In the elections last November 6, citizens in New Mexico and North Dakota voted to amend their state constitutions to establish state anticorruption commissions. In doing so, they joined the vast majority of American states (currently 44 out of 50) that have created similar (or at least similarly-named) commissions—starting with Hawaii back in 1968. The impulse to create a special commission to deal with a significant problem like public corruption is certainly understandable. Indeed, many state commissions were created immediately after a major public corruption scandal, when public frustration was running high. At the same time, though, the record of such state-level anticorruption commissions in the US is mixed at best (see, for example, here, here, and here). And despite the similarities in their names, many of these commissions actually do quite different things—with some functioning like ethics commissions that publish quasi-legislative standards and others functioning more like mini-prosecutors’ offices. Indeed, it’s not entirely clear that voters in New Mexico or North Dakota knew exactly what they were voting for when they went to the ballot boxes. In New Mexico, the referendum measure left to it to the state legislature to determine how the commission would operate, while the language in the North Dakota referendum suggested that the commission’s duties would be largely optional.
Despite their diversity and admittedly mixed track record, state anticorruption commissions have many potential benefits. They can provide clear reporting channels for individuals who have witnessed corruption; they can evaluate systemic corruption risks by sector and recommend more targeted reforms to state legislators; and they can enhance accountability by investigating ethics complaints and corruption allegations, and referring appropriate cases to state prosecutors’ offices. But in order to be effective, state commissions need to have certain institutional features and safeguards.
- First, it’s important that anticorruption commissions be independent of the party in power and able to undertake important investigations without fear of reprisal. In practice, this means that the commissioners of state anticorruption commissions should be removable only “for cause” (that is, for malfeasance in office) rather than “at will.” Furthermore, an independent commission should, like the majority of federal independent commissions, be governed by a bipartisan coalition to ensure critical investigations don’t have the appearance of partisanship. States have used different formulas to create bipartisan coalitions on their anticorruption commissions. In California, for example, the members of the five-person Fair Political Practices Commission (FPPC) are selected as follows: the Governor appoints two members, including the chair, but these two commissioners cannot be from the same party; the state Attorney General, the State Secretary, and the State Controller each appoint one of the other three commissioners, but if all three of those officials share the same party affiliation, then the Controller is required to choose a commissioner from a list provided by the opposition party. (Each commissioner serves staggered four-year terms and can only be removed for “substantial neglect of duty, gross misconduct in office, inability to discharge the powers and duties of office or violation of this section, after written notice and opportunity for a reply.”) West Virginia’s Ethics Commission also requires that commissioners be appointed from different parties as well as different parts of the state. However, its “for cause” protections are broadly defined, and thus easier to overcome.
- Second, because anticorruption commissions are powerless if they can’t actually investigate the complaints they receive, states should empower their commissions with meaningful investigative authority over the executive and legislative branch, including independent subpoena power. For example, Washington State has two anticorruption commissions (one for the executive and one for the legislative branch), both of which possess subpoena power and, as a consequence, have resulted in considerable number of investigations. Virginia, by contrast, has one anticorruption commission (created in 2015 following the federal indictment of former Governor Bob McDonnell) which lacks any investigative power whatsoever. (Even formal investigate powers are no guarantee of effectiveness, however, if the commission is not sufficiently protected from interference: New York’s Moreland Commission, for example, was established in 2013 to investigate public corruption; and had formal subpoena power—but when it sought to use that power to investigate organizations close to Governor Cuomo, it was disbanded.)
- Third, commissions should be empowered to investigate corruption occurring at the municipal, not just state level. In Indiana, for example, although there are a wide array of state anticorruption institutions – including a state inspector general and ethics commission –none of these institutions can investigate corruption at the municipal level where reports of corruption are actually highest. While the ideal solution might be to create strong anticorruption bodies exist on the municipal level as well (as has been done, for example, in places like Pennsylvania), having a second check at the state level can ensure those organizations do the work they promise their citizens. In 2012, Utah did exactly that when created the Political Subdivisions Ethics Commission to investigate allegations of corruption by local officials in any political subdivision in the state.
- Fourth, effective commissions need to be protected from “hollowing out” through budget cuts—a phenomenon that is both unsurprising and all too common, given state legislators’ incentive to keep an anticorruption agencies from getting too powerful. In July 2018, for example, Oklahoma refused to provide any funding for its state anticorruption commission; the legislature instead suggested that the commission use the $700 (not a typo) it had in its revolving fund. Similarly, the Delaware Public Integrity Commission has a budget of $185,000 and just one lawyer. By contrast, South Carolina State Ethics Commission has a budget of $1.3 million, while California’s State Ethics Commission has a budget of $11 million. To ensure that state anticorruption commissions remain effective, they should be guaranteed a minimum budget by law, or alternatively the budget for the anticorruption commission should be tied to state spending on other law enforcement priorities so that the anticorruption commission can’t be singled out for cuts.
While it is unclear how legislators in New Mexico and North Dakota will develop the commissions its citizens have endorsed, both states benefit from the immense experimentation that has already occurred in this space. Voters should push their legislators to adopt the aforementioned safeguards to ensure their commissions succeed.
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Thank you for this interesting post, Hilary. It highlights the simple fact which many seem to forget, that it is just not enough to establish an anticorruption agency to effectively fight corruption if such an agency is either toothless, nonautonomous, partisan, or cash-strapped. An anticorruption agency with any of these limitations might even weaken anticorruption efforts rather than strengthen them.
You mentioned in your post that for anticorruption commissions to be independent, their commissioners “should be removable only ‘for cause’ […] rather than ‘at will’.” This is a very important recommendation. In order to strengthen the independence of the commissioners of anticorruption commissions even further, I would also recommend that the commissioners shall be appointed for a fixed, non-extendable term. For some of the main benefits of such terms to anticorruption efforts, please refer to my latest post calling for abolishment of the current Israeli practice of police commissioners’ extendable terms: https://globalanticorruptionblog.com/2018/12/03/the-case-for-abolishing-police-commissioners-extendable-terms-in-israel/.
We have a similar issue in Lithuania. Anti-corruption has become a popular slogan for politicians here which resulted in establishing a lot of new initiatives over the years, including the fact that now all municipalities have anti-corruption commissions. It is absolutely not clear what their mandate is, nor when exactly they should act (with all the other institutions that have anti-corruption mandate and a number of reporting channels, it becomes really blurred – even confusing). I have been advocating for clear measurable goals (and measurement of effectiveness) for such institutions, but also I think it is just important to be really honest and see if they even make sense after they have been operating for a while. I think too often anti-corruption policy does not operate on an assumption that some decisions need to be reviewed and maybe even overturned if it turns out it is not working well.
I am not sure what is the case in the US from this perspective, but if it is possible, it would be really useful to review how effective the commissions have been in the states where they work and whether it makes sense to keep them and to establish them in other states. Sure, the headline “X politician is closing down anti-corruption commission” sounds like a hot political potato, but I would like to think that the politicians are capable of managing such potentially divisive issues.
I agree with the recommended features and safeguards. I would like to add that US state anti-corruption institutions should have another institutional feature—mechanisms to support prevention and education. Enforcement and investigation are certainly important, but prevention, through education and training, public awareness campaigns, data collection and periodic reporting, and other means, is another important piece to the anti-corruption puzzle. This is supported by the fact that prevention and education are components of the UN Convention Against Corruption. Additionally, as the United Nations Office on Drugs and Crime states, “prevention is better than cure” when it comes to corruption because public trust, economic development, and security are at stake. (https://www.unodc.org/unodc/en/corruption/prevention.html)
The Independent Commission Against Corruption out of New South Wales in Australia (NSW ICAC) is one institution that takes a multi-pronged approach to fighting corruption that includes prevention and education. NSW ICAC’s organizational structure includes a communications and media section as well as a corruption prevention division. The institution’s website indicates that NSW ICAC’s principal functions are, in part, to “actively prevent corruption through advice and assistance” and “educate the NSW community and public sector and corruption and its effects.” NSW ICAC should serve as a blueprint for US states because it is an example of an independent state anti-corruption institution that functions within a federal system. (https://www.icac.nsw.gov.au/)
Moreover, your post and the previous comments sparked a couple questions in my mind:
• (1) What is the status of North Dakota’s and New Mexico’s commissions to date?
• (2) What do state anti-corruption institutions look like across the US and how effective have they been?
As of August 2019, five members have been selected to serve on North Dakota’s new ethics commission. New legislation passed in April 2019 requires staggered terms. (https://www.governor.nd.gov/news/updated-committee-selects-five-members-new-north-dakota-ethics-commission-thanks-applicants). An article published in The Bismark Tribune in September 2019 reveals that the commission will be responsible for writing rules. However, questions still remain about the extent of the commission’s power. (https://bismarcktribune.com/news/local/govt-and-politics/extent-of-north-dakota-ethics-commission-s-authority-already-questioned/article_4ffafcc6-d711-5975-87fc-7663a2f87473.html) The commission has reportedly already received its first complaint, despite the fact that it does not yet have procedures in place for handling complaints. (https://bismarcktribune.com/news/local/govt-and-politics/north-dakota-ethics-commission-receives-first-complaint/article_23d4e4fb-342d-54a2-9468-caca6d186ad8.html) I worry that this lack of direction may hinder this body’s effectiveness, at least to start. Moreover, if the commission plans to forward some complaints to other state agencies as mentioned in one of the articles, the commission will have to work to ensure systems are in place that promote cooperation and follow-through with regard to investigation and enforcement.
New Mexico’s institution will begin receiving and investigating complaints on January 1, 2020. In comparison with North Dakota’s commission, New Mexico’s institution appears to much more in the form of an independent agency—it will have an executive director and general counsel. (https://www.abqjournal.com/1365907/ethics-commission-offers-top-post-to-farris.html) Only time will tell how effective these institutions will be. I agree that these state bodies must strive to have all of the features and safeguards that you list above, as well as an education/prevention component.
In looking at existing state institutions, I found two sites that are helpful in comparing states’ ethics institutions. These websites highlight examples (and non-examples) of institutional structures that other states and countries can look to in developing and strengthening their own agencies. Columbia Law School’s U.S. Anti-Corruption Oversight: A State-by-State Survey (https://www.law.columbia.edu/capi-map#capi-mapinfo), which you have linked above, is helpful. The state reports are useful in describing each state’s issues with regard to ethics and corruption and the steps each state has taken to combat its issues. I find this site to be particularly useful because of the map filters. For example, there are filters that measure, via the color-coded map, state institutions’ independence safeguards and investigative powers.
The National Conference of State Legislatures site (http://www.ncsl.org/research/ethics/50-state-chart-state-ethics-commissions-jurisdic.aspx) is also helpful. It compares the jurisdictions of ethics commissions in each state. While jurisdiction does not necessarily equate to effectiveness, it certainly highlights the variance of scope in state ethics oversight across the country. Another chart from the National Conference of State Legislatures details the powers and duties of each institution. (http://www.ncsl.org/research/ethics/50-state-chart-state-ethics-commissions-powers-a.aspx) Notably, several states’ ethics institutions include educational objectives (e.g., Alabama, Delaware, and Louisiana), but not all do. Again, this is an area in which state ethics commissions should be strengthened because education and prevention are key in the fight against corruption.