This chapter reviews the Chile integrity framework from the perspective of interactions between public officials and lobbyists. First, the chapter provides recommendations on strengthening the existing integrity framework for public officials adapted to the risks related to lobbying and influence activities, implementing an effective system to manage pre/post public office and employment risks, and providing rules that promote integrity and inclusiveness in advisory and expert groups. In addition, the chapter discusses how to better support businesses and civil society organisations in reinforcing their frameworks for transparency and integrity in policymaking, including through the introduction of a Lobbying Code of Conduct as a starting point for promoting responsible engagement, as well as strengthening disclosures on sources of funding, transparency of media companies’ ownership structures and financing, and regulations on the political activities of certain interest groups.
The Regulation of Lobbying and Influence in Chile
4. Strengthening the integrity framework adapted to the risks of lobbying and influence for public officials and lobbyists in Chile
Abstract
4.1. Introduction
In addition to increasing the transparency of the policymaking process, the strength and effectiveness of this process also depends on the integrity of both public officials and those who seek to influence them (OECD, 2021[1]). Public officials should conduct their communication with lobbyists in line with relevant rules, standards and guidelines in a way that bears the closest public scrutiny. They should cast no doubt on their impartiality to promote the public interest, share only authorised information and not misuse ‘confidential information’, disclose relevant private interests and avoid conflict of interest. Decision makers should also set an example by their personal conduct in their relationship with lobbyists (OECD, 2010[2]; OECD, 2021[1]).
However, lobbying and influence are typically an example where public officials may face ethical dilemmas in cases where there are no clear legal “right” or “wrong” answers or where there may be conflicts between different values or principles. As such, lobbying-related ethical dilemmas are a key challenge for integrity policies. This is particularly true in an age of social media and information overload, where back and forth between the private and public sectors is commonplace, and where public officials are constantly exposed to public scrutiny and criticism, risking the collapse of their reputations every time an intervention is misperceived or misinterpreted.
Similarly, lobbyists, in particular those coming from the private sector, are under an increasingly high degree of scrutiny from all stakeholders, notably their own employees, investors and the public. This has significantly increased the expectations regarding their level of and their commitment to integrity in engaging with the policymaking process (OECD, 2021[1]).
As such, both public officials and lobbyists therefore need an integrity framework adapted to the specific risks of lobbying and other influence practices. In Chile, public officials who are lobbied are subject to various integrity standards and transparency requirements, specified in Article 11 of the Law. Similarly, lobbyists (i.e., lobbyists and managers of private interests as defined in the Lobbying Act) also face a number of obligations specified in Article 12 of the Law, and can also rely on a Code of Good Practice for Lobbyists (provided in Annex A) to guide their behaviour.
To further strengthen this integrity framework, this chapter provides recommendations on the following two core themes:
Strengthening the current lobbying integrity framework for public officials.
Assisting businesses and civil society organisations in reinforcing their frameworks for transparency and integrity in policymaking.
4.2. Strengthening the lobbying integrity framework for public officials
4.2.1. Article 11 of the Lobbying Act could be strengthened to introduce additional lobbying-related integrity standards for public officials that clarify their expected behaviour when dealing with lobbying
Lobbying integrity standards for public officials may be included in a specific lobbying law, a lobbying code of conduct as well as guidelines specific to interactions with external parties, or general standards applicable to public officials, such as laws, codes of ethics or codes of conduct. Depending on the type of document in which the standards are included, standards for public officials and their interactions with lobbyists may include, for example (OECD, 2021[1]):
The duty to check that lobbyists are duly registered in the Register of Lobbyists, or that they intend to do so within the indicated timeframe.
The duty to treat lobbyists equally by granting them fair and equal access.
The obligation to report violations of existing lobbying standards to the competent authorities.
The duty to publish information on their meetings with lobbyists (through a lobbying registry or open agendas).
The obligation to refuse to accept gifts (in whole or beyond a certain value) from lobbyists, or to declare gifts and benefits received, among others.
In addition, these standards can be adapted to sectors or functions of the executive and legislative branches, as well as to higher and more politically exposed positions. For example, it may be necessary to set higher expectations for politically exposed positions (Members of parliament, Ministers and policy advisors) in order to effectively address the risks of lobbying and other influence activities affecting them.
In Chile, Article 11 of the Lobbying Act specifies that the authorities and officials referred to in Articles 3 and 4 shall maintain equal treatment with respect to persons, organisations and entities requesting hearings on the same matter. While they are not required to respond positively to every demand for meetings or hearings, if they do so in respect to a specific matter, they must accept demands of meetings or hearings coming from all those who request them on the said matter.
To further strengthen Article 11, several other provisions could be added. For example, Article 11 could include a duty for passive subjects who become of aware of a violation of any provision of the Lobbying Act to report the details of the violation. Such provisions exist for example in Australia’s Lobbying Code of Conduct. Passive subjects could also be required to check, before accepting a meeting with a lobbyist, that they are duly registered in the Register of Lobbyists, or that they intend to do so within the indicated timeframe.
Lastly, specific provisions on accepting gifts could be included, for example the duty to refrain from accepting gifts from lobbyists, or the duty to report gifts received from lobbyists above a certain threshold. Such provisions could be differentiated based on the categories of public authorities and passive subjects described in Articles 3 and 4 of the Lobbying Act, according to their particular context and risks, and added either in the Lobbying Act or in broader integrity-related acts, regulations or codes of conduct. Examples from Spain and the United States are provided in Box 4.1.
Box 4.1. Guidelines on accepting gifts and benefits from lobbyists in OECD countries
Spain
The Code of Conduct of the Cortes Generales in Spain establishes that the Members shall refrain from accepting, for their own benefit or that of their families, gifts of value, favours, services, invitations or trips that are offered to them for reasons of their position or which could reasonably be perceived as an attempt to influence their conduct as parliamentarians. Gifts with a value greater than EUR 150 are understood as an attempt to influence Members’ conduct as parliamentarians.
Gifts and presents received by Members on official trips or when acting on behalf of the Parliament must be delivered to the General Secretariat of the corresponding Chamber, provided that they are offered for reasons of their position and not a personal title and have an estimated value of more than EUR 150. These gifts will be inventoried and published on the website of the corresponding Chamber.
United States
The U.S. 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.
Additionally, 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, 2023[3])
4.2.2. The Government of Chile could strengthen legislation that adequately manages the revolving-door phenomenon
Another issue of particular importance to consider in the Chilean context is the “revolving door” between the public and private sectors. The revolving door phenomenon can be characterised as the movement of personnel between the public and private sectors in related fields, and can produce many positive outcomes, including the transfer of knowledge and experience. Nevertheless, it can pose a number of problems, including conflicts of interest and the misuse of inside information. For example, individuals who work in a relevant area of the public sector and then move on to the private sector (or vice versa) may use inside information gained in their role in a way that gives them an unfair advantage (OECD, 2021[1]).
To mitigate these risks, some OECD countries have introduced restrictions and prohibitions on post-public service, including “cooling-off periods” between public and private sector employment. Such provisions are useful tools to avoid the use of insider information and to discourage influence peddling, or to avoid being suspected of having previously made decisions that might be favourable to a potential employer. They can take various forms, such as a ban on the use of confidential information obtained in the course of the public mandate, restrictions on certain activities for a certain period of time, such as agreeing to become a member of a board of directors or to be employed in private entities with which the public official has had official relations, or to participate in consultancy activities.
Chile currently lacks effective revolving door regulations for both public officials and lobbyists: there are no colling-off periods for lobbyists and only limited provisions for public officials that lack effective enforcement mechanisms. A special regulation was established for commissioners of the Financial Market Commission, who must comply with a 6-months cooling-off period after they leave office (Law No. 21.000 creating the Financial Markets Commission). In addition, article 56 of Law No. 18.575 on the General Bases of State administration provides that “(...) the activities of former authorities or former officials of an audit institution that involve an employment relationship with entities in the private sector subject to the supervision of that agency are incompatible. This incompatibility shall persist for up to six months after expiration of their functions”. However, as emphasised in the National Public Integrity Strategy, in practice, this provision has limited application. On one hand, there is no oversight to ensure compliance; on the other hand, the law does not confer powers to a supervisory body that could serve as an effective deterrent to prevent the violation of the provision (Presidential Advisory Commission for Public Integrity and Transparency of Chile, 2023[4]).
Some of the envisioned provisions to be introduced include prohibiting those who are registered as lobbyists and who have lobbied passive subjects of a specific institution from taking office in senior positions in the same institution for a period of one year. The provisions would also prohibit former public officials from lobbying their former institution for a period of two years.
When determining the length of the cooling-off periods, key factors to be taken into account include whether the durations are fair, proportionate and reasonable, taking into account the seriousness of the potential offence. It is also necessary to tailor the duration of restrictions to the type of problem and the level of the hierarchy. For example, a ban on lobbying may be appropriate for a fixed period, but restrictions on the use of insider information could apply for life, or until the sensitive information is made public. Cooling-off periods on lobbying activities have been implemented for elected officials and certain at-risk positions in several OECD countries. Box 4.2 contains examples among OECD countries that can serve as a model for Chile on cooling-off periods that would apply to certain categories of passive subjects covered under the Lobbying Act.
Box 4.2. Cooling-off periods for lobbying activities for elected officials and public officials in high-risk positions in OECD countries
Australia
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 with in 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.
European Union
Within 12 months of the end of their duties, senior officials (Directors General and Directors) are prohibited from engaging in lobbying activities against their former institution on matters for which they were responsible during the last three years of their term of office.
Canada
Canadian federal law imposes a prohibition on designated public office holders from engaging in lobbying activities for five years from the end of their duties. These rules are, however, limited to designated holders within the meaning of the Lobbying Act, i.e., those who exercise the highest responsibilities in public institutions.
The Netherlands
A specific circular adopted in October 2020, “Prohibition of lobbying for former ministers,” prohibits ministers and any official employed in a department from accepting employment as a lobbyist, ombudsman or intermediary in professional contacts with a ministry representing an area in which they have had public responsibilities. The duration of the lobbying ban is two years. Its objective is to prevent ministers who retire or resign from using their position, knowledge and network acquired in their public service to benefit an organisation for which they work following their resignation. The Secretary General of the ministry concerned has the possibility to grant a reasoned exception to former ministers who request it.
Source: (OECD, 2021[1]).
For certain categories of public officials, such as Ministers or ministerial advisors, it may be useful to introduce a mandatory check that the public official’s intended activities after leaving office do not put him or her at risk. The example of France is described in Box 4.3.
Box 4.3. Rules on employment after the exercise of a public service in France
In France, the HATVP is currently responsible for monitoring the post-public employment activities of former ministers, presidents of local executive bodies and members of independent authorities (article 23 of Law No. 2013/907 on the transparency of public life). For a period of three years, any person who has held one of these positions must refer the matter the HATVP to examine whether the new private activities they intend to carry out are compatible with their former functions.
The law of 6 August 2019 on the transformation of the civil service also gave the HATVP new responsibilities for monitoring the mobility of certain civil servants (Law No. 83/634 on the rights and obligations of civil servants). In concrete terms, public bodies control the transfer of former civil servants to the private sector, which is carried out by the official’s supervisor. However, the line manager can refer to HATVP in case of doubt on individual cases. Referral to the High Authority is mandatory for certain senior officials.
Source: (OECD, 2021[1]).
With regard to the other side of revolving doors, rules requiring former lobbyists who have become public officials not to deal in their new functions with cases similar to those they have treated as lobbyists are rather rare in OECD countries. However, some countries impose such a time limit when electing, appointing or hiring a private sector official to public sector responsibilities. In France, for example, the HATVP was given a new “pre-appointment” control for certain positions of responsibility. A preventive check is carried out before appointment to certain high-level posts (including members of a ministerial cabinet, team members of the President of the Republic, directors of the central administration), if a person has performed duties in the private sector during the three years preceding the appointment (OECD, 2021[1]).
4.2.3. Chile could adopt binding rules for the establishment and selection process of advisory or expert groups providing advice to public officials, to strengthen integrity and inclusiveness
As emphasised in Section 2.2.5 in Chapter 2, advisory and expert groups allow for the inclusion of a diverse range of voices and expertise to enrich discussions on policy problems and how to address them. But transparency over the establishment and composition of advisory and expert groups remains a challenge across OECD countries.
To strengthen the integrity and inclusiveness of participants of such groups, the government of Chile could first consider undertaking a mapping exercise of all existing advisory or expert group established across government. Second, common rules and guidelines for the selection process of advisory and expert groups could also be adopted, providing for mandatory transparency on the structure, mandate, and composition.
Specific recruitment criteria and methodology for setting up these groups could help reduce the level of discretion on the institutional set up of these groups and 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. By defining appropriate qualifications and conditions for appointment, the rules can also guarantee that the selection process is inclusive, so that every potential expert and/or interest groups 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 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. Similar measures could be applied to all entities and individual experts selected to advise government entities (and mentioned in Article 6 §6 and §8 of the Lobbying Act).
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 perspectives. While the guidelines are not legally binding, they provide an example for Chile on the selection process and the management of conflicts of interests within these groups (Box 4.4).
Box 4.4. 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 specify that members should “explain any commitments that may involve conflicts of interests”.
4.2.4. Additional capacity building and awareness raising activities for public officials on lobbying and other influence activities could be developed, in particular for passive subjects at the local level
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.
In Chile, the Commission for Public Integrity and Transparency provides training and awareness activities for public officials. Nonetheless, the interviews conducted by the OECD with local elected representatives established that this aspect could and certainly should be strengthened. Indeed, the rules on lobbying and their relation to the integrity framework are not well known, and the implementation of the Lobbying Act at the local level is made more difficult because of the lesser capacities in place. Municipal representatives insisted on the need for more trainings on the matter.
As such, the Commission for Public Integrity and Transparency could therefore strengthen its capacity building programme, with a special focus on the local level in order to help develop the knowledge, skills and capacity of passive subjects at the local level. In particular, the Commission could also develop “train the trainers” workshops with municipal associations (which could then provide training for civil servants), as well as regular and on-demand training for municipalities.
4.3. Assisting businesses and civil society organisations in reinforcing their frameworks for transparency and integrity in policymaking
4.3.1. Standards of conduct for lobbyists could be centralised into a mandatory Code of Conduct for lobbyists, with sanctions applicable for non-compliance
To ensure integrity in the policymaking process, interest groups require clear standards and guidelines that clarify the expected rules and behaviour for engaging with public officials, as they share responsibility for fostering a culture of transparency and integrity in lobbying. In particular, those who engage in public decision-making processes should comply with standards of professionalism and transparency in their relations with public officials (OECD, 2010[2]; OECD, 2021[1]).
In some OECD countries, lobbyists self-regulate through codes of conduct published by employers of lobbyists or lobbying associations. However, the experience of OECD Member countries has shown that self-regulation remains insufficient to mitigate real or perceived problems of inappropriate influence by lobbyists. For this reason, countries with a lobbying regulation also have standards in place for those who influence government. This is also the case in Chile: Article 12 of the Lobbying Act includes ethical requirements for lobbyists and managers of private interests. In particular, they must:
Provide in a timely and truthful manner to the respective authorities and officials, the information indicated in the law, when required, both to request hearings or meetings, as well as for the purposes of publication (Article 12 §1). This includes information on the persons who will attend the meeting as well as matters to be dealt with during the meeting.
Inform the passive subject to whom the meeting or hearing is requested of the name of the persons they represent, if applicable (Article 12 §2).
Inform the passive subject to whom the meeting or hearing is requested whether they receive any remuneration for their actions (Article 12 §3).
Provide, in the case of legal persons, the information requested of them regarding their structure and composition, without being obliged to provide confidential or strategic information in any case. This information must be requested by means of a form which, for this purpose, must be prepared by the SEGPRES, the Office of the Comptroller General of the Republic, the Central Bank, the Parliamentary Ethics and Transparency Commissions of the National Congress, the Public Prosecutor’s Office and the Administrative Corporation of the Judiciary in their respective regulations (Article 12 §4).
In addition, active subjects must reply to passive subjects in writing within 5 working days when passive subjects request additional information in the 10 days following a meeting or hearing. They must also inform their clients or principals of the obligations to which they are subject by virtue of the Lobbying Act. Lastly, active subjects can also rely on a Code of Best Practices for Lobbyists (Código de Buenas Prácticas para Lobbistas), provided in Annex A.
This Code of Best Practices, however, has the structure of a code of ethics, as it includes values and ethical principles that active subjects must abide by when conducting lobbying activities. As such, the current Code of Best Practices could be transformed into a mandatory Code of Conduct for active subjects, while guidelines and practical examples could be included into a handbook accompanying the Code. The Code would be included in the legal framework and centralise all obligations and requirements applicable to active subjects, including the ones specified in Article 12. This will help ensure greater clarity for lobbyists on the standards of behaviour that are expected of them.
4.3.2. The Lobbying Act could require the disclosure of the sources of funding, both public and private, of foundations, research centres, think tanks and civil society organisations conducting lobbying activities
One way in which vested interests influence government policy is by funding third-party organisations, such as think tanks, research institutions or associations. The aim is to present expert opinion, evidence and data and to mobilise the public around the public policy process. However, as with any other form of lobbying, there is a risk of subjective influence, hence the importance of ensuring transparency around these practices to allow for public scrutiny. Similarly, public funding to these groups can also present integrity risks, if potential conflicts of interests stemming from links between public officials and certain interest groups are not adequately addressed and prevented.
This is especially important as civil society organisations (CSO) are expected by government, business and the general public to act in alignment with their mission, show integrity and be trustworthy, and display exemplary behaviour across the organisation. Any violation of these public integrity and good governance standards can jeopardise the legitimacy of CSOs in the eyes of government and the public, and undermine the sustainability of their activities and access to funding (OECD, 2020[6]).
In Chile, these risks have been brought to light recently in the wake of the scandal involving the foundation “Democracia Viva”. The risks related to opaque funding of certain interest groups were also mentioned during interviews organised by the OECD with parliamentarians in March 2023. In response to the scandal, the special Ministerial Advisory Commission for the regulation of the relationship between private non-profit institutions and the State (Comisión Asesora Ministerial para la regulación de la relación entre las instituciones privadas sin fines de lucro y el Estado), proposed the creation of an electronic portal that allows monitoring and accessing information on transfers of public resources to civil society organisations. The commission also advocated for the creation of a beneficial ownership registry, which would strengthen the lobbying transparency framework by providing more transparency on who is ultimately benefiting from a lobbying activity (Presidential Advisory Commission for Public Integrity and Transparency of Chile, 2023[7]).
In particular, the special Commission concluded that the “currently existing transparency rules [for not-for-profit organisations] are not precise enough to adequately fulfil their function”. For example, Law No. 20.500 on non-profit organisations establishes in its article 17 that public interest organisations that receive public funds must report on the use of these resources, but there is no oversight and sanction mechanism for this specific provision. In addition, non-financial transparency of civil society organisations, including the composition of their boards, is also insufficient.
To mitigate risks, the government of Chile could therefore amend the Lobbying Act to require the disclosure by lobbyists and managers of private interests of their sources of financing, including financing by governments (including foreign governments), individuals and other interest groups, as indicated in the proposed sections for initial registration in the Register of Lobbyists (Table 3.4 in Chapter 3). In Canada for example, the Lobbying Act requires lobbyists to disclose “any government funding received, the name of the government or agency providing funding, and the amount of funding received”, as well as whether lobbyists registered were previously public office holders (in this case they need to disclose a description of the offices held, which of those offices, and the date on which the employee last ceased to hold such a designated public office).
In addition to strengthening transparency on public sources of funding, greater transparency on private sources of funding of these organisations in particular would help to distinguish between genuine advocacy networks and the practice of 'astroturfing'. Astroturfing is the practice of creating or funding citizens' associations or organisations in order to create or reinforce an impression of widespread popular support for a public action or programme, in order to indirectly influence decision making. The messages conveyed give the appearance of a spontaneous and disinterested consumer or citizen movement, but in reality conceal positions aligned with those advocated by an industry, lobby group or other interest group. To date, the EU Transparency Register is the only transparency regime that requires think tanks, research centres and academic institutions to declare the source of their funding: any organisation must indicate its sources of funding in the register, either by providing a link to a web page containing the relevant information or by requiring disclosure of this information in the register if the information is not already publicly available (OECD, 2021[1]).
Additional disclosure requirements that could be considered by the government of Chile include:
Disclosure of donations, contributions and services to the government, political parties and election campaigns, either directly or through other third parties or natural persons hired to conduct lobbying activities and influence activities.
Disclosure of engagement with other organisations and individuals for the purpose of conducting lobbying and influence activities, such as companies, trade associations, non-governmental organisations, consultancies, think tanks and research bodies, media and journalists, as well as with experts and personalities, and disclosure of funding to these organisations and individuals, as well as any gifts, invitations and hospitalities given.
Disclosure of the membership and interests of board members and senior executives with companies, state agencies, and outside organisations such as business and trade associations, non-governmental organisations, consultancies, think tanks and research bodies, where such membership is closely linked to the lobbying and influence activities conducted.
These disclosures are in line with the proposals made by the special Ministerial Advisory Commission for the regulation of the relationship between private non-profit institutions and the State (Presidential Advisory Commission for Public Integrity and Transparency of Chile, 2023[7]).
4.3.3. The broader legal framework could be amended to strengthen the transparency of media companies’ ownership structures and financing, including beneficial ownership, as well as transparency around all sponsored content and advertising
As emphasised throughout this report, using traditional and social media or other public platforms is also a way to shape perceptions of the public and policymakers and ultimately influence the policymaking process. An emerging concern is also the lack of transparency and accountability regarding the rising expenditures on digital media through advertisements, promoted content and other political paid material. Recent evidence shows that spending on online political advertisements has increased significantly in recent years, particularly during the COVID-19 pandemic (OECD, 2021[1]).
In Chile, the fact that most media outlets are owned by big business groups, with possible conflicts of interests in covering certain issues, has undermined the trust of much of the population. The lack of transparency around the concentration of spending around advertising purchases is also a major concern (Reporters Without Borders, 2023[8]; Ruiz and Tagle, 2011[9]; Espejo and von Wolfersdor, 2019[10]). Taken together, these challenges increase the risks of media capture by political or private interests. Media capture refers to situations where individuals or groups exert significant control over media organisations in a way that influences content, coverage, and functioning. Particularly when conducted by – or complicitly with – the government, the goal of media capture is often to confuse debate, weigh in on political debates, limit dissent, and reduce the democratic checks that the media can otherwise provide. In these contexts, the media’s ability to serve its democratic role as a “watchdog” is compromised (Nelson, 2017[11]).
While this aspect falls outside the scope of the Lobbying Act, the risks evidenced in Chile call for increased transparency and public scrutiny of media ownership and the use of advertisements by special interests. To that end, regulation can take the form of requirements for increased transparency around media ownership, for example, by mandating full disclosure of owners, the size of the shareholdings, and their other economic and political interests. Increasing transparency around political advertisements, including through requiring information around the provenance and target audiences; instituting standardised reporting mechanisms; and creating databases of relevant advertisements may all also play a role in increasing transparency and integrity around these practices (OECD, 2024[12]).
4.3.4. The broader legal framework could be amended to strengthen regulations on the political activities of certain interest groups
While the financing of elections and political campaigns remains outside the scope of this report, a significant challenge that emerged during interviews with Chilean stakeholders is the political activities of certain interest groups, usually think tanks and research institutes, with either ties to political parties, or who conduct political activities on behalf of political parties or candidates in elections. Some of these institutes are referred to as “political training institutes” and must disclose information on their income and funding to the Electoral Service (Servicio Electoral – SERVEL). However, registration is made on a voluntary basis, and this category leaves out other types of research institutes, such as think tanks related to political parties (Cárdenas, 2019[13]).
In addition, the legal framework remains vague on the issue of third-party political spending and there is currently no explicit regulation on third-party involvement in political campaigns, except during the campaign period of a referendum, which are provided in the forty-second transitory provision of the Political Constitution – “rules on the publicity of contributions received by political parties, independent parliamentarians and civil society organisations that receive contributions for the campaign period of a referendum”. In June 2023, the SERVEL announced the opening of an investigation by its Directorate on the Control of Electoral Expenditure and Financing on whether the activities conducted and contributions received by several CSOs violated these rules on the publicity of contributions received by political parties, independent parliamentarians and civil society organisations that receive contributions for the campaign period of a referendum (Electoral Service of Chile, 2023[14]). The investigation focused in particular on the conduct of campaign activities for the Constitutional Vote of 2022, as well as the transfer of money between CSOs for political purposes.
Regulating third-party political spending for all electoral campaigns is also a pressing issue for the lobbying framework because it has a direct influence on election results and indirect influence on public officials elected in office. As such, specific definitions and rules could be introduced in the broader legal framework to increase transparency of the political activities conducted by certain organisations. In particular, interest groups who conduct political activities or activities that would be considered as electoral propaganda could be required to register specific information on these activities. Several examples are provided in Table 4.1.
Table 4.1. Third party campaigning regulations in OECD countries
|
Definition |
Regulation |
|
|---|---|---|
|
Australia |
“Third parties”: a person or entity (other than a political entity or a member of the House of Representatives or the Senate) incurring electoral expenditure that is more than the disclosure threshold during a financial year; but is not required to be registered as a ‘significant party’. “Significant third parties”: persons or entities are required to register as a significant third party when:
|
“Third parties” must lodge an annual disclosure return with the Australian Electoral Commission by 17 November each year and comply with foreign donation restrictions. “Significant third parties” must register with the Australian Electoral Commission before the end of 90 days after becoming required to be registered. For a significant third party that is registered or is deregistered during the financial year, the annual return must be provided in relation to the whole financial year. A significant third party that registers within the current financial year and was not required to be registered in the previous financial year must lodge an annual return for the previous financial year within 30 days of having been registered. A person or entity that is required to be registered as a significant third party for a financial year must not incur further electoral expenditure or fundraise any amounts for the purpose of incurring electoral expenditure in that financial year until they are registered. Lodgment of an annual disclosure return is due by 20 October each year and comply with foreign donation restrictions. |
|
Canada |
A third party is a person or group seeking to participate in (or influence) elections but not as a political party, electoral district association, nomination contestant or candidate. |
For general elections, a third party cannot make donations totaling an aggregate amount of more than CAD 350 000 on partisan activity expenses, election advertising expenses, and election survey expenses. No more than CAD 3 000 of the maximum amount must be incurred to promote or oppose the election of one or more candidates in a given electoral district. |
|
United Kingdom |
“Third party” means individuals and organisations that campaign in the run-up to elections but do not stand as political parties or candidates. |
There is a spending limit of GBP 10 000 for England and GBP 5 000 for Scotland, Wales and Northern Ireland. A register of non-party campaigners is made public on the UK Electoral Commission website. |
Source: (OECD, 2022[15]); and Australian Electoral Commission, Financial Disclosures, https://www.aec.gov.au/Parties_and_Representatives/financial_disclosure/
Proposals for action
In order to strengthen the public integrity framework adapted to the risks of lobbying and influence activities for public officials and lobbyists in Chile, and to be as consistent as possible with OECD standards and international best practices in this area, the OECD recommends that the Government of Chile considers the following proposals.
Strengthening the lobbying integrity framework for public officials
Amend Article 11 of the Lobbying Act to introduce additional lobbying-related integrity standards for public officials, including:
A duty for passive subjects who become of aware of a violation of any provision of the Lobbying Act to report the details of the violation.
A requirement to check, before accepting a meeting with a lobbyist, that they are duly registered in the Register of Lobbyists, or that they intend to do so within the indicated timeframe.
Specific provisions on accepting gifts, for example the duty to refrain from accepting gifts from lobbyists, or the duty to report gifts received from lobbyists above a certain threshold.
Strengthen legislation that adequately manages the revolving-door phenomenon, by introducing cooling-off periods on lobbying activities for elected officials and public officials in high-risk positions.
Adopt binding rules for the establishment and selection process of advisory or expert groups – or individual experts – providing advice to public officials, to adequately manage lobbying-related risks.
Provide additional capacity building and awareness raising activities for public officials on lobbying and other influence activities, with a special focus on the local level. Such trainings could also include “train-the-trainers” workshops with municipal associations (which could then provide training for civil servants), as well as regular and on-demand training for municipalities.
Assist businesses and civil society organisations in reinforcing their frameworks for transparency and integrity in policymaking
Centralise the standards of conduct for lobbyists into a mandatory Code of Conduct for lobbyists embedded in the legal framework, with sanctions applicable for non-compliance.
Add a provision in the Lobbying Act requiring legal entities such as foundations, research centres, think tanks and civil society organisations to disclose sources of funding, both public and private.
Amend the broader legal framework to strengthen transparency of media companies’ ownership structures and financing, including beneficial ownership, as well as transparency around all sponsored content and advertising.
Amend the broader legal framework to better regulate the political activities of certain interest groups.
References
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[14] Electoral Service of Chile (2023), Declaración del Servicio Electoral de Chile, https://www.servel.cl/2023/06/29/declaracion-del-servicio-electoral-de-chile/.
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[2] OECD (2010), “Recommendation of the Council on Transparency and Integrity in Lobbying and Influence”, OECD Legal Instruments, OECD/LEGAL/0379, OECD, Paris, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0379.
[7] Presidential Advisory Commission for Public Integrity and Transparency of Chile (2023), Comisión Asesora Ministerial para la regulación de la relación entre las instituciones privadas sin fines de lucro y el Estado. Informe, https://www.integridadytransparencia.gob.cl/wp-content/uploads/2023/08/Informe-Comision-Asesora.pdf.
[4] Presidential Advisory Commission for Public Integrity and Transparency of Chile (2023), National Public Integrity Strategy, https://www.integridadytransparencia.gob.cl/wp-content/uploads/2023/12/Estrategia-Nacional-de-Integridad-Publica-2.pdf.
[8] Reporters Without Borders (2023), Chile Coutry Profile, https://rsf.org/en/country/chile.
[9] Ruiz, P. and V. Tagle (2011), “Propriedad de los medios y principios de intervención del Estado para garantizar la libertad de expresión en Chile”, Revista de Derecho Universidad Católica del Norte, Vol. 18/2, pp. 347-359, https://doi.org/10.4067/S0718-97532011000200012.