Efforts to regulate lobbying won’t achieve much, says lobbyist James de Candole

Czech lawmakers have been consistently criticized for being prone to lobbying, for instance when it comes to the regulation of gambling, roadside advertising and smoking in public spaces. As part of its efforts to clamp down on corruption, the Czech government is now working on a bill that should regulate lobbying. If approved, this law would define lobbying and require lobbyists to register. RP discussed the proposed legislation with James de Candole, a Prague-based consultant and lobbyist, who believes it will bring no significant improvements.

“The standard objection given to attempts to regulate lobbying thus far – there have been several fairly half-hearted attempts to do this in both Slovakia and the Czech Republic – is that the existing law is sufficient. It may not be applied but it’s sufficient to regulate the bribing of politicians and the criminal activity in relation to public officials.

“This kind of regulation is redundant and I think it will be very difficult to define who is a lobbyist and who is not. I think there is a danger that those who behave in a legitimate fashion today will not behave any differently if they are obliged to appear on a register of lobbyists, while those who behave in a criminal fashion today will not change their behaviour either because they would not be registered.

“The challenge would be of course to capture those who behave badly and are not registered and I’m sure how that’s going to be accomplished.”

Well, one of the reasons behind the new legislation is to make sure than when there is a contact between an MP and someone who tried to persuade them and is not on that register, it will raise alarm…

“Yes, indeed. I of course understand that and it superficially makes sense but I think you have to step back and in the case of the Czech Republic and other countries, you have to abandon most of your preconceptions about the way liberal democracy functions built upon political parties, the balance of powers and so on.

Photo: Barbora Kmentová

“The assumptions that we make are that the MP is being influenced by people acting on behalf of commercial interests. But in my experience here, the so-called lobbyists that you see in the lower house, they are not really trying to persuade members of parliament to do things, they simply go there with a set of instructions which are then carried out. So my view is fairly bleak. I don’t see this is a game between two independent actors; I would say that much of the activity is simply someone delivering a draft of how they want the legislation to appear and how they want MPs to vote, and so on, and members of parliament simply do what they are told. I would not call that lobbying, I would call that instructing.”

But your own firm, Candole Partners, famously broke the state tobacco monopoly back in the early 1990s acting on behalf of a client – how did you persuade the MPs to pass that legislation?

“Thank you for asking that question. It was a long time ago, and things have gotten a lot worse since then. In the early days, everyone was perhaps a lot more optimistic but now I’m certainly more realistic. In that particular case, we were making no progress whatsoever with any of the political parties then in power for one very simple reason – a great deal of the funding for political parties in the early days came from the tobacco industry, and when Philip Morris acquired Tabák and the monopoly, it was very difficult to persuade the Civic Democrats and even the ODA party to change their way of thinking on this.

Photo: Kristýna Maková

“We were able to make progress by a stroke of remarkable good fortune. There was a very dear mid-ranking bureaucrat in the Ministry of Agriculture who I think wanted to get rid of us because he was fed up with us coming in and lobbying him for the ministry to introduce a change in the legislation and send it to Parliament to remove Philip Morris’ production monopoly. He slipped us a photocopy of part of the secret sales agreement between Tabák and Philip Morris with various interesting pieces of information which I then showed to my interlocutors in the government and they responded accordingly: within a very short time, there was a piece of legislation presented to the lower house calling for the end of the monopoly.”

So what does Candole Partners in fact do in the Czech Republic, and how do you do it?

“We do very little of what most people would see as lobbying where we have a clear objective given to us by a commercial client in the context of Parliament where we’d go and try to persuade MPs to vote in a particular way in the committees especially and then in the plenum.

“We do some of that and it’s very difficult to achieve results without being corrupt. Because we are not corrupt, we are generally not very successful. But I would say this: it depends on how you measure success. What we try to do is to drive up the cost of the other side, the cost of them winning. They will usually win but we want to make sure that reputationally-speaking, it will cost them a lot more. That in itself can be valuable for a client.

Václav Klaus, photo: archive of the Czech Government

“I’m not saying we always lose but we do very little work like that now because it’s incredibly difficult to achieve results without being corrupt. Without naming any names, we have been asked over the years numerous times by MPs whether their services are ‘invoiceable’.

The Czech government likes to label itself as an anti-corruption one, and one of the parties – Public Affairs, ironically – ran with strong anti-corruption rhetoric. What do you make out of their efforts in this respect?

“I welcome the rhetoric because it’s the right rhetoric. I say that because I’m very conscious of the fact that your president, Václav Klaus, constantly delivers the wrong rhetoric on the matter of corruption. He always downplays it, he indeed dismisses it. So there is a clear contrast between what President Klaus says and what Prime Minister Nečas says.

“I also think that using the right rhetoric drives up the expectations of citizens and it’s a dangerous game to arouse expectations and then not to deliver upon them. The result of talking up the fight against corruption and not delivering will be worse for the political parties than if they were to say nothing.

“In real terms, I think there is a very genuine effort being made to make it harder for criminal activity in public procurement and so on, and I think the mood has changed. There is some leadership being shown at all levels, not just on the national government level. In my own village, Velká Chuchle, have become much more active in standing up for their own interests. You have probably seen that in most of the country where incumbent political parties are dislodged by citizens’ initiatives. That’s tremendously positive development. Above all, what we need is active citizens who are bloody-minded and who simply say no.

Vít Bárta and Jaroslav Škárka of Public Affairs at the court

Well, they did two years ago at the polls; what happened though is that two MPs of the very party that spoke out strongest against corruption have been sentenced on corruption charges. You said you welcomed the rhetoric but it seems that the action is missing – look for instance at the bearer shares issue which has been singled out as the crucial issue in fighting corruption…

“Well these are two things. The first is what politicians say and what they subsequently do. The fact that elected politicians are corrupt is hardly a surprise to anyone. They will always be corrupt because power corrupts. That’s a law of nature. I don’t think it’s particularly surprising or depressing that a couple of politicians have been found guilty of corruption. Of course, many more should be found guilty. So I think one’s got to be realistic about how politicians are going to behave.

“What troubles me at the time of the elections you refer to was this tremendous hope that was placed in TOP 09 and Public Affairs. You could see that this hope was not based on experience; it was misplaced, if hope can be misplaced. You will recall yourself the tidal wave of enthusiasms for TOP 09 which was essentially based on the trust in one man who perhaps did not have as much power and certainly does not have now.

“On the second issue of the impenetrable secrecy that surrounds many of the companies that win large public procurement contracts and the issue of bearer shares, I believe that it is probably the core issue. It’s maddening, it’s so frustrating to be told over and over again by highly-placed public officials that the law simply does not require them to show any interest in the beneficial owners of the companies who are receiving vast sums of money from the public purse.”