Legitimacy through transparency, at what cost?

The multi-level character of governance has given salience to the calls for more transparency of public decision- and policy-making processes. These complex governance systems have in addition been characterised by an increased involvement of non-state actors in decision-making and in particular, in the production of norms. Non-state actors have become part of the creation and implementation of public policies through delegation, public-private partnerships, collaborative governance, the outsourcing of expertise as well as through lobbying in its diverse forms, including its adaptations to the changing patterns of governance. However, while public actors are used to accepting that democratic legitimacy required the acceptance of public accountability mechanisms, private actors have long been reticent to admit that their involvement or influence on decision-making may imply public accountability. The rise of transparency as a value in governance and thereby, a source of legitimacy, has arguably stirred the practices of accountability for both public and private actors. How, then, do both public and private actors of policy-making cope with transparency, particularly when they are expected to adopt new policies based on disclosure? The present paper sets out to track the negotiations of the implications of the normative shift towards transparency on the respective status of public and private actors in governance. It does so by looking at the particular case of attempts to introduce lobbying regulations at national levels, in Poland (2003-2005) and the Czech Republic (2009-2010; 2011-2013) in particular. A close interpretive policy analysis of these processes enables us to approach them as theatres of negotiation. In the course of the discussions on the goals of regulation, on what entities to regulate as well as on the choice of policy instruments, participants of these negotiations try both to gain the legitimacy associated with “more transparency”, and minimize the danger of a change of status. The analysis seems to indicate that one way of explaining why lobbying regulations have been adopted with very little impact on practices or efforts of implementation is that an efficient regulation and its implementation would matter too much in terms of their impact on the conditions of democratic legitimacy. In other words, a proper disclosure of lobbying contacts would codify transformations in the respective statuses of public and private actors in politics and policy-making that both seek to avoid. While private actors in the negotiations come to accept that a certain degree of transparency will be necessary, they try to avoid that disclosure be seen as linked to accountability. Public actors, in turn, already function in a regime of public accountability and what they try to avoid is for new transparency provisions to upset this regime by creating supplementary conditions of democratic legitimacy. On the basis of an analysis of ministerial consultations, transcripts of parliamentary debates, observations of policy roundtables associated with theses processes, and on semi-structured interviews with policy-makers and commercial lobbyists in the two countries, the paper submits to discussion some of the political conditions and limitations of the attempts to introduce more transparency into complex governance systems.