A6 b6 advocacy_sean_laird_2011 ocasi ed


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  • Antipathy towards lobbying by public at large heavily influenced by US experience and by high-profile but minor alleged transgressions among so-called “lobbyists”(though political finance is very different in Canada with both spending and contribution restrictions – “influence of money” factor remainsNew federal restrictions and reporting activities on all lobbyists
  • subject to 5-year cooling off period (with potential for full or partial exemption, but must be publicly annc’d)contact with whom by registered lobbyists prompts need for monthly reporting in Comlog (by Consultant Lobbyist or In-House lobbyist Organization)some government-initiated communications are exempt from DPOH ComLog reporting (but not if $ involved)Commissioner of Lobbying permitted to contact present or former DPOHs to verify info submitted by registered lobbyists (s. 91 of LA - clause 73)
  • highly variable even within countriesin almost all jurisdictions, charities are non-permitted to donate to parties or other political entitiessome countries have no financial limitsgreat variability in range of permitted activities in support of political partiesAlso restrictions on third-party advertising in some jurisdictions, e.g. Canadian federal
  • NGOs and foundations??? obliged by law – and often by their funders - to ensure that its activities and those of its grantees are not supportive of , and do not facilitate, terrorist activities, organizations or individualsgrantees may be required to provide certain information to meet funders’ “due diligence” requirements
  • Bullet #1 – This Policy states that the policy seeks to clarify the extent to which charities can usefully contribute to the development of public policy under the existing law.Bullet #1: Court decisions in Canada and EnglandThe (Canadian) Income Tax ActInterpretation of the Charities Directorate of the Canada Revenue Agency (CRA)
  • Bullet 1: to an amount calculated to be no more than an annual amount equal to 10% of the charity’s total resources and subject to sliding scale, according to size & timeBullet #2: ITA does not mention 10%;Bullet#3:
  • To be accepted it must be “charitable”. When that situation there are no limits.
  • A6 b6 advocacy_sean_laird_2011 ocasi ed

    1. 1. Managing Risk ….... by Knowing the AdvocacyRules An Advocacy School Workshop forOCASI – Ontario Council of Agencies Serving Immigrants W. Laird Hunter, Q.C and Sean Moore November 10-11, 2011 Toronto Advocacy School
    2. 2. The Issues Prevailing Political and Public-Policy Environment Different Structures – Different Rules • registered charities • non-charity NGOs Relevant Public Ethics Regimes • Lobbyists Registration • Political / Election Finance - political contributions - third party advertising * Restrictions on Advocacy for Recipients of Government $ * Canadian Charities, “political activities” and the CRA Regulatory Regimes Governing Anti-terrorism and Money- Laundering * Rules on Hospitality for Public Officials * Advocacy School
    3. 3. Prevailing Political andPublic-Policy Environment overall public suspicion about all manner of “lobbying” federal parties engage in “bidding war” on public ethics issues caught up in “accountability” narrative Harper Government’s antipathy towards those seeking federal largesse Government’s showy “crack-down” on lobbying and lobbyists and discouragement of NGO advocacy austerity ethos – substantial NGO funding cuts public concern about “charities” practices (e.g. C-470) Advocacy School
    4. 4. Different Structures – Different Rules Registered Charities Non-Charity NGOs Coalitions Unincorporated organizations Consultants Advocacy School
    5. 5. Lobbyists Registration Regimes exists at national (and , in some cases) sub- national level in: • Canada (feds and 7 - soon to be 9 – provinces and some cities) • U.S. (federal level and in all 50 states & many cities) • Australia (and some states) • European Community • Germany Advocacy School
    6. 6. Lobbyists Disclosure Laws In Canada since 1989 at federal level; provinces follow Propelled by minor scandal, matched with rapid expansion of lobbying trade focus has always been on Consultant Lobbyists; less so on In-House Lobbyists laws largely limited to public disclosure requirements much more aggressive compliance and enforcement few investigations or charges laid so far; only in Quebec and BC Advocacy School
    7. 7. General Orientation of Lobbying Laws Defines registerable “lobbying” as: • being paid (except in Quebec) to communicate with a public office holder for the purpose of influencing * a decision by government related to: New or amended legislation New or amended regulations Policies, programs Financial benefits Procurement Arranging for meetings with public officials (“consultant lobbyists” only, except Quebec) Advocacy School
    8. 8. General Orientation of Lobbying Laws Disclosure Requirements • “business card” information • corporate information • identity of government agencies/departments contacted • indication of object of lobbying activity • type of lobbying planned • sources of government monies, if any • info on contingency fees (if not already banned in Quebec and federal jurisdiction) • at federal level, additional (up to monthly) disclosure of “oral and arranged communications” with Designated Public Office Holders Advocacy School
    9. 9. Public Office Holders (not DPOH) • politicians (Minister, Members of House or Senate) • political staff (of Ministers, MPs and Senators and parliamentary staff) • all public servants at all levels including those in regulatory agencies • persons holding Governor-in-Council positions (i.e. Cabinet or Ministerial appointments e.g. Crown corporation presidents etc.) • in Quebec only – extends to municipal governments and some government-funded NGOs Advocacy School
    10. 10. Three Types of Registered Lobbyists • Consultant Lobbyists • In-House Corporate Lobbyists • In-House Organization Lobbyists Advocacy School
    11. 11. Exemptions • other governments – domestic and foreign • appearances / representations before open public proceedings • interpretation, administration or enforcement of existing law or regulations • obtaining information only • some government-initiated communications / consultations Advocacy School
    12. 12. Designated Public Office Holders (DPOH) • Ministers • Ministerial Staff • Deputy Minister and Associate Deputy Ministers • Assistant Deputy Ministers • (all federal officials of comparable DM or ADM rank, i.e. EX-4 or above) • Members of PM’s Transition Team … and anyone else designated by Cabinet • e.g. ordinary MPs, Senators and OLO Staff added as of Fall 2010 Advocacy School
    13. 13. Designated Public Office Holders 5-year cooling off period contact with DPOH requires month ly reporting some government-initiated communications are exempt from DPOH ComLog reporting (but not if $ involved) Commissioner of Lobbying verifies info Advocacy School
    14. 14. Monthly Reporting by 15th of subsequent month requires updating of any new information • new “subject matter” information (new legislation, new program etc.) • “prescribed” communications with DPOHs “arranged” and “oral” meetings either in-person or telephone conversations; NOT reportable  written correspondence, e- mails, faxes, “electronic” communications ( not included in definition of “prescribed” contact and therefore not reportable for “Comlog”) must report monthly, “prescribed communication” (oral and pre- arranged) indicating: • name and title of DPOH • date of meeting • subject matter at issue from “underlying registration information” • no detailed “narratives;” just “checking boxes”
    15. 15. Political Finance Laws … generally highly variable charities generally non-permitted to donate financial limits variable variability in range of permitted activities in Canada, restrictions on third-party advertising Advocacy School
    16. 16. Canadian Political Finance Law Canada Elections Act: • Individual donations only • none from charities or NGOs • reimbursement forbidden • Paid leave ok for candidates but not employee campaigners • limitations on third-party advertising during writ period Provincial Level • still no donations from charities • Quebec and Manitoba - individual donations only • some provinces with few restrictions or limits Advocacy School
    17. 17. Anti-Terrorism NGOs and foundations obliged by law to ensure that its activities and those of its grantees are not supportive of , and do not facilitate, terrorist activities, organizations or individuals “due diligence” Advocacy School
    18. 18. The Income Tax Act - RegisteredCharities and “political activities” The Advocacy Rules are contained in CRA Policy Statement – CPS-022 The Advocacy Rules have 3 sources Charities do not have a “right to free speech” Any discussion about “advocacy,” “political activities” and “Canadian registered charities” is a conversation about how a special set of rules apply Advocacy School
    19. 19. Key Concepts in 10% Rule  “advocacy”  “a call to action’  “a well-reasoned position Advocacy School
    20. 20. The Income Tax Act - Registered Charities and “political activities” CPS – 022 limits the “political activities” of registered charities The Income Tax Act requires charities to devote “substantially all” of its resources to its charitable purposes and the Courts have held that “substantially all” means 90% CRA – based on the ITA says “ for the purposes of this policy, a charity’s activities can be divided into 3 separate types: • Prohibited activities • Political activities • Charitable activities Advocacy School
    21. 21. 1) Prohibited Activity  partisan political activity  no financial (or in-kind) contributions to parties or candidates Advocacy School
    22. 22. 2) Permitted - But Limited - PoliticalActivities OK if “non-partisan” and “subordinate to charity’s purposes” a call to action (“vote a certain way” or “write your MP”) taking out a newspaper ad / starting an –mail campaign aimed at legislators organizing a march on Parliament Hill Advocacy School
    23. 23. 3) Acceptable Advocacy Activity meet and communicate with politicians and officials, even if intent is to change law or policy BUT activity must be subordinate to the charitys purposes All representations must: • relate to issue connected to charitys purposes; • be “well-reasoned” • not contain information that the charity knows, or ought to know is false, inaccurate, or misleading • public release of info must not be selective • have no call to action Advocacy School
    24. 24. CRA Standards for AcceptablePublic-Awareness Campaigns1. Charity does not explicitly connect its views to any political party or candidate for public office2. The issue is connected to the charities purposes3. The charity’s views are based on a well- reasoned position4. Public awareness campaigns do not become the charitys primary activity
    25. 25. Sean MoorePrincipal, Advocacy SchoolPublic Policy and Advocacy Advisorsean.moore@advocacyschool.orgwww.advocacyschol.orgW. Laird Hunter, Q.C.Richards Hunterwlh@richardshunter.com Advocacy School