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■ Special Issue Paper

The contribution of lobby regulationinitiatives in addressing politicalcorruption in Latin America

Luiz Alberto dos Santos1* and Paulo Mauricio Teixeira da Costa2

1Executive Of fice of the President of Brazil, Brasília, Brazil2

Ministry of Planning, Budget and Management, Brasília, Brazil

For most of its history, Latin America has lived under authoritarian and elite rule where public decisions were oftencrafted in the shadows by cabinets and parliaments to the benefit of a small minority. Recently, the development of participatory political systems has brought some transparency to the policy-making process. Such scrutiny revealsevidence of the capture of aspects of policy-making by private interests that use obscure strategies to achieve theirpolitical goals. As a consequence, a widespread movement for regulating the role and tactics of interest groupsemerged, which is seen as a necessary step to address the root causes of political corruption.This article provides an overview of efforts to regulate lobbying in Latin America. It explains attempts at regulation infour countries (Argentina, Brazil, Chile, and Peru), evaluates the level of success of these efforts, and assessesprospects for the future regarding reducing corruption through the instrument of lobby regulations. The authorsargue that such regulations alone cannot eliminate political corruption. However, lobby regulations can contribute

to increased transparency and aid in developing an anti-corruption culture. It will be shown that lobby laws in LatinAmerica exhibit many of the problems long identified with similar regulations across western democracies. Copyright© 2012 John Wiley & Sons, Ltd.

INTRODUCTION

As the introductory article to this issue of the Journal points out, what is encompassed under therubric of political corruption and the forms it takesvary from country to country and partly dependson political culture. A useful shorthand definitionof corruption is that of Transparency International

(2011), the world’s leading NGO working to combatcorruption, which views it as the ‘abuse of entrustedpower for private gain’. Thus, political corruptioninvolves using public resources for private benefit:public of ficials (elected and appointed) exploitingthe resources of their of fice, usually as a quid proquo for financial benefits. Chris Edwards (2006: 1)provides a more extensive definition of politicalcorruption as a practice that:

. . . .occurs when legislators and bureaucrats usetheir discretionary power over budgets, regula-tions, procurement, and taxation to reward

themselves and private interests, while subvert-ing the general welfare. Of ficials are motivated by bribes, campaign contributions, favorableinvestment opportunities, promises of jobs forthemselves and family members, and otherpayoffs.

For generations, scholars have considered Latin

America as a textbook case of endemic corruptionof all types, including political corruption. The sub-continent seems to fulfill every ‘corruption variable’(Caldas and Pereira, 2007: 28), including immaturedemocratic institutions, inef ficient bureaucracy andlaw enforcement apparatus, an over-regulated econ-omy, cleavage between relatively low private andhigh public sector wages, economic reliance on nat-ural resources, and the hangover from early colonialformation—including class divisions and elitismaccompanied by a feeling of political entitlement, plusother cultural factors. These features do not necessar-ily lead to corruption, which, as indicated above,

is perceived and practiced in each country in aspecific way and could be defined accordingly.

During authoritarian times, there was no way tomeasure the perception of corruption, as corruption

*Correspondence to: Luiz Alberto dos Santos, Executive Of fice of the President of Brazil, Brasília, Brazil.E-mail: [email protected]

Journal of Public Affairs (2012)Published online in Wiley Online Library(wileyonlinelibrary.com) DOI: 10.1002/pa.432

Copyright © 2012 John Wiley & Sons, Ltd.



was considered an inherent part of the system, andits study and disclosure were often considered anact against the regime. However, with the move-ment toward democracy in Latin America sincethe early 1980s, there has been a change in politicalvalues that has challenged the culture of corruption.

One instrument used to tackle the problem has beenlobby regulation. In fact, as in well-established andtransitional democracies alike, in Latin America,lobby regulation has been viewed by many anti-corruption advocates as a major policy approachin the fight against political corruption.

This article examines the extent to which suchexpectations are justified on the basis of the limitedexperience in Latin America with lobby regulation.The approach is to first explain the emergence of an anti-corruption culture, its particular elements,and the challenges this presents to policy-makers.Then, the experience with lobby regulation in

Argentina, Brazil, Chile, and Peru are explainedand evaluated. On the basis of these experiencesand other elements of Latin American politicalculture, the article then assesses the reasons for thelimited success of these laws in reducing politicalcorruption, the lessons that this offers, and thefactors that need to be considered in crafting andadministering future lobby regulations as one meansfor helping to reduce corruption. The analysis leadsto three related conclusions. First, although themain justification for lobbying regulation in LatinAmerica is to address corruption, there is no clear

evidence of sound impacts of these initiatives inreducing corruption, in part because they have beenin place only a short time. There is, however, someanecdotal evidence and general impressions amongscholars, political practitioners, and political obser-vers that suggest that these laws have had someeffect and will impact political behavior in the longrun. Second, lobby regulations alone cannot signifi-cantly reduce corruption; such regulation must bepart of an array of good government measures.Third, the enactment and implementation of lobbyregulations exhibit similar limitations to such laws

in dealing with corruption evidenced across manylong-established western democracies.

THE EMERGENCE OF ANANTI-CORRUPTION CULTURE IN LATINAMERICA AND THE EXPECTATIONSOF REFORM

At the onset of a transition to some form of pluralistdemocracy, state institutions are exposed to publicattention, which reveals widespread corruptionwithin the government. This was particularly the

case in the transition from communism to democ-racy in Eastern Europe in the early 1990s (Hrebenar,McBeth and Morgan, 2008). Similarly, in LatinAmerica at the beginning of democratic transition,

people shared a perception that democratic systemswere more corrupt than authoritarian ones. Here,even the increase of interest representation in gov-ernment, which is a clear indication of democraticconsolidation, was taken as a sign of privilegedaccess and widespread corruption. Such attitudes

can, in part, be explained by inherent inequality of access to public decision-making among differenttypes of interests, particularly the contrast betweeneconomic and non-economic interests (Greenwoodand Thomas, 1998: 488).

As democracy consolidates, there are less corrup-tion scandals, partly because anti-corruption lawsare being enacted and enforced. As a result, citizens begin to value transparency in lobbying activities(Caldas and Pereira, 2007: 73; McGrath 2008).Therefore, in Latin America today, there is widepolitical support for placing lobby regulation onthe policy agenda.

However, public expectations of what lobbyingregulation can achieve are often unrealistic, espe-cially in regard to combating corruption. In LatinAmerica, the limited success of lobby regulationsin regard to combating political corruption cannot be fully explained by the region’s historical politicaldevelopment. The limitations of what lobby lawscan achieve have been demonstrated in somewestern countries with long experiences of lobbyregulation (Greenwood and Thomas, 2004; Thomas2006). Consequently, relative lack of success of lobbyregulation in Latin America must be attributed to a

combination of factors, both endemic to the regionand those characteristic of lobby regulation in general.

After 30 years of democratic transition and vary-ing attempts at political transparency in most of Latin America, corruption is still seen as rampant.Such public perception is partly due to ingrainedpublic negativism toward interest groups andlobbyists and the high expectations of lobby lawscoupled with their perceived failure to eliminatecorruption. For instance, 58% of the population,according to Transparency International, think thatthe private sector bribes to influence government

policies, laws, or regulations. Moreover, 61% of Latin American citizens perceive the anti-corruptionmeasures adopted by their governments as ineffect-ive, a rate higher than the global average of 56%(Transparency International, 2009: 40). Such publicperceptions reflect an environment where everypublic decision-making process is apt to arousesuspicion. Plus, in less developed democracies,lobbying is often linked with corruption or influ-ence traf ficking. This creates a perception thatspecial interests are inherently illegitimate (Thomasand Hrebenar, 2008: 6).

Thus, there is little understanding or general

acceptance in Latin America of the tensions betweenthe positive and negative roles of interest groups ina liberal democracy. Interest representation tends to be seen as a distortion of the democratic ideal, and

L. A. dos Santos and P. M. T. da Costa

Copyright © 2012 John Wiley & Sons, Ltd. J. Public Affairs (2012)DOI: 10.1002/pa



the valuable role of interest groups as sources of up-to-date information and their indispensability topublic decision-making are either little understoodor often ignored.

Lobbying regulation is generally recognized as animportant aspect of good governance (OECD,

2007a), which should include a range of provisionsto promote access of hitherto excluded groups andinterests and to address some of the inherent biasesin lobbying systems (such as financial and otherresource advantages of business) and measures topromote transparency, among others. In LatinAmerica, however, the overriding, narrowlyfocused rationale for lobby regulation initiatives isto tackle corruption to restore trust in governmentand confidence in the political system. Of ficialrecognition of corruption as a problem and thenew anti-corruption culture in the region havegenerated an increasing demand for transparency

of the activities of public of ficials and interests.Clearly, a pattern of expectations of what lobby

laws can achieve in terms of reducing corruptionhave developed across the region as these laws are becoming increasingly common. At the same time,there is a widespread belief regarding the failure of such laws to eliminate corruption. This paradoxicalsituation is illustrated in considering the chal-lenges facing politicians and the experiences of fourcountries in the region in the rest of this article.

Attempts to regulate lobbying in Latin America:(1) The ideal set against the political challengesand choices

Having reached the political agenda in Latin America,lobbying regulation is a contemporary policychallenge throughout the region. This is in part dueto the high public expectations related above andalso because of the wide range of issues and choicesinvolved in crafting and implementing such laws.From an ideal perspective, according to OECD(2008: 14), lobbying regulation must adequately

address public concerns, suitably defi

ne the actorsand activities covered, assure disclosing information,foster a culture of integrity, and secure compliance.In reality, as policy-makers have found in otherdemocracies—developed, developing, consolidating,and transitional—political choices must be maderegarding the objectives, form, scope (extent of coverage), content, and instruments of the regulatoryscheme given local needs and political circumstances.These initial political choices very much affect theextent of the success of lobby laws and thus publicperceptions of their effectiveness.

In terms of overall objectives, a major distinction

must be made between corporatist systems (usuallyneo-corporatist but sometimes containing elementsof state corporatism) and pluralist systems(Greenwood and Thomas, 1998: 498), although some

regulatory systems combine the two as in a numberof Latin American countries. Corporatist systemsare often more concerned with the relationshipof interests to government than with regulatinglobbying. As such, they may intentionally orotherwise exclude certain groups from interest group

intermediation processes and considerably reducetheir ability to compete with those incorporatedwithin the corporatist system.

It is essential that pluralist systems clearly definetheir objectives regarding lobby regulation. Failureto do so or unrealistic expectations by policy-makersof what lobby regulations can achieve is often at theroot of the perceived failure of these provisions. Un-like authoritarian regimes where groups and theirlobbyists can be banned, in a liberal democracywhere interests are more of less free to form andoperate, lobby regulations cannot make hitherto inef-fective groups influential or change the laws of polit-

ical power by destroying the influence of groupswith major resources and political acumen.

Lobby regulations can be aimed at promotinggood governance. Such objectives may includeevening-up the political playing field by limitingfinancial contributions by groups to politicians and by conflict of interest provision; regulating certainactivities by members of the bureaucracy in theirrelations with interest groups; and increasing publicawareness of lobbying activities with the hope thatthis will promote more informed decisions bypublic of ficials and the public alike. Evidence

clearly shows, however, that across liberal democra-cies, the objectives of lobby regulations are rarelyapproached in a comprehensive manner. They aremore often the result of a reaction to a particularscandal or incident and most solutions are ad hoc.Plus, most elected of ficials support such laws onlyreluctantly and under public pressure. After all,these of ficials were elected under the present rulesof the political game, and change introduces uncer-tainty into their political future (Greenwood andThomas, 1998; Thomas, 2006).

As far as the form is concerned, lobbying regula-

tion can be expressed through formal pieces of legis-lation or through less of ficial codes of self-regulatoryconduct by lobbyists or interest groups (Greenwoodand Thomas, 1998: 493). Self-regulation can work incertain circumstance; but it often lacks consistentapplication and enforcement, and the public areoften unaware of such codes.

The scope of the regulation can be broad orspecific. A crucial factor here is how the regulationdefines interest groups, lobbyists, and lobbyingactivities. Too narrow a definition may fail to capturemajor lobbying activities; but too broad a definitionmay turn the implementation and enforcement of

lobby regulations into a bureaucratic nightmareand undermine the goals of the regulation. It is, forinstance, reasonable to exempt some groups thatare shoe-string operations where requiring them to

Lobby regulation initiatives




meet extensive regulations or reporting require-ments would be unfairly burdensome to them.Whether or not to include all or certain aspects of government activity as lobbying is a major decisionon scope. Beyond this, the actual regulations can bea general code covering every branch or level of gov-

ernment. Alternatively, it can be set up by a specifi

ccode for each branch or level of government andeven be established through specific regulations fordistinct public of fices within the government. Inother cases, rules can be directed to a specific kindof interest, such as business corporations or foreigninvestors.

The contents of regulations vary according to theirobjectives and particular focus. Some schemes regu-late how groups can be formed, although less so inpluralist democracies. More common are schemesthat regulate group activities—their strategies andtactics—and particularly public disclosure or trans-

parency of these activities and group finances.Depending on the purpose and scope of lobbying

regulations, there are several instruments availableto implement a regulatory scheme. The mostcommon is registration, which provides lobbyists a‘quasi-of ficial’ status and, depending on itsprovisions, may restrict new entrants to the advo-cacy business (Greenwood and Thomas, 1998:496). Another common instrument is the disclosureof lobbyist information, such as reporting theirrevenues and expenditure, the set of issues they dealwith, the interests organizations represented, and

other information about their clients.Other types of instruments apply to elected and

appointed of ficials, to politicians and civil servants(bureaucrats). The purpose here is to establish stan-dards of conduct. Elected of ficials may be barredfrom or limited in receiving certain things, such asgifts, campaign contributions, or employment fromthose who lobby them. Civil servants may besubject to specific restrictions, such as a ‘cooling-off ’ period after leaving the of fice, when the publicof ficial is not allowed to lobby their former agency(effectively slowing down the so-called revolving

door where government of fi

cials move fromgovernment to lobbying and sometimes backagain); a prohibition against the acceptance of giftsor hospitality, and strict monitoring of personalassets are all measures that foster ethical behavioramong public agents.

Finally, other good governance initiatives arecommonly listed as decisive for the success of anylobbying regulation. For instance, not only the dis-closure of public information but also the discussionof governmental decisions at open public meetingsenhances access to the decision-making processand, as a consequence, public scrutiny. The notice-

and-comment procedure in the formulation of newregulations is also very relevant. In fact, everytransparency measure has in itself the potential topromote a cultural change among lobbyists and

public of ficials. In sum, the existence of an arrayof good governance provisions is crucial for theestablishment of an ef ficient lobbying regulatoryscheme that fosters a culture of ethics in lobbyingactivities.

Attempts to regulate lobbying in Latin America:(2) Four country case studies

How have these choices played out in Latin America?What is the extent of lobby laws and relatedprovisions? And what have been the political andother factors that have shaped them? Brazil, Chile,Argentina, and Peru provide four contrasting casestudies.

BrazilBrazil has no specific legislation regulating lobby-

ing. However, there are several rules that indirectlyaffect lobbyists. One is the constitutional right of petition and freedom of association, which presup-poses the right to require information disclosureand the right to have collective interests represented by associations. Another is that Brazilian criminallaw addresses bribery and influence traf fickingand other forms of corruption. There are also legalprovisions that attempt to deal with the influenceof money over politics, including articles of theElectoral Law that establish an upper limit forcampaign expenditures. As far as legislative proced-

ure is concerned, the Federal Constitution states thatparliamentary committees are to promote publichearings with civil society organizations. Addition-ally, an internal code of conduct was established bythe Chamber of Deputies, the lower house of theBrazilian National Congress, requiring the registra-tion of representatives of the government andinterest groups; but this has never been enforced.

In 2007, only 146 entities registered their represen-tatives, most of them from the government (Santos,2008: 416). In 1999, the executive branch launched aself-regulatory code, forbidding the acceptance of

gifts or hospitality, requiring that any confl

ict of interest be publicized, as well as other measuresfostering the impartiality and transparency of publicdecision-making. Other executive orders followedregulating activities internal to the executive branch, including limiting ‘revolving door’ andother activities in an attempt to increase fairnessin lobbying. Plus, several federal departments arelegally supposed to form policy-making boards,which are required to include companies, tradeunions, and civil society organizations and to con-duct public proceedings. However, this array of constitutionally guaranteed legislative and execu-

tive provisions has not been properly enforced.Some argue that they bring obligations so complexthat the provisions are rendered unenforceable(Farhat, 2007: 67). This might be overcome by





developing a systematic law or code incorporatingall existing lobbying regulations and to whichothers could be added. But, this is as yet unrealized.

In recent years, the Brazilian Congress has consid-ered several proposals dealing with lobbyingactivities. The first bill was presented in 1987; but

the most important recent proposal came in 2005and would regulate lobbying in both the federalexecutive and legislature. The proposal includesthe usual features: registration of public agents (civilservants) and professional lobbyists, restrictions onrevolving doors, reports of lobbying activities,lobbyists’ financial disclosure, and several equalaccess provisions. Plus, it includes a compulsorytraining course prior to registering as a lobbyist,and the law gives lobbyists the right to participatein meetings germane to their activity.

According to the World Bank (2009: 95), theeffects of recent anti-corruption measures in Brazil

are minimal, with a slight improvement from 2007to 2008. In general, Brazilians perceive corruptionin the public sector to be relatively high. Transpar-ency International (2010: 49) lists Brazil 75thamong 180 countries ranked from the least corruptto the most corrupt. In comparison with othercountries in the region, Brazil is well below Chileand Uruguay, both in 25th position, and Costa Ricain 43rd place.

It is a combination of the public’s association of lobbying with political corruption, the apparentfailure of the legislature and the executive to deal

with such corruption, and the general stigma of lobbying that keeps lobby regulation on thepolitical agenda in Brazil. Yet, as in most liberaldemocracies, there is a difference in attitudetoward lobbying activities and to the major goalof regulation between members of the public andthose serving in government. As a recent survey(Santos, 2007) of 60 parliamentarians and 60 bureaucrats showed. Approximately, half sawlobbying as an essential part of democracy butnoted that it must be regulated and limited in orderto avoid corruption, conflict of interests, and other

abuses and be as comprehensive as possible.Whereas 81.5% supported regulation of all threegovernment branches, 21.7% preferred to focus onequality of access and 71.5% emphasized publicdisclosure and transparency. Overall, 61.1% believed that a law regulating lobbying woulddecisively help to reduce corruption by enhancingtransparency in the relationship among interestgroups, politicians, and bureaucrats. However,33.9% thought that lobby regulation would havelittle effect on the most powerful interests. Instead,it would create more barriers for those interestgroups with fewer resources.

Despite the fact that Brazil has mixed attitudesamong public of ficials toward lobby regulation,the majority agrees that some formal regulationmust be in place. A combination of formal law and

best practices already employed by the Braziliangovernment could comprise a successful steptoward lobby regulation.

Chile

Among Latin American countries, Chile has hadone of the lowest rates of corruption perception.As indicated above, in 2009 Transparency Inter-national (2010, 48), ranked it 25th worldwide witha score of 6.7. Nevertheless, lobbying regulationand transparency of public affairs in general are stilla major political issue. To date, however, efforts toenact lobby laws have been unsuccessful.

In an attempt to make access to the decision-making process more equal and reduce the impactof private interests on decision-making, PresidentRicardo Lagos introduced a lobbying regulation billin 2003 (Fisse, 2006: 65). However, the bill remained

dormant in the Congress up until 2008 after whichPresident Bachelet signed the modified version intolaw. The bill, signed in July 2009, focused ontransparency, equal access, and integrity. In this bill, registration of lobbyists and fines for non-compliance to report contributions were introduced.For instance, these fines range from $US11 000 to$US29 000, but were seen as very low by somelegislators considering the high fees and salariesmany lobbyists receive and the major resources of many economic interests involved (Departamentode Prensa, 2009).

Additionally, in the government’s effort to

enhance good governance and transparency inpublic life, in November 2006, the Bachelet govern-ment launched a set of measures called ‘Integrity,Transparency, Ef ficiency and State ModernizationAgenda’. One provision placed restrictions onrevolving door activities by government of ficials.Another provides more transparency regardingsources of electoral funds, forbids contributions by companies allowing only individual funding,and strengthens the enforcement capacity of independent electoral agencies. A further aspect of

this Agenda concerned information disclosure bygovernment and became a law in August 2008(Law n. 20.285).

Overall, with mixed success, Chile is attemptingto move toward a comprehensive good gover-nance regulatory framework that guarantees moretransparency and control over lobbyists andinterest groups. This is being carried out by meansof two bills: one focusing on registration and equalaccess and the other emphasizing revolvingdoor activities.

ArgentinaRecent actions on lobby regulations and relatedprovisions in Argentina contrast with both Braziland Chile. Over the last decade, more than 20





lobbying regulation proposals containing a widevariety of provisions have been considered by theNational Congress. Yet, no consensus on any of theseproposals has been reached. The interest in theCongress may well reflect provisions established inthe executive branch which, to date, have been the

only ones to address regulation and transparency.Overall, the high interest in lobby regulation could be explained by a strong perception of corruptionamong the Argentinean public. Transparency Inter-national (2010) ranked the country 106th amongthe 180 nations evaluated, with a 2.9 rate in 2009.

The anti-corruption initiatives in Argentina date back to 1999 (Basterra, 2004: 8). In 2003, PresidentNéstor Kirchener signed an anti-corruption decreeaimed at ‘improvement of the quality of democracyand its institutions’ (Johnson, 2008: 90). The decree,as an act of the President alone, is a self-regulatorycode for the executive branch (including all

agencies, government-owned companies, and otherenterprises), as it does not apply to the legislature orsub-national governments. The Subsecretary forInstitutional Reform and Democracy Enhancement,within the Argentinean Executive Of fice, wascharged with enforcement duties (Subsecretaria,2008). There are several provisions regarding publicinformation disclosure and other measures topromote transparency, such as mandatory openmeetings for regulation agencies and boards. Onepeculiar aspect of the Decree is its definition of lobbying. To be considered lobbying, the contact

must be personal (in a formal hearing called‘audiencia de gestión de intereses’, which is ameeting arranged with the self-declared purposeof lobbying). Misinterpretations and enforcementissues arise from such a narrow definition of lobby-ing (Quaglia, 2004) as it leaves it to the discretion of the public of ficial to report the meeting or not. Asprovided in the law, all senior of ficials of allexecutive agencies must report lobbying activities by keeping open public records and file an of ficialaccount of their meetings with lobbyists.

This law represents a clear attempt by the

Argentinean government to reduce opportunitiesfor corruption and influence traf ficking. After itsimplementation, other parts of government fol-lowed with specific regulations but with less ambi-tious goals in mind. It remains to be seen if broaderregulations will be enacted, particularly by theCongress to deal with Argentina’s high level of corruption perception.

PeruPeru, thefirst country in Latin America to enact a law

regulating lobbying which was the most compre-hensive in coverage in the region. In 2003, Law N.28024 established instruments and obligations in anattempt to bring more transparency to the Peruvian

public policy-making process. It covers both theexecutive and legislative branches, and otheragencies and levels of government. Consequently,Peru is the country most appropriate for making anassessment of the success of lobby regulation.

Similar to other Latin American countries, under

what the Peruvian law refers to as‘

interest manage-ment’ (lobbying), the following are included: ‘oralor written communication from interest managersto public of ficials regarding a public decision’. Alsodefined are actions not considered ‘interest manage-ment’, including statements made in speeches orpublished articles, which are considered to be theexercise of freedom of expression. The law appliesto decision-making processes, such as specificdecisions of parliamentary commissions regardinglaw proposals, government contracts, and thedrawing-up of executive orders. Public of ficials,covered by the law include: the President, members

of parliament, senior executive branch of ficials, andother key decision-makers. All lobbyists mustregister and provide information regarding theiractivities every 6 months. Plus, public of ficials arerequired to record any contact with lobbyists, andthese of ficials are prohibited from being lobbyistsfor 12 months after leaving public of fice. Law N.28024 also establishes an Administrative SpecialCourt to enforce the regulations.

Despite or perhaps because of all these elaboraterules, more than 8 years after enactment, this lawhas not been properly implemented. For instance,

the Special Court has not been formed, seriouslyundermining the enforcement of the law. As aconsequence, in October 2008, only 37 lobbyistsregistered in Peru. Of these, few have updated theinformation required of them every 6 months(SUNARP, 2010). Furthermore, no public of ficialhas reported contacts made by Juliana Reymer, alady renown for her obstinacy in complying withthese lobbying regulations (Córdova, 2008).

This non-compliance with this theoreticallycomprehensive law may explain why, according toTransparency International (2009), 71% of Peruvians

see recent measures adopted by the government totackle corruption as ineffective. And according tothe World Bank (2009: 97), Peru’s corruption indica-tors over the previous 5years were more of lessstable. In 2009, the corruption perception ratein Peru was 3.7, ranking it 75th worldwide andalong with Brazil and Colombia (TransparencyInternational, 2010). All this and recent scandalsinvolving lobbying and oil concessions benefiting aNorwegian petroleum company have pushed thedemand to improve the enforcement of lobbyingregulations up the policy agenda in an effort to re-duce corruption and increase transparency in the

government decision-making process (Instituto deDefensa Legal, 2008).

Overall, Peru exhibits a different lobbying regula-tion dynamic compared with Argentina, Brazil, or





Chile. Although Peruvian lobby regulationintends to cover the broadest ground, it fails inits implementation.

An overall assessment to dateTo be sure, the results of these first years of lobbyregulation in Brazil, Chile, Argentina, and Perucan, on the one hand, be considered as disap-pointing. This is particularly the case in Perugiven the intended comprehensiveness and publicexpectations of Law N. 28024. No clear pattern of positive results from these regulations hasemerged across the region. There are only severaldiverse experiences in some of the region’s coun-tries driven by public concerns with corruptionand, in many instances, adopted reluctantly by

elected of fi

cials and enforced, if at all, with littleenthusiasm by government of ficials. On the otherhand, any assessment of lobby regulations inLatin American must bear in mind that both theregion’s democracies and their regulatory frame-works regarding transparency and participationare, in most cases, in an experimental stage.The limited extent and mixed results of thesemeasures are similar to those in regions such asEastern Europe (McGrath 2008). There is evidencethat regulations are having some effect on howinterest groups and lobbyists deal with publicof ficials; and greater exposure of group activitiesis leading some groups to be concerned abouttheir image and the way they go about doingpolitical business. Limited as these results are,they represent positive steps in the contributionof lobby regulation toward reducing corruption,making interest groups more acceptable, and inso doing helping to consolidate democracy. Thatsaid, clearly Latin America has a long way to goin the development and implementation of lobbyregulations if these are to contribute to eliminat-ing corruption and consolidating democracy.

Explaining the results of lobbying regulationschemes and their effects on political corruption

Although there are no empirical studies to defini-tively assess the reasons for the limited success of lobby regulations in Latin America to date, herewe offer six explanations that in combinationlikely explain this situation. Of the six, the firstfour are products of hangovers from the LatinAmerican political experience or a product of emerging and re-emerging democracies. The

other two are common to most democracies oldand new.

(1) Ingrained political practices of unof ficial eliteaccess and influence

In politics, be this an authoritarian or democraticsystem, the status quo is a major force. Thosepromoting change have to build a consensus toconvince those in power that change is to their bene-fit. But, for most of those in power, change holds thespecter of the unknown and the risk of losing influ-

ence. Major reform, particularly reorienting thefocus of government to more participatory andopen processes in a former authoritarian regime,requires changes in attitudes, which can takegenerations to achieve if this can be carried out atall. Across most of Latin America, despite recentdevelopments in increased participation, there arepolitical hangovers of traditions of clientelism, eliteaccess, and influence, particularly of majoreconomic enterprises and the upper social stratum.Much of this access is unof ficial and effected farfrom public view. In this regard, over 50 years ago,Karl Loewenstein (1957: 16) encapsulated the

challenges of regulating lobbying:

While the of ficial, legitimate, visible powerholders can be identified without dif ficulty inthe constitution, the discovery of the invisible,non-of ficial, and non-legitimate power holdersrequires, in each case, a sociological analysis of the reality of the power process. . . . Wire-pullers behind that curtain moving the marionettes onthe stage are ubiquitous phenomena of the powerprocess. . . . Sometimes their influence on theof ficial power holder is institutionalized in anof fice, but more often it remains in the twilightof anonymous irresponsibility.

These comments were made just a couple of yearsafter the US federal government enacted its firstlobbying regulations, but it was not yet possible to judge their effectiveness. More than 50 years later,in the USA and across the democratic world, it isclear that transparency and openness are not easyto achieve whether through regulation or any othermeans. In the Latin American case, does this meanthe cultural resilience of political corruption and of various forms of resistance to change, including

resistance to the enactment and enforcement of lobby regulations? It most likely does and couldpartly explain the dragging of political feet to cometo consensus on the issue (as in Chile) and, in somecases, the lack of enforcement where lobby laws doexist (as in Peru). The lack of a culture of integrityalso hinders support for regulation, regardless of the form and scope of regulation (OECD, 2007: 32).

(2) The legacy of state corporatism

One of many ingrained institutionalized politicalpractices in the region, in this case an of ficial one,is state corporatism. Certainly, democratization

since the 1980s and the effects of neo-liberalism inthat decade and the following one made inroadsinto corporatism. The move toward pluralist dem-ocracy brought a proliferation of interests both





economic and non-economic into politics, includingsmall business groups, professional lobbies,women’s rights, indigenous peoples’, consumerand good government groups, and many NGOs(Thomas, 2009: Johnson, 2008: 95).

Because of neo-liberal economic reforms, peak

associations have faced the emergence of manysmaller groups representing the same interest. As aconsequence, some authors have argued that inter-ests articulation in Latin America has become morepluralist, moving beyond the corporatist schemethat used to reserve political power to the state,corporations and unions. In fact, after the end of state monopolies in several economic fields, pres-sures from a larger number of distinct private inter-ests replaced the pressure of state-ownedenterprises. Plus, challenging governments for moreinformation about public affairs and more transpar-ent and accessible decision-making processes has

worked to weaken corporatist ties.Despite having regular elections, freedom of

expression, political parties, independent electoralauthorities, lobby regulations and good governanceprovisions, and other democratic institutions, thecorporatist element that still underlies state-societyrelation in Latin America hinders the rise of inde-pendent interest groups (Lanna, 1999: 24). Theconnections formed between state and particularinterests in society over the years built up privilegedaccess to government for certain associations, suchas business, giving them more relative power than

they might have had otherwise. With continuingelements of such controlled political participation,the substance of public policy is still defined bythe state bureaucracy and through its interactionwith economic elites. This model, a bureaucratic–corporatist–elitist combination, makes it dif ficultto develop effective and plural political practices.The continued hangover of corporatism in variousforms likely excludes certain groups from compet-ing on a level political playing field.

(3) Adoption of less than appropriate institu-tions and processes

Historically, Latin American countries haveimported institutions from different social andpolitical contexts, not taking into account thechanges and adaptations required to make themsuitable to the new environment. The presidentialsystem is, in certain countries, a good example of such institutional transplanting that is often a majorcause of the failure of Latin American institutions indelivering expected outcomes. Certainly, the lobbylaws of the USA and Western Europe can be goodguidelines for what might be useful in Latin Amer-ica. But, they need to be adapted to the political,

cultural, and social context of the region. Failure todo this may be part of the problem with their lackof success, or failure to be enacted, as in the case stud-ies above. For instance, to cast a very wide net in

terms of registration requirements may have inhib-ited participation by some groups in the region, par-ticularly those with few resources.

(4) The narrow goals of existing lobby regulations

Although fighting corruption has not been the

only goal of lobby regulation in Latin America, ithas been seen as the major justification for theselaws by the public, and this has been very muchreflected in the provisions that have been enacted.However, when considered as solely or primarilyan anti-corruption measure, lobbying regulation islargely ineffective. In fact, such regulation affectscorruption only indirectly by addressing its likelymanifestations and not its root causes. Thus, lobby-ing regulation alone may not influence politicalmorality (Greenwood and Thomas, 1998: 511).Furthermore, lobby regulations have a justification beyond strict anti-corruption arguments. Ideally

and practically, these provisions should be more broadly conceived and enacted and embrace provi-sions to open and level the chances to influence pol-icy. But, lobby laws cannot do this alone.

(5) Combining lobby regulations with good gov-ernance provisions

As stated by OECD (2007: 37), lobbying regula-tion can neither be initiated nor reformed inisolation of related provisions. Nor can lobbyingregulations be initiated and administered effect-ively without public support and monitoring,

even if this is provided vicariously through themedia. In fact, evidence from several developeddemocracies indicates that to establish, strengthen,and maintain an anti-corruption culture andconfidence in government and the policy processand, as one aspect of this, the development,access, and acceptance of interest groups, it requiresa range of good governance measures. Theseinclude those to insure transparency in publicpolicy-making and perhaps provisions to even-upthe political playing field, as identified earlier inthis article. Eventually, information disclosure alsoaddresses corruption, as it is clear that problemsinvolving public of ficials and lobbyist flourishwhere information is secret or only partiallydisclosed (Klitgaard, 1994: 220). Only as part of this broad package of provisions can lobby laws helpcreate this anti-corruption culture and confidencein government (Greenwood and Thomas, 1998:503). It can do this through requiring publicinformation concerning the political activities of interests and lobbyists and by some restrictions ontheir actions. For various reasons, however, in aliberal democracy, there are major legal andpolitical constraints that hinder the success of lobby

regulations; however success may be defined.Certainly, some Latin American countries, such asChile and Brazil, have done so, but usually in anad hoc fashion through action by the executive





branch and not in any systematic way to integratesuch provisions with lobby laws.

(6) Common experiences of regulatory schemesaround the world

Judging by the mixed success of lobby regulations

across the established democracies, including theUSA where these laws have been in place forgenerations, even if Latin American countries werenot beset by the problems just considered, therewould be many factors working to inhibit theoperation of these laws and thus their success(Parliamentary Affairs, 1998). This mixed record of lobby laws is partly due to a general inability to judge their success, a lack of consensus on theirpurpose, unrealistic expectations of what such lawscan achieve often exacerbated by a tension betweenthe right to petition government and regulation of that activity, the crisis mode in which regulations

are often enacted, and the lip-service that manypoliticians pay to these laws.

The question of what constitutes success or effect-iveness of lobby regulation in established democra-cies is, in itself, extremely problematic because it isimpossible to isolate the effect of lobby regulationsfrom other good governance provisions, which tovarying extents exist in all these democracies. Moreimportantly is that there is rarely explicit agreementon the goals of such regulations among policy-makers. So, Latin American policy-makers are notthe only politicians bedeviled by this question. The

major impetus for these laws is political scandalsand the raising of public consciousness. Lobby lawsare rarely developed in a systematic and compre-hensive way, weighing the pros and cons of variousalternatives. Plus, it costs money to administer thelaws, and such agencies are not popular with politi-cians and their lobbyist friends as such agencies arealso often responsible for administering campaignfinance and conflict of interest laws. But, perhapsthe major reason why such agencies and enforce-ment of the laws are not popular with politicians isthat it is not the public that makes use of the

disclosure information that is available throughlobby laws but the press and candidates runningagainst incumbents. As a result, the administeringagencies are prime targets for being under-fundedor even de-funded.

As explained in the first part of this article, thevarious aspects of the experiences with lobby lawsin established democracies are also evident in LatinAmerica. As these compound the problems inenacting and enforcing such laws stemming from theregion’s transition to democracy, this raises a majorquestion: Is there a realistic hope of the long-termsuccess of lobby regulations and their contribution

to reduce corruption by aiding in the developmentof a deep-rooted element of anti-corruption in thepolitical culture, especially the political culture of those involved in public policy-making?

The implications for the success of lobby laws andanti-corruption provisions: short-term, medium-term, and long-term views

The short answer to the question posed at the end of the last section is that, even given all the challenges

in Latin America, lobby laws can be made to work.To have a chance of success, however, the lessonsimplicit in the last section need to be taken intoconsideration. In particular, lobby regulation must be part of a broader package of good governanceprovisions, and the ideas presented in this sectionassume that they are. In addition, there are otherfactors regarding Latin American political systems,particularly regarding political culture and politicalsocialization and institutional structure, which willhelp determine the success of lobby laws andanti-corruption measures.

Judging by the experiences in both established

and developing democracies, such as in EasternEurope, there are four major lessons to be learnedabout lobby laws as public policies and particularlyin regard to aiding in reducing corruption. First, thepositive effects of these laws in conjunction withother good governance provisions take a generationor more to be discernable. Second, given the lip-service paid to lobby laws by many politicians andopposition to them by others, ways must be devisednot so much to force these people to comply but toshow them the positive advantages in establishingand complying with such laws. Across the estab-

lished democracies, this has partly been addressed by the third general lesson. This is that lobby lawscannot be all things to all people. Even in conjunc-tion with other provisions, what they can achieveis limited given the nature of political power andthe constitutional trade-off tension between repre-sentation and regulation. This does not meanhaving low expectations of lobby laws but realisticexpectations. For instance, as Kingdon (1995: 45)observed, there will always be bridges made by‘common values, orientations, and world views’linking people from inside to others outside the

government regardless of the extent of regulation.These relationships cannot be eliminated but tosome extent can be monitored.

In terms of realistic expectations, the major effectsthat increased regulations have had in the estab-lished democracies have resulted from publicdisclosure provisions, which have led to increasedtransparency. This is likely the most positive, if limited, consequence of lobbying laws according toThomas (1998: 512). It appears to have produced aculture of restraint by established influential inter-ests and their lobbyists in dealings with publicof ficials; greater concern for their group’s public

image; and increased professionalism of lobbyists.Particularly in the USA, where lobbying is mostvisible, lobbyists are much less likely to use blatantstrong-arm tactics. For their part, the vast majority of





public of ficials, elected and appointed, do not want to be associated with organizations with shady reputa-tions. So, the public has probably benefited from thisdevelopment; and arguably, the credibility of someinterest groups and politicians has been enhanced,even if the latter two beneficiaries were skeptical of

such regulations initially.Fourth, an obvious fact but important to empha-size is that, assuming the self-centered nature of human beings and the vast sums of money oftenat stake, there will always be some form of corrup-tion and lobbying scandals. The temptation to use bribery will always exist and it will occur. This iscertainly true in established democracies such asthe USA, where lobbying scandals are often in thenews. But, even though no hard data exist, thesescandals are likely much less than 50 years ago inrelations to total lobbying activity.

Changing the political culture and reforming political institutionsAs we have argued, one of the major challenges inconsolidating democracy in Latin America is theacceptance of the legitimacy of interest groups andlobbyists. In part because of the past and presentpower of elite groups and the history of corruption by those associated with them, interest groups andlobbyists are both viewed negatively and not seenas essential to democracy. In fact, in some ways,they are viewed as a detriment to democracy.Somehow, steps must be taken to socialize Latin

Americans to accept groups and lobbyists balancedwith a continuing healthy skepticism of them.Regulations must not turn lobbyists into malignedcharacters who must be hunted in the name of democracy. Otherwise, it will be dif ficult to movelobby laws beyond purely restricting lobbyingactivities in the hope of eliminating corruption,which, as we have seen, is not feasible. A publiccampaign to counter the negative image of lobbyingcould be launched to promote an understandingthat lobbying certainly needs to be controlled butnot forbidden. The average citizen needs to be able

to distinguish the lobbyists who rely on corruptionand influence traf ficking from those who, in avery professional manner, advocate for privateinterests and use proper and legitimate proceduresthat preserve the impartiality and autonomy of government.

A particularly important institutional decisionregarding the future and success of lobby laws isthe extent to which Latin American politicalsystems deal with the question of the mix of corpor-atism and pluralism. It is the pattern of relations between state and society that will probably be themost important influence on how interest groups

operate and how lobby laws will be fashioned.Some countries, such as Chile, may decide on amore neo-corporatist system, whereas others, suchas Uruguay, may decide on a more pluralist system.

Other reforms needed for the consolidation of democracy and the successful operation of lobbyalso depend, to a large extent, on the course chosen,either of ficially or not, between corporatism in itsvarious modified neo-corporatist forms and that of pluralism. These reforms include good governance

provisions regarding campaignfi

nance and confl

ictof interest, among others identified at several pointsearlier in the chapter. In particular, electoral finan-cing reform is essential to reduce the level of clien-tele dependence of political parties on resourcefulinterest groups. Political parties themselves need to become more ideology-oriented or, at least, moreissue-oriented institutions, able to openly aggregateinterests and channel them into the political arena, building up an authentic partisan activism thatwould likely affect the number of groups organizedand their more widespread acceptance. Plus,the procedures for public participation in public

decision-making, through various boards andcommittees and in parliaments, must be clearlydefined in order to enhance the scrutiny of societyover bureaucrats and members of parliament.

In sum, lobby regulation can only succeed in apolitical cultural and institutional environment thatpromotes acceptance of interest groups and accesschannels and prevents certain interest groups from becoming an appendage of the state apparatus.

Local Latin American circumstances and the speci fics of

lobby regulationsAs to the specifics of provisions that would aid thesuccess of lobby laws in the region, again and evenin combination with other good governance provi-sions, as President da Silva points out in hisForeword to this Special Issue, we should becautious to not use a broad brush in viewing theregion. This is true in the role of lobby regulationsas in other areas, political and non-political. Thus,to be successful, lobby laws in each country mustreflect local circumstances regarding the points wehave made above. That said, the following factors

are important to consider.The concentration of political power and policy-making in the executive branch must be consid-ered when designing the regulatory framework(Johnson, 2008: 84). Accordingly, executive ordersregulating lobbying within executive agencies will be pivotal to the success of regulations andtransparency. Brazil and Argentina have madefirst steps in this regard. Neither country, however,has a comprehensive legal framework encompass-ing all three branches of government, nor does anyother Latin American country except Peru, and wesaw the shortcomings in that country. The inclu-

sion of all three branches of government is import-ant for the success of lobby regulation and relatedprovisions if they are to work even adequately asseen in established democracies.





Another factor is that lobby laws appear to bemost effective—as limited as this may be in somecircumstances—when they promote transparencyof activities of both lobbyists and the lobbied. Asnoted earlier, providing public information andthrowing light on various activities of government

and its decision-makers can indirectly reducecorruption. Restricting certain activities, such asrules about revolving doors, may also be advanta-geous, as may guaranteeing access to certain groupshitherto in some way excluded from decision-making.

In Latin America, simply enforcing existing rulescould improve the level of transparency and accessto public decision-making. Other initiatives toenhance transparency could be tried, such as theuse of ‘regulatory impact assessments’ to clearlyidentify potential impact and the stake-holdersaffected by a policy being proposed, which could

lead to the identification of the various interestsand public of ficials behind the policy proposal andthe decision taken. One fine line that is dif ficult towalk is that of enough regulation to achieve a levelof transparency and perhaps promote access and aleveler political playing field, but not over regulateand undermine the purpose of the regulations oreven make them unworkable. Making decisions onquestions, such as who is and who is not requiredto register as a lobbyist, what activities lobbyistsare prohibited from engaging in, who has to reportlobbying activities, and what is required in those

reports, are thorny question not easy to resolveand questions still at issue in established democra-cies (Thomas, 1998: 510).

The challenge of these decisions is particularlydif ficult in developing democracies, such as thosein Latin America, as without a strong enforcementagency and a culture unaccustomed to public scru-tiny, an over-regulated system may encouragenon-compliance, which can be practiced with im-punity as appears to be the case in Peru.

For instance, the focus on registration of commu-nication between public of ficials and lobbyists can

be an element contributing to ineffectiveness.Provisions can result in failure to affect the behaviorof those about which there was most concern. As‘the ingenuity of the unscrupulous is inexhaustible’(OECD, 2007: 16), provisions should not try tocontrol the means of communication—the contacts between public of ficials and lobbyists. It shouldfocus on making decision processes more transpar-ent, allowing public assessment of the impact of every decision, and, consequently, the issues indispute. In fact, the means used by lobbyists to reachdecision-makers are impossible to strictly control, ascommonly said in Latin America, ‘echa la ley,

echa la trampa’ (every law has a loophole). Eventechnology works against the effort of controllingand registering contacts and communication. It issaid in Brazil that if you lock up a decision-maker

in an empty room, lobbyists will immediatelydevelop telepathic abilities.

Then, there is the problem of too much bureau-cracy, which, as we noted above, is likely one majorcause of the shortcomings of compliance with andenforcement of existing laws in the region. There is

a tendency in Latin America to build up bureau-cratic controls that serve only as a barrier to publicparticipation. In developing regulations, this must be avoided as far as possible; otherwise, regulationswill hinder informed decisions and will fosterinequity. As OECD (2007:20) has point out, a toocomplex regulatory, information disclosure andmonitoring system can impose costs that faroverweigh the benefits.

For ease of access, it might be better to cast less of a wide net in terms of those groups required toregister. What is most important in Latin Americaat this stage of democratic development is the free

and unlimited access to policy-makers who werevery insulated from public influence a few yearsago and many of whom still have an entrenchedauthoritarian culture. As democracy becomes moreconsolidated, it might be desirable to develop amore extensive lobby registration and reportingsystem. At the moment, however, new, less institu-tionalized and less well-resourced groups will benefit more as will the political system in general, by less regulation.

Whatever the extent of the lobby regulatory andgood governance provisions, they must be backed

up by effective institutions responsible for theenforcement of these provisions. Voluntary compli-ance schemes, particularly in an ingrained cultureof political decisions made in the shadows, are oftenineffective. However, the legal mandate of theadministering and enforcement body, and itsinstitutional arrangement, must fit the task of ensur-ing compliance including protections againstpolitical forces. Accordingly, the agency needs someform of independence, especially regarding its budget and protection of its status from the generalantipathy of many public of ficials.

All these prescriptions may sound idealistic notonly in the light of the Latin American experiencein the four countries considered above but alsogiven the experience of lobby laws in establisheddemocracies. Therefore, it is unlikely that mostcountries in Latin America will systematically planlobby regulations by themselves, let alone inconjunction with other good governance provisions.Ad hoc solutions resulting from crises and publicpressure, and consequently incrementalism, arelikely to be the way that such laws will be enactedand reformed. Nevertheless, the suggestions above based upon past experiences in Latin America and

in other countries regarding lobby laws are the onesmost likely to produce the gradual movement to-wards curbing the worst effects of lobby and, in conjunction with other provisions, working to reduce





political corruption. How each country attempts toachieve these policy objectives, if at all, in light of the general policy atmosphere that often surroundsthe enactment of such provisions is yet another chal-lenge faced by the re-emerging and emerging dem-ocracies of the region.

CONCLUSION: THE CHALLENGE OF THETHREE-WAY TENSION OF INTERESTGROUP ACTIVITY IN LATIN AMERICA

In its limited experience with lobby regulation, atleast based on the case studies presented here, LatinAmerica illustrates a broader and often remarked-upon aspect of interest group activity in a democ-racy. This is the three-way tension among theindispensability of interest groups to democracy,their influence (as both a positive and negative

force), and the need to regulate them to protect thepublic interest. Interest groups are a mixed blessingfor democracy, and this fact is hard to accept by thepublic in many advanced democracies, let aloneinfant democracies as in Latin America. This iscertainly evident in the somewhat dashed hopesfor lobby regulation and its role in reducing politicalcorruption in the region. Even in the absence of hardempirical evidence, the variety of sources we haveused and the arguments we have presented providestrong support for the contention set out in ourintroduction that by themselves lobby regulations

cannot eliminate political corruption as the publicperception assumes.

In this regard, the experience with lobby laws inLatin America exhibits many of the problems longidentified with lobby regulation across westerndemocracies, with the limited success of these lawsin the region being compounded by all the politicalteething troubles of re-emerging and transitionaldemocracies. As the experience of the establisheddemocracies demonstrates, lobbying regulation brings better results when part of a broader regula-tory framework for good governance (Transparency

International, 2008: 4); and combination also tendsto promote open access to the public of ficials bothelected and appointed (OECD, 2008: 19).

Yet, as we have noted, looked at from anotherangle, even the limited success of lobby regulationand the continuing presence of the issue on thepolicy agenda across Latin America are a positivesign for Latin American democracy. The challengenow is to strengthen that democracy by buildingan understanding of the strengths and limitationsof interest groups and lobbying and of lobbyregulation. Most important of all is to gain thesupport, or at least the acquiescence of public

of ficials, to lobby regulations and their value.A pattern of results is yet to emerge regarding

lobby regulation and related provisions in the re-gion and probably will be different in each country.

Plus, reflecting the diversity across the region, somecountries will likely make good progress in this re-gard, and others will not. Despite this, it appearsthat the countries of the region, especially Brazil,Chile, Argentina, and Peru, would benefit fromdeveloping and enforcing their existing regulatory

framework for lobbying activities. Indeed, therewould be positive gains on corruption perceptionand also on economic ef ficiency because of the re-duction of the costs that often result from back-room and unaccountable decision-making.

BIOGRAPHICAL NOTES

Luiz Alberto dos Santos holds a PhD in SocialSciences from the University of Brasília and is theauthor of several publications on public administra-

tion and interest groups. Since 2003, Mr Santos has been Deputy Chief of Staff of the Executive Of ficeof the Brazilian President.

Paulo Mauricio Teixeira da Costa holds a Bachelor’sdegree in Law and a Masters degree in Governanceand Development from the University of Sussex,UK. Currently, he is a Public Management Specialistat the Brazilian Ministry of Planning, Budget andManagement.

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