Congress Should Act to Make US Aid to Ukraine Contingent on Anticorruption Reform

Since the Maidan Revolution removed former President Yanukovych from power in 2014, anticorruption progress in Ukraine has been uneven at best. Ukraine passed important anticorruption legislation in 2015, yet implementing it has been a challenge. Progress in some areas, including the judiciary and prosecutors’ offices, have met with significant and growing resistance. Many reformers within the government have resigned. For what it’s worth, Ukraine’s Corruption Perceptions Index score has only marginally improved. Still, there has been some progress. A significant portion of Ukraine’s budget is comprised of foreign aid, and donors—who have little patience for having their money stolen or wasted—have pressed the Ukrainian government to take the fight against corruption more seriously. The biggest anticorruption reforms have therefore been the ones on which large donors made their aid contingent.

The United States is one of the most important of these donors. The U.S. sends billions in loan guarantees, military aid, development aid, and State Department spending to Ukraine. During the Obama administration, anticorruption, and political reform more generally, was a high priority for the U.S. in its relationship with the post-Maidan Ukrainian government. Former Vice President Biden emphasized anticorruption during his five visits to Ukraine, and put personal pressure on President Poroshenko to follow through on his commitments in that area. Biden also played a role in delaying one billion dollars in loan guarantees to Ukraine due to corruption concerns—an approach the IMF has also embraced. But the anticorruption strings that the U.S. had attached to foreign aid in the past were imposed as a matter of executive discretion rather than legislative obligation.

Under the Trump administration, perhaps unsurprisingly, ensuring that Ukraine follows through on its anticorruption reforms has not been a foreign policy priority. No highly visible person in the current administration has taken on Biden’s conspicuous role in ensuring Kyiv follows through on its Minsk commitments. If President Trump isn’t willing to use U.S. leverage to continue to push for anticorruption efforts in Ukraine, the U.S. Congress can and should step in by putting anticorruption conditions on at least some American spending in Ukraine. It would be difficult for Congress to write very specific anticorruption reform conditions into law, given the dynamic and fast-paced situation. If Congress, for example, enacted a statutory provision stating that “Ukraine must have passed legislation to establish an anticorruption court by August 2018 in order to receive these funds,” that legislation would quickly become obsolete. What Congress could do instead would be to enact legislation requiring that, for each line item in the budget involving a disbursement of money to Ukraine, require the implementing agency to first make a finding that Ukraine has made progress in anticorruption reform before disbursal. This is not a novel idea; in fact, it is modeled on existing limitations on funds to Ukraine. For example, Section 7046 of the 2018 appropriations bill provides $410 million for assistance to Ukraine, but specifies that no funds may be made available to a government that violates the territorial integrity of another state. (There is an escape clause out that allows the funds to be provided if the President determines that doing so is in the interest of national security.)

Direct Congressional action of this sort would send a strong signal to the executive branch departments and agencies responsible for aid disbursement that, regardless of the amount of attention the President or Cabinet-level officials pay to Ukraine, there must be pressure on Ukraine to keep making progress on fighting corruption. Congressional action could also send a strong signal to Ukraine that there is a continuing US commitment to improving the government and protecting Ukraine, regardless of who the President is.

That said, this plan does have some drawbacks. For one thing, it would impose significant, and probably unwelcome, burdens on the State Department, Department of Defense, and other implementing agencies. Policymakers might also worry that writing any specific requirement into legislation could be manipulated to unfairly reduce Ukraine’s assistance, or simply that failing to provide necessary aid to Ukraine could undermine its stability or ability to resist incursions by Russia. Making some aid to Ukraine—such as military aid and loan guarantees—unconditional, while attaching conditions to development assistance, could mitigate these concerns. Another potential problem, in some ways the flip side of the last one, is that willful implementing agencies might find ways to circumvent the limits on providing aid, perhaps simply by declaring that Ukraine has made anticorruption progress when in fact it has not. I suspect, however, that most agencies will be reluctant to lie in reporting to Congress. (If they are not, then the problem is a lot bigger than what to do about Ukraine.)

If America allows aid into Ukraine without regard to progress in fighting corruption, this could undermine hard-won Ukrainian democracy and would betray the aspirations of Ukrainian reformers. As guest poster Cristina Nicolescu-Waggonner argued in a prior post, allowing corruption to flourish undermines democratic consolidation. In light of the Trump Administration’s uncertain position on this issue, Congress should act to ensure that Kyiv continues to push forward with real anticorruption reform.

This entry was posted in Commentary and tagged , , , , by Susannah Marshall. Bookmark the permalink.

About Susannah Marshall

Susannah Marshall is a student at Harvard Law School specializing in international law and diplomacy. In law school, she has worked for the American Bar Association Rule of Law Initiative in Yerevan, Armenia, and for the American NGO Protect Democracy. Before law school, she worked in the United States Senate on matters related to energy, the environment, and international trade and labor issues. Susannah is from Minneapolis, Minnesota and speaks Spanish and Mandarin Chinese.

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