project that regulates the activity opens loopholes for corruption

Approved at the end of last year in the Chamber of Deputies, the bill to regulate lobbying in Brazil begins to be discussed in the Senate after the end of the parliamentary recess, on February 1st. But the text that passed turned on the warning signal. According to experts, the proposal opens loopholes for corruption.

The original project had been presented in 2007 with the objective of regulating the activity practiced by people who seek public agents to defend the points of view of interest groups in public policies – lobbying, or “representation of interests”, as the activity is called. in the approved text.

The proposal gained strength in 2022 with a text sent to the House by the government of then President Jair Bolsonaro (PL). The rapporteur in the House, Lafayette de Andrada (Republicanos-MG), changed points in the proposal and took it straight to the plenary, where it was approved at the drop of a hat, disregarding matters previously discussed in the House committees.

Experts claim that the text approved by the deputies has loopholes for acts that can configure corruption. For example: although several sections of the project prohibit the receipt, by public agents, of any undue advantage offered by lobbyists, the granting of gifts is allowed – defined as “item of low economic value distributed in a generalized way as a courtesy, advertising or customary disclosure”.

The text approved by the deputies also authorizes the so-called “legitimate hospitality”, defined as “offering a service or paying expenses with transportation, food, accommodation, courses, seminars, congresses, events and fairs”.

At this point, experts warn of the possibility of companies paying benefits to public agents, offering tourism packages, plane tickets, accommodation in luxury hotels and expensive dinners, on the pretext of taking them to an event related to their area. of acting.

The approved text requires that “the values ​​are compatible, in the event that the same hospitality is offered to other people under the same conditions”. The wording, however, is considered vague, leaving ample room for interpretation of what “compatible values” are. And the law does not define what an investigation of non-compliance with this rule would look like or what the punishment would be for those who break the law.

The part relating to the accountability of public agents or lobbyists is limited to establishing sanctions for those who fail to disclose information on the subject discussed, participants and interests represented in meetings that may be held in the discussion of some public policy or project. Failure to comply with these rules would be investigated by the public agent’s own body – which would be subject to disciplinary punishments, ranging from warning to dismissal, in addition to fines. Lobbyists could also be punished with fines and suspension of their activities with that body. For individuals, the fine can vary between one and ten minimum wages (from R$ 1,302 to R$ 13,020 in 2023 values).

Critics of the project also question the lack of mandatory disclosure of documents, studies and opinions that lobbyists usually deliver to public bodies to influence decision-making on a given public policy.

On the contrary, the proposal protects such information. Only with the prior consent of the lobbying company may the public agent disclose “private information”. This includes, according to the project, “marketing or commercial data whose publicity may compromise the direct attraction of investments, economic development, industrial activity, freedom to undertake, innovation, job creation and the competitive environment”.

In the case of non-profit entities (NGOs) that are doing some kind of lobbying, the requirement of prior authorization from them for the disclosure of documents delivered to the public sector applies to private information “that exposes a strategy or sensitive data for the represented whose interest be it a social cause or a specific purpose”. They are terms considered vague that can characterize any information that is considered sensitive for an NGO, for example.

Project opens loophole for targeting bids

The rules on lobbying provided for in the project are not just worth influencing decision-making on public policies, administrative acts and regulations of a given activity. The proposal also admits that there is influence to define how public sector tenders and contracts will be carried out.

This is another point of the proposal questioned by specialists. In major cases of corruption in the public sector, it is common for companies that want to defraud public tenders to send specifications of products or services that only they can offer to the public body or state, so that it is the only one that can win the bid. By not obliging companies to disclose the documents sent to the public sector, the proposal fails to provide transparency to this type of illicit influence.

Project authorizes lobbying in all spheres of power, including Judiciary and MP

The bill regulates not only lobbying in the Executive and Legislative branches, but also in the Judiciary, the Public Prosecutor’s Office (MP) and the Federal Audit Court (TCU). In such cases, lobbying could be carried out with occupants of positions with an “executive function” – this is a vague term, which would only be defined “under the terms of the regulation to be edited” by these same bodies, according to the text approved by deputies.

Another part of the proposal deals with authorities at the top of all powers, such as elected politicians, government ministers, presidents and directors of state-owned companies, ministers of superior courts and heads of the various branches of the Public Ministry. All are treated in the project as “politically exposed persons” who, “due to the nature of the functions performed”, will be entitled to “specific objective rules for the supervision of financial operations”.

In practice, they will have greater shielding in case of suspected suspicious transactions. They continue to be more protected even after leaving office, for a period of five years. “The condition of politically exposed person lasts for 5 (five) years from the date on which the person ceased to appear in any of the positions”, says an excerpt from the proposal.

“We have a disguised way of legalizing corruption”, says prosecutor

Attorney Roberto Livianu, president of the Instituto Não Accept Corrupção, criticizes the project approved by the deputies. “To get an idea of ​​the risks we are taking with regard to lobbying, the absurd legitimization of offering expensive gifts to public agents, as well as their participation in seminars and luxury fairs, on the initiative of businessmen, who may legally inviting parliamentarians and other public agents, naturalizing these practices as if there were no conflict of interests. Here we have a disguised and refined way of legalizing corruption”, says Livianu.

In his opinion on the project, the deputy Lafayette de Andrada (Republicanos-MG) defended the text. He says that it has “mechanisms that enable social control of democratic processes and encourage the legitimate representation of interests, constitutionally guaranteed, always based on transparency and access to information”.

NGOs complain of “disadvantage” in lobbying in relation to private companies

The project that regulates lobbying has also been the target of criticism from non-profit organizations. NGOs fear that the proposal puts them at a disadvantage compared to private companies in the activity of pressuring and convincing the public sector to adhere to their agendas.

The main criticisms come from NGOs in the environmental area and entities that represent minorities and advocate for progressive agendas. They argue that they cannot submit to the same rules applied to companies, especially in fines that can reach up to 5% of the gross revenue of an organization, as foreseen in the project.

“A penalty imposed on a non-economic, indigenous or quilombola organization, for example, would not have the same impact as if imposed on an institution in the industrial, mining or agribusiness sectors”, says a manifesto signed in November by more than 70 entities. , including the Landless Rural Workers Movement (MST), the National LGBTI Alliance, Greenpeace Brazil, the Brazilian Commission for Justice and Peace (CBJP) of the CNBB, the Brazilian Institute for Consumer Defense (Idec), among many others of organized civil society.