Lobbying and bribing are they really different, if so, how?

Protagonists of lobbying say that it is different from bribing. They might well add, ‘Vive La the Difference.’ The controversy surrounding the news of Wal-Mart’s investigations into bribery by its staff in India, has stirred a hornet’s nest among Indian politicians, business persons and lobbyists. There are two opposite views. One holds that lobbying is a legitimate activity. Many people incredulously ask, ‘But, isn’t lobbying legal?’ Their logic is that if it is legal in USA, why not here? The other view is that it is bribery. There is no law the regulate lobbying in India.

 The pro-lobbying group suggests that statutory protection be provided for the activity. One even claimed it as a fundamental right. Courts in the US equate the right to lobby to the right of free expression. Hence, one could understand the assertion that lobbying is a fundamental right. The US example is quoted in justification of the right to lobby and the need for a law to legitimise it. Those for lobbying would like to differentiate it from bribing. What is the difference? How valid is the proposition that lobbying is not bribing? A look at the meaning of the words, ‘lobby’ and ‘bribe’ could help resolve the matter. A ‘bribe’ is defined as, “Something, such as money or a favour, offered or given to a person in a position of trust to influence that person’s views or conduct”, “Something serving to influence or persuade”.

The word, ‘lobby’ is both a noun as well as a verb. In its noun form, it refers to a room providing space out of which other rooms or corridors lead, a foyer or waiting room or vestibule, near the entrance to a public building or a public room next to the assembly chamber of a legislative body. As a verb, “Lobby” means “To influence a politician or public official on an issue”. The perversion of governance or justice in a broader sense, to suit certain interests, not just the legislative or legal system, is the crux. It is immaterial whether the inducement is a bribe or something equally persuasive.

According to dictionaries, both lobbying and bribing have the same intention – that of influencing a public official or politician to accept a certain view to the advantage of the person who does the lobbying or bribing. If so, how could one justify lobbying as legitimate? How does USA, which prides itself on being not corrupt in comparison to Asian and third world countries, legalise lobbying?

The history of lobbying in the US is centuries old. It draws sustenance from the First Amendment of 1791. ‘Lobbyist’ is a word first used to describe people who gathered in a lobby near 17th century England’s House of Commons to express their views to Parliament members. The first US law for lobbying was enacted in 1946. Citizens who came seeking legislative favours in USA in the 19th century were called ‘Lobby-agents.’ Now, lobbyists ply their trade not only near legislatures, but also in clubs, hotels, resorts and cocktail parties.  The US has a law titled, ‘The Lobbying Disclosure Act, 1995,’ which prescribes mandatory registration of lobby firms and the filing of information giving details of amounts spent and purpose for which the expenditure was incurred. The ostensible rationale is that transparency would eliminate corruption. Whether it would or not is both a matter of perception and convenience.

The Anti-Kickback Act

Everyone would agree that ‘Kickbacks’ are bribes, plain and simple. The US has a law called, ‘The Anti-Kickback Act.’ It provides for both civil and criminal prosecution for offering and / or receiving bribes or favours. These laws, ‘The Anti-Kickback Act’, ‘The Lobby Disclosure Act’, ‘The False Claims Act’ etc. were all found necessary by the people of the US and its various governments to prevent corporates from exercising undue influence on politicians and bureaucrats to align policies to benefit business interests.

These laws are similar to the India’s Prevention of Corruption Act. Unfortunately, the laws do not seem to have worked. The 2007 – 08 financial meltdown was caused by lobbies that led the deregulation ‘reforms’ of the ‘Roaring ’90s’ right up to the day of reckoning.
That lobbying is justified using the ‘First Amendment’ is a sad reflection on how the intent of law-makers could be twisted to suit private interests. The ‘First Amendment’ says, “Congress shall make no law -- abridging the right of people peaceably – to petition the government for redress of grievances”. Far from protecting the right of ‘people to petition the government”,’lobbying has become an instrument in the hands of businesses to subvert the legislative process to suit their business.

The issue of lobbying came into the limelight because of the sharp differences among political parties on the ‘FDI in retail’ debate in Parliament. Wal-Mart became synonymous with retail FDI in the debates. The news of Wal-Mart’s lobbying spend was subject of intense speculation. The hue and cry over it has led to the government of India to concede an inquiry into it. Whether Wal-Mart bribed people in India is unlikely to be known from a judicial inquiry. It would require a deeper police investigation into international money transactions.

Perhaps, if the apologists for lobbying care to study the practice in the US of A, they might not be as vociferous as they now are, in their advocacy of the pernicious practice. If transparency to prevent bribing were the intent of lobbying disclosure, it would be better to make government really open. Instead of merely filing forms to disclose amounts spent and state the purpose in a sentence, why not mandate televising the lobbying proceedings? It would show up who in business met whom in government, for what purpose and how the government reacted to the lobbyist’s pitch. The concept of ‘honest leadership’ demands such transparency.