New guidelines issued by Canada’s Conflict of Interest and Ethics Commissioner will force further separation of lobbying and political financing[1]. The rules should be reviewed by all companies, associations and individuals that have dealings with federal politicians, government departments and agencies.
While the guidelines apply directly to Ministers, MPs, ministerial aides and other federal public officials, they must be read in conjunction with the Lobbyists’ Code of Conduct. A lobbyist would violate the Code by making a political contribution that causes a federal politician or other federal official to breach the guidelines.
At least four different authorities govern the relationship between political financing and lobbying within the federal jurisdiction:
- Conflict of Interest Act
- Conflict of Interest Code for Members of the House of Commons
- Lobbyists’ Code of Conduct
- “Fundraising and Dealing with Lobbyists: Best Practices for Ministers, Ministers of State and Parliamentary Secretaries,” Annex B to Accountable Government: A Guide for Ministers and Ministers of State[2].
The new guidelines clarify the application of the Conflict of Interest Act, and were issued simultaneously with a companion advisory opinion on the Conflict of Interest Code for Members of the House of Commons[3].
According to Rule 8 of the Lobbyists’ Code of Conduct, “Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.” This rule prohibits a lobbyist from taking action that would place a public office holder in a conflict of interest[4].
Meanwhile, the new guideline confirms that a federal Minister, Parliamentary Secretary, minister’s aide or other public officer holder:
- Should not solicit political contributions[5] from a person[6] with whom he or she, or his or her department or agency, has had official dealings or anticipates doing so.
- Must recuse himself or herself from any discussion, decision, debate or vote concerning a person who has previously made a political contribution.
- Must not solicit or accept political contributions from a person who has lobbied or is likely to lobby him or her, or his or her office or department.
- “[M]ust take particular care when lobbyists or other stakeholders become involved in political fundraising activities organized by [his or her] electoral district association or political party.”
In the case of a Member of Parliament:
- The MP must not solicit political contributions from a person if he or she sits on a House of Commons committee that has dealings with the person[7].
- The MP’s political fundraising should not target any organizations or individuals with which the MP anticipates having official dealings in his or her capacity as a Member of Parliament, including in the context of committee work.
Previously, the Conflict of Interest and Ethics Commissioner had held that the conflict-of-interest restriction on soliciting political contributions applied only to contributions personally solicited by a public office holder[8]. However, that interpretation pre-dated the Commissioner’s new guidance (summarized above) and pre-dated the instructions in “Fundraising and Dealing with Lobbyists: Best Practices for Ministers, Ministers of State and Parliamentary Secretaries.”
Further, the restrictions on a public office holder’s or MP’s official dealings with persons who have made political contributions apply regardless of whether the office holder or MP personally solicited the contributions.
While the Conflict of Interest Act applies only to federal officials, and the Conflict of Interest Code for Members of the House of Commons applies only to MPs, persons who deal with the Government and with politicians have an interest in avoiding conduct that would place an MP or official in a conflict of interest. As previously mentioned, placing an MP or official in a conflict of interest is a contravention of the Lobbyists’ Code of Conduct. In any event, a company or organization that wants to maintain positive relationships with government will avoid anything that could place a government official offside of the ethical rules that bind the official.
As an aside, the restrictions on soliciting political contributions, on targeting persons to make contributions, and on having official dealings with political contributors and people engaged in political fundraising, have no relation to the rules governing gifts and benefits to public officials. (The Commissioner has held that a political contribution does not further a politician’s personal or private interest, though this conclusion is not free from doubt[9]). Instead, the apparent rationale for the restrictions is to prevent the misuse of one’s office to solicit contributions[10] and to ensure that contributions and fundraising (including making them, declining to make them, and soliciting them) do not affect the even-handed discharge of an office holder’s public duties[11].
Note that the Commissioner’s guidance and advisory opinion also address MPs’ and officials’ involvement in charitable fundraising. This article confines itself to the impact on political contributions.
Practical Implications
Any individual who has dealings (or anticipates having dealings) with the Government of Canada or with a Member of Parliament should exercise caution before making a federal political contribution or assisting with political fundraising.
In these circumstances it might be prudent to consult a legal advisor who possesses expertise in lobbying law and public-sector conflict of interest law.
[1] Canada, Conflict of Interest and Ethics Commissioner. “Fundraising and the Conflict of Interest Act” (Nov. 2013).
[2] This document sets out the expectations placed by the Prime Minister on his Ministry. It does not have the force of law.
[3] Canada, Conflict of Interest and Ethics Commissioner. “Fundraising and the Members’ Code.” Advisory Opinion. (Nov. 20, 2013).
[4] Democracy Watch v. Campbell, 2009 FCA 79, [2010] 2 F.C.R. 139, at para. 48.
[5] Federal law (Canada Elections Act) requires that all political contributions be accepted by the agents of riding associations, political parties, candidates, nomination contestants and leadership contestants. This rule does not mean that a contributor must physically hand his or her cheque to the agent, but that all contributions must be turned over to the agent for deposit into the bank account and nobody may keep any part of the money being contributed.
[6] Under the Canada Elections Act, federal political contributions may only be made by individuals. Corporations are not permitted to contribute. The Commissioner’s guidance does not directly address contributions made by individuals who are associated with (i.e., are employees, officers or directors of) a corporation or organization that in turn has dealings with a public office holder or his or her department or agency. The prudent course is to assume that the conflict of interest restrictions apply to a contribution made by (or solicited from) an individual associated with a corporation or organization the same as if the contribution were made by (or solicited from) the corporation or organization itself.
[7] See note 6 on individuals associated with companies and organizations that have dealings in an official capacity.
[8] Canada. Conflict of Interest and Ethics Commissioner. The Raitt Report (May 13, 2010), at 23.
[9] The Commissioner’s position is outlined in The Dykstra Report (Sept. 7, 2010), at 25-27. Compare it to the analysis of Justice Pelletier in Democracy Watch v. Campbell, note 4, at para. 53.
[10] This is the direct effect of section 16 of the Conflict of Interest Act.
[11] For example, both the Act and the MP Code prohibit improperly furthering another person’s private interest in the discharge of official duties. Allowing one’s official conduct to be influenced by someone’s past or potential political contribution would be an example of an “improper” consideration. The Act further prohibits giving preferential treatment to a person or organization based on the identity of its representative; this would prohibit, among other things, preferential treatment based on whether the representative is a past or potential political contributor or political fundraiser.
