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When it comes to fundraising rules, it’s the wild west in Ottawa

There are rules from the Harper era that offer some guidance out of the Liberals’ fundraising mess. But there is no sheriff—and that’s a problem.
Justin Trudeau
Canadian Prime Minister Justin Trudeau leaves the stage following a discussion on women’s leadership, Thursday, November 24, 2016 in Monrovia, Liberia. THE CANADIAN PRESS/Adrian Wyld

Back in the fall of 2009, a cement industry lobbyist, among others, helped organize a fundraising event for the minister of natural resources, who happened, at the time, to be Conservative MP Lisa Raitt. An investigation by the federal lobbying commissioner later found an apparent conflict of interest in this mix of lobbying and fundraising, but didn’t come down too hard on the lobbyist, noting that the rules around this sort of thing left room for “some uncertainty.”

The following year, then-prime minister Stephen Harper’s chief of staff, Guy Giorno—a lawyer with a longstanding interest in accountability and ethics—tried to eliminate that uncertainty by drafting new standards for fundraising that involved cabinet ministers and parliamentary secretaries. These guidelines were first passed around to Harper’s cabinet in 2010, then put into a larger guide for ministers called Accountable Government in 2011, and finally pulled into Justin Trudeau’s updated version of that same document, now called Open and Accountable Government, after the Liberals came to power last fall.

So it’s Giorno’s code that is being hotly debated these days, as Trudeau’s government weathers a storm of controversy over fundraisers involving powerful ministers, and now even the Prime Minister himself. Its main provisions say that political parties shouldn’t target individuals or groups for fundraising because they have dealings with a particular minister, and that no fundraising event should give preferential access, or even the appearance of it, in exchange for political contributions.

I asked Giorno what he had in mind when he helped put those guidelines in place, and he stressed that he’s all for fundraising and lobbying—just not in the same room at the same time. “These two democratic rights are fine when they are separated, but the combination of the two is toxic,” he told me.

The problem, as the Liberals are now learning the hard way, is persuading anybody that their party can charge, say, $1,500 a person for entry to an evening with the Prime Minister, held at the Toronto home of the chairman of the Chinese Business Chamber of Canada, and not have it look like the 32 attendees, in effect, paid for up-close access.

It’s sure tempting to denounce the whole practice. Still, there are some legitimate points to consider here. First is the question of what’s up for discussion at these events. The advice in Open and Accountable Government is that if anybody attending tries to raise “departmental business,” then the minister should firmly tell them to make an appointment with the department. Is it possible to consistently apply this sort of stringent rule to human interaction in informal settings? Skepticism isn’t inappropriate.

More plausible, I think, is the possibility of actually excluding from the guest list at these fundraisers anyone likely to have specific reasons to want to lobby the minister. Conservatives say that when they were in power, they regularly blocked would-be attendees who had evident reasons for wanting to buttonhole the guest of honour. The Liberals say they do this sort of advance screening, too.

Braeden Caley, a spokesman for the party, says guest lists for Liberal fundraisers are checked a few days in advance against the federal lobbyists’ registry. “I can confirm that there have been individuals who have been turned away from events because they did not meet the test of that step,” Caley said. Asked for an example, he said an individual who planned to attend was asked not to show up at a Nov. 7 event in Toronto, where Finance Minister Bill Morneau was the big draw, to “ensure no discussion of government business.”

It’s not clear that trying to forbid talk of policy and government business, while excluding those with obvious reasons for wanting to cozy up to a minister, offer enough reassurance to let these sorts of fundraisers continue. But, even if you agree that such rules render these events acceptable, there’s still the troubling question of enforcing them. As matters stand, Open and Accountable Government is a rule book without a referee.

The idea that restrictions on fundraising activities should be upgraded from mere guidelines to real law has been around for at least a few years. “It is obvious that fundraising can give rise to conflict of interest issues,” the Canadian Bar Association said in 2013, urging that the existing “very detailed” advice to ministers on fundraising be made legally enforceable by putting it in federal Conflict of Interest Act. Also in 2013, Mary Dawson, the federal Conflict of Interest and Ethics Commissioner, urged that the act be strengthened to include a “more stringent rule with respect to fundraising.”

Giorno agrees. He says he’s no longer involved in partisan activities, and so is careful not to pass judgment on the Liberals’ fundraising. It’s a matter of who should settle matters when serious questions arise, as they undeniably have this fall. “All of those things can be sorted out by an impartial, neutral, arms-length person,” Giorno says. “Right now, we’ve got no enforcement.”