This chapter looks at Costa Rica’s existing framework to ensure integrity and transparency in public decision-making processes and assesses its resilience to the risks of capture of public policies and undue influence by special interest groups. In particular, this chapter identifies measures Costa Rica could adopt to strengthen access to information for all stakeholders, as well as stakeholder engagement in policy making. This chapter also explores how to strengthen the legislative framework with respect to lobbying and political finance and identifies measures to raise awareness about integrity standards on lobbying for government officials and lobbyists more broadly.
OECD Integrity Review of Costa Rica
Safeguarding Democratic Achievements
OECD Public Governance Reviews
4. Strengthening transparency and integrity in decision-making in Costa Rica
Abstract
Introduction
Public policies determine to a large extent the prosperity and well-being of citizens and societies. They are also the main ‘product’ people receive, observe, and evaluate from their governments. While these policies should reflect the public interest, governments also need to acknowledge the existence of diverse interest groups, and consider the costs and benefits for these groups. In practice, a variety of private interests aim at influencing public policies in their favour through lobbying and other influence practices. It is this variety of interests that allows policy makers to learn about options and trade-offs, and ultimately decide on the best course of action on any given policy issue. Such an inclusive policy-making process leads to more informed and ultimately better policies.
Lobbying itself is a legitimate act of democratic participation because it enables different groups to provide input and expertise to the policymaking process. However, it has a profound impact on the outcome of public policies. If non-transparent, lobbying poses a risk to inclusiveness in decision-making and can result in suboptimal policies. Indeed, experience shows that policy making is not always inclusive and at times may only consider the interests of a few, usually those that are more financially and politically powerful. Experience also shows that lobbying and other practices to influence governments may be abused through the provision of biased or deceitful evidence or data and the manipulation of public opinion (OECD, 2021[1]). For example, when the financing of political parties or election campaigns takes advantage of legal loopholes, or social media is used to manipulate public opinion and shield influence from public scrutiny, public policies may not provide an optimal outcome for our societies. Evidence further shows that there is a risk that some parties and candidates, once in office, will be more responsive to the interests of a particular group of donors rather than to the wider public interest. Donors may expect a form of reciprocity for donations made during an election campaign, for example getting privileged access to information or to overpriced public contracts, receiving favourable conditions in public loans or other forms of illegal benefits from the respective public administration (OECD, 2017[2]).
The consequences on the economy are widespread. Studies increasingly show that situations of undue influence and inequity in influence power has led to the misallocation of public resources, reduced productivity and perpetuated social inequalities (OECD, 2017[2]). They may negatively affect the appetite of (foreign) investors and lower the country's trustworthiness at the international level.
Public policies that are misinformed and respond only to the needs of a specific interest group can also negatively affect trust to the government, possibly resulting in the dissatisfaction of the public as a whole towards public institutions and democratic processes. According to the 2020 Latinobarómetro survey, 88.5% of citizens in Costa Rica think that their country is governed for a few powerful groups in their own interest; while only 8.6% believe Costa Rica is governed for the good of all people (Figure 4.1). This is the second highest percentage in the Latin American region and above the average of all Latin American countries (73%) covered by the survey. The score indicates that citizens perceive that policies are undue influenced by narrow interests, and/or that powerful groups exert too much influence on the outcomes of public decision-making processes. In addition, when asked who they think has most power in Costa Rica, 23.4% of respondents put big companies first, while 29.4% put Government and 12.6% Congress (La Corporación Latinobarómetro, 2021[3]).
Figure 4.1. Citizens in Costa Rica perceive that a few powerful groups govern their country
Note: This survey has been conducted in 18 countries in the region (Argentina, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, El Salvador, Guatemala, Honduras, México, Nicaragua, Panamá, Paraguay, Peru, Dominican Republican, Uruguay, and Venezuela).
Source: Latinobarómetro (2021), https://www.latinobarometro.org/latOnline.jsp.
To maximise the benefits of inputs into decision-making, overcome the concentration of economic resources in the hands of the few and to safeguard the transparency and integrity of democratic processes, Costa Rica should therefore aim at improving its decision-making processes. This could be achieved by fostering transparency and integrity in lobbying and influence activities, restricting undue influence of government policies and increasing equity in stakeholder participation. It requires building or strengthening a coherent, comprehensive, effective and enforceable regulatory framework, consistent with the other policies and regulations and ensuring proper implementation, compliance and review.
In addition to strengthening public integrity as emphasised throughout the previous chapters, Costa Rica should therefore reinforce its policies in both the executive and legislative branches, along the following main lines:
Strengthening transparency in government decision-making processes, in particular lobbying and political finance.
Establishing transparency and integrity frameworks for all bodies providing advice to government.
Establishing an integrity framework adapted to the risks of lobbying and influence activities for both public officials and non-governmental actors.
Ensuring that government decision-making processes are inclusive through effective stakeholder engagement.
Strengthening transparency in government decision-making processes in the executive and legislative branches
Costa Rica could consider consolidating the framework for access to information into a single Act
Access to information (ATI) is a necessary precondition for democracy and a necessary legal foundation for transparency and accountability in policy-making (OECD, 2014[4]; OECD, 2016[5]). ATI is understood as the ability for an individual to seek, receive, impart and use information effectively. It enables citizens and stakeholders to obtain information on the decisions that affect their everyday lives, and fulfil their role as watchdogs over the proper functioning of government institutions. For these reasons, effectively implementing citizens' right to know and the legal provisions to access information are significant instruments for combating corruption and undue influence in public decision-making.
An effective legal framework that clarifies how right to information will be realised is the foundation for a strong access to information system. Core provisions of ATI laws include: the scope, the provisions for proactive and reactive disclosure, the exemptions and denials to grant information to the public, the possibility to file appeals, and the institutional responsibilities for oversight and implementation.
In Costa Rica, the Constitution protects the right to information on matters of public interest. The Constitution also provides the basis for the disclosure of information. Article 30 states that “free access to administrative departments is guaranteed for the purpose of obtaining information on matters of public interest.” Moreover, in November 2015, the President of the Republic, the Presidents of the legislative, the judiciary and of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) signed a Declaration for the Establishment of an Open State (Declaración por la Construcción de un Estado Abierto). They committed to “promote a policy of openness, transparency, accountability, participation and innovation in favour of the citizens” across the entire state apparatus. Furthermore, Costa Rica has designed an integrated National Open State Strategy (Convenio marco para promover un Estado Abierto de la República de Costa Rica) developed by the different branches of power together with civil society, which was launched in March 2017. Recently, with the Executive Decree 43525-MP-H-MICITT-MIDEPLAN-MJP-MC of April 2022, Costa Rica continued to promote open government in the public administration and created the National Commission for an Open State.
In 2017, Executive Decree 40200 on Transparency and Access to Information was adopted to regulate access to public information, the procedure for submitting requests, the designation of access to information officers in public institutions and their functions, the publication of information, the sanctions regime and the reporting of the situation on access to information within the institutional annual reports. The Decree entrusts the National Commission for Open Government with monitoring compliance. However, according to the Right to Information Rating (RTI), the legal quality of Costa Rica’s Decree is lower than the OECD average of 81 (Figure 4.2).
Figure 4.2. In terms of its legal framework, Costa Rica’s Access to Information Act is below of the OECD average
Note: The maximum achievable composite score is 150 and reflects a strong RTI legal framework. The global rating of RTI laws is composed of 61 indicators measuring seven dimensions: Right of access; Scope; Requesting procedures; Exceptions and refusals; Appeals; Sanctions and protection; and Promotional measures.
Source: Access Info Europe (AIE) and the Centre for Law and Democracy (CLD), Right to Information Rating, https://www.rti-rating.org/
In terms of scope, the current legal framework applies to the executive branch, including local levels of government, but the legislative and judicial branches are not explicitly included. The framework also covers private entities managing public funds, state-owned enterprises and other entities performing public functions, as well as some autonomous and semi-autonomous bodies. In terms of disclosures, the Decree (Article 17) lists public information that is accessible. However, it does not provide clear procedures or guidance on the format requested by applicants for access to information.
Concerning exceptions and refusals, international good practice suggests that all exceptions should be clear, probable and with a specific risk of damage to public interest, or legally protected by a personal interest. Public interest tests and harm tests are two common ways to exempt information to ensure that these are proportionate and necessary. In Costa Rica, there are exceptions specified in Decree 40600. The Constitution, as interpreted by the Courts, provides for exceptions regarding state secrets. In addition, the Constitutional Court has recognised additional exceptions, such as for public order and public morality, based on general grounds for restricting fundamental rights in the Constitution. It has also found other exceptions to be valid based on other laws or rights, such as exceptions for privacy and commercial secrets. It has also recognised a general category where information may be withheld if it is generally not in the public interest to disclose it. According to the Right to Information Rating, the jurisprudence is not enough to create an exceptions regime, because it does not clearly establish a closed/limited set of exceptions and authorities would have significant discretion to interpret in practice (Figure 4.3). In addition, Courts do not seem to apply a harm test when interpreting exceptions (Access Info Europe, Centre for Law and Democracy, n.d.[6]).
Figure 4.3. Costa Rica’s Access to Information legal framework exhibits weaknesses in the dimensions of exceptions and refusals
Note: The percentages are calculated based on the maximum possible scores by dimension and the actual RTI score obtained by Argentina.
Source: Access Info Europe (AIE) and the Centre for Law and Democracy (CLD), Right to Information Rating.
In addition to a solid legal framework, effective institutional arrangements are also essential to implement the right to information. These arrangements concern several aspects, including where and how information is published, to whom requests can be made and timeliness of responses. In Costa Rica, institutions appoint an Information Access Official responsible for receiving, managing and responding to inquiries within ten working days, in accordance with the General Public Administration Law. Costa Rica also appointed a National Commission on Open Data, which provides a third mechanism for data requests. Yet, a 2019 report from the civil society organisation Costa Rica Íntegra, in partnership with the School of Public Administration, found that barriers and obstacles persist to access public information in the vast majority of the 112 institutions studied. In particular, a third of the Access to Information Officers had not yet been appointed and only one public entity fully complied with its obligations of active transparency. The report also pointed out a lack of training for public officials and citizens on the provisions of the Decree 40200 (Costa Rica Integra, 2020[7]). Lastly, the Decree does not provide for an oversight body in charge of enforcement, monitoring and promotion of the law.
In light of the above, the current system for access to information in Costa Rica remains incomplete without a stand-alone access to/freedom of information (ATI) law. More than 100 countries worldwide, including all OECD countries have a stand-alone access to/freedom of information law (OECD, 2016[8]). Despite different attempts to pass an access to information law, Costa Rica had no such law in force at the time of writing. For instance, in June 2014, a draft law had been presented to the Legislative Assembly but was rejected by Members of Congress. A new Legislative Decree 10 242 "General Law of Access to Public Information and Transparency" was later adopted in the legislative Assembly, but it was partially vetoed by the Government in June 2022 and had to be archived later. The now-rejected initiative proposed to reduce to 5 business days the deadline for citizens to receive public information requested from state entities or private entities that handle or guard public funds (compared to the current term of 10 business days). In the case of requests made by the press, the institutions had to respond within 48 hours. In addition, the proposal required institutions to publish in an open, interoperable and accessible format, relevant public information. The bill was however criticised by the Ombudsman's Office (Defensoría de los Habitantes) and the Association of Journalists because article 8 established limitations on access to public information for the prevention, investigation and punishment of criminal, administrative or disciplinary offences (Delfino, 2022[9]).
In line with the country’s commitments under the Open Government Partnership, the National Open Government Commission and the Ministry of the Presidency could propose a new law that addresses the above-mentioned weaknesses, applicable to the whole public sector, including the institutionally decentralised public administration (e.g. semi-autonomous and autonomous bodies). The law could provide for the creation of an oversight body with a clear and well-disseminated mandate with adequate enforcement capacities, both in terms of competence to issue sanctions and of having adequate human and financial resources. The government could also formalise a co-ordination mechanism among Information Access Officials. Lastly, to improve compliance, the government could provide additional training and guidance to build Information Access Officials’ capacity to review and respond to requests.
Costa Rica could adopt a lobbying framework ensuring transparency of any kind of lobbying activities that may take place in practice
Lobbying, understood in its traditional sense as a communication between a public official and a third party aiming at influencing public policies. It has the potential to promote democratic participation and can provide decision makers with valuable insights and information. Lobbying may also facilitate stakeholder access to public policy development and implementation. Yet, lobbying is often perceived as an opaque activity of dubious integrity, which may result in undue influence, unfair competition and policy capture to the detriment of fair, impartial and effective policy-making. This is the case in Costa Rica, where one of the main challenges that emerged during the interviews conducted by the OECD in Costa Rica is the limited – and often negative – understanding of the concept of lobbying. The benefits of making it a transparent process, including to ensure fair and equitable access to the decision-making process and to enable public scrutiny, are often not clear.
The OECD experience shows that an effective lobbying regulation should make publicly available and easily accessible, timely, comprehensive and detailed information on activities aimed at or capable of influencing government decision-making processes. In particular, this information should cover who is lobbying or influencing government, who is the target of such activities and the specific policy issue that was the subject of these activities (OECD, 2021[1]).
Article 11 of the Political Constitution of Costa Rica establishes the principles of transparency, impartiality and integrity as part of the government's work. However, Costa Rica currently lacks a specific framework that defines lobbying and lobbying activities and that could provide for transparency in lobbying. Several legislative sources touch upon the principles of integrity and transparency: the Law against Corruption and Illicit Enrichment (Law 8422 of 2004) (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública) (Article 3), Decree 32333 of 2005 - Regulations on the Law against Corruption and Illicit Enrichment (Reglamento a la Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública) (Article 1), Decree 33146 of 2006 Ethical Principles of Civil Servants (Principios Éticos de los Funcionarios Públicos), and Guideline D-2-2004.
Several bills were previously discussed in Parliament, including draft Law 19251 of 2014 which proposed a Law on Lobbying in the Public Service (Ley Reguladora del Cabildeo en la Función Pública). However, none of these bills was passed into law. The latest proposal to adopt lobbying reforms elaborated by the Deputy of the Christian Social Unity Party (Partido Unidad Social Cristiana, PUSC), María Inés Solís, was introduced in the Legislative Assembly in 2019, but was not adopted in plenary (Ley reguladora de las actividad de lobby en la administración pública).
The OECD Recommendation on Principles for transparency and integrity in lobbying encourages countries to “provide an adequate degree of transparency to ensure that public officials, citizens and businesses can obtain sufficient information on lobbying activities” (OECD, 2010[10]). There are several ways in which transparency can be achieved: first, through clearly defining the terms “lobbying” and “lobbyist”, second by making relevant information available, and third, by implementing a coherent spectrum of strategies and mechanism to ensure compliance with transparency measures (OECD, 2010[10]).
Clarifying the scope of the lobbying regulation and clearly defining the terms ‘lobbying’ and ‘lobbyist’
Clearly defining the scope of the law is critical for ensuring effective lobbying regulation. The definitions should be tailored to the specific context and sufficiently robust, comprehensive and sufficiently explicit to avoid misinterpretation and to prevent loopholes. This includes clarifying: (i) who is considered as a lobbyist; (ii) what type of activities are considered as lobbying; (iii) the types of decisions that are targeted by lobbying; (iv) the categories of public officials that are targeted by lobbying. The definitions proposed in the draft bill regulating lobbying activities are described in Box 4.1.
Box 4.1. Draft bill on the regulation of lobbying activities in Costa Rica (2019)
Branches and levels of government covered
Lobbied persons were considered to be public officials with decision-making capacities (either individually or collectively) in the three branches of Government (the Presidency and Vice-Presidencies of the Republic, Ministers and Vice-Ministers of Government, the Attorney General and Deputy Attorney General as well as the attorneys of their areas of competence, Magistrates of the Plenary Court, the Prosecutor General and the Deputy Prosecutor General, the Magistrates of the Supreme Electoral Tribunal, the Comptroller General and the Deputy Comptroller General, the Deputies of the Republic and the Executive Director of the Legislative Assembly) as well as in the local levels of Government (including Mayors, Vice Mayors).
Definition of “lobbying”
The draft bill covered remunerated lobbying activities and defined lobbying as any “activity carried out by a natural or legal person, national or foreign, before the public servants that this law defines as ‘lobbied persons’, with the intention of directly or indirectly influencing the decision-making process, and thereby promoting their own interests or those of third parties”.
The types of decisions targeted by lobbying activities included bills and laws, recommendations, agreements, resolutions, decisions, policies, plans, programmes, as well as public contracts.
Experience from other countries found that providing effective definitions remains a challenge, in particular because today’s 21st century of information overload, with the rise of social media, has made the lobbying phenomenon more complex than ever before. The avenues by which stakeholders engage with governments encompass a wide range of practices and actors (OECD, 2021[1]). To address this challenge, when setting up lobbying regulation, it is critical to ensure that the definition of lobbying activities is considered more broadly and inclusively to provide a level playing field for interest groups, whether business or not-for-profit entities, which aim to influence public decision-making (OECD, 2010[10]).
The proposed definition in the draft bill imposes transparency measures comprehensively and equally on all the actors who aim to influence decision-making processes, whether for-profit or not-for-profit. This proposal enables coverage of a broad range of actors, including those that have not traditionally been viewed as “lobbyists” (e.g. think tanks, research institutions, foundations, non-governmental organisations, etc.). However, the definition only covers remunerated activities. While the OECD Recommendation on Principles for transparency and integrity in lobbying call on adherents primarily to target paid lobbyists, governments are encouraged to consider a broader and more inclusive scope of transparency measures, to enhance public scrutiny over public decision-making processes. As such, any future draft law could also include non-remunerated activities.
The proposed definition specifies “who” (i.e. public officials targeted by lobbying activities), “what” (i.e. what public decisions targeted by lobbying activities) and “how” (i.e. types of communication used.). In terms of public decisions targeted by lobbying activities, the proposed list aligns with good practice. The types of decisions targeted by lobbying activities included bills and laws, recommendations, agreements, resolutions, decisions, policies, plans, programs, as well as public contracts. However, a comprehensive definition will have to ensure that the entire policy cycle is covered from design to evaluation phases (see Table 4.1). Within each of these stages, there are specific risks of influence, and a number of actors that could be targeted by those intending to sway decisions towards their private interests.
In terms of public officials, the definition provides a coherent approach to transparency at all levels of government, as it covers the three branches of government and the territorial level. In order to promote transparency and accountability, it is recommended the list of “lobbied public officials” be publicly available and kept up-to-date by each public institution. In Ireland, each public body must publish and keep up-to-date a list of designated public officials under the law; the Standards in Public Office Commission also publishes a list of public bodies with designated public officials.
Box 4.2. Requirement to publish designated public officials’ details in Ireland
In Ireland, Section 6(4) of the Lobbying Act of 2015 requires each public body to publish a list showing the name, grade and brief details of the role and responsibilities of each “designated public official” of the body. The list must be kept up to date. The purpose of the list is twofold:
To allow members of the public identify those persons who are designated public officials; and
As a resource for lobbyists filing a return to the Register who may need to source a designated public official’s details.
The list of designated public officials must be prominently displayed and easily found on the homepage of each organisation’s website. The page should also contain a link to the Register of Lobbying.
Source: Standards in Public Office Commission, Requirements for public bodies, https://www.lobbying.ie/help-resources/information-for-public-bodies/requirements-for-public-bodies/.
In terms of communications considered as lobbying activities, the proposal in the draft bill is limited to oral and written communications. Similarly, the definition does not explicitly define what constitutes “direct” and “indirect” influence. This leaves out other forms of communication, such as the use of social media as a lobbying tool. Indeed, in today’s 21st century context, interest groups are increasingly using social media to shape policy debates or to inform or persuade members of the public to put pressure on policy makers and indirectly influence the government decision-making process. As such, lobbying activities should not be narrowed to a communication between a lobbyist and a public official. To set up a comprehensive scope of the regulation, any subsequent draft law could be revised to ensure the transparency of any kind of lobbying activity that may take place, going beyond direct written or oral communications. Box 4.3 provides an overview of OECD member experience in setting out clear, comprehensive and broad definitions on lobbying.
Box 4.3. Examples of broad definitions of ‘lobbying’ amongst OECD members
Canada
Communications considered as lobbying include direct communications with a federal public office holder (i.e. either in writing or orally) and grass‑roots communications. The Lobbying Act defines grassroots communications as any appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion. For consultant lobbyists (lobbying on behalf of clients), arranging a meeting between a public office holder and any other person is considered as a lobbying activity.
In its August 2017 Interpretation Bulletin, the Office of Commissioner of Lobbying of Canada clarified the means used for the purpose of appealing to the general public, which may include letter and electronic messaging campaigns, advertisements, websites, social media posts and platforms such as Facebook, Twitter, LinkedIn, Snapchat, YouTube, etc.
The Commissioner also indicated that participation in the strategic and operational activities of an appeal to the general public (approving items, providing advice, conducting research and analysis, writing messages, preparing content, disseminating content, and interacting with members of the public) also requires registration.
Ireland
Relevant communications means communications (whether oral or written and however made), other than excepted communications, made personally (directly or indirectly) to a designated public official in relation to a relevant matter.
The website of the Irish lobbying register indicates that “relevant communications” can include informal communications such as casual encounters, social gatherings, social media messages directed to public officials, or “grassroots” communication, defined as an activity where an organisation instructs its members or supporters to contact public officials on a particular matter.
European Union
In the European Union, the Inter-institutional agreement between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register defines “covered activities” as: (a) organising or participating in meetings, conferences or events, as well as engaging in any similar contacts with Union institutions; (b) contributing to or participating in consultations, hearings or other similar initiatives; (c) organising communication campaigns, platforms, networks and grassroots initiatives; (d) preparing or commissioning policy and position papers, amendments, opinion polls and surveys, open letters and other communication or information material, and commissioning and carrying out research.
Lastly, definitions should also clearly specify the type of communications with public officials that are not considered 'lobbying'. Some activities are relevant to exclude, for example information provided during a meeting of a public nature and for which information is already made available. In Canada, the Lobbying Act exempts “any oral or written submission made to a committee of the Senate or House of Commons or of both Houses of Parliament or to any body or person having jurisdiction or powers conferred by or under an Act of Parliament, in proceedings that are a matter of public record”. However, there are certain exclusions that were foreseen in the draft bill that merit particular attention, as they may create important loopholes. First, the bill proposed to exclude any information provided at the request of a public official for the exercise of activities or the adoption of measures within its sphere of competence. Second, the bill excluded communications made to enquire about the status of a particular administrative procedure or draft legislation. The exemptions could further be clarified to avoid any misinterpretations:
The exception could cover communications by lobbyists made in response to a request from a public official concerning factual information or for the sole purpose of answering technical questions from a public office holder, and provided that the response does not otherwise seek to influence such a decision or cannot be considered as seeking to influence such a decision. In the United Kingdom for example, if a designated public official initiates communication with an organisation and in the subsequent course of the exchange, the criteria for lobbying are met, then the organisation is required to register the activity.
The law could further clarify which requests for information by lobbyists are covered by the exemption, for example when they consist of enquiring about the status of an administrative procedure, about the interpretation of a law, or that are intended to inform a client on a general legal situation or on his specific legal situation.
Third, the bill excluded consultancy services provided to public bodies and members of Parliament by professionals and researchers from non-profit associations, corporations, foundations, universities, research centres. It is, however, not recommended to exclude from registration consultative process with any such individuals or entities. This aspect is further covered in Section 2 of this chapter.
Enabling effective transparency
A critical element for enhancing transparency in public decision making are mechanisms through which public officials, business and society can obtain sufficient information regarding who has had access and on what issues (OECD, 2010[10]). Such mechanisms should ensure that sufficient, pertinent information on key aspects of lobbying activities is disclosed in a timely manner, with the ultimate aim of enabling public scrutiny (OECD, 2010[10]). In particular, disclosed information could include which legislation, proposals, regulations or decisions were targeted by lobbyists.
In Costa Rica, the draft bill proposed that two key registers be set up: a Public Agenda Register and a Register of Lobbyists. First, the law provided for a “public agenda register”, administered by the Attorney for Public Ethics (Procuraduria de la Ética Pública, PEP), centralising information on public officials’ public agendas. Public officials would have the obligation to designate a person in charge within his/her office to keep a “public agenda record” of the official, including information on the meetings requested by lobbyists. The following information would have to be disclosed: (i) place and date of the meeting, (ii) specific subject matter or topic to be discussed, (iii) name of the persons who attended, and (iv) the companies or organisations represented. The draft Law also required lobbied public officials to disclose in their public agenda information on their travels (destination, purpose, agenda, total costs and public institution financing the travel) as well as official and protocol donations received as a courtesy in the performance of their duties (details of the gift or donation received, date and occasion of receipt, natural or legal person from who it was received).
The PEP was also foreseen to administer a “public register of lobbyists”, based on information provided by each entity or institution of the State. The public register of lobbyists would contain the name of the person who lobbies, an indication of whether he/she receives remuneration for this activity, the name of the natural or legal person for whom the meeting or hearing has been requested and of the person who is presumed to remunerate the lobbyist for his/her work.
The information required would enable scrutiny, as information concerning what was influenced and the intended results is not only required, but also made public. However, it would be limited to meetings and hearing, leaving an important part of lobbying activities in the shadows.
In addition, while public officials have the prime responsibility to demonstrate and ensure the transparency of the decision-making process, the proposed approach in this law may result unbalanced as it lays on them all the responsibility of recording lobbying activities. Lobbyists and their clients also share an obligation to ensure that they avoid exercising illicit influence and comply with professional standards in their relations with public officials, with other lobbyists and their clients, and with the public.
The proposal could therefore be complemented by a separate mechanism for reporting all influence efforts, in the form of mandatory disclosures from lobbyists on a semestrial or quarterly basis in the register of lobbyists, as an additional avenue for transparency. Examples are provided in Table 4.2. In countries that combine lobbying registers and open agendas (e.g. the United Kingdom), cross-checking agendas and lobbying registers may also provide an opportunity to cross-check information and analyse who tried to influence public officials and how. In the United Kingdom for example, the Office of the Registrar of Consultant Lobbyists cross-checks lobbyists registered with ministerial open agendas, to monitor and enforce compliance with the requirements set out by the Transparency of Lobbying Act.
Table 4.2. Frequency and content of lobbying disclosures in the United States and Ireland
Source: (OECD, 2021[1]).
A key challenge in implementing transparency registers is ensuring that the collected information can be published in an open, re-usable format. This facilitates the reusability and cross-checking of data. In terms of accessibility information, the information should be public and accessible free of charge on a single only platform (OECD, 2021[1]). A similar approach seemed to have been followed in the draft law regulating lobbying activities in the public administration, which gave each organisation the responsibility to ensure that the required institutions register and update information. The draft law also provided for a single registry administered by the PEP where citizens could consult all the lobbying-related information across branches of government. In the event that a similar law is adopted, Costa Rica could learn from the experience of Chile’s Transparency Council’s single platform (Info Lobby) which contains all the lobbying-related information of the country (Box 4.4).
Box 4.4. Chile’s innovative platform presents data on influence on national public decisions
The on-line portal allowing citizens to obtain information about lobbying in Chile called Info Lobby (infolobby.cl) is managed by Transparency Council (Consejo para la Transparencia), the co-ordination body overseeing the implementation of the Transparency Law and, in particular, promoting transparency, monitoring compliance, and guaranteeing the right to access to information.
With regard to lobbying, it is also in charge of making all registers of every institution accessible in a user-friendly website. For this purpose, all subjects covered by the lobbying regulation have to send relevant information to the Council, which will then publish it in the on-line portal. These not only include lobbying-related information – which are then organised according to several criteria (paid/unpaid lobbyist, lobbyist client, institution, public officials ranking and subject matter) – but also information about public officials’ travels and donations, which are also to be disclosed according to Lobbying Law 20730.
The datasets can be downloaded to review or reuse further data collected by the Council.
Source: (OECD, 2021[1]).
Mechanisms for Effective Implementation, Compliance and Review
Transparency requirements cannot achieve their objective unless the regulated actors comply with them and oversight entities effectively enforce them. To that end, oversight mechanisms are an essential feature to ensure an effective lobbying regulation. The OECD Recommendation on Principles for Transparency and Integrity in Lobbying encourages countries to design and apply a coherent spectrum of strategies and mechanisms, including properly resourced monitoring and enforcement. Countries use several measures through their oversight institutions to promote compliance with transparency requirements and tend to favour communication and engagement with lobbyists and public officials. Tools include providing a convenient online registration and report-filing system, raising awareness of the regulations, verifying disclosures on lobbying (including delays, accuracy and completeness of the information disclosed, unregistered activities), sending formal notices to lobbyists to advise of potential breaches, requesting modifications of the information declared and applying visible and proportional sanctions (OECD, 2021[1]).
The draft bill proposed that the operation of key aspects of the lobbing regulation and its enforcement should be entrusted to the PEP. This proposal aligns with good practice from OECD members. It is not uncommon to assign the oversight body responsible for integrity standards of elected and appointed officials with responsibilities for lobbying regulation. Yet, the bill could clarify the compliance and enforcement responsibilities in the area of lobbying and ensure they have sufficient resources to carry out these responsibilities. The bill does not contemplate sanctions for lobbyists – only for public officials – and relies solely on reporting by public officials for monitoring purposes. In the event of non-compliance with any of the obligations provided for in the bill, the person holding the highest authority of the public entity or institution where it occurs shall be responsible for initiating the corresponding administrative procedure in accordance with the rules provided for in the General Law on Public Administration for this purpose.
The PEP would be responsible for communicating the collection of the corresponding pecuniary sanction to the public officials or entities who commits any of the offences listed below:
Failure by the institutional hierarchy to establish the public agenda register within the public body, entity or institution.
Failure by lobbied persons to disclose relevant information meetings requested by lobbyists and meetings held.
Failure, by a person designated by public institutions to publish and keep up to date the register of lobbyists.
Failure, for the senior manager responsible for human resources in each public organisation, to indicate in the corresponding register the persons who have a status of “lobbied person” according to the law.
The names of the person or persons sanctioned would be published on the websites of the respective body, entity or institution for a period of one month after the resolution establishing the sanction has become final. This is line with OECD best practices, in countries with similar regulations.
Yet, for the system to be effective, it is necessary to conduct monitoring activities and hold lobbyists accountable. At the OECD level, all countries with a transparency register on lobbying activities have an institution or function responsible for monitoring compliance. Most of these bodies or functions monitor compliance with disclosure obligations and whether the information submitted is accurate, presented in a timely fashion and complete. These functions are usually specified in the relevant lobbying law or regulation. Verification activities include for example verifying compliance with disclosure obligations (i.e. existence of declarations, delays, unregistered lobbyists), as well as verifying the accuracy and completeness of the information declared in the declarations.
Investigative processes and tools include:
Random review of registrations and information disclosed or review of all registrations and information disclosed.
Verification of public complaints and reports of misconducts.
Inspections (off-side and/or on-site controls may be performed).
Inquiries (requests for further information).
Hearings with other stakeholders.
In Canada for example, the Office of the Commissioner of Lobbying can verify the information contained in any return or other document submitted to the Commissioner under the Act. The Commissioner can conduct an investigation if there is reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or the Act. This allows the Commissioner to conduct targeted verifications in sectors considered to be at higher risk or during particular periods. Furthermore, the Commissioner can ask present and former designed public officials to confirm the accuracy and completeness of lobbying disclosures by lobbyists, summon and enforce the attendance of persons before the Commissioner and compel them to give oral or written evidence on oath, as well as compel persons to produce any document or other things that the Commissioner considers relevant for the investigation.
Using data analytics and artificial intelligence can facilitate the verification and analysis of data. In France for example, the High Authority for Transparency in Public Life has set up an automatic verification mechanism using an algorithm based on artificial intelligence, to detect potential flaws upon validation of annual lobbying activity reports (Box 4.5).
Box 4.5. France is using artificial intelligence to enhance the quality of annual lobbying reports
In France, registered lobbyists must submit an annual activity report to the High Authority for Transparency in Public Life (HATVP) within three months of the lobbyist’s financial year. In analysing the activity reports for the period 1 July 2017 to 31 December 2017, the HATVP noted the poor quality of some of the activity reports, due to a lack of understanding of what should be disclosed. Over half of the 6 000 activity reports analysed did not meet any of the expected criteria. Often, the section describing the issues covered by lobbying activities – identified by their purpose and area of intervention – was used to report on general events, activities or dates of specific meetings.
In January 2019, the HATVP set up various mechanisms to enhance the quality of information declared in activity reports. Practical guidance was provided explaining how the section on lobbying activities should be completed, with a pop-up window presenting two good examples. An algorithm based on artificial intelligence was established to detect potential defects on validation of the activity report, and detect incomplete or misleading declarations
Source: (OECD, 2021[1])
In addition, although they may be different in nature, most legislation provides for disciplinary or administrative sanctions for lobbyists. The 2010 OECD Recommendation provides examples of sanctions and notes that visible and proportional sanctions should combine innovative approaches, such as: public reporting of confirmed breaches, with traditional financial or administrative sanctions, such as debarment, and criminal prosecution as appropriate. The practice has also shown that a graduated system of administrative sanctions appears to be preferable as countries that have established lobbying rules and guidelines provide for a range of graduated disciplinary or administrative sanctions, such as warnings or reprimands, fines, debarment and temporary or permanent suspension from the Register and prohibition to exercise lobbying activities.
For this purpose, Costa Rica could consider the example of Canada, whose legal framework spells out the exact consequences of breaching the lobbying framework. The sanctions should have a sufficient deterrent effect. In many OECD countries, indeed, a common challenge identified are sanctions that are likely to be perceived as light by the person concerned. In France for example, the High Authority for Transparency in Public Life concluded that the maximum amount for fines incurred for legal persons (EUR 75 000) is negligible for large companies.
While transparency in political finance is greater than on lobbying, Costa Rica could strengthen transparency and integrity in election processes by specifying contribution and spending limits and include restrictions on online media advertisement
Beyond lobbying public officials, a way to influence policy making is to exert control over the election of representatives who will vote for or against certain policies or who are able to pressure the public administration to take certain decisions. Specific interest groups can help politicians get elected into office and later ask for favours in return. This can be achieved, for instance, by providing financial contributions to candidates or political parties and their campaigns, by providing other kinds of non-monetary advantages, such as access to private media services (for example, opposition research), or by helping politicians gain votes through vote-buying or by organising and mobilising voters.
Similar to lobbying, political finance is a necessary component of the democratic process: it enables the expression of political support and competition in elections. But without the necessary guardrails, some practices can endanger the legitimacy of democratic systems. In addition to the widespread perception of citizens in Costa Rica that those who govern them are doing so to favour of small, powerful groups and not the public interest (Figure 4.1), evidence indicates growing discontent with democracy. According to the 2020 Latinobarómetro, 89.2% of Costa Rican respondents have little or no trust in political parties, while 53.2% have little or no trust in electoral institutions (Figure 4.4). Also in 2020, 73.3% of Costa Ricans are either “not very satisfied” or not “satisfied at all” with democracy; those who declare themselves to be “very satisfied” with democracy declined from 20.9% in 2010 to just 9.3% in 2020 (La Corporación Latinobarómetro, 2021[76]).
Figure 4.4. Trust in political parties and electoral institutions in Costa Rica
Note: This survey has been conducted in 18 countries in the region (Argentina, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, El Salvador, Guatemala, Honduras, México, Nicaragua, Panamá, Paraguay, Peru, Dominican Republican, Uruguay, and Venezuela)
Source: Latinobarómetro (2021), https://www.latinobarometro.org/latOnline.jsp
In light of the provisions of Article 96 of the Constitution, Costa Rica operates a mixed party financing regime, which is permeated by the principles of publicity and transparency; maxims that, as outlined by the Constitutional Chamber of the Supreme Court of Justice and the Supreme Electoral Tribunal, compel political groups, the intervening banking entities and the Electoral Administration itself to facilitate and publicise the financial information of political groups.
Regarding public funding, most OECD member countries have provisions for direct public funding to political parties, for their ordinary activities as well as their election campaigns. Public funds can guarantee political parties the minimum resources needed to develop political and representative activities in democracies, pay ordinary expenses, maintain representative and participation bodies and organise electoral campaigns. The eligibility criteria for receiving these funds can be based on the share of votes in elections (as in France, Australia, Mexico or the USA) or their representation in elected bodies (as in the UK, Austria or Japan). These criteria assure the allocation of public funds to legitimate political contenders and avoid incentivising the creation of parties and candidatures with the sole objective of receiving state resources.
In Costa Rica, direct public funding is provided to political parties both regularly and in relation to campaigns. Article 96 of the Constitution prescribes the Costa Rican State to contribute to the expenses of political parties, under the following provisions:
0.19% of the Gross Domestic Product of the year after the National Elections will be earmarked for this purpose.
The state's contribution will be oriented to defraying electoral expenses, as well as to face ordinary and permanent expenses for political organisation and training.
Those political parties which, having participated in the national electoral process, obtain at least 4% of the valid votes cast at national or provincial level (in the event that their participation has not been in all of the country's constituencies) or obtain a seat in the Legislative Assembly, shall be eligible to receive part of the state contribution.
In order to receive the state contribution to which they have acquired the right, political parties must prove their expenses before the Supreme Electoral Tribunal.
This constitutional scheme – applicable only in the framework of national elections – was replicated in the Electoral Code, extending direct public funding to political groups in municipal elections. This is clarified in Articles 91, 99, 100, 101 and 102 of the Code, which stipulate that:
The State shall contribute 0.03% of the Gross Domestic Product to cover the expenses incurred by political parties entitled to them for their participation in municipal electoral processes.
Political parties shall be entitled to receive part of the state contribution if, having participated in the respective municipal elections, they have obtained at least 4% of the votes validly cast in the respective canton for the election of a mayor or councillors, or elected at least one councillor.
To receive the state contribution, political parties must prove and settle their expenses, in accordance with the provisions of the Electoral Code.
As such, direct public financing in Costa Rica operates as a reimbursement mechanism, by virtue of which political groups incur, with their own funds, in electoral, organisational and training expenses, and, depending on the support received at the polls, may obtain public funding once these expenses have been duly verified by the Electoral Administration. To avoid any bias and governmental advantages concerning public funds, it would be desirable for Costa Rica to also introduce provisions for free or subsidised access to media for political parties and candidates, which are currently absent from regulations.
With regards to private donations, Costa Rica, like most OECD member countries, regulates private funding to ensure a level playing field among parties and candidates (OECD, 2016[84]). Private funding allows for support from society-at-large for a political party or candidate. It is widely recognised as a fundamental right of citizens. Yet if private funding is not adequately regulated, it can be easily exploited by special private interests. The main challenge with respect to private funding is to address the high level of informality that endangers accountability. In the worst case, informality facilitates funds from illicit origins flowing into political parties and campaigns that may lead to organised crime corrupting democratic institutions (Box 4.6).
There are no easy solutions to limit the problem of illicit or undeclared funding, however. More than merely prohibiting informal contributions, inducements have to be provided in a way that private donations are channelled as much as possible through formal means. This can be achieved by adequately framing the rules of the game for private funding, by establishing clear limits on private donations, prohibiting donations in cash and allowing contributions by legal entities up to a certain amount (OECD, 2016[84]).
Box 4.6. Corruption, lobbying and state capture by organised crime: An overview
Although it is a global problem, Latin America is particularly vulnerable to the building of nexus between organised crime and the State. According to Burchner (2014) this happens because in countries in the region there is a strong presence of illicit networks that engage in activities such as “illegal mining, trafficking in exotic species and arms, counterfeiting and smuggling of medicines and the production and sale of illegal drugs”. The latter brings massive amounts of illicit money at the same time that there are rising costs of political activity and the complexity to monitor political spending, which is fertile ground for electoral corruption.
For her part, Rose-Ackerman (2016) argues that there is a symbiotic relationship between corruption and organised crime. These organisations may dominate legal or illegal businesses and have a “corrupting influence on government, especially law enforcement and border control”. Criminal organisations make payments to government representatives and undermine state institutions and, as they mature, they intertwine with civil society and the state, which may lead to manipulating the law in their favour.
In these terms, Rose-Ackerman (2016) identifies at least five possible ways in which criminal organisations engage in corrupt activities The first is extortion, in which if the police are “bought off or unreliable”, the groups demand protection money from businesses to avoid attacking them. The second is by engaging in legitimate business activity and discouraging competition by the threat of violence and by bribing public officials so they do not act. The third uses a similar strategy to sell pirate goods and avoid paying taxes. The fourth is by becoming government contractors and winning tenders using their “criminal muscle”. This may include extortion or funding campaigns. The last, and most extreme is by transforming the regime in which they are so integrated that it is hard to distinguish it from the state (e.g. some parts of the Soviet Union after its collapse or some drug producing countries).
In Costa Rica, banned donations to political parties include anonymous donations, donations from foreign interests, corporate donations, trade unions, corporations with government contracts, corporations with partial government ownership (Electoral Code, Articles 124, 125, 128, 274, 275). Despite these limitations, the regulations do authorise international organisations dedicated to the development of culture, political participation and the defence of democratic values to collaborate with political groups in their training and education processes for their activists and candidates. For these purposes, these organisations must be previously accredited before the Supreme Electoral Tribunal.
However, there are currently no limits on the amount a donor can contribute to a political party during a non-election specific period and during an election. Similarly, there are no limits on in-kind donations to political parties and candidates and there is no ban on candidates taking loans in relation to election campaigns. The absence of any limits can provide incentives to channel funds informally to the political parties.
In Brazil for example, the Supreme Court ruled in 2015 the unconstitutionality of contributions from private legal entities, which previously allowed corporate donations to political parties and candidates. However, data from the 2018 elections showed that 90% of elected deputies received donations from individuals linked to private companies in Brazil (OECD, 2022[69]). In Quebec, the Charbonneau Commission, which was set up following a major corruption scandal in Quebec’s constructor sector, had proposed to "protect the financing of political parties from influence in order to draw a line between legitimate influence relationships in a democratic society and others”. The Commission recommended, among other recommendations, combating the use of nominees in political financing, which has allowed some companies to finance provincial and municipal political parties by asking their employees and relatives to make personal contributions that are reimbursed by the company, by requiring the identification of the political contributor's employer in the political parties' returns. As such, Costa Rica could consider introducing maximum amount to avoid donations being given informally and elude too-low thresholds.
With regards to campaign spending, the Costa Rican legal-electoral system does not contemplate limitations or "ceilings" on campaign expenses incurred by political groups, coalitions or their candidacies, but rather favours transparency. However, in order to ensure a minimum of fairness in electoral fairs and their transparency for citizens, the Electoral Code does prescribe the need for some of the services – which are usually triggers for campaign expenses – to be provided under specific regulations that allow for some degree of scrutiny by the Supreme Electoral Tribunal. This is the case of electoral propaganda services, as well as opinion polls and surveys. In accordance with the provisions contained in article 139 of the Electoral Code, only companies registered by their representatives before the Supreme Electoral Tribunal may provide electoral propaganda services during the electoral period; registration compels these providers to offer their services subject to the reported rates and to guarantee equal conditions and treatment to all political parties participating in the electoral contest.
In the case of political-electoral surveys and opinion polls, these may only be provided by institutes, universities, companies and any public or private entity, which are duly and previously registered with the Supreme Electoral Tribunal. The regulations pertaining to the process of registration of these providers have been developed in the "Regulations on the registration of political-electoral opinion polls and surveys" (TSE Decree 18-2009 of 15 October 2009). The dissemination or publication, in whole or in part, by any means, of opinion polls and surveys relating to electoral processes by unregistered providers is strictly prohibited during the electoral campaign period.
An emerging challenge for all countries is the increase in misinformation and polarisation (V-Dem Institute, 2022[87]). Several stakeholders in Costa Rica interviewed for this report raised the challenges posed by social media, the risk of mis- and dis-information during elections and the need to raise awareness on responsible online practices. In Costa Rica, there are currently no limits on traditional media advertising and no limits on online media advertising in relation to campaigns. Similarly, there are no limits on the amount that third parties can spend on election campaign activities. This means private contributions can be rechannelled through supposedly independent committees and interest groups such as charities, faith groups, trade associations, individuals or private firms that campaign in the run-up to elections, but do not stand as political parties or candidates and are not always required to disclose their donors. Costa Rica could therefore consider introducing provisions on third party spending as well as the use of traditional and social media, such as in Quebec (Box 4.7).
Box 4.7. Regulation of partisan interventions by third parties in Quebec
Within the meaning of the electoral laws, it is prohibited for third-party groups, including any organisation acting neither on behalf of a political party nor on behalf of a candidate (businesses, NPOs, legal persons or partnerships, associations, unions, organisations or groups of persons) to make partisan interventions during an election period. An intervention is considered partisan if it offers visibility to a party or a candidate, for example by promoting or opposing the election of a candidate, and if it generates costs, for example the printing of documents, such as posters or pamphlets, as well as the creation of a website or the purchase of advertisements on social media.
These rules apply in provincial elections, in municipal elections in municipalities with a population of 5 000 or more, and in school elections. For example:
An individual may not print posters promoting a candidate at his or her own expense in the workplace or in any other public place.
A business may not buy an advertisement in a newspaper to denounce the position of a party or candidate on an issue.
A non-profit organisation cannot post a PDF brochure that rates the policies of candidates in its municipality on a scale of 1 to 10.
A union cannot pay for a Facebook ad that promotes or opposes a party or candidate policy.
An association cannot create a website to support a candidate or party, as there is a cost to creating and maintaining that website.
As of June 10, 2016, the Chief Electoral Officer has the power to claim from a political entity a contribution or part of a contribution for which he or she has convincing evidence that it was made contrary to election laws, regardless of when the contribution was made. In the interest of public transparency, the election laws further provide that the Chief Electoral Officer shall make public on his website, 30 days after the receipt of the claim for contributions to a political entity, various information related to those contributions as of June 10, 2016. Whether or not the political entity has made the repayment is also indicated.
Source: Élections Québec, Intervenir dans le débat électoral, https://www.electionsquebec.qc.ca/francais/municipal/financement-et-depenses-electorales/intervenir-debat-electoral.php.
Lastly, similar to lobbying regulations, even with strong regulations on paper, weak monitoring and enforcement can open the door for interest groups or individuals to seek informal ways to exert influence. In addition, if sanctions are too low, political parties may just factor them in as a cost and continue with the practices that are breaching the law, as the benefits from doing so outweigh the costs. Enforcing regulations has two components; on the one hand, breaches must be effectively detected, on the other hand, detected breaches must be effectively sanctioned.
To enable effective enforcement of political finance regulations, transparency is essential. Transparency is a key component in ensuring that citizens and the media can serve as watchdogs to effectively scrutinise political actors. In Costa Rica, contributions and donations are subject to the principles of publicity and transparency. The Supreme Electoral Tribunal made clear in its Resolution 4333-E7-2019 that the documentation that makes up party expenditure statements and its financial statement reports are also to be made public.
In concrete terms, the Electoral Code requires all political groups registered with the Electoral Register to periodically submit a report on their financial statements, as well as a report on their donations and contributions. In accordance with the provisions of Article 135 of the Electoral Code, political groups are obliged to submit an audited statement of their finances every October, which must include a list of their contributors and donors, with an express indication of their names, identity cards and the amount contributed by each one during the respective year. The idea behind requiring the identity of private donors to be unveiled is to foster social accountability through transparency: if citizens know about the links between private interests and politicians, they are able to detect situations in which politicians are in a conflict-of-interest situation and are acting in the interests of their electoral campaign contributors.
In addition to this annual report, political groups registered with the Electoral Register, in accordance with Articles 88, 132 and 133 of the Electoral Code, are also obliged to submit a quarterly report on their financial statements (i.e. certified copies of the auxiliary of the bank account containing the deposit number, the bank statement and the accounting statements for the corresponding period, issued by an authorised public accountant) and a report on contributions, donations and contributions. As required by electoral regulations, during the campaign period this documentation must be submitted by all registered political parties on a monthly basis.
In accordance with these norms and principles, as well as the mandate contained in Article 132 of the Electoral Code, all accounting information of political parties is accessible to the public through the Supreme Electoral Tribunal and much of it is available for consultation on the institutional website (https://tse.go.cr/partidos_politicos.htm). As such, this high level of transparency of transparency places Costa Rica among best practices in OECD countries, according to the Varieties of Democracy Index (Figure 4.5).
Figure 4.5. Disclosure of campaign donations, Costa Rica, OECD and Latin American and Caribbean average
Note: the index “disclosure of campaign donations” measures to what extent there are disclosure requirements for donations to national election campaigns. The higher the value on the indicator, the more comprehensive, controlled and enforced are the disclosure requirements of donations to electoral campaigns.
Source: Varieties of Democracy (V-DEM) Index, https://www.v-dem.net/.
The Supreme Electoral Tribunal receives and examines reports from political parties, can carry out investigations and impose sanctions. In OECD countries, sanctions range from financial to criminal and political sanctions. Parties may have to pay fines (74% of member countries), have their illegal donations or funds confiscated (44%), or lose public subsidies (47%) in cases of violation. More severe sanctions include criminal charges such as imprisonment (71% of member countries), loss of elected office (18%), forfeiting the right to run for election, or even deregistration (21%) or suspension (3%) from a political party (OECD, 2016[84]). The Costa Rican Electoral Code punishes, with pecuniary penalties or imprisonment, violations of the party financing regime by political parties, their suppliers, their donors and even the banks involved. The Code classifies as misdemeanours – punishable by monetary penalties – the violations that the Electoral Administration verifies of sections 88, 122, 123, 127, 128 and 129 of this body of law. The prosecution of electoral offences is reserved, by imperative of Article 285 of the Electoral Code, to the bodies of the criminal jurisdiction.
In turn, Costa Rica could take a clear stance against vote-buying by explicitly prohibiting vote buying and introducing sanctions for such practices. Vote buying refers to the distribution of money or gifts to individuals, families or small groups in order to influence their vote choice or turnout. According to the Varieties of Democracy Index, Costa Rica scores 1.5/4 on the index of vote buying, which indicates that non-systematic but rather common vote-buying efforts can be observed (Figure 4.6). Therefore, Costa Rica could stipulate vote buying as an illicit practice prohibited by law. In addition, Costa Rica should clearly define and prohibit other clientelistic practices, specify sanctions for those who provide benefits to citizens with the aim to influence their votes and regulate the provision of material goods during campaigns.
Figure 4.6. Prevalence of vote buying in Costa Rica
Note: Vote buying is measured as the prevalence of vote or turnout buying during each election year. The level of vote or turnout buying is an interval measure ranging from 0 (systemic vote or turnout buying) to 4 (no evidence of either occurring)
Source: Varieties of Democracy (V-DEM) Index, https://www.v-dem.net/
Lastly, in the event that a lobbying regulation is adopted, and to enable better control of contributions as well as to mitigate the risk of money from illegal activities entering into political finance, Costa Rica could strengthen the co-ordination and the sharing of information on lobbying and political finance. In the United States for example, the Supreme Audit Institution (SAI), the Government Accountability Office (GAO), relies on the accessibility of databases as well as on the informal exchange of information between entities to cross-check lobbying disclosure requirements and political contributions.
Box 4.8. Cross-checking lobbying disclosures and political contributions in the United States
In the United States, the Lobbying Disclosure Act requires disclosures on both lobbying activity and political contributions. To determine whether lobbyists reported their federal political contributions, as required by the Act, the Government Accountability Office (GAO) analysed stratified random samples of year-end 2017 and mid-year 2018 semi-annual political contributions reports. The samples contained 80 reports listing contributions and 80 that listed no contributions. Contributions listed on lobbyists’ and lobbying firms’ political contributions reports were compared against political contributions reported in the Federal Election Commission database, to identify whether the reports omitted any contributions.
The GAO estimated that in 2018, lobbyists failed to disclose one or more reportable contributions on 33 percent of reports. Eight political contributions reports were amended in response to its review.
Source: (OECD, 2021[1]).
Costa Rica could enable interoperability of the newly implemented beneficial ownership register with future lobbying registers to strengthen transparency and scrutiny on who is ultimately benefiting from a lobbying activity
In addition to strengthening transparency as to who is influencing the policy-making process, transparency and an effective exchange of information can be introduced on who is the beneficial owner of a legal entity, or who is ultimately benefiting from the lobbying activity. Transparency and scrutiny would necessitate public disclosure of the beneficial owner of companies influencing the policy-making process. The term “beneficial owner” refers to the natural person(s) who ultimately owns or controls a customer and/or the natural person on whose behalf a transaction is being conducted. It also includes those persons who exercise ultimate control over a legal person or arrangement.
Disclosure of beneficial ownership has been a contentious issue in Costa Rica. Major shareholders and beneficial owners have sought to guard their privacy rights and attempts to draft laws to promote greater transparency have been contested in the Legislative Assembly (OECD, 2020[88]).
Previous OECD reviews of corporate governance identified difficulties in identifying conflict-of-interest situations and who may be involved in a related party transaction based on publicly available information. The fundamental impediments to transparency were the Data Protection Law and privacy rights embedded in the Political Constitution restricting disclosure of beneficial ownership.
Since then, Costa Rica has implemented stricter beneficial ownership requirements and strengthened its compliance with the international standards on transparency and exchange of information. In particular, Costa Rica has recently enacted the Law to Enhance the Combat against Tax Fraud (Ley para Mejorar la Lucha Contra el Fraude Fiscal). This law puts an obligation on companies to disclose their capital and individuals with majority ownership in a new registry of shareholders managed by the Central Bank (Registro de transparencia y beneficiarios finales). In the first two years of implementation, tax authorities encountered reticence to disclose information on beneficial owners and extended several times the term to comply with the obligation, which made it difficult to gain a full appreciation of capital structures, control arrangements and related party transactions. Ensuring full implementation of the law and improving the timeliness of providing requested information to partners are the next priorities.
The implementation of any future lobbying registers could involve further interoperability of the various databases, including the newly implemented register of financial beneficiaries. Cross-checking available information makes it possible to assess the consistency between data provided from various sources and will strengthen transparency and scrutiny on who is ultimately benefiting from a lobbying activity.
Establishing transparency and integrity frameworks for all persons and bodies providing advice to government
Costa Rica could adopt binding rules for the selection process of advisory or expert groups
Governments across the OECD make wide use of advisory and expert groups to inform the design and implementation of public policy. During the COVID-19 crisis, for example, many governments have established ad hoc institutional arrangements to provide scientific advice and technical expertise to guide their immediate responses and recovery plans (OECD, 2021[1]). An advisory or expert group refers to any committee, board, commission, council, conference, panel, task force or similar group, or any subcommittee or other subgroup thereof, that provides advice, expertise or recommendations to governments. Such groups are composed of public and private sector members and/or representatives from civil society and may be set up by the executive, legislative or judicial branches of government.
Chairpersons and members of advisory or expert groups (including government boards and committees) can help strengthen evidence-based decision making. However, without sufficient transparency and safeguards against conflict of interest, they may risk undermining the legitimacy of their advice by allowing individual representatives participating in these groups to favour private interests, whether done unconsciously or not (e.g. by serving biased evidence to the decision makers on behalf of companies or industries or by allowing corporate executives or lobbyists advise governments as members of an advisory group). Still, transparency over the composition and functioning of advisory and expert groups remains a challenge across OECD countries.
In Costa Rica, the National Assembly and several ministries have set up such advisory groups. For example, Joint Special Committees made up of deputies and external advisors are appointed by the legislative Assembly to study a specific matter or to carry out a mission. Similarly, the Health Ministry has put in place boards and committees that provide advice and guidance on specific health policies. Some of these groups were created through specific regulations, such as the National Council for Comprehensive HIV-AIDS Care (Consejo Nacional de Atención Integral del VIH-SIDA), which was created in 1999 through the Regulations of the General Law on HIV-AIDS, AL-1380-99, No. 27894-S. In addition, Article 91 of the Rules of Procedure of the Legislative Assembly specify that in addition to Members of the Legislative Assembly, other persons who are not Members of Parliament may, where necessary, sit on Joint Special committees. In their capacity as advisers, they shall have the right to speak but not to vote.
Yet, there is no general rule on the establishment and functioning of these government groups and committees, meaning that there is no general provision indicating their functioning and optimal composition (e.g. who can be appointed as member of a government board and committee, appropriate qualification and conditions for appointment).
To help ensure equity and diversity in the advisory groups, Costa Rica could introduce general rules for the selection process of government boards and committees to ensure a balanced representation of interests in terms of private sector and civil society representatives (when relevant), as well as expertise from a variety of backgrounds. The rules can also guarantee that the selection process is inclusive, so that every potential expert has a real chance to participate, and transparent, so that the public can effectively scrutinise the selection of members of advisory groups.
Moreover, considering that members of advisory groups come from different backgrounds and may have different interests, it is fundamental to provide a common framework that allows all members to carry out their duties in the general interest. It is therefore necessary to adopt specific rules of procedures for such groups that include standards of conduct and, most importantly, procedures for preventing and managing conflicts of interest that should be adhered to by all those participating in providing advice to government. Such measures would provide reasonable safeguards against special interest groups capturing or imparting biased advice to government.
For example, the Ministry of Local Government and Modernisation in Norway published guidelines on the use of independent advisory committees, which specify that the composition of such groups should reflect different interests, experiences and perspective. While the guidelines are not legally binding, they provide an example for Costa Rica on the selection process and the management of conflicts of interests within these groups (Box 4.9).
Box 4.9. Guidelines on the use of independent advisory committees in Norway
In 2019, the Norwegian Ministry of Local Government and Modernisation adopted guidelines entitled “Committee Work in the State. A guide for leaders, members and secretaries in government study committees”. Regarding the composition of these committees, the document specifies that there needs to be a balanced composition of interests:
“If the committee is to help clarify issues that are subject to academic disagreement, it is important that the composition is not skewed from an academic standpoint”.
“If the goal of the committee, in addition to acquiring knowledge, is to agree on common goals and values, it is important that the composition reflects different interests, experiences and standpoints”.
Regarding conflicts of interest, the document warns that the work method and the effectiveness of the committee can be weakened by members who cannot comment on an independent basis and constantly need to clarify the assessments with the business or organisation to which they belong. As a result, the guidelines specifies that members should “explain any commitments that may involve conflicts of interests”.
Costa Rica could strengthen transparency for government advisory or expert groups, including on what the outcomes are, how inputs have been dealt with and how they are incorporated in the resulting decision
Along with the composition of advisory or expert groups, a key challenge within OECD countries is the lack of transparency on the funding and functioning of these bodies, as well as the opacity of their outcomes. The draft lobbying bill discussed in Costa Rica proposed to exclude consultancy services provided to public bodies and members of Parliament by professionals and researchers from non-profit associations, corporations, foundations, universities, research centres and other similar entities. This included any verbal declaration or written information delivered by a professional linked to these entities before a parliamentary body, as well as any invitations issued by public officials to these professionals to participate in meetings of a technical nature directly related to matters within their competence (Article 6, paragraphs 5, 6 and 7 of the draft lobbying bill).
This, however, can be considered as a significant loophole and should be carefully considered in any upcoming discussions of a lobbying bill. The draft provisions could be revised and considered applicable provided that advisory groups and committees abide by specific transparency rules that allow for public scrutiny.
These rules could include mandatory transparency on the structure, mandate, composition and criteria for selection for all Costa Rican advisory groups and committees. In addition, and provided that confidential information is protected and without delaying the work of these groups, the agendas, records of decisions and evidence gathered could also be published to enhance transparency and encourage better public scrutiny. The Transparency Code for working groups in Ireland may serve as an example for Costa Rica (Box 4.10). Without the existence of such rules, it is recommended that providing advice in any form to the government – including trough advisory and expert groups – is not excluded from potential lobbying regulations and be disclosed in lobbying registers.
Box 4.10. Transparency Code for working groups in Ireland
In Ireland, any working group set up by a minister or public service body that includes at least one designated public official and at least one person from outside the public service, and which reviews, assesses or analyses any issue of public policy with a view to reporting on it to the Minister of the Government or the public service body, must comply with a Transparency Code.
The following information must be published on the website of the public body on its establishment:
Names of chairperson and members, with details of their employing organisation (if they are representing a group of stakeholders, this should be stated).
Whether any members who are not public servants were formerly public officials.
Terms of reference of the group.
Expected timeframe for the group to conclude its work.
Reporting arrangements.
In addition, the agenda and minutes of each meeting must be published and updated at least every four months. The chairperson must include with the final or annual report of the group a statement confirming its compliance with the Transparency Code. If the requirements of the Code are not adhered to, interactions within the group are considered to be a lobbying activity under the Regulation of Lobbying Act 2015.
Source: Department of Public Expenditure and Reform, Transparency Code prepared in accordance with Section 5 (7) of the Regulation of Lobbying Act 2015, https://www.lobbying.ie/media/5986/2015-08-06-transparency-code-eng.pdf
Establishing a public integrity framework adapted to the risks of lobbying and influence activities for public officials
To foster integrity when interacting with lobbyists, Costa Rica could develop specific principles, rules, standards and procedures for public officials
In addition to enhancing the transparency of the policy-making process, the strength and effectiveness of the process also rests on the integrity of both public officials and those who try to influence them (OECD, 2021[1]). Policy-making decisions remain the prerogative of policy makers, who are the guardians of the public interest and balance all considerations for adopting a policy in that light. The OECD Recommendation on Principles for Transparency and Integrity in Lobbying encourages governments to foster a culture of integrity in public organisations and decision making by providing clear rules, principles and guidelines of conduct for public officials (OECD, 2010[10]). Therefore, it is important to examine this wider ecosystem of integrity standards in the public sector and understand how they can curb undue influence.
The 2021 OECD Report on Lobbying found that although all countries have established legislation, policies and guidelines on public integrity, they have usually not been tailored to the specific risks of lobbying and other influence practices. In Costa Rica, there are different standards as well as general guidelines on public integrity for public officials (Chapter 1). The Law against Corruption and Illicit Enrichment in the Public Administration (Law 8422, LCCEI) and its regulations set the general rules related to the expected standards of conduct in the public sector. In Article 3, the law establishes probity as the primary obligation of a public official and that his actions should always be aimed at fulfilling the general interest. The 2004 Guideline D-2-2004 issued by the CGR lists the ethical principles governing the exercise of the public service. The Guideline applies to all public servants, including the decentralised public sector (institutional and territorial) and describes the obligation to ensure objectivity and impartiality, political neutrality and a set of duties and prohibitions related to the management of conflicts of interest
Specific provisions aiming at strengthening the resilience of decision-making processes to undue influence can also be found in various codes of ethics and manuals, such as the Civil Service Ethics Manual (Manual de Ética de la Función Pública). As seen in Chapter 3, these standards contain specific provisions on incompatibilities, managing conflicts of interest and the acceptance of gifts and benefits. Additionally, Article 3 of the LCCEI states that public employees have a duty of probity.
However, these laws and their related directives or codes of ethics do not include specific provisions addressing risks of lobbying and other influence practices, including on the proper use of confidential information, pre- and post-employment restrictions on lobbying and handling third party/lobbyists contacts.
To foster a culture of integrity in public organisations and decision making, the OECD Recommendation indicates that countries should provide standards to give public officials clear directions on how they are permitted to engage with lobbyists. Integrity standards and ethical obligations on lobbying may be included in a specific lobbying law or lobbying code of conduct or included in the general standards for public officials, such as laws or codes of conduct for public officials.
Depending on the type of document in which they are included, standards for public officials and their interactions with lobbyists may include:
The duty to treat lobbyists equally by granting them fair and equitable access.
The obligation to refuse meetings with unregistered lobbyists, or at a minimum to check that the lobbyist is registered or intends to register within the specified deadlines (if a mandatory lobbying register is in place).
The obligation to refuse accepting gifts (fully or beyond a certain value).
The obligation to report violations of lobbying-related rules (including rules on gifts) to competent authorities.
The duty to publish information on their meetings with lobbyists (through a lobbying registry or open agendas).
The duty to report gifts and benefits received, amongst others (addressed in the following section).
Given the current absence of these standards in the public sector in Costa Rica, the government could consider including standards and guidelines for public officials on their interactions with lobbyists and representatives of interest groups in the upcoming law on lobbying and/or in existing regulations, codes of ethics and manuals. The National Commission for Ethics and Values (Comisión Nacional de Ética y Valores, CNEV) could include the challenges related to lobbying more explicitly in the ethics management model, for example (Chapter 1). The proposed lobbying bill included some obligations for public officials and institutions, including the obligation for all lobbied public officials to maintain a balance in their treatment of persons, organisations and entities requesting hearings on the same subject matter” (Article 13 – De la igualdad de trato”). The bill also made it mandatory to denounce any violations by lobbyists. To further develop these provisions, the following standards implemented by other countries could serve as examples for Costa Rica (Table 4.3).
Table 4.3. Examples of specific standards for public officials on their interactions with lobbyists
Source: (OECD, 2021[1]).
Additionally, general integrity standards for public officials can be adapted to sectors or functions in the executive and legislative branches and to higher and more politically exposed positions (OECD, 2021[1]). For instance, elected or appointed political officials such as members of parliament, ministers, and political advisors are central in the public decision-making process. In this sense, setting higher expectations to serve the public interest for politically exposed positions may be necessary to effectively address risks of lobbying and other influence activities.
Costa Rica could therefore include specific provisions on lobbying in existing integrity standards for politically exposed persons, for example the Code of Conduct of the Legislative Assembly. In Malta, aware of the weaknesses of the current codes of ethics of Members of the House of Representatives and ministers and parliamentary secretaries, the Commissioner for Standards in Public Life carried out a revision of such codes of ethics and developed additional guidelines, as a separate exercise in terms of the Standards in Public Life Act. The revised versions of the codes of ethics introduce several provisions on the interactions with third parties including on the acceptance and registration of gifts, the misuse of public resources and confidential information, and management of conflicts of interest. The specific provisions are seen in Box 4.11.
Box 4.11. Provisions on lobbying included in the revision of the codes of ethics of Malta and additional guidelines
Revision of the Code of Ethics of Members of the House of Representatives and additional guidelines
To establish a Register for Gifts, Benefits and Hospitality in which MPs should duly record not only those received but also those bestowed by them (or their family members) to third parties, if such gifts are related to their parliamentary or political activities and have a value of over EUR 250.
To establish a Register of Interests for the registration of financial and nonfinancial interests in compliance with the accompanying guidelines; spouses and/or partners as well as other members of MPs’ families shall be subject to registration of certain interests.
MPs who have any interest which is in conflict with the proper exercise of their duties in any proceedings of the House or its committees shall declare that interest in the House at the first opportunity before a vote is taken.
Revision of the Code of Ethics of Ministers and Parliamentary Secretaries and additional guidelines
To establish a Transparency Register in which ministers are required to record all relevant communications with lobbyists within seven days.
To establish a Register for Gifts, Benefits and Hospitality in which ministers should duly record not only those received but also those bestowed by them (or their family members) to third parties, if such gifts exceed the threshold of EUR 250.
To establish a Register of Interests for the registration of financial and nonfinancial interests in compliance with the accompanying guidelines.
Ministers are required to avoid associating with individuals who could place them under any obligation or inappropriate influence.
Ministers are required to avoid putting themselves in situations in their private lives that may expose them to any undue pressure or influence, and if they find themselves in such a situation they are required to resolve it immediately in a truthful and open manner.
If Ministers hold meetings with persons who have an interest in obtaining permits, authorisations, concessions and other benefits from the state, they should do so in an official setting in the presence of officials, unless this is impractical on account of justifiable circumstances.
Ministers shall not conduct official business through unofficial email accounts
Source: OECD (forthcoming), Improving transparency and integrity in lobbying in Malta: Recommendations for introducing a lobbying framework.
To strengthen post- and pre- public employment rules, Costa Rica could impose additional restrictions on involvement in lobbying for certain public officials for a specified period of time after they cease to hold office
As emphasised in Chapter 3, some of the main risks and concerns related to influence is the revolving door phenomenon. Several OECD countries have established provisions to temporarily restrict former public officials from lobbying their past organisations and imposing similar temporary cooling-off period restrictions on appointing or hiring a lobbyist to fill a regulatory or an advisory post in government (Box 4.12). In addition to the recommendations already made in Chapter 3 on general cooling-off periods, Costa Rica could therefore introduce specific cooling-off periods on lobbying activities.
Box 4.12. Examples of provisions on lobbying cooling-off periods for elected officials and appointed officials in at-risk positions in OECD counties
In Australia, Ministers and Parliamentary Secretaries cannot, for a period of 18 months after they cease to hold office, engage in lobbying activities relating to any matter that they had official dealings within their last 18 months in office. Additionally, persons employed in the Offices of Ministers or Parliamentary Secretaries at Adviser level and above, members of the Australian Defence Force at Colonel level or above (or equivalent), and Agency Heads or persons employed in the Senior Executive Service (or equivalent), shall not, for a period of 12 months after they cease their employment, engage in lobbying activities relating to any matter that they had official dealings with in their last 12 months of employment.
In Canada, during the five-year period after they cease to hold office, former designated public office holders are prohibited from engaging in any consultant lobbying activities. Similarly, former designated public office holders who are employed by an organisation are also prohibited from engaging in any in-house lobbying activities for this same five-year period.
In the Netherlands, a circular adopted in October 2020 – “Lobbying ban on former ministries” – prohibits ministers and any officials employed in ministries to take up employment as lobbyists, mediators or intermediaries in business contacts with a ministry representing a policy area for which they previously had public responsibilities. The length of the lobbying ban is two years. The objective of the ban is to prevent retiring or resigning ministers from using their position, and the knowledge and network they acquired in public office, to benefit an organisation employing them after their resignation. The secretary general of the relevant ministry has the option of granting a reasoned request to former ministers who request an exception to the lobbying ban.
Source: (OECD, 2021[1]).
Costa Rica could develop guidance to help public officials assess the reliability of information used in policy- and decision-making
In their interactions with public officials, lobbyists share their expertise, legitimate needs and evidence about policy problems and how to address them (OECD, 2021[1]). Although this exchange provides public officials with valuable information on which to base their decisions, lobbyists may sometimes abuse this legitimate process to provide unreliable or inaccurate information to advance their own private interest. Additionally, lobbyists may also indirectly influence policy- and decision-making by supporting and promoting studies that challenge scientific arguments unfavourable to their interests, or highlighting the results of studies financed by their own research centres, institutes and other organisations that are favourable to their interests.
To that end, Costa Rica could consider providing guidelines for public officials to help them become aware of the possibility of being indirectly influenced through biased or false evidence, and the need to assess the credibility of sources provided by third parties and used in policy- and decision-making. Some governments have started to provide concrete standards for public officials in assessing evidence provided by third parties, including the Netherlands (Box 4.13).
Box 4.13. The Dutch Code of Conduct reminds public officials to consider indirect influence
The Dutch Code of Conduct on Integrity in Central Government reminds public officials to consider indirect ways they may be influenced by special interest groups, for example, by financing research.
“You may have to deal with lobbyists in your work. These are advocates who try to influence decision making to their advantage. That is allowed. But are you always aware of that? And how do you deal with it? Make sure you can do your work transparently and independently. Be aware of the interests of lobbyists and of the different possibilities of influence. This can be done very directly (for example by a visit or invitation), but also more indirectly (for example by co-financing research that influences policy). Consult with your colleagues or supervisor where these situations may be present in your work. Sometimes it is in the public interest to avoid contacts with lobbyists.”
Source: (OECD, 2021[1]).
Costa Rica could develop and provide additional guidance and increase capacity building and awareness raising activities on lobbying and other influence activities
Having clear principles, rules, standards and procedures for public officials on their interactions with lobbyists is key, but it is not sufficient to mitigate the integrity risks of lobbying and other influence activities. Raising awareness of the expected rules and standards as well as enhancing skills and understanding of how to apply them are also essential elements to foster integrity in lobbying. Likewise, well-designed guidance, advice and counselling serve to provide clarity and practical examples, facilitate compliance and help avoid the risk of misinterpreting rules and standards (OECD, 2021[1]).
Most countries with lobbying transparency frameworks do provide guidance, build capacity and raise awareness of integrity standards and values for public officials (OECD, 2021[1]). This may include induction or on-the-job training, disseminating the code of conduct and issuing posters, computer screen-savers, employee boards, banners, bookmarks and printed calendars (OECD, 2021[1]). Training offered by public authorities commonly include guidelines on values and standards, expected behaviour, and concrete examples of good practices, ethical dilemmas and descriptions of potentially problematic situations. Countries where public authorities offer training on interactions with lobbyists include Canada, France, Hungary, Ireland, Lithuania, Slovenia and the United Kingdom.
To that end, any subsequent law on lobbying in Costa Rica could specify that the oversight body has the mandate to develop guidance, capacity building and awareness raising activities on lobbying and other influence activities to help build the knowledge, skills and capacity to manage the integrity issues arising. Training activities could include examples of good practices and ethical dilemmas, with the aim of allowing public officials, through interactive and situational methods, to reflect on key dilemmas and on the consequences of breaching integrity standards.
Costa Rica could also consider strengthening its advisory role on lobbying by providing advice on implementation of the lobbying regulation and to help public officials understand the rules and ethical principles of the civil service in combating undue influence. For instance, in France, the High Authority for Transparency in Public Life provides individual confidential advice upon request to the highest-ranking elected and non-elected public officials falling within its scope and provides guidance and support to their institution when one of these public officials requests it, within 30 days of receiving the request (OECD, 2021[1]).
Establishing a public integrity framework adapted to the risks of lobbying and influence activities for lobbyists
Costa Rica could consider developing and adopting standards of conduct which would apply to all lobbyists
The strength and effectiveness of the policy-making process depends not only on the integrity of public officials but also on the integrity of those who try to influence them. Indeed, companies and lobbyists are critical actors in the policy-making process, providing government with insights, evidence and data to help them make informed decisions. However, they can also at times undermine the policy-making process by abusing legitimate means of influence, such as lobbying, political financing and other activities (OECD, 2021[1]). To ensure integrity in the policy-making process, lobbyists (whether in-house or as part of a lobbying association) require clear standards and guidelines that clarify the expected rules and behaviour for engaging with public officials.
The OECD Recommendation on Principles for Transparency and Integrity in Lobbying states that lobbyists should comply with standards of professionalism and transparency in their relations with public officials (OECD, 2010[10]). Costa Rica could increase the accountability and responsibility of the private sector and lobbyists for their activities in two ways. First, upcoming draft laws could include explicit obligations for lobbyists clarifying their essential role in providing information which public entities will be then obliged to register and eventually publish on-line.
This was already the case in the draft law regulating lobbying activities proposed in 2019, which foresaw the following duties for lobbyists:
The obligation for lobbyists to provide in a timely and truthful manner to the respective authorities and officials the information provided by the law when requesting a hearing or a meeting. Omitting to disclose such information or providing inaccurate information can lead to sanctions (Article 9 and Article 17).
The obligation to inform the request public official or institutions the names of the natural and legal person they represent, if applicable (Article 9).
The obligation for lobbyists to inform the public officials of their status to during their meetings with them (Article 9).
The possibility to file a complaint to lobbied institutions or persons in the event that the official designated by them to register the information by lobbyists in the Public Agenda Register is not registered accordingly (Article 17).
Such obligations do not necessarily require the creation of an additional register, where lobbyists would have to disclose information. Rather, they enable to share the responsibility of having accurate and updated information in the Public Agenda Register. In this sense, the draft law followed the example of Chile, whose lobbying law provides for a number of disclosure obligations for lobbyists as well as for sanctions in case they are not complied with.
Second, codes of conduct are the chief support of integrity in the lobbying process and can further detail obligations set out in the law. Box 4.14 provides examples of codes of conduct for lobbyists in other jurisdictions.
Box 4.14. Codes of conduct for lobbyist
City of Ottawa, Canada
The City of Ottawa introduced a 2012 Lobbyist Code of Conduct and a Lobbyist Registry. According to the Code of Conduct, lobbyists are expected to comply with standards of behaviour and conduct in the following matters: 1. Honesty, 2. Openness, 3. Disclosure and identity purpose, 4. Information and confidentiality, 5. Competing interests and 6. Improper influence. For instance, under the topic 3. Disclosure and identity purpose, lobbyists are expected to “register the subject matter of all communication with public office holders that constitutes lobbying under the Lobbyist Registry”
Ireland
The Standards in Public Office Commission issued a Code of Conduct for persons carrying out lobbying activities, which came into effect on 1 January 2019. The Code sets out several principles by which persons carrying on lobbying activities should govern themselves in the course of carrying out lobbying activities, namely: 1. Demonstrating respect for public bodies, 2. Acting with honesty and integrity, 3. Ensuring accuracy of information, 4. Disclosure of identity and purpose of lobbying activities to public bodies and elected or appointed officials, 5. Preserving confidentiality, 6. Avoiding improper influence, 7. Observing the provisions of the Regulation of Lobbying Act, and 8. Having regard for the Code of Conduct).
Source: OECD (forthcoming), Improving transparency and integrity in lobbying in Malta: Recommendations for introducing a lobbying framework.
Lastly, countries with a specific framework on lobbying and rules on the acceptance of gifts, benefits and other advantages may impose specific conditions and/or restrictions on such activities by lobbyists. This is the case, for example, in the United States. The ethical rules of the U.S House of Representatives impose stricter rules on gifts and travel offered by a registered lobbyist (Box 4.15).
Box 4.15. . US House of Representatives’ rules prohibiting gifts and travel from lobbyists
The US House of Representatives Ethics Manual explicitly prohibits gifts offered by lobbyists. A Member, officer or employee of the House of Representatives may not accept any gift from a registered lobbyist, agent or a foreign principal, or a private entity that retains or employs such individuals.
Other gifts that are expressly prohibited include:
Anything provided by a registered lobbyist or an agent of a foreign principal to an entity that is maintained or controlled by a Member, officer or employee of the House.
Charitable contributions made by a registered lobbyist or an agent of a foreign principal on the basis of a designation, recommendation or other specification of a Member, officer or employee of the House.
A contribution or other payment by a registered lobbyist or an agent of a foreign principal to a legal expense fund established for the benefit of a Member, officer or employee.
A financial contribution or expenditure made by a registered lobbyist or an agent of a foreign principal relating to a conference, retreat or similar event, sponsored by or affiliated with an official congressional organisation, for or on behalf of Members, officers or employees of the House.
Members, officers and employees may accept virtually any gift below USD 50 from other sources, with a limitation of less than USD 100 in gifts from any single source in a calendar year. Invitations to travel, both in their official and personal capacities, are considered as gifts to Members, officers and employees, and are thus subject to the same prohibitions as other gifts.
Source: (OECD, 2021[1]).
Costa Rica could provide incentives for responsible engagement from the private sector
Additionally, considering that lobbyists and companies are under increasing scrutiny, they need a clear integrity framework for engaging with the policy-making process in a way that does not raise concerns over integrity and inclusiveness (OECD, 2021[1]). Indeed, large institutional investors are becoming increasingly aware of the financial and non-financial risk of malpractice and are facing more pressure. As a result, risk and crisis management has become more dominant and the demand for transparency has increased.
Costa Rica could promote responsible engagement and self-regulation from the private sector. To do so, Costa Rica could encourage companies and organisations to formalise responsible engagement standards and internal processes that address the full scope of corporate and trade association conduct in the policy-making process to reassure the public and institutional investors that lobbying is done professionally and with high standards. Standards could cover issues such as ensuring accuracy and plurality of views, promoting transparency in the funding of research organisations and think tanks, managing and preventing conflict of interest in the research process and ensuring that staff assigned to conduct lobbying activities have a good understanding of transparent, responsible and thus professional interaction. These standards could also specify voluntary disclosures that may involve social responsibility considerations regarding a company's involvement in public policy-making and lobbying (Box 4.16).
Box 4.16. Responsible corporate engagement standards and due diligence requirements on lobbying and trade association alignment for
Explaining how lobbying and influence activities align with public commitments to support goals on climate change and other shared sustainability challenges.
Establishing adequate due diligence measures to ensure that the positions and practices of those who lobby on a company’s behalf (industry and lobby associations) do not run afoul of the organisation’s values and commitments. This may include:
Processes to regularly review membership of trade associations and third-party organisations and identify misalignment.
Transparency on memberships of trade associations or other third-party organisations that may engage in political activities (charities, foundations, PACs, fundraising organisations).
The level of funding and engagement in these organisations (e.g. representation on the board, funding beyond membership, participation in specific committees or working groups).
Actions taken when the positions and lobbying practices of these organisations do not align with the company’s own lobbying practices and commitments.
Mainstreaming these standards across all business lines – including government affairs and sustainability functions to create a coherent position across the company’s government affairs activities and CSR/ESG branches. These policies should ensure that CSR/ESG teams have sufficient access to information on a company’s lobbying activities and trade association membership.
Adopting transparency and integrity measures on the hiring of former public officials.
Specifying the role of board members, top management and senior executives in regularly monitoring the implementation of the standards.
Ensuring that employees have the knowledge and capacity to implement the standards in their daily work.
Source: (OECD, 2022[15]).
Ensuring that government decision-making processes are inclusive through effective stakeholder engagement
Costa Rica could formalise tools for stakeholder engagement and participation and promote awareness among citizens of their existence
Ensuring the access of all stakeholders to inform and shape public policies is key to achieving better policies. It implies that policy makers will be better informed to legislate and that most interests will be included and represented in policy outcomes. There are several ways to allow for stakeholders’ participation (Box 4.17).
Box 4.17. Types of stakeholder participation
Stakeholder participation, as defined by the OECD Recommendation of the Council on Open Government, refers to all the ways in which stakeholders can be involved in the policy cycle as well as in service design and delivery, including information, consultation and engagement.
Information: an initial level of participation characterised by a one-way relationship in which the government produces and delivers information to stakeholders. It covers both on-demand provision of information and “proactive” measures by the government to disseminate information.
Consultation: a more advanced level of participation that entails a two-way relationship in which stakeholders provide feedback to the government and vice-versa. It is based on the prior definition of the issue for which views are being sought and requires the provision of relevant information, in addition to feedback on the outcomes of the process.
Engagement: when stakeholders are given the opportunity and the necessary resources (e.g. information, data and digital tools) to collaborate during all phases of the policy-cycle and in the service design and delivery.
Source: (OECD, 2017[19]).
In Costa Rica, citizen participation is enshrined in Article 9 of the Constitution, which was amended by Law 8364 from 2003 and now states that “the Government of the Republic is popular, representative, participatory, alternative and responsible (…)”. In addition, Costa Rica has several laws that touch on the participation of citizens and key stakeholders in the policy cycle. For example, Law 5338 on Foundations (Ley de Fundaciones) regulates how civil society organisations should function. Formal citizen participation mechanisms are also protected by law (Law 8491 on Popular Initiative, Ley de Iniciativa Popular, and Law 8492 Regulating the Referendum, Ley de Regulación del Referéndum). Law 9097 on Regulating the Right of Petition (Ley de Regulación del Derecho de Petición) sets forth that any citizen may exercise the right of petition, without prejudice or penalty, before any public institution, administration or authority, on any subject, matter or information of public concern.
Costa Rica has introduced several changes to expand stakeholder engagement in the development of regulations (Figure 4.7), such as forward planning and a more intensive use of the Preliminary Control System (Sistema de Control Previo, SICOPRE). SICOPRE is a centralised webpage that makes regulatory impact assessments (RIAs) and public consultations available and allows for comments by the public, to which regulators respond (OECD, 2021[20]). The government has also made efforts to identify the needs of specific groups of society such as indigenous communities and involve them in the policy process. In addition, the Legislative Assembly has a Department of Citizen Participation (Departamento de Participación Ciudadana, DPC) whose functions are defined in the “Manual of functions and structure of the technical-administrative organisation of the Legislative Assembly”, published in the Legislative Portal. This body is in charge of channelling initiatives proposed by citizens, informing and training on the different legislative processes and generating spaces for dialogue, co-creation and accountability.
Figure 4.7. Stakeholder consultation at different stages of policy making
Note: The more regulatory practices as advocated in the OECD Recommendation on Regulatory Policy and Governance a country has implemented, the higher its iREG score. The indicators on stakeholder engagement for primary laws only cover those initiated by the executive (17% of all primary laws in Costa Rica)
Source: Indicators of Regulatory Policy and Governance (iREG): Costa Rica, 2021, oe.cd/ireg
However, Costa Rica still lacks a law or formalised mechanisms on citizen participation that regulate and standardises citizen participation in the drafting and application of laws and public policies. Looking ahead, and in line with previous recommendations made by the OECD during the accession process, Costa Rica would benefit from adopting the adoption a law on citizen participation that would facilitate the expansion of the practice to all public institutions, at all levels of government (OECD, 2021[21]).
To improve compliance and the perception of lobbying among citizens, Costa Rica could further promote stakeholder participation in the discussion, implementation and revision of lobbying-related regulations and standards of conduct
One of the main challenges that emerged during the interviews conducted in Costa Rica is the limited – and often negative – understanding of the concept of lobbying and of the benefits of making it a transparent process, including to ensure fair and equitable access to the decision-making process and to enable public scrutiny. As such, the government of Costa Rica could further work with stakeholders and citizens to communicate and involve them not only throughout the drafting process, but also in its implementation and revision. Following the example of Ireland and Canada (Box 4.18), this could include education and awareness raising campaigns addressing the negative perception of lobbying through information material and social media, as well as consultations on the content of regulations and lobbying standards of conduct.
Box 4.18. Consultations on in the drafting and revision processes of lobbying regulations in Ireland and Canada
Supporting a cultural shift towards the regulation of lobbying in Ireland through public consultation
In Ireland, the Standards in Public Office Commission established an advisory group of stakeholders in both the public and private sectors to help ensure effective planning and implementation of the Regulation of Lobbying Act. This forum has served to inform communications, information products and the development of the online registry itself.
The Commission also developed a communications and outreach strategy to raise awareness and understanding of the regime. It developed and published guidelines and information resources on the website to make sure the system is understood. These materials include an information leaflet, general guidelines on the Act and guidelines specific to designated public officials and elected officials.
The Commission launched a more targeted outreach campaign through letter mail, and issued a letter and information leaflet to over 2 000 bodies identified as potentially carrying out lobbying activities.
The website was developed to contain helpful information on how to determine whether an activity constitutes lobbying for the purposes of the Act. (Three Step Test: www.lobbying.ie/help-resources/information-for-lobbyists/am-i-lobbying/) Instructional videos were added to the site as well (www.youtube.com/watch?v=cLZ7nwTI5rM).
Consultation on future changes to the Lobbyists’ Code of Conduct in Canada
In Canada, the Office of the Commissioner of Lobbying launched a series of consultations in 2021 and 2022 to collect views on improving and clarifying the standards of conduct for lobbyists to update the Lobbyists’ Code of Conduct.
An initial consultation was held in late 2020 to obtain the views and perspectives of stakeholders in relation to the existing Lobbyists’ Code of Conduct. A second consultation (Dec. 15, 2021 to Feb. 18, 2022) aimed to collect views on a preliminary draft of the revised Code. A final and third consultation on changes to the Code takes into consideration comments received from the previous consultation is currently ongoing (until 22 June 2022).
Source: Ireland: Lobbying.ie, www.lobbying.ie/; Canada: Office of the Commissioner of Lobbying, Consultation on future changes to the Lobbyists’ Code of Conduct, https://lobbycanada.gc.ca/en/rules/the-lobbyists-code-of-conduct/lobbyists-code-of-conduct/consultation-on-future-changes-to-the-lobbyists-code-of-conduct.
Proposals for actions
The recommendations provided in this chapter are an input on how Costa Rica could strengthen transparency and integrity in its policy-making processes. As such, these proposals may inform on-going discussions on the adoption of a lobbying framework and help strengthen integrity standards for public officials.
First, Costa Rica should consider taking steps to strengthen transparency in government decision-making by:
Consolidating the existing framework for access to information into a single Act.
Adopting a lobbying framework ensuring transparency of any kind of lobbying activities that may take place in practice.
Strengthening transparency in election processes by specifying contribution and spending limits, as well as restrictions on online media advertisement.
Enabling interoperability of the newly implemented beneficial ownership register with future lobbying registers to strengthen transparency and scrutiny on who is ultimately benefitting from a lobbying activity.
Second, Costa Rica could establish transparency and integrity frameworks for all persons and bodies providing advice to government by:
Adopting binding rules for the selection process of advisory or expert groups.
Strengthening transparency into interests advising government advisory or expert groups, including what the outcomes are, how they have been dealt with and how they are incorporated in the resulting decision.
Third, Costa Rica should consider establishing a public integrity framework adapted to the risk of lobbying and influence activities for both public officials and lobbyists by:
Developing specific principles, rules, standards and procedures for public officials when interacting with lobbyists.
Strengthening post-public employment rules by imposing additional restrictions on involvement in lobbying for certain public officials for a specified period of time after they cease to hold office.
Adopting standards of conduct which would apply to all lobbyists.
Developing guidance to help public officials assess the reliability of information used in policy and decision making.
Developing and providing additional guidance and increasing capacity-building and awareness-raising activities on lobbying and other influence activities for public officials.
Developing additional guidance and incentives for responsible engagement from the private sector.
Lastly, Costa Rica should ensure that government decision-making processes are inclusive through effective stakeholder engagement by:
Formalising tools for stakeholder engagement and participation, as well as their awareness among citizens.
Promoting stakeholder participation in the discussion, implementation and revision of lobbying-related regulations and standards of conduct in order to improve compliance and the perception of lobbying among citizens.
References
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