Author:

Paula Ferreira Kreitchmann

Abstract:

The characteristic borderline situation between what is right and wrong, fair or unfair, between legality or illegality, that stems from the relationship of state and organized groups for a particular interest, rouses the curiosity in many societies throughout the globe. With growing corruption scandals involving the practice of lobbying there is also a greater need for analysing this practice under an academic approach, therefore being rid of any preconceptions or generalisations. Maintaining a zeal for concept is an essential first step toward the elaboration of this project, which proposes an observation into the legal and, most importantly, constitutional treatment assigned to lobbying. Subsequent to the analysis of the activity via different perspectives and perceiving it’s ubiquity in the current political scenario, it is understood that it possesses a neutral evaluative load, therefore it’s effects, positive or negative, are consequences of practical applicability rather than its essence. Using this delimitation as a starting point and keeping the contemporary interpretations that befall upon the constitution in sight, the activity in question will be confronted with the Portuguese constitutional text, perceiving any convergences or divergences that may arise. Analysing freedom of expression and freedom of association and participation in public life, a positive practical manifestation facet of
lobbying is recognised, that of which supports a proximity to the participative democratic paradigm. However, in light of other constitutional intentions, negative sides of the practice are revealed. The principles of equality, transparency and anti-corruption impose certain restrictions to communication of the defense of the interests of organized social groups, limitations that should be taken into account for the democratic maintenance of the state. In recognising these opposite views, a guideline for this investigation is defined, that of which is ruled by the following question: Considering the apparent shelter provided by a participative democracy, are the actions executed by lobbyists a legitimate practice, or are they illegitimate, being that at times these organized groups appear to act in anti-democratic ways, coercing decision makers in the benefit of self interest and in detriment of the common good? A few conclusions on the subject may be drawn after a bibliographical and normative analysis, identifying what is necessary for lobbying to have an enhancing effect on representative democracy rather than a distortion of the primary goal of the democratic ideal.