Many democracies have sought to preserve the integrity of their governments by prohibiting individuals who have been convicted of corruption-related offenses (or other serious crimes) from holding public office, either for a period of time or permanently. Such a prohibition was on the ballot this past September in Chile, when citizens voted on whether to adopt a new constitution. That proposed constitution included, among its many provisions, a specific article (Article 172) that would have disqualified from public office any person who had been convicted of a corruption offense. The provision did not become law, however, because Chilean voters overwhelmingly rejected the proposed constitution for reasons that had almost nothing to do with the relatively obscure Article 172.
The inclusion of that article in the proposed constitution does, however, invite the consideration of two distinct but related questions: First, should Chile—or another similarly situated democracy—adopt a law disqualifying those convicted of corruption from holding public office? Second, if the answer to the first question is yes, should that disqualification rule appear in the constitution (as opposed to an ordinary statute), which is, by design, much harder to change?
The answer to the first question, at least for Chile, is probably yes. The answer to the second question, though, is no. Chile should experiment with a disqualification law, but should not constitutionalize it.
This conclusion arises from a careful consideration of the advantages and disadvantages of disqualification laws and, perhaps more importantly, the conditions that must obtain for those laws to be beneficial:
The principal advantages of disqualification laws are that they can keep dirty politicians out of office and provide an extra deterrent for those currently serving. To be sure, some people argue that it should be voters, not judges, who decide whether corrupt behavior is disqualifying. If voters detest corruption—as large majorities usually claim on surveys—but sometimes prioritize other issues, maybe it would be preferable to leave the decision with them. The problem with that line of thinking is twofold.
- First, elections may not work perfectly—or even work well—as mechanisms for keeping the corrupt out of office. High-corruption environments tend to increase popular tolerance for corruption and decrease people’s willingness to make corruption the issue that defines their votes, particularly where people have the impression there are no clean alternatives. As an empirical matter, even in industrialized democracies with informed electorates, many politicians charged with and convicted of corruption continue to be re-elected, suggesting that reliance on the ordinary electoral process to keep thieves out of office is naïve.
- Second, corruption can itself distort both electoral results and government policy in undemocratic ways. A willingness to engage in corruption can give politicians electoral advantages through increased campaign funds (see here, and here), coalition management, and even explicit vote buying.
At the same time, though, disqualification laws can have important drawbacks. In many countries, including Italy and Brazil, disqualification laws have barred popular candidates from running in circumstances where the veracity of the charges, and the impartiality of the courts and prosecutors, was in question, thus leading many to believe that the corruption prosecutions and convictions were politically motivated. In other countries, the use of disqualification laws as tools of political persecution is even more obvious. In Russia, for example, anticorruption activist and political reformer Alexey Navalny was disqualified from running for office following an embezzlement conviction that has been widely condemned as politically motivated.
Two factors could minimize these potential dangers of disqualification laws: judicial independence and civil commitment against corruption.
- With respect to the former, concerns about politicization or bias are less acute in those countries where the judiciary is impartial, because a politically-motivated prosecution is less likely to result in a disqualifying conviction. Judicial independence both assuages fears of judicial manipulation and makes the institution better equipped to manage the significant political pressures that come with disqualification laws.
- With respect to civil commitment against corruption—that is, the belief by a sufficiently large fraction of the population that the fight against corruption is a legitimate and important priority—this factor is an important complement to judicial independence, in part because disqualification has serious political and electoral consequences. The court’s continued legitimacy in making those determinations requires a shared understanding that corruption offenses are sufficiently grave to merit that punishment, and that corruption is a sufficiently serious problem that the potential for a wrong decision with electoral impacts is outweighed by a reduction in corruption levels.
Equipped with these general observations, we can now turn back to Chile and address each of the two questions posed at the outset.
First, on the question whether Chile is well-suited to adopt a disqualification law, the answer is yes. Chile has an independent and impartial judiciary, especially by South American standards. And Chileans generally have a strong civic commitment to anticorruption: According to polls, 73% of Chileans believe silence in the face of corruption is complicity, and only 26% of Chileans would be willing to tolerate some degree of corruption if this would make it easier to address other societal problems. So, in terms of both judicial independence and civic commitment to anticorruption, Chile is a strong candidate for a corruption disqualification law.
But Chile should not constitutionalize disqualification provisions. The country is experiencing great change and uncertainty following a period of significant social upheaval. And a disqualification law can pose significant challenges to judicial legitimacy. Notwithstanding the Chilean judiciary’s generally good reputation internationally for independence, only 16% of Chileans trust the judiciary, and 59% believe the judiciary is corrupt. This is not reflective of actual corruption levels in the country, and it may derive from a more general lack of institutional trust among the citizenry. (In 2020, 73% of Chileans believed that corruption had increased in the last year, compared to 65% in 2018; only 16% trusted the President, 13% trusted Congress, and less than 10% trusted political parties.) A disqualification law could potentially strengthen institutional trust by tackling corruption, but it could also have the opposite effect.
While the conditions in Chile on the whole appear to favor the adoption of a disqualification law, that conclusion is sufficiently uncertain—especially when one takes into account the additional stresses that such a law would place on the judicial system—that entrenching this law in a constitutional provision would likely be a mistake. As noted above, disqualification laws can sometimes end up politicizing the justice system and undermining judiciary legitimacy; such laws may also be weaponized in undemocratic ways. If these adverse effects start to occur, then it would be far better if Chile could nip them in the bud by revising or repealing the disqualification law, which is much harder to do (by design) if that law has been constitutionalized.
This discussion is not merely a hypothetical academic exercise. Though voters resoundingly rejected the draft constitution at issue in the September referendum, the next steps remain unclear. The country could have another constitutional assembly to draft a new proposed constitution, or it could make significant reforms to the current constitution. Regardless of which option Chile ultimately chooses, many of the specific proposals in the rejected constitution will be debated and considered anew. For those anticorruption activists participating in this process, it is vital to appreciate that the question whether Chile should adopt a disqualification law and the question whether that law should be in the constitution are distinct. The answer to the first, under current circumstances, is likely yes. The answer to the second ought to be no.