Lobbying Uncovered?

ibidem Press, Stuttgart

Editorial

This series is intended as a publication panel of the Centre of Intercultural and European Studies (CINTEUS) at Fulda University of Applied Sciences. The series aims at making research results, anthologies, conference readers, study books and selected qualification theses accessible to the general public. It comprises of scientific and interdisciplinary works on inter- and transculturality; the European Union from an interior and a global perspective; and problems of social welfare and social law in Europe. Each of these are fields of research and teaching in the Social- and Cultural Studies Faculty at Fulda University of Applied Sciences and its Centre for Intercultural and European Studies. We also invite contributions from outside the faculty that share and enrich our research.

Gudrun Hentges, Volker Hinnenkamp, Anne Honer & Hans-Wolfgang Platzer

Editorial

Die Buchreihe versteht sich als Publikationsforum des Centrums für interkulturelle und europäische Studien (CINTEUS) der Hochschule Fulda. Ziel der CINTEUS-Reihe ist es, Forschungsergebnisse, Anthologien, Kongressreader, Studienbücher und ausgewählte Qualifikationsarbeiten einer interessierten Öffentlichkeit zugänglich zu machen. Die Reihe umfasst fachwissenschaftliche und interdisziplinäre Arbeiten aus den Bereichen Inter- und Transkulturalität, Europäische Union aus Binnen- und globaler Perspektive sowie wohlfahrtsstaatliche und sozialrechtliche Probleme Europas. All dies sind Fachgebiete, die im Fachbereich Sozial- und Kulturwissenschaften der Hochschule Fulda University of Applied Sciences und dem angegliederten Centrum für interkulturelle und Europastudien gelehrt und erforscht werden. Ausdrücklich eingeladen an der Publikationsreihe mitzuwirken sind auch solche Studien, die nicht ‘im Hause’ entstanden sind, aber CINTEUS-Schwerpunkte berühren und bereichern.

Gudrun Hentges, Volker Hinnenkamp, Anne Honer & Hans-Wolfgang Platzer

Foreword

Ever since its early days, the process of European Integration has been accompanied by interest intermediation of societal actors. During the past decades, the scene of EU lobby organizations has been continuously growing. This development and the important role lobbyism plays in EU decision making processes have caused heavy interest among academic researchers. Today EU lobbyism can be seen as one of the most important research fields within EU Studies.

The study at hand is a valuable and innovative contribution to the scientific research in EU lobbyism for several reasons.

Its overall research perspective is to explore the EU’s efforts in making lobbyism more transparent. After years of discussions and contested negotiations, the EU established a voluntary Transparency Register in 2011.

This book is one of the first systematic comparisons of the voluntary Transparency Register of the European Union with the mandatory Transparency Register of the United States. An essential part of the study is shaped by the perceptions of personnel of European institutions, Brussels-based lobbyists, and lobby critics. These qualitative empirical findings, gained by semi-structured interviews, allow for deep insights into the practical working mechanisms of the EU’s Transparency Register, its applicability and efficiency, its problems and shortcomings.

Dealing with the topic of “democratic EU governance―transparency―EU lobbyism,” this book addresses a broad audience of politically interested readers.

Hans-Wolfgang Platzer

Fulda, June 2014

Contents

Foreword

Index of abbreviations

1 Introduction

1.1 Problem statement

1.2 Research objectives

1.3 State of research

1.4 Research question

1.5 Method

1.5.1 Choice of method and implementation

1.5.2 Restrictions of research design

1.5.3 Evaluation

1.6 Structure of the book

2 Conceptual background

2.1 Political systems of the EU and the United States

2.1.1 Political system of the EU

2.1.2 Decision-making in the EU

2.1.3 Political system of the United States

2.1.4 Decision-making in the United States

2.2 Influencing political decision-making

2.2.1 Lobbying

2.2.2 Interest groups

2.2.3 History of lobbying regulation in the EU

2.2.4 Lobbying in the EU

2.2.5 History of lobbying regulation in the United States

2.2.6 Lobbying in the United States

2.2.7 Interim conclusion

2.3 Regulation and registration

2.4 Transparency

3 Comparison of lobbying registration in the EU and the United States

3.1 The European Union

3.1.1 Implementation of the Transparency Register

3.1.2 Legal basis

3.1.3 Instruments of control and penalties

3.1.4 Effectiveness and criticism

3.2 The United States of America

3.2.1 Implementation of the Lobbying Disclosure Act

3.2.2 Legal basis

3.2.3 Instruments of control and penalties

3.2.4 Effectiveness and criticism

4 Result subsumption, discussion, and perspectives

4.1 Conclusion on the comparison

4.2 Discussion

4.3 Incentives for improvement

4.4 Incentives for further research

5 References

6 Annex

6.1 Databases

6.2 Interview manual

6.3 Interviewee overview

Index of abbreviations

ABBREVIATIONS

ALTER-EU Alliance for Lobbying Transparency and Ethics Regulation

BDI Bundesverband der Deutschen Industrie e.V.

(The Voice of German Industry)

BM Burson-Marsteller

CHR Clerk of the House of Representatives

COREPER Committee of Permanent Representatives

CRP Center for Responsive Politics

DG Directorate-General

DLR Deutsches Zentrum für Luft- und Raumfahrt

(German Aerospace Center)

ECJ European Court of Justice

ECSC European Coal and Steel Community

EP European Parliament

ETI European Transparency Initiative

EU European Union

FARA Foreign Agents Registration Act

FRLA Federal Regulation of Lobbying Act

GAO US Government Accountability Office

GSC General Secretariat of the Council

HLOGA Honest Leadership and Open Government Act

IIA Interinstitutional Agreement

JTRS Joint Transparency Register Secretariat

LDA Lobbying Disclosure Act

LD-1 Lobbying registration (United States)

LD-2 Activity-related and financial reports (United States)

LD-203 Certain contributions reports (United States)

MEP Member of European Parliament

MP Member of Parliament

OECD Organisation for Economic Co-operation and Development

OLP Ordinary Legislative Procedure

PAC Political Action Committee

ROIR Register of Interest Representatives

SOS Secretary of the Senate

TEU Treaty on EU

TFEU Treaty on the Functioning of the EU

TR Transparency Register

WWF World Wide Fund for Nature

Preamble

The motivation for bringing about this book originated from the general question whether lobbying proves to be as opaque, influential, and malicious as the image of the profession seems to be publicly maintained, and which measures of control can be imposed. Considering that the mandatory registration system installed in the United States is obviously perceived as a role model for the disclosure of lobbying, it has been a key incentive for the author to examine it in detail, which further allows identifying possible weaknesses of this model register as well. Moreover, by recommending measures of improvement, the author actively participates in the discussion about the revision of the European Union’s Transparency Register. Special thanks are dedicated to all interviewees, who have contributed to this book through personal, e-mail, or phone interviews or simply by providing additional information. Particularly with regard to personal expertise with registration mechanisms, the scope of research of this book and its constructive analysis would not have been possible without the inputs from key respondents. The reason for some interviewees to be quoted in anonymity is not only based on the fact that lobbyism is still a sensitive issue, but also that, in some cases, views are personal and cannot be authorized as an official view of the entity represented by the individual. Therefore, especially the statements made by the interviewed Council Official cannot be regarded as an official opinion.[1]

1 Introduction

1.1 Problem statement

Today lobbying tends to be approached as a rather mysterious and nontransparent profession, which seeks to tailor legislation to its ends and is seen to occur as a gray area of politics.[2] Several regulative mechanisms have been implemented in the past to monitor such activities in various democratic countries in an effort to increase the transparency of lobbying and to enhance an open dialogue between political leadership, interest representatives, and the public. One of the most recent mechanisms is the Transparency Register (TR) of the European Union (EU), which was launched in 2011 jointly by the European Parliament (EP) and the European Commission as part of the European Transparency Initiative (ETI). Despite the ambitious approach and an increasing amount of registrants, regulation remains voluntary. The register lacks a clear and detailed definition of ‘the lobbyist’ as such, disclosure requirements are partially misleading, and sufficient incentives for registration are still intensively debated. In contrast, the mandatory register in the United States is often referred to as one of the most advanced concepts of lobbying disclosure and frequently serves as an argument used by critics of the EU’s voluntary approach. The US register was a result of the Lobbying Disclosure Act (LDA) in 1995; however, it is still imperfect in its conception. The study at hand contrasts both approaches by their scope and legal basis, identifies current weaknesses and strengths, and points out criticism. Based on these findings and by the involvement of personal expertise of lobbyists, EU and US officials, scholars and lobby critics, this thesis identifies areas of the European model that require improvement. The book is also designed to enlighten its readers that even if the profession of lobbyists still maintains a huge influential power on political decision-making, it is not necessarily as opaque and negative as usually conveyed, if one only takes a closer look.

The findings of this book can be a complementary input to the revision process of the TR for various reasons: First, since the European register has been launched in 2011, it is still relatively new and without a doubt has still not been examined to a satisfactory extent. Second, a policy process created and shaped by 28 Member States obviously requires critical input from its citizens. Third, specific measures, regulations, and instruments of a certain political system should permanently be contrasted with other existing concepts, which is realized by this book through its analysis of a North American register. Finally, as research will disclose, resources of the Joint Transparency Register Secretariat (JTRS) are limited. Thus, the possibility for the conduction of broader research related to the register is assumed to be restricted as well.

1.2 Research objectives

The study at hand is not designed to merely provide a comparison between two different registration systems, it also aims at extending its scope beyond. Its unique approach lies in its combination of a detailed comparison between a voluntary TR (EU) and a mandatory register (United States), complemented by a critical discussion on the European registration method in particular. Therefore, this work is one of the first to contrast the US registration system with the TR as the most recent and advanced disclosure mechanism in the EU. An essential part of the discussion is designed to critically and constructively formulate amending options for the European system, through input and experience from personnel of European institutions, Brussels-based lobbyists, and lobby critics. Beyond that, this book will also formulate incentives for future research and identify future perspectives. Due to its focus on the EU, this thesis goes beyond previous research in that it discusses the extension of access passes to the Commission and the possibility of including the Council of the EU as the third official EU operator of the register. The first published official study about the legal basis of a mandatory register in the EU will also be considered. Further scientific intention of this book is to convey a preliminary general understanding about the concept of lobbying and related activities with respect to the differing political preconditions in the democratic systems of the EU and the United States.

This book will provide an overview of the particular historic developments of lobbying regulation, differentiate between specific characteristics of both the registers, and describe strengths and weaknesses inherent to both approaches. With regard to their legal basis, it points out the legal prerequisites, which both approaches require, and allows to gain insight into the daily applicability of the EU register. Accordingly, it deduces from that where the European concept still leaves room for amendments. This study is addressed to scholars, academics, interest representatives, and members of the public with a general interest in lobbying regulation or a concern on regulative mechanisms in the EU and the United States in particular. Especially in terms of the current revision procedure of the European TR, this thesis is directed toward individuals of EU institutions and designed to serve as an inspiring input to the debate.

1.3 State of research

This chapter will give a brief overview of important theories and key literature related to this book. Existing examinations and theories about concepts of lobbying and lobbying registration range from a variety of approaches: They include Rinus van Schendelen’s perception of a unique ‘Brussels method’ of interest insourcing; the assumption of Hix, Høyland, and Buholzer that interest procurement in the EU has to respect a specific multilevel order; Sebaldt’s concept of dominating issue networks in the United States; and the theory of Kraft that lobbyists overseas have nearly gained a shared decision-making competence. Especially with regard to the applicability of the US register to the TR and a comparison of both in particular, scientific theories remain rather rare. While some scholars have contrasted lobbying regulation in the EU with the United States,[3] comparisons often remain on a rather general and superficial level and do not examine both the registration systems in detail. The current state of information shows that little literature has focused on the TR. Few authors have dedicated research to the EU’s latest register; the latter is rather addressed in scientific reports and short essays, if at all. Especially in terms of the legal basis of this register, the first official scientific study was launched in June 2013. Thus, scientific expertise here has limited validity.

A key report among the literature analyzed for this book is the Annual Report of 2012 of the JTRS, since the latter is not only the TR’s official operator but furthermore a key institution in the context of this work. Furthermore, critical reports such as “Dodgy Data. Time to fix the EU’s Transparency Register” (2012) and “Rescue the Register! How to make EU lobby transparency credible and reliable” (2013) are considered. Both have been published by a representative Brussels-based lobby critical organization, namely the Alliance for Lobbying Transparency and Ethics Regulation (ALTER-EU). The JTRS report mainly concentrates on the effect of the register after its first year of running in a self-reflective and self-critical way, and gives an overview on aspects to be possibly included into the register’s review process. In contrast, both reports of ALTER-EU mainly focus on the deficits of the register. Both reports are rather one sided.[4] However, the thesis at hand will consider both views equally.

Key literature providing a foundation for this study are the book by Eising and Kohler-Koch (2005), defining approaches and tactics of interest representatives based on the European multilevel system of governance, as well as the findings of Eising and Lehringer (2010) with a more distinct focus on interest groups. The latter are complemented by a wide-ranging analysis of EU lobbying, published by Michalowitz in 2007. Also Coen and Richardson (2011) elicit the new volume of interest representation and newly developed tactics in the EU, whereas Hix and Høyland (2011) provide a comprehensive overview of the system of the EU. Due to its focus on the EU’s latest register version, a recent study of Gentili (2013) is one of the most current resources and an inspiring work on which this research is developed. Likewise, the research by Kraft (2006), who compares previous lobbying regulation in the EU to similar structures in the United States, is an essential input. The work of Berry (1997) provides a detailed overview of interest groups on the other side of the Atlantic, which is complemented by the publication of Rosenthal (1993), who broadly defines characteristics of US lobbyists and their profession. Finally, Holman (2008, 2009) and Holman and Luneburg (2012) critically approach both concepts of disclosure and previous reforms.

1.4 Research question

The scientific aim of this book is to contrast the registration system of the EU with that of the United States, and to measure its effectiveness and efficiency. In the context of this book and as defined by the author, effectiveness refers to possible effects caused by register-linked perception, legislation, accessibility, handling, or technical conditions that can lead to certain consequences. However, the latter do not necessarily have to be related to efficiency. Efficiency alludes to register-linked perception, legislation, accessibility, handling, or technical conditions that may evoke more efficient conditions than before, such as by saving time or work.

Hereby, the general research question is as follows:

· How effective and efficient is the EU’s TR in comparison to lobbying registration in the United States, and to what extent can both the effectiveness and efficiency of the EU register be increased?

For a complementary analysis, the objects of research shall be examined pursuant to the following underlying subquestions:

· In which facets do both registers differ and resemble each other?

· Can the US approach be taken as a reference model for the EU register?

· How do relevant actors and addressees of influence assess the EU register?

· Accordingly, should the EU register become mandatory?

· As regards the EU register, where can incentives for improvement be identified?

1.5 Method

The following chapter is designed to explain the methods applied for the research of this study. According to the particular research questions, the methodical approaches will each be presented in brief. Complementarily, a list of indicators will be defined with regard to ‘measuring’ the research aspects at hand. Further content of this chapter is formed by a detailed enumeration of interviewees and a display of restrictions of research design.

1.5.1 Choice of method and implementation

The study relies on an empirical-analytical approach and employs the following methods to answer the respective research questions:

· In which facets do both registers differ and resemble each other?

Answers will be generated by a detailed comparison, which to a major extent will be based on document analysis and the examination of both registers online, as well as some background information generated by interviews. To simplify the complexity of extensive comparisons, systems will be examined in succession, starting with the EU. To summarize the results, the two tables are designed for giving a better overview of differences and similarities of both registers.

· Can the US approach be taken as a reference model for the EU register?

· How do relevant actors and addressees of influence assess the EU register?

Input for both questions will be acquired by actors’ perception complemented by an analysis of literature, legal documents, and official studies and reports. Actors’ perception is provided by lobbyists, political representatives from the EU and the United States, EU lobbying experts, and watch dog representatives. Answers will be generated by qualitative semistructured interviews based on a partly standardized interview manual. Equally important sources are speeches of EU officials and visual materials, such as the movie “The Brussels Business.”[5]

· Accordingly, should the EU register become mandatory?

Even if a variety of literature and official reports have already discussed this question to a major degree, the experience, insights, and positions of EU key institutions as well as interest representatives is necessary to answer this question. In particular, the qualitative actors and expert interviews will form an essential basis for discussion.

· Accordingly, where can incentives for improvement be identified?

Inspiration for key starting points to improve the EU register will be mainly generated by actors’ perception via qualitative interviews and e-mail requests. This method will be complemented by research of literature, legal documents, as well as official reports and studies, and by examination of particular registers online. Registers will be examined by content, accessibility, and legal basis.

· How effective and efficient is the EU’s TR in comparison to lobbying registration in the United States, and to what extent can both the effectiveness and efficiency of the EU register be increased?

This question will be answered by the four subquestions and, thus, by the aforementioned methods. Where necessary, research will be complemented by further literature research, including the analysis of legal documents, scientific articles, reports, studies, and official governmental information accessible online.

Table 1. Classification of tendency indicators