TOWARDS LOBBYING REGULATION IN SPAIN

Back on 25 and 26 February 2014, the full House of Representatives in Spain passed a resolution promoted by the Parliamentary Group CiU1 and agreed with the majority People’s Party (PP) in which lobby regulation is included in point 5

“ It is considered necessary to promote, as part of the reform of the Rules of the House of Representatives, greater immediacy, proximity and effectiveness of parliamentary scrutiny, and contemplate the regulation of so-called lobbies. Such regulation should be directed to channel the exercise of all activities intended to influence the formulation of policies and decision-making processes, ensuring transparency in the exercise of the right of representatives of civil society and businesses to have access to institutions, as well as observe the code of conduct that will eventually be approved”.

This was also agreed by the two lobby associations, the corporate Forum for Transparency (Foro por la Transparencia) and the Professional Association of Institutional Relations (APRI) the association representing professional lobbyists in Spain which advocated for regulation since 2007, not least because of the commercial benefits that it could provide them. According to APRI, after its creation, the register could enrol about 500 people, associations, employers, unions and NGOs.

The agreement meant significant progress in the field, even though the most consequential lobbying that takes place in Spain is not in the legislature but the executive and the leadership of the major parties which have acquired a leading role in political life. The key to understanding this fact is that Parliamentary elections are held with closed and blocked lists of candidates. This gives party leaders an enormous power over their elected representatives, who are, once in the Parliament, following the instructions of the party rather than the demands and preferences of their voters in the relevant constituencies (a constituency that is also very broad). Therefore trying to influence an MP in Spain is a less effective effort than targeting the party leadership. Equally fruitful for lobbyists are lobbying activities directed toward the executive, especially when a party has absolute majority so that it can determine the result of a vote in Parliament. Given the decentralized nature of the Spanish state, this argument could be repeated for regional governments and parliaments. Thus, any regulation that focuses solely on the legislature misses the point and captures only a fraction of the actual lobbying that takes place vis-à-vis decision-makers in Spain.

Concerning the participation of interest groups, due to Spain’s legislative framework, exerting influence has created a dual reality. On the one hand, there are models that are institutionalized to a greater or lesser extent which incorporate different representation and participation criteria. Certain organizations such as trade unions, employer associations, professional associations or chambers of commerce have a quasi-institutionalized role in the definition of the general interest along with the State. More than 600 norms regulate the participation of organized interest groups in different policy areas, and, in turn, networks of interest groups and governments are created in different sectors through diverse institutional participatory mechanisms (e.g. the Women’s Council, the Youth Council, the Economic and Social Council, the Environmental Evaluation Council, the Consumers and Users Council etc.). All of these councils receive the participation of the parties at stake, and as a result, representatives of employer associations and unions are guaranteed an institutional position to express their opinions on the issues and policies that affect them.

Alongside this formal reality, there is a degree of informality in which hundreds of professional lobbyists, companies and diverse interest groups try to influence the executive and legislative branches in a world where there are no rules to regulate their access, information on their contacts, the ethical limits of their work, or even a record of meetings. There have been cases of ‘legal’ corruption and undue influence in Spain, and corruption is perceived to be a major problem in Spain yielding as a result strong disaffection in society. There is a concern about the opacity with which, in very important areas, lobbyists conduct their activities- especially given the lack of information and lack of regulation which would allow one to know who influences whom, how, with which financial means, and with what results. There is no record of lobbyists, lobbyists are not required to report their activities, there are no bodies monitoring and controlling their activity, and there is insufficient legal and institutional support to keep track of the legislative footprint of Spanish laws.

In December 2014, the Transparency Act came into force for the State level. (regional and local levels to follow in December 2015). This law is expected to reduce space for government opacity and help better control the activities of public authorities, especially thanks to some of the regulatory changes being passed in the Autonomous Communities. An example is that of Andalusia which requires greater publicity of institutional agendas of governments. Meanwhile, Transparency International (TI) and other NGOs push for more stringent regulations to effectively prevent corruption, increase transparency, ensure integrity, and to the extent possible ensure political equality in public decision-making.

TI Spain recommends the following measures:

 Registration and Disclosure Measures

1. The government must conduct a comprehensive review of lobbying risks in order to inform the introduction of a regulation of lobbying in the executive and legislative branches. The review must clarify the rules of the game and define who will receive special protection- for constitutional reasons- when exerting influence, noting who will receive this protection, due to relevance to a specific sector, and who will not. This will guarantee a level playing field as well as transparency of the roles and responsibilities taken on.
2. Both Governments and Parliaments should initiate a broad consultation on introducing a register of lobbyists, involving all stakeholders who would be affected by such a register. Any register that is introduced must a) be mandatory and capture all who lobby professionally (anyone who is seeking to exercise influence including for instance not only professional lobbyists, but also private sector representatives (in-house lobbyists), public affairs consultancies, representatives from NGOs, corporations, industry/professional associations, trade unions, think tanks, law firms, faith-based organisations and academics) and b) cannot be built exclusively to regulate access to the national legislative branch. It must also regulate lobbying of regional Parliaments and the executive branch.
3. Public representatives and officials should clearly report contacts maintained with regard to every policy or political measure, and publicly inform about their work agenda. Public representatives (deputies, senators and local representatives) should publish their agendas and calendars.
4. All registered lobbyists should furnish periodic reports on their activities, without prejudice to the information that the public officials with whom they met should provide. They should clearly establish the public officials involved, their classification and the units where they work, the topic on which they sought to influence, the amounts received for this task, or, if a company is exercising influence on its own behalf, the relevant budget etc.
5. A lobbying Code of Ethics should be introduced, setting clear ethical standards with regard to communicating with and seeking to influence public officials and representatives. Both lobbyists and those targeted by lobbyists and interest groups should be trained on the Code of Ethics.
6. There should be an independent entity or agency that manages the registration system and monitors and sanctions non-compliance both in the private as well as the public sector (it can be a new creation or an already existing entity that is reorganized to assume this task).

Broader Public Sector Integrity Measures

1. The Transparency Act should be fully implemented and, when possible, amended to include greater access to public officials' agendas and the criteria for selecting consulting experts, as well as to enable citizen participation in drafting bills and regulations. The implementation of the act must be closely monitored.
2. The impartiality and independence of the Conflicts of Interest Office should be guaranteed so that the Conflicts of Interest and Incompatibilities Act (which only affects the executive branch) can be applied in a serious and rigorous fashion. This recommendation should be extended to other units, entities, agencies or authorities especially in charge of managing and monitoring conflicts of interest at the autonomous community and local levels, who must also have sufficient resources to effectively do their job.
3. The regulation on incompatibilities of senior officials should be guaranteed, in particular the 2-year cooling-off period. After the cooling-off period, a supervision should be ensured to prevent undue influence and influence peddling. The regulation on this matter should also apply to independent inspectors. It is important to regulate the process by which the private sector hires public officials from entities that are particularly well-prepared and have privileged information and contacts, such as state attorneys or financial inspectors. Their re-entry into the public arena should be closely monitored, and a hold should be placed on this re-entry in areas where conflicts of interest could occur.
4. The regulation of the process to draft bills and regulations should be reviewed to ensure a level playing field between all interests at stake for each regulated matter. More participation from all interested stakeholders is needed, as well as more information on the consultation and participation mechanisms, more timely information provision, enhanced channels of communication between citizens and the governments/parliaments, and mandatory impact assessments. The legislative technique and the quality of mandatory impact reports should also improve (in particular through the reform of the Government Act and Administrative Procedure Act).
5. A legislative footprint should be introduced which would provide a clear record of the information considered during legislation drafting and detailed record of the legislative process, including the meetings held by deputies and senators with third parties.
6. Conflicts of interest in the Parliamentary system and revolving doors should be more controlled, through proper review of Parliament members' income and assets statements, and rigorous oversight of any incompatibilities and conflicts of interest. Furthermore, a code of ethics should be established whereby it is forbidden to accept gifts.
7. In the judicial branch and for the Public Prosecutor's Office, bans on post-public employment positions should be clearly regulated, and conflicts of interest should be more specifically monitored (for instance through mandatory assets and income declarations).

Political Parties

1. Political parties should be banned from cancellation of debt by the banks.
2. Political donations by businesses should be banned. In order to close loopholes in the political financing laws, financing of foundations and other entities tied to the parties should be monitored more closely, with the same limits established for political parties. In particular, it should be forbidden for political party foundations to receive donations from companies that have contracted with public administrations.