Minority Report, MLA Barnes Lobbyist Review
APPENDIX B: Minority Report, MLA Barnes
On June 15, 2021, the Legislative Assembly approved Government Motion 86, which referred the Lobbyists Act to the Standing Committee on Alberta's Economic Future for review.
As one of the 12 members of this Committee and the lone Independent, I, perhaps naively, saw this as an opportunity to cut through the often too-partisan nature of the committee process.
Like Many Canadians, I fondly remember back in 2006, the very first bill introduced by former Prime Minister Stephen Harper after his historic defeat of the Liberals - the Accountability Act. The Conservative Party of Canada came into power in the wake of numerous federal Liberal scandals, and this bill was an essential piece of much-needed reform. In part, this law
banned former ministers, their aides, and senior public servants from lobbying immediately after their employment ceased.
I hoped that under the new UCP government, similar changes would be coming to Alberta and that this review of the Lobbyist Act would not be taken lightly. In that spirit, I put forward more than a dozen resolutions to the Standing Committee on Alberta's Economic Future. Over half of these resolutions were explicitly designed to implement changes requested by Ethics Commissioner Marguerite Trussler during her public testimony to the Committee.
During the Committee's review of the Lobbyists Act, it however became apparent that both the Government and Official Opposition would neglect to seize this opportunity, seemingly favoring continuing to seek partisan advantages over each other.
All but one of my thirteen resolutions was rejected. Only one resolution was even proposed by a member other than myself, which simply called for the stakeholder submissions to be provided to the Ministry of Justice.
Albertans want the powers of shadowy lobbying groups over our political process to be diminished. They also want a transparent system that ensures special interests do not have undue influence on political parties or the government. For this reason, I feel it is necessary to provide my own Minority Report with supplemental recommendations for amendments to the Lobbyist Act.
These changes are designed to improve transparency and to help to prevent special interests from exercising influence within our democracy that is denied to regular citizens.
1. Avoiding and Preventing Conflicts of Interest:
It is not acceptable for individual lobbyists or lobbying firms to leverage personal relationships to ensure special interests have undue influence within our democratic system. As currently written, the Lobbyist Act opens the doors to many real and perceived conflicts of interest. As a result, the public has grown distrustful of the entire lobbying system.
• "Real cooling-off periods." This was an essential part of former Prime Minister Stephen Harper's federal Accountability Act, and it is sorely needed in Alberta. The revolving door between the government and lobbying firms must be closed and sealed. Currently, there is (at best) a one-year cooling-off period in Alberta, which may be waived upon request. By contrast, Harper's federal Accountability Act set cooling-off periods at five years, equating to the maximum length of a government's term. It is not unreasonable to expect that former Ministers, senior political staff, senior public servants, or political party campaign staff be prevented from leveraging personal relationships for a single term of government. More than any other, this change would signal a significant change in the way "politics as usual" is done in Alberta.
• "It's all in the family." It is never appropriate for direct family members of Ministers, MLAs, or their staff to be lobbied by their spouse, interdependent partner, parent, or child. This represents an apparent conflict of interest. While some provisions in the Conflicts of Interest Act prohibit such lobbying, these provisions do not extend to political staff. This apparent loophole was successfully exploited during the recent COVID-19 pandemic. The Lobbyist Act must be amended to prevent this from ever happening again. During the review of the Lobbyist Act, my motion to do so was supported by the Official Opposition, with Government MLAs voting to keep this loophole open.
• "Keep gifts above board." As currently written, the Lobbyist Act does little to ensure transparency or accountability regarding gifts, favours, or benefits that may be offered by lobbyists. The Ethics Commissioner specifically raised this issue in her submission to the Committee. Government members of the Committee voted against a motion to tighten rules concerning gifts, with one staffer referring to such measures as "burdensome red tape." This argument does not pass the smell test. All gifts, favours or other benefits ought to be tracked to prevent the appearance of bribery, influence peddling, or other quid pro quo arrangements.
• "No more Double Agents." Under the current lobbying rules, this government has maintained a close association with many registered lobbyists, many with ties inside the UCP party. For example, a lobbyist sits on the UCP's provincial party board, and another served as returning officer for the UCP's leadership review. This rightfully concerns the public, as it potentially allows lobbyists to exercise undue influence that is denied to regular citizens. The simplest way to address this is to prevent provincial and constituency board members, campaign staff, and other active party officials from registering as lobbyists.
• "Keep parties and government separate." There are currently lobbying organizations with direct ties to the government that explicitly offer professional campaign services. It is an apparent conflict of interest for elected officials to accept such services. While the Conflict of Interest Act wards against them accepting services, there is nothing explicitly in the Lobbyist Act to prevent registered lobbyists from offering such services.
Why does this matter? The prospect of lobbyists taking sides in nomination races or Citizens Initiative campaigns to benefit the government or party leadership is very real. Albertans rightfully want a thick red line separating government business and party business. The simplest way to do this is by banning registered lobbyists from providing political campaign services.
2. Strengthening Accountability:
To restore public trust, proper enforcement of the Lobbyist Act is paramount and must be executed on a timely basis. Ultimately, the Ethics Commissioner (an independent Officer of the Alberta Legislature) administers and enforces the Lobbyists Act. The current Ethics Commissioner has raised concerns regarding the lack of tools to investigate and enforce compliance with the Act.
• "Audit Powers." Too often, the Ethics Commissioner and the Alberta Lobbyist Registrar are dependent on whistleblowers to become aware of Lobbyist Registry inaccuracies or other violations of the Act. This can be addressed by providing the Registrar with the power to take proactive action. The Lobbyist Act must be amended to give the Registrar the power to audit filings to the registry, compel additional information from filers upon request, and impose administrative penalties when necessary. The Ethics Commissioner has specifically requested this approach. The Official Opposition supported my motion to this effect, with only government MLAs voting against these basic accountability measures.
• "Tougher fines." Without enforcement and meaningful penalties, Alberta's lobbying rules are meaningless. Given the current lack of proactive investigative tools, it is extremely unlikely for violations of the Lobbyist Act to be corrected. If the Act is to have any teeth, violations must be met with stiffer penalties. The fine for a first offence should be raised to a minimum of $25,000, with fines for subsequent violations raised to a minimum of $100,000. In addition, repeat offenders should be banned from registering as a lobbyist for a term determined by the Ethics Commissioner.
3. Improving Transparency:
Albertans deserve to know who is trying to influence our elected officials and senior bureaucrats, how much time lobbyists are spending to do so, and when these efforts are successful. Contrary to the Government's messaging, sunshine laws and other proper transparency measures do not constitute "red tape." The public is right to question any government that resists efforts to ensure basic transparency.
Within any democratic government, the bright light of sunshine — public scrutiny — is the best disinfectant against corruption. While Freedom of Information laws have opened many doors to public scrutiny, lobbying regulations have not kept pace. Currently, Alberta's Lobbyist Act does not require lobbyists to disclose whom they lobby, when lobbying has taken place, or any communications with the people they attempt to influence. This must change.
• "Monthly disclosures" It's time to crack open those smoke-filled back rooms once and for all by requiring lobbyists to file a monthly disclosure. These disclosures should indicate the number of hours they have engaged in lobbying. Furthermore, this information must be available to the public in a timely fashion, ensuring Albertans and the media have the opportunity to track all lobbying efforts. The Ethics Commissioner has requested this approach, and my motion to this effect was endorsed by the Official Opposition, with only government MLAs voting against these basic transparency measures.
• "Closing loopholes for lobbying organizations." There are several loopholes that lobbying organizations may exercise to circumvent transparency measures required by the Lobbyist Act. To fill these loopholes, the threshold for disclosure for lobbying organizations should be reduced from 50 hours to 20 hours; the Act should specifically state that prep work counts as part of this threshold, and the Act should prohibit the hiring of outside consultants for prep work to circumvent the threshold.
Lobbying organizations are currently required to disclose the lobbying efforts of all lobbyists who spend more than 50 hours per year lobbying. To remain under this threshold, lobbying organizations may refuse to track the hours spent scheduling or hire outside consultants to conduct prep work. The Ethics Commissioner is aware of such loopholes and is requesting changes. The Official Opposition supported my motion to this effect, but government MLAs voted to keep these loopholes open.
• "Hidden Lobbying." The very purpose of Alberta's Lobbyist Registry is to ensure Albertans know who is lobbying our public officials. However, loopholes within the Lobbyist Act open the door to the possibility of a lobbying organization avoiding disclosure of its efforts by hiding them under the umbrella of another organization. This is easy to fix. Lobbying organizations should be required to provide the Lobbying Registrar with the names and business addresses of all subsidiaries or controlling organizations with which they are affiliated. The Ethics Commissioner supports this approach, and the Official Opposition endorsed my motion to this effect. However, Government MLAs voted against this basic transparency measure.
• "Scheduling language." The Ethics Commissioner has identified some awkward wording in the Lobbyist Act that may allow lobbyists to avoid including time spent arranging meetings as time spent lobbying. This may create confusion for lobbyists and may also create an inconsistency within the Act. The most straightforward fix is to adopt the Ethics Commissioner's recommendation and correct this loophole.