There has been a vigorous debate on the blog about the definition of corruption with distinguished academics and practitioners weighing in on what they argue constitutes corrupt behavior by a public official.
Readers will recall that in early November I asked what they thought. I described six cases where a court, ethics agency, or public opinion had decided whether certain conduct was corrupt, and without revealing how the authority ruled, readers were invited to say what they thought. A number did, often with thoughtful explanations supporting their view.
Below is how their answers compare with the authority who made the decision. As the tabulated replies show, readers are far tougher when it comes to ruling conduct corrupt than courts or even the most important court of all, the court of public opinion. The rationale behind the authority’s decision follows. Comments invited.
|1. Vanuatu majority government provides MPs positions in return for vote against no confidence measure. Court ruling: NOT CORRUPT||3||4|
|2. U.S. Senate seat in return for appointment to cabinet. Court ruling: NOT CORRUPT||5||2|
|3. Oakland Mayor oversees redevelopment funds to neighborhoods that could include his own. Court ruling: NOT CORRUPT (technicality)||1||3|
|4. Independent New South Wales MP resigns seat in return for job in public service. Public Opinion: CORRUPT||5||1|
|5. Appointee in newly elected Kentucky government asks for share of fixed commission government pays for insurance. Court ruling: NOT CORRUPT||5||0|
|6. Canadian PM lobbies national development bank to loan to hotel abutting golf course he has part interest in. Ethics counsellor: NOT CORRUPT||4||0|
|Case 1. Vanuatu majority government provides MPs positions in return for vote against no confidence measure|
|Not Corrupt. Vanuatu’s highest court ruled that the practice offering MPs a position in return for opposing a no confidence motion, termed reshuffling, was not corrupt but a form of “political maneuvering” which it said is “a feature of parliamentary democracy in Vanuatu” as well as in other democracies. The court alluded to the importance of reshuffling in maintaining government stability. Public Prosecutor v. Tabimasmas  VUCA 14; Criminal Appeal Case 3532 of 2020 (19 February 2021).|
|Case 2. U.S. Senate seat in return for appointment to cabinet.|
|Not Corrupt. A U.S. appellate court ruled that the proposed “trade one public act for another” was different from a situation where an official offers to perform a public act in return for a bribe. It is instead a common form of “logrolling,” and the “usual course of business” in politics includes logrolling. United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015).|
|Case 3. Oakland Mayor oversees redevelopment funds to neighborhoods that could include his own.|
|Not Corrupt. The legal decision went off on whether under California law the mayor was exempt from a conflict of interest law that would bar his involvement in the allocation of redevelopment funds because there was “no alternative source of decision consistent with the purposes and terms of the statute authorizing the decision.” The California Court of Appeals held there was no alternative and overruled the state ethics agency opinion to the contrary. Brown v. Fair Political Practices Commission, 100 Cal.Rptr.2d 606, 84 Cal.App.4th 137 (2000). Click here for Stanford Political Scientist Bruce Cain’s explanation of why in a representative democracy the mayor’s involvement should not be considered corrupt.|
|Case 4. Independent New South Wales MP resigns seat in return for job in public service|
|Mixed decision. The New South Wales Independent Commission Against Corruption determined that in engineering the resignation, Prime Minister Greiner would be seen “by a notional jury as conducting himself contrary to known and recognized standards of honesty and integrity,” and were he a civil servant, he would be required to resign. The Court of Appeals held that while the conduct constituted a breach of trust, it was not such as to require resignation. Greiner v Independent Commission Against Corruption, (1992) 28 NSWLR 125. Greiner fared much worse in the court of public opinion, forced by his colleagues to resign his seat in the face of a public outcry. British historian and political philosopher Mark Philp uses the case to illustrate “the extent to which the investigation, prevention, and prosecution of corruption is profoundly influenced not simply by how corruption is defined but, more deeply, by how we are to understand the character of politics.” Mark Philp, “Defining Political Corruption,” Political Studies vol. XLV, 1997.|
|Case 5. Appointee in newly elected Kentucky government asks for share of fixed commission government pays for insurance.|
|Not Corrupt. The U.S. Supreme Court reversed the appointee’s conviction under the federal mail fraud statute. The prosecution’s theory was defendant’s participation in what the Court called “a self-dealing patronage scheme” defrauded Kentucky citizens of their right to have the state government’s affairs conducted honestly. Although decided on technical grounds, that as written the mail fraud law reached only fraudulent conduct involving property, not the intangible right to good government, the Court stressed that because insurance commissions are fixed by law, neither the state nor its citizens were out any money because the agent had to share his commission. Nor did the sharing affect the quality or extent of coverage the state enjoyed. McNally v. United States, 483 U.S. 350 (1987).|
|Case 6. Canadian PM lobbies national development bank to loan to hotel abutting golf course he has part interest in.|
|Not Corrupt. Federal Ethics Counsellor Howard Wilson ruled then Prime Minister Jean Chretien’s lobbing had violated no ethical restriction. The loan was for an important business in his riding (electoral district) that would benefit his constituents. The Shawinigate affair as it has been dubbed did raise a public ruckus as Wilson was a Chretien appointee and questions about how accurately Chretien reported his interest in the golf course and when he sold it remained murky at best. Chretien Fights Accusations of Cover Up|
This was a clever and provocative exercise, which I’m sure will stimulate much interesting conversation. I do, however, have a couple of bones to pick with how you present the results, one broader and the other a bit more specific (though the points are somewhat related).
First, you characterize the courts in these various cases as having decided whether the conduct is “corrupt” or “not corrupt.” But in many of the cases where, on your characterization, the court found the conduct “not corrupt,” what the court actually found was that the conduct was not a violation of the specific criminal law under which the defendant had been charged. As our readers, you, and I are well aware, under _some_ definitions, conduct is by definition not corrupt if it is not illegal, but that’s not universally accepted.
Second, I think that the way you present case 5 — the discussion of the McNally case — might be somewhat misleading, at least to our readers who are unfamiliar with this area of U.S. law. Your description of the facts of the case and the court’s ruling is technically correct, but there are a couple of things about this decision that I think are important to emphasize, lest readers come away with the idea that the conduct at issue in that case is “not corrupt” (and not illegal) under U.S. law.
– First, as you note, this was a _federal_ prosecution of a _state_ official under the _mail & wire fraud statute_ — there was (and still is) no general federal statute prohibiting state-level corruption (though there may be, and usually are, state laws that might apply). Federal prosecutors had tried to shoehorn bribery into this statutory prohibition by characterizing the public official who takes a bribe as engaging in a kind of fraud (fraudulently depriving members of the public of the official’s “honest services”). The Court — maybe incorrectly, but certainly plausibly — thought that a fraud statute couldn’t be stretched that far, because usually fraud is understood to entail deprivation of the victim of property or something more tangible. The Court did not say that the conduct at issue was “not corrupt” — only that it didn’t count as mail/wire fraud.
– Second, the U.S. Congress responded to the McNally decision by amending the statute at issue so that so-called “honest services fraud” (the theory the prosecutors had unsuccessfully advanced in McNally) now _does_ fall within the scope of the statutory prohibition. In other words, if a case with facts identical to those in McNally arose today (and assuming no other changes to the law), the case would have come out the other way, and the defendant would have been convicted (or if not, it would have had to be for some other reason).
I confess. Caught red-handed. I admit to deliberately presenting the results in a way meant to be provocative.
In defense, I claim necessity. I didn’t see any other way to push the dialogue forward and engage a broad range of citizens in thinking about what corruption means than to be deliberately provocative.
I figured I had to because unlike Athens during the Classical Age we have no way to put competing definitions of corruption to a vote. As guest blogger Kellam Conover recounted in his November 17 post, bribery trials were a regular feature of Athenian civic life. Hundreds and even thousands of citizens were asked to pass on whether an official’s conduct was corrupt. As he explained, the trials provided a way for a consensus to develop on the normative questions that underpin the definition of corruption: “what officials owed the community, how to govern effectively, or which social relations a general or ambassador, say, could leverage to achieve political ends.”
Absent such a mechanism for directly involving citizens in defining what is and what isn’t corruption, I turned to a provocative post on GAB. Think we can arrange a plea deal? Maybe a deferred prosecution?
P.S. What I thought was interesting about the McNally case was the Court’s observations about the lack of harm from the patronage deal federal prosecutors charged was corrupt. I continue to appreciate how conservative U.S. courts are when it comes to decreeing that conduct falling into the gray area between hard core corruption and the political maneuvering and shenanigans characteristic of all democracies is criminal. The Vanuatu Court of Appeals showed the same reluctance to wade into politically deep waters, citing the important role “reshuffling” played in maintaining government stability.
I don’t want to get too hung up on the details of McNally, but the Court did _not_ find, as a very general matter, a “lack of harm” from the patronage deal, nor did the court find that the deal was “not corrupt.” The Court found that there had been no allegation that the patronage deal had deprived the state “of any money or property,” which was what the Court concluded the mail fraud statute required for a conviction. Something can be harmful to the state and its citizens even if doesn’t (directly) deprive the state government of money or property–and indeed the post-McNally amendment to the mail fraud statute extended that statute’s coverage to such situations.
What makes McNally most interesting is that its exposure of a then current Kentucky norm to wider public scrutiny prompted change. While federal prosecutors’ theory was that the defendant’s action in demanding a cut of the commission the state paid for insurance coverage violated the fiduciary duty he owed Kentuckians as a public official, state legislators had a different view. To them, the right to share of commission was just another example of the abiding norm of politics that “to the victor belong the spoils.” Or at least that is a fair inference one can draw from their tolerance of the practice.
The gap between how prosecutors and Kentucky legislators viewed Gray’s conduct closed not long after McNally was decided. The state legislature enacted Kentucky Revised Statute 11A.040 making it a crime for a public official to be involved in any transaction on behalf of the state “with any business in which he or a member of his family has any interest greater than five percent.” It also enacted legislation requiring senior officials to “file a statement of financial disclosure… no later than April 15 for the previous calendar year or within 30 days of termination of employment.”
Not quite the same method by which norms about corruption in Athens were vetted about. But not so far away either.
The difference between the public views of what is corrupt and the court’s views are concerning for me. Is it the public’s lack of legal knowledge reflected here, or are we contextually and culturally in different worlds in defining what is corruption? And if the chasm is this big, can we even begin to talk about anticorruption if we really don’t agree on what corruption is?
People have different views about what is corrupt and what isn’t. That difference shows up in many place besides that between readers and the courts and other authorities in the six examples. See these two studies by Professor Johnston: “Corruption and Political Culture in America: An Empirical Perspective” in CrossRef Listing of Deleted DOIs, 13(1) and “Right and Wrong in American Politics: Popular Conceptions of Corruption” in Polity, 18(3).
In some cases, talking about the difference will produce a consensus. See Kellam Conover’s post on how Athenians of the Classical Age used corruption trials to reach a consensus. But in those instances where talking or voting doesn’t produce a consensus, I am not sure the difference is enough to call it a “chasm.” But chasms are in they eye of the beholder.