Many of the alleged questionable actions in the Mulroney-Schreiber affair are still legal

Federal Conservatives and some political commentators have been claiming recently that everything has changed in Ottawa, and that the alleged scandalous actions of the Mulroney-Schreiber affair couldn’t happen now (or, at least, are now illegal) because of the Conservatives’ so-called "Federal Accountability Act" (FAA).

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Other politicians and commentators (such as former Prime Minister Jean Chrétien, former Opposition Party Leader Preston Manning, journalist Jeffrey Simpson, university professor Janice MacKinnon, and the Public Policy Forum,) are claiming that the FAA went too far, and has slowed down the federal government with new regulations that also discourage good people from working for the government. In fact, because the Conservatives only included 30 of their more than 50 promised measures in the FAA (and have only implemented 24 of the 30), and because the FAA did not address dozens of other loopholes, it is still legal (or effectively legal because of lack of enforcement): to make unlimited donations to some political candidates; to give large gifts to federal politicians, to lobby in secret; to become a lobbyist soon after leaving office; to make patronage appointments; to hand out large contracts without a bidding competition, and; for politicians to make decisions in which they have a financial interest. (To see details about the Conservatives' broken FAA promises, click here -- To see details about the 85 loopholes that still exist in the federal government's accountability system, click here) Unfortunately, the same highly questionable, undemocratic activities are also still legal in most provincial, territorial and municipal governments across Canada. And while the FAA did make more changes than any similar law in Canadian history, it only requires a few public servants to do a couple of things more transparently (which doesn’t slow them down at all), and did nothing that would drive any good person away from working in the government. Given that the devil is in the details of any law, let alone the 214-page FAA, it is somewhat understandable that the assessments of so many politicians and political commentators are so inaccurate. At the same time, one would think that these people and organizations (at least the journalists) would feel some responsibility to stick to the facts. So what are the devils in the details? Concerning money in politics, the FAA banned any donations of money, property or services from corporations, unions and other organizations, and limited annual donations by individuals to $1,100 to each party, and another $1,100 combined total to each party’s riding associations. The FAA also limited individual donations to each party’s election candidates to a combined total of $1,100 during each election, whether or not the candidate uses the donation for their campaign. However, it is still legal to donate an unlimited amount of money, property or services in secret to a nomination race or party leadership candidate (as long as the candidate doesn’t use the donation for their campaign). Such a donation would not be a bribe or a violation of federal ethics rules because the Criminal Code only covers bribes to elected politicians, as do the ethics rules. And while federal ethics rules prohibit gifts that could influence a politician or government official, they are only required to disclose to the Ethics Commissioner things they own worth more than $10,000, and the Commissioner does not audit the disclosure statements. As a result, it is very easy for an federal politician or official to hide a gift worth up to $9,999. It is also very easy to get around the rules on secret, unlimited donations because the federal government has not yet implemented the United Nations Convention Against Corruption measures that would ensure monitoring of the bank accounts of politicians and other government decision-makers for suspicious transactions. But, you may be saying, at least we can track who is lobbying these people so we can keep an eye on their relationships. Unfortunately no -- secret lobbying is still legal. If you work at a for-profit corporation, you don’t have to register as a lobbyist if you spend less than 35 days actively lobbying every six months. You also don’t have to register if you do unpaid lobbying (for example, as a retired executive or as a favour for a friend). And, like the Ethics Commissioner, the Registrar of Lobbyists (who is a lapdog controlled by a Cabinet minister) doesn’t do regular audits to prevent undisclosed lobbying. As well, lobbyists are still not required to disclose details of exactly whom they are lobbying, nor how often, so it isn’t even possible to determine whether a registered lobbyist has a close relationship with a particular politician, staff person, or official. Well, you may be thinking, at least the revolving door has been shut down so that former politicians and government officials are not lobbying their former colleagues in government. Sorry, but no. While the FAA bans former Cabinet ministers and top government officials from becoming a lobbyist for five years, ministers can exempt their staff from the ban, most government officials can start lobbying after one year, and all other federal politicians and their staff can start lobbying the day after they leave office. In addition, the ban is only on becoming a lobbyist (ie. a person who is paid to contact or arrange meetings with politicians, their staff and government officials to try to influence their decisions). Everyone in the federal government can still, the day after they leave government, be paid to give advice in secret to anyone about how to influence the government’s decisions (or do any other job in Canada). OK, you may claim, but at least Cabinet ministers can’t stack the boards of Crown corporations, agencies, boards, commissions and tribunals with unqualified party loyalists, former staff, or friends. Sad to say, but such patronage and cronyism is still legal because the federal Conservatives broke their promise to establish an independent Public Appointments Commission (which would have advertised positions and used a merit-based process to select appointees). Alright, you may think, but at least federal politicians and officials can’t be involved in decisions if they have an interest in the outcome, especially if they have a financial interest. If only it were so, but in fact the FAA cut the rule that prohibited Cabinet ministers and top officials having even the appearance of a conflict of interest (and, as a result, everyone in the government can take part in any discussion or vote on general matters or matters that affect a lot of Canadians). Yes, that’s right. A finance minister could own $1 million of one bank’s stock and still be responsible for changes to the Bank Act (because the Act affects all banks); an environment minister could own $1 million of one polluting company’s stock and still be responsible for changes to the Environmental Protection Act (because the Act affects all polluting companies), etc. Really? So ministers can make policies that help themselves, but at least the government can’t hand out contracts without a bidding competition, right? Well, generally no, but one big exemption to this rule allows government officials to designate one company as the only company that can provide a specific product or service (and, since the Conservatives were elected, this exemption has been used to hand out billions in military hardware contracts without any competitive bidding process). OK, one last try, you say, at the very least federal politicians and government officials can be penalized if they lie about or hide such activities. Sorry to disappoint you even further, but the FAA actually cut the rule that require Cabinet ministers, their staff and senior government officials to be honest, and the FAA didn’t contain the eight promised measures that would have made the federal government much more transparent. In other words, the federal government’s accountability system still allows many highly questionable, even scandalous, activities, and another, stronger Accountability Act is needed to give Canadians the honest, ethical, open, representative and waste-preventing federal government they want and deserve (and every provincial, territorial and municipal government needs to enact similar measures). So, if you want such a government, get in touch with your local politician while most of them are home for a holiday, and tell them you know they can’t be held accountable in many ways, and that you won’t vote for them next time around unless they fully and completely clean up their government. Democracy Watch is Canada’s leading citizen group advocating democratic reform, government accountability and corporate responsibility, and the most successful national citizen advocacy group in Canada over the past 13 years in winning systemic changes to key laws.

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