I've been thinking a lot lately about anti-corruption. It's a hot topic these days, and for good reason. But there's an even stronger argument for the ascension of anti-corruption that is far less trumpeted.
Some background: the first form of corruption I'm talking about is the one most of us are familiar with: bribery, money laundering, extortion. Mike Duffy-like allegations, or as Lawrence Lessig puts it, the actions of bad souls acting badly. This is the kind of corruption targeted by the federal government's anti-corruption rules applicable to companies that want to do business with the government, rules which the federal government has just "relaxed"; see the Globe and Mail's take here. More on that in a moment.
This kind of corruption, and the measures designed to combat it, are undoubtedly important. But there's an even broader, far more insidious and egregious form of corruption that warrants greater attention: namely, systemic corruption, and its close cousin, regulatory capture.
I've been thinking a lot about these broader concepts because I'm at work on a paper about what I call the root problem of Canadian environmental law - the systematic diversion of regulation away from the public interest in robust environmental protection toward the special interests of various industries. Having surveyed a large and representative swath of the diagnoses of Canada's infirm environmental laws (the weaknesses typically diagnosed include excessive discretion, absent laws, the failure to keep up with science, inadequate implementation and enforcement, insufficient opportunities for meaningful public participation, and an unduly narrow range of legal tools and policy options), regulatory capture appears to be at the root of each of these infirmities, and law reforms that do not attend to the root problem of regulatory capture are bound to fall short. Regulatory capture, in the popular parlance of governance studies, is "sticky." Once in place, it's difficult to root out.
What's more, I think most of us know this perfectly well, and are aware that this is a problem of general application and fundamental importance. As Lessig describes the U.S. Congress in his fascinating Ted Book The USA is Lesterland:
Our Congress is corrupt.
It is obvious.
Yet we ignore the obvious.
We ignore it the way we ignore death. Or taxes. Or the end of the world. We ignore it because changing it just seems impossible. The very idea of motivating a political movement to rise up and make this system different seems beyond the power of any of us. So we turn instead to the problems that seem possible....
For example, corruption of the alleged Mike Duffy variety.
Even though Lessig's remarks above pertain to the U.S. Congress, his framing of the problem could equally apply to Canada's Parliament, most of its provincial legislatures, and a great many of its administrative agencies.
Which is why today's news of the federal government's move to relax its anti-corruption rules is such a useful news story - it neatly brings together these two kinds of corruption.
As the Globe reports: "The move comes after intense lobbying from industry, which warned of spreading economic damage because of the regulations introduced just 16 months ago."
Evidence of this spreading economic damage? The Globe's report is silent on this front, perhaps because there isn't any.
According to the Globe, the Canadian Manufacturers and Exporters, the Canadian Council of Chief Executives, and the Information Technology Association of Canada (lobby groups all) jointly wrote to Public Works Minister Diane Finlay in February claiming that the newly proposed integrity in procurement rules were "significantly out of step with Canada's trading partners" (which has a kind of "race to the bottom" appeal) and "negatively affecting investment in Canada now" (which has an economic catastrophe appeal, especially when unaccompanied by hard empirical evidence of harm).
Now, if anyone doubts that federal government procurement needs to be cleaned up, read these judgments of the Federal Court and the Federal Court of Appeal (here, and here) in which an American company desirous of doing business with the federal government had to launch a time-consuming and costly application for judicial review in order to be fairly considered in the applicable government agency's (CATSA's) tendering process. Of course, judicial review is the flip side of the legislative and executive anti-corruption coin.
The Globe's anti-corruption story, then, is really two anti-corruption stories for the price of one - an examination of broad, systemic corruption via the capture and diversion of regulation in the public interest toward the special and specific industry interest in limiting the consequences of bribery, money laundering, and extortion (to name just the biggies) in the context of doing business with the federal government.
As Lessig convincingly argues, this kind of systemic corruption is the most important public policy issue around, because it's at the root of every other public interest issue that you happen to care about.
So the next time you read about the Mike Duffy trial, ask yourself whether his Senate activities and expenses related to this broader form of corruption, and then ask yourself why that isn't more of an issue.
