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:
- Preferential access to decision makers
- Government decisions made in private
- Low subject knowledge of ministers and officials
- Few restrictions on political party funding
- Availability of patronage
- An effective choice of two parties for government
- A politicised judiciary
- No direct or participative democracy
- 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?
Ed Straw is a visiting fellow at the OU’s Applied Systems’ Thinking in Practice group. He was chair of think tank Demos and relationship agency Relate and has been a specialist on government task forces. He was a consultant on both the Conservative and Labour UK government’s public sector reforms and a partner at PwC and Coopers & Lybrand. His research field is the design of systems of governing and constitutions founded on Systems Thinking.
Ray Ison is Professor of Systems at the Open University (UK), an Adjunct Professor in the Institute for Sustainable Futures at UTS, Sydney and a Fellow of the Centre for Policy Development. His book The Hidden Power of Systems Thinking. Governance in a Climate Emergency, co-authored with Ed Straw, was recently published by Routledge.
Comments
5 responses to “Preferential lobbying: a scourge on our democracy (Part 4 of 4)”
I quote: “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.” and
“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.”
Firstly – I love the depth of this radical thinking. So often lacking in P & I contributions.
Secondly – the obvious: if even P & I barely encourages this depth of reasoning, what hope for constitutional reform. Bipartisanship???
Thirdly, if Federal Labor cannot resolve an absolute political contradiction (that its human members are Leftist yet cannot realise their Leftist ambitions because of structural policy and positional bribery from the Right), just how long may we have to wait for implementation of such radical thought?
Especially when informed, if not expert, P & I contributors seem to refuse to comment on this outstanding structural Parliamentary dilemma.
Hi. Being a contributor, I’ll bite.
I’m not clear what structural Parliamentary dilemma refers to.
Nonetheless, starting with infrastructure, some points.
At present Governments, and Oppositions, are not properly observing principles of separations that constrain power. Most clearly the Commonwealth e.g. see posts on ‘urbane transport’.
The primary breaches of separation are:
1. Commonwealth v. State e.g. via funding rorts;
2. Executive v. Parliament e.g. via legislation for non-disallowable delegation to Government.
The non-observation of constraining principles may lead to perceptions of little constraint in practice. And absence of policy direction e.g land transport.
The belief the Commonwealth can directly ‘fund/regulate anything’ leads some to a view it should fund/regulate everything important organisations want.
The absence of Parliamentary constraint leads to opacity and loss of a feeling of accountability. Manifested in secrecy, absence of cost-benefit analyses etc.
My reading suggests beliefs and practices extend beyond infrastructure e.g. Williams (2) was not about infrastructure.
Presumably the Opposition’s ‘me too’ position relates to its past behaviour in Government, its populist disregard of Federation, and expectations one day it will have a turn at the wheel.
The above means an anti-corruption commission, like lawsuits, is insufficient.
It questions long-term merit of further separations – the existing ‘4th separation’, the InterState Commission has been dormant for decades.
Rather, in principle the Senate is the key. Because Constitutionally it is the body charged with enabling lower House accountability and is formed by the people of the States. Ergo the wording of s.96?
Happy – delighted – to be corrected.
Best wishes.
Thanks for a most informative series.
On this post, I would not agree that 3 and 7 are needed for such lobbying. 3, from observation. 7, because i think we differ on what is involved in judicial independence.
Regarding that, in my view a principal defect in the Australian Constitutional is the High Court mainly/only decides cases of severe legal conflict, and does not give binding advice. Think State border closures. Or Minister Dutton spending on city surveillance cameras.
Were that advice available, a significant part of problem 9 would disappear at that level of Govt. at least.
A residual problem of checks and balances is caused by failures of the media (now aka the entertainment).
Another is caused by the Senate, particularly it penchant for passing delegated legislation (which enables Government decisions without Parliamentary review).
As the Senate is elected by what i think is proportional representation, that adds to the doubt in my mind about the merit/simplicity of extending such a voting system to Representatives. Most simply, checks and balances rely on having different sources of power for different authorities. In the case of a Parliament, different systems of voting for the houses. Removal of the Senate, or States, would seem to me to reduce checks and balances.
Many want to ask a lot of the Australian Constitution. Including to include symbolic – things that do matter but don’t legally matter – statements. Not all the requests, referendums, have been open or honest which may part explain Australia’s low rate of constitutional change. Another explanator may be the interlocking nature of provisions.
In my view a start would be for people to get serious about the Senate’s performance.
Thanks again
Best wishes
Gentlemen – a well thought out and well written series.
I would add to your thoughts the following
We need to rid our system of career politicians.
I suggest a maximum of two 5 year terms and an ex-politician cannot act as a lobbyist in any form.
To be pre-selected a hopeful politician should have an IQ of 130, some form of tertiary education (TAFE or University), 12 years experience outside of the political sphere, at least 12 months living and working overseas, demonstrate emotional intelligence and articulate their values and be accountable for them. Following their parliamentary terms they should be prohibited from working in any industry in which they have held a portfolio. If they are so smart and intelligent this should not be a career impediment. Maybe that is the real problem – they are not so smart and intelligent and advance themselves by being deceptive, sly and unaccountable.
Erik
A very thoughtful and analytic piece, thanks, Ed Straw and Ray Ison. You ask: “What’s stopping us?” I think the answer is the lack of leadership amongst the pollies we have under the present corrupt system. Perhaps we need to start with a truly independent and effective integrity/anti-corruption commission with broad powers in order to display clearly the obvious need for constitutional changes.