At a glance: government lobbying in Brazil

Regulation of lobbying

Is lobbying self-regulated by the industry, or is it regulated by the government, legislature or an independent regulator? What are the regulator’s powers? Who may issue guidance on lobbying? What powers of investigation does the regulator have? What are the regulators’ or other officials’ powers to penalise violators?

Lobbying is undergoing regulation in Brazil. The activity is currently performed mainly on the grounds of article 5, XXXIV, sub-paragraph (a) of the Constitution, which establishes the right to petition by granting everyone the right to represent their interests and to advocate against illegalities and abuse of power. The Constitutional right of petition ensures that every citizen and sector has their demands and pleas assessed by the government, which indirectly confers on everyone the right to lobby. As such, although no legislation in Brazil regulates lobbying itself, several rules seek to set the parameters for public-private sector interaction. These rules, combined with the right to petition the government, are understood as the framework for lobbying in Brazil.

Due to cases of corruption and lack of transparency in interactions between private individuals and public agents, the aim to regulate lobbying came back to the spotlight more recently, after remaining on the agenda for Congress for over 20 years, when the first bill to regulate the activity was submitted to the Senate.

In July 2022, Law No. 14,365/22 altered the Brazilian BAR Association Act to establish that the lawyer may contribute to the legislative process, and to the drafting of norms for the executive, judiciary and legislative powers. This was a significant step because the norm explicitly authorised lawyers to perform the lobbying activity.

Just recently, in November 2022, another major development occurred when the House of Representatives approved Bill No. 1,202/07. The text as approved by the House reinforces, among other elements, the legitimacy of the activity, establishes general rules of conduct with a focus on transparency, and lists punishable misconduct. Now, this text must be analysed, discussed, and voted by the Federal Senate. If there are alterations to the content, it must be voted on once again in the House of Representatives, as the Brazilian legislative process demands.

Meanwhile, the main binding rules for lobbyists in Brazil are:

• the Code of Conduct of the High Administration;
• the Clean Company Act (Law No. 12,846/2013);
• the Electoral Code and Campaign Funding Rules;
• the Internal Rules of the House of Representatives and the Senate;
• Law No. 8429/92 – the Administrative Misconduct Law; 
• the Penal Code, in particular articles 321, 332 and 333, respectively on the defence of private interests as a lawyer, influence dealing and active corruption; and
• the Brazilian BAR Association Act, which suffered a change in July 2022 to establish that the lawyer may contribute to the legislative process and to the drafting of norms for the executive, judiciary and legislative powers.

When discussing lobbying regulation, it is important to note the role played by Operation Car Wash (a criminal investigation carried out by the Federal Police of Brazil that began as an investigation into money laundering and expanded to corruption at state-controlled oil company Petrobras and other private companies) in raising awareness about lobbying malpractice and placing discussions about transparency, legitimacy and lobbying activities on the national agenda daily.

Although the aim to regulate lobbying has only been a focus recently, it has been on the agenda for Congress for over 20 years, when the first bill to regulate the activity was submitted to the Senate. Since then, several bills have been proposed and the one leading the legislative process with the strongest support is Bill 1202/07. It is currently on the floor to be voted by the plenary of the House. In 2019, Bill 1202/07 was docketed on the daily agenda more than 10 times but has not yet been voted on.

Another direct consequence of lobbying awareness is the increasing number of private associations created to unite lobbyists and discuss the regulation of the activity. Most of these associations have a binding internal code of conduct that may serve as an informal marker of good conduct in the market. This voluntary membership may be interpreted as tentative self-regulation. 

Bill 1,202/07 encourages organisations to adopt integrity procedures to better regulate auditing, transparency, interest conflict and incentives to report misconduct.

Is there a definition or other guidance as to what constitutes lobbying?

There is no legal definition of lobbying. However, in 2018, lobbyists were included in the Brazilian Classification of Occupations by the former Ministry of Labour under the title of Institutional and Government Relations professionals. This recognition did not aim to define or regulate the professionals; it only featured to encompass these professionals in the Ministry of Labour list of professional activities.

In Brazil, the term ‘lobbying’ has assumed a depreciatory meaning, related to the act of wrongdoing. Consequently, all draft and issued bills have avoided the expression. It is more common in Brazil for lobby professionals to be named as both government relations or institutional and government relations professionals.

In Congress and in the executive branch, some definitions are under discussion now that regulation is increasingly advancing. Bill 1,202/2007 is the leading one and defines lobbying as the interaction between a private individual or a legal entity, and a public agent when aiming at influencing the decision-making process within: (1) formulation, implementation and evaluation of government strategy, public policy, administrative act, regulatory determination or related activities; (2) public bids and contracts and; (3) drafting, alteration, or revoking of laws and other normative acts.

Is there voluntary or mandatory registration of lobbyists? How else is lobbying disclosed?

There is no mandatory registration for lobbyists in Brazil, but there is voluntary registration in Congress for lobbyists who represent public agencies or civil entities recognised and authorised by the Senate or the House of Representatives’ board of directors. This register is intended to facilitate access to Congress. It does not entail any disclosure to the entities and professionals accredited. Each federal body or civil entity is limited to two representatives per House. Only associations, trade unions and entities with national representatives have the right to register their representatives in Congress. Recently, the Senate system changed so that only government officials may register.

Bill No. 1202/07 does not require lobbyists to register, and it establishes a minimum disclosing rule for lobbyists to name who they are representing when engaging with politicians or public officials.

What communications must be disclosed or registered?

Decree No 4.334/2002 and Law No. 12,813/13 provide some rules regarding the matter. The Decree regulates hearings conceived to private individuals by public agents from the federal public administration, the autarchies and the federal public foundations, whereas article 11 of the abovementioned law determined that states’ ministers, occupants of special nature posts, presidents, vice-presidents and directors of autarchies, public foundations, public companies, and mixed-economy partnerships, those who work in higher direction and advising posts, and those who have access to any kind of privileged information within the public administration must display their agendas daily. Although those rules assure transparency to a degree, there is no specific lobbying registration, in Brazil, and, therefore, no set rules for lobbying disclosure.

Bill 1,202/2007 may change this scenario, given that articles 10, 11 and 12 bring several rules to the disclosing of records from the meetings with a lobbying purpose. The new procedures bind the lobbyists to provide information about participants, the subject, and the nature of the representation. The participating public agent must formalise the content of the meeting through a written document, in four working days following the hearing, as well as they must provide the public entity information about hospitality in six working days from the event, with eight working days to rectify the information, if necessary. The public entity has 10 working days from the meetings to publicise the information, which should remain available for at least five years.  

Which entities and persons are caught by the disclosure rules?

Disclosure rules are under development now that the lobbying regulation is moving forward. In the approved text of Bill No. 1,202/07, those apply to the lobbyist, the public agent, and the entity to which this agent belongs to. Therefore, if the Bill passes the Federal Senate’s voting, these are the people who are going to held accountable in the case of non-compliance.

What information must be registered or otherwise disclosed regarding lobbyists and the entities and persons they act for? Who has responsibility for registering the information?

Brazil does not regulate lobbying. As a consequence, lobbyists do not need to disclose information about their services, engagement, clients or finances. Bill 4,391/21 seeks to establish the obligation to share information mainly with regards to meetings with government officials. 

When must reports on lobbying activities be submitted, and what must they include?

The rules predicated in Bill 1,202/07 demand active transparency on the disclosure of data on interactions between lobbyists and public agents. If the bill is approved into law in its current form, the information provided after a hearing must include the following: (1) date of the meeting; (2) participants’ identification; (3) identification of those whose interests are being represented; and (4) subject description.

The bill exempts the publicising of market and commercial information that can compromise direct investments, economic development, industrial activity and other factors essential to maintain a competitive environment. In addition, it also requires previous consent from those whose representation stands for a social cause or for the accomplishment of a goal from a non-profit organisation regarding the publicising of sensible data and strategies.

How is the registration system funded?

There is no financing system for lobbying registration as there is no mandatory registration for lobbyists in Brazil. The only registration available for lobbyists are two separate systems implemented in the House of Representatives and in the Senate to simplify access to these houses, but it is free of charge.

Is access to registry information and to reports available to the public?

There are no disclosure rules for lobbying in Brazil. Therefore, there is no data regarding registry information and reports on lobbying activities to be released to the public. Upon request, the House and Senate registration systems will disclose the entities registered in their files, but not the name of those representing them.

In the executive powers, it is mandatory to publicise the high authorities’ agendas, so the civil society has access to the participants identification, although the content is not fully displayed.

Is there a code of conduct that applies to lobbyists and their practice?

Lobbying is not regulated in Brazil and therefore does not have a specific code of conduct. Nevertheless, several norms that regulate political agents and public officials also apply to lobbyists. When combined, all these rules result in a framework that is mandatory for lobbyists in Brazil.

For instance, the Code of Conduct of the High Administration is an indication of the limits imposed by the legislature on the private and public sectors about dispensing gifts and financing events, lunches and trips. The Clean Company Act imposes stricter sanctions on private companies for actions carried out against the government by introducing strict liability for private companies. All procedures related to the legislative process are described in the Internal Rules of each house of Congress. In addition, Law No. 8429/92 addresses the actions that are considered administrative misdemeanours and the Penal Code prescribes crimes related to public-private interaction.

Most private associations of lobbyists have a binding code of conduct for their members. Bill 4,391/21 also encourages them to have one.

Are there restrictions in broadcast and press regulation that limit commercial interests’ ability to use the media to influence public policy outcomes?

Brazil does not have specific media regulations on lobbying. There are broad limitations, and commercial interests’ use of the media to influence public policy outcomes is not specifically addressed.

Brazilian consumer law establishes limits on all marketing campaigns, such as the prohibition of misleading and offensive advertising. Confusing consumers’ perception of products, etc, through advertising is also prohibited.

The media is self-regulated, and the National Council for Advertising Self-Regulation (CONAR) is responsible for creating and enforcing advertising-related rules. CONAR Resolutions do not address the influence of propaganda on public policy outcomes.