Author Archives: Matthew Stephenson

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About Matthew Stephenson

Professor of Law, Harvard Law School

The “FCPA Cash Cow” Story Is Bull: Why Vigorous Enforcement Is Not About Raising Revenue

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Occasionally one hears—particularly though not exclusively from the U.S. business community and corporate defense bar—the assertion that aggressive U.S. enforcement of the Foreign Corrupt Practices Act (FCPA) is the result, at least in part, of the desire to raise revenue for the U.S. government. (See here, here, here, and here.) This claim that the FCPA is a government “cash cow” is sometimes offered as a knowing (or cynical) explanation for why the government is allegedly “over-enforcing” the statute. Even among some scholars with less of a personal or professional stake in criticizing the U.S. government’s motives, the idea that FCPA enforcement advances the U.S. national interest by increasing U.S. government revenues seems to be occasionally finding its way into the discourse.

There are, to be sure, lots of legitimate questions about the motives and wisdom of the U.S. government’s current approach to enforcing the FCPA. But the notion that FCPA enforcement is driven by the desire to raise revenue (from beleaguered, helpless multinational corporations) is just implausible. Indeed, I’m surprised so many extremely intelligent people seem to entertain this argument rather than dismissing it outright.

Why do I think it’s so implausible? Two main reasons: Continue reading →

The 2015 CPI and Year-to-Year Changes: A Definite Improvement, But Problems Remain

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As most people who follow this blog are likely aware, Transparency International released the 2015 Corruption Perceptions Index (CPI) last week. There is, of course, a lot to talk about here, and I’m sure many commentators and scholars will spend a lot of time poring over the new data and debating its significance. Given my previous criticisms of the CPI’s suggestion that scores for the same country can be compared across time (see here, here, here, and here), that was naturally the first thing I focused on. I was hoping that TI might take up some version of my suggestion to report statistical confidence intervals in an easy-to-see place in the main data table, or, even better, test for statistically significant changes in scores across years. Alas, TI didn’t do either of those things. (The confidence intervals are still available, but you have to download the data to find them.) TI did, however, report that since 2012, some countries had improved, while others had deteriorated. In particular, TI noted three countries (Greece, Senegal, and the UK) had improved their CPI scores since 2012, while five countries (Australia, Brazil, Libya, Spain, and Turkey) had seen a notable worsening.

Because of last year’s fiasco with China (where TI emphasized a decline in China’s CPI score that turned out to be bogus), I was initially skeptical. So, I went ahead and implemented the procedure that I outlined in my post from a few months ago to see whether, for these eight countries, there really was a genuine, statistically meaningful change in the CPI score. I was pleasantly surprised to discover that in all eight of the countries that TI identified, the change in the CPI score between 2012 and 2015 was indeed statistically significant at conventional levels, and do not seem to have been driven by the addition or subtraction of sources in the later year, or by a large anomalous jump in a single source. (Though it’s perhaps worth noting that in the case of Brazil – which TI particularly emphasizes in its press release – the change is just barely significant at conventional levels, and of the seven sources used to construct the score, although four indicate moderate to large declines, two show no change and one actually rates Brazil as improving slightly from 2012 to 2015.) So, while I still have a number of criticisms (about which more below), I’ll gladly give credit where credit is due: In this year’s publicity materials, TI has indeed identified countries where there is statistically significant change in CPI scores, generally driven by changes in several of the underlying data sources. I hope that in future years, TI will go further (and save me some time) by simply including in the main data table not only the confidence interval for the current year, but also a simple three-category indicator (up, down, null) for whether there has been a statistically significant change in the CPI in the past three years. (This is important because of the way the CPI is covered by mainstream journalists: Though researchers might dig into the data tables, most journalists or casual readers just look for year-to-year changes.)

Now, I did say I still had some concerns, so in the interest of continued constructive engagement, let me lay out why I still don’t think we should treat within-country year-to-year changes in CPI scores as terribly meaningful: Continue reading →

Malaysia’s Anticorruption Credibility Problem

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The biggest anticorruption news last week was almost certainly the announcement by Malaysia’s new Attorney General clearing Prime Minister Najib Razak of any wrongdoing in connection to the approximately $781 million that mysteriously appeared in his personal bank account. Early reports suggested that the money might have been embezzled from a state investment fund called 1MDB – and the controversy over this matter caused substantial political upheaval (and ended up being a major focus of last year’s International Anti-Corruption Conference, which was held in Malaysia at the height of the scandal). But last week, Attorney General Mohamed Apandi Ali, following up on an earlier statement by the Malaysian Anti-Corruption Commission (MACC), announced that the money was not in fact from 1MDB, but was instead a “political donation” from the Saudi royal family. Attorney General Apandi further stated that the money was given “without any consideration,” that Prime Minister Najib had not done anything unlawful, and that he’d returned $620 million of unused money to the Saudi royal family.

Is this true? Is it really the case that Prime Minister Najib did nothing wrong (or at least nothing illegal)? Of course, I have no idea (though Swiss investigators announced earlier this week that there is indeed evidence of massive misappropriation from 1MDB). I’m not privy to any of the evidence that the MACC and the AG investigated, and I’m at best a casual, intermittent outside observer of Malaysian politics. And it would be nice to live in a world in which, when the most senior justice official in a country announces that allegations of corruption are unfounded, I could simply believe those assertions. After all, not all allegations of corruption are true. Yet in this case, my reaction to the AG’s announcement (even before I read the news about the ongoing Swiss investigations) was cynical disbelief. I may not ever know what actually happened in this case, but what I do know is that pretty much everything that’s happened since news of the scandal broke has shattered any faith that I may once have had that Malaysian institutions undertook a genuine, impartial, investigation of this matter. Indeed, the Malaysian government’s handling of this matter is a textbook example of how a system can damage its credibility, perhaps irreparably.

Just to recap some of the highlights: Continue reading →

Guest Post: A New Additional Indicator for Measuring Progress Toward SDG 16

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GAB is delighted to welcome back Dieter Zinnbauer, Programme Manager at Transparency International, who contributes the following guest post:

A very interesting discussion has evolved on this blog (see here, here, here, and here), and in the wider world (for example, see here), on about the indicators that should be used to measure progress toward the Sustainable Development Goals (SDGs) goals for improving governance and reducing corruption (Goal 16). There are already some very good suggestions on the table, including the use of Transparency International’s Global Corruption Barometer (GCB) to measure progress toward Target 16.5, on reducing corruption and bribery in all their forms. (TI has used the GCB since 2005 to compile one of the largest data troves on the detailed experience with corruption of households and individuals around the world. Using a GCB-type indicator for the bribery dimension of SDG 16.5 is supported by a wide variety of stakeholders, including the World Bank, UNDP, and Save the Children.)

Yet most of the indicators proposed so far, including the GCB, speak to very specific aspects of corruption (such as bribery) and don’t quite do justice to Goal 16’s broad ambitions and its emphasis on public accountability. So to spice up this stew a bit, let me suggest another possible indicator, one that complement to some of the ideas that are already on the table. My proposed indicator of progress toward SDG 16 is as follows:

What percentage of national-level parliamentarians (and perhaps top level members of the executive) have made assets, income, and interest disclosures (AIIDs) in a format that is publicly accessible online at sufficient level of detail, in timely manner, and in a machine-readable data format.

Using AIID as an additional SDG 16 indicator might at first seem to be a step backwards, since such an indicator measures “outputs” rather than “outcomes.” But let me try to convince you that in fact AIID would be an extremely useful complementary indicator for progress toward SDG 16: Continue reading →

More Phony Numbers–This Time on the Anticorruption Impact of Open Data

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OK, I know I’m beating a dead horse. Within the last month I’ve already posted several times (see here, here, and here) about bogus anticorruption statistics, as has Rick. And I promise that after this post, I’ll move on to other topics. But I can’t help commenting on this latest release from Transparency International, criticizing the recent World Economic Forum (WEF) meeting for not explicitly addressing corruption. As its lead example, TI faults the WEF for not addressing issues like open data (and openness more generally). I’m sympathetic to TI’s policy position, but in making the case, TI asserts, “One study suggests that open data could reduce the costs of corruption by about 10 percent.”

I was curious (and, admittedly, skeptical) about yet another seemingly precise estimate of something that’s inherently hard to measure. So I clicked on the link to the “one study” that “suggests” that open data technologies would reduce the costs of corruption by 10%. This “study” is actually a report (really, an advocacy document) from an Australian consulting firm (Lateral Economics), commissioned by a philanthropic fund (the Omidyar Network) that invests in open data initiatives. How does this “study” reach its conclusion that open data could reduce the costs of corruption by 10%? I will now quote in full the entirety of the evidence and analysis supporting that conclusion: Continue reading →

Guest Post: Time to Go Beyond Anti-Corruption Agencies in Sub-Saharan Africa

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Njoya Tikum, United Nations Development Programme Regional Anti-Corruption Advisor for Africa and Yale University World Fellow, contributes the following guest post:

To achieve the aspiration for an inclusive and sustainable human development in Africa, as articulated in the Africa Union’s (AU) Agenda 2063 and reiterated in the Common Africa position on post 2015, African countries must reconsider their approach to the fight against corruption. In the last 15 years, the international community of anticorruption practitioners and advocates have induced African countries to establish anticorruption laws and bodies. With few exceptions, almost every African country—sometimes of their own volition and at times under immense pressure from international financial institutions—has embarked on wide-ranging reforms aimed at strengthening state accountability and eradicating corruption. However, these interventions have not resulted in any noticeable decline in corruption in most parts of Africa. Indeed, multiple indexes such as Transparency International’s Corruption Perception Index (CPI), the Mo Ibrahim Foundation’s Governance in Africa Report, and the Afrobarometer, indicate that corruption has been on the steady rise in Africa. The critical question, then, is why the legion of interventions aimed at combating corruption have not yielded positive outcomes.

With monumental trust deficit between the state and citizens in Africa, relying on Anti-Corruption Agencies (ACAs) to fight corruption can only yield limited results. For many countries, the establishment of an ACA was just another box to tick in order to get the next round of development assistance; the agencies themselves are mere window dressing, often suffering from institutional weaknesses and a lack of sufficient human and material resources. In several African countries, for example, ACA funding is tied to presidential benevolence instead of allocation through a transparent national budgetary processes. They are staffed by people with no technical expertise, sometimes including retired public servants who have no real zeal to rock the boat. In these countries, the modus operandi is to fight corruption in areas earmarked by the ruling political regime. In some countries, leaders have used the ACAs to further witch-hunts against political opponents.

How does Africa navigate itself out of this quagmire? To win the battle against corruption, Africa must move beyond offices and notepads to pragmatism and action, exploring new and innovative solutions:

  • To begin with, anticorruption strategies must be comprehensive, and must include governance innovations such as open data, transparency and accountability in business, procurement, construction, etc. As part of this comprehensive approach, resources from the national budget must directly be allocated for anticorruption capacity building as part of national development plans (NDPs). As with other parts of NDPs, annual and biannual benchmarks and targets must be established to track the progress of anticorruption initiatives.
  • In addition, African governments can and should make use of new information and communication technologies (ICTs) and citizen social accountability tools. For instance, a number of web based applications have been developed to report instances of corruption in real time, providing an opportunity for cheap, affordable solutions to citizens and quick responses/actions by anti-corruption agencies and integrity institutions. See, for example, the Huduma, Ushahidi in Kenya and Frontline SMS campaigns on drug stock outs in the region.
  • Civil society organisations (CSOs) must play an increased role as the true watchdogs of the people. Given these responsibilities, and the need for CSOs to be autonomous and sensitive to local needs, it is unfortunate that almost 90% of anticorruption CSOs in Sub-Saharan Africa are funded by international donor agencies. The funding strategy must be adjusted, with national governments and other non-state actors taking up more responsibility for supporting anticorruption CSO activities.
  • Speaking of the international community, development partners must switch from playing a hypocritical role where they condemn corruption in the public sector in Africa but do little to stop corruption by private sector groups from their countries. They must embrace a new form of partnership where the private sector, including banks and transnational companies, are held to the same standards as public institutions.

More on McDonnell: Can We Please Get the Facts Straight?

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As many GAB readers know, we’ve had quite a number of posts over the last year about the ongoing legal drama surrounding the conviction of former Virginia Governor Bob McDonnell on federal corruption charges (see here, here, here, here, here, here, and here). Last week, the U.S. Supreme Court (to my chagrin) announced that it would hear Governor McDonnell’s appeal; the Court will address only the question of whether the “official action” required for a conviction under the federal anti-bribery statutes “is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether [these statutes] are unconstitutional.”

I don’t want to spend too much time repeating my arguments as to why I think that upholding Governor McDonnell’s conviction is both the legally correct answer under existing U.S. law as it stands, and why a contrary conclusion would be a major setback for efforts to combat high-level bribery, particularly of public officials who can wield considerable influence over official decisions even without exercising the formal powers of their offices (for more on my views, see here, here, and here). Yet I continue to find myself somewhere between baffled and outraged by the mischaracterizations of what the jury and lower courts actually found, with respect to what Governor McDonnell (and his wife) did. To read the Court of Appeals opinion (which the Supreme Court will now review), and the briefs filed on Governor McDonnell’s behalf, and the various op-eds written by his supporters, is to be on two different planets. Continue reading →

Anticorruption Bibliography–January 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.

Assessing Corruption: Do We Need a Number?

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As GAB readers are aware, I’ve occasionally used this platform to complain about widely-repeated corruption statistics that appear to be, at best, unreliable guesstimates misrepresented as precise calculations—and at worst, completely bogus. (The “$1 trillion in annual bribe payments” figure would be an example of the former; the “corruption costs the global economy $2.6 trillion per year” is an example of the latter.) I recognize that, in the grand scheme of things, made-up statistics and false precision are not that big a deal. After all, the anticorruption community faces 1,634 problems that are more important than false precision, and in any event 43% of all statistics quoted in public debates are completely made up. Yet my strong instincts are that we in the anticorruption community ought to purge these misleading figures from our discussions, and try to pursue not only the academic study of corruption, but also our anticorruption advocacy efforts, using a more rigorous and careful approach to evidence.

But perhaps I’m wrong about that, or at least naïve. A few months ago, after participating in a conference panel where some of the other speakers invoked the “corruption costs $2.6 trillion” figure, I was having a post-panel chat with another one of the panelists (an extremely smart guy who runs the anticorruption programs at a major international NGO), and I was criticizing (snarkily) the tendency to throw out these big but not-well-substantiated numbers. Why, I asked, can’t we just say, “Corruption is a really big problem that imposes significant costs?” We’ve got plenty of research on that point, and—a few iconoclastic critics aside—the idea that corruption is a big problem seems to have gained widespread, mainstream acceptance. Who really cares if the aggregate dollar value of annual bribe payments is $1 trillion, $450 billion, $2.3 trillion, or whatever? Why not just say, corruption is bad, here’s a quick summary of the evidence that it does lots of damage, and move on? My companion nodded, smiled, and said something along the lines of, “Yeah, I see what you’re saying. But as an advocate, you need to have a number.”

We didn’t get to continue our conversation, but that casual remark has stuck with me. After all, as I noted above, this person is extremely smart, insightful, and reflective, and he has lots of experience working on anticorruption advocacy at a very high level (a kind of experience that I, as an Ivory Tower academic, do not have). “As an advocate, you need to have a number.” Is that right? Is there a plausible case for continuing to open op-eds, speeches, policy briefs, and so forth with statements like, “Experts estimate that over $1 trillion bribes are paid each year, costing the global economy over $2.6 trillion,” even if we know that those numbers are at best wildly inaccurate? (This question, by the way, is closely related to an issue I raised in a post last year, that arose out of a debate I had with another advocate about the legal interpretation of the UN Convention Against Corruption.)

I thought I’d use this post as an opportunity to raise that question with our readers, in the hopes of both getting some feedback (especially from our readers with first-hand experience in the advocacy and policymaking communities) and provoking some conversations on this question, even if people don’t end up writing in with their views. And to be clear, I’m not just interested in the narrow question of whether we should keep using the $2.6 billion or $1 trillion estimates. I’m more generally curious about the role (and relative importance) of seemingly precise “big numbers” in anticorruption advocacy work. Do we really need them? Why? And is what we gain worth the costs?

Guest Post: A “Right to Truth” in Grand Corruption Cases?

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Lucas E. Gómez and Ignacio A. Boulin Victoria of the Latin American Center for Human Rights (Centro Latinoamericano de Derechos Humanos, CLADH) in Argentina contribute the following guest post:

Argentina, 1978. In the midst of terror, a group of parents searching for their children finds no answer in domestic justice. Thousands of habeas corpus petitions are rejected by judges. The military dictatorship denies having any clue about them: Videla, the leader of the government, declares: “they are neither dead, nor alive; they are disappeared.” These parents respond with innovative strategies (maybe without being aware of the innovation): They start sending letters of complaint (over a thousand) to the Inter-American Commission on Human Rights (IAHCR). The result: the IACHR visits Argentina and issues a 1980 report recognizing widespread human rights violations; the report has an enormous impact both inside and outside of Argentina. Yet by 1990, these parents still don’t know what happened to their children. Despite the return to democracy in 1983, and some trials of military officers and terrorists shortly thereafter, in 1986 and 1987 Congress passes two acts restricting the criminal prosecution of military officers, and a few years later, President Menem pardons both military hierarchies and terrorists, releasing them from jail.

Argentina, 1995. Some of these parents devise a new strategy: Even if criminal prosecution is forbidden, they assert that there is still a “right to the truth”—a right to know what happened to the disappeared. Though Argentina’s Supreme Court rejects the claim, the parents again take the case to the IACHR. Finally, in 1999, Argentina settles the IACHR case, recognizing the existence of the right to truth. This development ultimately led to the re-opening of the criminal prosecutions against military officers: Once information about the atrocities came out, society started mobilizing for justice. The right to truth put in front of people’s eyes the extent and gravity of the crimes, and the identities of both the victims and the perpetrators. Continue reading →