How Corrupt Institutions Corrupt Decent People

One of the great challenges in combating corruption—particularly systemic corruption that permeates an entire organization or institution—is figuring out how and why ordinary, well-meaning people would get caught up in activities that are blatantly unethical and usually unlawful. Yes, there are some greedy sociopaths out there, but most people at least like to think of themselves as good people. And yes, sometimes the sociopaths wield so much power that they can coerce collaboration or obedience—but in most cases, systemic corruption occurs only because a large number of people who think of themselves as basically decent end up doing (or at least tolerating and implicitly enabling) grotesquely unethical conduct.

We’ve had a few posts on this topic before (see, for example, here and here), and there’s a substantial and ever-growing body of academic literature, in fields like psychology and organizational sociology, which investigates this question. I’m still working through that literature and perhaps in a future post I’ll have something to say about the research findings. But today, I just wanted to share some insights on the question that originated in commentaries on a different topic: posts by Professor David Luban and by my colleague Professor Jack Goldsmith on the question of whether people of decency and integrity should be willing to serve in the Trump Administration. (Professor Luban’s published immediately after the election, Professor Goldsmith’s published in the wake of Trump’s abrupt firing of FBI Director James Comey last May.) Professors Luban’s and Goldsmith’s pieces are not about corruption, but rather about broader issues related to the challenges of serving a President who might push a policy agenda that many prospective appointees, though politically conservative, find abhorrent. Nonetheless, in reading these two pieces, I was struck by how much their analysis could apply, with only slight modifications, to how well-meaning individuals who join a corrupt organization (whether in the public or private sector) can end up compromising their integrity.

Below I’ll simply quote the relevant passages, with only minor edits to make their observations applicable to corruption (in a public or private organization), rather than creeping authoritarianism or a radical policy agenda: Continue reading

What to Do About Corrupt Arbitral Tribunals?

Discussions of corruption in the context of international arbitration typically focus on how arbitral tribunals handle corruption allegations in the cases before them. But there is a wholly separate issue that is often glossed over or ignored: corruption in the arbitral proceedings themselves. And I’m not just talking about the concern—stressed by numerous prominent figures in the arbitration community—about potential conflicts of interest in the system for constructing the tribunals. That concern is a real and serious one, but there is also a more direct and crude problem: parties (or their lawyers) bribing, or making backdoor deals with, the arbitrators to secure a favorable outcome. Last November, Stephen Jagusch QC discussed the routine nature of certain forms of corruption in the arbitration process. He highlighted this claim by repeating a boast he had heard from a presiding arbitrator that year: the arbitrator was “[able] to deliver a good result providing the party appointing him was prepared to share the result with him.” A similar story of corruption and bribery occurred last year in Italy in an arbitral proceeding between AmTrust and Somma. The saga culminated in AmTrust using in U.S. federal court to block the arbitral award, claiming that Somma had offered on the arbitrators 10% of the final award if the one of the arbitrators found in Somma’s favor. Although the case was ultimately settled, the questions about impropriety in the arbitral process remain.

There are two avenues for handling corruption in the arbitral process, but unfortunately neither provides an adequate guard against potentially corrupt activity conducted by arbitrators: Continue reading

Stealing a City: Lessons from Bell, California

In 2010, a corruption scandal rocked the city of Bell, California, as eight top city officials were arrested for what the Los Angeles Country District Attorney called “corruption on steroids.” The officials were charged with misappropriating funds from city government to the tune of $5.5 million, and garnering salaries as high $800,000, more than quadruple the California governor’s salary. In a series of trials that stretched on for more than three years, the mayor ultimately pled no contest to 69 felonies, and the trials of the various city officials have been riddled with allegations of voter fraud, extortion of local businesses, taking of illegal loans from the city, and manipulation of the pension system. Bell officials even used (and likely tampered with) a referendum to change the city’s legal structure to a chartered city which allowed them to raise their own salaries.

The United States generally experiences very low levels of corruption convictions, around 1,000 per year across the nation. One might expect that some level of state, federal, or citizen oversight would have prevented the Bell incident. Yet this massive scandal was only uncovered due to quality investigative journalism by the Los Angeles Times, and only after five full years of consistent wrongdoing by city officials. How did this happen, and how can similar misconduct be prevented in the future?

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The Trade-Off Between Inducing Corporate Self-Disclosure and Full Cooperation

In discussions of appropriate sanctions for corporations that engage in bribery, much of the conversation focuses on the appropriate penalty reduction for firms that self-disclose violations, cooperate with authorities, or both. Self-disclosure and cooperation are often lumped together, but they’re not the same: Plenty of targets of bribery investigations, for example, did not voluntarily disclose the potential violation, but cooperated with the authorities once the investigation was underway.

This gives rise to a problem that is both serious and seemingly obvious, but that somewhat surprisingly is hardly ever discussed.

The problem goes like this: Enforcement authorities want to encourage self-disclosure, and they want to encourage full cooperation with the investigation; they would like to do so (1) by reducing the sanction for firms that voluntarily disclose relative to those that don’t, and (2) by reducing the sanction for firms that fully cooperate relative to those that don’t. But if the minimum and maximum penalties are fixed (say, by statute or department policy or other considerations), and the penalty reductions necessary to induce self-disclosure and full cooperation, respectively, are large enough (cumulatively greater than the difference between the maximum and minimum feasible sanction), then adjusting sanctions to encourage self-disclosure may discourage full cooperation, and vice versa.

It’s easiest to see this with a very simple numerical example: Continue reading

Does the First Amendment Protect Payment for Access?

 As many readers of this blog know, U.S. law on whether (or when) campaign donations can be proscribed by criminal anticorruption statutes is quite complicated, and to some degree unsettled. On the one hand, the Supreme Court has held that campaign contributions are constitutionally protected “speech” under the First Amendment of the U.S. Constitution. On the other hand, U.S. criminal law can and does prohibit campaign donations that are the “quid” in a classic quid pro quo bribery transaction. In other words, it would unconstitutional for the U.S. to prohibit campaign donations to politicians even if such a prohibition is motivated by the generalized worry that politicians might show special solicitude to the interests of their big donors. But it is perfectly constitutional for Congress to prohibit quid pro quo transactions in which a private interest offers a campaign donation as the “quid” in exchange for some “quo.”

It remains an open question, however, what can qualify as the “quo.” Certainly passing legislation, directing federal funding, and securing special regulatory benefits and exceptions would suffice. But what about mere access — an understanding between the donor and elected official that a campaign contribution will get the donor special access to the official? Two recent Supreme Court opinions — Citizens United v. FEC and McCutcheon v. FEC — contain language suggesting that it might be unconstitutional for U.S. law to prohibit an explicit quid pro quo agreement in which a politician offers access in exchange for campaign contributions. According to Citizens United, “[i]ngratiation and access . . . are not corruption,” while McCutcheon cautioned that “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies or the political access such support may afford” (emphasis added).

Despite this suggestive language, the Supreme Court has not yet had to confront head-on the question of whether the First Amendment protects quid pro quo payment-for-access. The closest it came was last year in United States v. McDonnell (discussed on the blog here, here, and here). In that case, Governor McDonnell helped to arrange meetings between businessman Jonnie Williams and government officials, and accepted personal gifts from Mr. Williams in exchange. By a vote of 7-0, the McDonnell Court reversed the governor’s conviction and construed the federal bribery statute at issue not to cover the governor’s conduct.

But this doesn’t resolve the constitutional question. McDonnell turned on the construction of the existing federal anti-bribery statute, which requires that the “quo” be an “official act,” which the Court construed narrowly as excluding provision of mere access. Moreover, McDonnell was not a First Amendment case, as the alleged bribes were not campaign contributions. Nonetheless, the Court did discuss the concept of corruption in a manner reminiscent of its opinions in Citizens United and McCutcheon. According to McDonnell: “[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. . . . The Government’s position [that McDonnell violated the law] could cast a pall of potential prosecution over these relationships if [a donor] had given a campaign contribution in the past . . . . Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” Furthermore, McCutcheon — which was a First Amendment case — defined the sort of corruption that could justify restrictions on campaign donations as “a direct exchange of an official act for money” (emphasis added), which might imply that, at least in the campaign donation context, McDonnell’s reading of the anti-bribery statute is constitutionally required.

But is that right? Separate from the question of whether Congress should criminalize payment-for-access, and from the question of whether Congress has in fact done so in the existing federal anti-bribery statutes, is the question of whether Congress could criminally proscribe payment-for-access if it wanted to. In other words, is payment-for-access constitutionally protected? Though some of the Supreme Court’s recent language has suggested such a conclusion, I believe that proposition is wrong, for three reasons:

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Telling Corruption’s Story, or Why is Corruption So Boring? (Part 2)

In my last post, I identified challenges inherent in creating campaigns that move laypeople to action against corruption, and I proposed solutions to these challenges. In this follow-up post, I will assess how two very different campaigns score on the factors previously proposed.

I’ll start with a less successful campaign: Transparency International’s call to “Unmask the Corrupt.” In late 2015, TI announced its Unmask the Corrupt campaign, which aimed, among other things, to “highlight the most symbolic cases of grand corruption.” The first phase of the campaign encouraged individuals to submit cases of grand corruption, from which TI would select semi-finalists to be voted on in the second phase. In the third phase TI would “look at the cases that have received the most votes and . . . openly discuss with all how the corrupt should be punished.” From 383 submissions, TI selected 15 semi-finalists, which included the “Myanmar jade trade,” “Lebanon’s political system,” and the “U.S. State of Delaware.”

In early 2016, TI announced that it had imposed “social sanctions” on the finalists (including Lebanon’s political system and Delaware). The toothiest of these sanctions were TI press releases which led to some negative coverage of the finalists in important media outlets. TI also launched #StopKadyrov, an Instagram-centered campaign against Chechen leader Akhmad Kadyrov, who had received all of 194 votes in the second phase of Unmask the Corrupt. An Instagram search for #StopKadyrov reveals that the hashtag has been used in a total of fifteen posts. When assessed against the factors I sketched in my previous post regarding the criteria for effective narratives—in particular, the importance of placing the audience in the role of potential heroes of the narrative, depicting a compelling (and repellant) antagonist against whom to struggle—these mediocre results are not surprising.

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The Swahili Word for Transparency, and the Fallacies of Linguistic Determinism

I recently attended a workshop where participants were debating, among other things, why reform initiatives to promote government transparency and other anticorruption measures in places like sub-Saharan Africa had such a (seemingly) poor track record. In the course of the conversation, a well-known tenured professor declared – as evidence for the proposition that cultural incompatibility explains much of this apparent failure – that “there isn’t even a Swahili word for ‘transparency.’”

I was flummoxed and expressed some confused skepticism, but this professor (who, by the way, is a white Englishman whose CV does not indicate that he speaks Swahili or has ever done any research in a Swahili-speaking country) insisted that this was not only true, but was strong evidence that government transparency was an alien concept in Swahili-speaking societies.

It wasn’t a terribly important part of the discussion — more of an aside — and the conversation swiftly moved on. But the assertion that this linguistic lacuna demonstrates a significant cultural gap–one with important policy implications–has been bugging me ever since, not least because it reminded me of Ronald Reagan’s absurd claim that “in the Russian language there isn’t even a word for freedom.” (There is, by the way: svoboda.) So just in case this specific claim about Swahili, or linguistic arguments like this more generally, are an emerging meme in the anticorruption commentariat, I thought it would be worth a quick post to try to nip this nonsense in the bud.

So, what’s wrong with the claim that there’s no Swahili word for transparency? Three things: Continue reading