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.