Fundamental aspects of lobbyism and trading in influence

Fundamental aspects of lobbyism and trading in influence
Dec. 11, 2023
The diminishing ability of political parties to be the main representatives of socio-group interests and the resulting crisis of party-political representation elevates lobbying to a current and significant phenomenon on the political scene with noteworthy legal significance.
Lobbying can be defined as the process of influencing public policy - legislative and governmental. Essentially, it represents a form of advocacy for a specific goal, expressing a particular group interest or viewpoint on a public issue. Currently, this process focuses primarily on the executive sphere, and with respect to it, a structured legal framework is notably absent. In the Republic of Bulgaria, there is a lack of legislation specifically addressing lobbying, a distinction from jurisdictions like the United States where comprehensive enactments such as the Lobbying Disclosure Act and the Foreign Corrupt Practices Act of 1977 (FCPA) exist. The latter was enacted in response to irregularities involving extraterritorial payments by entities such as Northrop, Lockheed, United Brands, Gulf Oil, etc., during 1975-1976, prompting amendments to the Securities Exchange Act of 1934).
The objects of lobbying activity include the organs of state authority at central and local levels. The subject of lobbying is usually an interested influential group or individual, and the subject of lobbying activity is the specific problem of the group of citizens who lobby in defense of their interests and values.
Lobbying activities are often carried out for public procurement, the recognition of a certain industry as a priority, tax relief, the recognition of an enterprise as falling under the influence of a certain law, the acceptance or rejection of a favorable/unfavorable bill, administrative decisions in favor of the lobbying group, commercial agreements, and more.
Lobbyism, as a legal and legitimate activity in democratic conditions, is impossible without appropriate regulatory framework. It is crucial to regulate and sanction the actions of groups and individuals that undermine public interest and commit crimes under the law (corruption, bribery, etc.). The specific legal norms are the ones that distinguish legitimate lobbying actions from unlawful criminal acts.
In the Republic of Bulgaria, activities related to lobbying are indirectly regulated by various laws such as the Law on Public Administration, the Law on the Civil Service, and the Law on Access to Public Information. The Law on the Ombudsman in Bulgaria also has indirect relevance to lobbying. Specifically related to the regulation of lobbying activities, the Law on the Prevention and Disclosure of Conflict of Interest, initially enacted in 2009, and subsequently the Law for Counteracting Corruption and the withdrawal of illegally acquired property, as well as the current Law on Counteracting Corruption in force since October 6, 2023, is applicable as the framework directly regulates activities related to lobbying.
Placing lobbying activities under the control of the state or civil society institutions serves as a guarantee that lobbying will not evolve into corruption or other criminal activities.
Lobbying activities, in this line of thought, should be clearly distinguished from "trading in influence". The latter is defined in the Criminal Convention on Corruption of the Council of Europe (1999), to which the Republic of Bulgaria acceded in 2002. According to the definition given there, " trading in influence" involves promising, giving, or offering, directly or indirectly, any undue advantage to anyone claiming or confirming that they can influence decision-making.
The Convention qualifies the trading in influence as a crime and a specific form of corrupt behavior, covering the receipt of benefits by high-ranking officials due to the influence they exert. In 2002, with amendments to the Criminal Code, " trading in influence " was explicitly regulated as a crime, inculcated through a special new text - Article 304b of the Criminal Code. As of today, there is still a limited judicial practice on the aforementioned provision.
Corrupt acts, in the spirit of the Criminal Code, involve crimes where an unregulated social exchange of goods occurs, and such activities can take place in both the public and private sectors.
Тrading in influence, essentially, is a crime where the actor seeks or accepts a gift or any undue advantage not due to them or accepts an offer or promise of a gift or advantage to influence a decision by an official in connection with their duties. The perpetrator can be any criminally liable person, without the necessity of holding an official position. Characteristic of the subject of this crime is that they are not a direct participant in the corrupt transaction, but it is essential that they have the objective ability to exert influence. The feasibility of the commitment is crucial, and whether it is actually fulfilled is irrelevant. Responsible is also the one who offers, promises, or gives a gift or any undue advantage to a person claiming that they can influence. Both cases are treated as intentional. Influence trading often manifests itself in privatization deals and public procurement.
Used literature:
  1. Tsakova, I., "Lobbyism," published by Damyan Yakov, 2010.