Managing Risk ….... by Knowing the Advocacy Rules

An Advocacy School Workshop for

OCASI – Ontario Council of Agencies Serving Immigrants

W. Laird Hunter, Q.C and Sean Moore

November 10-11, 2011

Toronto

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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 *

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Prevailing Political and Public-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)

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Different Structures – Different Rules

Registered Charities Non-Charity NGOs Coalitions Unincorporated organizations Consultants

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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

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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

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General Orientation of Lobbying Laws Defines registerable “lobbying” as:

• being paid (except in Quebec) tocommunicate with a public office holder for the

purpose of influencing * a decision by government related to:

New or amended legislationNew or amended regulationsPolicies, programsFinancial benefitsProcurementArranging for meetings with public officials

(“consultant lobbyists” only, except Quebec)

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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

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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

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Three Types of Registered Lobbyists

• Consultant Lobbyists

• In-House Corporate Lobbyists

• In-House Organization Lobbyists

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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

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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

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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

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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”

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

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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

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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”

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The Income Tax Act - Registered Charities 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

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Key Concepts in 10% Rule

“advocacy” “a call to action’ “a well-reasoned

position

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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

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1) Prohibited Activity

partisan political activity

no financial (or in-kind) contributions to parties or candidates

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2) Permitted - But Limited - Political Activities

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

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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 charity's purposes

All representations must:• relate to issue connected to charity's 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

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CRA Standards for Acceptable Public-Awareness Campaigns

1. Charity does not explicitly connect its views to any political party or candidate for public office

2. The issue is connected to the charities purposes

3. The charity’s views are based on a well-reasoned position

4. Public awareness campaigns do not become the charity's primary activity

Sean MoorePrincipal, Advocacy SchoolPublic Policy and Advocacy Advisorsean.moore@advocacyschool.org www.advocacyschol.org

W. Laird Hunter, Q.C.Richards Hunter wlh@richardshunter.com

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