In the United States, the federal government plays a lead role in prosecuting corruption at the state and local level–and many anticorruption advocates and scholars (both in the US and internationally) credit this federalization of anticorruption enforcement with getting rampant local corruption under control. Indeed, the DOJ’s Public Integrity Section was founded in 1976 precisely because it was thought that federal enforcement efforts were required to fill the vacuum created by the inability or unwillingness of state and local law enforcement authorities to bring cases against government officials in their own communities.
Leaving aside for the moment the substantial federalism and sovereignty concerns that have been leveled against this approach, it seems that the federalization of state and local corruption prosecutions worked, and contributed to a significant reduction in corruption across the United States. For this reason, anticorruption advocates frequently suggest that the US experience with federal enforcement should serve as a model for the international community. For example, Judge Mark Wolf’s proposal for an International Anticorruption Court explicitly draws on the US approach, and was likely influenced by Judge Wolf’s personal experience as a federal prosecutor of state and local officials.
I would like to propose the reverse: The United States should take a page out of the international enforcement playbook to improve state-level prosecution of state and local corruption, by implementing something like the OECD Anti-Bribery Convention’s closed-door meetings of law enforcement officials, but for US state-level prosecutors. Here’s why:
First off, on the US side: Despite the past successes of federal prosecutions in getting state corruption under control, even the most strident advocate of such prosecutions should concede that this approach has reached the limits of its efficacy. Despite recurrent federal crackdowns over the past several decades, some jurisdictions in the United States remain distressingly corrupt. (Consider, for example, Bob McDonnell in Virginia and Buddy Cianci in Rhode Island.) Moreover–and more importantly–at this point an over-reliance on federal prosecutions has diminished the role that state prosecutions can and should play in the fight against corruption. It’s clear by now that federal enforcement is not enough to “go the last mile” in eliminating corruption from state and local jurisdictions, and so it’s time for some new ideas–ideas that would reinvigorate the role of state prosecutors in these cases.
And here’s where current international approaches may provide some helpful models for the US. In particular, law enforcement officials (primarily prosecutors) from member-countries of the OECD Anti-Bribery Convention meet regularly in closed-door sessions (a meeting distinct from the OECD’s Anti-Bribery Working Group) to discuss ongoing investigations, to share experiences and ideas, and sometimes to raise concerns and criticisms. In the words of one of the group’s annual reports:
The prosecutors-only, day-long session allowed frank discussion and exchange of experiences and ideas. It featured three separate discussions: detection, investigation and prosecution. . . . The prosecutors meeting was an extremely useful exercise, and attendees benefited greatly from the opportunity to share ideas and experiences.
Others with first-hand experience offer similar accounts. According to former OECD Deputy Secretary-General Richard Boucher, “These are closed-door meetings, where officials can talk frankly with each other about real-life issues they face prosecuting and investigating foreign bribery cases.” He emphasizes that, “If one country hasn’t done enough to investigate an allegation or is reluctant to decide a case, then they face intense questioning by the other members of the Group.” By most accounts, this mechanism has been quite successful, a point acknowledged by Transparency International in its recent and mostly critical report on the OECD Convention as a whole.
This model could be emulated domestically in the US, creating a forum for state prosecutors working on public integrity cases to have regular closed-door meetings to share experiences, exchange information, and (perhaps) to criticize one another. (While there are already some programs that bring together prosecutors from different states, such as those run by the National District Attorney’s Association, they do not focus explicitly on public integrity prosecutions.) A new initiative, with a new mission, could be the impetus needed to make some final gains against corruption in the United States.
More specifically, creating a forum like this could have the following desirable effects:
- Encouraging the use of already-existing state laws: Perhaps surprisingly, states with the worst reputations for corruption tend to have the strongest public integrity laws (often passed in the wake of a scandal). Comparing the legal toolkit available in each others’ jurisdictions may lead prosecutors to see their own laws in a new light.
- Reassert the states’ role in anti-bribery prosecutions: State prosecutors may have fallen into a rut of thinking their state simply has endemic corruption and there is nothing that can be done about it but wait for the Feds to swoop in occasionally. The very fact that state-level prosecutors are meeting to discuss their role in combating corruption could be the first step in reasserting their own role in combating corruption.
- Break up the culture of corruption: To the extent that some state and local enforcement agencies remain captured or corrupt, meetings between prosecutors who are “clean” and independent may have the effect of creating “peer-pressure” on those agencies that remain captured to either clean up or else be looked down upon.
The urge to apply lessons learned in the US in the fight against corruption internationally is understandable, and is based in part on the perception that America’s status as a “clean” jurisdiction is due primarily to the efforts of federal law enforcement officials. The truth is somewhat more complicated, though. Eradicating corruption in the US will also require a significant state role, and in finding ways to enhance that role, the US can profitably learn from innovations at the international level.