LOBBYING IN MEXICO

Authors: Sergio Chagoya Diaz and Elias Zaga Belzer (Santamarina y Steta SC)

Constitution: The basic source of law in the United Mexican States (Mexico) is a written federal constitution dating from 1917 (the Constitution), which consists of 136 articles, many of which have been somehow amended throughout all these years.

Also, as a federal republic, Mexico’s 32 federative states enjoy sovereignty and are free to issue their own laws. In this regard, all federative states have their own constitution and their own local laws and regulations (only certain specific matters are reserved to be legislated by the federation). Additionally, each federative state is divided into several municipalities. Each municipality is empowered to issue local rules, regulations, communications and administrative provisions of general observance.

The only limitation to the legislative freedom of the federative states is that no laws or regulations can be approved or passed if they oppose the federal Constitution and its principles.

Fundamental human rights, such as freedom of speech (as long as it does not attack the moral, private life or any third parties’ rights, constitutes a crime or disturbs public order), freedom of assembly (as long as it is for legal purposes and unarmed) and the right to petition the government (as long as it is exercised in writing, in a respectful and peaceful manner), are contemplated in the Constitution. However there are no articles regarding any strict lobbying regulation.

Legislative system: At federal level, the Mexican Congress of the Union is bicameral, dividing legislators into two separate assemblies: the House of Representatives and the Senate. The House of Representatives is composed of 500 congressmen, of whom 300 are elected by direct popular vote. The remaining 200 are elected by indirect vote, in connection to the voting percentage each political party gets. The Senate is composed of 128 senators, of whom 96 are elected by direct popular vote, and the remaining 32 are elected by an indirect vote.

At a local level, each federative state has its own House of Representatives, in accordance to its respective local constitution.

The President, the members of the Congress of the Union and the members of the House of Representatives of each federal state (only at local level) are entitled to issue laws or decrees. However, the President, as head of the executive branch, is entitled to issue secondary legislation in order to provide the specific rules and guidelines for the application of general and federal laws.

National subdivisions: Mexico is a republic, and a democratic federation, and thus is divided into several states, which in turn are divided into many municipalities. The Constitution grants both the states and the municipalities the faculty to create and issue their own laws and regulations (including secondary regulation), but only for specific matters that are not expressively reserved to the federal authorities, such as federal taxation.

Since lobbying is not a topic expressively reserved to the federation, state and municipality governments are completely entitled to create their own laws and regulations regarding lobbying throughout the legislative process established in the Constitution. Nonetheless, lobbying is commonly regulated in the internal regulations of each local congress.

Consultation process: Mexican citizens are entitled to vote in legal and binding referendums in terms of article 35 of the Constitution.

According to the above-mentioned article, referendums shall be summoned by: (i) the President; (ii) 33 per cent of the members of the House of Representatives or the Senate and; (iii) 2 per cent of the citizens registered in the Nominal List of Electors. The outcome of this voting shall be binding only in the event that 40 per cent or more of the citizens registered in the Nominal List of Electors participate in the corresponding referendum.

Likewise, human rights, form of government, electoral principles, state budget, national security and the organisation of the armed forces are matters that cannot be subject to referendum. The Mexican Supreme Court (the highest judicial authority in Mexico) shall consider the legitimacy of the referendum before it may be held.

Any referendum shall be organised by the National Electoral Institute (known as INE from its its acronym in Spanish).

Judiciary: As previously stated, at federal level, the Mexican government is divided into three different, independent and coequal powers: the executive branch (headed by the President); the legislative branch (made up of the House of Representatives and the Senate); and the judiciary branch (headed by the Supreme Court, and composed of different tribunals).

According to article 94 of the Constitution, all judges in the Judiciary branch are appointed, as follows.

• Judges from the Supreme Court are elected by the Senate (two-thirds of the Senators vote), from a three-person list proposed by the President.
• Circuit magistrates and judges are elected by the Federal Judicial Council, a government body in charge of supervising the judiciary branch.

At local level, each federative state has its own judiciary branch for matters reserved not to the federation but to local state government. Each local judiciary branch shall be integrated in accordance with local laws and provisions.

General: Lobbying activities are regulated in the rulings of the House of Representatives and of the Senate. The nature of these regulations result from an administrative procedure; in this specific case every state has its own House of Representatives, consequently every state has it own lobbying regulation.

All individuals interested in conducting lobbying activities must register in a lobbying registry valid for each legislature. The acceptance of any gift by lawmakers from lobbyists is strictly forbidden and shall be punished in accordance with the General Law of Administrative Responsibilities, and with the criminal code.

In order to procure transparency, all lobbying documents shall be published in the corresponding Congress’ chamber web page. Also a non-profit association named PROCAB is deeply involved in lobbying activities. PROCAB is in charge of registering all working lobbyists in Mexico (lobbyists may affiliate or may not, it is not mandatory) in order for them to procure events, courses or any other activities that may contribute to their effort of lobbying on behalf the interests of their clients.

Definition of Lobbying: Pursuant to article 298 of the Senate’s Ruling, lobbying is defined as the act of attempting to promote third parties legitimate interests, before Senate’s bodies and commissions, or before specific senators, with the purpose of influencing their decisions.

Article 263 of the House of Representative’s Ruling provides a similar definition to the aforementioned one.

Registration and other disclosure: It is mandatory to anyone who wishes to carry out lobbying activities to register in a specific lobbying registry (at the beginning of every legislative term).

This registration shall be published every six months in the Parliamentary Gazette and throughout the website of the House of Representatives. The registration will only be valid throughout the correspondent legislative term.

Activities subject to disclosure or registration: None of the communications need to be disclosed or registered before any authority or disclosed to the chambers.

Nonetheless, in terms of article 266 of the House of Representatives’ Ruling, all lobbying documents related to legislative proposals, minutes, projects and any other acts or resolutions issued by the House of Representatives shall be registered in a lobbying file. These documents must be published on the website of the House of Representatives for information and transparency purposes.

Entities and persons subject to lobbying rules: All parties involved in lobbying activities (no matter if they lobby on behalf of themselves or for third parties, including non-profit entities) are subject to Mexican lobbying regulations. There are no thresholds for registration; all lobbyists must register in the applicable registry.

Lobbyist details: Anyone who wishes to practice lobbying activities shall provide the following information:

• full name and a valid official ID;
• proof of address; and
• Congress committees or areas of interests in which the lobbying activities will be practised.

Content of reports: As mentioned before , all lobbying documentation related to any legislative proposals, minutes, projects or any other acts or resolutions issued by the Congress must be submitted and published for information and transparency purposes.

Financing of the registration regime: Although free of charge, the registration system is funded by the economic prerogatives assigned to the Congress of the Union, in the National Budget for Income and Expenses.

Public access to lobbying registers and reports: All lobbying documentation related to legislative proposals, minutes, projects and any other acts or resolutions shall be registered in a lobbying file, and published in the House of Representatives’ web page. (www.diputados.gob.mx).

Code of conduct: Currently, there is no specific code of conduct that may apply to lobbyists and their practice.

Media: There are no restrictions to limit commercial interests’ ability to use the media to influence public policy outcomes. However, the Constitution does limit the time that the different government institutions shall allocate to radio and television broadcasting.

General: All political parties are financed by public funds provided by the INE, which establishes how will these funds are distributed according to their specific activities.

Registration of interests: All political parties are public entities that must be registered as such before the INE, in terms of the General Law of Political Parties. In terms of article 72, all political parties must report all incomes and expenses for their ordinary activities. Among other interests, political parties must report incomes and expenses regarding the following activities:

• all campaign actions in electoral processes;
• internal expenses for candidate selection;
• personnel salaries, expenses for leasing of assets, stationery expenses, electric and fuel consumption expenses and travel expenses; and
• institutional propaganda expenses.

Contributions to political parties and officials: Since political parties are financed by public funding provided by the INE, in order to avoid corruption, political contributions or any other disbursements to political parties or officials are not permitted.

Sources of funding for political campaigns: Campaigns for legislative positions are financed by public funding. Non-public fundraising is not allowed. The INE establishes how the funds will be distributed, as well as the restrictions and limitations that every political party should mandatorily adhere to with respect to the funds provided. All expenses should be reported. All political parties must provide the INE with the corresponding invoices of every expense incurred with connection to the corresponding political campaign. This report must be sent once the campaign is over.

Lobbyist participation in fundraising and electioneering: There are no special restrictions or disclosures that may apply to any of the registered or non-registered lobbyists (entity or individual).

Independent expenditure and coordination: Political campaigning is regulated equally for both independent campaigns and political parties’ campaigns.

Individuals or groups not directly related to any of the campaigns may support or oppose such campaigns; however, this type of activity will only be appreciated as opinions of those who intend to support or oppose either to the political party or specifically the candidate.

Likewise, there are no limitations regarding the coordination of the political campaigns, the coordination relays internally. Personal coordinators shall establish their own internal proceedings for managing and controlling the campaign. The candidate’s staff shall oversee all activities.

The same rules apply for a registered lobbyist, a non-registered lobbyist and individual that may participate in the candidate’s campaign.

Gifts, travel and hospitality: Pursuant to the General Law of Administrative Responsibilities, and to the National Anticorruption System (SNA), which was published in July 2016, all public officials shall refrain from demanding, accepting and obtaining any kind of improper gifts, treats and handouts with respect to their activities. This prohibition is also applicable including to their immediate family members, all individuals with whom the public official maintains personal or professional relationships, as well as the public official’s business partners and corporations of which the public official is a part.

The above-mentioned limitations apply to all public officials; there are no exceptions. Also, there are no exceptions for the giver, if he or she is a registered lobbyist, lobbyists’ client or a commercial enterprise.

There is no difference with regard to any political parties as well.

Anti-bribery laws: There are no specific laws that regulate anti-bribery in Mexico. However, the General Law of Administrative Responsibilities and the SNA rule and regulate all activities that may arise from any kind of bribery committed by or towards any public officials.

The SNA general principles and provisions are contemplated in article 113 of the Constitution, which make the SNA the coordination instance between the authorities of all government bodies for the prevention, detection and sanction of acts of corruption.

Revolving door: Public officials are not allowed to practice any lobbying activities during the term of their office. This prohibition also applies to their immediate family members.

Prohibitions on lobbying: Although there are no limitations or restrictions on engaging in lobbying activities, any infringement of the lobbying activities legal framework shall be punished according to the applicable law.

The suspension or revocation of the lobbyist’s registry may proceed if the lobbyist fails to certify and prove the legitimate origins of the information provided to any member of Congress.

Recent cases: Recently there have been no high-profile cases in Mexico regarding lobbying. Nonetheless, the INE is the only authority entitled to issue resolutions regarding the financing of the political parties and their campaigns, the latter in order to ensure compliance with principles established in the Constitution.

Remedies and sanctions: There are no remedies or sanctions for those who fail to properly register as a lobbyist, other than the prohibition on undertaking lobbying activities.

Updates and trends: Recently, Morena, Mexico’s largest political party presented an initiative in the Senate to regulate lobbying activities.