Category Archives: Commentary

Is Sunlight Really a Good Disinfectant? The Equivocal Evidence on Freedom of Information Laws and Corruption

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Government transparency is widely considered to be one of the most important means for combating public corruption, a sentiment nicely captured by U.S. Supreme Court Justice Louis Brandeis’s famous observation (in a somewhat different context) that “sunlight is said to be the best of disinfectants.” For this reason, many anticorruption activists lobby for the adoption of strong freedom of information (FOI) laws—laws that not only obligate the government to regularly publish certain types of information, but also to respond promptly to citizen requests for a wide range of government records and documents. The thinking is that government corruption is easier to detect when citizens, civil society organizations, and the media can scrutinize information about government operations.

I count myself firmly in the camp of those who tend to believe that FOI laws are useful anticorruption tools, especially given the strong evidence that citizen and media access to government information can indeed help reduce corruption and hold officials accountable (see, for example, here, here, and here). And because of this, I would expect the evidence to indicate that when a country (or sub-national jurisdiction) adopts a stronger FOI law, corruption should decrease afterwards. But I’ve been looking into the research on this recently, and most of the results don’t fit well with my expectations. Long story short, the (admittedly limited) quantitative empirical evidence does not find a strong correlation between the adoption of a strong FOI law and a subsequent decrease in corruption; if anything, the evidence actually seems to suggest that the adoption of a strong FOI law may be followed by an increase in (perceived or detected) corruption.

Does this mean that FOI laws are ineffective or even counterproductive? I don’t think so, for reasons I’ll lay out in a moment. But I do think it’s worthwhile—especially for those of us who are inclined to support broad FOI laws—to consider the evidence carefully and reflect a bit on what it might mean. Continue reading →

A Modest Proposal for Improving Supervision in World Bank Infrastructure Projects

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Infrastructure funding is a massive component of international development—in 2014, the World Bank alone allocated $24 billion to infrastructure, amounting to roughly 40% of its total lending. Yet as has been widely documented (see here, here and here), infrastructure construction and development projects are particularly susceptible to corruption. Compared with other areas of development lending, such as education and public administration, large construction projects require more specialized contractors and consultants, increasing the points of access for corruption or collusion schemes. Furthermore, labor-intensive industries like construction are often captured by organized crime, which increases their susceptibility to corruption.

Corruption schemes in infrastructure projects often take the following form: a contractor pays government officials a bribe to secure a contract, and in an effort to preserve profits, the bribe-paying contractor compensates for the expense of the bribe by failing to build the project to specification. The supervision consultant—the person or entity responsible for evaluating whether the project has in fact been built to specifications—therefore plays a critical role in stopping or enabling infrastructure construction.

However, when the World Bank funds an infrastructure project, whether through a grant or a loan, the recipient country’s government is responsible for hiring the project’s contractors and consultants—including supervision consultants—subject only to arm’s length World Bank supervision. While this process is also subject to the World Bank’s procurement guidelines, these have been criticized as ineffective in addressing corruption (as previously discussed on this blog). Under the current system, if a project has not been adequately completed because of a corruption scheme, government officials have every incentive to retain inspectors willing to mask the abuse of funds. And if the Bank does discover fraud or corruption after the fact, its remedies are limited: the Bank can suspend or bar contractors from future contracts, and can refer matters to national prosecuting authorities, but successful convictions amount to fewer than 10% of sanctioned parties.

The World Bank must therefore prioritize prevention of these situations. Given the existing system, one measure that the World Bank could take to help prevent corruption in infrastructure projects, is to fund independent supervision consultants. Continue reading →

The Indian Judiciary on Trial: Tackling Corruption in India’s Courts

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Corruption in Indian judiciary is considered pervasive: over 45% of Indians believe the judiciary is corrupt, a view shared by external assessments. Not only is corruption rampant in the lower courts, some have alleged that this corruption reaches the highest levels. In 2010, a former Law Minister declared that eight of sixteen former Chief Justices of India (CJI) were corrupt, and in 2014 a former Supreme Court judge alleged that three former CJIs made “improper compromises” to let a corrupt High Court judge continue in office. Sadly, the Indian judiciary has shown a predilection to treat every call from the executive or the legislature for greater judicial accountability as an attack on the judiciary’s independence. That concern is not altogether unreasonable given the terse history of power battles among the three branches, but it increasingly rings hollow, given the rising reports of corruption in judiciary’s ranks (see here, here and here).

Indian judges may be nowhere near as corrupt as its politicians; but Indian judiciary, like its counterparts elsewhere, relies on its reputation for fairness, impartiality, and incorruptibility. The courts can scarcely afford any loss of public faith. Hence, it must have been a wake-up call for the judiciary to face wavering public support as it battled the executive and legislature during 2014-15 on the National Judicial Accountability Commission Act (NJAC), which sought to expand executive’s say in judicial appointments and make them more transparent. When the Supreme Court finally struck down NJAC in October 2015, citing the need for absolute judicial independence, the judgment was met with both veiled skepticism and open criticism. Although the current appointment system (in which judges appoint their successors) has been relatively free of corruption allegations, the NJAC debate brought forth long simmering concerns of judicial corruption and worries that even judicial appointment was not above suspicion.

How has this come to pass? Why is public confidence in the integrity of the Indian judiciary eroding? Four main issues need addressing in the context of India’s judicial corruption: Continue reading →

“First thing we do, let’s kill 85 percent of the lawyers.”

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Readers of this blog know its commitment to publishing the most reliable, up-to-the-minute data on corruption, and it is in this spirit I urge a revision to the famous line Shakespeare has Dick the Butcher speak in Henry VI, part 2: “First thing we do, let’s kill all the lawyers.”  New research shows not all lawyers are, as Shakespeare and his audience supposed, venal, greedy, and unethical.  When lawyers in 13 New York law firms were approached to help an African official squirrel away funds that screamed “we are the proceeds of corruption,” two passed up the chance to earn the fat fee dangled before them, one on the spot and one after thinking things through.  Advanced econometric analysis thus reveals that only 85 percent (11/13) of those queried were willing to consider assisting an obviously corrupt African politician.  So if the same percentage of Elizabethan-era lawyers were as upright as today’s New York attorneys, Dick would not have needed to off all lawyers to reach the utopia envisioned in Act IV, Scene II. Just 85 percent.    Continue reading →

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 →

Doping and Corruption in Sports: Why We Should Care, and What We Should Do

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In December of 2014, a German TV channel, Das Erste, released a documentary alleging that a “majority” of Russian track and field athletes—up to 99% as claimed by one whistleblower—had been illegally doping, and implicated Russian Athletics Federation (RAF) officials with covering up the abuse. The alleged scheme was simple: in exchange for 5% of an athlete’s winnings, the Russian Anti-Doping Agency (RUSADA) would supply athletes and doctors with performance enhancing drugs (PEDs), and RUSADA and the RAF would protect athletes against positive tests through a combination of tip-offs, false identities, and clean urine.

In response to the allegations, Russian and international authorities were quick to express outrage and condemn any wrongdoing. The RAF threatened legal action against what it deemed “slanderous allegations,” while the International Association of Athletics Federations (IAAF) and the International Olympic Committee (IOC) promised to investigate. Last month, however, Lamine Diack, the president of the IAAF, was placed under criminal investigation by French authorities for allegedly taking 200,000 Euros in bribes to cover up positive Russian doping tests, despite having previously referred to allegations of systematic doping and corruption as “a joke.”

The full scope of the scandal was substantiated in an exhaustive report issued by the World Anti-Doping Agency (WADA) on November 9, 2015, which not only implicated high level officials at the RAF and IAAF, but also Russian government officials in the Ministry of Sport, and even the FSB, the modern-day successor to the KGB. While doping scandals may be most commonly thought of as a few bad apples cheating to win, the WADA report made it evident that this was a full-blown state-sponsored corruption scheme that profited public officials, and as such should merit the attention of the anticorruption community.

This scandal offers several takeaways for the anticorruption community:

Continue reading →

The Internal Revenue Service’s (Potential) Role in Combating Foreign Bribery

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The uptick in FCPA investigations in recent years is well-known. The two agencies responsible for FCPA enforcement—the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC)—now have special units focused on FCPA cases. Both have been aggressively pursuing cases against corporations and (increasingly) individuals. But there is a third U.S. agency that can and should be more involved in the fight against transnational bribery: the Internal Revenue Service (IRS).

The IRS already has some role in FCPA cases, though the extent of that involvement is not entirely clear. Recently, its joint investigative role has been mentioned in a few high-profile matters. Notably, criminal FCPA charges against Vicente Eduardo Garcia (an SAP regional director who in August pled guilty to an FCPA violation involving bribery for Panamanian government contracts) were investigated cooperatively by the FBI and IRS, a fact that some commentators cautioned signaled a need for companies to increase FCPA compliance efforts through additional channels. IRS Criminal Investigation was also involved in the case against Hewlett-Packard Russia, which last year pled guilty to violating the FCPA, and even the (non-FCPA but bribery-related) investigation of FIFA started with the IRS. Beyond investigation, the IRS can bring separate tax charges related to incidents of bribery or other inappropriate payments. A 2014 settlement included a multi-million-dollar forfeiture to the IRS, apparently the first such forfeiture in an FCPA settlement, though the exact reason for the forfeiture was not revealed.

Several observers have speculated that the last decade’s increase in FCPA actions could lead to an increase in tax-related actions. Up until now it has been relatively rare for FCPA actions to include associated tax charges, but the 2014 settlement might be one indication that the relative scarcity of tax involvement could change. The IRS can further develop its responsibility in FCPA investigations with an expanded formal cooperative role, if indeed it does not have one already, in DOJ or SEC prosecutions. This would be a positive step, since there are two major advantages to FCPA investigations assisted, or tax charges brought, by the IRS:

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 →

Private Law Suits for Corruption:  Am I Missing Something?

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As explained in earlier posts (here and here), I am working with the Open Society Justice Initiative on a project to examine how civil society can prompt more corruption-related litigation  — either by stimulating criminal prosecutions or filing civil suits itself.

One area that remains a puzzle is why businesses are not filing more civil suits for damages caused by bribery.  At common law, if a merchant could show it lost a customer to a bribe-payer, it could sue the briber for tortuous interference with contractual relations and the bribe-taking employee for breach of fiduciary duty.  A merchant that discovered it had paid higher prices or bought goods of a lesser quality because the seller had bribed one of its employees likewise had an action for damages, against the employee for breach of fiduciary duty and for fraud against the bribe-payer.  The Civil Law Consequences of Corruption, a 2009 volume edited by Professor Olaf Myer, describes similar doctrines that corruption victims in countries governed by the civil law can invoke to recover damages.  Moreover, regardless of legal heritage, parties to the United Nations Convention Against Corruption are required by article 35 —

“to ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage in order to obtain compensation.”

Am I missing something?  Or is there only one country where businesses that are victims of corruption are heeding the invitation to sue for damages?  And if so, why is this case?  Why aren’t businesses in other nations besides this one seeking compensation for the losses bribe-paying has caused them? 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 →