Campaign volunteers, workers and fundraisers who helped candidates and political parties during Canada's 42nd general election may be surprised to learn they face restrictions should they wish to wish to lobby the politicians they helped to elect. Outgoing Members of Parliament and departing government employees are also subject to significant lobbying restrictions. To avoid contravening the rules, these individuals may wish to obtain legal advice before communicating with federal officials. A potential employer or client might also obtain legal compliance advice before hiring a former campaign worker, ex-MP or exiting government employee.
These restrictions reflect the cumulative effect of the Lobbying Act, the current Lobbyists' Code of Conduct, the new Lobbyists' Code of Conduct, and the Conflict of Interest Act. Expert advice is often useful to help navigate these complex and overlapping rules.
Restrictions on Former Campaign Volunteers and Workers
A former campaign volunteer or campaign worker who engages in consultant lobbying or in-house lobbying is required to comply with the Lobbyists' Code of Conduct. Both the current Code and the new Code (expected to take effect before the end of 2015) prohibit a lobbyist from placing a public office holder in a conflict of interest. The Federal Court of Appeal has interpreted this rule as prohibiting the lobbying of a government official who feels a personal sense of obligation to the lobbyist:
"Where the lobbyist's effectiveness depends upon the decision-maker's personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed."
Many campaign volunteers, political fundraisers and other partisan activists are surprised to learn that their freedom to lobby might now be curtailed because their political activities created a sense of obligation felt by successful MPs and new Ministers. While not all political activities are significant enough to trigger lobbying restrictions, heavier involvement in support of a politician, such as organizing a fundraising event, assisting in debate preparation, holding a strategic role on a campaign team, or serving as a director or officer of an Electoral District Association, would be sufficient to prohibit the campaign activist from lobbying the politician and the politician's staff.
Work on a regional or national campaign (e.g., speechwriter, strategist, media spokesperson and other key roles) can lead to even wider restrictions on lobbying – a prohibition on lobbying the party leader, the leader's staff (for example, the entire Prime Minister's Office), and other public office holders.
The restrictions on lobbying would apply whether an individual volunteered or was paid for services to the politician's or the political party's campaign.
While the sense of obligation felt by a politician – and thus the need to restrict the supporter from lobbying him or her – will diminish over time, the Commissioner has suggested that the restriction might last for as long as five years, that is, until after the next federal general election.
A former campaign volunteer or worker who violates the restriction could face enforcement proceedings under the Lobbyists' Code of Conduct. The Commissioner has the power to initiate an investigation, to require the attendance of witnesses, to compel the production of documents, and to take evidence under oath. If she concludes that the Lobbyists' Code of Conduct was contravened, then her report naming the individual will be tabled in both Houses of Parliament and posted on the Internet.
Based on experienced compliance advice, former campaign volunteers/workers and their employers and clients can adopt solutions that conform to the Lobbyists' Code of Conduct.
- Former campaign workers and volunteers can focus on non-lobbying activities and on lobbying public office holders who would not be in conflict of interest situations.
- Employers can structure the duties of their employees to ensure adherence to the Code.
- Clients can require that lobbying on their behalf is fully Code-compliant.
Restrictions on Former MPs and Former Ministerial Aides
Members of Parliament, Senators and staff members in the offices of Cabinet Ministers (including employees of the Prime Minister's Office) are Designated Public Office Holders under the Lobbying Act. As such, upon leaving office each is subject to a five-year lobbying ban.
Contravention of the five-year lobbying ban is an offence, punishable by a maximum fine of $50,000.
Application of the five-year prohibition is complex, and depends on the specific circumstances in which a former MP or former ministerial aide is working. If employed by a business corporation, a former Designated Public Office Holder is permitted to engage in federal in-house lobbying during the five-year period, provided the lobbying activities consume less than 20 per cent of his or her employment duties. However, the outcome is dependent on the employer's structure: a former Designated Public Office holder who works for a partnership, a charity or a non-share-capital corporation is not permitted to engage in any amount of federal in-house lobbying (for the same five-year period). Consultant lobbying in any amount is also prohibited.
Former Cabinet Ministers and former ministerial aides are subject to separate and additional post-service restrictions under the Conflict of Interest Act. These restrictions number five in total (six for former Ministers) including a prohibition against making paid or unpaid representations for another person or entity to any federal department, organization, board, commission or tribunal with which the former official had direct and significant official dealings during his or her last year in office. This conflict-of-interest rule is often confused with the five-year lobbying ban, but the two restrictions operate quite differently, in part because making representations is not the same as engaging in lobbying. Further, each restriction is overseen and enforced by a different commissioner.
Employers, clients, and former MPs, former Ministers and former Ministers' staff members can seek expert advice to navigate these complex post-service restrictions. Among positive outcomes:
- Employers can arrange job duties so that affected individuals do not engage in prohibited lobbying or make prohibited representations during the respective periods of restriction.
- Restricted former public office holders can structure their careers based on non-restricted activities (e.g., strategy development, lobbying outside federal jurisdiction).
- Business corporations can adopt internal processes and protocols to help ensure that former Designated Public Office Holders in their employ remain below the 20-per-cent threshold.
- Clients can require that consultants' activities are fully compliant with both Acts.
Right to Counsel
All individuals, corporations and organizations have the right to seek advice from and be represented by legal counsel in dealings with the Commissioner of the Lobbying, the Conflict of Interest and Ethics Commissioner, and their respective offices.
It is prudent to seek expert legal advice immediately upon being contacted by the Office of the Commissioner of Lobbying or the Office of the Conflict of Interest and Ethics Commissioner, and not to answer questions without benefit of legal counsel and representation.
One reason to exercise caution is that statements made, emails sent, and other communications to either commissioner's office can be used against a lobbyist or a former public office holder in an examination under the Conflict of Interest Act or an investigation by the Commissioner of Lobbying.
Please contact Guy Giorno or any other member of our lobbying-compliance team for more information on:
- Lobbying by former campaign workers, campaign volunteers and other individuals who were engaged in partisan political activity.
- Post-service restrictions on former MPs, former Ministers and former Ministerial staff members.
- Hiring a former MP, Minister or Ministerial aide.
- Preparing for and responding to examinations by the Conflict of Interest and Ethics Commissioner and administrative reviews and investigations by the Commissioner of Lobbying.
- Compliance protocols and policies for businesses, organizations and consulting firms.
- Lobbying legal compliance audits.