PRINCIPLES GUIDING ETHICAL LOBBYING

Author: Thomas M. Susman

Edited

Rules of conduct and codes of ethics often provide quite detailed roadmaps to assist the lobbyist in traversing ethically dangerous terrain. Some of these codes look like laws, but they are distinguishable because they are largely not enforceable. Others may be enforced through the disciplinary processes of professional organizations

Code of ethics for lobbyists set out guidelines and standards designed to assist lobbyists in acting in the “highest ethical and moral manner.” These guidelines usually deal with: honesty and integrity; compliance with applicable laws, regulations, and rules; professionalism; conflicts of interest; due diligence and best efforts; compensation and engagement terms; confidentiality; public education; and duty to governmental institutions. They are sufficiently general to provide worthwhile practical guidance for the working lobbyist. A comprehensive code of ethics for lobbyists emerged from a project of the Woodstock Theological Center. The Principles for the Ethical Conduct of Lobbying (Principles) were developed specifically to provide practical guidance for lobbyists, and they do in many respects. The Woodstock Principles have seven sections addressing: lobbying and the common good; lobbyist-client relationships; lobbyist-policymaker relationships; lobbyists and shapers of public opinion; conflicts of interest; lobbying strategies and tactics; and the obligation to preserve the integrity of the lobbying profession.

Ethics codes are valuable even when not part of an enforcement regime. A code of ethics can establish community standards and thereby define behavior expected by clients and members of legislatures. A lobbyist’s success and reputation will turn on compliance with those standards. A code of ethics not only informs the public (and lobbying clients) of the values of the group adhering to that code, but it also informs individual members of the lobbying community of what is expected of them. Even in the absence of an enforcement mechanism, a combination of adverse media coverage and peer condemnation will usually provide sufficient motivation for compliance. Competitive market forces may also influence the ethics of lobbyists, but incomplete information by clients and employers often impedes the efficacy of these forces.

Ethics codes are often so general in their guidance that they can be entirely unhelpful in specific situations or contradictory in some of their applications to concrete cases.

There are simpler tests for lobbyists to employ when called upon to resolve many ethical challenges. These tests, like those set out by Confucius, Aristotle, Kant, Hume, Kidder, Josephson, and others, are likely to be reliable only where applied by a lobbyist with an informed conscience. How do we attain an informed conscience? The process likely begins in infancy, but as adults our conscience continues to be informed by laws, rules and codes, peer pressures, ethics training, study of both history and contemporary affairs, and thoughtful reflection on all of these. Admittedly  ethics tests provide no better guidance to sociopaths than do ethics codes or, for that matter, laws. But most of us can apply them quickly— and reliably in our day-to-day lobbying activities, as a supplement to those laws and codes. Our own gut reaction is often a highly reliable indicator that a potential course of action is likely to be unethical.  It is not wrong, or a waste of time, to seek external validation of a gut reaction. After all, it may occasionally be difficult to distinguish one’s crisis of conscience from a bad case of indigestion. But for professional lobbyists who understand their trade and the institutions with which they work, the visceral response can be a highly reliable ethics indicator. The primal gut response is, of course, educated by experience and informed by applicable objective ethical standards. But it also works beyond rules and codes to fill their gaps. Finally, a lobbyist might not feel guilty or self-conscious when contemplating the questionable action . That could well be because the action seems so well-accepted already: others are doing it and they seem comfortable.  Here we move from the visceral and emotional to intellectual. Everyone is doing it, but it ought to be wrong—and should be changed.

Conclusion

If lobbyists want to claim their profession as an honorable one, then they must act honorably and professionally. That means, of course, obeying applicable laws. It means adhering to principles set out in relevant codes of conduct. But it also means conducting themselves ethically and being guided by whatever subjective ethical tests are successful for them. It means taking actions  best serve society in the long run.

Legislative Code of Ethics for Lobbyists

1. A lobbyist may not offer employment to any Member or legislative employee which impairs his or her independence of judgment as to his or her official duties.

2. A lobbyist may not offer employment which would require or induce a Member or legislative employee to disclose confidential information.
3. A lobbyist may not use or disclose any confidential information obtained from a Member or legislative employee for personal financial gain or conspire with any person for such purpose.
4. A lobbyist may not offer any employment, fee or any other form of compensation to any Member or legislative employee for appearing, agreeing to appear, or taking any other action on behalf of him/her or a client before any state board of agency.
5. A lobbyist may not give or agree to give, directly or indirectly, any compensation, reward, or gift to any Member or legislative employee for any service, advice, assistance, or other matter related to the legislative process.
6. A lobbyist may not offer, arrange for, give or agree to give to any Member or legislative employee, any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity with that member of legislative employee, which is in substantial conflict with the proper discharge of his or her official duties and responsibilities.
7. Any person is prohibited from inducing or seeking to induce any Member or legislative employee into committing a violation of any provision of the Code of Ethics. A violation is a misdemeanor, but any person who conspires to violate any provision of the Code of Ethics is guilty of a felony.

Institute of Governmental Advocates’ (IGA), California, Code of Conduct for Lobbyists

1 A lobbyist owes members of the State Legislature and their staffs, the Governor and members of the Executive Administration, and all governmental employees an obligation of respect as legitimate and proper participants of the governmental decision-making process.

2. A lobbyist has a duty to protect confidences when information is given to him or her with an expectation of confidentiality.

3. A lobbyist owes participants of the governmental decision-making process an obligation not to mislead them. A lobbyist owes participants of the governmental decision-making process an obligation to correct as quickly as practically possible any incorrect information that the lobbyist  provided them.
4. A lobbyist owes participants of the governmental decision-making process an obligation to make every reasonable effort to become, and to stay, as informed as possible on the issues and process involved in the lobbyist’s activities.
5. A lobbyist owes a public officeholder an obligation to inform the officeholder of the lobbyist’s planned opposition to a proposal by the officeholder prior to the lobbyist’s active opposition.
6. A lobbyist owes participants of the governmental decision-making process an obligation to inform them of potential adverse effects of proposals to the extent that it can be adverse to known interests of those participants.
7. A lobbyist owes the public and participants of the governmental decision-making process an obligation to immediately cease representing a client in a pursued objective and inform the client as quickly as practically possible of the lobbyist’s inability to continue representing the client in the pursued objective if it becomes known to the lobbyist that the client’s effort in the objective is purely harassment, taken out of spite, or otherwise not in good faith, or if the continued representation would violate applicable law or this Code.

European Union

In their relations with EU institutions and their Members, officials and other staff, interest representatives shall:

1.always identify themselves by name and, by registration number, if applicable, and by the entity or entities they work for or represent; declare the interests, objectives or aims they promote and, where applicable, specify the clients or members whom they represent;

2.not obtain or try to obtain information or decisions dishonestly or by use of undue pressure or inappropriate behaviour;

3.not claim any formal relationship with the European Union or any of its institutions in their dealings with third parties, or misrepresent the effect of registration in such a way as to mislead third parties or officials or other staff of the European Union, or use the logos of EU institutions without express authorisation;

4.ensure that, to the best of their knowledge, information, which they provide upon registration, and subsequently in the framework of their activities covered by the Register, is complete, up-to-date and not misleading; accept that all information provided is subject to review and agree to co-operate with administrative requests for complementary information and updates;

5.not sell to third parties copies of documents obtained from EU institutions;

6.in general, respect, and avoid any obstruction to the implementation and application of, all rules, codes and good governance practices established by EU institutions;

7.not induce Members of the institutions of the European Union, officials or other staff of the European Union, or assistants or trainees of those Members, to contravene the rules and standards of behaviour applicable to them;

8.if employing former officials or other staff of the European Union, or assistants or trainees of Members of EU institutions, respect the obligation of such employees to abide by the rules and confidentiality requirements which apply to them;

9.obtain the prior consent of the Member or Members of the European Parliament concerned as regards any contractual relationship with, or employment of, any individual within a Member's designated entourage;

10.observe any rules laid down on the rights and responsibilities of former Members of the European Parliament and the European Commission;

11.inform whomever they represent of their obligations towards the EU institutions.

Rules for Lobbyists in France

When lobbyists interact with public authorities, they are expected to act with probity and integrity and to apply a certain number of ethical rules, including to:

1. Declare their identity, the entity for which they work and the interests or the entities they represent
2. Refrain from offering any gifts, donations or advantages of significant value
3. Refrain from encouraging public officials to break the ethical rules applicable to public officials
4. Refrain from soliciting information or decisions by fraudulent means
5. Refrain from conveying false information, or using any schemes intended to deceive in order to obtain decisions or information
6. Refrain from arranging seminars, conferences or meetings where authorities would speak in exchange for any form of financial compensation
7. Refrain from disclosing the obtained information for commercial or advertising purposes
8. Refrain from selling copies of any document issued by the government, an administrative or a public independent authority, or using their letterhead papers and logotypes
9. Respect and observe these ethical rules with the people within the immediate circle of the  public officials.