Author Archives: Cristina Cornejo

Corruption 2020: How The U.S. Supreme Court Might Leave Presidential Elections Vulnerable to Corruption

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The United States uses an indirect voting process called the Electoral College to elect the president. In this system, which is mandated by the Constitution, each state is assigned a number of “electors” based on the number of representatives the state has in both Houses of Congress; the voters in each state do not actually vote directly for a presidential candidate, but rather for a slate of electors, appointed by the state, who have pledged to vote for that candidate when the Electoral College convenes to select the president. (This odd system is why there have been instances, including in the most recent U.S. presidential election in 2016, when the winner of the popular vote does not become the president.) But suppose an elector who has pledged to support one candidate decides to switch her vote? This is not purely hypothetical: Throughout American history, 157 electors have defected from their pledge. Some states seek to prevent this through laws under which such “faithless electors” can be subject to civil penalties, including replacement. Electors from the 2016 Presidential Election have brought a case in the Supreme Court challenging these “faithless elector” laws as unconstitutional.

This challenge is obviously important for U.S. presidential elections—but (many readers might be wondering) what does it have to do with corruption? It turns out that, as U.S. anticorruption advocates have emphasized, if the Supreme Court rules that states cannot compel electors to vote as they have pledged, this could leave U.S presidential elections vulnerable to corruption. If electors cannot be legally required to vote for the candidate who won the popular vote in their state, then electors can be bribed—or, if not outright bribed, then subject to other forms of improper influence.

Part of the problem is that U.S. campaign finance laws and government ethics rules, as currently written, do not cover electors. Likewise, U.S. anti-bribery laws prohibit bribes to public officials and candidates for public office, but electors don’t clearly fall into either of those categories. The most relevant federal criminal statute is likely the prohibition on vote-buying and vote-selling in elections, codified at 18 U.S.C. §597. That section prohibits “mak[ing] or offer[ing] to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate.” But this statute has been construed narrowly to only apply to instances of a quid pro quo, which leaves the door open for private interests to corruptly influence electors so long as they avoid any explicit bargain. Moreover—and even more troubling—the U.S. President has virtually unlimited pardon powers, so if a candidate’s surrogates bribed enough electors to win the presidency, in blatant violation of §597, the President could simply pardon both the agents who paid the bribes and the electors who took them. These two problems—the difficulty of proving a quid pro quo and the President’s pardon power—also explain why the problem couldn’t be fixed by expanding the scope of other federal campaign finance, government ethics, and anti-bribery rules to cover electors as well as public officials and political candidates.

So, should the Supreme Court decide that electors cannot be penalized by the states for defecting from their pledged votes, the U.S. presidential election might be up for sale. And, for the reasons sketched above, this problem couldn’t be easily fixed simply by expanding existing federal anticorruption laws to apply to electors.

Should the Supreme Court side with the “faithless electors,” what could be done to protect the integrity of U.S. presidential elections (short of abolishing or significantly reforming the electoral college—steps that would require a constitutional amendment and so are not likely any time soon)? There are three possibilities: Continue reading →

Dissolving Congress to Combat Corruption: Why a Short-Term Anticorruption Victory in Peru Isn’t Worth the Long-Term Cost

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The “Car Wash” corruption scandal that started in Brazil has extended into surrounding Latin American countries, including Peru. All of Peru’s living presidents have been implicated in the scandal, with two currently awaiting trial on corruption charges, one in California fighting extradition, and one who ended his own life just as police entered his home to arrest him. The corruption scandal has also implicated members of Congress, including the head of Peru’s largest opposition party, Keiko Fujimori (daughter of the infamous former president Alberto Fujimori). To make matters worse, investigators have also uncovered an unrelated bribes-for-verdicts corruption scandal in the judiciary.

Peru’s current president, former Vice President Martin Vizcarra, assumed the presidency after his predecessor resigned over corruption allegations. Backed by overwhelming popular support in a national anticorruption referendum, President Vizcarra spent most of 2019 pushing an ambitious anticorruption agenda. His proposed reforms included a new law that bars members of Congress from seeking immediate reelection after one five-year term, transferring the power to lift a Member of Congress’s legislative immunity from Congress to the Supreme Court, and changing the system for appointing judges and prosecutors. On all of these proposals, Congress (controlled by an opposition party) has dragged its feet, likely for self-serving reasons. While Congress eventually passed some of these reforms, including the ban on re-election, the judicial anticorruption bill stalled. After several attempts to pass the bill, on September 30, 2019, Vizcarra took the drastic step of dissolving Congress—a move supported by 84% of Peruvians. Vizcarra issued a decree for a snap legislative election, which took place on January 26, 2020, and in which Peruvians elected a new Congress to finish the current constitutional term ending in 2021. Given the ongoing pandemic, this new Congress has, understandably, yet to fully address Vizcarra’s remaining anticorruption agenda.

It is often said that fighting entrenched corruption involves disrupting the political status quo. President Vizcarra’s decision to dissolve Congress was certainly disruptive—but not in a way that anticorruption advocates should celebrate. Whatever its short-term payoffs, this decision threatens to undermine Peru’s institutional checks and balances, leaving the country more vulnerable to corrupt actors in the long term.

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Congressional Corruption During the Coronavirus Crisis: The U.S. Must Do More to Eradicate Insider Trading in Congress

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Four U.S. Senators have been accused of trading stocks based upon non-public information about the coronavirus outbreak. The most disturbing cases appear to be Republican Senators Richard Burr and Kelly Loeffler. Senator Burr, who as Chair of the Senate Intelligence Committee attended a daily confidential briefing on the pandemic, divested between $628,033 and $1.72 million from industries hardest hit by coronavirus restrictions, including two major hotel chains. Senator Loeffler, who attended a confidential meeting about the coronavirus on January 24th, divested $1.275 million to $3.1 million from industries most hit, while also purchasing stock in teleconferencing companies. (Two other Senators, Democrat Dianne Feinstein and Republican Jim Inhofe, both also made significant stock sales during this time, but Senator Feinstein’s funds are in a blind trust, and Senator Inhofe has said his financial decisions are made by his financial advisors without consulting him.)

This is not the first time that concerns have been raised about Members of Congress corruptly taking advantage of their privileged access to inside information to enrich themselves, though the fact that Senator Burr engaged in these transactions shortly after having co-authored a piece claiming that “the United States today is better prepared than ever before to face emerging public health threats, like the coronavirus” makes his case particularly egregious. In 2004, a quantitative study found that the investment portfolios of U.S. Senators consistently outperformed the market, a result that at least suggests that Senators were using non-public information to inform their investment decisions. In response to this concern, in 2012 Congress enacted a bipartisan bill called the Stop Trading on Congressional Knowledge (STOCK) Act. (Senator Burr, it should be noted, was one of only three Senators to vote against it.) The main purpose of the STOCK Act was to expressly affirm that Members of Congress and their staffers were covered by the general prohibition on insider trading. The Act also increased transparency by requiring that Members of Congress and senior staff release financial disclosures within 45 days of major trades.

The STOCK Act was a step in the right direction, but it does not do nearly enough to prevent federal legislators from using their privileged positions to enhance their own wealth. To eliminate this form of corruption, the law should impose much more aggressive, prophylactic restrictions.

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Putting Elected Officials in Charge of Elections Is a Recipe for Corruption: Evidence from U.S. States

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One of the stories that figured prominently in last November’s U.S. elections was that of Brian Kemp, then Georgia’s Secretary of State and now the state’s new Governor. As Secretary of State, Kemp was responsible for administering the state’s elections—but in 2018 he was administering the very election in which he was running for governor, which creates an inherent conflict of interest. Indeed, there was plenty of evidence that Kemp used his position as Secretary to increase his odds of winning the election: He attempted to close polling locations in neighborhoods likely to vote for his opponent, promulgated abnormally stringent voter registration rules that put thousands of voters’ eligibility into question, and launched what most observers considered to be a groundless investigation into his opponent’s campaign in the week before the election. Ultimately, after ignoring calls for him to recuse himself, Kemp announced that he would resign as Secretary of State two days after the election, while the votes were still being counted. Kemp was eventually declared the winner, though his opponent, Stacey Abrams, never fully conceded, vowing to sue Kemp for “gross mismanagement of the election.”

It’s hard to see how an election administrator’s use of his power to benefit his own political campaign is anything other than corrupt. Indeed, Kemp’s controversial election illustrates how the U.S. electoral process is particularly vulnerable to this sort of corruption. (And, it’s worth noting, while Kemp drew most of the attention, there were two other candidates in the 2018 elections that found themselves in the same position, with one choosing to recuse himself from the recount process back in August 2018 during a close primary.) In most U.S. states, the Secretary of State (who is responsible for administering the state’s elections) is an elected official, and in over half of the states, Secretaries of State can run for public office while serving as Secretaries. This is out of step with most of the developed world, where election administration is independent and apolitical. Reformers have called for changes to this system before, so far without much success. But the atmosphere may now be ripe for anticorruption advocates to propose referenda to create new, independent, and non-partisan systems for election administration. A well-designed system could eliminate the clear conflicts of interest raised by people like Brian Kemp, while also tackling the more insidious and less obvious forms of corruption that arise when party members use their power over election administration to ensure that their party stays in power.

What might such a system look like? Canada may provide a useful model, given its similarities to the U.S., particularly with respect to its federalist structure. In Canada, each province is responsible for administering its provincial elections, while the Canadian national government administers national elections. The Canadian election administration systems share a few key components that keep the electoral commissions independent and non-partisan, and that all U.S. states should adopt: Continue reading →

Putting Anticorruption Up for a Vote: The Challenge of Designing Effective National Referendums

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One of the biggest challenges in the fight against corruption is getting people in power to reform the very system from which they currently benefit. Over the past year, we have seen anticorruption advocates in Colombia and Peru attempt to bypass this hurdle using national popular referenda on anticorruption measures.

In Peru, the referendum on December 9, 2018 came on the heels of the massive Odebrecht scandal, which implicated all of Peru’s living former Presidents. Current President Vizcarra and his supporters originally proposed a referendum containing three anticorruption reforms: banning the immediate reelection of legislators and executives, reforming the system by which prosecutors and judges are appointed, and instituting new campaign finance regulations. The required legislative approval of the referendum took several months, and during this process the legislature added another proposal (not supported by President) to create a second legislative chamber. In the end, the three original reforms passed, and the proposed bicameral legislature failed after a successful “Yes, yes, yes, no” campaign by the President and his supporters.

Colombia’s referendum also came in response to the fallout from the Odebrecht scandal. On August 28, 2018, Colombia had a national referendum on seven anticorruption measures that aimed to improve transparency in governance, institute legislative term limits, and cut legislator pay. Six of the seven measures proposed in the referendum had previously failed in the lower house of the Colombian legislature, but 99% of voters approved all seven measures in the referendum. Though the total number of citizens voting fell just short of the quorum required for the referendum to be binding, President Duque convened an anticorruption roundtable and vowed to implement all seven measures by December 2018. The President proposed eight measures inspired by the referendum to the legislature, but momentum has stalled as legislators look to modify the proposals or avoid voting on them. With no clear deadline for if and when they will be passed, their fate is now uncertain.

As I discussed in an earlier post, the Colombian referendum was not without its faults, specifically with respect to the inclusion of counterproductive retributive measures. More generally, while a national referendum may seem like an ideal way to bypass conflicted legislators, a referendum poses serious three risks that need to be addressed if one hopes to use this lawmaking mechanism to combat corruption:

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When Justifiable Anger Leads to Bad Policy: The Unintended Consequences of Colombia’s Anticorruption Referendum

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Last August, Colombia held a national referendum on seven anticorruption measures. Despite the fact that six of these measures had previously been proposed in, but failed to pass out of, the lower house of the legislature, popular support for the measures was overwhelming: each measure received 99% “Yes” votes. The referendum did not pass, however, because even though more people voted “yes” on the referendum than voted for the current President, under Colombian law the referendum would only pass if a quorum of 12.1 million citizens voted, and the 11.6 million voters who turned out fell short of that number. Nonetheless, proponents of the referendum declared it a success because it has put public pressure on Colombia’s political leaders to implement these measures. And indeed, President Duque has convened an anticorruption roundtable and vowed to implement all seven measures by December 2018.

Is this a good idea? It’s certainly the case that Colombia needs to do more to combat corruption, which is estimated to cost Colombian taxpayers at least $17 billion a year. But it’s not clear that all of the proposed solutions, though doubtless well-intended, are good public policy. I won’t attempt a comprehensive review of all seven measures here. I’ll put to one side discussion of those measures that focus on improving transparency (for example, by publicizing government budgets, legislators’ voting records, and public officials’ tax returns and asset declarations) or on making penalties more severe (for example, requiring those convicted of corruption to serve their full sentences, and nullifying government contracts with parties convicted of corruption). Rather, I want to address two measures that target Colombian legislators: one of these measures would impose a three-term limit, while the other would substantially cut legislators’ pay.

These two measures appear to reflect understandable public anger at how legislators have abused their positions for private gain. But this retributive impulse may produce bad policy. Indeed, both term limits and salary cuts are likely to prove counterproductive in the fight against corruption in Colombia.

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