WHY SHOULD PUBLIC POLICY ADVOCACY BE TRANSPARENT ?

Public perceptions of undue influence peddling, in which special interest groups exercise too much sway over government for self-serving purposes, have led to growing demands for the regulation of public policy advocates and transparency of the policymaking process.

From at least a contemporary perspective, public policy advocacy 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 public policy advocacy is, therefore, a matter of vast significance, achieved in varying ways in different legal systems.

More specifically, transparency in the public policy advocacy 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;
• 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. Among other things, 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-advocacy) to counteract the efforts of those who might otherwise be able to achieve their aims more effectively ‘behind closed doors’.

Transparency, however, 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 advocating 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 public policy advocacy 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?. 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 political contributions of a particular advocate or advocating 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 advocacy , the data collected may be significantly underutilized or indeed effectively unusable for the purposes for which they are collected.

Reviewing advocacy regulatory regimes in Europe, it is evident that some of these systems value transparency only secondarily. The systems are either voluntary or capture only a small part of the advocacy community. The information required of registered advocates tends to be limited in scope, usually avoiding any disclosures of financial activity, and is not easily accessible to the public. For the most part, these regulatory regimes focus more on providing business interests with access to lawmakers than on reducing the potential for corruption. The registration of public policy advocates tends to be a matter of convenience, which means that it is widely ignored when the advocates and business interests believe that they have sufficient access without registration. Most of the disclosure reports contain inadequate information and, with few exceptions among the weaker regulatory regimes, public access to the reports is limited to hard-to-find print records.

Across Europe, several countries are well into legislative deliberations for the regulation of public policy advocates based on goals of reining in corruption and enhancing public confidence in government through full transparency. Much of Europe appears to be turning the tide from weak regulatory regimes into strong systems of advocacy regulation. Although many European governments grapple with the issue of regulating public policy advocates, surveys show that public policy advocates themselves are generally supportive of registration and public disclosure of advocacy activities. In Brussels and across Europe as a whole, public policy advocates overwhelmingly favor creation of a  registry of public policy advocates and applaud transparency of their work. The greatest presumed obstacle to the regulation of advocacy – public policy advocates themselves fighting tooth-and-nail against such regulation– is largely a myth.

More EU public policy advocates express preference for a mandatory system of registration than a voluntary system. There are several reasons why public policy advocates support transparency of their profession, the most often cited reason is to persuade the public that public policy advocacy activity is a legitimate part of the policymaking process, not a behind-the-scenes influence peddling scheme. The public policy advocacy profession in Europe widely recognizes that there is no better way to begin addressing this problem of perception than through transparency.