Law On Lobbying In The World And Lessons For Vietnam.pdf

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No. Abbreviations Meaning

(amended 2006)

Government Act of 2007

Industry

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INTRODUCTION ...1

1. Problem statement ...1

2. Literature review ...3

2.1. Domestic research materials ...4

2.2. Foreign research materials ...5

3. Research objectives ...6

4. Research scope ...6

5. Research Methodology ...6

5.1. Methods of studying the theory of jurisprudence ...6

5.2. Methods of synthesizing information ...7

6. Research framework ...7

CHAPTER 1. OVERVIEW OF LOBBYING ...8

1.1. Definition of Lobbying and Its History ...8

1.2. History of the development of lobbying in the world ...13

1.3. The objectivity of lobbying ...15

1.4. Distinguish between lobbying and policy advocacy ...16

1.5. Lobbying’s position and its role in a democratic society ...17

CONCLUSION ...24

CHAPTER 2. LAW ON LOBBYING IN THE WORLD ...25

2.1. Law on lobbying of the United States of America...25

2.2. Current legislation on lobbying in the United States ...29

2.3. Law Enforcement Practices of Lobbying in the United States ...32

2.4. Law on lobbying of the European Union ...33

2.5. Law on lobbying in Canada ...41

2.6. Law on lobbying in Germany ...45

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CHAPTER 3. THE CURRENT FRAMEWORK AND PRACTICE OF

LOBBYING AND LESSONS LEARNED FOR VIETNAM ...51

3.1. Current legal framework of lobbying in Vietnam ...51

3.2. The current practice of lobbying in Vietnam ...55

3.3. Challenges and lessons learned for Vietnam in developing a law on lobbying 67 3.4. Some lessons for Vietnam in developing legislation on lobbying ...68

CONCLUSION ...76

EPILOGUE ...77

BIBLIOGRAPHY ...78

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INTRODUCTION 1. Problem statement

“After all, Wall Street is clearly the most powerful lobbying force on Capitol Hill. From 1998 through 2008, the financial sector spent over $5 billion in lobbying and campaign contributions to deregulate Wall Street.”

Bernie Sanders1

“Lobbying is not a bad thing. I’m not trying to say that we shouldn’t have lobbyists or we shouldn’t have lobbying to petition our government. It’s in the Constitution, and it’s something that should be honourable and good. ”

Jack Abramoff2

Both quotes clearly affirm the position and the role of lobbying which affect a country’s public policy. In fact, from 1998 through 2008, lobbying took place in the US, typically, at that time, the financial sector spent over five billion dollars in lobbying and campaign contributions to deregulate Wall Street or according to Jack Abramoff (lobbyists and businessman) lobbying is not a bad thing and it should be regulated in the Constitution, only when it appeared in the Constitution did the lobbying activity is legal. Lobbying is quite popular in many countries around the world. Lobbying is named after the place where this activity first took place in history, the corridor of the British Parliament. During recess, members of Parliament often exchange with colleagues or anyone to supplement information about the matter being discussed or decided in Parliament. Lobbying has been going on since time immemorial, and there is certainly a case for saying that lobbying is one of the world’s oldest professions. Whenever an individual, or group of individuals, wields power over society, there will be other individuals or groups of individuals who will have

1 Bernie Sanders, byname of Bernard Sanders, (born September 8, 1941, Brooklyn, New York, U.S.),

American politician who was first elected to represent Vermont in the U.S. Senate in 2006 and took office the following year. Previously he served (1981–89) as the mayor of Burlington, Vermont, and as a member of the U.S. House of Representatives (1991–2007). Formally unaffiliated with any political party, he sought the Democratic nomination in the U.S. presidential elections of 2016 and 2020,

23/11/2022.

2 Jack Abramoff (born February 28, 1958) is an American former lobbyist and businessman. Convicted in 2006 of mail fraud and conspiracy, he was at the heart of an extensive corruption investigation that led to the conviction of White House officials J. Steven Griles and David Safavian, U.S. Representative Bob Ney, and nine other lobbyists and Congressional aides. He served three years, six months of a six-year sentence in federal prison before being released early to a Baltimore halfway house on June 8, 2010,

23/11/2022.

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tried to persuade them to exercise that power in a particular way. Lobbying is both natural and inevitable. The forums of both Greece and Rome were frequented by ancient lobbyists, who would seek to influence both senators and plebs for or against the issues of the day. The courts of Kings and Princes were thronged with courtiers, and those courtiers were the lobbyists of their day. If the barons had not lobbied King John, he would not have signed the Magna Carta at Runnymede, and democracy in Britain might have evolved very differently3.

Vietnam is one of the few socialist republics in the world, persistently following the path of socialism under the guiding light of Marxism-Leninism and Ho Chi Minh’s thought. The advantage and disadvantage of Vietnam is the one-party system - only one Communist Party of Vietnam runs the country. Therefore, opposing opinions are often difficult to accept, especially specific interest groups that are not associated with the majority. In a democratic and rule-of-law society, specifically in Vietnam lobbying is a relatively new concept, some people believe that lobbying in Vietnam does not work as well as it does in other countries because the Communist Party is the sole ruling party in Vietnam4, most policy decisions are proposed by the Party, the National Assembly, which has nearly 96% of Communist Party members5, is the place to institutionalize the Party’s policy decisions. Although not officially recognized legally, is in fact very active, with many different nuances and expressions. The terms “lobbying” are not officially mentioned in legal documents in Vietnam, other expressions of this concept in legal and policy documents such as “participation of the people”, “recommendation”, “discussion”, and “suggestion” have been used quite frequently in a number of specific statutes. All Party documents are oriented toward the spirit of “All Party lines and undertakings, policies and laws of the State must derive from the legitimate aspirations, rights, and interests of the people” and “improving the quality, promoting the role and participation of the

3 Lionel Zetter (2008) , Lobbying The Art of Political Persuasion, Harriman House Ltd, p. 6.

4 Trần Mai Hùng (2016), “Vận động hành lang trong hoạch định chính sách”, Political Theory Electronic

Journal,

accessed on 28/01/2023.

5 accessed on15/08/2023.

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people in formulating, promulgating, and organizing the implementation of the Party’s undertakings, policies, and laws of the State.”6.

Lobbying is objective, stemming from the pursuit and realization of interests by actors in society, which are inherent in the relationship system of authorization and representation between the people and the state. Therefore, lobbying has an important position and role in the following aspects: Firstly, lobbying is a way for actors in social life to realize the benefits of me; Secondly, is a channel to express the views, values , and interests of stakeholders related to decisions or public policies and; Thirdly, providing and supplementing information from many different angles to state agencies, contributing to overcoming information asymmetry, improving efficiency and social welfare of public policies; Fourthly, contribute to social criticism and supervision of the public policy process. However, since lobbying is a way for actors in socio-political life to realize their interests, if this activity is not regulated and well-governed, it will also lead to the risk of harming people and the interests of other subjects as well as of society. Such losses may come from manipulation or distortion of policies for entities with strong influence on the state and political officials; increasing transaction costs of subjects in social life; loss of development opportunities from the rational use of national resources. At a more serious level, it can lead to other consequences in socio-political life such as bribery, and corruption; increasing social inequality, reducing the legitimacy of the state, and causing conflicts of interest and division in society.

According to the author, whether you like it or not, whether you accept it or not, lobbying has been and continues to be a part of Vietnam’s socioeconomic life. Instead of focusing on the bad aspects of lobbying in order to eradicate them, we should create a clear legal framework for lobbying that limits and eliminates the

harmful consequences of this activity. Therefore, the author chooses this topic: Law

on Lobbying in the World and Lessons for Vietnam. 2. Literature review

6 Documents of the 13th Party Congress,

tieng-anh.pdf.

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Domestic research materials

- Nguyễn Thị Hồng Chương (2010), Vận động hành lang trong hoạt động lập pháp của Quốc hội (Nghị viện) một số nước trên thế giới, Master thesis,

Law Falcuty - Hanoi National University.

- Phạm Thị Hoa (2017), Vận động chính sách công ở Anh, Pháp, Mỹ và những gợi mở đối với Việt Nam, Doctoral thesis, Ho Chi Minh Political Academy.

- Đặng Minh Tuấn (2022), Vai trò của pháp luật về vận động hành lang trong phòng chống tham nhũng, Legal Studies Journal,

- Chu Hồng Thanh (2022), Nhận thức pháp lý về vận động hành lang,

Vietnam Lawyer Journal, lang1648577532.html.

Trung tâm nghiên cứu Ấn Độ (2022), Một vài kỹ thuật vận động hành lang tại phương Tây và kinh nghiệm cho Việt Nam,

vai-ky-thuat-van-dong-hanh-lang-tai-phuong-tay-va-kinh-nghiem-cho-viet-- Nguyễn Vĩnh Hằng (2016), Vận động hành lang (Lobbying), International Studies,

- Nguyễn Minh Phong, Nguyễn Trần Văn Trí (2016), Hiệp hội doanh nghiệp với việc vận động chính sách vì mục tiêu phát triển bền vững, Legal Studies

Journal, No. 16(320).

- Võ Khánh Vinh (2003), Lợi ích xã hội và pháp luật, People’s Public

Securities Forces Publishing, Ha Noi.

- Võ Khánh Vinh (2020), Chính sách pháp luật: Những vấn đề lý luận và thực tiễn, National Political Publishing, Ha Noi.

- Đào Trí Úc - Vũ Cơng Giao (2015), Vận động chính sách cơng: Lý luận và thực tiễn, Labour Publishing.

- Nguyễn Đăng Dung (2015), Sự hạn chế quyền lực nhà nước, Hanoi

National University Publishing.

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2.2. Foreign research materials

- Lionel Zetter (2008), Lobbying: the Art of Political Persuasion,

Harriman House Ltd.

- Heike Kluver (2013), Lobbying in the European Union: Interest

groups, lobbying coalitions, and policy change, Oxford University Press.

- Frank R. Baumgartner (2009), Lobbying and Policy change - Who wins,

Who loses, and Why, The University of Chicago Press.

- Anthony J. Nownes (2006), Total Lobbying: What Lobbyists Want (and

How They Try to Get It), Cambridge University Press.

- Sebastian Koehler (2019), Lobbying, Political Uncertainty, and Policy

Outcomes, Palgrave Macmillan.

- Scott Kenedy (2006), The Business of Lobbying in China, Havard

Univerisity Press.

- Tim Peckinpaugh (2009), A Guide to Political and Lobbying Activities,

K&L Gates.

- Stefanie Weil (2017), Lobbying and Foreign Interests in Chinese

Politics, Palgrave Macmillan.

- Teachout Z (2014), The Forgotten Law of Lobbying, Election Law

Journal, No. 04.

- Burson Marsteller (2013), A Guide to effective lobbying in Europe, The

View of Policymakers, in-Europe.pdf.

- Rinus van Schendelen (2002), Machiavelli in Brussels The Art of Lobbying the EU, Second Edition Rinus van Schendelen, Amsterdam University

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reality of lobbying in the world. world, the history of lobbying, the legal framework, the provisions of the laws of the countries in the face of lobbying.

3. Research objectives

This research aims:

To clarify the concept of lobbying, state the current status of lobbying in Vietnam and the regulations governing this activity, analyse the curent law on lobbying of the world. Moreover, on the basis of analyzing the provisions of national legislation on lobbying as a basis for the assessment and drawing of lessons learned for Vietnam in developing regulations on lobbying, to make this activity legal and avoid negativity. The author chose the laws of the abouve countries because lobbying has appeared and has been developed by these countries and regulated and has amended for a long time. Therefore, it is appropriate to study the laws on lobbying of the above countries.

4. Research scope

The scope of the study mainly focuses on the views on lobbying, understanding interest groups and the laws of countries with regulations on lobbying. Furthermore, the current status of lobbying in Vietnam is outlined so that it can be suggested to improve and adjust this activity positively. The author will analyse the law on lobbying of the United States of America, European Union, Canada, and Germany, because of its long history of lobbying, therefore,

5. Research Methodology

To carry out the research, the research uses methods such as the method of comparing and contrasting the law and the practice of lobbying in the world to see the preliminary features of lobbying, the method of studying jurisprudence; Methods of synthesizing information.

5.1. Methods of studying the theory of jurisprudence

The jurisprudence research method is a research method, in terms of research objects, there are two basic groups of subjects, legal regulations and theories of law. Regarding research techniques, the main techniques are analysis, commentary and interpretation of the provisions of the law. In terms of scope, this method studies the inside of the legal system, not the law from the outside.

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With this method, the research team will analyze, explain and comment on the provisions of the law on lobbying, the views of scholars on the definition of lobbying and interest groups.

5.2. Methods of synthesizing information

In the study of the provisions inside the legal system on lobbying, in parallel, the authors also need to link other sources such as articles, scientific journals, theses. With the collection of more information related to the reality of lobbying, the authors can easily access the current situation of lobbying in Vietnam.

5.3. Evaluation methods

The final step of the research process is to conduct an assessment of the problem being studied. With this method, the research team needs to re-sequencing the links to come up with solutions in line with social reality.

6. Research framework

Apart from the introduction, conclusion, and list of references. For the topic “Lobbying in the World and Lessons For Vietnam”, the author deploys according to the layout of 3 chapters:

Chapter 1: OVERVIEW OF LOBBYING

Chapter 2: LAW ON LOBBYING IN THE WORLD

Chapter 3: THE CURRENT FRAMEWORK AND PRACTICE OF LOBBYING AND LESSONS LEARNED FOR VIETNAM

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CHAPTER 1. OVERVIEW OF LOBBYING 1.1. Definition of Lobbying and its History

1.1.1. Definition of Lobbying

To understand the nature of lobbying, it is significant at this early stage to try to define lobbying. Up to the present time, a majority of definitions of lobbying are put forth by legal scholars, legal researchers, and lawyers,... None of these definitions has ever been agreed upon. The author would like to analyze the definition of lobbying under 3 aspects: Legal scholars’ aspect, lobbyist aspect, and law regulation aspect.

Pursuant to the dictionaries, in common, lobby or lobbying is defined as follows: Lobby is a waiting room outside Parliament7 or lobbying is (1) to talk with or curry favour with a legislator, usually repeatedly or frequently, in an attempt to influence the legislator’s vote (2) to support or oppose (a measure) by working to influence a legislator’s vote (3) to try to influence (a decision-maker)8.

The legal scholar has defined lobbying as follows: “Lobbying is the process of seeking to influence government and its institutions by informing the public policy agenda. It is also, of course, the art of political persuasion.”9. In representative democracies, lobbying is one of the most basic political actions. It is essential in the development and implementation of public policy. Despite, or maybe because of this, lobbying is extremely contentious. The public's impassioned arguments sometimes function on shaky footing, with little or circumstantial proof10. Lobbying is systematic efforts to reach, persuade, or influence the decision-making process of the legislative, executive, or other competent individuals in the apparatus to indicate

7 Nguyễn Thế Kỳ, Phạm Quốc Toản, Lương Hữu Định (1991), Legal Dictionary English - Vietnamese,

Social Sciences Publishing House, p. 238.

8 Bryan A. Garner (2010), Black’s Law Dictionary, WEST, 9th edition, p. 1023; Bryan A. Garner (1995), A

dictionary of modern legal usage, 2nd edition, p. 536.

9 Lionel Zetter, Ibid, p.3.

10 Sebastian Koehler (2019), Lobbying, Political Uncertainty and Policy Outcomes, Palgrave Macmillan,

p.1.

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whether they support or oppose a certain policy, law, program, initiative, or problem for the benefit of the community, interest groups, or individuals11.

To put it simply, lobbying is persuading the campaigner to issue a policy according to the will of the campaigner. The issue to have campaigned can be a bill or simply to require MPs to be in more frequent contact with a certain group of constituencies. In general, lobbying is giving the opinion of an interest group to a State policy and influencing to change that policy according to the interest group’s needs.

Lobbying, as an accepted and legal process, allows the voices of citizen groups, associations, labour unions, corporations, and others to be heard in the political arena. Lobbyists break down complicated issues and present the most pertinent information to legislators, staff members, or committees in short documents or quick one-on-one exchanges. These activities add to the extensive research and evidence that usually accompanies proposed legislation. Increasingly, lawmakers rely on lobbyists for information12.

Lobbying is associated with “interest groups”, whereby organized interest groups are social communities established to positively satisfy their own interests with the support of purpose-directed influence on state agencies or on those holding positions and powers in those agencies13. Lobbyists are frequently members of interest organizations and lobbyists. “Interest groups” sometimes called as an advocacy group or a social pressure group, is a group of several individuals and organizations who share a common interest and work together to promote those aims through propaganda14. Lobbyists are members of parliament or senior government officials, competent attorneys. Because they are the individuals who have access to

11 Đặng Minh Tuấn, Khái quát về vận động hành lang, pháp luật về vận động hành lang, Conference

Proceedings - Law on lobbying in the world and experience for Vietnam, Hanoi National University - Law Faculty, p. 11

12 Kati Tusinski Berg (2007), A description of Lobbying as Advocacy Public Relations, Marquette

University, Proceedings 2007 International Public Relations Research Conference, p. 563.

13 Võ Khánh Vinh (2021), Vận động hành lang: Nhìn từ chính sách pháp luật, Procuracy Science Journal,

No. 04/2021, p. 4.

14 Nguyễn Ngọc Tương (2020), Nhận diện “lợi ích nhóm”, “nhóm lợi ích” và biện pháp phòng chống,

People’s Army Newspaper, ich-nhom-nhom-loi-ich-va-bien-phap-phong-chong-624853, accessed on 15/08/2023.

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government officials, has political ties, and can use his or her reputation to influence policy-making.

Associate, Professor Đặng Minh Tuấn defines lobbying are systematic activities aimed at approaching, persuading, and influencing the decision-making process of the legislative, executive, or other competent officials in the state apparatus so that they support or disapprove of a policy, bill, program, plan or issue for the benefit of the community, interest groups or individuals15. According to Associate Professor. Chu Hồng Thanh defines lobbying as the persuasive activity of people or representatives of the majority to influence the purposes, guidelines, policies, or decisions of state agencies, direct legislators. Lobbying is done by people, groups, associations, and organized groups, including private sector individuals, companies, legislators or government officials, or groups campaigning to influence policy interests. Lobbying is the act of influencing the activities, policies, or decisions of government officials, usually legislators or members of regulatory bodies16.

According to Article 1 of the Lobbying Transparency and Ethics Act of Québec, lobbying is a legitimate means of access to parliamentary, government, and municipal institutions. It is in the p that it be able to know who is attempting to influence such institutions17. Virginia law defines lobbying as (1) influencing or attempting to influence executive or legislative action through oral or written communication with an executive or legislative official, or (2) solicitation of others to influence an executive or legislative official18.

The definition of lobbying in Washington’s law is similar to Virginia’s once, “lobby” and “lobbying” each mean attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate, or other legislative enactment of any state agency

15 Đặng Minh Tuấn (2020), Ibid, p. 9.

16 Chu Hồng Thanh (2020), Nhận thức pháp lý về vận động hành lang, Conference Proceedings - Law on

lobbying in the world and experience for Vietnam, Hanoi National University - Law Faculty, p. 47.

17Québec Lobbying Transparency and Ethics Act, 11.011, 14/02/2023.

Code of Virginia, accessed on 14/02/2023.

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under the state administrative procedure act19. Pursuant to Article 3 term 3 of the Lobbying Disclosure Act, the term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.

However, some describe lobbying as utilizing the power of money to persuade Congress (National Assembly) or state agencies to act in the direction of promoting the private interests of capitalists.

From the above analysis, according to the author, lobbying is systematic activity aimed at accessing and persuading the legislative or executive decision-making process, representatives in elected bodies and other competent persons in the state apparatus to support or oppose a policy or law in the interest of the public, interest groups, an individual, or a nomination or appointment of a person to an important position in the state apparatus.

1.1.2. Definition of interest groups

Lobbying is frequently associated with the phrase interest groups; hence, first of all, we have to clarify what interests are and what interest groups are. The term “interest” is not simply any value but rather “arises from the conjunction between some private value held by a political actor – public officials, or groups them as well as private sector operatives – and some authoritative action or proposed action by the government”20. The idea is used to demonstrate an individual’s or a group’s interest in the changing of some economic variable. Domestic producers, for example, are interested in protectionist trade policy (the deployment of protectionist measures against imports by the government). Interest is a key term in Marxist political economy, however, it is only used in economics to refer to groups of individuals who have common interests21.

The term interest groups is also essential, partly because lobbyists, by definition, represent organized interests when they lobby. According to Anthony J.

19 1995 Lobbying Disclosure Act,

20 Salisbury, R. H. (1994), Interest Structures and Policy Domains: A Focus for Research Representing

Interests and Interest Group Representation, University Press of America, p. 12–20.

21 Nguyễn Văn Ngọc (2006), Từ điển Kinh tế học, National Economics University.

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Nownes, define interest groups as an organization that engages in political activity – that is, activity designed to affect what the government does. According to Thomas T. Holyoke, we refer to a certain interest when we talk about an interest group. Each group represents one need or want, or at most a few extremely closely linked needs or desires shared by a small group of people. As a result, by electing their members to public office, most interest groups are unable to establish official political power. They are too few in number22. Interest groups often try to influence the development of national policies and laws in their favour by doing it themselves or hiring individuals or organizations to lobby. Lobbying can be done through a variety of ways, including directly influencing agencies and policymakers; participating in public discussion sessions; expressing opinions in the mass media; carrying out fundraising campaigns, sending drafts, providing information or experts on policies and legal documents that they want to relevant agencies and officials23. The impact of interest groups on the process of policy-making and law-making in countries is not essentially a corrupt or illegal act, but on the contrary, this is an inevitable objective factor and plays an important role in that process24. Positively, interest groups may give a wealth of in-depth knowledge, information, and data of great practical value on specific subjects, assisting in the development of policies and legislation that are in line with reality. Healthy engagement of interest groups serves to safeguard the legitimate rights and interests of social groups, particularly vulnerable groups, in policies and laws to be implemented, as well as the responsibility of agencies and policymakers, law enforcement.25

Furthermore, neither political parties nor businesses are interest groups because (1) parties gain political power by attempting to elect enough of their members to office in order to command a majority and thus directly control lawmaking institutions, and (2) citizens gain political power by attempting to

22 Thomas T. Holyoke (2014), Interest groups and Lobbying: Pursuing Political Interests in America, West

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represent many different groups of people at once, bitterly voting often realizing that attempting to represent everyone usually results in failing to represent anyone well. Both political parties and interest groups combine individual interests and preferences into collective demands in order to influence the shape and substance of public policy, and both categories exclude entities such as latent social groupings and completely disorganized groups of individuals. Their primary areas of action, however, differ greatly. Political parties are not only more commonly oriented toward a larger variety of policy topics than interest groups, but they also seek public office by running for office, whereas interest groups are organized attempts by persons who do not run for office to influence public policy.26

Corporations are likewise not an interest group since (1) they exist to generate a profit in the marketplace and return that profit to their shareholders, (2) they do not campaign for government handouts or favourable policies (3) they also do not represent any discernible group of persons who have a common interest. (4) Their stockholders are in the business to make money, not to influence policy (5) corporations frequently enter the political arena, generally because a change in legislation has a direct influence on their financial bottom lines. As a result, true interest organizations may claim to represent a percentage of the public, not simply their own leaders and CEOs27.

From the above analysis, according to the author, interest groups is organization that engages in political activity – that is, activity designed to affect what the government does.

1.2. History of the development of lobbying in the world

Lobbying has existed since the dawn of time, and one might argue that it is one of the world’s oldest occupations. When an individual or group of individuals possesses influence over society, other individuals or groups of individuals will have attempted to convince them to use that power in a specific manner.

Lobbying is a normal and unavoidable part of life. Ancient lobbyists attended the forums of both Greece and Rome, seeking to sway both senators and plebs for or

26 Allern, E. H., & Bale, T. (2011), Political parties and interest groups. Party Politics, 18 (1), p. 10-11.

27 Thomas T. Holyoke (2014), Ibid, p. 28.

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against current causes. Courtiers thronged the courts of kings and princes, and those courtiers were the lobbyists of the day. If King John had not been pressured by the barons, he would not have signed the Magna Carta at Runnymede, and British democracy would have evolved quite differently28.

Lobbying draws its name from the lobbies or halls of Parliament where Members of Parliament and peers mingle before and after discussions in the Commons and Lords chambers29. The Parliament of the United Kingdom is organized into two “Chambers” or “Houses” that is the House of Commons is a representative body for the people, its members are directly elected by the people and the House of Lords is the body representing the interests of the lords, so it is difficult for the majority of the people to access them. Since 1376, the Commons has chosen one of their members to speak for them to transmit their opinions to the monarch and lords30. Every new legislative Bill must be approved by all three Houses of Parliament - the Commons, the Lords, and the Crown - before it can become statute law or an Act of Parliament. The law permits MPs to leave the conference room to chat with one other or with anybody else to supplement information. It also allows citizens to be present in the Parliament building hallways to give their ideas and recommendations to their representatives. As a result, voters or their representatives frequently come to this corridor to meet and voice their opinions to offer information and persuade MPs to vote for or against issues, policies, or bills that will or are being discussed in Parliament. Following that, the term “lobbying” was born in that context.

Others claim that lobbying was born in the Uinted States31. Lobbying in Washington had matured to the point that it was the forerunner of today’s business by the eighteenth century. Senators and Representatives were not only entertained by lobbyists but also well-informed and counter-briefed on current problems. Contacts were made, speeches were written, and training was provided for people who would testify before Congressional committees. At the turn of the twentieth century, the United States Congress allowed citizens to contact artists who had lobbied them for

28 Lionel Zetter (2008), Ibid, p. 6.

29 BBC, “Lobbying”, accessed on16/02/2023.

30 Moyra Grant (2009), The UK Parliament - Politics study guides, Edinburgh University Press, p. 2.

31 Lionel Zetter, Ibid, p. 7.

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or against policies, public opinion that would be or are being considered in Congress, advocacy activities, etc. began to gain widespread acceptance. In its first amendment, the United States Constitution of 1787, by affirming the right to freedom of public opinion, freedom of assembly, and the book of peace, provided the legal basis for the so-called “special interest groups”. Lobbying in Washington had grown even more. New media, like as radio, and new technology, such as the telegraph, were welcomed. This enabled the American lobbying sector to begin engaging in the type of grassroots advocacy that is still central to the United States lobbying industry today.

In other countries, the profession of lobbying is also recognized, for example, in the Republic of Germany the 2021 Lobbying Register Act provides: representatives of interest groups have the right to go to parliament, have the necessary contact and may be invited to participate in the discussions of the committee’s of Congress. However, these interest groups must register with the president of the Federal Assembly stating the reason for their operation, the structure of the group, and the names of the leaders and representatives32. Wherever the term originated, lobbying is an objective fact that cannot be denied.

Through analysis of the development history of lobbying, we can conclude that lobbying objectively appears in political life, it is developing and travelling with the political system of a country.

1.3. The objectivity of lobbying

In a democratic and rule-of-law society, lobbying activities are objective, stemming from the work of actors in society pursuing and realizing their interests, which are already in the relationship of authorization and representation between the people and the state.

In a representative democracy, the people and society authorize the state to make and execute political decisions on their behalf based on the interests of the owner who is the people. However, a lot of research has shown problems in the proxy-agent relationship it is the information asymmetry between the principal and the agent: this stems from the very simple fact that the people directly working, the

32 2021 Lobbying Register Act, Section 1; 2,

data.pdf, accessed on14/02/2023.

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always have more information and better information than non-doers and bystanders. This information asymmetry leads to an underrepresentation of the desired results; The second problem is that divergent interests can arise between the principal and the agent, allowing the agent to pursue interests that are different from those of the principal and against the principal’s purposes. The third problem, even if the representatives are for the people and the smartest, they still have certain limitations in properly assessing the diverse needs of people from all walks of life due to constraints on the approach of awareness, budget, time and conditions to express the needs and interests of the people33.

To bridge the gap between the owner and the representative to protect and achieve their best interests, people need to connect, contact, and persuade representatives in decision-making and politics. books are natural. In other words, based on calculating the costs and benefits derived from changes in the law or policy project, individuals, groups and organizations in society will decide to participate or not to participate in this activity. The more beneficial the activity, the higher the motivation and level of participation.

Looking at the history of formation and development, also shows that lobbying does not come subjectively, but it appears in a democratic state objectively, lobbying emerges from the activities of political organizations and subjects in socio-political life always aim to pursue and realize certain goals, interests and values.

1.4. Distinguish between lobbying and policy advocacy

All lobbying is advocacy, but not all advocacy is lobbying34. The main difference between lobbying and advocacy is that lobbying indicates an opinion about specific legislative change. Government funding is strictly prohibited from being used for lobbying35. Some people believe that lobbying and policy advocacy are the

33 Trịnh Thị Xuyến (2021), Vị trí, vai trị của Vận động hành lang trong xã hội dân chủ và pháp quyền, Conference Proceedings - Law on lobbying in the world and experience for Vietnam, Hanoi National University - Law Faculty, p. 17.

34 accessed on 23/07/2023.

35 Brennah Ross, Ciara Nestor, Brittany Gay, & Taylor Scott (2021), Advocacy vs. Lobbying: What’s the

Difference? Understanding Regulations for Researchers and Nonprofits, Research to Policy Collaboration,

accessed on 24/07/2023.

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same thing. However, under the common law system, these two notions are articulated by two distinct terms: Lobby (lobbying) and Policy Advocacy (policy advocacy). Even among these conceptions, however, there is no common points36.

For this purpose, lobbying affects the competent agencies or individuals to get benefits that are suitable for them, while policy advocacy is an effort to propagate a social issue that needs to be changed in the legislative process.

Advocacy is the process through which stakeholders make their voices heard on local, state, and national issues that influence their lives and the lives of others. It also entails assisting policymakers in identifying particular answers to chronic problems. Most NGOs can and do participate in as much lobbying as they can to achieve their objectives. Lobbying, on the other hand, entails efforts that are either in favour of or opposed to a specific piece of legislation that has been submitted. While organizations are permitted to participate in certain lobbying37.

For example, advocacy can be: Telling your legislators how a state or federal grant your organization received has helped your members; Educating a legislator about the effects of a policy on your constituency; Inviting a legislator to visit your organization so that he/she may see firsthand how federal or state funding or policy affects day-to-day operations and the difference it makes; Communicating with a legislative body regarding matters that might affect the existence of the organization, its powers and duties, its tax-exempt status, or the deduction of contributions to the organization While, lobbying can be: Asking your legislators to vote for or against, or amend, introduced legislation.

1.5. Lobbying’s position and its role in a democratic society 1.5.1. The position of lobbying in a democratic society

Lobbying guarantees the government is productive. Without lobbyists, the government has a difficult time resolving differences of opinion when it comes to meeting the demands of its population.

36 Phạm Thị Hoa (2017), Vận động chính sách công ở Anh, Pháp, Mỹ và kinh nghiệm cho Việt Nam,

Doctoral Thesis, Ho Chi Minh National Academy of Politics.

37 accessed on 24/07/2023.

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Scholars of competitive elitism as Marx Webber, Floyd Hunter and C. Wright Mills, when mentioning the position of lobbying in a democratic society, they do not appreciate this activity as well as the role of the people and their organizations in political activities. Because of the process of rationalization, it is the new ladder of the division of labour that is the foundation of modern complex social life, giving rise to many conflicts from diverse interests. People identify their place and function in political institutions as a result of the rationalisation process. The rationalisation process also highlights the need for professionalism and expertise. That is, to separate politics from technocracy, to see politics as a vocation, and to reject the concept that the state would eventually fade away. According to Weber, specialisation will result in a technocratic elite specialised in administrative administration that is not elected by the people, and it exists not only in the state’s public service sector but in all organisations, including political parties. To achieve their aims and values, these parties must win elections, and to do so, they must have competent administrative machinery as staff 38.

Politics, therefore, becomes a profession, and politicians must be schooled to have knowledge, competence, skills, and the capacity to attract and convince the public, as well as mobilise resources. According to Weber, the state, on the other hand, is not of the class and was created not only to exploit but also to control, coordinate activities, and address common issues of all classes. As a result, he rejected the concept that, as human society develops, the state will eventually dissolve; on the contrary, the more society grows, the greater the function of the state.

Together with the evolution of society, the political system model has undergone significant modifications, most notably the shift in the function of parliament.

Before, the parliament was the sole institution with the power of drafting laws; but, in partisan politics, parties played a critical role. The argument summarises this shift: Parliament is dominated by parties, and parties are dominated by professional politicians. Consequently, the rationalisation (rationalisation) of social activities has

38 Lê Thị Thu Mai (2016), Hai cách nhìn về dân chủ hoá ở phương Tây, Electronic Political Theory Journal,

dai.html, acccess on 27/02/2023.

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to a contradiction that is the creation of “the dictatorship by the people”. But, legislative institutions are still required to foster debate and openness and transparency in governance.

According to Weber, the more developed a society is, the more diversified and complicated the interest ties are, and the greater the necessity to create political groups, and these associations always aim to become political organisations representative of that community. The emergence and survival of representative democracy is an objective need of the process of progress and rationalisation. Weber also discovered that, in practice, representative democracy is only a proxy for an elite group’s popularity, or, at most, a guaranteeing mechanism for efficient political leadership rather than serving people’s interests.

On the contrary, a scholar of pluralism, Robert Dahl emphasizes the position and participation of organizations and associations in negotiating and interacting with each other and with the state in public policy39. According to pluralism, power is not structured according to a hierarchy, but is an “endless negotiation process” between numerous groups representing different interests. Policy and political outcomes are always the consequence of the process of harmonizing and adjusting areas of interest. The overall direction of public policy results from various influences from interest groups on the government, with no single group having absolute influence.

Therefore, in society, there is always the existence of many power centres. Similar to Madison’s position, pluralism posits that the fundamental goal of the state is to preserve the freedom of factions to pursue their political interests while preventing one faction from doing so. This faction undermines the freedom of other factions. Unlike Madison, however, pluralism argues that factions are not a threat to democracy, but a structure for stability, and a central expression of democracy. For the pluralists, competing groups are the basis for democratic equilibrium, for the formation of public policy.

If competitive electoral systems are characterized by the diversity of groups, Dahl argues, democratic rights can be protected, avoiding political inequality.

39 Kenneth Godwin, Scotth Ainsworth, Erik Godwin (2013), Lobbying and policymaking, the public pursuit

of private interest, Sage, p. 27, 28, 29.

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On the issue of who has the power and who has the power over whom and what - Dahl has found that power is not cumulative or cumulative but shared and nurtured by a multitude of groups. represent a multitude of interests in society. According to Dahl, “democratic theory is concerned, at a minimum, with the process by which ordinary citizens exercise - to a rather high degree - control over leaders”. Dahl also argues that this control can be maintained if there are two basic mechanisms: periodic elections and competition between parties and groups. Madison, De Tocqueville and J.S. Mill were concerned that the majority rule could be used against the minority. But, according to Dahl, a dictatorship of the majority cannot be formed because elections represent the voices of many competing interest groups, not a fixed majority.

Dahl has always emphasized competition among interest groups that will shape policy and define the democratic nature of a regime. As a condition for the successful functioning of democracy, constitutional principles are many “less important” than “unconstitutional” principles and democratic practice.

In the structure of society and political system, the operation of the political system is governed and affected by factors of the social environment. Accordingly, the output of the political system is the decisions and policies of the state that depend not only on the operational ability of the political system itself but also on the inputs of the political system. In this way, lobbying has a meaningful connection and interaction position between the political system and the social environment. Lobbying is the feedback channel of the social environment, the voice of the people, and an essential basis for the adjustment, adaptation, and response of the political system to the needs, requirements, and development of the political system. The development of society is also important.

Lobbying is a democratic activity that is directly tied to popular principles such as free speech and the ability to petition the government. Individuals, groups, and organisations can use it to voice their demands and interests about governmental choices and to take action to accomplish those goals. As a result, lobbying can improve decision-making quality by offering avenues for feedback on technical and professional concerns to legislators and important decision-makers.

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1.5.2. Role of lobbying in a democratic society

Firstly, lobbying is a legitimate part of a democratic institution, a channel for subjects in social life to realize their legitimate interests.

Countries support and defend the pursuit of interests and enrichment for individuals and society. Interests are regarded as genuine when they serve their own needs without compromising the needs of others or society. Individuals, groups, and businesses can pursue their interests by influencing the state and adopting laws and policies to govern legal restrictions or policies that benefit themselves without damaging the interests of others or the common interests of society. According to this notion, lobbying is also a channel for social subjects to participate to fulfil their own goals without jeopardising the interests of others or societal welfare. Lobbying is a route for subjects to communicate their ideas, beliefs, and interests about official choices and policies; via this expression, the state may better understand the government’s requirements. Understanding people and society to make timely and correct choices and policies that react to people’s goals, and boost production efficiency, and social welfare, just as manufacturers must grasp only the market signals may successfully engage in the market. In the most basic definition of democracy, democracy in society is at least the manifestation of society’s genuine demands and interests, the foundation for assuring the logic and practicability of the people’s policies. The state delivers the public goods and services that the people require, rather than the state’s preferences and intentions.

The right of the people to petition the government is codified in England’s Magna Carta charter 1215, many treaties about American colonial territory, and the United States Declaration of Independence40. As well as in post-revolutionary American federal and state constitutions, including the Bill of Rights. This is the foundation for people’s lobbying to be acknowledged and expanded, particularly in the United States and the European Union, as a valid and legal component of a democratic institution, regardless of whether it is made by individual citizens or by affinity groupings41.

40 Sen. Carl Levin (2005), History of the Lobbying Disclosure Act.

41 Uỷ ban Châu Âu, Sáng kiến minh bạch châu Âu, Brussels.

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Citizens’ engagement in politics in general, and decision-making in particular, is one of the trademarks of conventional political dynamics in the United States. In truth, lobbying in the United States has been and continues to be a political, legal, and social concern that has a significant influence on the United States Congress and the United States government at all levels of the legislative process and moulding domestic and international policy. The existence of lobbying operations at all levels of the policy-making process illustrates not just the self-interest of lobbying groups, but also the genuine demands of the government. policy musicians. Because lobbying is also a reflection, monitoring, control, and balancing of interest groups and the people to public agencies in connection to the National Assembly and the government.

Secondly, the good aspect of lobbying is that it allows for the increase of the informational and organizational basis in relation to choices to be made. In certain ways, lobbying provides for the updating of topical lists of social claims that require legislative control, as well as drawing the legislator’s attention to existing issues. Its primary beneficial impact on the legislative process is that lobbying promotes openness of the provided process, transparency for societal control, and publicity42. providing and supplementing information from various approaches, perspectives and values, overcoming information asymmetry, improving the effectiveness and social welfare of public policies, and contributing to social criticism and supervision association for the public policy process. It means that, as a result of lobbying, the public receives complete, understandable, and timely information on parliamentary events related to considering a specific legislative draft; procedural rules governing work on a specific legislative draft performed by state agencies and formation procedures, composition, and activities of working groups. Lobbying helps to bore down attempts to obstruct or reject truly important legislation solutions aimed at satisfying publicly significant legislative interests, and reduces the likelihood of adopting arbitrary legislation solutions. It also adds to social and political anonymity.

42 Ruslan Yurievich Magomedov (2015), Lobbying in legislative proceedings: negative and positive aspects,

Law and Modern States, No. 01, p. 48.

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Starting from their point of view and interests, groups and organizations in society have the incentive to seek information and data to provide agencies and policymakers, through which they can persuade changes in the way of thinking and create policy adjustments to benefit their groups and organizations. In order to obtain reliable, valuable and persuasive information, subjects must also have an adequate cost of researching, researching, surveying or having access to information that has already been obtained. This makes a difference between organizations in terms of access, ability to organize information, information sources, etc., creating diverse, multidimensional, and different perspectives of information granted to state agencies. Information sources together with the persuasion feedback of groups and organizations act as one of the inputs to the policy process, helping the state to limit one-sidedness and subjectivity in the policy process. The participation of groups and organizations in society in lobbying also means that public policies being drafted by the state have the attention, consideration and evaluation of these organizations and approval. the discussion, and persuasion of policymakers, once again, policy issues are analyzed, calculated and considered more carefully in terms of facts, costs, benefits and impacts on their own, or may also be led, manipulate information and bargain, exchange benefits. Thus, through this process, the correctness and rationality of the policy will be enhanced or may be distorted depending on the lobbying management and the state’s decisions.

Thirdly, contributing to social criticism and supervision of the public policy process, lobbying brings critical topics to the floor of the National Assembly, helping to a more open and democratic decision-making process.

Participation of groups and organisations in society in lobbying implies that public policies being developed by the state have the attention, consideration, and review of these organisations via the trade and persuasion of policy advocates, policy issues are examined, assessed, and considered more carefully based on facts, costs, benefits, and influences, or may also be manipulated, manipulate information and negotiate, and exchange benefits. Hence, the soundness and logic of the policy will be strengthened or twisted as a result of this process, depending on lobbying management and governmental actions. Organisations that have already lobbied for

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a certain policy frequently have the motivation to continue monitoring the policy’s implementation, efficacy, and implications. They can continue to criticise the policy on this basis, advocating or proposing more policy concerns.

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a. CONCLUSION

Lobbying is an objective need that arises from the search for interests and problems in the relationship between the owner (the people) and the representative (the state) in a democracy. Therefore, the creation of a legal corridor to incorporate this activity into the framework, adjustment and administration based on legislation is a necessary condition for a democratic state maintained by the rule of law. In order to increase the effectiveness of both the state and society in this area, it is necessary to improve the openness, transparency and accountability of the public policy process and to guarantee the right to information and freedom of expression. Chapter 1 the definition of lobbying by distinguishing between lobbying and political advocacy, thus clarifying the role of lobbying in a democratic society.

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B. CHAPTER 2. LAW ON LOBBYING IN THE WORLD a. 2.1.Law on lobbying of the United States of America

The emergence of paid advocacy in lawmaking organisations such as the United States Congress is chronicled in the history of lobbying in the United States. Lobbying has typically been seen as hired professionals attempting to influence influential politicians and executives, as opposed to an individual’s right to petition the government. It has existed since the founding of the Republic and affects all levels of government, from local municipalities to the federal government in Washington. Lobbying was largely done at the state level in the nineteenth century, but in the twentieth century, there has been a significant increase in activity, notably at the federal level in the last thirty years.

While lobbying has always been fraught with controversy, there have been several judicial judgements defending lobbying as free speech. At the same time, the courts have not reached a conclusive decision on whether the petition section of the United States Constitution encompasses lobbying43.

Until the 1950s, most courts in the United States saw paid lobbying as a civic evil rather than a protected First Amendment privilege, in its early days, lobbying in the United States was met with conflicting reactions from American culture; also, lobbying is considered as an activity related with corruption as well as moral deterioration. Lobbying was explicitly prohibited by official policy, and lobbying contracts were not enforced. Paid lobbying jeopardized the integrity of people, politicians, lobbyists, and society as a whole. Some states had laws criminalizing lobbying; Georgia had an anti-lobbying clause in its constitution. The practice of not enforcing lobbying contracts faded in the mid-twentieth century. This shift was brought about by two factors: the increasing sanctity of contracts and the professionalization of the lobbying sector. Lobbying was controlled rather than prohibited under state law.

43 Maggie Blackhawk (2016), Lobbying and the Petition Clause, Stanford Law Review,

23/07/2023.

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The legal foundation for lobbying in the United States has steadily been legalized and recognized as a constitutional right by the federal Supreme Court and the United States government, although significant limits remain in order to avoid the drawbacks of lobbying. The Supreme Court of the United States declared the remuneration arising from the contract of lobbying services null and void, arguing that it violated public order and that hiring others to influence government decision-making is a source of corruption44.

“A contract for lobby services, for personal influence, for mere importunities to members of the legislature, or other official body, for bribery or corruption, or for seducing or influencing them by any other arguments, persuasions, or inducements than as directly and legitimately bear upon the merits of the pending application, is illegal, and against public policy and void”45.

However, society has recognized and accepted the function of lobbying in addressing genuine requirements from both sides: the people and the government, over time. The United States Supreme Court has reiterated via case law that the legal basis of lobbying is founded in the United States Constitution46. The Court then remarked in passing Citizens United that Congress could not criminalize lobbying, noting, “Congress has no power to ban lobbying itself.”47. The First Amendment to the United States Constitution provides religious freedom, free speech, free press, free assembly, and the right to petition the government for redress of grievances.

One of the most prized rights under democratic forms of governance is the right to petition the government. The right to petition the American government, specifically acknowledged in the Magna Carta of 1215, was frequently confirmed in colonial American treatises, the Declaration of Independence, and post-revolutionary federal and state constitutions, including the Bill of Rights48.

44 Zephyr Teachout (2014), The Forgotten Law of Lobbying, Election Law Journal, Vol. 13

45 Brown v. Brown 34 Barb. 533, 538 (NY Gen. Term 1861).

46 See United States v. Harriss, 347 U.S. 612 (1954); Eastern R. Conference v. Noerr Motors, 365 U.S. 127

(1961), United States v. Rumely, 345 U.S. 41 (1953)

47 Citizens United v. FEC, 558 U.S. 310 (2010).

48 Craig Holman (2006), Origins, Evolution and Structure of the Lobbying Disclosure Act, Public Citizen,

23/07/2023.

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The Foreign Agents Registration Act of 1938, the Lobbying Act of 1946, the LDA, the HLOGA of 2007 (amended and supplemented the LDA Law of 1995), and the Law on Anti-corruption in Campaigning are all landmarks in the history of lobbying law in the United States.

In general, the goal of the law on lobbying in the United States is to solve the problem between the legitimate lobbying needs of the people on the one hand and corruption, manipulation, and negative derivatives from lobbying. As a result, the legislation advocates for the four fundamental principles listed below49:

To start with, from the standpoint of human rights, lobbying is a manifestation of the right to free speech, free press, free assembly, and the right to present demands and aspirations to the state, protection of the opportunity for individuals, groups, and organizations to lobby, that is, to present facts, arguments, and views to legislative and executive branch officials.

In the second place, prevent improper influence on state activities. Lobbying may and frequently has been accompanied by unsuitable approaches incompatible with public-interest decision-making. Lobbying should educate and hence enhance government action, not distort it by appealing to decision-makers’ private self-interest. The main problem here is not so much with the communicative part of lobbying as it is with efforts that may unlawfully influence government action.

The third goal is creating an equal regulatory environment among lobbyists, preventing a small number from gaining a greater chance of accessing officials to influence policy and prohibiting certain lobbyists from wielding unfair or disproportionate influence in comparison to others. Concerns concerning inappropriate and unfair influence overlap. If one lobbyist gives a tangible advantage to an official while others do not, this may represent both inappropriate and unfair influence. However, the issue of undue influence concentrates on lobbyists who, because of their previous or current contacts with government officials, may have chances for privileged access to authorities that other persons wanting to speak with these officials do not have. This has provided motivation for legislation designed to

49 Richard Briffault (2014), The Anxiety of Influence: The Evolving Regulation of Lobbying, Columbia

Public Law Research Paper, No. 14-367, p. 5.

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limit former government employees’ capacity to influence agencies or branches of government where they previously worked, i.e. “cooling off” or “revolving door” limitations50. Furthermore, tax legislation can intervene to create a more equal lobbying environment; for example, lobbying costs are not deducted from business operating expenses when calculating taxable income, and government contractors do not have the right to demand payment from the state for lobbying costs incurred in order to win projects. That is, the state does not support lobbying in order to prevent affluent corporations from spending big sums of money on lobbying and earning significant tax deductions or refunds from the state’s bank.

Finally, transparency is a major objective of modern lobbying regulation. Indeed, with the advent of open meeting laws, freedom of information laws, public access to records legislation, and public official financial disclosure laws, transparency has emerged as a primary focus of government regulation. Transparency may improve public awareness of how the government operates, allowing citizens to better assess government performance, advocate for change, and hold the government responsible for its actions. Transparency measures do not, on their own, prohibit any lobbying or actions related to lobbying, but they may discourage behaviours that are or are likely to be viewed as inappropriate or unfair. When conversations between politicians and lobbyists take place behind closed doors, the public is bound to be concerned. The rapid rise of lobbying in the United States has resulted in the concentration of control over the government in the hands of a few professional lobbyists with significant economic potential and major networks. A complex political structure. This is a threat to democratic government. As a result, lawmakers, government officials, and the general public must be aware of who pays lobbyists, how much lobbyists are paid. When all information regarding lobbying is made public, transparency helps to reduce inappropriate and uneven lobbying actions. As a result, openness may be useful in dispelling public fears about lobbyist-government collusion, even if it does not result in trust in the outcomes of the reported contacts. openness, without a doubt, increases public monitoring and

50 Richard Briffault (2014), Ibid, p. 8.

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pressure for reforms to address types of inappropriate or unfair influence that openness may disclose.

b. 2.2. Current legislation on lobbying in the United States i.2.2.1.Definition of lobbying

Pursuant to 2 U.S. Code §1602(7), the term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others51.

“Lobbying contact” means any oral or written communication (including an electronic communication) to a covered executive branch official or a covered legislative branch official that is made on behalf of a client with regard to (i) the formulation, modification, or adoption of Federal legislation (including legislative proposals); (ii) the formulation, modification, or adoption of a Federal rule, regulation, Executive order, or any other program, policy, or position of the United States Government; (iii) the administration or execution of a Federal program or policy (including the negotiation, award, or administration of a Federal contract, grant, loan, permit, or license); or (iv) the nomination or confirmation of a person for a position subject to confirmation by the Senate52.

Thus, unlike the 1946 Lobbying Act, it does not regulate lobbying for National Assembly employees, officials, and executive branch employees, nor does it regulate grassroots lobbying, i.e. campaigns to get the public to contact Congress in order to influence legislation being considered by Congress. Existing legislation has broadened its application to include both legislative and executive branch personnel. Legislative branch officials covered by the Law include not only members of the National Assembly, but also personnel working in the National Assembly, such as those helping MPs, committees, and working groups formed to offer services or assistance to MPs. The President, Vice President, officers or workers of the

51 2 U.S.C. §1602(7).

52 2 U.S.C. §1602(8)(A).

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President’s Office, and other officers in executive agencies are all examples of executive branch officials.

ii.2.2.2. Regulations on mandatory registration obligations for lobbying activities

No later than 45 days after a lobbyist first makes a lobbying contact or is employed or retained to make a lobbying contact, whichever is earlier, or on the first business day after such 45th day if the 45th day is not a business day, such lobbyist, shall register with the Secretary of the Senate and the Clerk of the House of Representatives53.

A lobbying company whose total income from lobbying efforts on behalf of a client does not exceed or is not projected to exceed $3,000 in the quarter in which the registration would be made is not required to register with regard to such client. An organization that employs in-house lobbyists and whose total lobbying costs do not exceed and are not likely to exceed $14,000 in the quarterly period in which the registration would be submitted is not needed to register54.

Each registration under this section shall contain (1) the name, address, business telephone number, and principal place of business of the registrant and a general description of its business or activities; the name, address, and principal place of business of the registrant’s client, and a general description of its business or activities (2) the name, address, and principal place of business of any organization, other than the client, that contributes more than $5,000 to the registrant or the client in the quarterly period to fund the lobbying activities of the registrant; and (actively participates in the planning, supervision, or control of such lobbying activities; The name, address, principal place of business, amount of any contribution of more than $5,000 to the lobbying activities of the registrant, and approximate percentage of equitable ownership in the client (if any) of any foreign entity that holds at least 20 percent equitable ownership in the client or any organization identified directly or indirectly, in whole or in major part, plans, supervises, controls, directs, finances, or subsidizes the activities of the client or any organization identified; or is an affiliate

53 2 U.S.C. §1603(a)(1).

54 These thresholds are adjusted every four years, most recently on January 1, 2021, see:

accessed July 31, 2023.

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of the client or any organization identified and has a direct interest in the outcome of the lobbying activity. When lobbying for a bill, the name and number of the bill, as well as the specific topic to be pushed for, must be explicitly specified in the bill. The registration must also include the lobbyist’s positions in the legislative and executive branches during the prior 20 years55.

Overcoming an inadequacy of the 1946 Law, the LDA more specifically defined a lobbyist as any individual employed by a paid client for services that included more than one contact. contact for lobbying, and at least 20% of the individual’s total time working for the client for 3 months must be spent on lobbying for that client.

Individuals and organizations representing foreign governments and foreign political parties are prohibited from engaging in actions such as distribution, political propaganda, and any other activities under the 1938 Law on Registration of Foreign Agents. Any action affecting public opinion in the United States, agencies and officials of the Government, or the United States Congress linked to the formulation or revision of the United States’ domestic and international policies must be registered56.

The LDA implements certain elements of the 1938 Foreign Representative United States Department of Justice, which compelled all lobbyists representing foreign governments and foreign political parties to register with the United States Department of Justice. Lobbyists for foreign trade corporations are obliged by the LDA to register with the Clerks of the House and Senate. Once registered, representatives of foreign governments and parties must file a report to the United States Department of Justice every six months, including all contracts, revenue, and costs resulting from advocacy activity for that foreign government/ party57.

iii.2.2.3. Regulations on reporting obligations on lobbying activities

Quarterly reports are required for lobbying service businesses and lobbying groups with one or more registered lobbyists. The name of the registered organization

55 2 U.S. Code § 1603

56 22 U.S.C. §§611, 612.

57Lobbying Disclosure Act 1995, accessed on 23/07/2023.

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and the name of the client, the areas of lobbying, specific lobbying issues, the institutes of Congress and executive branch agencies contacted, names of lobbyists, relevant foreign organizations, reasonable estimates of lobbying income per client (for lobbying service companies) or estimated expenses lobbying fees (for organizations employing internal lobbyists) must all be included in the report58. Pursuant to clause (e) 2 U.S.C. §1604, a report required to be filed under this section shall be filed in electronic form, in addition to any other form that the Secretary of the Senate or the Clerk of the House of Representatives may require or allow. The Secretary of the Senate and the Clerk of the House of Representatives shall use the same electronic software for the receipt and recording of filings.

iv.2.2.4. Sanctions for violating the law on lobbying

Violations of federal law on lobbying may result in civil liability (fines). Those who knowingly fail to correct an erroneous lobbying registration/report or fail to comply with any other provision of the LDA may be subject to a fine of up to $200,000. Individuals or organizations that have registered for lobbying have 60 days to correct errors after receiving notification from the Secretary of the House or the Secretary of the Senate. Violations caused by unintentional errors will not be penalized59. Otherwise, the HLOGA provides for criminal sanctions of up to 5 years in prison and/or fines for those who fail to comply with the LDA “willfully with malicious intent”60.

c. 2.2.5. Law Enforcement Practices of Lobbying in the United States

In the United States, the law enforcement process for lobbying is fairly tight, with cooperation between the Secretary of the House of Representatives, the Secretary of the Senate, the United States Government Accountability Office, and the United States Attorney’s Office.

The Secretaries of the House of Representatives and the Senate are in charge of enforcing the LDA’s registration and reporting regulations, as well as maintaining a unified, interoperable electronic registration system between the two agencies;

58 2 U.S.C. §1604(a), (b), (c)

59 2 U.S.C. §1606(a).

60 2 U.S.C. §1606(b).

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notifying lobbyists in writing of noncompliance with registration obligations, and referring violations to criminal prosecution in cases where notice is not available to the violator. Respond to the infraction or fail to remedy it. Furthermore, the Clerks of the House and Senate are responsible for issuing guidance and assisting lobbyists in fulfilling their registration and reporting obligations; and reviewing, verifying, and ensuring the accuracy, completeness, and timeliness of registered and reported information on a regular basis61. According to statistics, between 1998 and 2018, organizations and lobbying companies submitted more than 1 million reports, disclosing information on 47,555 organizations, 6,834 lobbying firms, and 47,479 lobbyists62. However, these figures only represent “the tip of the iceberg” because an estimated half of all lobbyists in Washington, D.C. are not registered under the law and are hidden under the title of “shadow lobbyists”63.

The United States Government Accountability Office is the agency tasked with monitoring and reporting annually on compliance with lobbying legislation under the HLOGA Act. The United States Attorney’s office is the specialized agency with the authority to prosecute cases of lobbying violations referred to by the Clerk of the House and Secretary of the Senate. The United States Attorney’s office will study the cases referred to and send follow-up notices of noncompliance to lobbyists who have committed violations, requiring reporting or termination of registration. Within 60 days, if the United States Attorney’s office does not receive a response from the violator, it will decide to initiate a civil lawsuit or initiate a criminal case against the violator. In the case of a civil lawsuit, the violator may have to pay a fine of up to $200,000 for each violation. In case of criminal prosecution, the violator can be imprisoned for up to 5 years.

Thus, the law enforcement mechanism of lobbying in the United States is mainly a mechanism to monitor, monitor, coordinate and endeavour to cooperate with

61 J Straus (2013), Lobbying Registration and Disclosure: The Role of the Clerk of the House and the

Secretary of the Senate, Congressional Research Service Report, Washington.

62 Timothy M. LaPira - Herschel F. Thomas (2020), The Lobbying disclosure act at 25: Challenges and

opportunities for analysis, Interest Group & Advocacy, p. 257.

63 Herschel F. Thomas - Timothy M. LaPira (2017), How many lobbyists are in Washington? Shadow

lobbying and the grey market for policy advocacy, Interest Group & Advocacy, DOI

10.1057/s41309-017-0024-y.

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the violator to achieve the ultimate goal of complying with the law is not a “penalty for survival”, and criminal prosecution is only a last resort with a very limited number of criminal cases64.

d. 2.3. Law on lobbying of the European Union i.2.3.1. Definition of lobbying

Europe is one of the regions that established lobbying regulations early on. The European Commission defines lobbying as a deliberate endeavour to influence policy-making and policy-making in order to gain outcomes from government agencies or elected representatives65. Lobbying in the European Union is the activity of representatives of various interest groups or lobbies attempting to influence the European Union’s executive and legislative authorities through public relations or public affairs work. The Treaty of Lisbon established a new dimension of European lobbying that differs from most national campaigning. Lobbying is more of a personal and informal relationship between officials of national authorities at the national level, while lobbying at the European Union level is gradually becoming a part of the political decision-making process, and therefore part of the legislative process. The concept of European interest representation is part of the European Union’s new participatory democracy. A Written Question submitted by Alman Metten in 1989 was the first step toward specialized control of lobbying in the European Union. Marc Galle, Chairman of the Committee on the Rules of Procedure, the Verification of Credentials, and Immunities, was appointed in 1991 to make ideas for a Code of Conduct and a Lobbyist Register. Lobbying is becoming a fundamental and vital aspect of EU decision-making. Lobbying regulation in the EU improves year after year, while the number of lobbyists grows66.

64 Nguyễn Bích Thảo (2020), Pháp luật về vận động hành lang ở Hoa Kỳ và kinh nghiệm cho Việt Nam,

Conference Proceedings - Law on lobbying in the world and experience for Vietnam, Hanoi National University - Law Faculty, p. 82.

65 Franziska Zibold (2013), Lobbying the EU institutions, Library of the European Parliament.

, accessd on 09/06/2023.

66 Volodymyr NESTEROVYCH (2015), EU standards for the regulation of lobbying, Humanistyczne

Zeszyty Naukowe – Prawa Człowieka nr 18, p. 98, 106.

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In a communication from the Commission on 21 March 200767 (a follow-up to the green paper of 3 May 2006), the European Commission published an official definition of interest representation at the European level; the definition, taken from

the green paper, defined lobbying as “all activities carried out with the goal of influencing the policy formulation and decision-making processes of the European institutions”68.

Interest representation, or lobbying, is either a component of the activity of institutions with a different primary emphasis or is the primary focus of organizations whose sole purpose is to lobby. National, European, and worldwide associations from all areas of economic and social life, private industry, legal firms, public affairs consultants (political consultants), and NGOs and think tanks are the primary actors in European interest representation.

There are two types of European interest representation: action taken by interest representatives (lobbyists) at the European level in Brussels (the “Brussels Route”)69 and action taken by interest representatives, associations, and companies at the national level, focusing on European issues (the “national Route”)70.

ii.2.3.2. Subjects performing lobbying

Subjects of lobbying include not just professional lobbyists, but also private sector representatives (internal lobbying), consultancy companies, and representatives of NGOs, companies, industry and trade groups, research, analysis, policy organizations, law firms, and religious organizations are all examples of organizations71. There is no agreement on the definition of the subjects of lobbying.

70 Greenwood, Justin (2011), Ibid, p. 27.

71 Transparency International (2012), Regional Policy Paper Lobbying in the European Union: Levelling the

Playing Field,

accessed on 23/07/2023.

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Many words are used to characterize this activity, ranging from the names of interest organizations to pressure groups or simply lobbyists72.

There are many ways to distinguish lobbying organizations, based on their form, nature of interests, or for-profit or non-profit purposes73.

- Based on the organizational form: Parliamentary transparent registration mechanism - Classification committee:

+ Professional consulting firms/law firms/freelance consultants

+ Internal lobbyists (representing the organization where they work) and trade/professional associations

+ Non-governmental organizations

+ organize research, analysis and policy consulting

+ organizations representing churches and religious communities

+ representative organizations of local, regional, municipal governments or other mixed public organizations

- Based on the nature of benefits:

+ Groups representing one or a few interests in certain socio-economic sectors (e.g. farmers, textile industry) will generate concentrated prices and profits for their members.

Community groups represent a belief or principle such as the environment, health or consumer protection. The origin of members is not restricted, anyone who shares the same beliefs can become a member of the group. This group represents a wide variety of interests, offering universal value to its advocates. Today, temporary alliances for a reason or purpose tend to increase, members often include companies combined with NGOs, but this type of alliance is also easy to break up.

- Based on the purpose of operating for profit or non-profit:

+ Non-profit organizations: European and international associations/federations.

72 Lehmann Wilhelm. (2003) European Parliament, Directorate – General For Research, Lobbying In The

European Union: Current Rules And Practices, Working Paper, Constitutional Affairs Series, p. 2.

73 Nguyễn Phương Linh (2020), NGOs và nỗ lực vận động chính sách, vận động hành lang tại Việt Nam, Nguyễn Bích Thảo (2020), Pháp luật về vận động hành lang ở Hoa Kỳ và kinh nghiệm cho Việt Nam,

Conference Proceedings - Law on lobbying in the world and experience for Vietnam, Hanoi National University - Law Faculty, p. 256.

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