A couple weeks back I posted some brief reflections that alluded to the possibility of the tension, between academics and advocates. I asserted this tension was something I’d observed, but I didn’t give any specific examples. Partly because of that weakness in the original post, I thought I’d follow up on this topic, using a concrete example of the tension I had in mind.
That example is drawn from a debate I’ve engaged in elsewhere on this blog with Maud Perdriel-Vaissiere, an advisor to the UNCAC Coalition. In brief, the substantive issue that she and I (and others) have been arguing about is the extent to which the UN Convention Against Corruption (UNCAC) obligates law enforcement agencies that recover judgments or settlements against bribe-paying firms to share those proceeds with the governments of the countries where the bribes were paid. I won’t go into all the details here. (For those who are interested, some of my earlier posts on the topic can be found here and here, and other contributors to this blog have discussed related issues here, here, here, and here.) In my most recent post on the subject, I specifically criticized Ms. Perdriel-Vaissiere’s discussion of the issue in a post she published on the UNCAC Coalition’s blog. Among other criticisms, I accused Ms. Perdriel-Vaissiere of failing to make basic distinctions between different types of legal recovery, of failing to acknowledge their different treatment under UNCAC, and of citing misleading statistics that conflated these different forms of recovery. I described the legal analysis in the post as “sloppy” and concluded with some harsh words: “The anticorruption community can and should do better.”
Ms. Perdriel-Vaissiere submitted a lengthy, detailed, and thoughtful rebuttal, which you can read in the comments section for the original post. Much of her response focuses on substantive matters where she and I respectfully disagree, and I leave it to interested readers to make their own determinations on those issues. But part of her reply caught my attention because it so nicely illustrates, in a much more concrete form, the “analyst vs. advocate tension” I alluded to generally in my post on the role of academics. Here’s what Ms. Perdriel-Vaissiere has to say in my response to my criticism that she cites misleading statistics that don’t take into account the differences between distinct forms of recovery:
Being a lawyer, I have a passion for strong legal analysis; at the same time, I know that governments only take action when pressur[ed] by the general public (through media awareness) and that to raise such awareness sometimes requires [one] to distance oneself from strict accuracy; i.e. to “make a long story short.” I don’t like it any more than you do, but that’s the way it works in the real world.
And she goes on to offer another example, which (coincidentally) is very closely related to criticisms I’ve made elsewhere about dubious statistics on the magnitude of global bribery (see here and here):
[T]he “$20-to-$40-billion-is-stolen-from-developing-countries-each-year” estimate used by the [World Bank] and many others is totally outdated and yet everybody uses it because it works: indeed, thanks to this eye-catching estimate, people do realize the importance of the issues at stake.
She sums this all up quite nicely as follows:
While I am very happy to debate these issues with you, Professor, they (sometimes – depending on the audience one is targeting) have to be framed in an easy-to-understand way so that we can reach out [to] as many people as possible.
And then she gets in a nice parting shot, turning my “the anticorruption community can do better” line on its head: she cites some of the recent work by academics outlining ways to promote more effective implementation of UNCAC (noting especially Andy Spalding’s posts on this blog, particularly this one), and concludes that these contributions:
show that the academic world can (and should) do better than rebutting “sloppy” blog posts from civil society.
Despite the barbed language that Ms. Perdriel-Vaissiere and I deployed in our respective posts, I actually think she and I agree on a great deal, at least on the substantive issues. And, at least for my part, I’ve found the exchange productive, in large part because it has helped me realize that our dispute really does have less to do with the substantive issues than with the fundamental tensions I raised in my earlier post about academics (and presumably others) struggling to balance their role as analysts/researchers with their interest in promoting positive change through advocacy and education.
At least, that’s how I read at least this aspect of our debate:
- She wrote a post declaring that UNCAC imposes an obligation on countries to share foreign bribery settlements with host countries, and cited in the first paragraph of her post a statistic saying that only 3% of those settlements were in fact shared, strongly suggesting widespread noncompliance with this legal obligation.
- I replied that this analysis is incorrect, or at least misleading, because UNCAC does not require that punitive fines be shared, and the 3% statistic is based on calculations including such fines in the denominator, and that when one focuses on the actual UNCAC obligations there’s no strong evidence that the main enforcing jurisdictions are not in fact in compliance.
- In her response she concedes, at least on this point, that I’m correct about the substantive legal issue — but she says that for advocacy purposes, (over-)simplification is justified as a way to pressure governments to take more constructive action to help the victims of bribery. And she argues further that academics should be doing more to help promote constructive action rather than engaging in excessively negative criticism of those who are pushing for positive change.
So there you have it: The debate over the academic’s role in anticorruption work, in a nutshell. I obviously disagree with Ms. Perdriel-Vaissiere, but I understand and respect her position on this. I’m curious how others out there (in both the academic and advocate communities) would address these questions.
- When is it acceptable to use inaccurate, outdated, or otherwise misleading statistics?
- When (if ever) is it OK to obscure legal or other analytically important distinctions, to raise awareness of an issue or press governments for a policy change?
- Is it ever acceptable to imply that the law imposes obligations that it does not, strictly speaking, actually impose, in order to press governments to take actions that, while perhaps not legally obligatory in the narrow sense, are desirable, and perhaps in keeping with the larger spirit of the legal instrument in question?
My knee-jerk answers would be: “Not without explicitly acknowledging the uncertainty”, “Never”, and “No.” What do others think?
No, no and no. Is any other set of answers, corruption, or at least, misleading.
My gut reaction answers mirrored yours, Matthew, though my conviction wavered pretty significantly when I thought about how this would play our in real life. I jumped to the elevator speech scenario. If an advocate has 30 seconds to say why corruption in X is an issue, why the listener should care, and what the listener should do about it, how much nuance and specificity is possible?
I look at this as a bit of an ends versus means issue. For the researcher, a good research product may be the end, and the value of the end product is very much an assessment of the means (how rigorously the research was conducted). In advocacy, the behavior change is the end; once that happens, the means (the evidentiary support) may not be particularly relevant. I have not read Shaazka Beyerle’s book ‘Curtailing Corruption: People Power for Accountability & Justice,’ but based on Rick’s post yesterday, there may be an argument that successful anti-corruption work often involves strange bedfellows. Perhaps advocates are more successful when they blur lines?
My final answers still mirror yours, but with the following addendum: I am not sure I would act upon them if I were actively working in the advocacy realm.
Like others here (as well as many who responded to your first post), I’m most comfortable drawing a bright ‘no, no, & no’ line for academics and others who purport to simply put forth evidence. By and large, I’d apply the same standards to advocates–pursuing change doesn’t excuse twisting the facts.
But I think there might be some room for intellectually honest advocates to maneuver on (some aspects of) questions 1 & 2, provided they are upfront about their goals, role, and perspective. For example, say an advocate is working to change domestic violence laws in [country X], where there are conflicting statistics regarding the scope of the problem. Provided the advocate clearly states their goals and objectives, I think there are truthful ways to exclusively deploy statistics most favorable to their cause: stating clearly the scope and findings of useful studies; using older statistics when they have not been clearly refuted; glossing over technical distinctions, provided the overarching point stands.
In sum, truthfully characterizing evidence can be a question of degree, rather than fact. Even for advocates, I’d suspect they would gain more in the long run from reputation and credibility that comes from the careful presentation of evidence than the short term gains that the strategy above might effectuate.
A more subtle debate over the advocacy/analyst is going on among those who work on the issue of staunching the illegal flow of funds from developing country. Funds can illicitly flee a country for any number of reasons: tax evasion, the falsification of trade documents, corruption, trafficking in illegal drugs, and so forth. All are complex issues that will require a myriad of reforms by both developed and developing countries to stop the outflow of funds.
There is the view that the only way to get the needed policy changes is to grab policymakers’ attention with large estimates of the amount that is leaving. Global Financial Integrity, a U.S.-based NGO, is the leading source of such estimates. Its latest estimate is that developing world lost US$5.9 trillion in illicit financial flows from 2002-2011, a staggeringly large figure, one that is surely attention grabbing, and like earlier GFI estimates one its research staff will concede is built on heroic assumptions. (The report is available at: http://www.gfintegrity.org/reports/)
A different view is that opponents of policy reform will find it easy to punch holes in these large estimates and thus challenge the drive for reform. Accordingly, the focus should be on detailed, technical analyses of the tax, customs, trade, and other policies that must be changed to arrest the flow. Even if “only” $100 billion a year is leaving developing states through these various channels, this is still a very large sum and worthy of a high level of attention. See Peter Reuter, editor, Draining Development: Controlling Flows of Illicit Funds from Developing Countries (World Bank 2012) (available here: https://openknowledge.worldbank.org/bitstream/handle/10986/2242/668150PUB0EPI0067848B09780821388693.pdf?sequence=1) and “Staunching the Flow,” an article I co-authored with Professor Reuter for the First Quarter 2013 issue of the Milken Review (available here: http://assets1b.milkeninstitute.org/assets/Publication/MIReview/PDF/15-23MR57.pdf.) for the kernel of this alternative view.
Who is right? The large estimates have forced the OECD, the G20, the World Bank, and others entities with a say on international and national economic policy to give the issue due attention. Nor has anyone, publicly at least, exploited the weaknesses in GFI’s estimates to undermine the need for reform. On the other hand, to date there has been little progress on the necessary reforms.
The problem this and the related debate in which Matthew and Maud are engaged should be laid squarely at the doorstep of scholars of the social sciences. Until they produce a general theory of social change comparable to Einstein’s general theory of relativity, we are stuck without a resolution. Anyone with such a theory, please do not hold back. GAB would be happy to publish it as a guest post.
At the risk of making the comment section sound like a broken record, I would say never, never, and no. I agree with Melanie that promoting accuracy is easier said than done from an impassioned advocate’s perspective. But the costs of distorting the truth do not fall exclusively on research-minded academics. For the sake of their causes, advocates ought to avoid sensationalizing the issues. To use Rick’s example, $5.9 trillion is an unbelievably large number – so large that it makes $100 billion seem insignificant, which it certainly is not. By the same reasoning, the move from Ms. Perdriel-Vaissiere’s 3% to the more accurate, say, 10% (an arbitrary – but higher – number), does take some of the wind out of her argument’s sails. In the contexts in which we are speaking, $100 billion/10% are impressive numbers on their own. They only look unimpressive when compared to the original, inflated statistics. Activists needlessly hurt current and future campaigns by creating a situation in which a harm must cause over $6 trillion in damage in order to attract attention. [As an aside, I find the notion that experts must sacrifice integrity in order to attract supporters who, impliedly, only flock to the highest bidder a bit demeaning to said supporters].
Your post reminds me of one of the downsides of inaccurate numbers.
In Kenya highly inflated estimates of how much former President Daniel Arap Moi and others have stolen are accepted as true. So when the the Kenyan anti-orruption agency successfully recovers “a few millions” it is taken not as a success but as a failure since there are (according to urban legend) billions out there to recover. Even worse, it fuels cynicism as people think the agency is on the take because it recovered so little.
Elizabeth’s comment raises yet another important tension about the advocate/academic tension. Whereas I’d be inclined, like most people who have commented here, to argue that academics should always stay away from inaccurate statistics or obscured information, academics are nonetheless part of a larger anticorruption “community” in which their role, if not clearly defined, must remain relevant. The problems Elizabeth and Rick raise above, then, pose serious dilemmas to those who strive, I think correctly, to tease out the nuances that may play down the seriousness of a situation from the perspective of a strict advocate. If the “shock value” statistics are inaccurate, but the complexities behind the issue make it worthy of widespread attention, teasing out such complexities may be too cumbersome from the perspective of an advocate looking to grab the attention of less informed, but socially conscious citizens that could rally for change.
All things considered, I still come out very strongly on the “no, no, and no” front. But I wonder what are ways in which the dialogue between advocates, academics, and those in between, could renegotiate their roles so as to avoid the problem of “flocking to the highest bidder.”
I think most of us would agree that thoughtful advocacy on these issues can still be effective without resorting to hyperbole or fudging numbers, particularly if this might undermine the advocacy in the long run.
However, in defense of Ms Perdriel-Vaissiere as to the original dispute (https://globalanticorruptionblog.com/2014/05/08/uncac-asset-recovery-and-the-perils-of-careless-legal-analysis/) over UNCAC and recovery/restitution to victims (however this is defined), there is concrete problem that lies in the origin of the penalty numbers being discussed.
While Matthew effectively and for good reason highlights the legal distinctions between damages, disgorgement and penalties under both national laws and with respect to UNCAC, in my view there is a real accounting problem due to the fact that we are mostly tallying these numbers from settlement agreements and/or DPAs. Particularly when considering a big settlement that involves misdeeds in multiple jurisdictions over a period of time, an implicit bargain of these agreements is that the DOJ or other agency will not be forced to prove each and every act, which would take a long time, as long as the defendant is settling for a headline amount that seems adequate from a punishment, deterrence and public relations standpoint. When the parties have not been put to their proof in court, the precise breakdown between penalties, disgorgement and “actual” damages becomes much less scientific: at the least, we should admit it is subject to factors beyond who bribed whom for what gain and what harm. (E.g., an enforcement agency may well prefer to increase the penalty and decrease the damages if the same result can be achieved at the expense of fewer investigative resources.)
In the absence of rigid rules as to which columns these amounts should fall on the settlement sheet, perhaps we should allow those individuals arguing for a focus on restitution a bit of leeway as well.
Fair enough, and I don’t think I really disagree with anything you say here–except perhaps the last paragraph.
The focus of the substantive dispute is whether some of the settlement money going to, say, the US government in an FCPA settlement action should have gone–and under UNCAC was legally required to go–to the host country government (the so-called “victim country”). To answer that question, we need to know something about the amount of money to which the host country was legally entitled, and–just as important–how much of the money paid to the US government was in fact money on which, under UNCAC, the host/victim country had a valid claim. The method of analysis in the StAR report is to say, here’s the amount of money returned to host countries (the numerator), here’s the total amount paid to supply-side enforcers (the denominator), look how small the fraction is, therefore there’s likely a violation of UNCAC. I just don’t think that’s right, and I’m not inclined to offer too much leeway on what I consider a highly misleading statistic.
That said, you make an excellent point. Suppose that the US government settles with Company X for $100 million. It could be that Company X made $100 million in illicit profits, and that the statutes would authorize a fine of up to $100 million, but the US decides to settle out for $100 million (rather than pressing for the full $200 million). As you indicate, if the US decides to characterize the whole penalty as a punitive fine, it would fall outside the scope of UNCAC’s asset recovery provisions, but if the penalty were characterized as disgorgement of illicit profits, there’s at least a colorable argument that the host country may be entitled to some of the payout. Very good point. And maybe, if a legal consensus did emerge that disgorged profits have to be shared, and as a result the US started trying to reclassify disgorgement as fines, I could get behind the idea that some of these fines should be treated as assets that should be shared.
But we’re not in that world, or even close to it. True, the US government and the company have a lot of discretion in terms of how they classify settlement amounts. But it’s still a real fudge — and in my view too much of a fudge — to suggest that the current low ratio of transferred assets to total settlement amounts indicates widespread noncompliance with UNCAC.
I am coming a bit late to this discussion, but thought you might be interested in my analysis of the misunderstandings and misstatements of the big numbers on tax avoidance and illicit flows. http://hiyamaya.wordpress.com/2014/10/14/corporate-tax-and-development-opening-pandoras-box/
My answer to the question posed would be no, no and no….
I do understand the tension of trying to communicate complex issues in an attention-deficit world, but I think this presentation of the big numbers corrupts organisations, and prevents clearer understanding of the issues. In particular the conversion of the tax avoidance estimates into ‘numbers of lives saved’ type calculations I referred to in the article, are beyond heroic into the realms of disengenuous.
I am never quite sure of how to interpret the gross illicit flows estimates (beyond the questions about methodology & accuracy of the numbers themselves) – they are often presented in the advocates view as ‘money that is stashed in idly in tax havens/ money not available for investment in the country it came from’ . The idea that it is sitting stacked as a pile of bank notes in a bank vault in Cayman is clearly silly – it must be invested in something – some combination of real economy debt & equity, speculative assets, & US treasury securities etc… including some portion that is round-tripped back to the country it came from (some of which shows up in the GFI calculations but is discounted because ‘money transferred in illicitly is not available for use productively’….why ever not?) The idea that money that has been transferred out is not available for investment seems odd – I would think the fundamentals of the investment opportunity would be more important than whether the cash is on hand locally or offshore.
Overall I agree with the Rick and Elizabeth that the argument-from-big-numbers leaves anti-corruption efforts vulnerable to the ‘crying wolf’ problem.