Author Archives: Richard Messick

Is Corruption Destroying American Democracy? Zephyr Teachout’s Corruption in America

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Fordham University Law Professor Zephyr Teachout earned a place of distinction among anticorruption activists for making the fight against corruption the centerpiece of her spirited campaign to oust the incumbent in New York’s September 9 gubernatorial primary (as well as a good deal of attention on this blog, click here and here).  Her effort also deserves special recognition in academia: surely no other professor has produced evidence to undercut her own academic work so fast as Professor Teachout. Appearing days before the primary, her Corruption in America: From Benjamin Franklin to Citizens United contends that large private donations to political candidates so favor candidates supported by the wealthy that the future of American democracy is at risk.  Yet while preliminary figures suggest the well-known, well-organized incumbent outspent her by somewhere between 40 to 50 to 1, she did surprisingly well, polling 180,336 votes to the incumbent’s 327,150.  If money so dominates American political campaigns, it is hard to see why Professor Teachout got so far with so little. Of course, she did lose the election.  More to the point, even if she had won, her claim that money is overwhelming American elections cannot be dis-proven by a single example.  It may be that her race was an outlier and that most of the time, money does talk.  So what does the accumulated research on the influence of money on American elections show? Continue reading →

The Corruption Conviction of Former Virginia Governor Robert McDonnell

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Former Virginia Governor Robert McDonnell and his wife Maureen were found guilty September 4 of accepting thousands of dollars in luxury goods, an expensive vacation, and $120,000 in loans in return for using the powers and perquisites of the governor’s office to promote a local businessman’s products.  Although proving a public servant took a bribe is never easy, the McDonnell conviction shows that it is not impossible.  It also shows what prosecutors can do to ease their task. Continue reading →

Curbing Corrpution in Papua New Guinea: What Australia Can do

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A lively discussion is underway on the Development Policy Centre‘s DevPolicy Blog about what Australia can do to help control corruption in Papua New Guinea, the largest recipient of Australian foreign assistance.   It follows a government promise that by July 2015 the government will “detail the measures we [Australia] will adopt to protect Australian Government aid funds and how [Australia] will support our partner country’s anti-corruption efforts.”  What’s made the discussion so lively, as Grant Walton and Stephen Howes explain in the initial post, is the juxtaposition of Foreign Minister Julie Bishop’s recent discussion of the government’s plans to implement the policy with PNG Prime Minister Peter O’Neill’s evasion of arrest for his alleged role in a major corruption scandal and his attempts to dismantle PNG’s anti-corruption taskforce. Continue reading →

The Perry Indictment: Not So Farfetched

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Texas Governor Rick Perry was indicted August 15 for engaging in what most Americans think of as politics as usual — or at least usual as practiced in Texas.  Perry was charged with abuse of office and coercing a public servant because he threatened to veto funding for an anticorruption unit attached to the Travis County District Attorney’s office unless DA Rosemary Lehmberg resigned.  Lehmberg, a Democrat, had been convicted of drunk driving and a video of her inebriated while in police custody had gone viral.  As Perry explained in vetoing the legislation after she refused to step down, he could not “in good conscience support continued State funding for an office . . . at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.”

While Democrats saw a darker motive in Perry’s threat, the chance to replace a Democrat who had been a thorn in Republicans side, few think his threat was illegal.  The Washington Post and New York Times editorial pages, neither enthusiastic backers of Perry’s firebrand Texas conservatism, both sharply questioned the indictment as did President Obama’s former top political adviser David Axelrod.  Veto threats are part of the everyday give-and-take between governors and state legislatures and between Presidents and the Congress.  Indeed, as recently as the 2013 confrontation over the shutdown of the federal government President Obama used the threat of a veto to get his way with the  Republican Congress.  How can that be illegal?   And if it wasn’t, why is Perry’s?

But before politicians write the Perry indictment off as farfetched, they best consult a lawyer.  Continue reading →

The Prosecution of Bribery: What Lawmakers Can Learn from Bavaria and Virginia

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Prosecutors thinking about whether to pursue a case against the recipient or payer of a bribe will surely think twice given events of the past weeks in the German state of Bavaria and the American state of Virginia.  In Bavaria the bribery prosecution against Formula One impresario Bernie Ecclestone collapsed mid-trial after the judge expressed strong doubts the case could be proved.  In Virginia prosecutors are slogging through the third of what is expected to be a six week trial as they try to show that Robert McDonnell, the state’s former governor, was paid to shill for a local business.  To prosecutors, the two cases remind that bribery is no easy crime to prove and that losing carries risks both personal and professional.  To lawmakers, the two cases should prompt a scrub of their nation’s bribery laws to see whether the bar they have set for proving a case is too high. Continue reading →

Don’t Give Back that Glove General Holder!

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Although few readers likely can find Equatorial Guinea on a map (hint: it’s that small square wedged between Cameroon and Gabon), many have heard its name in connection with the annual contest to identify the “most corrupt country.” For despite the always stiff competition from the likes of such states as Iran, Afghanistan, Sudan, Somalia, year-in-year-out Equatorial Guinea always manages to place at or near the top.  Observers attribute its perennially strong showing to a combination of two factors: 1) the country’s vast mineral wealth and 2) its rulers’ skill and ruthlessness in keeping it all for themselves. Continue reading →

Some Successful Initiatives by Civil Society to Prompt Corruption-Related Litigation

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In an earlier post I promoted a conference on corruption the Oxford Institute for Ethics, Law and Armed Conflict and the Open Society Foundations’ Justice Initiative had planned for June 2014 to discuss ways civil society could stimulate corruption-related litigation, be it criminal investigations or private actions for damages.  The conference was held June 28 with some 100 individuals from civil society, academia, law firms, and governments attending, and one of the highlights was presentations describing successful efforts by civil society groups in India, Nigeria, France, and Switzerland. Continue reading →

Quid Pro Quo: The Deus Ex Machina of Bribery Law?

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In a recent post Phil spotted an apparent anomaly in U.S. anticorruption laws: these laws make it is easier to get away with bribing an American politician than a non-American one.  As Phil explains, the difference arises from what seems to be the higher burden the prosecution must meet to prove that what is ostensibly a campaign contribution is in reality a bribe when the recipient is an American politician rather than a non-U.S. officeholder.

When the payment is to an American politician, the prosecution must, in the words of McCutcheon v. FEC, the Supreme Court’s most recent decision interpreting the Federal Election Campaign Act, prove “quid pro quo corruption,” which the Court defines as “a direct exchange of an official act for money.” By contrast, when the challenged payment is to a non-American office holder, the Foreign Corrupt Practices Act merely requires that the prosecution establish that the money was “corruptly” given for the purpose of “influencing any act or decision [taken in an official capacity].” Phil takes the absence of an express requirement of a quid pro quo in the FCPA as easing the prosecutor’s burden. But is Phil’s reading of the two laws correct? Continue reading →

Fixing the Mutual Legal Assistance Regime: Some Thoughts on Reform

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Last week I reported that the United States was often slow to respond to requests from other nations for evidence needed to prosecute corruption cases in their courts and that as a result some cases have had to be dismissed.  I also noted that, as of spring 2013, 4500 requests awaited processing, a backlog the Justice Department blames on a shortage of personnel.  In a comment on the post. Matthew asks two questions:  1) are there other ways besides adding staff that countries can reduce the delay in responding to requests for legal assistance and 2) is the U.S. the only country with a large backlog of requests.

Continue reading →

America’s Broken System for Helping Friendly Nations Prosecute Corruption Cases

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Gaborone, Botswana, is not the place one would expect to find a group advocating that the United States government get tough on crime, but then the advocates were not the typical Washington cabal of interest group representatives, activists, lawmakers, and media.  Rather, they were investigators and prosecutors from 14 African anticorruption agencies attending a workshop on corruption investigations sponsored by the Association of Anticorruption Agencies in Commonwealth Africa.  Why the advocacy?  What is the complaint with the U.S.?

Especially in the smaller African countries, any significant corruption case almost inevitably requires a cross-border investigation.  The alleged corrupter is in one jurisdiction, the alleged corruptee in a second, and what may be the proceeds of the crime in a third.  Although the U.S. would seem to be a long way from Lesotho, Namibia, Malawi, and other Sub-Saharan nations, workshop participants explained that not only are corrupters sometimes located in the U.S., but many African elites favor parking assets acquired corruptly in American banks, real estate, and financial assets.  Hence the anticorruption authorities of Sub-Saharan states frequently seek help from the U.S. to locate stolen assets, obtain business records, and depose witnesses.  In a session devoted to the mechanics of investigating cross-border cases, however, not one of the 30 participants identified a single instance where the U.S. had timely responded to their request to provide evidence they needed to help convict corrupt public officials or freeze or seize his or her assets.  Indeed, several said they had been forced to dismiss charges or allow freezing orders to lapse because the U.S. had failed to reply to their requests. Continue reading →