ACHIEVING ADEQUATE LOBBYING TRANSPARENCY

From at least a contemporary perspective, lobbying is absolutely essential to the success of representative government. Without information, perspectives and proposals flowing from those who are governed, elected and appointed officials can often only dimly guess at what policies will advance the interests of those whom they are duty-bound to serve. Protection and facilitation of lobbying is, therefore, a matter of vast significance, achieved in varying ways in different legal systems.

However, along with its potential for good, lobbying can also significantly impair the operation and undercut the perceived legitimacy of a governmental system, producing monetary enrichment or other private benefits for public office holders and skewing governmental decision making in ways that undercut attempts to serve the perceived broader public interests at stake in lawmaking and administration. Grappling with such dangers has provoked a variety of legal responses, including, in particular, regimes seeking to insure transparency.

More specifically, transparency in the lobbying context can, at least theoretically, yield a variety of benefits, including the following:

• preventing corruption of officials and the governmental processes in which they participate and disclosure can discourage corruption;
• preventing the appearance of corruption that might otherwise erode public confidence in the integrity of governmental decision making;
• improving the accountability of governmental officials whose actions and the possible reasons for those, once revealed, may mean they are forced to leave office or, at a minimum, change their positions in ways deemed to be more consistent with the public interest as a whole . Access and disclosure of public information is an important dimension of all accountabilities (vertical, horizontal, social and transversal);
• allowing public officials to know who is trying to influence them or others in authority, thereby allowing them to take action to counter influences they deem inappropriate or otherwise oppose; and
• ‘leveling the playing field’ among groups attempting to influence governmental decision making by permitting responses (that is, counter-lobbying) to counteract the efforts of those who might otherwise be able to achieve their aims more effectively ‘behind closed doors’.

Transparency is not always, unfortunately, a good thing. Achieving it can impose considerable economic costs on both the public and private sectors and those costs can deter appropriate attempts to influence governmental decision making. Moreover, depending upon how and where it applies, disclosure can be equally effective in banishing the candor needed for full and frank communications in search of optimal public policy, as well as in preventing, or at least disclosing, corrupt bargains. It can also undercut claims to confidentiality and protection of information (for example, trade secrets) whose legitimacy may be broadly acknowledged.

Accordingly, reasonable people can easily disagree in their respective judgments regarding the appropriate uses of transparency and, even when goals are shared, how much transparency is too much. Not surprisingly, in those legal systems where public disclosure has been adopted as the primary means to control what are conceived to be the primary threats posed by lobbying the government, such disagreements are common and the resulting regulatory systems represent, in large degree, compromises between the extreme proponents of transparency and those who see the need to limit its applicability.

But even where there is agreement that transparency applied to lobbying is an unmitigated good thing and the more the better, implementation issues abound. For example, how much information is in fact usable by the public (or highly motivated sectors thereof) in ways relevant to the purposes of the disclosure regime? Usability criteria, include accuracy, accessibility, completeness, understandability, timeliness and low cost. At some point, the amount of information can mount to the point that it operates more as a burden rather than an aid to understanding. Internet accessibility of databases eliminates the burdens of having to physically search for relevant information; what remain, however, are the challenges of arranging the contents of databases and designing search engines in such a way as to maximize the ability to conduct carefully tailored comprehensive, comparative and specially targeted searches (for example, the  contributions of a particular lobbyist or lobbying entity to a particular politician or political committees that expend money on his or her behalf). Even in legal systems having intricate systems for registration and reporting of lobbying, the data collected may be significantly underutilized or indeed effectively unusable for the purposes for which they are collected.