Legitimate influence as an expression of participatory democracy.

It is undeniable that we are living in a scenario of increasing appreciation for public ethics and corporate integrity, where the boundary between legitimate influence and influence peddling has become one of the most relevant issues for those working in Institutional and Governmental Relations (IGR).

On the one hand, the representation of interests is inherent to participatory democracy, in which companies, associations, and civil society organizations have the right to engage in dialogue with the State and contribute to the formulation of public policies. On the other hand, the misuse of influence to obtain undue advantages constitutes a criminal, administrative, and ethical offense.

This article aims to analyze the legal line that separates legitimate institutional action from criminal wrongdoing, in light of Criminal Law, the Anti-Corruption Law (Law 12.846/2013), the Conflict of Interest Law (Law 12.813/2013), and the parameters of corporate integrity and compliance. Thus, it seeks to demonstrate that, more than criminalizing dialogue between the State and the private sector, it is necessary to institutionalize legitimate influence, making it transparent, ethical, and auditable.

In Brazil, the term "lobby" still carries a pejorative connotation, often associated with corruption. However, in established democracies, such as the United States and countries of the European Union, lobbying is considered a legitimate activity of representing interests, essential to the democratic process.

The Integrity Guide for the Public Sector (CGU, 2021) defines lobbying as a legitimate activity of representing interests "provided it is guided by transparency, equality, and the absence of undue benefits."

In the North American model, for example, the Lobbying Disclosure Act (1995) requires public registration and periodic reporting of lobbying activities . The European Union, in turn, through the Transparency Register , ensures that any citizen knows who is trying to influence public policies and for what purposes.

Therefore, although not yet at the same level as first-world powers, Brazil is making timid progress in this direction. A clear example of this is Decree No. 11.501/2023, which established the Registry of Representation of Federal Interests, and the initiatives of the Comptroller General of the Union (CGU), through the e-Agendas portal , represent an important step in building a transparent public dialogue model.

It is important to highlight the clear distinction: lobbying operates openly, publicly, and institutionally, while influence peddling operates in the shadows, seeking personal and undue gain.

Criminal framework and classification criteria

In this sense, the legal system, in article 332 of the Penal Code, defines influence peddling as: "Soliciting, demanding, charging or obtaining, for oneself or for another, an advantage or promise of advantage, under the pretext of influencing an act performed by a public official in the exercise of their function," with a penalty of imprisonment from 2 to 5 years and a fine.

This type of crime seeks to protect administrative morality and public trust in the impartiality of the State, being considered a formal crime, consummated with the simple solicitation or promise of an advantage, even if the influence does not materialize.

Criminal law doctrine clearly distinguishes the legitimate exercise of institutional representation from influence peddling through three main points: purpose, transparency, and undue advantage. In practical terms, this would be objectively the following:

• Purpose: Lobbying aims to influence public policies for the benefit of specific sectors or the community; trafficking seeks profit or individual advantage.
• Transparency: lobbying is documented and takes place within institutional channels; influence peddling occurs covertly.
• Undue advantage: trafficking presupposes payment or promise of payment; legitimate representation is based on technical and public argumentation.

As Cezar Roberto Bitencourt (2023) explains, “the core of the illegality lies in the commercialization of influence and not in the influence itself, which can be legitimate when exercised with transparency and for a public purpose.” And this distinction is fundamental to protecting both the public interest and the ethical conduct of government relations professionals.

Conflict of interests and ethical-legal safeguards 

Between legitimate influence and criminal wrongdoing lies a gray area: the conflict of interest. Law No. 12.813/2013 regulates situations in which the exercise of private activities may affect the impartiality of a public servant or former public servant, with the aim of preventing privileged information, obtained during the exercise of their duties, from being used for private benefit (the so-called revolving door).

Article 5 of the aforementioned law expressly prohibits former public officials from providing services to individuals or legal entities with whom they have maintained a "relevant relationship" by virtue of their position, in addition to requiring a quarantine period, generally of six months, before they can work for companies that have relationships with the agency where they worked. This type of rule is essential to preserve the integrity of public decisions and prevent the misuse of influence networks.

From the perspective of the Law on Administrative Impropriety (Law 8.429/1992, as amended by Law 14.230/2021), a conflict of interest may constitute a violation of the principles of legality and morality, even without illicit enrichment. For the RIG professional, this means that any interaction with public authorities must be mediated by criteria of transparency, traceability, and equitable access.

Furthermore, Law No. 12.846/2013 (Anti-Corruption Law) represents a watershed moment in the regulation of relations between companies and the State, as it provides for the objective liability of legal entities for acts harmful to public administration, reinforcing the importance of integrity programs.

In the field of government relations, all interaction with the public sector must be conducted in a documented, auditable, traceable, and proportionate manner. This means that meetings need to have formal records, with agendas and minutes properly filed; communications must be verifiable and auditable; representatives need to be clearly identified to ensure transparency about who is defending whose interests; and, above all, it is necessary to avoid any granting of undue advantages, even symbolic ones.

The challenge of institutionalizing legitimate influence in Brazil

 In this context, companies and associations committed to integrity have developed specific codes of conduct for institutional integrity, incorporating hospitality policies, rules for managing conflicts of interest, and whistleblowing channels, in order to ensure that institutional dialogue takes place within ethical and legal parameters.

In short, the historical lack of a general law regulating lobbying in Brazil has contributed to the confusion between legitimate influence and influence peddling. Thus, the challenge is not to eliminate influence, but to qualify it. After all, when exercised ethically and transparently, lobbying is an instrument for democratic improvement and the formulation of more representative public policies.

References

BRAZIL. Penal Code. Decree-Law No. 2.848, of December 7, 1940.

BRAZIL. Law No. 12.813, of May 16, 2013. Provides for conflicts of interest in the exercise of office or employment within the Federal Executive Branch.

BRAZIL. Law No. 12.846, of August 1, 2013. Provides for the administrative and civil liability of legal entities for acts against the public administration.

BRAZIL. Decree No. 11.129, of July 11, 2022. Regulates the Anti-Corruption Law.

BRAZIL. Law No. 14.133, of April 1, 2021. New Law on Bidding and Administrative Contracts.

BRAZIL. Decree No. 11.501, of May 30, 2023. Establishes the Registry of Representation of Federal Interests.

Office of the Comptroller General of the Union (CGU). Integrity Guide for the Public Sector. Brasília, 2021.

OECD – Organisation for Economic Co-operation and Development. Lobbying and Integrity in Latin America: Building Transparent and Inclusive Decision-Making Processes. Paris: OECD Publishing, 2023.

GRECO, Rogério. Annotated Penal Code. 17th ed. Rio de Janeiro: Impetus, 2022.

BITENCOURT, Cezar Roberto. Treatise on Criminal Law: Special Part. 18th ed. São Paulo: Saraiva, 2023.