Monthly Archives: February 2020

Improving India’s Right to Information Law to Protect Citizens

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As I discussed in my last post, India’s Right to Information (RTI) law has proven to be a remarkably effective anti-corruption tool, for two main reasons. First, the law makes it easy for ordinary citizens to submit information requests. Second, the law creates a system of review by independent Information Commissions, at both the central and state levels, to ensure compliance. Citizens can appeal a government agency’s failure to provide information, or an insufficient or incomplete response to an information request, to the appropriate Information Commission, which are endowed with both autonomy and strong enforcement powers. But last July, the Indian parliament amended the RTI law—over the objections of both the opposition and civil society organizations—in ways that undermine the effectiveness of the law by giving the central government more control over the functioning of the Information Commissions.

My last post focused on criticizing these amendments, and I will not restate those criticisms here. Instead, I will take up another question: How should the government improve the RTI law? For while the law has indeed had a positive impact—as an anti-corruption tool among other things—its effectiveness is hampered by a number of important problems. Among the most serious is the risk of retaliation against RTI users. Such retaliation can take the form of harassment, threats, physical assault, and in some cases even murder. To take just one egregious example, this past December the activist Abhimanyu Panda was murdered in the state of Odisha, allegedly in connection with his vigorous use of the RTI law to expose corruption. (According to news reports and a fact-finding report by a civil society network, days before Abhimanyu’s murder he had filed multiple RTI applications asking for information concerning a subsidized food program intended for the poor. His requests sought information about the recipients and the grain stocks at particular locations; if there is corruption in the program, these are the sorts of documents that would be altered or made to disappear.) Sadly, Abhimanyu is far from the only victim. There have been over 442 documented attacks and over 80 murders of citizens directly related to the information they have sought under the RTI law. These cases end up being treated as criminal matters and investigated by the police—as they should be—but the institutions associated with implementing the RTI law should have a more active role in addressing and preventing the retaliation problem.

In particular, there are two measures the government could take—possibly under the existing legal framework—that would improve transparency and diminish the incentive to use the threat of retaliation to keep incriminating or embarrassing information out of the public eye. Continue reading →

Guest Post: The Infeasibility of Evidence-Based Evaluation of Transnational Anti-Bribery Laws

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Kevin Davis, the Beller Family Professor of Business Law at New York University School of Law, contributes today’s guest post, based on his recent working paper.

Academics and policymakers enthusiastically endorse “evidence-based” policymaking, for obvious reasons. (After all, what is the alternative? Faith? Popularity contests?) But while evidence—including quantitative evidence—is often helpful, we must be mindful of the limits on what empirical analysis can tell us about important topics. Take the regulation of transnational bribery. Scholars and policymakers would like to know if the current regime—laws like the U.S. Foreign Corrupt Practices Act (FCPA) and U.K. Bribery Act, and international instruments like the OECD Anti-Bribery Convention—has “worked.” That is, have these instruments reduced bribery by the firms that they cover? And did those laws have additional, possibly undesirable collateral consequences, for example reducing investment in countries perceived to be corrupt?

The most sophisticated efforts to answer these questions (see, for example, here and here and here) essentially rely on what social scientists call “natural experiments.” First, the intervention (the law or policy change) of interest, which (in a borrowing from medical terminology) researchers call the “treatment.” Next, one must identify the population of interest—say, firms or countries—and an outcome of interest (such as the frequency of bribery or the level of investment). Then, the researcher identifies the subset of those entities that are affected by the intervention (for example, the firms that fall under the jurisdiction of the new anti-bribery law); this is the “treatment group.” The researcher also identifies another subset of entities—the “control group”—that appears otherwise similar to the treatment group, but did not receive the treatment (for example, a group of firms that are outside the jurisdiction of the new law). The big difference between a “controlled experiment” and a “natural experiment” is that in a controlled experiment the researcher can randomly choose which members of the population receive the treatment (for example by randomly selecting some patients to get a new drug and giving the other patients a placebo), but in a natural experiment, the assignment of the treatment is done not by the researcher, but by some “natural” process in the world. In trying to figure out the effect of an anti-corruption law, it generally is not feasible to conduct a controlled experiment: researchers can’t decide that these firms but not those firms, selected at random, will fall under the jurisdiction of an anti-bribery law. So the best that researchers can do is to rely on natural experiments and try to account as best they can for possible differences between the control group and the treatment group by including additional control variables in a multivariate regression.

Unfortunately, when it comes to studying the effects of transnational anti-bribery laws, these sorts of studies face several fundamental challenges, which are all too often overlooked or understated. Continue reading →

What to Study in a Corruption Studies Program: Comments & Information Please

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Despite Trump lawyer Rudy Giuliani’s attempt to paint Ukraine as a cesspool of corruption to advance his client’s reelection, media reports (here and here) and assessments by the IMF and the World Bank show the country making steady progress in bringing corruption to heal. One especially promising sign is the large number of university students and mid-career professionals studying how to combat corruption. Last September Ukraine’s Anticorruption Research and Education Center (ACREC) partnered with the National University of Kyiv-Mohyla Academy, the nation’s oldest institution of higher learning, to offer a degree in corruption studies for students and a certificate for civil servants, business executives, and others in the workforce needing to know more about the topic to better do their job. Classrooms are bulging, and plans are being made to expand the number of courses.

The Ukraine program sparked the interest of other Eurasian nations in starting similar programs, and in January representatives of non-governmental organizations and universities from Armenia, Georgia, Kyrgyzstan, and Moldova met in Kyiv to learn from ACREC’s experience. Topics included whether to concentrate on students or mid-career professionals, whether, as in Ukraine, a program should be offered by a partnership between an NGO and a university, and the pros and cons of charging tuition versus seeking a grant from the government or a donor agency.

I spoke about what to teach. As the notes from my talk show, my bias is towards a heavily academic curricula, one that stresses analytical tools that prepare students to tackle a range of public policy issues. That is not the only way to teach about corruption, and indeed my friend Alan Doig has argued for a different focus.

I had planned to compare my proposed corruption studies curricula with those offered by universities and other institutions across the globe, but surprisingly little is readily available on the web.  A 2013 U4 Anticorruption Resource Centre study catalogued the courses and degree programs then offered but contains little on what is taught and many of the links to the programs are dead.  The only substantial description of a curricula I found was that of the International Anticorruption Academy, which has offered a Masters-level program in corruption studies since 2012 along with individual courses on specialized topics. (Full disclosure: one of which on local government I have taught on occasion.)

If we want more effective anticorruption policies and better implementation of those policies, we need policymakers, policy advisors, administrators, lawyers and business executives with a deep understanding of corruption and how to combat it. There is no one curricula or course that will meet everyone’s needs.  The more the global anticorruption community knows about what has been taught and what has been learned about teaching corruption, the better.  Readers with thoughts on what students and anticorruption practitioners should learn, with course syllabi, information on degree or certificate programs, and experience in or techniques for teaching about corruption are invited to share their knowledge with the GAB community.

New Podcast, Featuring Gary Kalman

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, I interview Gary Kalman, formerly (and at the time of the interview) the Executive Director of the FACT Coalition, and now the Director of the U.S. Office of Transparency International. The first part of our conversation focuses on the work Mr. Kalman did at the FACT Coalition on the push for new U.S. legislation to crack down on anonymous companies. We also discuss his vision, and top priorities, for Transparency International’s new U.S. office.

You can find this episode, along with links to previous podcast episodes, at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

The 2019 Amendments to India’s Right to Information Law Threaten to Blunt a Powerful Anticorruption Instrument

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India’s Right to Information (RTI) law, originally passed in 2005, gives all citizens the right to submit a request for information (in person, in writing, or online) to any public authority at the national, state, or local level; the request may concern any information related to the functioning and affairs of that authority. If the request is denied or unduly delayed, or if the information provided is incomplete, applicants may appeal, first to a designated Public Information Officer at the public authority to which the request was made, and then to special bodies called Information Commissions, established at both the state and national levels. These Information Commissions are designed to be autonomous and have the power not only to order timely production of requested information, but to levy penalties on public authorities for noncompliance and to award compensation to citizens whose requests were wrongfully denied or ignored.

India’s RTI law—which is one of the strongest such laws in the world, used by an estimated 4-6 million people annually—has proven to be a particularly effective anti-corruption tool. There are hundreds of examples of ordinary citizens using the RTI law to expose local government corruption, and the law has also unearthed some major national-level corruption scams. For instance, an RTI request filed by a civil society activist group revealed that a housing society on prime land in South Bombay, meant for war widows, was wrongfully given out to politicians, bureaucrats, and military officers; this so-called “Adarsh Society Scam” led to the eventual resignation of the Chief Minister, as well as criminal charges against several officials. Another civil society group used the RTI law to expose the “Commonwealth Games Scam,” in which funds associated with the Commonwealth Games in Delhi, earmarked for the social welfare of marginalized communities, had been wrongfully diverted. The exposure of this malfeasance led to an official investigation that ultimately resulted in the arrest and suspension of the responsible minister.

This past July, the Indian parliament amended the RTI law for the first time, despite resounding opposition. While there are indeed aspects of the RTI law’s implementation that need to be addressed—including the numerous vacancies at Information Commissioner posts, which has led to long delays and backlogs in RTI appeals—the amendments do not address any of these genuine pressing issues. Instead, the amendments focused on the appointment, tenure, and salary of the Information Commissioners. Proponents of the changes claimed that these amendments were minor technical fixes, designed to streamline the appeals process and improve functioning. In fact, the amendments pose a serious threat to the autonomy of the Information Commissions, and thus to the efficacy of the RTI law in exposing wrongdoing that could embarrass or incriminate powerful political figures and their cronies. Continue reading →

Small Year-to-Year Changes in CPI Scores Are Meaningless. Small Year-to-Year Changes in CPI Scores Are Meaningless. Small Year-to-Year Changes in CPI Scores Are Meaningless

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Last month, Transparency International (TI) released the latest version of its Corruption Perceptions Index (CPI)–an index that I continue to believe is useful and important, and that I regularly defend against the blunderbuss critiques sometimes leveled by a few of my colleagues in the academy. Yet every year when the CPI comes out, we see a spate of articles and press releases that focus on individual countries’ score changes from one year to the next. (For some examples from this year, see here, here, here, here, and here.) TI contributes to this: Despite the qualifications and cautions one can find if you search TI’s web site diligently enough, TI’s lead press release and main CPI report inevitably play up these changes, connecting them to whatever larger narrative that TI hopes to convey. This year was no exception. This time around, the press release emphasizes that “(f)our G7 countries score[d] lower than last year: Canada (-4), France (-3), the UK (-3) and the US (-2). Germany and Japan have seen no improvement, while Italy gained one point”–and TI treats this as evidence for the assertion, in the title of the press release, that the “2019 Corruption Perceptions Index shows anti-corruption efforts stagnating in G7 countries.”

Sigh. I feel like I have to do this every year, but I’ll keep doing it until the message sinks in. Repeat after me:

  • Small year-to-year changes in an individual country’s CPI score are meaningless.
  • Small year-to-year changes in an individual country’s CPI score are meaningless.
  • Small year-to-year changes in an individual country’s CPI score are meaningless.
  • Small year-to-year changes in an individual country’s CPI score are meaningless.
  • Small year-to-year changes in an individual country’s CPI score are meaningless.
  • Even big changes in an individual country’s CPI score may well be meaningless, given the fact that, in a collection of 180 countries, random noise will sometimes produce unusually large changes an a handful of countries (for the same reason that if you flip a set of five coins 180 times, odds are a few of those times you’ll get five heads or five tails).
  • Because year-to-year changes in an individual country’s CPI score usually meaningless, they are not newsworthy, nor can they be invoked to make substantive claims about corruption’s causes or consequences, or the success or failure of different countries’ anticorruption policies.

I don’t want to repeat everything I’ve written before explaining why this is so; I explained this at length in my post last year, after the 2018 CPI came out. (That post, in turn, relied on my prior writing on this topic: See here, here, here, here, here, and here.) I’ve kind of given up hope that TI will actually modify the way it talks about within-country year-to-year CPI score changes in its press releases. I know enough people at TI (great people, I should add) who are aware of what I (and plenty of others) have had to say on this topic that I can only assume that the failure to change is a deliberate decision on the part of TI’s leadership and communications team. I strongly suspect that the serious researchers at TI who work on the CPI are slightly embarrassed by how the index is framed by the organization for public and media consumption, but there’s nothing they can do about it. Despite the apparent futility of my prior efforts, I’ll keep harping on this, in the vain hope that the message will gradually trickle out.

Tracking Corruption and Conflicts of Interest in the Trump Administration–February 2020 Update

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As regular readers of this blog are aware, since May 2017 we’ve been tracking and cataloguing credible allegations that President Trump, and his family members and close associates, have been corruptly, and possibly illegally, leveraging the power of the presidency to enrich themselves. The newest update is now available here.

A previously noted, while we try to include only those allegations that appear credible, many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. (For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.)

The Shortcomings of the Leniency Agreement Provisions of Brazil’s Clean Company Act

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If the CEO of a corporation operating in Brazil learns that her company has committed an unlawful act of corruption, should she order the corporation to self-report and negotiate a leniency agreement with the Brazilian authorities under Brazil’s 2013 Clean Company Act, which authorizes such settlements? In most of the cases, the corporate legal department would probably advise against it. Indeed, the number of leniency agreements based specifically on Brazil’s Clean Company Act has been much smaller than expected.

Several factors drive companies away from cooperating with Brazilian public authorities under the Clean Company Act:

Continue reading →