Open Policy-Making: Lobbying and Open Regulations

What this is about:

On Friday 20 September 2018 members of the OGP Support Unit held a public consultation session on how we should approach the State of Open Government Report. (For more background and justification, please see here.) For this session, we wanted to find out what the state-of-the-art was on citizen-centered policymaking. We presented our preliminary ideas on how we would deal with this and approach to Open-Policy Making and asked for feedback on the best way to frame this topic, what is missing, and if there are other stakeholders we should talk to.

The purpose of this page is to provide a public space for written feedback for those of you who couldn’t attend the consultation or who would like to make your points in writing.  You can provide comments on the original framing, on the data being used for benchmarking and can suggest case studies to be featured.

What we heard from you:

• Framing: One speaker suggested combining Open Policy making under a broader agenda. In addition to the current approach, OGP should look for minimum requirements on meeting disclosure.
• New research: A colleague from European Center for International Law (ECNL) helpfully explained that OGP as both a pro-civic space organization and an anti-corruption organization should deal with the possible conflicts between lobbying and other human rights. They referred us to the recent research by the Sheila McKetchnie Foundation.
• The consequence of legal definitions: One topic which came up was the difference between “advocacy” and “lobbying.” Some countries define lobbying very narrowly, with countries like Chile or the US limiting the definition to include only discussion of particular legislation or candidates. Others define it widely. CSOs also define it differently, with one being “in the public interest” vs. “the private interest.” Of course, this is an equally sticky set of terms to define. Our colleagues at ECNL said that they are working on a paper which will begin to unpack some of the definitions for these terms. The paper is due later this year.
• Foreign agents rules: Another colleague shared with us the recent changes to NGO law in Pakistan which are modeled on the United States Foreign Agents Registration Act, but which introduce much more restrictive definitions of “agents” and a structure of permissions on funding and activities for CSOs. This article was helpful in differentiating between two superficially similar laws with significantly different implementation regimes.
• Request for cases: Most of the data and case studies on lobbying are from OECD countries. While there is more work on regulatory openness from around the world (rulemaking.worldbank.org) there is less so from non-OECD countries.
• Active case I: The UK case on lobbying is being very closely watched. There is concern on both the side of those in favor of the anti-corruption elements it might bring, but there is also significant concern over the chilling effect it might have on civil society organizations who want to contact policy-makers. Specifically, it dissuaded some organizations from doing policy work and created reporting requirements for some organizations that did not consider themselves lobbying organizations.
• Active case II: Representatives from the government of Paraguay shared their cases. There are currently three versions of the bill in the Congress, the most recent of which has been supported by the business chamber, the industrial union of Paraguay and international support.

How we plan in address/incorporate this feedback:

• It seems like we should become more closely familiar with the UK law. It seems to have drawn up a great deal of controversy within Europe. Perhaps there are some generalizable design principles or tradeoffs which our report can help articulate.
• In that sense, we will need to explore this topic a bit more. We need to balance the “right to participate” with the control of corruption and undue influence. OGP can play a unique role in bringing these communities together to discuss the specific trade-offs and concerns around these issues in the coming year.
• We need to find more non-OECD cases to discuss.
• Who we should talk to: Alter-EU, a group working on the governance of the European Union, Sheila McKetchnie Foundation, and members of the European Union working to advance and revise their internal rules.

Where to next?

• Next, we will update our approach and framing. (What’s currently in the “Thematic Strawmen” document listed above.)
• We welcome your feedback below (in the public comment box) or to our email at research@opengovpartnership.org. We are going to close comments on Wednesday, 31 October. If you would like to talk to us again, please reach out (at the same email) to schedule a phone call.
• For some areas that we still need research, we are going to commission research by partners to help inform the final report.

Thank you to everyone who participated in the consultations during the live sessions and in writing!