Preferential lobbying: a scourge on our democracy (Part 4 of 4)

Feb 18, 2021

Preferential lobbying is endemic to “modern” politics. There are no easy fixes, but democracy will continue to wither unless the root causes are tackled. We need to start with amending constitutions. Although this is not easy, innovative constitution building is happening around the world.

In summary, there are nine conditions that allow or enable preferential lobbying to occur:

  1. Preferential access to decision makers
  2. Government decisions made in private
  3. Low subject knowledge of ministers and officials
  4. Few restrictions on political party funding
  5. Availability of patronage
  6. An effective choice of two parties for government
  7. A politicised judiciary
  8. No direct or participative democracy
  9. Weak checks and balances on government decisions, especially the lack of independent feedback

A register of lobbyists does not stop preferential lobbying. These have had minimal effect wherever they’ve been used – including in Australia. It is a response to the cry that ‘something must be done’ but ensures nothing does. A register combats none of the nine conditions listed above.

Some of the answers are obvious: strict limitations on political party donations, removal of patronage, and application of proportional representation. But simply passing a law on each is no guarantee of their permanent termination, since the next government can reverse that law. The mission critical rules for governments and parties have to be put high up on a shelf in politically tamper-proof boxes. That shelf is termed a constitution.

Constitutions contain the laws – or meta-laws – for the ways democracy operates, laws are made, governments and executives work, and political parties and politicians behave. If a government can change a notional constitution then it is not a constitution.

This is what is happening around the world in those jurisdictions with flaky constitutions and authoritarian leaders, most recently in Hungary, Turkey, India and the Philippines to name a few. Some constitutions provide some protection from the power-obsessed through requiring super majorities of both houses. But equally, such provisions can lead to stasis as in the US, where a shifting political minority obstructs every amendment.

A true constitution is the set of rules and institutions agreed by the people for how democracy and their government will work. It is owned by the polity, and includes open and balanced means for its update and approval as in Switzerland.

Into the constitution must first go:

  • Limitations on political party and candidate donations, direct and indirect. The limit must be sufficient to prevent any influence.
  • An effective form of proportional representation alongside an independent institution to govern election spending, electoral boundaries, voter registration and eligibility.
  • The elimination of patronage by government. Honours are a social instrument to be assigned to an independent institution.
  • An independent judiciary.

Next are effective checks and balances on decisions of government. At present, the lobbyist can rely on their preferences for action becoming concealed in the wall of political noise. This has many ramifications, but feedback represents a strong check through exposure – a form of institutional police officer waiting round the corner at the end of the road. Thus the outcomes of a new regulation would be monitored, publicly. If found to be unjustified it would be abandoned or reconsidered. Such an arrangement must be included in a constitution as a fourth separation of powers.

Feedback comes in many forms. It is always against purpose, or the point of a governmental act. For example, the purpose of fish quotas is not, of itself, to limit the quantity of fish caught but to produce sustainable fish stocks. The purpose of biomass fuel is not, of itself, to replace fossil fuels but to reduce greenhouse gas emissions overall.

Typically, current constitutions include checks and balances for government decisions, through parliamentary or congressional committee scrutiny. A new law is usually subject to extensive scrutiny. But most decisions are not laws, and avoid formal scrutiny. Making decisions that require, for example, the explication of how it is to be implemented, whether those affected have had their views equally at the table, and what a systemic perspective reveals, would improve many of them and their effectiveness in action.

Such a systemic view would embrace multiple perspectives and necessarily open it up to input beyond a few ministers and officials, thus eliminating preferential access, opaque decision-making and limited knowledge. Forms of representation matter – the German and NZ models deliver more diverse perspectives. Despite proportional voting, electorates can be dominated by muted voices and choices in two-party politics, as in Australia. As Gregory Bateson might have said, these fail to deliver the ‘differences that make a difference’ unless citizens organise – as in Voices for Indi. Archaic parliamentary procedures and the lack of external expertise on parliamentary committees (as in Scotland) preclude diverse perspectives from operating in public policy formulation.

The fifth separation of powers – or the citizen branch – provides for some local, regional and national decisions to be taken through a process of notification of a problem or situation of concern, with open deliberation through incorporating knowledge, data and opinions (using, when needed, a citizens’ assembly or convention). This process then informs a referendum, which would be binding. In Switzerland, California, Ireland and elsewhere, this is a long-standing and established practice. It works. It is the modern form of Athenian democracy, in which lobbyists and other influence peddlers are marginalised.

Amending constitutions is not easy by design. In Australia there has been no successful amendment since 1977. The process is so onerous as to almost ensure this. But this has left many jurisdictions with a system of governing technology that is a century or more out of date.

Hardly surprising then, that so much goes wrong. People would not accept old medical practice for, say, brain surgery. We should expect the same for our democracy – starting with the constitution.

It follows that first the Australian constitution must be amended as to how it is amended. This will take hard politics – campaigning, talking, persuading, and applying public pressure on politicians and political parties – followed by a form of on-going ‘systemic inquiry’, as part of a shift to more participative and direct democracy designed for the on-going collaborative, social learning that is needed when human-induced climate change means there is no stationarity, no certainty.

Preferential lobbying has us all in a chokehold of inequality in power, wealth and well-being and the planet is progressively being ruined. Once the relationship between a constitution and lived experience is understood, then all those organisations and individuals – and there are many – campaigning for substantive change but often for a single issue, can combine and direct all their resources at this “meta-obstacle”.

The remarkable effort by a diverse coalition of interests to ‘save the American election of 2020′ by making the American governance system work to serve citizens is testimony to what will be needed.  But as any sportsperson knows the rules of the game whilst necessary are not sufficient – it is also how the game is played that matters.  When politicians are consistently experienced as authentic, compassionate, and concerned with the whole society then we will know we have some of the right rules.

Innovative constitution building is happening around the world. Our system of governing is a merely a human invention that can be deconstructed and reinvented. What’s stopping us?

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