Author Archives: Matthew Stephenson

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About Matthew Stephenson

Professor of Law, Harvard Law School

Guest Post: The Metaphysics of “Corruption” (or, The Fundamental Challenge to Comparative Corruption Measurement)

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GAB is pleased to welcome back Jacob Eisler, Lecturer at Cambridge University, who contributes the following guest post:

A couple months back, Matthew Stephenson and Michael Johnston engaged in a lively debate on the question of if aggregate-level data of corruption is useful, focusing on the appropriate level of methodological skepticism that should be directed towards large-scale efforts to quantify corruption (see here, here, here, and here). While this debate touched on a number of fascinating questions regarding how to best treat data regarding corruption, it has drifted away from why Michael had a concern with overly aggressive quantification in the first place: Actually addressing corruption requires a “standard of goodness,” and the difficulty in coming up with such a standard explains why the social sciences have faced a “longstanding inability to come to a working consensus over how to define corruption.” In other words, when we talk about corruption, we are inevitably talking about something bad that suggests the vitiation or distortion of something good. It is difficult to conceptualize corruption except as a distortion of a non-objectionable political process—that is, political practice undertaken with integrity. This need not mean that there must be some shared first-order property of good governance; but it does suggest that there is a shared property to distorted or corrupted governance that must derive from some shared property of all politics.

If this idea of a “shared feature” is taken seriously, it would suggest those who argue for the value of comparative corruption metrics are making a very strong claim: that if you are comparing corruption within a country, or across countries, all the relevant polities and types of practice must have some shared feature, deviation from which counts as corruption. This shared feature in turn would be an aspect of governance. It could be any number of constants in human society – a constant feature of morality in governance, or tendencies of human anthropology. But in any case, this is a very distinctive and powerful claim, and one that requires strong assumptions or assertions regarding the nature of governance. To weave this back to the original dispute, our willingness to rely on quantitative metrics should depend on our level of commitment to our faith in this constant feature of politics that makes corruption a transferable, or, more aggressively put, “universal” thing. Our use of these homogenizing empirical metrics implies that we are committed to the robustness of the constant feature. Yet it doesn’t seem like this conceptual work has been done. Continue reading →

What Can Young Lawyers Do To Fight Corruption Now that Trump Is President?

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I promise that eventually I’ll go back to blogging about things other than Trump, but that seems to be the most important challenge facing the anticorruption community right now. Also, I wanted to contemplate a question that a friend and recent law school graduate (who is currently working for the US government, and so cannot be identified by name) put to me in response to the “cry of despair” I posted in the immediate aftermath of the election. This young lawyer asks:

What can people do in the face of all this? Is there anything young lawyers who care about anticorruption policy can do? If we can expect a drop in enforcement and weakening of the FCPA, where can people concentrate their efforts?

This is a great set of questions, and I wish I had good answers. I don’t, but in the interests of contributing to these important conversations, let me offer a few preliminary thoughts (which are probably worth approximately what you’ve paid for them): Continue reading →

Guest Post: When and How Will We Learn How To Curb Corruption?

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GAB is pleased to welcome Finn Heinrich, Research Director at Transparency International, who contributes the following guest post:

Listening to conversations about corruption among global policy-makers, corruption researchers, and anticorruption activists alike, I can’t help but notice that the focus of anticorruption research and policy is changing. The 1990s focused mainly on demonstrating that corruption exists and finding ways to measure it (largely through perception-based indicators), and the early 2000s were about assessing corruption risks in specific countries, sectors, or communities, and assessing the performance of anticorruption institutions. More recently, researchers (and their funders and clients) are shifting from the “Where is corruption?” question toward the “How can we fight corruption?” question. They ask: Do we know what works, when, where, and under which circumstances in curbing a specific type of corrupt behavior?

Answering such questions is extremely challenging. Corruption’s clandestine nature makes it difficult to measure, data is often of low quality or simply not available for time-series or cross-sectional analysis beyond aggregate country-level indicators. Furthermore, anticorruption interventions often lack an underlying theory of change which would be needed to design robust research evaluations to find out whether they worked and if so, how (and if not, why not). And we lack realistic but parsimonious causal models which can take account of contextual factors, which are so important to understand and tackle corruption, as corruption is an integral part of broader social and political power structures and relationships which differ across contexts. Similarly, there is a lack of exchange between micro-level approaches focusing on specific, usually local anticorruption interventions, on the one hand, and the macro-level literature on anti-corruption strategies and theories, on the other.

While we at Transparency International certainly do not have any ready-made solutions for these extremely tricky methodological and conceptual issues, we are committed to joining others in making headway on them and have therefore put the “what works” question at the heart of our organizational learning agenda by engaging in reviews of the existing evidence as well as ramping up impact reviews of some of our own key interventions. For example, we have just released a first rapid evidence review on how to curb political corruption, written by David Jackson and Daniel Salgado Moreno, which showcases some fascinating evidence from the vibrant field of political anticorruption research. We are also working with colleagues from Global Integrity on a more thorough evidence review on corruption grievance as a motivator for anti-corruption engagement and are planning further evidence reviews and impact evaluations.

As we start to get our feet wet and figure out how to best go about generating and making sense of the existing evidence on what works in anti-corruption, we are keen to engage with the broader anticorruption research community. Maybe there are others out there who have some ideas about how to go about learning about what works in fighting corruption? If so, please use the comment box on this blog or get in touch directly at acevidence@transparency.org.

Donald Trump Will Probably Violate the Foreign Emoluments Clause. So What?

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Those of us who are still reeling from the shock and horror of Donald Trump’s election are going through many of the typical stages of grief: denial, anger, depression, etc. To these I’d add an additional stage of (political) grief, which seems to disproportionately afflict my fellow law professors: the desperate concoction of legally plausible but politically dead-on-arrival constitutional theories designed to stop Trump from becoming President (or stop him from doing lots of the things he wants to do).

Enter the Foreign Emoluments Clause of the U.S. Constitution (Article I, Section 9, Clause 8), which provides that “no person holding any office [of the United States government] … shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Many legal scholars, including my colleague Larry Tribe, as well as a number of legal ethics experts, have argued (persuasively, in my view) that Donald Trump’s global business dealings may well put him in violation of this Clause: If any foreign state pays above-market-value for any goods or services provided by the Trump business empire, or does any other favor (with a cash value) designed to benefit President Trump’s businesses, that could well be deemed a “present … of any kind.” The wording of the Emoluments Clause is broad: It does not require a quid pro quo, it does not require a showing that the gift was intended to influence a decision or an expression of gratitude for a decision already made. In contrast to the conflict-of-interest statutes, there is no explicit exemption from the Foreign Emoluments Clause for the President (though some scholars have sought to argue that the President is not covered, for reasons I don’t find all that persuasive). Furthermore, the “of any kind” modifier would seem to defeat many of the otherwise-plausible claims that the terms “present” and “emolument” should be read narrowly. (I imagine that there might still be a “de minimis” exception from the Emoluments Clause, allowing for ceremonial gifts of various kinds, but that’s not really what we’re talking about in the Trump case.) Though I’m no expert, based on what I’ve read thus far I’m prepared to accept the claim that should foreign governments provide benefits to the Trump Organization while Donald Trump is President—including paying above-market-rates, or steering business to Trump’s companies—then President Trump would be in violation of the Foreign Emoluments Clause.

The question is: So what? What’s the remedy for this constitutional violation?

There are three possibilities—a judicial remedy, an “elite” political remedy, and a public opinion remedy. None of them seems especially promising. Continue reading →

Academics in Support of the Transparency International Secretariat’s Research Work

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As most readers of this blog are likely aware, Transparency International (TI) is the world’s leading advocacy organization focused specifically on fighting corruption. In addition to the important advocacy work done by the TI Secretariat and TI’s many national chapters, Transparency International has also played an important role in producing and supporting a variety of research activities.

Word on the street is that Transparency International is in the middle of some sort of internal reorganization. It’s apparently a complicated situation, and while I certainly don’t know much about the details (particularly concerning matters like German labor law), some of my academic colleagues have raised concerns about the possible implications of the reorganization for TI’s research capacity. In response to these concerns, a group of academics sent a letter (which I signed) to the TI Board of Directors, emphasizing the important contributions of the TI Secretariat’s research team. Although these “insider” organizational issues might not be of interest to all our readers, I thought that some of you might be interested, and perhaps might also like to make your voices heard, so I am providing (with the permission of those responsible for drafting and sending the letter) the full text of the letter here:

Continue reading →

Was I Too Pessimistic on FCPA Enforcement in a Trump Administration? I Fear Not, But Hope So

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A couple weeks back, I published a post (really, more of an extended wail) about the likely consequences of the Trump presidency for anticorruption efforts. Among my many worries was the concern that under a Trump administration, we may see the end (or at least the significant cutback) of the era of aggressive enforcement of the Foreign Corrupt Practices Act. Other analysts—notably Peter Henning and Tom Fox—are less pessimistic in their assessments, and have written interesting explanations as to why FCPA enforcement is unlikely to change much under President Trump. I hope they’re right. And I suspect they probably are, if only because commentators—including, perhaps especially, so-called “experts”—have a demonstrated tendency to over-predict dramatic change. Most of the time, the safest prediction is that the future will resemble the past. And more specifically here, the forces of inertia in the U.S. federal government are strong, and sudden changes are both rare and unlikely.

Still, I’m not sure I’m fully convinced by the reasons that Mr. Fox, Mr. Henning, and others have offered for their more sanguine conclusion that FCPA enforcement will not change much under a Trump Administration. So, with the understanding (and sincere hope) that I’m probably wrong, let me address some of the principal arguments that have been advanced for the “no change” prediction. Continue reading →

Anticorruption Bibliography–November 2016 Update

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An updated version of my anticorruption bibliography is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written

The International Anti-Corruption Conference Should Alter Its Agenda To Address the Trump Situation

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The 17th Annual International Anti-Corruption Conference (IACC) will be held next month (Dec. 1-4) in Panama. General information about the conference is here, you can register here, and the current agenda is here. Overall, it looks like a great agenda. But in light of the result of the US Presidential election–which, as I argued last week, is likely to have significant and potentially devastating effects on the global anticorruption movement–it was striking to me that not a single session (out of seven plenary sessions and over 30 substantive panels) focuses on the consequences of the US election for the global anticorruption fight and how the movement should respond.

This strikes me as a very serious oversight. I’m sure that many of the speakers on the existing panels will address this issue, and I also know that the process of creating the agenda was a long and laborious one. But the Trump presidency poses perhaps the single greatest threat to the progress that the anticorruption movement has achieved over the last 25 years, and the IACC–as the leading global forum for anticorruption activists and advocates–needs to address this issue head-on. I don’t know if we have any of the IACC organizers (or anyone with access to them) among our readers, but if we do, I implore you to create a special session, preferably one of the plenaries, devoted specifically to meeting this challenge.

US Anticorruption Policy in a Trump Administration: A Cry of Despair from the Heart of Darkness

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Like many people, both here in the US and across the world, I was shocked and dismayed by the outcome of the US Presidential election. To be honest, I’m still in such a state of numb disbelief, I’m not sure I’m in a position to think or write clearly. And I’m not even sure there’s much point to blogging about corruption. As I said in my post this past Tuesday (which now feels like a million years ago), the consequences of a Trump presidency are potentially so dire for such a broad range of issues–from health care to climate change to national security to immigration to the preservation of the fundamental ideals of the United States as an open and tolerant constitutional democracy–that even thinking about the implications of a Trump presidency for something as narrow and specific as anticorruption policy seems almost comically trivial. But blogging about corruption is one of the things I do, and to hold myself together and try to keep sane, I’m going to take a stab at writing a bit about the possible impact that President Trump will have on US anticorruption policy, at home and abroad. I think the impact is likely to be considerable, and uniformly bad: Continue reading →

It’s Election Day in the United States. Please Vote (if you can).

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Today voters in the United States will go to the polls to elect the next President of the United States, as well as representatives in the legislature and other offices. For that reason, there doesn’t seem to be much point in publishing an ordinary post today.

This election is so obviously important–not just for the United States but for the whole world–that it might seem a bit forced to try to put an “anticorruption spin” on it. It’s nonetheless worth keeping in mind that, for all the U.S. government’s faults and mistakes–of which there are many–American leadership on anticorruption, both domestically and abroad, is vitally important. After we know the results of the election, I may try to write something up speculating about how those results might affect global anticorruption efforts. For now, I’ll just remind readers (who probably don’t need any such reminder) that Donald Trump and Hillary Clinton have starkly different histories and views regarding these issues (see here, here, here, here, here, and here). If you are a registered voter in the United States and have not already voted, please do so as soon as possible! If not, please cross your fingers, knock on wood, and pray.