Monthly Archives: September 2015

Don’t Be Fooled: Bob McDonnell’s Supporters Want To Legalize Bribery of Senior Government Officials

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Last week, as many readers (at least those who follow corruption issues in the U.S.) are probably aware, the U.S. Supreme Court issued an order allowing former Virginia Governor Bob McDonnell to remain free on bail while his appeal is pending, a signal that the Supreme Court is likely to hear his case. As readers of the blog are also likely aware, I think that the appeals court that affirmed McDonnell’s bribery conviction decided correctly, meaning that the Supreme Court should either decline to hear the case, or should take it and affirm it. I really don’t think I have much more to say about the substance of the legal issues, and I wouldn’t bother posting about it again, except that an op-ed in last week’s Washington Post (by C. Boyden Gray, former White House counsel to President George H.W. Bush) got me so bloody angry that I just have to weigh in on this again, if only to point out the absurd consequences of the position advocated by Mr. Gray and others who argue that the conviction should be overturned.

The linchpin of Mr. Gray’s argument is that the alleged “official acts” that Governor McDonnell provided to private businessman Jonnie Williams (in exchange for lavish gifts, loans, and other tangible benefits) were “nothing more than speaking with aides and arranging a single meeting between an aide and [Mr. Williams],” and that criminalizing such routine conversations and meetings would be absurd. Described that way, McDonnell’s acts do indeed sound innocuous. But Mr. Gray’s characterization is so flagrantly misleading that there’s only one word to describe it, and it’s not a word I can use on a family blog. Continue reading →

Judges on the Take: How the FBI took on Chicago’s Crooked Courts

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FBI Special Agent Ken Misner was in Chicago on a critical mission: to get arrested for drunk driving. Yet each time the police pulled him over, he escaped with a warning – no matter how erratically he had driven, and no matter how well he had faked his drunkenness. It was 1980, and the Chicago police simply didn’t arrest middle-aged white guys for traffic offenses. When his act failed yet again, he finally decided it was time to resort to desperate measures. He jumped from his car, leaped onto the hood of the police cruiser, and started screaming obscenities. The officer promptly yanked him down and began writing a summons. At last, thought Misner, mission accomplished. But as he read what the cop had written, he saw he had caught another “break.” The charge was disorderly conduct, a minor offense that wouldn’t get him anywhere near traffic court. Misner never succeeded in becoming a traffic court defendant, but fellow FBI agent Woody Enderson did, realizing an important milestone in the federal undercover investigation into corruption in Chicago’s court system known as “Operation Greylord.”

Click here to read the rest of this article from Foreign Policy magazine.  It appears in the series, “Curbing Corruption: Ideas that Work,” DemLab Case Studies exploring successful approaches to fighting corruption.  Democracy Lab is Foreign Policy’s home for coverage of transitions to democracy, published in partnership with the Legatum Institute.

Some Slightly Sarcastic, Semi-Serious Suggestions for Improving Anticorruption Conferences

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Over the last couple of years, I’ve attended maybe a dozen or so international anticorruption conferences—some small, some large, some focused narrowly on legal issues, others focused on broader issues of development and good governance. (Most recently, I was able to attend the International Anti-Corruption Conference (IACC) in Malaysia, which I hope to blog about more in a series of upcoming posts.) Overall, I’ve found these meetings to be very helpful, both in terms of useful substantive discussion and in terms of opportunities to meet people from governments, international organizations, civil society, media outlets, and research institutions who share a common interest in the fight against corruption. Nonetheless, I think there are a few ways that these conferences could be improved. So, in the spirit of constructive – if admittedly somewhat snarky – criticism, let me throw out a handful of suggestions for improvements to these meetings: Continue reading →

Can Religion Reform Cultures of Corruption? Lessons from the Philippine Catholic Church

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During his visit to the Philippines earlier this year, Pope Francis called on the Philippine government to put an end to corruption in the country, and challenged citizens “at all levels of society, to reject every form of corruption which diverts resources from the poor.” While the Pope’s admonishment may seem like mere rhetoric to some, his call to action may have more significant political implications in a country where nearly 83% of the population identifies as Catholic, and where the Church plays a major institutional role in the nation’s culture and government.

In his 2010 piece “’Good News’ in the Fight Against Corruption,” and more recently in a June 2014 working paper on systemic corruption, Professor Roberto Laver highlighted the role religion plays as a cultural force in society, which in turn may impact how societies respond to corruption in government. Religion can affect ethical behavior in obvious ways, but it can also affect how public power and authority are arranged within society. Professor Laver argued that religion, which is often overlooked as a resource for anticorruption efforts, should be used as an “entry point” for a “second generation of reforms” to battle entrenched cultures of corruption.

Assuming Professor Laver is correct that religious institutions are not playing a large enough role in anticorruption efforts worldwide, the Philippine Catholic Church may be an exception to that rule. The Church has been at the center of numerous political debates for decades, and, if the Pope’s speech earlier this year is any indication, it will continue to play a major role in issues involving development, poverty, and corruption. The Philippine example highlights the essential role an institution like the Catholic Church can play in addressing systemic corruption. And by the same token, it demonstrates the costs that come with entrusting that power to religious institutions and leaders.

Continue reading →

Spain’s New Corporate Compliance Defense: What Impact Will It Have?

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In the world of foreign anti-bribery law, there has been much discussion (including on this blog – see here and here) about whether to adopt a so-called “compliance defense” that would allow corporate defendants to escape criminal liability for bribery committed by their agents if the corporation can show that it had an adequate compliance system in place. Some countries’ foreign bribery laws – most notably the US Foreign Corrupt Practices Act – do not have such a defense; others – most notably the UK Bribery Act – do (though the UK Act combines the defense with strict corporate liability not only for the acts of employees, but also of other agents). Spain recently joined the latter group of countries with an amendment to its criminal law (Article 31 bis) that went into effect last month (see summaries here and here). That amendment (which covers not only Spain’s foreign bribery offense, but also domestic bribery and other corporate criminal offenses) allows the corporation to avoid criminal liability if it can establish that, prior to the commission of the crime, the board of directors implemented an adequate compliance program that meets certain requirements laid out in the statute.

Proponents of the compliance defense cheered. And a report on the new law from the law firm Miller & Chevalier predicted that this legal change “should encourage companies doing business in Spain to adopt a rigorous compliance program”—a claim that presumably would also apply to Spanish companies doing business abroad, given that the provisions also apply to Spain’s foreign bribery offense.

I’m not so sure, for reasons I’ve discussed before, but I do think the change in the Spanish law might provide an interesting opportunity to test the hypothesis. Continue reading →

Reducing Court Delays: A Critical Element in the Fight Against Corruption

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One consistent finding from the research on anticorruption policy is that those tempted to commit an act of corruption can be deterred from doing so if they are afraid they will be caught and punished.  That is the good news.  Deterrence works. But as I noted in an earlier post, deterrence requires a court system that can resolve cases within a reasonable time.  If those contemplating whether to take or pay a bribe or participate in some other form of corruption know that, if caught, they can delay the case for years if not decades, the fear of punishment will be lessened if not eliminated altogether. An effective national anticorruption policy thus requires ensuring cases are resolved without inordinate delay.

Court delay is a long-standing problem in many nations, and courts in any number of jurisdictions have implemented programs to reduce delays. Few, however, have succeeded.  In a new policy brief for the U4 Anti-Corruption Resource Centre I argue that one reason why so many delay reduction programs have failed is that they have ignored how the formal and informal rules governing case disposition shape the incentives of judges, lawyers, court staff, and litigants.  I urge that a successful delay reduction strategy must start with such a “political economy” analysis and that reforms be built around what that analysis reveals. Comments welcome.

A Regional Anticorruption Convention in the Asia-Pacific?

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In my last post I discussed Transparency International’s proposal for an “ASEAN Integrity Community” (AIC) to promote and harmonize effective anticorruption policies in the Southeast Asian region. The proposed AIC would be part of the formal ASEAN framework but would not impose additional legal obligations on member states. This got me thinking a bit more about whether it would be a good idea to push for a more robust international anticorruption convention, either in ASEAN or in the Asia-Pacific region more generally. (I’m not alone in having at least entertained this idea: the Thai National Anti-Corruption Commission has apparently been developing, and occasionally floating, a proposal for an ASEAN Anti-Corruption Convention.) After all, in addition to the two main global anticorruption conventions—the UN Convention Against Corruption (UNCAC) and the OECD Anti-Bribery Convention—there are also a number of regional anticorruption conventions, including the Inter-American Convention against Corruption, the African Union Convention on Preventing and Combating Corruption, the League of Arab States Anti-Corruption Convention, the Council of Europe’s Civil and Criminal Law Conventions on Corruption, and the European Union’s Convention against Corruption involving Officials. Indeed, the Asia-Pacific region is one of the few regions in the world (along with South Asia, Central Asia, and a handful of others) that lacks a regional anticorruption convention of some kind. Is there a case for creating such a regional instrument in the Asia-Pacific (or, more narrowly, in ASEAN)?

I think, upon further reflection and discussions with people who have much more expertise than I do, that the answer is probably no. But nevertheless I thought it would be worth at least floating the idea, if only to stimulate further discussions. Continue reading →