Supreme Court to Congress: Your Fault Corrupt Officials Getting Off

Two recent unanimous Supreme Court decisions overturning federal convictions for blatantly corrupt conduct again emphasize the need for Congressional action. The one case arose from bid rigging on a New York state contract, the second from the acceptance of a $35,000 “fee” by the manager of then Governor Andrew Cuomo’s reelection campaign to “fix” a problem the payor had with a state agency.

In both prosecutors charged defendants under the statute making it a federal crime to use the mail or telephones or other means for communicating across state lines to cheat an individual of money or property.* For by my count the fifth time in recent years (here), the Court rejected prosecutors’ efforts to stretch a law originating in claims “eastern city slickers” were using the mail system to swindle naïve Midwesterners to cover state and local corruption.

The Court also again put the blame for allowing corruption to go unpunished on Congress, reiterating that if it wants federal prosecutors to police the conduct of state and local officials, it must write a law that says so in clear and uncertain terms. Congress took a stab at doing so once, making it an offense to deprive citizens of the “honest services” of a public official.  But as the Court held in acquitting the Cuomo aide, legislators forgot “clear” in the Court’s injunction, failing to provide any definition of what conduct was honest and what dishonest. The law was thus unconstitutionally vague, for it did not, as all criminal statutes must, give defendants fair notice of the conduct that was unlawful.

Justice Gorsuch summed up the current situation in a concurring opinion in the Cuomo aide case.  Because Congress won’t say with the precision required of all criminal statutes what conduct by state and local officials violates federal law, it: 

“leaves prosecutors and lower courts in a bind. They must continue guessing what kind of fiduciary relationships this Court will find sufficient to give rise to a duty of honest services.” 

Every time a prosecutor and a court guess wrong, as they did in the New York cases, we get a highly publicized acquittal, leaving citizens to wonder why, if their government is serious about curbing corruption, it is letting crooked pols and their pals off the hook. For reasons to obvious to state, this is no time to be undermining citizen confidence in the government’s commitment to fighting corruption. Isn’t it time Congress seriously considered the metes and bounds of federal power to prosecute state and local corruption?

  • The law is found in title 18 of the United States Code, sections 1343 and 1346. The operative language: “Whoever … devise[s] any scheme… to defraud… for obtaining money or property … causes to be transmitted by means of wire, radio, or television communication …any writings… for the purpose of executing such scheme… shall be … imprisoned not more than 20 years….” In 1988 Congress added “The term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

Guest Post: Behavioral Psychology, Transnational Bribery, and “Conditional Corruption”

GAB is delighted to welcome Nils Köbis, a researcher at the Max Planck Institute for Human Development, to contribute today’s guest post:

Suppose that you need some sort of official license, such as a fishing permit. Would you consider obtaining that license—or obtaining it more quickly—by paying a bribe? Now suppose that you are traveling in a foreign country and you need a similar sort of license. Would you consider paying a bribe to get that license in that foreign setting—if we assume that the probability of getting caught and the possible penalties are the same as in your home country, but that bribery is much more common by citizens of that country?

Are your answers to the two questions the same? Do you think other people’s answers to those questions—or, more importantly, their actual behavior—will be the same or different, depending on whether they are at home or abroad?

This question implicates a more general issue in moral and behavioral psychology. Some believe that the moral constraints on our behavior are relatively stable: In the example above, some people believe paying bribes is wrong and won’t do it, no matter where they are, while others are willing to pay bribes, at least if they the advantage of doing so is big enough and they think they will probably be able to get away with it—again, without reference to other aspects of the surrounding context. But some research has suggested that the (perceived) behavior of others can exert a strong pull on our moral compass (see, for example, here, here, and here).

To further explore this question, my collaborators and I conducted a study that involved online experiments with 6,472 participants from 18 nations, in which the participants played a bribery game based on the our opening example. Our findings were both surprising and intriguing, and suggest that our inclination to engage in corrupt behavior is influenced by our stereotypes (not always accurate) of people from diifferent countries. Continue reading

New Podcast Episode, Featuring Grant Walton

A new episode of KickBack: The Global Anticorruption Podcast is now available. In latest episode, host Dan Hough interviews Grant Walton, Associate Professor at the Australia National University’s Crawford School of Public Policy. Their conversation focuses on corruption in Papua New Guinea (PNG). Professor Walton discusses his research on differences in how people in PNG understand the meaning of “corruption”  and how this understanding may differ from common Western understandings of the term. He also emphasizes his view that inattention to this disconnect has implications for how campaigners and reformers design anticorruption messaging. Professor Walton also discusses how PNG’s formal anticorruption institution and how external actors can effectively support those institutions. You can also find both this episode and an archive of prior episodes at the following locations: KickBack was originally founded as a collaborative effort between GAB and the Interdisciplinary Corruption Research Network (ICRN). It is now hosted and managed by the University of Sussex’s Centre for the Study of Corruption. If you like it, please subscribe/follow, and tell all your friends!

Anticorruption Strategies for Small Population Countries

As I discussed in a prior post, countries with very small populations face distinct challenges when it comes to detecting and fighting corruption. In places where everyone knows everyone, personal ties between decision-makers and stakeholders are practically unavoidable. This not only makes it more difficult to avoid conflicts of interest, but also fosters a culture of informality that may inhibit efforts to impose stricter procedures and requirements for public decision-making. Furthermore, in small, close-knit communities it is harder to ensure anonymity of whistleblowers, and to detect corruption that takes the form of inappropriate long-term reciprocity rather than explicit quid pro quo exchanges.

The distinct challenges posed by corruption in small populations may call for distinct solutions. While there may not be any single solution to these challenges, there are a few approaches that may help:

  • Calling corruption by its name: When a person in a position of public trust prioritizes particular familial or social loyalties over those owed to the public, she is engaged in a form of corruption—abusing her entrusted power to benefit her friends and family. But such corruption may be perceived as benign or even salutary when it takes place in a community characterized by a high degree of close familial and social ties. The fact that these corrupt relationships often do not involve exchange of money may further help to camouflage them as a social interactions rather than as transactions involving the abuse of public trust. Unless corruption is identified and perceived as such, no anticorruption effort is going to succeed. Therefore, there needs to be constant and systematic education within the community to raise awareness about the causes and manifestations of kinship corruption, as well as the harms caused by it, in order to de-normalize this form of corruption (see here, here and here).
  • Leveraging the power of public opinion: In tight-knit communities, informal social sanctions (social exclusion, ostracism, and stigmatization) may be much more powerful in these communities and can be a meaningful constraint on corruption (see here). This is, of course, a double-edged sword: As noted above, unless kinship corruption is recognized as such, those involved are unlikely to be shamed by their peers and may actually be socially punished if they decline to do favors for friends and family. Similarly, social pressure can be used to reinforce clientelism and nepotism (see here and here). But anticorruption reformers can and should try to find ways to leverage the power of shaming, and other social sanctions, to promote integrity.
  • Depersonalize decision-making: As noted above, in small communities, it is harder to enforce the sorts of strict conflict of interest rules that are feasible in larger communities. Furthermore, even where there is no “formal” conflict of interest, in small countries there is an increased likelihood that public decisionmakers will have personal relationships or connections with some of the people who would be affected by their decisions. In a hiring process, for example, those responsible for the hiring will very often have some connection with at least one of the applicants. Therefore, small-population countries should place an even greater emphasis on removing the personal element as much as possible. For example, anonymizing administrative procedures and implementing “blind” decision making not only makes nepotism and clientelism harder, but also reduces the risk of unconscious bias (see here and here).
  • International assistance: Another, potentially more controversial way for small countries to overcome the inherent difficulties in aggressively applying anticorruption laws within a close-knit community is to seek the assistance of the international community, for example by relying more heavily on international assistance to fight corruption. This is not only because outsiders may be less likely to have conflicts of interest. It is also because small population countries may simply have fewer talented people to devote to any single matter, including anticorruption (see here and here). International assistance, for example in the form of manpower with suitable expertise, may help to alleviate such issues.

As we are often reminded, there is no one-size-fits-all approach to anticorruption, and it is also true that there is no one anticorruption recipe for all small countries. Nevertheless, when designing anticorruption strategies for very small jurisdictions, it is useful to recognize some of the common challenges that such jurisdictions face, and to design anticorruption strategies that leverage some of the advantages of smallness while ameliorating some of its drawbacks.

New Podcast Episode, Featuring Elizabeth Dávid-Barrett and Roxana Bratu

A new episode of KickBack: The Global Anticorruption Podcast is now available. In latest episode, host Dan Hough interviews Liz Dávid-Barrett (Professor at the University of Sussex) and Roxana Bratu (Senior Lecturer at King’s College London) about corruption measurement debates. The conversation touches on a range of questions, including: How has measurement of corruption changed over the three decades? What are the best tools currently available for measuring corruption, and what are are the strengths and weaknesses of these tools? And what do users actually want from corruption measurement tools? You can also find both this episode and an archive of prior episodes at the following locations: KickBack was originally founded as a collaborative effort between GAB and the Interdisciplinary Corruption Research Network (ICRN). It is now hosted and managed by the University of Sussex’s Centre for the Study of Corruption. If you like it, please subscribe/follow, and tell all your friends!