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What is lobby? Is such a practice a crime in Brazil?

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There are several denominations that intend to identify people who exert direct or indirect influence to defend the interests of somebody next to public and private organs. Usually the names used for this definition orbit between the terms “institutional relations,” “government relations,” “consulting,” and the term “lobby” often seems to be avoided.

There are controversies about the origin of the term “lobby” since there are records that it is an expression of American origin that appeared more than two centuries ago. The then-President Ulysses Grant (who ruled the United States between 1864-1869) was fond of cognac and cigars, which were consumed at the end of work days. This consumption occurred in the lobby of the hotel Willard, when he was approached by a series of people who asked the President for help and tried to influence him on some matters, since at that time it was possible to access him personally. Ulysses referred to people as “the lobbyists of the Willard Hotel” and, over time, the expression became popular. On the other hand, it has been reported that the phrase emerged in England, precisely in the corridors and vestibules of Parliament – lobby, lobbies – where people met in an attempt to get closer and influence in parliamentarians about to vote bills.

In the United States the activity of lobbyists is regulated, with the requirement that they be accountable for their activities. In Europe, the issue is also controversial, with few countries regulating the issue, and yet, insufficiently. This is what a recent Transparency International document points out. As said, in Brazil the term “lobby” seems to be avoided, which is said to happen because of non-regulation and ignorance of the subject.

Its concept is imprecise and there is no legal definition. Although it is usually understood as synonymous with illicit acts, especially tainted by corruption, its concept originally refers to something more neutral. It can be said that this is the activity carried out by someone with the purpose of influencing the public power so that certain measures or decisions can be obtained from it.

Despite the non-regulation in our legal system, we must devote certain attention to some types of criminal law that cover some characteristics usually included in the understanding of what is “lobby” in Brazil. Corruption (passive and active, pursuant to articles 317 and 333, CP), administrative advocacy (article 321, CP) and influence traffic (article 332, CP).

Crime of corruption

Crime of corruption

The crime of corruption is divided in the conduct of those who corrupt and who is corrupted, therefore, in the passive (art 317, CP) and active (art 333, CP) modalities. He who asks for or receives an undue advantage or accepts a promise to receive it, by reason of his function, practices a crime of passive corruption. That is, it is a crime committed by a civil servant. It should be noted, however, that although the nomen juris contains the expression “passive”, the practitioner may have an active role, requesting an advantage to stop doing his job or to do something that is not in keeping with his or her functions. The crime of active corruption is committed by the corruptor and is given by offering some form of compensation for the public agent to do something that, within their functions, should not do, or fail to do something that should do.

It can be seen that conduct can involve a kind of understanding, a negotiation, something that may be between the lobbyist and the public official. It occurs that in the lobby, the intention to influence is not through the practice of illicit, but in political decisions, adjustments and arguments of interest of the parties.

Administrative law, however, involves the conduct of those who, as a public official, sponsor a private interest before the Administration, making use of the status of an employee. It is the defense of private interest (any purpose, goal or objective, legitimate or illegitimate) by public officials with colleagues, enjoying the influence it holds with them. It would be a common practice for lobbyists who, however, could not be civil servants, hence a big difference to lobby practice.

As for the criminalization of influence traffic, it would have arisen “when Emperor Alexander Severus learned that a certain Vetronius, who attended the Court, received money under the pretext of influencing government decisions, ordered that he be placed in a damp straw fire and green firewood. He came to die, not by the fire, but suffocated by the smoke ( fumus ), while a clerk loudly proclaimed: fumu punitur qui fumun vendit (it punishes itself with the smoke that sells the smoke). To this day, in Italian doctrine, because of the historical origin of the crime, it is also known as the sale of smoke ( vendita di fumo ) “(COSTA JR., 1989, page 513).

It is an incrimination that aims to punish those who deceive others (who receive nothing in return for the advantage or promise of advantage) and also depreciates the Public Administration, which is exposed to discredit. It is fundamental, for the purpose of typicality, that the active subject should attribute prestige to a public official (not having one), so that the conduct conforms to a sui generis species of estelionate.

  It is thus seen that in traffic of influence the active subject uses trickery to induce the taxable person in error, who believes that there will be influence exercised before a public official. This is not a real act of lobbying insofar as the lobbyist is concerned that his activity, in fact, influences the public official and thus justifies his reputation as an influencer and his fees.

It remains clear, therefore, that there are some criminal conduct that at some point may resemble lobbying practices, but nevertheless they are not confused with them, considering “lobby” in terms of non-unlawful conduct for the defense of interests of a group, together with public authorities, in order to influence them and to take measures or decisions useful to them. The lobby, therefore, can take place in any area of ‚Äč‚Äčlife, not just in the political arena and, above all, it would not concern spurious practices.

Finally, we mentioned a few words about the regulation of lobbying activity in the country, taking into account that this would provide, at least in theory, better prospects for this type of professional to act insofar as this would allow greater transparency.

Well. The regulation of the lobby in the country is not something peaceful, and the debate is divided in favorable and contrary opinions. Favorable arguments are basically based on the need to promote greater transparency in lobbying activities. On the other hand, the arguments put forward argue that regulation creates obstacles for the entry of the least influential and prevents certain confidentiality that is necessary for the most effective action.

In Brazil, there are some draft laws awaiting deliberation in the Chamber and Senate, notably Bill 1202/2007 by Carlos Zarattini, who intends to define norms that must be fulfilled in activities involving any type of lobby, and also defines the limits to the act. For example, it determines that it is the responsibility of the General Comptroller of the Union to accredit the entities that can practice the lobby. There is also Bill 6132/199, authored by former Senator Marco Maciel and Bill 6928/2002, authored by Deputy Vanessa Grazziotin. However, the projects are halted, with no short-term prediction.

As for us, we understand that as long as there is no proper regulation of the activity in the country, we will live times with little transparency of the interests defended with the public authorities, which, it seems, incompatible with the democratic dictates inscribed in our Constitution.