LOBBYING REGULATIONS IN LATIN AMERICA: A TENTATIVE ASSESSMENT

Since colonial times, both political access and influence in Latin America have been restricted to a few groups. Firstly, political elites mainly white, wealthy upper class families and individuals have always enjoyed major political access with no broad based political legitimacy. Secondly, the bureaucracy which historically has not been chosen through a meritocratic and open process, shared those privileges. Finally access has been afforded to unofficial power groups that obtained access to the decision-making process through influence-trafficking and other forms of corruption.

Legal reforms are necessary but not sufficient when socially embedded practices are to be changed. Indeed, the effectiveness of formal legal provisions against corruption is usually hindered by the lack of enforcement capacity. Also the lack of access to information can harm the integrity framework, excluding from public scrutiny the behaviour of public officials and creating room for privileged access witin the policy process.

When considered as a simple anti-corruption measure, having the mere goal of addressing corruption, lobbying regulation is doomed. In fact, lobbying regulation affects corruption only indirectly. Assuredly regulation might level the access to the decision-making letting anyone to participate regardless of their economic status. However, the better off will always find easier doors if bribery remains an option. Hence, lobbying regulation might build up a culture of transparency and integrity. But in order to properly results in less corruption perception, other forms of corruption control and integrity mechanisms must be put in place. In other words, lobbying regulation alone may not influence political morality.

Lobbying regulation must be justified not only by strict anti-corruption arguments, but also as an effort to open and level the chances to influence. In order to do so, lobbying regulation must come along with rules for public disclosure of information, a pre-condition for creating a level political playing field. In fact, information disclosure is crucial to address corruption, since it is clear that the principal-agent problem flourishes in asymmetric information. However, the current high level of social participation is shadowed by public institutions still susceptible to powerful groups that manage to influence using their economic strengths through hidden connections or clientelism. As a consequence, there is much resistance, often hidden, to enact and carry out an efficient control of lobbying.

Several independent variables affect the degree of success of lobbying regulation to overcome enforcement challenges. First, the regulatory scheme must suit local cultural patterns, such as the degree of respect of fundamental values of democracy. Institutional structure is also pivotal for the outcome of lobbying regulation. In Latin America, the concentration of political power and policy-making in the Executive branch must be considered when designing the regulatory framework. Another independent variable, the influence of state corporatism is still evident in Latin America years after the decline of authoritarian regimes in the region. The connections formed between state and society over the years built up privileged access to associations giving them more relative power than other independent forms of organizations. Recently, more independent civic organizations are emerging, challenging governments for more information about public affairs and more transparent and accessible decision-making schemes.

Some features of regulation that results from the independent variables mentioned above represent the dependent variables to influence the effectiveness of lobbying regulation. For instance, the inclusiveness of the regulatory scheme, which depends on who is and who is not required to register as a lobbbyist; what activities are lobbyists prohibited to be engaged in; who has to report lobbying activities and what is required in those reports. Finally, the stringency of the regulatory scheme- the compatability of the enforcement authority for the complex task of ensuring compliance is also a dependent variable.

After some considerations about what can influence the effectiveness of lobbying regulation, it is also important to set some indicators for lobbying regulation in order to assess its impact on addressing corruption. The first one is the perception of transparency which is enhanced by public disclosure- the major possible achievement of lobbying laws. This perception must be compared to a set of information: (1) wo has benefited frolm public disclosure of lobbying; (2) the actual impact of regulations on the conduct of business by established interest groups and lobbyists and (3) how elected officials and political appointees have been affected by these regulations.

Although there are no empiric studies about the direct impact of the recent attempts of lobbying regulation on corruption perception, it can be said that the ineffecttiveness of the schemes adopted in Latin America might be an enforcement issue. Also, lobbying rules might be inherently ineffective due to the necessary fluidity of any decision-making process that intends to be open as is required by a proper democratic regime. Lobbying registration and control tends to be ineffective if the activity is considered an inherent part of democracy.  If it is truly the case, lobbying regulation schemes would be mere instruments to provide political legitimacy to governmental anti-corruption efforts.

Finally, it is important to mention that, historically, Latin American countries have imported institutions from different social and political contexts, not taking into accopunt the changes and adaptations required to make them suitable to the new environment. Such mimetic institutional isomorphism is often a major cause for the failure of Latin American institutions in delivering their expected outcomes.

Any assessment of prospects for Latin American regulations must bear in mind that not only Latin American democracies but also their regulatory framework regarding transparency and participation are still at an experimental stage. In other words, results are yet to be seen and will be probably different according to each local reality, since  there is not a unique formula for all.

Despite having regular elections, freedom of expression, political parties, independent electoral authorities and other democratic institutions, the corporatist trend that still underlies state/society relation in Latin America hinders the development of independent interest groups. Furthermore, the bureraucratic, corporatist and elitist context inhibits the development of effective and pluralist political practices. The design of lobbying regulatory framework will be able to improve information access and to scale down conflicts of interest if it results in a clear definition of the procedures for public participation in decision-making and enhances the scrutiny over bureaucrats and members of parliament.

Any regulation that respects Latin American local political culture must take into account among other aspects that lobbying is not appraised in the region as an inherent part of democracy. Public campaigns need to be implemented to restore the image of lobbying. Indeed, lobbying must be controlled, not forbidden. The public needs to be able to distinguish those who rely on corruption and influence-trafficking to achieve their goals and those who professionally advocate private but legitimate interests while respecting the impartiality and independence of government.

Lobbying regulations schemes face great risks of distortion that must be avoided. First, regulations must not turn lobbyists into malign characters who must be hunted in the name of democracy. Secondly, there is a tendency in Latin America to build bureaucratic controls that serve only as another barrier for public participation. Every initiative in the region must be designed taking these precautions. Otherwise, regulations will be utterly ineffective.