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.”

Comments on Sri Lanka Proposed Anticorruption Bill

Sri Lanka is known for the quality of its legal scholarship, and the draft anticorruption bill the government gazetted April 6 leaves little doubt the reputation is warranted. It contains many thoughtful, well drafted provisions other nations looking to reform their laws will want to borrow. Too bad for the drafters they can’t copyright their work.

At 162 pages I did not have time to give it the the intensive review the legislature will want to conduct before approving it. But I did find several provisions that I would urge legislators should examine as part of that review —

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The Role of Anticorruption Communications in Sustaining Integrity Reforms

Today’s Guest Post is by Corina Rebegea, governance and anti-corruption advisor with the National Democratic Institute (NDI). Corina oversees programming on transparency, anticorruption and countering kleptocracy and has previously worked on rule of law and justice reform, democratic governance and foreign policy issues, and foreign malign influence.

Moments of democratic opening can be a critical time for anticorruption reforms. In many instances, corruption triggered regime change. In a just released paper for the National Democratic Institute, I examine how to shape a reform message when a sudden shift to democracy opens a window of opportunity.

The paper confirms the important and obvious but often overlooked point that how we talk about corruption plays an important role in democratic transitions. An anticorruption communication campaign can thus inform policy priorities, help mobilize and sustain public opinion, and manage expectations. All are crucial for creating the conditions that make systemic change possible – and durable.

During times of political change, dedicating time to communications, as well as having the right expertise and tools, can be a daunting task. Especially as competing priorities must be addressed in a short period of time. Campaigns can also backfire, as the research summarized in the paper. The campaign can focus too much on the problem, leading to resignation, apathy or even nudging citizens to engage in corruption. Understanding how to effectively communicate anticorruption priorities, reforms and timelines is essential, particularly as there is a risk that forces opposing the democratic opening will retain enough power to derail integrity reforms and cause the window to close.

While more experimentation, research and analysis are needed, the lessons the paper offers are meant to inform the design of campaigns to build public support for integrity reforms, trust, and durable anticorruption outcomes. 

FinCEN’s Beneficial Ownership Proposal: Invitation to Evasion

GAB welcomes this guest post by Gary Kalman, Executive Director of Transparency International U.S.

The Financial Crimes Enforcement Network (“FinCEN”), the bureau charged with implementing our nation’s anti-money laundering laws, is underfunded. They do not have enough staff and significant staff turnover has left the bureau with less institutional knowledge and memory. On top of this, the agency has an Acting rather than permanent Director, undercutting its leaders’ ability to set a clear vision and direction for the bureau.

None of that, however, can explain the agency’s remarkable lapse in judgement in publishing  this proposal to collect beneficial ownership information from U.S. companies.

Let me explain.

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Why We Should be Afraid – Very Afraid – of Corruption in the Reconstruction of Ukraine

Today’s Guest Post is from Donald Bowser. Don has worked on governance and anticorruption programs for over two decades for various donor organizations. In July he founded Support to Ukrainian Recovery Initiative, an NGO focused on implementing early recovery and stabilization projects in formerly occupied communities across Ukraine.

In “Why We Shouldn’t Be Overly Concerned About Corruption in the Reconstruction of Ukraine,” her January 9 post on GAB, Catherine Katz makes three points to back up her claim:

  1. First, the baseline level of corruption in pre-invasion Ukraine was likely overstated.
  2. Second, not only do measures like the CPI tend to overstate the baseline level of corruption in Ukraine, but they do not adequately reflect the significant strides Ukraine has made with its more recent anticorruption efforts, including several that have taken place since Russia’s February 2022 invasion.
  3. Third, backsliding on Ukraine’s recent anticorruption progress is unlikely—and further progress is expected—given Ukraine’s long-term interest in joining the EU and continuing need to receive support from the international community.

Like Katz, I hope the war ends in a Ukrainian victory soon and that the international community commits the resources required to help Ukraine repair the damage Russia has wreaked on the country’s infrastructure. But as the title of my post asserts, I sharply disagree with her about the spectre of corruption during reconstruction. Indeed, I think the international community should be very afraid of how it might compromise reconstruction and should begin immediately to take measures to combat it.  

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UNODC Statistical Framework to Measure Corruption: Comments Requested

Within the global anticorruption community, no topic has generated as much discussion as the measurement issue. Start with the most basic of questions. Is there an agreed upon definition of corruption? Get by the heated objections to claim there is none, and next consider: are there ways to measure something that by its nature is clandestine? Take for granted clever social scientists can, then ask if these measures are comparable. Across time? Different nations?

The methodological and epistemological debates over such questions have raged in the academy for millennia. But as corruption has gained ever more salience as a policy issue, the debate has ranged far beyond the academy. Just ask any political leader forced to explain to citizens why his or her country scored poorly on some corruption-rating scale.

The United Nations Office on Drugs and Crime has now brought needed clarity to the debate. At the request of the 189 state parties to the U.N. Convention Against Corruption, it has published the first draft of a comprehensive statistical framework to measure corruption (here) with a form for providing comments (here).

Bearing in mind my bias, I contributed (very slightly and with more comments promised), I think the draft is a first class piece of work.  Two of many reasons why.

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Making Corruption a National Security Issue: How Will it Change Enforcement Dynamics?

Today’s Guest post is by Nedim Hogic. Nedim advises clients in the private and public sector on environmental, social, and governance issues. Author of many articles on corruption, international law, and the rule of law and development, he is currently writing a book on judicial anti-corruption campaigns.

Since becoming an important policy goal in the 1990s, global anticorruption efforts have gone through three phases. In the first, anti-corruption policies were considered important for economic development, driven by the belief that successful anticorruption programs would make global borrowing and spending and financial aid more efficient. In the second, spanning the first two decades of this century, it was central to the protection of the rule of law and democracy.

The current phase, and particularly that part denominated “kleptocracy,” is animated by the threat it poses to global security. The Biden Administration’s national security strategy, which followed its memorandum calling the fight against corruption a core U.S. security interest, is not the first American or indeed international document to suggest corruption is a national security threat. But it is the first to state the premise clearly and straightforwardly, thus marking a sharp change in thinking about transnational corruption. Indeed, in my view the change is significant enough to be labelled a paradigm shift.

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Corruption-Proofing Legal Norms: A Technique Worth Copying?

“Corruption-proofing” is a method for assessing whether a draft law or regulation poses a risk of corruption. A independent expert analyzes whether the way a proposed legal norm is drafted or to be implemented is likely to pose a risk of corruption and if so, how it can be amended to minimize or eliminate the risk. First used in the early 2000s by EU Eastern Partnership Countries, it has since spread to other states in Eastern Europe and Central Asia and to South Korea.  

The technique’s immediate value is that it gives lawmakers a chance to revise their drafts to address the corruption risks they might create. Of even greater import, when citizens or civil society have an opportunity to weigh in on corruption risks, it opens the door to public discussion and participation in what is government’s most critical task: the making of legal norms binding on all.

My reading of the experience with corruption-proofing suggests others would benefit from adopting a similar procedure. What I learned about that experience is summarized below. Comments welcome and information on other studies or countries where it has been tried most welcome.

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Moldova’s Fight Against Corruption: Reset Needed

Today’s Guest Post is submitted by Dumitrita Bologan on behalf of Moldova’s Independent Anti-Corruption Advisory Committee (CCIA). The CCIA is a corruption watchdog agency with members drawn equally from Moldovan civil society and the international community. Established by presidential decree in 2021, it recommends measures to bolster Moldova’s fight against corruption and periodically reports on their implementation. The post below is drawn from its latest report, “Disrupting Dysfunctionality”: Resetting Republic of Moldova’s Anti-Corruption Institutions. While specific to Moldova, the issues it raises about coordination between law enforcement agencies and the need for judicial reform will be familiar to those working in other countries and the insights about how to address the problems of value to many.

The Republic of Moldova has been struggling with corruption for years, it being acknowledged as a main obstacle to development. The relevant stakeholders have implemented a wide range of measures to prevent and fight corruption, but they have neither been accompanied by coherent policies nor strict adherence by all parties. As a result, they have often been ineffective, insufficient, and poorly executed.

As Disrupting Dysfunctionality shows, the weakest point has been the reform of justice institutions. Reforms initiated in 2011 produced modest results despite considerable investments and support from development partners, and these efforts suffered significant setbacks during the years 2016 – 2019 when elites captured state institutions. While some advances have been realized since, the impact has yet to be felt.

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Islamic States Agree to Anticorruption Convention

On 28 Jumada Al-Awwal, 1444h (December 22, 2022), Anticorruption Ministers of the Organization of Islamic Cooperation agreed to assist one another in preventing, detecting, investigating, and prosecuting corruption crimes.

The Makkah Al-Mukarramah Convention commits OIC’s 57 member states to exchange information and share expertise on bribery, embezzlement, trading in influence, and the other corruption offenses listed in the United Nations Convention Against Corruption. Member states foreign ministers are expected to ratify the Convention by March of this year.

The Convention is an important step forward. For two reasons. One, as a practical matter requests from one OIC member to another for assistance in locating fugitives, securing evidence, or recovering stolen assets often run up against obstacles ranging from outmoded procedures to a lack of trust between law enforcement agencies.

This makes it easy for embezzlers, bribe takers and payers, and other scam artists to escape prosecution.  Not only does the Convention require states to eliminate these barriers, but its creation of a General Secretariat and a Conference of State Parties should help smooth working relations among law enforcement personnel as well as provide a forum for resolving disputes.

The greater impact is surely the Convention’s demonstrative effect. Beyond an immediate effect on behavior, law serves an expressive function, creating and validating social norms. The OIC is in its own words “the collective voice of the Muslim world.” For the representative of the believers in one of the world’s great religions to join the fight against corruption validates and reaffirms the importance of the fight. That the English for “Makkah Al-Mukarramah” is “Holy City of Mecca” serves to emphasize this importance to Muslims of all states.