Is lobbying fair?

All participants in society have a right to make their views known, and to seek to influence politicians and other decision-makers. In fact, in many ways it is hard to see how politicians and regulators can fairly balance the interests of affected parties without hearing their perspectives. But that need for fair balance is crucial: those reaching key decisions need to hear all perspectives, and they need to be active in thinking whether they are actually doing so, or whether in practice they are hearing only from those with the loudest voices (often a function of having the greatest financial resources) or the most vested of interests – who will always be the ones with the greatest incentive to use all available powers of persuasion.

And decision-makers need to listen thoughtfully and actively to all perspectives in the full knowledge that there is a human tendency to give greater weight to the views expressed by the already powerful and successful. The wealthy have excess influence, through the greater resourcing they put behind expressing their views, but also because their apparent success (let’s remember, it may only be apparent success) lends them greater standing. The voices of ordinary citizens, who may be more fundamentally affected by political or regulatory decisions, are always relatively downgraded. And that’s even before we consider the recent phenomenon of fake grass-roots organisations that purport to represent ordinary folk but instead again promote the interests of the wealthy who fund them – so-called astroturf initiatives.

Even before an assassination attempt, it was clear that we faced oddly febrile times politically, with polarisation and starkly angry social media noise. That surely raises the stakes for all political lobbying, and should require caution by the powerful. It doesn’t seem to have done so far.

These are the reflections inspired by applying fairness considerations to some remarkable analysis of corporate lobbying by the good people at ACCR (the Australasian Centre for Corporate Responsibility). ACCR specifically invited me to think about their analysis of Shell’s lobbying activities – and the apparent gaps in that company’s transparency about it – which came out in March. Forgive me that it’s taken a while to think this one through.

Recent elections may have been fair, perhaps sometimes in spite of their electoral systems. But not all democracy is as well-established or transparent – and even long-standing democracies are not clean of allegations of impropriety (think of the UK’s pandemic era PPE-purchasing scandal, party funding from Kremlin-adjacent oligarchs or the grubbiness of minister Robert Jenrick signing off a housing development shortly after sitting next to its promoter at a Conservative fundraising dinner – in doing so overruling the planning process and the day before a new regime came into force that would have required the developers to pay the local authority £30-50 million to help fund local schools, community centres and other amenities).

Particularly where democracy and transparency are weaker, the powerful have additional influence, and perhaps excess influence. Fairness ought to dictate that they should wield that greater influence with greater circumspection. They should also be more transparent in their activities. Where they do not and are not, they will inevitably create concerns about the propriety and fairness of their actions. Any limit on full transparency may also invite concerns about whether their lobbying efforts are in fact in line with their stated policies.

That’s why ACCR’s findings on Shell are so troubling to an investor, and citizen: the research and shareholder advocacy NGO identifies multiple developing economies where the oil major has been active in lobbying organisations without being fully transparent about it – the title of the research says it all, really: In the dark: gaps in Shell’s climate lobbying disclosures. Given that such a high proportion of the oil company’s future activity will be in these developing economies, this failure to be fairly transparent represents a particular gap.

Source: ACCR, *In the dark: gaps in Shell’s climate lobbying disclosures*

As the chart shows, the research identifies at least 80 associations of which Shell is a member which conduct climate or energy lobbying which the company does not itself disclose. 45 of these are in emerging economies, and in many of them Shell takes a leading role. The 80 undisclosed memberships are in addition to 98 on which the company does make some disclosure.

The ACCR research identifies ways in which Shell’s emerging economy lobbying has influence both on the demand-side for fossil fuels and on the supply-side. This may be unsurprising given ACCR’s broader analysis of Shell’s strategy and capex indicates the scale of the company’s gamble on gas as a transition fuel. The lobbying includes support for increases in long-term LNG demand in southeast Asia; opposing transition from fossil fuels in China, Mexico and South Africa; expanding production across emerging economies including Brazil, Kazakhstan, Malaysia, Nigeria and Tanzania; and arguing for new exploration as a driver of economic development in Columbia and Namibia. As the study shows, the money spent on this is not visible to shareholders and other stakeholders:

This invisibility bars shareholders from holding the company to account for this expenditure of money and raising questions about its consistency with stated policies. The invisibility also bars citizens from questioning the influence that corporations generally may be having on political and regulatory decision-making.

This company-specific analysis sits within a broader context regarding corporate lobbying and political influence – and I am not in any way intending to imply that Shell is worse than other companies. Investors want more transparency: it’s been notable this year how many shareholder proposals there have been at companies, from the US and elsewhere, seeking further visibility of corporate lobbying activities (some specifically regarding climate change, some lobbying more generally). For example, 41% of the non-founders of Alphabet supported such a proposal, as did 28% of Nippon Steel’s shareholders, 40% of those at Goldman Sachs and 45% of those at Morgan Stanley (once the holdings of Japan’s MUFG are set to one side). Again, I am not intending to imply that Alphabet, Goldman, Morgan Stanley or Nippon Steel are in any way particularly extreme offenders in this regard.

The issue of lobbying and political influence is most notably an issue in the US. Corporate governance guru Bob Monks has long railed at the negative influence of large companies on that country’s politics, and the commensurate limited constraints on corporate power exerted by politicians. He did so in his 2007 book Corpocracy, spectacularly subtitled How CEOs and the Business Roundtable Hijacked the World’s Greatest Wealth Machine – and How to Get It Back. This focuses ire on a US Supreme Court decision, First National Bank of Boston v Belotti, that enabled companies to engage in campaigns on state legislative ballot initiatives – the first step opening the door to full involvement in the political process by businesses. He writes: “today even the political process is largely in the control of corporate masters who fund campaigns, back “debates,” and stymie in every way conceivable their own regulation.”

In the book, Bob further said: “the Belotti decision appears on its face sufficiently absurd as to suggest that reversal is just a matter of time.” For once, Bob’s general prescience failed him, as Belotti was not only not reversed, it was in fact moved further onwards, this time in a federal law context, in the Supreme Court’s later decision in Citizens United v Federal Election Commission. And that case predates the latest successful corporate attack on regulation, facilitated by the Supreme Court: last month’s decision to overturn the 1984 precedent of Chevron v Natural Resources Defense Council, in effect removing the right of regulators to regulate without express Congressional authority.

Bob railed more strongly in 2022’s The Emperor’s Nightmare, a book that is subtitled Saving American Democracy in the Age of Citizens United. Citizens United was the 2010 Supreme Court decision that fully extended the right to free speech assured by the First Amendment to the US Constitution to corporate entities, in effect removing all limits on corporate spending on lobbying and political campaigns. It’s a fundamental human right, but corporations are not humans, only enjoying the benefit of legal personality, so it seems an odd decision to extend the First Amendment right to companies. As the dissenting opinion in the case, written by Justice John Paul Stevens, states: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

Bob spoke even more bluntly in his speech this week to the International Corporate Governance Network (read on his behalf in his absence by CEO of ValueEdge Advisors, Rick Bennett) accepting his Lifetime Achievement Award from that organisation. Entitled ‘American oligarchs prevail’, the speech began “American exceptionalism has been lost…” and identified the decisions in Belotti and Citizens United as the moments at which that loss started and accelerated.

Politics is about finding a fair balance between different interests. The powerful will always want influence – and power and wealth are automatically accorded respect and given extra weight in the way the balance is struck. But fairness requires that the balance is not struck in a way that is biased towards those corporate interests. Fairness further requires visibility and honesty from corporate actors about their activities – and their shareholders are asking for it. Bob Monks argues that bias is now firmly established in the US, and he calls to action investors to lean against this; perhaps that bias, and its pernicious effects, are less well established elsewhere, but without transparency it’s hard to tell.

At the very least, we need visibility on lobbying and the ability to hold it to account, and so limit its influence – probably both as investors and as citizens. Sadly, ACCR’s analysis suggests that such transparency is far from universal. That’s far from fair, and it risks propagating further fundamental unfairness in policy-making.

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Published by Paul Lee