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Lobbying in legislative proceedings: negative and positive aspects
DOI: http://dx.doi.org/10.14420/en.2015.1.6
Ruslan Yurievich Magomedov, Master of Jurisprudence, military servant, production methods engineer (oil-products quality control), Head of the Fuel Service at the military unit, e-mail: [email protected]
Abstract. The article presents the analysis of negative and positive aspects of
lobbying in legislative proceedings. The author considers lobbying methods and kinds of lobbying groups, specifies stages of the legislative process, of which lobbying is most typical. The author points out that negative manifestations of lobbyism in many cases are caused by imperfections of existing parliamentary procedures or by the fact such procedures are not sufficiently elaborated. Keywords: lobbying, legislative proceedings, shadow lobbying, monitoring of
legal space, State Duma of the Russian Federation, factions.
SIn all countries legislative proceedings depend in many instances upon lobbying on the part of various political forces. That is why it is quite topical to discuss issues of assessing positive and negative aspects of the impact lobbying makes. As evidenced by practice, effectiveness of the shadow lobbying mostly depends upon methods of influencing the content of the activity, related to execution of the right to legislative initiative.
In some instances a legislative proposal is prepared under direct instructions of individual representatives of business and entrepreneurial business, financial groups, or commercial organisations, while simultaneously there is developed a certain strategy on promoting the prepared legislative proposal through stages of the legislative proceedings1. On the stage when the legislative proposal is passing the legislative body there are used the following lobbying methods: lobbyists address factions and parliamentary committees in order to gain their support; lobbying groups participate in meetings of committees, commissions and working groups. Another possible form of lobbying is when a supporter among members of the parliament brings a certain motion forward in the order of exercising his or her right to legislative initiative. Support can also be provided by deputies or members of the Federation Council who do not have a concise position of their own on the legislative proposal being discussed, but may vote for adopting the law in the situation when their opinion can prove to be decisive.
The influence exerted by lobbyists on legislative proceedings, in many
1 See: Chekharina V.I. Pravo zakonodatel'noi iniciativy i ego vliyanie na process stabilizacii zakona // Koncepciya stabil'nosti zakona [The right of legislative initiative and its influence on the process of stabilization of the law // The conception of stability of laws]. - M., 2012. - P. 94.
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cases is connected with procedures of making amendments to the bill, refining the legislative proposal by committees, actual voting on the proposed law, working of conciliatory commissions.
Negative manifestations of lobbyism in legislative proceedings can be accounted for deficiencies in regulating particular parliamentary procedures. For example, as provided by Article 108, Para 3 of Procedural Rules of the State Duma of the Russian Federation (hereinafter referred to as the Rules), if, in the opinion of the profile committee, requirements to proper execution of the bill being introduced to the legislative body are not met, the Council of the State Duma at the suggestion of this committee makes the decision to return the bill to the holder of the right to legislative initiative. In this case the bill will not be considered as introduced to the State Duma. Analysis of the said prescription of the Rules allows to state with a sufficient degree of certainty that these vested in the committee powers to perform acts with regard to assessing the bill being introduced, provide the committee with a possibility to independently determine the destiny of the proposed law in how it is moving through stages in the legislative body. Having full discretion to do so, the committee can just not give the permit for the draft law to be considered by the parliament, which, as a matter of fact, means that the profile committee rejects the legislative initiative already at the stage when it is being introduced to the legislative body.
As one of the problems there remains an inadequate detalisation of parliamentary procedures connected with obtaining a Conclusion of the Government of the Russian Federation required for proposals pertaining to the financial field (Article 104, Part 3 of the Constitution of the Russian Federation). According to stipulations of Article 105 of the Rules, it is the holder of the right to legislative initiative himself or herself who is to obtain the Conclusion of the Government of the Russian Federation; so, when introducing to a legislative body a bill, which falls under the category of bills specified by Article 104, Part 3 of the Constitution of the Russian Federation, he or she has to meet the requirement that such introduction is possible only in the presence of the Conclusion of the Government of the Russian Federation. Thus, being holders of the right, in cases subject to obtaining the Conclusion of the Government of the Russian Federation, initiators are assigned with the task to appraise if the draft legislation they are introducing to the State Duma falls under the action of Article 104, Part 3 of the Constitution of the Russian Federation or not, and to submit their bill to the government of the Russian Federation together with its financial justification. It takes a lot of skill and time to define the financial nature of the draft legislation, and no financial justification can be prepared without having special knowledge in the fields of budget, taxes, finance and economics. The said task is only complicated by the fact that at the present time there are no concise criteria to determine if a particular legislative draft (in the terms of its content) does belong to the category of so-called financial bills, which must meet the requirements stipulated by Article 104, Part 3 of the Constitution of the Russian Federation. In view of the indicated circumstances, right holders are facing limitations of their right to exercise legislative initiative, since initiation of bills is blocked already at the stage of submitting them to the legislative body. As a consequence, there appear ample possibilities for illicit promoting financial bills by way of shadow lobbying, which occasionally leads to cases of manage to avoid fulfilling certain financial
Ruslan Magomedov. Lobbying in legislative proceedings: negative and positive aspects
obligations and to other financial infringements.
Planning legislative activity is a topical countermeasure against shadow lobbying today1. Based on scientific forecasts planning affords an opportunity to get a broad picture of current objectives and strategic goals, find optimal solutions of legal problems, which will most correctly count for the public interest. In its own way planning per se functions as a channel of information for lawmakers, thus creating such conditions that contribute to successful preparation of a legislative act, providing for the basis to control the deadlines and the compliance of the form with the content. The latter means that planning also allows to control whether the form of the draft legislative act as a well-defined juridical category is in full compliance with the content of the legal problem, which this particular act is designed to solve. In this way planning decreases the probability of spontaneity in lawmaking, and prevents influencing the process by individual concerned subjects.
In order to prevent shadow lobbying and its negative effects, there can be arranged discussions of particularly vexed questions that demand to be settled by legislative regulation means. Such discussions can be held within the framework of sessions, «round tables», parliamentary hearings, scientific conferences. Representatives of various political and social classes and the scientific community should be involved in such debate. Open discussions and publication of materials that would disclose results of these discussions, including publications in mass media, provide public exchange of opinions and developing align positions on most controversial issues of the subject under discussion. Besides, they contribute to identifing the actual demand for adoption of the specific legislative act, its immediate and long-term goals, and expected results, thus they act as an effective preventive measure.
A wider use of the data received by monitoring legal space and law enforcement practices also presents an efficient tool to be applied in lawmaking. The fundamental component of such monitoring is the complex analysis based on the system of observations. Herewith we should analyse both the regulation sphere itself, and the necessity, possibility and adequacy of existing legal regulations with regard to actual relations in this sphere, and currently happening real changes. An essential feature inherent in the given type of monitoring is that it allows to take into account manifold interests, examples of possible interactions between subjects of lobbying and legal structures, their participation in preparing legislative proposals on key aspects of the corresponding sphere of activities. The meaning of these procedures is that they provide a tool for convincing subjects of legislative initiative, as well as the parliament, of advisability to introduce such legislative settings that will have a special public significance.
In the first instance, the positive nature of lobbyism manifests itself in the fact that it enables expansion of the informational and organisational base with regard to decisions to be made. In a sense, lobbyism allows to «refresh» topical lists of social claims that need legal regulation, attract attention of the legislator
1 See: Mazurenko A.P. Pravotvorcheskaya politika kak sposob optimizacii pravotvorchestva v Ros-siiskoi Federacii // Pravotvorchestvo v Rossiiskoi Federacii: problemy teorii i praktiki: Sbornik nauchnyh statei. - Moscow, 2010. - P. 245 [Lawmaking Policy as a Method to Optimize Lawmaking Process in the Russian Federation // Lawmaking in the Russian Federation: Problems of Theory and Practice: a collected volume of scientific articles].
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to existing problems. Its main positive effect on the legislative process is that lobbying provides openness of the given process, transparency for control on the part of the society, publicity. It means that due to lobbying the public is provided with full, comprehensible, and timely information on parliamentary events related to considering a specific legislative draft; procedural rules concerning work on a particular legislative draft, performed by committees and commissions; formation procedures, composition and activities of working groups. Lobbying promotes development of democratic traditions and institutes, helps to bear down attempts to block or reject really necessary legislation solutions aimed to satisfy publicly significant legislative interests, and decrease a probability of adopting arbitrary legislation solutions. It also contributes to social and political anonymity.
To sum it all up, we should note that lobbying is in the first place to be socially efficient, which will be evidenced by the actually achieved level of meeting primary public interest demands. In order to make lobbying a better instrument in lawmaking process, it appears advisable to improve its legal regulation.
References:
1. The Constitution of the Russian Federation.
2. Reglament Gosudarstvennoi Dumy Federal'nogo Sobraniya Rossiiskoi Federacii. [The Procedural Rules of the State Duma of the Federal Assembly of the Russian Federation]: adopted by the Decree of the State Duma of the Federal Assembly of the Russian Federation dated 22 January 1998 №
2134—ii rq.
3. Mazurenko A.P. Pravotvorcheskaya politika kak sposob optimizacii pravotvorchestva v Rossiiskoi Federacii // Pravotvorchestvo v Rossiiskoi Federacii: problemy teorii i praktiki: Sbornik nauchnyh statei. - Moscow, 2010. - P. 245 [Lawmaking Policy as a Method to Optimize Lawmaking Process in the Russian Federation // Lawmaking in the Russian Federation: Problems of Theory and Practice: a collected volume of scientific articles].
4. Chekharina V.I. Pravo zakonodatel'noi iniciativy i ego vliyanie na process stabilizacii zakona // Koncepciya stabil'nosti zakona. - M., 2012. - P. 94. [The right of legislative initiative and its influence on the process of stabilization of the law // The conception of stability of laws].
