Author Archives: Matthew Stephenson

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About Matthew Stephenson

Professor of Law, Harvard Law School

UN Guide for National Anticorruption Strategies

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The United Nations Office of Drugs and Crime recently published National Anti-Corruption Strategies: A Practical Guide for Development and Implementation, designed to assist countries considering the drafting (or revision) of a “National Anticorruption Strategy” document as part of an effort to comply with their obligations under the UN Convention Against Corruption (UNCAC). (Although the Guide will be formally presented/unveiled at the upcoming UNCAC Conference of States Parties meeting in St. Petersburg, the online version is already available.)

Full disclosure: Both Rick and I were heavily involved in the drafting of this Guide (indeed, at the early stages of the process Rick used this blog to solicit — quite successfully — input on the project). For that reason, I’ll refrain from praising (or criticizing) this Guide. I will merely note that it exists, and that it may be of interest to some of our readers, particularly those who are currently either considering or actively working on the development of this sort of national anticorruption strategy document. I’ll also invite readers to share their criticisms of the Guide, in the hopes that frank, unsparing criticism will be helpful both to those working on these issues at the front lines, and to those of us who work on preparing guidance documents like this in the future.

Don’t Be Fooled: Bob McDonnell’s Supporters Want To Legalize Bribery of Senior Government Officials

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Last week, as many readers (at least those who follow corruption issues in the U.S.) are probably aware, the U.S. Supreme Court issued an order allowing former Virginia Governor Bob McDonnell to remain free on bail while his appeal is pending, a signal that the Supreme Court is likely to hear his case. As readers of the blog are also likely aware, I think that the appeals court that affirmed McDonnell’s bribery conviction decided correctly, meaning that the Supreme Court should either decline to hear the case, or should take it and affirm it. I really don’t think I have much more to say about the substance of the legal issues, and I wouldn’t bother posting about it again, except that an op-ed in last week’s Washington Post (by C. Boyden Gray, former White House counsel to President George H.W. Bush) got me so bloody angry that I just have to weigh in on this again, if only to point out the absurd consequences of the position advocated by Mr. Gray and others who argue that the conviction should be overturned.

The linchpin of Mr. Gray’s argument is that the alleged “official acts” that Governor McDonnell provided to private businessman Jonnie Williams (in exchange for lavish gifts, loans, and other tangible benefits) were “nothing more than speaking with aides and arranging a single meeting between an aide and [Mr. Williams],” and that criminalizing such routine conversations and meetings would be absurd. Described that way, McDonnell’s acts do indeed sound innocuous. But Mr. Gray’s characterization is so flagrantly misleading that there’s only one word to describe it, and it’s not a word I can use on a family blog. Continue reading →

Some Slightly Sarcastic, Semi-Serious Suggestions for Improving Anticorruption Conferences

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Over the last couple of years, I’ve attended maybe a dozen or so international anticorruption conferences—some small, some large, some focused narrowly on legal issues, others focused on broader issues of development and good governance. (Most recently, I was able to attend the International Anti-Corruption Conference (IACC) in Malaysia, which I hope to blog about more in a series of upcoming posts.) Overall, I’ve found these meetings to be very helpful, both in terms of useful substantive discussion and in terms of opportunities to meet people from governments, international organizations, civil society, media outlets, and research institutions who share a common interest in the fight against corruption. Nonetheless, I think there are a few ways that these conferences could be improved. So, in the spirit of constructive – if admittedly somewhat snarky – criticism, let me throw out a handful of suggestions for improvements to these meetings: Continue reading →

Spain’s New Corporate Compliance Defense: What Impact Will It Have?

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In the world of foreign anti-bribery law, there has been much discussion (including on this blog – see here and here) about whether to adopt a so-called “compliance defense” that would allow corporate defendants to escape criminal liability for bribery committed by their agents if the corporation can show that it had an adequate compliance system in place. Some countries’ foreign bribery laws – most notably the US Foreign Corrupt Practices Act – do not have such a defense; others – most notably the UK Bribery Act – do (though the UK Act combines the defense with strict corporate liability not only for the acts of employees, but also of other agents). Spain recently joined the latter group of countries with an amendment to its criminal law (Article 31 bis) that went into effect last month (see summaries here and here). That amendment (which covers not only Spain’s foreign bribery offense, but also domestic bribery and other corporate criminal offenses) allows the corporation to avoid criminal liability if it can establish that, prior to the commission of the crime, the board of directors implemented an adequate compliance program that meets certain requirements laid out in the statute.

Proponents of the compliance defense cheered. And a report on the new law from the law firm Miller & Chevalier predicted that this legal change “should encourage companies doing business in Spain to adopt a rigorous compliance program”—a claim that presumably would also apply to Spanish companies doing business abroad, given that the provisions also apply to Spain’s foreign bribery offense.

I’m not so sure, for reasons I’ve discussed before, but I do think the change in the Spanish law might provide an interesting opportunity to test the hypothesis. Continue reading →

A Regional Anticorruption Convention in the Asia-Pacific?

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In my last post I discussed Transparency International’s proposal for an “ASEAN Integrity Community” (AIC) to promote and harmonize effective anticorruption policies in the Southeast Asian region. The proposed AIC would be part of the formal ASEAN framework but would not impose additional legal obligations on member states. This got me thinking a bit more about whether it would be a good idea to push for a more robust international anticorruption convention, either in ASEAN or in the Asia-Pacific region more generally. (I’m not alone in having at least entertained this idea: the Thai National Anti-Corruption Commission has apparently been developing, and occasionally floating, a proposal for an ASEAN Anti-Corruption Convention.) After all, in addition to the two main global anticorruption conventions—the UN Convention Against Corruption (UNCAC) and the OECD Anti-Bribery Convention—there are also a number of regional anticorruption conventions, including the Inter-American Convention against Corruption, the African Union Convention on Preventing and Combating Corruption, the League of Arab States Anti-Corruption Convention, the Council of Europe’s Civil and Criminal Law Conventions on Corruption, and the European Union’s Convention against Corruption involving Officials. Indeed, the Asia-Pacific region is one of the few regions in the world (along with South Asia, Central Asia, and a handful of others) that lacks a regional anticorruption convention of some kind. Is there a case for creating such a regional instrument in the Asia-Pacific (or, more narrowly, in ASEAN)?

I think, upon further reflection and discussions with people who have much more expertise than I do, that the answer is probably no. But nevertheless I thought it would be worth at least floating the idea, if only to stimulate further discussions. Continue reading →

Do We Need an “ASEAN Integrity Community”?

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The Association of Southeast Asian Nations (ASEAN) is taking a major step toward greater regional economic integration at the end of this year, with the long-awaited launch of the “ASEAN Economic Community”, a region-wide agreement designed (among other things) to promote the freer movement of goods, capital, and labor throughout the region. Yet many worry that this greater economic integration might exacerbate the region’s already serious struggles with corruption, especially cross-border corruption. Largely in response to that concern, last April Transparency International published a report calling for the creation of an “ASEAN Integrity Community” (AIC) that would, in the words of the report, “create a coherent regional anti-corruption strategy” and “provide space for civil society and the business sector to be able to have input into and shape this regional anti-corruption agenda.”

It’s an intriguing idea, and the report is worth reading. (Full disclosure: I wrote a background paper for one of the meetings TI organized last September to discuss corruption challenges in ASEAN. Indeed, substantial chunks of the background paper that I wrote appear – uncredited – in the TI Report on the AIC.) Certainly, there’s a good case to be made for greater regional cooperation on anticorruption challenges within ASEAN. That said, I found the TI report on the proposed AIC frustrating in several respects, most significantly the vagueness regarding how, exactly, the AIC would operate, and how it would add value above and beyond the existing regional forms and groupings that address corruption issues. I realize that this is an early-stage proposal, designed to generate political momentum for greater action and political buy-in (particularly in advance of the International Anti-Corruption Conference in Malaysia next week), so it may not really fair to criticize the report for being a bit light on specifics. Still, it’s worth reflecting a bit more on what we might hope to get out of something like an AIC, and whether this is the right way to go about tackling what most experts would agree is a genuine and serious set of problems and challenges. Continue reading →

A U.S. Court Jeopardizes Corporate Transparency Rules, in the Name of Free Speech

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Transparency is often seen as an important anticorruption tool, perhaps nowhere more than in extractive industries. Notably, an international movement has called on extractive industry firms to “Publish What You Pay” (PWYP). The idea is that if it were public knowledge what these firms had paid for the concessions they receive from governments, the citizens in those countries (as well as journalists, NGOs, and others) would be better able to hold governments accountable for what they did with the money (and would make it harder for governments, or individual government officials, to lie about how much money they received). Many advocates therefore believe that it would be good public policy to enact PWYP rules that would compel these sorts of disclosures. But would such disclosure requirements violate the constitutional principle of freedom of speech? Alas, some U.S. judges seem to think so.

If the whole idea that disclosure requirements of this sort might infringe free speech rights seems bizarre, I’m with you—in my earlier post on this topic, discussing an earlier case that seemed to take this position, I used words like “absurd” and “inane.” Yet last week the U.S. Court of Appeals for the D.C. Circuit issued a new ruling (a follow-up to the earlier decision I ranted about last year) that seemed to strongly endorse a very broad constitutional protection for corporations against “compelled commercial speech,” which bodes ill. Although the most recent opinion, like the one I posted about last year, does not directly address PWYP mandates, the larger themes of the D.C. Circuit opinion are troubling, and suggest that this court (or at least some judges) may be hostile to the whole idea of using mandatory disclosures as a way to advance important public policy goals, including the fight against corruption. Continue reading →

Cool Graphics and Useful Data: The “FCPA Map”

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Earlier this summer the director of the Mintz Group (a private firm specializing in corporate investigations matters) referred me to a useful resource his firm has developed, an interactive “FCPA Map,” displaying in graphic and user-friendly from all the FCPA cases that have resulted in penalties, broken down by country, industry, and size of penalty (along with links to the court decisions or press releases announcing the resolution of each of the cases). All the information on this FCPA Map is publicly available and can be downloaded from other sources (including the DOJ’s website), but the interactive map is a helpful, user-friendly resource that I thought might be of interest to some of our readers (and may be especially useful for students). So I thought I’d give it a plug here.

[By the way, in case anyone is wondering: I have no relationship, financial or otherwise, with the Mintz Group. I’ve only met the director once, briefly, after he attended a lecture I delivered at the International Anti-Corruption Academy. Mentioning this may seem gratuitous, but on an anticorruption blog of all places, it’s probably important to address any concerns about conflicts of interest!]

Guest Post: The Blagojevich Case and the Line Between Corruption and Horse-Trading

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Jennifer Rodgers and Jacob Watkins, respectively Executive Director and Program Coordinator for the Columbia University Center for the Advancement of Public Integrity (CAPI), contribute the following guest post:

Former Illinois Governor Rod Blagojevich was recently back in the news, but this time for something he didn’t do wrong, when the Seventh Circuit Court of Appeals vacated 5 of the 18 counts on which Blagojevich was convicted in 2011. The appellate court’s decision hinged upon the distinction between illegal corruption and legal (if distasteful) political horse-trading, an issue recently touched upon in the decision by the Court of Appeals for the Fourth Circuit to uphold former Virginia Governor Bob McDonnell’s public corruption convictions (which Matthew discussed here). The outcome of the Blagojevich appeal shows that under current U.S. law, whether or not a public official’s deal-making is illegal depends upon what exactly the official is bargaining for. Political horse-trading–exchanging one official act for another official act–is not a crime under U.S. federal law, but exchanging an official act for a private benefit is. The decision in the Blagojevich provides a useful opportunity for thinking more generally about how the law ought to draw that difficult line. Continue reading →

Anticorruption Bibliography–August 2015 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.