Note: This article was originally published in Influencing BC Magazine, Winter 2016, Volume 6, Issue 2, and is republished with permission from the author and the publication.
Democratic transparency has moved to a new waterfront over the past few decades. The public’s right to know — and accountability to that public — has become a broader expectation. It has expanded to the regulation of lobbying of those involved in more senior levels of governing, and this wave of reform continues, increasingly, into local governing. This article offers some lessons from Canadian provinces on how to set up a municipal lobbying regulation regime.
What are the alternatives? Five options stand out:
Option One:
None for all – aka, do nothing. There appears no easier response than doing nothing.
Upsides: It is the cheapest, with no immediate financial implications, and it appears the easiest; it is often the governmental default. Changing the public agenda requires overcoming systemic inertia and in-built supports and biases for the status quo.
Downsides: Cheapest is not always best; easiest is often much harder in the long run. The status quo may also miss significant emerging trend lines, such as public expectations on transparency and trust. Doing nothing may have substantial longer term political costs.
Option Two:
One for all – aka, the Quebec Option. Confronted with the prospect of its 1,111 local governments needing local lobbyist regulation legislation, Quebec opted for a one-size-fit-all model: its provincial lobbyist code would apply to all of its municipalities. Other provinces have not followed suit.
Upsides: The major advantage of the Quebec approach is administrative simplicity and sustainability. Local government lobbyists are required to abide by the same set of registration and reporting transparency rules. The rules have been in place now for almost 15 years; their “policing” is done by one office — ensuring consistency in local governments, from major metropolitan centres to townships and villages.
Downsides: One disadvantage is that province-wide legislation may not reflect real differences and challenges, such as small population, large geographic mass, and isolated communities, For many small communities, with “buy local” policies, this can create ethical conundrums for local councils and local business interests, requiring a more nuanced approach on lobbying. The more important consideration may be actual differences between lobbying — and lobbyists — at the local vs provincial/state and national levels. Robert Wechsler, of City Ethics, in The Regulation of Local Lobbying, reminds us that “lobbying at the local level (except in the largest municipalities) is mostly done by business owners and organization officers, not by professional lobbyists….; (thus) local lobbying codes should not follow federal or state (provincial) codes… (or) most lobbying will remain secret.” This then would defeat aspirations for transparency.
Option Three:
All for all – aka, the Ontario Option. Ontario started down an altogether different path than Quebec, providing for individual municipal lobbyist regulation regimes — at least for its largest municipalities. At the end of the 1990s, as part of Toronto’s response to the provincially mandated amalgamation of Metro Toronto`s six municipalities, changes were made to local procurement and city computer systems and there were issues with several of the City`s major computer acquisitions and contractual transactions. Toronto`s situation required senior (provincial) governmental action ahead of consideration of a province-wide solution. The result was a series of new accountability offices for amalgamated Toronto, including a Lobbyist Registrar.
Upsides: The initial upside in the Toronto case was that action was taken in the case of a major urban ethical crisis. There was strong public support for such action. Another upside was that Toronto (2016 population: 2,652,000) had the administrative and fiscal capacity to undertake such accountability reforms. That would not be the case in most of Ontario’s over 400 communities. Ontario has almost half of Canada’s 50 cities with over 100,000 residents. It has granted the largest of these communities permission to establish their own registration/ethics regimes — with little provincial guidance.
Downsides: Allowing each municipality to develop its own lobbying and lobbyist registration rules represents administrative overload for many smaller local governments. Equally importantly, if lobbying is recognized as legitimate, having 444 lobbyist regimes, each with its own rules and regulations would hamstring all but the most sophisticated lobbyist firms or those with only one municipality to lobby. Each of Ontario`s larger local governments — Ottawa, Hamilton, and Brampton, so far — has a distinct lobbying regulation regime. The question is, will the model of One for Each further extend itself, or will it leave most of Ontario`s local governments bereft of lobbyist regulations?
Option Four:
Squaring the circle? One for some, and one for the rest? – aka, a possible British Columbia hybrid option. Given that Ontario has already created four different large city-based lobby regimes — with several others pending — what might it do with the remaining 400+ local governments? Administrative fairness and efficiency requirements would suggest some form of over-arching model; 83 per cent of Ontario is unincorporated territory. A majority of local authorities are under 25,000 in population. This might mean that under permissive legislation (except for Toronto), more big cities, (e.g. over 100,000) with more capacity, develop their own lobbying regimes and the province has the rest fall under no form of province-wide terms and conditions.
Upsides: There might be comparative lessons for matters around local governmental lobbying across Canada. Hybrid modeling might work. Perhaps as few as 10-12 big city regions in Canada might avail themselves of such a regime. The rest might then reside under no provincial lobbyist rules.
Downsides: Hybrids by their very nature can add confusion to any regulatory mix. Who would pay for local or for provincial oversight? Who might resolve disputes? What would the increasingly professional lobbyist industry do in response in such a mixed system? And what about public confidence in varied performances?
Option Five:
A dual system, a possible B.C./Canadian model. A variant of Ontario and Quebec models might be administratively instructive – not least for lobbyists – and ensure consistency in regulation by registrars: this would be a dual system of (i) province-wide lobbyist regulation AND a locally-nuanced Municipal code for all local governments – with a separate Deputy Registrar of Lobbyists for Local Government.
Upsides: If there were a separate province-wide template for local governmental lobbying, many of the concerns regularly posed by municipal councillors would be subsumed under such a dual legislative regime, but one designed specifically for local governments in B.C. and Canada.
Downsides: B.C. has had difficulty devising singular legislative answers for matters such as local government election financing. With municipalities ranging from single digits to over 600,000 in population this can be a challenge, but it does seem administratively possible.
Recommendations
Option Five: In my opinion, having one regime for senior/provincial lobbyists and another, covering differences in local lobbying, would assist regulation going forward. Local government lobbyist registration in Canada is an idea whose time has come. How it rolls out will determine its impact on transparency reform.
Patrick J. Smith is Director of the Institute of Governance Studies and Professor, Graduate Urban Studies, at Simon Fraser University.