ORIGINAL ARTICLE
SILVA, Marcelo Nogueira Mallen da [1]
SILVA, Marcelo Nogueira Mallen da. Practical contrasts of the lobby and advocacy strategies: an analysis of the Brazil case and its regulation. Revista Científica Multidisciplinar Núcleo do Conhecimento. 04 year, Ed. 08, Vol. 07, pp. 35-47. August 2019. ISSN: 2448-0959
SUMMARY
This article analyzes the potential of lobbying as a democratic instrument for representing interests and, on the other hand, the structure known as advocacy, pointing out the main characteristics, in addition to the problems that can cause in the light of value democratic social policies. The text also discusses the issue of regulation, focusing on the factors that hinder their adoption in Brazil and engagement initiatives, in order to contribute to the exercise of dialogue due to the management in the implementation of rights.
Keywords: Advocacy, Lobby, decision-making process, representation of interests.
1. INTRODUCTION
Brazil has become a reference in the international debate on democracy reform in recent decades thanks to new participatory experiences in the design of public policies, such as participatory budgeting and participatory legislation committees (LAVALLE, HOUTZAGER, CASTELLO, 2006).
As Castells (2000, p. 49) observed, we are experiencing a unique historical moment of social transformation:
(…) considering the history of humanity as a series of stable situations, punctuated at rare intervals by important events that occur quickly and help establish the next stable era. It can be affirmed that the end of the 20th century is one of those rare intervals in history.
This new paradigm determined the emergence of a new social structure, manifested in a new mode of development and, with this, gained strength movements that makes more fruitful the attempt to change opinions / attitudes and, consequently, propagate improvements in the environment of common interest.
All this potential for participation, the phase of mere discussion or preparation of parliamentary propositions and reports is not restricted. For this ideal of eternal construction of collective debate, with the serious approach of issues addressed today more and more requires the mobilization of a wide variety of agents.
According to Lévy (1994, p. 61), “it could become a means of exploring problems, pluralistic discussion, evidence of complex processes, decision-making and evaluation of results”.
For this construction is that this article highlights the relevance and novelty of the agenda to confirm the learning in the discipline taught by Professor Luis Inácio Lucena Adams.
2. LOBBY VS THEMED FRAMEWORK. ADVOCACY PRACTICE
2.1 CLARIFYING CONCEPTS
Concepts are fundamental when we try to express how we see the world and understand its functioning. A concept is only useful when it is possible, through it, to express a general notion of the object of study and, at the same time, elaborate a .
or notion that completely contains its meaning. To do this, it is necessary to present its specificity, that is, what makes it unique.
No wonder, formulating precise concepts is especially important for the area of intergovernmental relations, given that lobbying is [2]a comprehensive and complex activity at the same time.
While the policy advocacy strategy or simply called as advocacy, even[3] if it represents another strangeness of equally English origin can assume, from the international experience, a strong engagement and greater awareness about a public cause, as a process of claiming rights that aims to influence the formulation and implementation of policies that meet the needs of the population.
And in this context, the main characteristics of argumentation between lobbying and advocacy will be presented later, in defending causes and rights, as factors of influence in the creation of effective mechanisms, which bring benefits to those involved, private agents, layers of public administration and society above all else.
2.2 POSITIVE AND NEGATIVE FACES OF LOBBY
It is well known that different social segments are not equally able to organize or gather resources to form lobbies in defense of their interests. As for organizational capacity, the literature indicates that low-large groups (e.g., entrepreneurs from oligopolized economic sectors) have greater ease than large groups (e.g. consumers in a competitive market or taxpayers) to solve collective action problems and constitute lobbies in search of benefits for its members (OLSON, 1999).
From this presentation, the first notes offer a standard conceptualization of what is meant by the expression lobby would be to “un[f]dergo rules that can guide the supervision of one group on the other that demands a collective effort, which is not always easy execution ( OLIVEIRA, 2004, p. 219), or even formed by the “pressure groups promote the public interest” (RODRIGUES, 1982, p. 22).
2.2.1 TRUSTED ATTRIBUTES (POSITIVE ASPECTS)
Maria Cecilia Gonçalves (2012) contextualizes the lobby as the practice of seeking access to political agents and making them know the demands of certain segments of society, using people (lobbyists) and their contact channels with the Governments.
For Roberto Lemos (1988, p. 49), “the lobby needs to be seen as the organization and operation of ‘an efficient channel of two-way information’, between the entity that appropriates it and the sector of what focuses”. Having as one of the indicators that are used to measure economic power the “ability of the respective agent to remove the obstacles to which the respective activity produces positive results in the shortest possible time (CAMARGO, 2015, p. 76).
The context above demonstrates: (i) being legitimate to the private initiative to intervene in the development of public policies that interest society; (ii) the need and usefulness of the lobby, which is recognised for the triple gain, when society, private enterprise and the public agent benefit.
This plural gain will only be plausible if there is full transparency in this activity. In the guise of clarification, Milton Seligman (2018) prefers to call the lobby by his own name and not by the euphemism “government relations”, for example.
2.2.2 BOA-FAITH SPRAY CYCLES (NEGATIVE ASPECTS)
However, an observation must be made about the fine line between the lobby taken by lawful and its most rejected version — the illicit, is exactly in the difficulty of identifying what intention is intended to be printed, since despite the importance of the lobby as an instrument of social participation and representation of interests, this activity is constantly associated with corruption founded on the abuse of power that, in the teachings of Luiz Alberto Santos (2007), occurs when a pressure group abuses the government to get private gains.
The Comptroller General of the Union (CGU) has even issued a Report of the Working Group through Ordinance No. 1,081 of June 20, 2016, on the regulation of the lobby, pointed out that it is “legitimate”, but must be exercised within strict legality.
The limits for their exercise should be clear, as well as the rules for the relationship of those interested with the public authorities”, being “important to separate lobbying (legitimate activity from a democratic environment) from obscure and corrupt practices (which often , erroneously, are identified as lobbying)[4]“.
This abu[5]se consists in extrapolating attempts to convince and argue the lobby, reaching bribery and intimidation of public servants and political agents. The abuse of law consists, therefore, the absence committed by the holder of a right, which goes beyond the limits or which misrepresents the purpose of the right granted to hi[6]m.
It is in this sense that Washington Souza (p. 108) teaches:
Highlighting in the “power relations” the modality of economic power, we will have those legal relationships already permeated by the meaning of economic relations, whose motivations should adjust to the objective of justice, under penalty of opposing the rights that should ensure. The exercise of economic power, therefore, will be done in obedience to a balance of interests put at stake according to a line drawn up as a delimiter of the just and the unjust and which, defined by legal law, will coincide with lawful and illicit. The lawful or unlawful conduct in the practice of economic power will define, in turn, its use or abuse. (Griffins of the author himself)
Moreover, according to Murillo de Aragão (Aragon, 2000 apud SANTOS, 2007), an efficient lobbying legislation for the Brazilian political model should seek, among other things, to identify the pressure groups and establish the duties of these groups in the face of state bodies and entities. It would also be the objective of brazilian lobbying law to inhibit the exchange of favors and the advantages granted to agents and public servants.
Castro Paixão cited by Luiz Alberto Santos (2007), still warns of the immaturity of democratic institutions and Brazilian political culture to receive lobbying legislation at the height of U.S. legislation:
However, the facts must be compulsioned, and the situation of public administration in Brazil, its high degree of corruption and vulnerability to existing clientelist pressures, could have a non-negligible effect on the application of this legislation. Although it cannot be considered that there is low receptivity in Brazil to legislation aimed at ensuring that activities are subject to principles of control and transparency, and to a regulation capable of preventing abuse, corruption and conflict of interests, it is necessary to consider the effect that could come from the absence of a political culture still largely favorable to strict controls on the exercise of lobbying activities.
The current stage of structuring Brazilian public bureaucracy, even at the federal level, still leaves much to be desired; the process of formulation, implementation and evaluation of public policies is hampered by the lack of qualified staff at the appropriate level, by administrative discontinuity, excessive permeability of public management to positions in commission by client criteria or related to the party system, by the fragmentation of the state apparatus and, as highlighted by Passion and Castro Santos, by its multifaceted nature and its porosity in relation to “interests not excluded from the game of formulation and implementation of policies.”
There are different corporatist patterns, “bureaucratic rings” and informal mechanisms of access and influence from which results in the impression of private objectives in public policies through decisions of councils and bureaucratic agencies, specialized or not.
The requirement for proper use of economic power does not mean the need to transform private interests into public interests. What is envisaged is that the private agent does not develop his power in favor of the collectivit[7]y.
It was with this interpretation that the Bill (PL) no. 1202/2007 was built here in Brazil, signed by Congressman Carlos Zarattini (PT-SP), to regulate lobbying activity and pressure groups with the public sector.
The justification is related to numerous proposals to regulate the performance of lobbies in the Federal Administration, based on international experience, notably in the United States, England, France and Mexico, which would demonstrate the importance of increasing lobbying as the essence of democracy, since it makes it possible, with transparency, for pressure and interest groups to act organizedly.
It reinforces that in the United States Congress alone, more than 3,700 registered entities regularly operate in the lobby, previously registering their representatives and providing monthly accounts of their activities, the resources they receive and for which purposes for them.
In the Brazilian case, the accountability would be annual and at any time, those accredited to act as lobbyists may be convened by the presidents of the Houses of the Legislative Power, the Minister of Control and Transparency and the President of the Court of Union accounts to provide clarification regarding their performance or means used in its activities.
Moreover, the development of civil society calls for the institutionalization of these mechanisms, subject to the control of society itself, giving the theme treatment consistent with what international experience points to as recommended and current, serving limiting source in all forms that compromise the suitability of the public decision-making process.
The PL is proceeding on an emergency basis in the Plenary of the House of Representatives, the matter of which was not assessed at the trial session on 19.03.2019, in view of the closure of the act without the beginning of the votes and deliberation.
It should be noted here that the insertion in the legal order of lobbying legislation, however, is not one hundred percent sufficient to organize and moralize relations between pressure groups and the government, as well as previously defined obstacles in the the event of being approved.
In this sense, Brazilian lobbying legislation should not assume a punitive character. As an alternative until the matter matures based on the culture adopted in the country, it would be the creation of codes of conduct combined with complementary control and surveillance regulations, rules that encourage transparency in the public sector, transparency in partnerships between private and public, preventive rules of conflict of interest and anti-corruption rules.
2.3 CONTEMPORARY OF THE TERM ADVOCACY
Advocacy[8] is a term that involves a set of meanings, which comes from the experience of American democracy, without exact translation into Portuguese. For Marcia Avner (2002), advocacy involves identifying, adopting and promoting a cause, an effort to shape public perception or achieve some change, whether it is lawfully or not. Advocacy may be for individuals, for specific populations or causes, for the very interest of an organization or sector or for broad public interest benefits (BORIS; KREHELY, 2002).
As well as adapting within a context of deliberative democracy that strengthens the democratic process by bringing civil society organizations representing various groups that expose their policy views to the process of deliberating matters of interest, making the process more participatory (DRYZEK, 2000).
Marlene Libardoni (2000, p. 02) presents the advocacy theme belonging to the field of public policies, with an instrument of articulation for the defense of a cause from the perspective of collective objectives and interests:
(…) advocacy has a broader meaning, denoting initiatives of incidence or political pressure, promoting and defending a cause and/or interest, and articulations mobilized by civil society organizations with the aim of giving greater visibility to certain themes or issues in the public debate and influencing policies aimed at transforming society.
In the work entitled “Agenda Training: Policy Advocacy Method for public policy teaching”, Leonardo Secchi (2012, p. 33), defines advocacy activities as:
“Engagement in the influence of public opinion and the agendas of the media, politics and government on the relevance of some public problem or intervention proposal.”
Since the advocacy function implies giving voice to a message linked to the defense of a cause, it is essential to mention the work “Coalitions in education in Brazil: relationship with the government and influence on the Education Development Plan (PDE)”, for illustrative and authored by Lara Elena Simielli (2013, p. 572), as it serves as an approach tool dedicated to the advocacy coalition framework (ACF), thus interpreted as advocating coalitions, which are understood as a model who seeks to understand the political process based on the context of politics, [9]a[10]nd conceptualized as:
(…) public and private actors from various institutions and government levels, who share a set of common beliefs and values and seek to manipulate government rules, budgets and human resources in order to achieve their long-term goals and values Term.
In practical terms, advocacy could be described as the organized and planned process of informing and influencing decision makers, through awareness and engagement of other actors in society, aiming to promote change (or maintenance) public policy of broad interest, based on concrete evidence[11].
To elucidate the commented issue, it is worth repeating the words of Luiz Inácio Adams (2017), in an interview with the Portal Legal Advisor, bringing as a concept of what he calls republican advocacy, advocate for interests, for project[12]s.
The insufficiency of vast literature in Brazil of this term does not prevent, however, from finding references regarding the participation of civil society more frequently, as well as themes of participation and deliberation, civil society and public spaces, democracy among others who approach the role of advocacy in public policies.
Otherwise, despite the confirmation of the coordination of actions of defense of interests considering the legal, political, economic and social aspects as said earlier, no records of regulatory agenda were found to recognize their application or even traces that lead in the reaction of a legal system capable of producing a regulatory standard.
3. CONCLUSION
The formulation of mechanisms and strategies to generate so-called development has been a constant in the revenues proposed by private agents, agencies and public entities added to the most present performance of society in the intellectual panel of policies planned by the State.
These mechanisms are at a level of permanent discourse in which, in different ways, it alludes to the objective of ensuring a better quality of life with the aforementioned participatory development.
To constitute a coherent alternative, it is still urgent and crucial to seek explanations for the phenomena of the present time and to build policy strategies willing to promote and generate broad processes of integration with publicist bias for not only individualised interests, but to combat inequalities and the precariousness of fundamental rights.
Such measures can influence and avoid the polarization of current debates. But what is observed is that there are no simple solutions to the issues of inequalities and differences, individual rights and group entities. Positioning such issues as opposing concepts may have the meaning of losing the point of your interconnections.
Tackling the issue of inequalities increasingly requires interconnections between the individual and the collective, to, fortified with new instruments, or in the use of the lobby (provided that done with seriousness, honesty, wisdom and, especially, that I objected to the common good), or by the advocacy campaign, that prioritize in their actions the consideration of the determinations of the problems to be discussed, so that they can plan, prioritize and develop actions that present truly impacts on the reality posed and that promote the expected social change.
REFERENCES
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AVNER, Marcia. The Lobbying and Advocacy Handbook for Nonprofit Organizations: Shaping Public Policy at the State and Local Level. Minnesota: Amherst H. Wilder Foundation, 2002.
BORIS, Elizabeth T.; KREHELY, Jeff. Civic Participation and Advocacy. In: Lester. M. Salamon. The State of Nonprofit America. Washington DC: Brookings Institution Press, 2002.
BRASIL. Controladoria-Geral da União (CGU). Brasília, 2019. Relatório sobre Lobby. Em: <https://www.cgu.gov.br/Publicacoes/institucionais/arquivos/relatorio_lobby.pdf>. Acesso em: 24 jun. 2019.
_______. Câmara dos Deputados (CÂMARA). Brasília, 2019. Projeto de Lei nº 1202/2007. Disciplina a atividade de “lobby” e a atuação dos grupos de pressão ou de interesse e assemelhados no âmbito da Administração Pública Federal. Disponível em: <https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=353631. Acesso em: 24 jun. 2019.
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Paulo: Paz e Terra, 2000.
CAVALIERI FILHO, Sérgio. Programa de Direito do Consumidor. São Paulo: Atlas, 2008.
DEMO, Pedro. Política social, educação e cidadania. São Paulo: Papirus, 2007.
DIAS, Rafael de Brito. A trajetória da política científica e tecnológica brasileira: um olhar a partir da análise de política. Tese (Doutorado em Política Científica e Tecnológica) — UNICAMP, 2009.
DRYZEK, John S. Deliberative Democracy and Beyond. Liberals, Critics, Contestations. Oxford: Oxford University Press, 2000.
GONÇALVES, Maria Cecília Nunes. Regulamentação do lobby no Congresso Nacional brasileiro: o estudo comparado do modelo norte-americano. Monografia (Especialização em Processo Legislativo) – CEFOR. Brasília, 2012.
GOZETTO, Andréa; MACHADO, Leandro. Ainda é necessário esclarecer conceitos: Lobby x Advocacy. Cause. São Paulo, sem data. Disponível em: <http://www.cause.net.br/ainda-e-necessario-esclarecer-conceitos-lobby-x-advocacy/>. Acesso em: 24 jun. 2019.
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MANCUSO, Wagner Pralon; GOZETTO, Andréa Cristina Oliveira. Lobby e Políticas Públicas apud LUKIC, Melina Rocha, TOMAZINI, Carla (Coord). As Ideias também importam: abordagem cognitiva e políticas públicas no Brasil. Curitiba: Juruá, 2013.
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RODRIGUES, Ricardo. A Regulamentação do Lobby no Brasil: Leitura crítica de um Projeto de Lei. Revista de Administração Pública, Rio de Janeiro, n. 30, jan./fev. 1996.
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SECCHI, Leonardo. Formação da Agenda: Método de Policy Advocacy para Ensino de Políticas Públicas. Revista de Administração Pública e Gestão Social, Viçosa, v. 4, n. 1, abr./jul. 2012. O artigo completo pode ser visualizado no caminho: <https://periodicos.ufv.br/ojs/apgs/article/view/4046/2276>. Acesso: 24 jun. 2019.
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SOUZA, Washington Peluso Albino de. Estudos de Direito Econômico, vol. 1. Belo Horizonte: Movimento Editorial da Faculdade de Direito da UFMG, 1995, p. 458.
SOUZA, Luiz Ricardo de; SECCHI, Leonardo. A Política Científica e Tecnológica de Santa Catarina: análise a partir do modelo de coalizões de defesa. Revista da Administração Pública, Rio de Janeiro, v. 48, n. 4, jul./ago. 2014 [online]. Disponível para consulta na íntegra pelo endereço eletrônico: <http://www.scielo.br/scielo.php?pid=S0034-76122014000400007&script=sci_abstract&tlng=pt>. Acesso: 24 jun. 2019.
2. De forma bem compilada, é possível conceituar lobby para início dos trabalhos como “a defesa de interesses junto a membros do poder público que tomam decisões”. In: MANCUSO, Wagner Pralon; GOZETTO, Andréa Cristina Oliveira. Lobby e Políticas Públicas apud LUKIC, Melina Rocha, TOMAZINI, Carla (Coord.). As Ideias também importam: abordagem cognitiva e políticas públicas no Brasil. Curitiba: Juruá, 2013.
3. O Fundo de População das Nações Unidas (FNUAP), aponta como referência que se trata de “trabalhar para a sensibilização dos gestores públicos e da sociedade civil sobre a importância de temas de interesse social”. In: DEMO, Pedro. Política social, educação e cidadania. São Paulo: Papirus, 2007.
4. Para leitura na íntegra o conteúdo pode ser consultado no endereço eletrônico: <https://www.cgu.gov.br/Publicacoes/institucionais/arquivos/relatorio_lobby.pdf>. Acesso em: 24 jun. 2019.
5. Sérgio Cavalieri Filho (2008, p. 88), contribui trazendo suas notas quanto a: “expressão práticas abusivas é, evidentemente, genérica e, portanto, assim deve ser interpretada, para que nada lhe escape. Deve, pois, ser considerado abusivo tudo o que afronte a principiologia e a finalidade do sistema protetivo do consumidor, bem assim se relacione à noção de abuso do direito”.
6. SOUZA, Washington Peluso Albino de. Estudos de Direito Econômico, vol. 1. Belo Horizonte: Movimento Editorial da Faculdade de Direito da UFMG, 1995, p. 458.
7. Regarding this dichotomy between public and private interests, Sérgio Bruna understands that collective interests must always prevail over individual interests, “the economic power that is facing development should not prevail factors that aim at achieving the ideals of justice” (Bruna, 2001, p. 147).
8. Sem obviamente esgotar o assunto, vale citar a doutrina prefacial de Gabriela de Brelàz, defensora de que o termo advocacy irrompe fronteiras conceituais jurídicas do campo de estudo do direito, considerando que: “[p]or advocacy entendemos o ato de identificar, adotar e promover uma causa. É um esforço para moldar a percepção pública ou conseguir alguma mudança seja através de mudanças na lei, mas não necessariamente”.
9. Contribuem nesse capítulo Luiz Ricardo Souza e Leonardo Secchi (2014) ao darem destaque que a terminologia advocacy vem acompanhada da expressão Advocacy Coalition Framework (ACF), enfatizando aspectos como o aprendizado e o comportamento das coalizões, bem como identificando as alterações na política, assim calculado em longos períodos de tempo.
10. Esse modelo se encaixa aos fenômenos envolvidos nas mudanças políticas que Rafael Dias havia abordado em conclusão de seu doutoramento (2009, p. 30): “podem ser entendidas como grupos de atores que se organizam, formal ou informalmente, como o objetivo de exercer pressão sobre determinada política pública, e assim, influenciar seu resultado”.
11. Ver também em: <http://www.cause.net.br/ainda-e-necessario-esclarecer-conceitos-lobby-x-advocacy/>. Acesso em: 24 jun. 2019.
12. Entrevista completa disponível no endereço eletrônico: <https://www.conjur.com.br/2017-set-30/entrevista-luis-inacio-adams-ex-advogado-geral-uniao>. Acesso em: 24 jun. 2019.
[1]Postgraduate in Business and Business Law from Cândido Mendes University (UCAM-RJ), post-graduate in Real Estate Law from the Instituto Brasiliense de Direito Público (IDP-DF). Bachelor of Law from Veiga de Almeida University (UVA-RJ).
Submitted: July, 2019.
Approved: August, 2019.
