discursive politics and the role of politicians I

Politics is a discursive process. At its heart the process consists of actors in the political system who take up problems/ issues, which are dealt with in other subsystems such as the economy, and frame it as a political problem. In doing so, a political debate is launched in which the political problem is discussed, or to be more precise, solutions for the political problem are discussed. Since a politician can only to a certain extend control the progress of such a debate, and is most probably not an expert, who can propose a solution for the problem, taking part in the debate is a politicians main interest. Given his role in determine the political systems response to the political problem the primary concern of taking part in the debate is worrying for anyone who is affected by the societal problems implication and would like to have it fixed asap. This is all the more relevant if we take into account the fact that there are usually more than one proposed solutions to a political problem. Each of the solutions might be favoured by different actors who may or may not themselves take part in the political debate.

Recap:

• Politicians frame political problems in order to debate a solution
• A politicians main concern is to take part in such a debate
• Affected actors would like the problem solved
• There are more than one solutions to a given problem, and those solutions have different effects for actors
• Politicians are in charge of choosing a solution

a response, part III / ETI

Response to the “European Transparency Initiative” as presented by the European Commission on May 3, 2006

Response to Section II “Transparency and Interest Representation (Lobbying)”

Question 3
Question 4
Final Recommendation

. 4

Question 3

Do you agree to consolidate the existing codes of conduct with a set of common require­ments? Who do you think should write the code?

Reviewing the current situation of the various “codes of conduct” adopted by umbrella organisations of professionals in Brussels, the Green Paper states that:

Up to now no cases of misdemeanour have been reported in the context of these volun­tary codes of conduct. Another important point to note is that only consultants adhere to such codes. Neither lobbyists who are permanent employees of interest groups nor other groups of interest representatives who occasionally engage in lobbying activities (e.g. law firms and think-tanks) fall within the scope of such voluntary codes of conduct. Com­pared to the whole lobbying community in Brussels, the coverage of the voluntary codes has consequently been limited. Furthermore, as the current system relies on self-disci­pline it appears necessary to consolidate the existing codes and put in place a common enforcement and sanction system trusted by all. This could include a common code of conduct, applicable to all lobbyists, monitored by a special umbrella organisation and possibly coupled with a Commission-led registration system. It has also been suggested that the EU institutions should be willing to impose formal sanctions on any lobbyist breaking the code of conduct.

Since a registration system needs to encompass all actors involved in lobbying the Euro­pean institutions its inherent principles for consultation and participation are the basis upon which a common set of minimum requirements has to be built.

Because the participation of civil society in decision-making processes delivers mutual benefits to all participants, we agree that it is an important task to formulate those princi­ples and minimum requirements in the format of a common code of ethics.

Such a code of ethics would equally apply to all actors involved. It should on the one hand relate to staff regulations within the institutions and on the other hand to codes of conduct of the respective associations or umbrella organisations.

The process used to develop a common code is as important as the code itself. A review of the codes developed by the different professional societies (AALEP, SEAP, EPACA)

could be as useful as a summary of requirements derived from staff regulations and con­sultation principles to provide a starting point.

A committee of practitioners from all sides should then be summoned to formulate a common code of ethics which in turn could then be incorporated into the different codes of conduct. A distinction between code of ethics and codes of conduct is of major impor­tance, because the overall ethical principles of the collaboration between institutions and civil society need to be uniformly accepted. While codes of conduct, although to be writ­ten within the guidelines of the code of ethic, may be specified and tailored to serve dif­ferent groups of actors who might have a different self-conception of their respective role in the process.

Such a code of conduct should in our view among other things demand that lobbyists:

• specify the identity of his/her clients and the goal of their actions to the EU public office holder;
• do not encourage an EU public office holder to disobey the rules of conduct he/she is expected to observe;
• avoid putting undue (exaggerated, abusive) pressure on an EU public office holder;
• ensure the accuracy and validity of the information given;
• respect the public’s right to have correct information in any of its communication aimed at influencing public opinion;
• avoid making false or misleading statements to an EU public office holder or lead anyone into error or purpose;
• take the public interest into account when making statements;
• act with professionalism, honesty and integrity;
• avoid placing himself/herself in a conflict of interest or representing clients with
• competing or divergent interests without the permission of the people whose inter­ests are at stake;

Question 4

Do you agree that a new inclusive external watchdog is needed to monitor compliance and that sanctions should be applied for any breach of the code?

With regard to our views on question 3, the answer to questions 4 needs to be qualified.

First of all, for a code of ethics, monitoring compliance is difficult since un-ethical ac­tions are not necessarily apparent. Furthermore, the proposed code of ethics serves as an overall ethical standard for all conduct and therefore for the different codes of conduct of different groups of actors and stakeholders.

Thus a distinction is needed:

1. Compliance with the code of ethics…

…needs to be “monitored” by each and every person involved on either side of civil society consultation and participation in the political process of the European Union. In cases of unethical behaviour sanctions can only be applied by a process of “naming and shaming”. Since his or her reputation is the prime asset for each lobbyist, such a sanction mechanism is sufficient and may be strengthened by the establishment of a pillory. The pillory should be governed by an impartial and independent authority, which ensures that denunciations are only published if a complainant reveals his/her identity. The same would also apply for officials, who might face press coverage as well.

2. Compliance with the provisions of the registration system…

…needs to be monitored by the management authority of the registration system accord­ing to applicable regulations and connected services. Sanctions need to be defined by the institutions which use the registration system. Enforcement of sanctions also depends on the service and/or right which is granted upon registering and thus can only be done by the respective institution. A close cooperation between the institutions and the managing authority is therefore needed. Albeit, sanctions can only be enforced by the institution affected by the violation of the provisions.

3. Compliance with the code of conduct of a certain group…

…needs to be monitored by the respective group itself. Within the proposed framework, self-regulatory system of monitoring and sanctioning are sufficient. The code of ethics and the registration system provide for a sufficient behavioural corset for anyone who wants to be a reliable and responsible participant in the political process. Group-based codes of conduct thus are of great importance for the self-conception of different groups so that monitoring and credible enforcement mechanisms are in their own self interest. In addition groups should be encouraged to document their rules and procedures for public scrutiny and comparison in a common location, such as the online registration database or a related webpage run by its management authority.

In addition to the hitherto stated views, we would strongly support the constitution of a new impartial independent and non-profit organisation committed to enhance transpar­ency and democracy.

As mentioned in the introduction, we regard the “European Transparency Initiative” as a valuable starting point to improve the public image of our profession. But it is just that – a beginning.

To expect the Commission to be able to solve this important problem borders on wishful thinking. How can the actors involved with representing interests raise the public percep­tion of their business solely by being subjected to governmental regulations?

As valuable as the current discussions among stakeholders are now is the time to go one step further. Whatever the results of the consultation and indeed what the ETI will look like in a few years, there is a clear need for something lasting and firmly based within the European civil society: an impartial independent non-profit organisation committed to enhance transparency and democracy in the European Union.

We therefore urge every citizen committed to legitimacy of interest representation toward political institutions and the transparency of the political process to join our effort to es­tablish a European Foundation for Transparency and Democracy (EFTD). And we call upon the stakeholders to support the EFTD in its endeavour to

• support the European integration process by raising awareness for its uniqueness and complexity;
• serve the European citizens by advancing the knowledge about governance struc­tures and processes on the European level;
• establish a civil society Foundation from citizens for citizens, independent from the EU institutions;
• build a permanent body to address issues of transparency in the EU in an impartial independent manner for European citizens.

The EFTD’s activities should be underwritten by donations and endorsed by the Euro­pean institutions. One of the first activities of the EFTD should be the launch its web page as a multi-lingual portal serving as a gateway for anyone who seeks information about lobbying in the European Union.

Initially the portal should pursue a two-tier approach: directory & information portal. It should serve as premier of source of information about EU-level interest mediation writ­ten by scientists, practitioners and stakeholders, all of which will be subjected to an open system of peer-review via a forum application.

The directory should contain a structured overview and short abstracts for the large amount of web resources of information concerning the process of interest mediation in the EU, both from within and outside the EU institutions.

Final Recommendation

Lobbying activities should be public, transparent and, above all disclosed in a central register.

We do not see any problem in opening up the activities of lobbyists to public scrutiny.

A coherent multilevel regulatory framework can serve as a guide to lobbying for citizens and citizens groups, thus contributing - as a real catalyst – to opening up and broadening access to law-makers.

We recommend an approach which sees regulation as the beginning of a process which will help to reinvigorate democracy to the extent that it widens participation and demystifies commercial lobbying activity.

A centralized register would provide a public record of information about people and organisations shaping public policy at EU level. At present, the principles of openness and transparency that the European Institutions embrace lack a coherent concrete form and the present registers and databases are insufficient.

A register of lobbyists and their clients would be a very effective way of auditing the activities of outside interests who seek to influence policy making. One of the recurrent problems in trying to understand the nature and scope of lobbying activity has been the absence of any reliable data on what lobbyists actually do, and what resources are de­voted to influencing policy.

The drawbacks of regulations are, in our opinion, more imagined than real. There is evi­dence from the United States and Canada that registration systems can be administered easily and efficiently, especially in electronic form, which has the advantage of being relatively cheap and accessible. There certainly is a concern in some places (such as the US) that the systems of regulation in place are subject to loopholes and that corporations and lobbyists have found ways to get round them. In our view this is only an argument for having more, not less, effective regulation.

For a central registration scheme to have the full confidence of the public, the European Parliament, and the lobbying community, it should be administered by an independent authority such as the European Ombudsman.

The fundamental issue at stake here is the question of our democracy and how it operates. That democracy must be seen to be transparent and open and anyone who wishes to dis­cover the identity of a person lobbying in favour or against should be able to do so by consulting the register of lobbyists.

Lobbying is a good aspect of the political process and it must be regulated. Unfortunately the Commission Green Paper shows only inconclusive commitment to introduce real legislation in this area. In all professions people do their business openly and they are subject to regulation. Part and parcel of the development of any profession is that it goes down the path of regulation.

We are not advocating draconian measures to demonise or penalise people engaged in the lobbying profession nor are we proposing burdensome bureaucratic measures. What we are proposing is to put in place structures and principles of conduct.

Professional lobbyists have nothing to fear about revealing who they are, whom they rep­resent and why they are lobbying. It is after all both in the public interest and for the future development of the profession.

List of signatories

a response, part II / ETI

Response to the “European Transparency Initiative” as presented by the European Commission on May 3, 2006

Response to Section II “Transparency and Interest Representation (Lobbying)”

Question 2

Do you agree that lobbyists who wish to be automatically alerted to consultations by the EU institutions should register and provide information, including on their objectives, financial situation and on the interests they represent? Do you agree that this information should be made available to the general public? Who do you think should manage the register?

In order to achieve “effective and proportionate” measures in the field of transparency we consider a registrations system as an indispensable tool. However, since such a system is aimed to (1) provide transparency for European citizens of a (2) highly sophisticated sector of policy experts working on very specific topics, a consultation alert service seems to be an inadequate incentive. Anyone who is an expert working in a policy field certainly doesn’t need to be alerted to a consultation published on “Your Voice in Europe” while interested citizens already appreciate the alert service offered in order to keep track of policy developments in the European Union.

A register therefore poses the important question “How to get people to register”. According to the Commission’s proposal there would be:

A voluntary registration system, run by the Commission, with clear incentives for lobby­ists to register. The register would include automatic alerts of consultations on issues of known interest to the lobbyists.

The question is: Can a voluntary registration system do the job?

To consider whether such a system can or cannot do the job requires a clear understand­ing of what the job is, as well as how existing registration systems work. The European Commission states the following as an essential component of a basic framework of understanding of the relation between EU institutions and lobbyists.

When lobby groups seek to contribute to EU policy development, it must be clear to the general public which input they provide to the European institutions. It must be clear also who they represent, what their mission is and how they are funded.

It follows that the question of which information must be provided in a registration system is probably more important than the question as to which incentives are used to get people to register. Secondly aiming at enhancing transparency in lobbying means that a registration system is not a goal in itself, whether it is compulsory or not.

Therefore a legitimate public interests of transparency needs to be balanced with a legitimate right of privacy for stakeholders. Certainly those considerations may be ad­dressed with carefully worded information requirements. But even unfounded criticism toward built-in loopholes will undermine the purpose of the registration system.

A lasting assessment of which information need to be provide for the general public needs to be based on the Commission own requirements. By setting itself high standards of transparency in decision-making each Commission official has legitimate needs to know who is representing which interests. Those needs should be met in a registration system as a minimum requirement of information.

In order to keep such a registration system updated, each time a stakeholder participates in a consultation the information given should be reconfirmed and/or updated if neces­sary.

More importantly, since the registration system and its information requirements result from the Commission’s own commitment to transparency in policy making, it cannot be entirely voluntary to provide the respective information if one wants to participate in the political process. The responsibility of which comes with participation commands re­sponsible stakeholders to provide the requested information. Thus a registration system would be the basis upon which access to the commission can be obtained. In turn it lies in the Commission’s own responsibility to live up to its own standards and to ensure that stakeholders are registered in a voluntary registration system.

Since the target of lobbying is for the most part the European Commission and the Euro­pean Parliament, this means that we would have two registration systems: one applying to the European Commission (voluntary registration system) and another one applying to the European Parliament (non-voluntary registration system, since it is a condition for obtaining a badge)? Do we need two distinct registration systems?

Regarding the European Parliament: It is true that a register of accredited lobbyists is published on the EP website. As the Green Paper remarks it is simply an alphabetical list and it provides only the names of the badge holders and of the organisations they repre­sent. It gives no indication of the interests for which a lobbyist is acting.

It is our view that one registration system should cover ALL European institutions as well as ALL actors involved in lobbying those institutions. Therefore an encompassing registration system, combining the CONNECS database approach and the accreditation system of the European Parliament, is the only credible option.

A central registration system would provide for a number of advantages: Stakeholders and officials alike would have an important information resource, to say the least. And it could provide the public with important information about the political process and in­crease public confidence in the EU institutions.

Moreover, an encompassing registration database does not mean every entry carries the same amount of information, nor does it mean that every information is needed from each person or organisation registered. Information provided would relate to a specific pur­pose, e.g. obtaining an entry badge for the Parliament building, submitting a contribution to consultation, etc.

Objections to a statutory register of outside interests tend to focus on the difficulty in defining lobbyists and the impracticality of maintaining a register of outside interests. If a statutory register of lobbyists includes all those who lobby, then the difficulty of dis­tinguishing between different types of lobbyists (commercial consultants, in-house cor­porate, civil society, voluntary sector) becomes less problematic.

There is also evidence that these systems are practicable and they can make important information available to the public cheaply and effectively by electronic information gathering, storage and retrieval, providing easy access to all who wish it. It is inaccurate to claim that all statutory regulation is cumbersome and ineffective. In fact compared to the current situation of different databases and the need to state information over and over again, a central registration system can be expected to simplify the life of stakeholders.

A central registration system with a reachable and comprehensible user-friendly online database would help to improve the transparency of governance and accessibility of the EU institutions. But a registration system is not a panacea for all problems stated in the Green Paper. It is only the first step in ensuring sound standards in public life.

Given the importance of a registration system for the European institutions the question who should manage it is very important. Since it provides a dual-use function with of­fering valuable information for the institutions and the public, reliability and impartiality are the most important management principles. The information gathered and provided needs to be accurately stored and traceably logged so that changes and developments can be followed.

In order to guarantee the usability for the European Parliament and the European Commission a certain level of collaboration between both branches of the European polity is needed. Because the primary function of the registration system is to grant ac­cess to the decision-making processes on the European level the trust of citizens in the impartiality of a managing body is also needed. How should a governmental institution regulate the access to itself and building up the citizens trust?

Therefore a compromise needs to be found in order to allocate the management authority to neither of the two institutions themselves, but to a third one which enjoys the confi­dence of both the public and the institutions. We would endorse the installation of an independent managing body installed under the auspices of the European Ombudsman.

a response, part I / ETI

As you know the European Commission held a public consultation on its European Transparency Initiative (ETI), which has been open until the end of August. Although I wasn't interested in participating in the consultation myself, I worked together with a friend of mine to draft a response to the questions tabled in the green paper.
We answered only the four questions in section II of the green paper and included some preliminary remarks before doing so:

Response to the “European Transparency Initiative” as presented by the European Commission on May 3, 2006

Response to Section II “Transparency and Interest Representation (Lobbying)”

Preliminary remarks
Question 1

. 2

Preliminary remarks

In the introduction to its Green Paper the European Commission stresses its commitment to the participation of civil society organisations and stakeholders in the policy process on the European level.

With regard to the openness as one guiding principle it states that:

At the same time, the Commission has stressed the principle that “with better involvement comes greater responsibility”. Relations between the Commission and interest representa­tives must be open to outside scrutiny. Therefore it was considered timely to review the framework for activities of interest representatives and seek views on the need for new ini­tiatives.

We fully support the notion of responsibility which comes along with participation. As signatories of this position paper we strongly believe in the value of transparency.

Despite the fact that most actors involved in the current debates increasingly emphasise the importance of interest representation for the political process, most citizens perceive it as backroom procedures illegitimately altering policies for the benefit of powerful spe­cial interests. To address this discrepancy between self-assessment and public perception, the Commission’s effort to regulate its relationship with interest groups can be a helpful exercise and ought to be supported.

As signatories of this position paper we agree upon the following basic views with regard to the subject of the Green Paper:

1. We strongly believe in the legitimacy of lobbying and its impossible dissociation from the democratic process. Trying to influence the content of EU public policies or attempting to gain advantages from an established EU programme is a fundamental right based upon two basic EU freedoms: freedom of speech and freedom of association.

2. We strongly believe that for the sake of transparency ALL lobbying organisations (lobbying- public affairs consultants, management consultants and accountants, lawyers, NGOs, think tanks, corporate and trade associations) trying to influence EU policy makers and the content of EU public policies must be treated on an equal footing.

3. We accept that people have a right to know who is talking to policy makers and which organisations and individuals consider themselves stakeholders in a certain policy do­main.

4. We would support the European Commission in an effort to extend the principles and rules of conduct under which its own staff works with other participants in the policy formulation and decision-making processes, notably those for the purpose of the Green Paper defined lobbyists.

Question 1

Do you agree that efforts should be made to bring greater transparency to lobbying?

Yes. A higher level of transparency will be beneficial for both the political process and the profession. The European Transparency Initiative points toward the right direction for it is the complexity and distance between Brussels and European citizens which lies at the heart of alienation and unfounded anxiety towards the EU.

Therefore while one has to applaud the Commission for emphasising the already achieved transparency of governance, existing measures need to be fine-tuned in order to draw the curtain for the often misinterpreted process of lobbying the European institutions.