, available at
http://www.parliament.uk/get-involved/contact-your-mp/contacting-your-mp/

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among many others. Thus, the problem seems to reside not so much in a
lack of opportunities for civic participation, but of an actual level-playing
field: What is at issue is the way influence is conducted and its impact on
decision-makers. The absence of regulation clearly defining what lobbying
is, who should be considered a lobbyist, what are acceptable lobbying
strategies and which rules should govern the relationship between
lobbyists and decision-makers, bears a series of – potential or effective –
risks related to lobbying activities.

Risks in unregulated contexts: Opacity, bribery, and unequal

access
Regardless of the scarcity of comparative literature focusing specifically
on unregulated systems, the risks in these contexts can be derived from
related academic literature and evaluation reports on incipient lobbying
regulation in different countries.4 The first, and most obvious, sort of risks
regarding lobbying activities in unregulated (or insufficiently regulated)
systems can be subsumed under the label “lack of transparency”. The
twofold nature of the risk is most evident here: a lack of transparency
may, on the one hand, create adverse public perceptions of lobbying as
an opaque and potentially harmful activity (even in the absence of actual
misconduct). On the other hand, lack of transparency effectively
facilitates abuses and illicit behaviour on both the active and passive side
of lobbying. Indeed, absence of regulation and lack of transparency often
go along with a general, politically condoned lack of control and
supervision, which involves increased risks of corruption or other kinds of
abuses from different theoretical perspectives: From a principal-agent
perspective, opacity means that a potentially corrupt agent faces a lower
risk of being detected in case of misdemeanour, which increases the
expected pay-off of corrupt behaviour. From a deliberative democracy

4
In this regard, Ireland or Australia are among the most widely debated political systems.Cf.
Independent Commission Against Corruption in Australia (2010), scholars like Conor
McGrath in Ireland.

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perspective, lack of transparency means the impossibility of any fair
exchange of ideas, thus precluding equal representation of interests and
fair decision-making. Without adequate and traceable records of
exchanges between decision-makers and lobbyists, the democratic
process as a whole may suffer from the “secrecy surrounding the basis on
which a decision has been made.” (ICAC 2011: 18). In regulated
contexts, it is frequent to have disclosure mechanisms directly applied to
lobbyists, such as regulation proscribing paid advocacy or regulation on
professional lobbying (registers, accreditation procedures, rules of
engagement, etc). In countries which may generally be classified as
“unregulated contexts” without actual control of lobbyists, some
transparency and disclosure requirements might nonetheless be in place,
most commonly in the form of requirements for decision-makers, namely
regulation on outside jobs, regulation on conflict of interest, or regulation
on assets disclosure.
Notwithstanding the importance of transparency regulations in order
to reduce the actual occurrence of malpractices, academic insights into
social trust and system legitimacy also call for additional prudence in this
regard. Whereas the impression of secrecy itself may be harmful to
democratic ideals of decision-making, simply forcing transparency onto
potentially rather corrupt systems of influence may actually create further
adverse perceptions that should not be underestimated: Social trust
theory of corruption informs us that individual corrupt behaviour is
essentially caused by the belief that “everyone else is corrupt” in the
society and that corrupt behaviour is therefore not only the social norm
but also the only judicious way to behave in order to avoid being cheated
by everyone else (Rothstein 2005: 107-112). In this line of argument,
only increasing transparency and shedding light on corrupt behaviour
might actually reinforce the impression that “the system is just like that”,
thereby encouraging further corrupt behaviour by other agents and
contributing to a delegitimisation of the whole system (Rothstein 2011:
145-163). Such reasoning is also underlying Robert Kaye's argument with

19
regard to conflict of interest regulation, when he observes that the
regulatory fight against mere appearances of misconduct can actually run
the risk of increasing perceptions of misconduct in the wider public and
thereby delegitimize the system (Kaye 2003: 13-15). Transparency, thus,
remains a necessary tool but must not be thought of as an efficient
solution in its own right, without significant accompanying regulatory
measures.
A second common risk in unregulated contexts concerns actual
material benefits offered by lobbyists to decision-makers. While such
benefits can only be denounced as outright bribery if there is a clear
return of favours by decision-makers, this direct exchange of favours is
extremely hard to prove and the realm of morally questionable activities
is actually much broader than this most obvious form of corruption (cf.
Kaye 2003: 7-10). The risks with regard to conflicts of interest are thus
manifold if proper regulation is absent, both on the individual and
collective (i.e. mostly political party) level. Personal gifts and benefits,
including various kinds of hospitality offered by private persons or
companies to politicians or public officials present an obvious corruption
risk and are somehow limited or capped (at least formally) in most
political systems. However, the example of Germany, which still fails to
outlaw or even limit the granting of material benefits to federal MPs by
private persons or corporations, demonstrates that significant risks prevail
even in systems purported to have at least medium-level lobbying
regulation in place. On a collective level, many unregulated systems also
lack clear rules for political fundraising and campaign financing. Again, the
risk relates both to the possibility of actually corrupt exchanges and to
negative perceptions of possible conflicts of interest even in the absence
of outright corruption (ICAC 2011: 19). In this view, caps on private
funding of political parties and electoral campaigns may also constitute a
key element of lobbying regulation, although this aspect is often
sidestepped in actual regulatory frameworks or proposals (cf.
Hogan/Chari/ Murphy 2010).

20
 Unlike the risks mentioned so far, the third problematic aspect of
unregulated lobbying concerns not so much to risks of illegal behaviour,
but rather a danger to the functioning of the democratic system: the
difficulty of access to government for all but the most powerful and well-
connected individuals and groups in society (ICAC 2011: 20). Through an
empirical policy-making analysis linking the questions of transparency and
access, Gilbert and Henry (2012) provide interesting insights into the
advantages of opacity for both decision-makers and interest
representatives close to the policy-making process - beyond outright
corruption or rent-seeking: Notably, many necessary political
compromises may only be negotiated between relevant stakeholders
under conditions of “discretion”, whereas an exaggerated need for
“publicity” may force politicians or other representatives to stick to
ideological principles instead of pragmatic solutions (Gilbert/Henry 2012:
40-45). Any limitation of even technical discussions to a privileged insider
circle of ‘experts’, however, inevitably bears the risk of undermining
democratic deliberation which relies upon the possibility of every
interested stakeholder to obtain information and participate in decision-
making procedures. Again, while absolute transparency may not always
be desirable for the quality of political decisions, it is extremely important
to have clear and transparent rules about who is allowed to participate in
policy-making and by what means. Otherwise, many societal ‘interests’
will not be heard or taken into account throughout the policy-making
process because informal and 'exclusive' meetings will dominate the
exchange between government and society.
As an attempted response to this ‘exclusivity problem’, many
regulatory regimes in place today focus specifically on easier access for
(often voluntarily) registered lobbyists. Such was the European
Commission's rationale behind its voluntary registry put into effect in
2007 (European Commission 2014), and it holds true as well for recent
national regulations like the 2010 Slovenian lobbying law which explicitly
aims at granting NGOs better access to political decisions (Verčič/Verčič

21
2011: 19). However, even if such formal access rules to decision-makers
do exist, there is still plenty of room for privileged access. The risk of
“exploitation of privileged access” is clearly demonstrated by lobbyists
boasting about their formidable “networks and access to key decision-
makers” or “close connections and friendships on both sides of politics”
themselves, as the Australian-based Independent Commission Against
Corruption (ICAC 2011: 20) judiciously observes. A good indicator for
actually ‘measuring’ the monetary value of privileged political connections
in different systems may be the ‘insider dividend’ paid to former (or even
acting) politicians, officials or parliamentary assistants when they choose
to pursue their career as lobbyists in a revolving-door scheme.
This ‘revolving-door’ phenomenon actually represents another
serious risk of lacking or too lax regulation, which can materialize in
various ways and may include offences such as trading in influence or
misuse of confidential information, among others. Over recent years,
some traditionally unregulated systems, such as Portugal, have even
imposed cooling-off periods or incompatibility frameworks for decision-
makers – most frequently political office holders, but at times also senior
public officials. Often, the introduction of cooling-off periods, generally
shorter than recommended by transparency advocates, can be interpreted
as attempt to soothe public outrage at individual, high-level ‘revolving-
door’ cases; the new German “Karenzzeit-Gesetz” voted in July 2015,
which imposes a 12-month cooling-off period for minister and the most
senior civil servants but lacks to envisage any potential sanctions (Lange
2015) is a good case in point. Yet, if lobbying activities are not regulated,
these restrictions may not cover lobbying firms or lobbying departments
in large corporations.
To sum up this expedition into the world of unregulated lobbying
activities, it is important to note that the risks of unregulated lobbying
include not only the occurrence or possibility of outright illegal or criminal
behaviour such as bribery, clientelism or trading in influence, but more
widely include threats to the legitimacy of decision-making processes and

22
the democratic system as a whole – not merely when actual cases of
corruption are publicly revealed, but also because the sheer possibility of
unduly influencing public policies may foster public mistrust and negative
perceptions of the political system being directed more to the extraction
of personal rents than to the realisation of the public good.

Conclusions

The growing debate about the regulation of lobbying raises the question
of where to draw the line between lobbying and trading in influence. As
both suppose the existence of the same actors and the goal of defending
private interests through the influence of public policy, the difference
between legitimate an illegitimate lobbying and between these and
corruption lies in the processes and exchanges involved.
When discussing appropriate regulatory standards for ‘legitimate’
lobbying, it should first be acknowledged that private influence on public
decision-making takes places regardless of the existence of regulation.
Although this might be obvious, the existing literature on lobbying
excessively focuses on (at least partially) regulated contexts, such as the
USA or the EU. Lobbying also takes place regardless of the democratic
regime type. The increasing acknowledgement of lobbying as a legitimate
political practice certainly represents a tilt in global governance standards
towards Anglo-Saxon pluralism. While the traditional interest
representation schemes of corporatist regimes are being challenged,
pluralist systems can more easily embrace lobbying regulation that both
regulates and legitimates pluralist interest representation. This does not
necessarily mean that corporatism is a thing of the past, but in the wake
of the globalisation of neoliberal norms and practices, both lobbying
practices and specific approaches to regulate it in a pluralistic way are
being diffused into these regimes. Entrenched interest groups have to
deal both with new competitors and new rules which are both putting at
risk their conventional ‘way of doing things’ to get their way in politics.
Whereas the spread of new lobbying transparency regulations in formerly

23
unregulated contexts can be welcomed as an attack on opaque and
supposedly corrupt networks of power, this article has also illustrated why
transparency alone may not only be insufficient, but even detrimental to
the legitimacy of a democratic system. More generally, countries which
are now considering new legislation should also draw their lessons from
the severe democratic legitimacy problems that pluralist systems like the
US or the UK are struggling with today, rather than proceeding to
unreflected policy transfers in order to meet global transparency
standards.
Moreover, it has to be recognised that the line separating legitimate
lobbying practices and trading in influence or corruption is always hard to
draw in practice. Lack of regulation increases the difficulties of separation
between due and undue influence, mainly due to the opacity and lack of
control mechanisms. Nonetheless, more context-sensitive empirical
research, which accounts for the possibility of very different policy-making
traditions instead of simply comparing countries according to a single,
often US-inspired standard, may help to improve our understanding of
practices - and actual weaknesses - of different unregulated systems and
thereby help to provide new answers to the question which kinds of
regulatory standards may actually reduce the risks of unregulated
lobbying and promote fair and equal access to the policy-making process.

24
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