In 2003, Joe Ganim left his fifth term as mayor of Bridgeport, Connecticut in disgrace. A federal jury convicted Ganim on sixteen corruption charges, including racketeering, extortion, bribery, and mail fraud, and he served seven years in prison. Yet five years after his release, Ganim is poised to become mayor again, having won the Democratic Party primary (in overwhelmingly Democratic Bridgeport)—defying the predictions of those who thought his corruption sentence would make a political comeback all but impossible. Yet if Bridgeport were located just across the Connecticut border, in neighboring New York, Joe Ganim would not be allowed to run, because New York—along with several other states such as Mississippi, South Carolina, and Virginia—has a disqualification law. Such laws prevent officials who have been convicted of corruption-related crimes from running for elected office, for periods ranging from several years to life (depending on the state). We see something like this approach in many other countries as well, though different countries have adopted varied approaches to the question of whether people convicted of crimes – corruption-related or not – can run for office. In Brazil, politicians convicted of certain enumerated crimes, including corruption-related offenses, are barred for eight years pursuant to a 2009 bill (which had been championed by civil society groups). In Canada, those convicted for corrupt acts must wait seven years from the date of conviction before they can run for the House of Commons (the limit for those convicted of other crimes is five years). In France, courts have the discretion to impose, as part of criminal conviction, a period of up to ten years during which the defendant may not vote or run for public office. Other countries, like Denmark and Finland, leaves the matter up to the parliament, which can vote to disqualify someone convicted of an offense showing untrustworthiness or unfitness for public office.
Are disqualification rules of this sort a good idea? Would it be better if Connecticut had a law like New York’s, which would prevent someone like Joe Ganim from running for life? Should other democracies that suffer from widespread public corruption follow the example of countries like Brazil, which have adopted these sorts of disqualification laws? This solution is indeed a tempting one. After all, the Bridgeport race—and numerous elections elsewhere—show that voters will not always prevent those convicted of serious corruption offenses from seeking and winning public office. Yet the experience of countries that have adopted statutory disqualification signals reasons for caution. Although one must be careful about overly broad generalizations, given the extent of variation in government structure and political culture, disqualification laws raise serious risks, and may not be necessary.
Disqualification may appear anti-democratic, for similar reasons as those raised regarding other eligibility restrictions, such as age-of-candidacy laws and term limits (see also here). What democracy requires with respect to the right to run is by no means settled (see here and here), though most countries, including the United States, have adopted some limitations based on factors like age, place of birth, and residency. The question is whether laws that disqualify candidates on the basis of past corruption are desirable policy.
- First, disqualification laws may be overly blunt. The laws function as a statutory bar, hinging qualifications for public office on the outcomes of a criminal justice process. Concerns about under- and over-inclusiveness, always present when dealing with a bright-line rule, might be especially pronounced in the electoral context, because unlike the criminal justice system, where the state alone metes out the punishment, voters may exercise their own discretion as to individual politicians. That is, voters can take corruption concerns into account and trade them off against other considerations, such as competence. Taking away that discretion from voters might be especially problematic in a context where 97% of criminal charges are resolved through plea bargains. Conditioning eligibility on a conviction created by plea can be troubling, at least in cases where voters may reasonably disagree on whether the behavior would be likely to recur. Even if disqualification laws are not categorically anti-democratic, as discussed above, these difficult cases may nevertheless raise red flags.
- Second, allowing voters to give politicians a second chance could foster increased scrutiny on the position or administration, particularly for places with endemic corruption. Certainly in Ganim’s case, commentators and academics have suggested that his potential mayoral administration might invite intense scrutiny, which would serve as a check against future misbehavior. Further, politicians like Ganim might be more inclined to campaign on, and perhaps also to enact, “clean government” proposals in order to regain voters’ trust. Of course, they may merely concoct improved ways to hide their crimes or break promises, but if this is a risk voters are willing to take, conditioning eligibility on a past conviction still seems antithetical to the notion that a completed punishment should foster rehabilitation and reentry into social and political life. Moreover, if the particular tradeoff voters face involves the potential strengthening of other anticorruption mechanisms, it seems perverse and paternalistic to deprive voters of that choice.
- Third, we might be concerned about political manipulation or prosecutorial overreach. This is less of a concern in the case of disqualification statutes that require a criminal conviction, but in at least some polities, there are legitimate concerns that certain disqualification laws (which are triggered before conviction, at the indictment or investigation stage) may be used as a political tool against opponents. Similar concerns may apply when the legislature has the power to disqualify candidates. Indeed, in Powell v. McCormack, the U.S. Supreme Court noted that the principle that the voters should be able to choose who governs them is “undermined as much by limiting whom the people can select as by limiting the franchise itself.” The Court further voiced that allowing such a limitation “under the guise of judging qualifications” might “vest[] an improper and dangerous power in the Legislature.” Similarly, we might be concerned about prosecutorial overreach during the aggressive pursuit of public corruption resulting in collateral electoral consequences.
Of course, on the other side of the ledger is the concern about corrupt individuals (who may benefit from large popular followings, or simply from relatively uninformed electorates) will be able to (re-)win public office, which they might continue to abuse for private enrichment. In some contexts, this problem, or other factors, may outweigh concerns that I have outlined. Ultimately, the case for adopting a disqualification law is context-specific, and depends on factors like whether the overall tolerance of corruption increases the likelihood that race entrants will be corrupt; whether widespread corruption leads to reduction in voter incentives to punish corruption; and whether the electorate has adequate information about politicians’ backgrounds. These are areas where empirical research focused on the United States, where there is considerable cross-state variation in disqualification laws, is likely to be particularly helpful. More reliable empirical data would help determine whether the tool of disqualification is overly blunt or, perhaps, just blunt enough.
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This story seems simply unbelievable to me. I wonder if it there would be more concerns about disqualification if this sort of thing were happening in elections for positions with larger constituencies or across multiple elections. I am skeptical of the claim that this backstory would lead to greater scrutiny. It seems like the success of Ganim would only encourage others to seek re-election after being implicated in corruption-related matters. Still, I agree with your concerns about disqualification rules being an overly blunt tool and limiting voters’ choices. As you explored, to me this raises questions about democracy, particularly about how much paternalism is appropriate or tolerable (in this case, we know who you shouldn’t vote for). On a broader level, how much paternalism makes sense in other anticorruption tools, like corporations’ debarment from public contracting? My view is that we should have very little tolerance for corruption, and the extremely draining, far-reaching consequences of corruption might justify more paternalism. I agree that in some cases, disqualification could be used as a political tool, but if that were possible, I would suspect the party manipulating the elections in that way might have access to other options to keep his or her opponent from running. I think this makes me come down in the pro-disqualification camp, but perhaps there should be some measures to temper the convictions that would trigger disqualification, like required explanations of the consequences, particularly when agreeing to plea bargains.
Your comparison to corporate debarment is a useful one, and calls to mind a debate that sometimes comes up in that context, which I think is also relevant here: Should we think of disqualification as an additional form of punishment (that is, as a way to punish the offender for past conduct, and perhaps to deter others), or instead as a preventive measure as a way to protect the public from a person or entity who been shown to be untrustworthy?
At least as a formal matter, corporate debarment is supposed to be preventive, not punitive–though some commentators have argued for its use as a sanction, and in practice it’s clearly important as a deterrent. In the case of politicians, how much of your instinct that someone like Joe Ganim should not be allowed to run for office again based on your (backward-looking) sense that he should suffer additional consequences for his breach of the public trust, and how much of your instinct is based on your (forward-looking) judgment that someone with his record is much more likely than other politicians to violate the public trust in the future?
Great post! Overall, I think you are right that this inquiry should be context specific and I agree with the dynamics you suggest. Two questions/comments:
In the first bulled point about possible over-bluntness, you mention concern about conditioning eligibility on convictions that occur through plea bargaining (the vast majority). If a disqualification law existed in a particular jurisdiction, theoretically wouldn’t defendants be on notice of this additional consequence of accepting a plea and the guilty verdict it entails, and able to take disqualification into account during plea negotiations? Or is the idea that disqualification might be the kind of consequence that we want out of the reach of lopsided plea negotiations?
In the second bulleted point, you mention the desirable consequence of increased scrutiny of second-chance politicians. I think it’s definitely possible that electing a candidate with a history of corruption could up the integrity bar and level of scrutiny going forward. But alternatively, wouldn’t such an election show that voters are perhaps discounting the importance of integrity and corruption issues? It may not be the case that voters care or are convinced about the candidate’s reformed nature, but just that something else is more important than his or her past corruption (as you mention). The result could be less, not more, corruption scrutiny.
The point you raise about notice is interesting. Generally, and across all types of cases, I’m inclined to think that even being on notice of an additional punitive measure (if we think of disqualification as such) wouldn’t much change the plea bargaining calculus in the face of potential charges one might face by choosing to go to trial. In the public corruption context, I agree that it may be that the “trial penalty” is far less than in cases across the board, so being on notice of disqualification might have more of an effect on the decision to take a plea. I’m not sure, and I’d have to further research this. Still, my personal instinct is to be a little uncomfortable with the idea of political disqualification by plea, at least with cases that may be less clear-cut to the public, and which may not have resulted in a jury conviction. In general, I tend to be less than enthusiastic about bright lines that create for a non-rebuttable presumption of guilt even after serving a sentence.
I continue to struggle with the second question you raise. I think if voters are consciously discounting corruption because they’re voting on a different issue that’s more important, that doesn’t seem ideal, but I would be hesitant to say that they shouldn’t be able to make that decision at all, even if their relative complacence as to corruption results in less scrutiny. While this may not have come across in the post, I was guessing that prosecutors who work in public corruption (including the offices that investigated the candidate before) might be on alert, and the candidate might know this. But, as I mentioned, this might just mean the politicians will increasingly improve at hiding corruption, so I completely understand your skepticism.
Now I’m left thinking about one of the most difficult issues for me, which your question reminded me of–it’s unclear how much of what voters are doing, in the aggregate, is the result of a conscious trade-off versus a more passive effect of other influential factors such as an incumbency advantage or media influence. And how much should the answer to this matter, especially when in many elections only a small percentage of citizens might vote anyway?
Hopefully this post can spark a lot of conversation–it’s a topic where I can imagine either side putting forward strong, impassioned arguments. The more ideological side of me wants to insist on such disqualification being inappropriate in any democracy (largely for a reason you mention in your second point, that after serving time one is supposed to be able to fully reenter society–I suppose the counterargument to that is that, even beyond disenfranchised former felons, there are people convicted of certain criminal acts whose behavior society continues to restrict or monitor, and that one should just see the disqualification from political office as part of the sentence, not a restriction of post-served sentence activity), but I can certainly understand the pragmatic concern that it should be context-specific; it’s easy for me to be more dogmatic when I’m dealing in the abstract, and not having to face the fact that without such a bar, the election of previously convicted candidates could facilitate the sort of “I can get away with this” attitude that Rathna highlights could increase the number of corrupt acts in which politicians (or potential future politicians) engage.
The fact that disqualification in this context is tied to criminal punishment raises distinctive issues from other limitations on running for electoral office, like age or term limits. Interestingly, I think that the different considerations it raises weigh on both sides of the ledger–on one hand, disqualification based on past corruption seems less arbitrary than a hard age cut-off given the previous violation of the public trust; on the other, extending a criminal punishment, like you said, may raise concerns. In addition to the counterargument you identify, there also might be reason to doubt that full reentry into civic life requires access to elected office, or even that access to elected office facilitates such reentry, in the case of politicians who abused their offices. But setting these boundaries to what qualifies as “full reentry” to civic participation would raise the democracy concerns, I think, that we both mentioned.
Would one context-specific factor be the electorate’s educational level? Where a large percentage of the electorate is poorly educated, if educated at all, would disenfranchisement be more appropriate than if a large percentage of the electorate were well-educated?
Would a second factor be the degree of electoral competition? If one party is dominant, would a disenfranchisement law be more appropriate? As a way of keeping corrupt candidates of the dominant party from winning despite their corruption. Or would the risk of manipulation of the courts to convict, and thus disenfranchise, popular candidates who belong to the opposition mean disenfranchisement would become a tool of the dominant party? The latter appears to be the case in Venezuela — at least according to an editorial in the October 30 New York Times (http://www.nytimes.com/2015/10/31/opinion/tainted-justice-in-venezuela.html?_r=0).
Great post and quite relevant in countries where a large percentage of elected officials have criminal backgrounds. “According to a recent analysis of 541 of the 543 lawmakers by India’s Association for Democratic Reforms, the country’s new parliament has 186 members (about 34 percent) facing criminal cases. The group’s previous reports show that the number has steadily risen since 2004.” Huffington Post, May 23, 2015, http://www.huffingtonpost.com/2014/05/23/india-parliament-criminal-charges_n_5365225.html
I like the idea of setting up factors that might allow for certain rubrics for determining when disqualification would apply and when it would not. Although context-specific application makes a lot of sense, I worry that uncertainty will lead to gaming by politicians who are on the borderline for disqualification.
I am drawn to the idea of making one factor the level of political competitiveness. When there is a competitive race between the parties for a particular position, there are two opportunities for two different voting populations (with substantial overlap depending on how primary elections are administered) to apply the electoral sanction to the corrupt candidate. However, in cities such as Bridgeport where one party dominates, the electoral sanction can only be applied once.
I am not entirely sure how to administer a law where disqualification would turn on the competitiveness of the position sought. How competitive would the seat have to be for it to qualify as competitive, thus allowing a previously convicted politician to run. I also agree that there are a number of concerns related to the risk of manipulation by the courts (either to convict or to acquit) given the role political parties play in the judiciary in many states.
Not surprisingly, I think campaign finance reform could play a role in addressing concerns with convicted politicians getting reelected, but that is beyond the scope of this comment.
One additional category that could logically influence whether debarment is appropriate: how much media attention and therefore voter attention the race is likely to garner. I could see a strong argument that disqualification is needed less for high profile races (at the extreme end, say for President) because the media and the opposing candidates would work hard to make previous corruption salient to voters. In much more local election contexts, say for county legislators, the typical voter (regardless of the baseline educational achievement in the district) may have far less knowledge of the candidates and therefore not be consciously trading off previous corruption for other perceived benefits.
Adopting this approach would definitely mean we are looking at the problem from a future protective angle rather than a sanctioning angle — it would make no sense to have a sanction that would prohibit people from seeking ‘small’ electoral prizes but allow them to compete for ‘big’ ones.
Excellent post. Thanks for raising such an interesting and meaty issue.
I had three quick thoughts to throw into the chorus here:
1) While this might appear counter-intuitive, I think there is a clear argument to be made that these candidate disqualification laws can actually be democracy enhancing. Corruption can and often is used to consolidate power, not just line politicians’ pockets. If that’s the case, corruption is then democracy-limiting because it makes challengers less likely to persevere and thus effectively limits voter choice. While these disqualification laws might not stop corruption in the first instance (except through deterrence), they could prevent it from reoccurring and thus increase the efficacy of the democratic process itself.
2) While reelection of previously corrupt candidates might lead to enhanced scrutiny during their term in office, I would suspect that effect dissipates when they leave office. And, problematically, the election of candidates with a history of corruption could send a signal to other officials that the costs of corruption aren’t that high.
3) Finally, I want to largely agree with the point many people are making about the contexts in which these laws would be problematic. If the judiciary itself is corrupt, as Rick suggests may be the case in Venezuela, these laws can have the effect of limiting voter choice but not for the reasons we want. Honest opposition politicians can be disqualified from running based on sham allegations. While there may be a debate about whether these laws should be used at all, they clearly don’t seem to appropriate instances of a weak judiciary and/or instances where the judiciary has been captured by the dominant political party or some interest group.
Thank you for raising these points! I thought about your first point a lot–the idea that limitations can be democracy-enhancing is interesting and in many ways appealing. I think this is a place where theorizing about democracy could particularly benefit from empirical data or studies. Your point about corruption’s ability to consolidate power is an excellent one. Additionally, the perseverance of corruption could have longer-lasting effects on voter behavior, which can also affect the effectiveness of democratic processes. Your second point about the effect of enhanced scrutiny dissipating is also an interesting one. I wonder, though, if that matters. For one, if the next person to be elected is not corrupt, then the office may merely be left in a state of “regular” scrutiny. If the next person is also someone with a history of corruption, they, too, might incur enhanced scrutiny. I definitely agree that re-election of candidates with a history of corruption could signal that the costs of corruption to a political career aren’t that high, thereby making entrants into the process more likely to be corrupt (either inviting those who were already corrupt to throw their hats into the ring, or by changing the calculus of those who decide to become corrupt). But at the same time, as long as actors such as federal prosecutors or independent investigatory bodies maintain enhanced scrutiny during politicians’ times in office, would potential entrants be able to consider this factor and alter their own behavior or decisions to run?