Lobbying in Romania v. Lobbying in the EU

A. General observations

Lobbying – a complex manifestation, with various approaches – needs to be analysed; and placed under regulations that should ensure equal competition between all actors and prevent the distortion of the democratic process.

Influencing the decision-making on level of public authority (lobbying, with a general meaning) is an unceasing phenomenon that would not disappear, but at best it would be regulated so that to create a better society, offering everybody equal opportunities to participate and change. In fact, we are dealing with a purely participatory democratic element, involving the presence of a group of active citizens, set to challenge the status quo one way or another.

This reality ensues from the fact that we live in a complex world, which we can change only by acting together, and not by ourselves. If we cannot change the world, we have to change ourselves, and not necessarily for the better. George Bernard Shaw said: “The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.”[1]. This attempt to change the world is perhaps an alternative definition of lobbying, seen as challenging the established order.

This reminds some of us of one of the biblical parables relevant for the desire to change by cooperating, i.e. the one in the Gospel according to Mark, chapter 2, verses 1–12, which narrates the healing of the paralytic at Capernaum. Without going into essential details, I wish to emphasise that, in their urge to see Jesus, some men came, bringing to Him a paralyzed man, carried by four of them. Since they could not get him to Jesus because of the crowd, they made an opening in the roof above Jesus by digging through it and then lowered the mat the man was lying on. They did something extraordinary; they saw the gathered crowd and realised they could not go in and decided to act quite unreasonably in order to change a de facto situation that was not favourable to a person in distress. Just like with lobbying, there is a group of people who decide to give priority to the interest of another party (their sick friend) and decide to cooperate, each being aware of the importance of the individual contribution to the collective effort. They succeeded only by joining forces; their action would have failed if each of them had cared only about their own interests[2].

To talk about lobbying is to talk about democracy, about the right to association and about politics in the broadest sense possible. Everybody ought to have the right to intervene in decision-making to prevent imbalance. Lobbying has, therefore, the key role balancing power, with any type of governance. Even the best legislators may commit mistakes if their decisions are not subject to control or challenge; even direct democracy can become a dictatorship if the majority rule is not counter-balanced. Institutional balance may thus be achieved through lobbying.

Lobbying also provides the ability to be flexible and adaptable, not to remain anchored to decisions made in a past context. This idea is illustrated by a great thinker of Greek-Roman antiquity, Cicero, who used in his writings the ship of state metaphor: “In politics it is irresponsible to take an unwavering stand when circumstances are always evolving and good men change their minds. Clinging to the same opinion no matter the cost has never been considered a virtue among statesmen. When at sea, it is best to run before a storm if your ship can’t make it to harbor. But if you can find safety by tacking back and forth, only a fool would hold a straight course rather than change directions and reach home. In the same way, a wise statesman should make peace with honor for his country the ultimate goal, as I have often said. It is our vision that must remain constant, not our words.”[3]

This does not imply giving up on major objectives, but only changing the approach to obtain these results and to make the necessary corrections (through lobbying, among other things).

Thus, we get to our times, where Cicero’s metaphor takes on a modern form – that of antifragility, as defined by Nicholas Taleb in the already famous writing Antifragile: Things That Gain from Disorder[4] – a property of organisms to adapt to extreme variations of the environment.

Lobbying, with its reactivity element, thus plays a key role enabling institutions and society to prosper and improve when confronted with disorder. Lobbying does not help anticipate the so-called “strategic surprises” (black swans, in Taleb’s words), which occur when least expected. Rather, this helps building that system which is able to cope with surprises and prosper.

In his essay “Learning to Love Volatility”[5], Taleb lists five principles meant to transform any structure into an antifragile one. In almost each principle we can highlight the positive role of lobbying as a catalyst for change. For example, rule 3 (“small is beautiful, but it is also efficient”) draws our attention to the danger of mammoth structures, whether public or private, that are rigid and unprepared for sudden changes. In this case, lobbying, as it represents various interests that challenge the given situation de facto or de jure, is able to bring the necessary innovation, drawing attention to the need for a change.

B. The study “Lobbying in Romania v. Lobbying in the EU”

The European Institute of Romania (EIR), as a public institution whose tasks include supporting the making and implementation of government policies, carried out in 2014, as well, an active research and development policy in close cooperation with the private sector – in this case, the Romanian Lobbying Registry Association. The aim was to promote well-founded public policies, based on prior analyses and debates, resulting in the publication of a highly scientific study with a positive impact on citizens’ lives: a study dedicated to how lobbying is treated in Romania, given that its impact on decision-making is becoming increasingly visible.

EIR published, therefore, the study Lobbying in Romania v. Lobbying in the EU, carried out by a valuable team of researchers including Professor Elena-Simina Tănăsescu (coordinator), Miruna Andreea Balosin, Cosmin Dima, Cristian Ducu, Ștefan Ilie Oanțã and Ramona Delia Popescu.

Tackling various issues, the authors aimed to clarify and present aspects such as: terminology and necessary concepts; interest and lobby groups in Romanian society; Romanian legislation on lobbying; ethical aspects of lobbying.

            [T]his study does not intend to provide a standard definition of lobby, nor to present guidelines for a possible future regulation, but rather to explore the existing options and, based on empirical evidence stemming from states in democratic transition and from states with extensive experience in regulating lobby, to understand the main consequences that different types of regulations could have on lobby in Romania.[6]

The terminological clarification of the concept of lobbying involves, in the researchers’ view, defining the democratic context, particularly the possible dichotomy public interestprivate interest. The analysis took into consideration the existence of interest groups, while allowing a clear demarcation of lobbying from related concepts such as advocacy or public relations. Thereby, a generic definition was identified: “broadly, lobbying refers to the action of influencing other people’s decision, whether or not the concerned decision is that of an individual, a group of individuals, a company or a governmental institution[7] (Chapter I. Terminology and concepts).

Having identified the general characteristics of lobbying, the study went on to make an inventory of the forms in which interest groups acted in the national public space until now and to present how they carried out lobby-specific activities, without a clear legal framework. The study also tried to identify the impact this phenomenon had on the establishment of Romanian democracy (Chapter II. Interest and lobby groups in Romanian society).

One major achievement of this study is represented by the inventory of all types of regulations and all types of legal norms covering lobbying activities. This led to a qualitative analysis on how those norms contributed to the development of lobbying in Romania, whether positively or negatively. Moreover, the differences between lobbying and criminal acts were highlighted, underlying repeatedly the difference between lobbying and traffic of influence (Chapter III. Romanian legislation on lobbying).

The ethical perspective on lobbying refers to the fact that “the emphasis is on self-regulation, i.e. on developing mechanisms of an ethical nature within the group of professionals and organisations representing interests of their own or of third parties”[8]. Ethical rules still in statu nascendi receive extended attention from the authors, providing an added value to the study in comparison to other studies made in Romania. The authors consider that lobbying gets a number of specific values: integrity, transparency, confidentiality and accuracy[9] (Chapter IV. Ethics in lobbying).

In its analysis on internal developments, the study also takes into consideration similar developments on European and national level, succeeding to demonstrate that “lobby and interest groups are legitimate elements of a liberal and participatory democracy[10].

Presenting identified solutions in terms of regulation (hard law) v. self-regulation (soft law), the study provides decision-makers and all concerned parties with a balanced approach, emphasising transparency and the need for “wide recognition of the existence of the lobby phenomenon”[11] (Conclusions: Transparency of interests and lobbying activities).

We can eventually conclude that “without offering miraculous recipes, the study represents a very useful invitation to debate and insight, on a complicated issue, offering several possible solutions”[12].

C. Launch conference on the topic Lobby, from theory to practice. Implications on the public policies, the business environment and the NGOs in Romania

The study’s ability to generate debate and insight was highlighted on 31 March 2015, during the launch conference.

With a large audience including representatives of the Romanian Parliament, the Ministry of Justice, the European Institute of Romania, the academic and business environments, experts in European affairs and lobbying, as well as representatives of the civil society, the media, etc., the conference proved to be a fertile ground for public debate on a controversial issue. The complexity of the issue was underlined by Mrs Laura Florea, president of the Romanian Lobbying Registry Association, who stated: “Lobby becomes a more and more complex form of communication, including when it concerns politicians, and transparency should be the watchword”[13].

George Bernard SHAW, Man and Superman (1903) “Maxims for Revolutionists”. See http://www.quotationspage.com/quote/692.html
[2] For further details, please see John C. MAXWELL, Think on these things: meditations for leaders (Meditați! Teme de gândire pentru lideri, translated by Marius Chitoșcã, published by Curtea Veche, Bucharest, 2012 – the Romanian language edition).
[3] Marcus Tullius Cicero, How to Run a Country: An Ancient Guide for Modern Leaders, Selected, translated, and with an introduction Selections and introduction by Philip Freeman, Princeton University Press, 2013, pp. 33-34.
[4] Nassim Nicholas TALEB, Antifragile: Things That Gain From Disorder, Random House, New York, 2012.
[5] Idem, “Learning to Love Volatility” in The Wall Street Journal, 16 November 2012, online at http://www.wsj.com/articles/SB10001424127887324735104578120953311383448
[6] Elena-Simina Tănăsescu (coordinator), Lobbying in Romania v. Lobbying in the EU, European Institute of Romania, Bucharest, 2015, p. 15.
[7] Elena-Simina Tănăsescu (coordinator), Lobbying in Romania v. Lobbying in the EU, European Institute of Romania, Bucharest, 2015, p. 33.
[8] Ibidem, p. 99.
[9] Ibidem, p. 108.
[10] Ibidem, p. 114.
[11] Ibidem, p. 118.
[12] Gabriela Drãgan, “Foreword” in Elena-Simina Tănăsescu (coordinator), Lobby in Romania vs. Lobby in the EU, European Institute of Romania, Bucharest, 2015, p. 8.
[13] Conference event report, available online at http://www.ier.ro/webfm_send/232456

Mihai Sebe, Ph. D.
Expert within the Research and Training in European Affairs Unit
European Institute of Romania

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