Williams on lobbying bill

writes in the Dom Post:

Green MP Holly Walker’s Disclosure Bill is being sold to the public with the best of intentions.  But as drafted, it constructs such a barrier between MPs and members of the public that it will take us closer to the American-style lobbying industry the bill’s  supporters are hoping to avoid.

I agree with Jordan on this. Often a perverse consequence of regulation in an area, is that it drives out the “good” and only leaves standing those absolutely determined.

Take electoral finance laws and regulations. The US has the most corrupt political finance system in the OECD, yet it has the most regulated. They cap maximum donations, require every donation to be listed online instantly, and the effect has been that lobby groups set up PACs so they can still donate, while Joe Average is scared off.

The bill makes lobbying activity a criminal offence for all but those preregistered with the auditor-general.  It requires all communications, even informal conversations, to be publicly disclosed with the client’s identity and interests detailed.

The bill is badly drafted.  For example it defines “lobbying activity” so widely that it covers any business writing to an MP.

Further, it covers even the most modest or ancillary advocacy.  An accountant emailing an MP about a tax policy on behalf of a client will be committing a criminal offence unless the accountant is a registered lobbyist.  A fine of up to $10,000 for individuals and $20,000 for companies can be imposed.  Even a local farm manager complaining to the local MP at the supermarket about emissions policy would be covered.

The bill doesn’t just cover businesses.  The inclusion of voluntary organisations mean a single email sent by a manager on behalf of a local RSA is illegal unless the manager is also registered as a “lobbyist”. 

Some of these flaws can be fixed at select committee. But it is possible some can not be. 20 years ago almost all communications with MPs were face to face meetings in their offices. Today you engage with MPs in person, at airport lounges, at functions, on Twitter, via e-mail, via Facebook etc.

The Greens’ bill risks our open and accessible political system. As Kiwis we’re fortunate in our ability to easily access our elected representatives.  Most MPs run constituency clinics.  It’s not hard to have half an hour of an MP’s time. We are a small country with very accessible MPs.  Why introduce “big city” barriers between the people and their representatives?

Arguing  the bill is good because it pursues “transparency” is naive.  A law that requires prior registration and public disclosure of every communication with an MP for anyone with a financial interest in lobbying a policy will disincentivise even emailing politicians.  That means it’s harder for MPs to get the information and insights they need.

That’s not good for democracy.  If the bill becomes law, policy arguments will soon turn on who is making them instead of the merits.

That is a real risk.

We want our MPs receiving free and frank briefings from those whom proposed laws are likely to impact. Historically, communication with an MP has been privileged for that reason.  The attorney-general has identified the bill as conflicting with the right for freedom of expression.  Unpopular organisations or causes risk being ostracised.

The Greens will incentivise New Zealanders to use fulltime lobbyists.

Because the bill covers even the most minimal advocacy, it will drive more businesses and organisations to use professionals.  We should protect our culture of picking up the phone and calling our MP.

From my point of view and that of my firm, Holly Walker’s bill will be great for business.  It will push Wellington toward Washington.

But as a constitutional lawyer and New Zealander, I believe the bill should be rejected.

I think the bill is well intentioned, and my preference is to amend it rather than reject it. but it will be challenging to find a compromise that doesn’t have the unintended consequences Jordan writes of.

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