When corrupt politicians are caught and convicted, they may suffer a variety of penalties, including fines and incarceration, and the government might also seize assets that were the proceeds of the wrongdoing. But punishing the individual politicians is not enough to deter wrongdoing or to compensate for the harm that the corruption causes. Moreover, even when an individual politician was the only actor who deliberately and intentionally engaged in corrupt criminal activity, that individual politician is not the only one at fault. Politicians’ decisions are affected by norms within a political party— for example, by expectations (sometimes unstated) that politicians will bring in a certain amount of money for campaign funds through graft.
For these reasons, political parties— in addition to the individual politicians— should be held liable for corrupt acts committed by their members in the course of their political activities or official duties. And such liability should attach even if the political parties’ leaders did not specifically know about or overtly endorse the corrupt acts in question.
This may seem like a radical suggestion, but in fact there are many contexts in which the law imposes so-called “vicarious liability” on organizations for acts committed by the organization’s members or agents. For example, the legal doctrine of respondeat superior (Latin for “let the master answer”) says that an employer (or other principal) can be held accountable for the wrongful actions of an employee (or agent), if the wrongful actions were within the normal “scope of employment.” Common examples include suing a hospital for the malpractice of one of its physicians or holding the government financially liable for wrongful conduct by law enforcement officers. (Although respondeat superior derives from English common law, other legal systems, such as those of Brazil and France have broadly similar concepts of vicarious liability.) Similarly, under the law of many jurisdictions, a corporation may be held liable (not only civilly, but also criminally) for acts committed by corporate employees—even if corporate management did not condone or even know about the criminal acts. These vicarious liability doctrines are important because a single employee frequently does not have the resources to redress the wrongs committed, and also because the employer often bears some responsibility for whatever the employee did, due to company culture, training, and incentive schemes. Because of this, economists point out that vicarious liability can be more socially efficient: The organization may be in a better position to detect and prevent wrongful conduct, so placing the liability on the organization can give it the appropriate incentives to take cost-justified measures to prevent the wrongful activity from occurring in the first place.
Although vicarious liability is a well-established legal principle, often used to hold employers responsible for the conduct of their employees, that concept has not yet been extended to hold political parties, as organizations, legally responsible for the corrupt acts of their members. Such an extension may seem radical, and in a sense it is, but it would be justified.
To make this case, I’ll apply the three-pronged standard that Black’s Law Dictionary lays out for respondeat superior liability to be appropriate in the employment context: (1) The individual was an employee when the occurred; (2) The employee was acting within the scope of his or her employment; and (3) The activities of the employee were a benefit to the employer.
- First, though politicians are not “employees” of their political party in the conventional legal sense, they are undoubtedly “agents” of the party in the relevant sense. This is most clearly the case in closed-list proportional representation systems (used, for example, in Argentina, Italy, Spain, Russia, and South Africa), where voters cast their ballots for a party rather than for an individual candidate, and the parties fill the seats they win according to a predetermined list that the party has created. Effectively, voters hire a party, and the party hires the legislators. Even in countries that use winner-take-all or open-list proportional representation systems, the politicians are still agents of the parties in most relevant respects, at least where parties exert considerable control over their members.
- Second, although not all criminal acts committed by politicians could be said to be in their capacity as politicians or party members (as opposed to their individual private capacity), many acts of corruption are committed in the context of political or official governmental activity, not substantially different in kind from torts or criminal acts committed by company employees in the scope of their employment. For example, making public expenditures and overseeing procurement are well within the normal scope of a politician’s employment, and this is often when corruption occurs,
- Third, traditionally for vicarious liability to attach, the individual agent’s unlawful conduct must have been for the benefit of her principal (that his, her employer or organization). In the context of politicians and political parties, while many acts of corruption are solely for personal enrichment, many are for the benefit of the party. Indeed, in many countries, it is implicitly or explicitly understood that politicians will divert some share of public funds or bribe proceeds to finance campaigns to stay in power.
Thus, in common law jurisdictions, precedents already exist that may make it possible for prosecutors to bring such cases to court. In civil law jurisdictions and common law jurisdictions that have less precedent on vicarious liability, additional laws could be passed to clarify a political party’s liability for corruption by its members. Ideally, parties would be found at fault if they acted negligently—that is, if the party failed to establish appropriate norms and controls to prevent corruption. If a party could show that it had adequate norms and controls in place, the party should not be held liable. Parties found at fault would be required to compensate the public for the stolen funds if the guilty politician is unable to do so, and to compensate the public for the inefficiencies introduced into the economy as a result of the distorted incentives corruption causes. Those damages, while more abstract, are just as real and just as harmful.
While making political parties liable for corruption will not work in every jurisdiction and in every situation, holding political parties liable is important because a single politician frequently does not have the resources to redress the wrongs committed, and also because the political party often bears some responsibility for whatever the politician did, due to party culture, incentives, and expectations. Vicarious liability for corruption could help parties to change their often-toxic corruption norms, as well as provide reparations for the great harm corruption causes.