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The Warsaw Voice » Law » October 8, 2008
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Shaping Reality - Lobbying Revisited
October 8, 2008   
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The era when laws were carved in stone has long gone. Surprisingly many of the decision makers on both sides of the mythical business-politics barricade still think about the law in terms of the Ten Commandments and Hammurabi's Code. While this approach could be in many ways arguable, there should be no doubt that the process of lawmaking has fundamentally changed since those two famous legal developments. To take a liberty with the U.S. Constitution - it's we, the people that own this process, from the first draft of any bill to its becoming the law of the land. Let us take a closer look at the consequences of this simple but overshadowed truth.

The Polish experience with lobbying activities led to a strange phenomenon - the word "lobbying" almost immediately triggers a response to "excommunicate." Our lawmakers tend to religiously believe that once elected they hold the monopoly to decide what is right for their people. No surprise that they are reluctant to listen to solutions and proposals coming from their electors. Instead, Polish parliamentarians would rather spend time in their respective districts responding to individual requests for help - about a new road in the countryside or unemployment problems - all of which should be dealt with at the local level and by the local authorities. When making crucial decisions of national importance, Polish parliamentarians frequently rely solely on the analysis provided by the government, and in practice by the administration - very often overworked and understaffed. Individual parliamentarians lack the resources to hire staffers, qualified to provide insightful legal, economic or social analyses. At the same time they are wary of taking into account information from the "outside world".

All this is rooted in the fear of corruption allegations and unclear comingling of business and politics, in spite of the fact that lobbying has been regulated by the act of July 7, 2005 on lobbying activities in the lawmaking process and the right to petition is enshrined in art. 63 of the Polish Constitution.

In the United States, every legal discussion has roots in the Constitution. Also lobbying activities are guaranteed by the Constitution, namely its First Amendment specifically prohibits Congress from abridging "the right of the people ... to petition the Government for redress of grievances." That is probably no explanation why there are more than 17,000 federal lobbyists in Washington compared to 126 registered in Poland. The reason is efficiency.

U.S. congressmen and senators know very well that they cannot afford to make wrong decisions. Even though they cannot avoid them, they are willing to listen to different views before they vote. In simple terms, it's cheaper to read analyses prepared by others and then to refine them as compared to wasting millions in public money for extensive research that should precede any legislative action.

Lobbying activities are also tightly regulated by Lobbying Disclosure Act of 1995 and Honest Leadership and Open Government Act of 2007, but the regulations do not inhibit lobbying activities. Even though Washington is not free from lobbying scandals, such as the one with Jack Abramoff, the constitutionally guaranteed freedom to petition remains unabridged.

What is lobbying actually? It could be described as a process of advocating one's interests in the course of legislative proceedings on different levels. It's very similar to arguing a case in a court, only in lobbying the law is not applied but it's being made. We have many tools at our disposal to shape reality. However, our first step should be to define our goals in the process. It's only after we have a clear vision of what we want to achieve we may proceed with the next steps.

A standard procedure could look as follows. The government publishes its legislative plan. After a bill is published we may formally express an interest in the proposed draft. This opens us a door to file amendments to the bill. Furthermore we may demand a public hearing regarding the proposed legislation. Once the draft makes it to the parliament a professional lobbyist may actively participate in the committee hearings to present their case.

What are the advantages of engaging in the legislative process? First of all, with a well prepared strategy we have a real chance of communicating our agenda to the decision makers and potential partners in society. Secondly, we are able to prepare better for potential changes, as we understand them much better. Finally and most importantly, we may successfully advocate changes in the law that may accommodate interest of organization.

Engagement in lobbying activities requires in-depth research and careful planning. However we should all bear in mind that the law should reflect the current needs of the citizens and it's the citizens that define their interests.

Ernest Jędrzejewski, Senior Associate, SALANS Warsaw
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