Guest Post: The Potentially Perverse Effects of Campaign Finance Disclosure Laws

Professor Michael Gilbert from the University of Virginia Law School contributes the following guest post:

Since at least the 1970s, proponents of campaign finance regulations in the United States and elsewhere have supported mandatory disclosure of monies spent on politics.  Notwithstanding some significant loopholes, those proponents have in many respects gotten their way in the United States and many other countries. Much of the enthusiasm for disclosure is based on the notion that it helps combat a certain kind of corruption—the exchange of campaign support for policy favors. Publicizing the flow of money to politicians exposes illicit relationships and quid pro quos.  In Justice Brandeis’s famous phrase, “Sunlight is said to be the best disinfectant.”

This logic is correct but incomplete.  Disclosure does indeed provide information that officials and the public can use to combat corruption.  But, as Ben Aiken and I argue in a new paper, corrupt actors can also use that information to overcome an impediment to illegal exchanges:  lack of trust.  Private parties cannot sign enforceable contracts with politicians for quid pro quos. Instead, they must trust one another—if I give you the money today will you deliver the vote tomorrow?  That need for trust means that both sides to a potentially corrupt exchange must assess one another’s credibility. Disclosure laws can, perversely, help foster that undesirable trust. After all, disclosure of campaign donations reveals which parties reward compliant politicians; this same disclosure, combined with politicians’ voting records, reveals which politicians reward their financial supporters most consistently.  Through those channels disclosure can bring conspirators together and reduce the uncertainty that inheres in illegal transactions.  As a colleague put it, “disclosure is like for criminals.” Continue reading

Anticorruption Bibliography – Sept. 2014 Update

An updated version of my anticorruption bibliography is available from my faculty webpage.  A direct link to the pdf is here.  As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

Is Corruption Destroying American Democracy? Zephyr Teachout’s Corruption in America

Fordham University Law Professor Zephyr Teachout earned a place of distinction among anticorruption activists for making the fight against corruption the centerpiece of her spirited campaign to oust the incumbent in New York’s September 9 gubernatorial primary (as well as a good deal of attention on this blog, click here and here).  Her effort also deserves special recognition in academia: surely no other professor has produced evidence to undercut her own academic work so fast as Professor Teachout. Appearing days before the primary, her Corruption in America: From Benjamin Franklin to Citizens United contends that large private donations to political candidates so favor candidates supported by the wealthy that the future of American democracy is at risk.  Yet while preliminary figures suggest the well-known, well-organized incumbent outspent her by somewhere between 40 to 50 to 1, she did surprisingly well, polling 180,336 votes to the incumbent’s 327,150.  If money so dominates American political campaigns, it is hard to see why Professor Teachout got so far with so little. Of course, she did lose the election.  More to the point, even if she had won, her claim that money is overwhelming American elections cannot be dis-proven by a single example.  It may be that her race was an outlier and that most of the time, money does talk.  So what does the accumulated research on the influence of money on American elections show? Continue reading

UNCAC Does Not Require Sharing of Foreign Bribery Settlement Monies with Host Countries

Maud Perdriel-Vaissiere, the Advisor on Asset Recovery for the UNCAC Coalition (a global civil society network committed to promoting compliance with the UN Convention Against Corruption) recently published a post on the UNCAC Coaltion blog entitled, “Is there an obligation under the UNCAC to share foreign bribery settlement monies with host countries?” Her answer is yes. Indeed, she says that the contrary position is based on a “gross misreading” of UNCAC, that UNCAC’s asset recovery provisions (in Chapter V) apply even to “stolen or embezzled funds over which foreign governments cannot establish prior ownership” (emphasis hers), and that there is “no doubt [that] there is an obligation under the UNCAC [for supply-side enforcers] to share foreign bribery settlement monies with host countries!” (The exclamation mark is hers as well.)

As readers of this blog may be aware, I think this is wrong, based on a sloppy and tendentious misreading of the language of the treaty. Though I’ve written on this before, I think Ms. Perdriel-Vaissiere’s analysis deserves a rebuttal. Continue reading

Guest Post: Compliance Culture in Emerging Markets — Tone at the Top or Tone in the Middle?

Today’s guest post is from Gönenç Gürkaynak, the managing partner and head of the Regulatory and Compliance Department at ELIG, Attorneys-at-Law, a leading law firm in Istanbul:

When listing the fundamental pillars of a compliance program, guidance on the Foreign Corrupt Practices Act and UK Bribery Act both stress the importance of the top-level commitment — “tone at the top” — for creating and maintaining a compliance culture within the company. Because the actions and stances of the board of directors and senior executives reflect and shape the corporate compliance culture, these directors and managers are expected to fulfill leadership roles within scope of the compliance program of the company. But the compliance leadership of the top-level management can be undermined by the reckless actions of the mid-level managers who have the obligation to meet operational targets and deal with the various problems posed in the field. Accordingly, a tone from the top is not enough to create or sustain a compliance program — especially in emerging markets — unless such tone is supplemented by the voice of the mid-level management (“tone in the middle”). Continue reading

Why Didn’t Teachout Win the New York Gubernatorial Primary?

In a recent post, Matthew wrote about the New York gubernatorial Democratic primary between incumbent Andrew Cuomo and self-proclaimed anticorruption candidate Zephyr Teachout. He laid out several reasons why even progressive voters who care about combating corruption could rationally cast a vote for Cuomo over Teachout. Since Matthew’s post, primary polls have closed and, indeed, unofficial results show Cuomo taking the Democratic nomination in a landslide (though not as sweeping a landslide as expected). Matthew’s predictions have been borne out, but as this post will explain, likely for different reasons than those he posited. Continue reading

So Is Corruption the Problem or Not? Moses Naim’s Curious Inconsistency

OK, this may not be the most important thing in the world, but I noticed it and can’t help pointing it out:

Here’s Moses Naim (who humbly describes himself as “an internationally renowned columnist and commentator”) writing in The Atlantic last May about what he sees as the big oversight in Thomas Piketty‘s surprise bestseller on economic inequality, Capital in the Twenty-First Century:

[T]he problem [of inequality] requires a more complete diagnosis [than Piketty provides]. It is not accurate to assert that in countries like Russia, Nigeria, Brazil, and China, the main driver of economic inequality is a rate of return on capital that is larger than the rate of economic growth. A more holistic explanation would need to include the massive fortunes regularly created by corruption and all kinds of illicit activities. In many countries, wealth grows more as a result of thievery and malfeasance than as a consequence of the returns on capital invested by elites….

Corruption-fueled inequality flourishes in societies where there are no incentives, rules, or institutions to hinder corruption. And having honest people in government is good, but not enough. The practices of pilfering public funds or selling government contracts to the highest bidder must be seen as risky, routinely detected, and systematically punished.

Most of the roughly 20 nations from which Piketty forms his analysis classify as high-income countries and rank among the least-corrupt in the world…. Unfortunately, most of humanity lives in countries where … dishonesty is the primary driver of inequality. This point has not attracted as much attention as Piketty’s thesis. But it should.

All well and good. But here are Naim’s thoughts on the global anticorruption movement (from Foreign Policy) in March 2005: Continue reading