Category Archives: Commentary

Two Questions for the Open Contracting Partnership

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One of today’s more promising global anticorruption movements is The Open Contracting Partnership.  A venture that brings together organizations as different as the World Bank, the Philippines Government Procurement Policy Board, and Oxfam, its goal is to open government contracting to greater transparency and public participation.  As many studies show (click here, here, and here for recent examples), corruption infects all stages of the procurement process  — from skewing the specifications to favor a single firm to rigging the tendering process to rampant cheating in contract performance.  And as many of these same studies argue, less secrecy and more public involvement in the process is one way to curb it.

The Partnership has taken important steps towards realizing these objectives since its launch in October 2012.  It has developed global principles governing contract openness, created a standard format for reporting data on government contracts, collated information on open contracting in the award of natural resource concessions and land, assembled a quality staff and advisory board, and a fostered an enthusiastic global community of practice.

All this is not only welcome but laudable, and the organizers and supporters of the Partnership are to be congratulated for the initiative.  Now that the Partnership is firmly established, however, it is time to address two questions it has so far avoided. Continue reading →

Fighting Officer Involved Domestic Violence: Preventing Police Corruption from Hindering Investigation

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Corruption within police forces is a well-known foe that rears its head in a dozen different ways. Police corruption is often discussed in terms of monetary abuses, from kickbacks to shakedowns to opportunistic theft. Yet these crimes are far from the only form of police misconduct. For example,there have been numerous incidents in which police officers demand sex from prostitutes in exchange for allowing them to continue working–a form of corruption that falls under the general category of “sextortion,” which I wrote about in an earlier post. Less discussed is the corruption that makes it hard to fight sky-high rates of officer involved domestic violence (OIDV).

OIDV is a serious problem, in the United States and (presumably) elsewhere. In the U.S., two studies, one with 728 police officers and one with 425 officers, found that 40% of officers self-reported that in the previous six months they had “lost control and behaved violently towards their spouse.” The comparable rate in the general population is roughly one-fourth as high. The reasons for these high OIDV rates are complex and not fully understood. Some advocates believe that aspects of police training give officers who are violent at home the knowledge and capability to target and intensify their abuse. Others make the case that the amount of violence police are exposed to as part of their job spills over to the home. But irrespective of the causes of OIDV, corruption within the police department makes fighting OIDV significantly more difficult. Continue reading →

Scorpions with Wax Wings: How Anticorruption Agencies Can Avoid Flying Too Close to the Sun

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Public rhetoric about the battle against corruption often centers on the need for “zero tolerance”–the need for institutions, including perhaps most importantly law enforcement agencies–to aggressively root out graft through vigorous prosecution, no matter the circumstances.  What more often goes unsaid, though, is that actually following such strategies may end up being counterproductive.  The aggressive pursuit of corruption-busting litigation can lead to political elites pulling the rug out from underneath the anticorruption agency (ACA).  In South Africa, for example, the National Assembly dissolved the Scorpions, a special investigative unit, once it began going after high-ranking government officials.

As a result of the danger of being undercut, ACAs face an inherent tension in their work: they want to fight corruption to the greatest extent possible, but fighting it too aggressively can lead to the agency’s ability to perform its duties being completely undercut.  How far, then, can an ACA push? Though the unique context of any given ACA means no universal lessons exist, there are some general guidelines ACAs should consider when shaping their anticorruption efforts, if they want to avoid a backlash that ultimately consolidates the power of the corrupt:

Continue reading →

Troubling Signs of a Resurgent Anti-FCPA Lobbying Campaign

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One of the biggest stories in anticorruption enforcement over the last two decades is the surge in enforcement of the U.S. Foreign Corrupt Practices Act. This development has not only been greeted with enthusiasm by anticorruption advocates, but has had bipartisan political support, at least within the executive branch (the enforcement surge began under President George W. Bush, and has continued through President Obama’s administration). But not everyone has been happy about aggressive FCPA enforcement. About five years ago, the U.S. Chamber of Commerce and its allies launched a coordinated lobbying assault on the statute and on the U.S. government’s enforcement practices. The Chamber not only published a report (“Restoring Balance”) advocating significant limitations on the FCPA’s scope, but it convinced (and/or paid) a number of other “experts” to take up the cause, writing op-eds, testifying before Congress, and lobbying in other forums. (The Chamber seemed to deliberately prefer to hire ex-DOJ officials to make its case, most notably former Attorney General Michael Mukasey.) These editorials and presentations, perhaps not surprisingly, tended to recite the same Chamber of Commerce talking points.

But this concerted, coordinated lobbying effort basically went nowhere. Why not? Well, there were probably a number of reasons, including the vigorous resistance of the Department of Justice, the intrinsic weakness of many of the Chamber’s arguments, and the difficulty of getting anything through the U.S. Congress. But another major factor was the Walmart corruption story, which the New York Times broke in 2012 (see here and here.) The allegations involving Walmart’s conduct in Mexico were so shocking that any appetite there might have been in Congress for “reforming” (that is, weakening) the FCPA quickly dissipated. Although FCPA critics continued to advocate changes to the statute and current enforcement practices, the concerted, orchestrated push for FCPA “reform” faded away.

But now there are signs that it’s back. Maybe I’m over-reading the limited evidence, but I think a new campaign for FCPA reform may well be underway—and anticorruption advocates should may attention and be ready to fight back. Continue reading →

Shedding Sunlight on Procurement

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In a previous post, I extolled the virtues of Big Data in the fight against corruption, including in the important realm of government procurement. From the UK to Georgia to the Czech Republic, government procurement agencies have been collaborating with civil society groups to analyze their data, uncovering inefficiencies that range from the mundane to the outright corrupt. Governments are not alone: international development agencies like the World Bank are embarking on similar projects.

But there’s a problem. Big Data needs lots of data to work, entailing a high degree of government transparency and massive disclosures — sometimes called Open Government — that are sometimes at odds with the goals of anticorruption. In the case of government procurement, public data watchers need to know which firms bid for the project, at what price, and who won on what terms before they can play a useful watchdog role. However, as Rick has pointed out on this blog, public disclosure rules in procurement has the perverse effect of enabling private collusion. Cartels of contractors can agree amongst themselves to inflate their prices and select which among them will receive the contract, and are able to enforce their shady agreement because, of course, all offers are public.

Rick’s concerns seem to be directly implicated by the newly-proposed Open Contracting Data Standard, a push to “enhance and promote disclosure and participation in public contracting.” The project essentially asks every procurement agency in the world to upload their contracting documents onto the internet in a standardized manner that would encourage public oversight, including through the use of Big Data tools. So, is the push for open government procurement data doomed to backfire, creating collusion where perhaps it did not even exist before? Fortunately not. The increased risk of collusion is completely outweighed by the potential for the use of Big Data and other civil society monitoring techniques. Continue reading →

The ATS, the FCPA, and Being Thankful for Criminal & Civil Liability

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In a recent post, Matthew teased out a counterintuitive worry that has bothered FCPA supporters in recent years — the fear that increased enforcement against individuals might actually be bad for the FCPA on the whole. Matthew’s argument is straightforward and intuitive: DOJ has long been able to press expansive interpretations of some of the statute’s more ambiguous provisions because corporations have been unwilling to litigate FCPA liability. But as the Esquenazi, Shot Show, and Aquilar cases show, individual defendants are far more likely to go to trial to combat FCPA charges. So, as DOJ prosecutes more individuals, we’re likely to see more extended legal challenges to the FCPA and, perhaps, more sympathetic defendants. Maybe the decisions will continue, like Esquenazi, to go DOJ’s way. The fear, though, is that they may not, and that narrowing constructions of the statute could undercut its deterrent force.

Matthew’s post drew my thoughts to another statute — specifically, the Alien Tort Statute (“ATS”) — which has graced our pages a couple times courtesy of Maryum (here and here). Over the past few decades, the ATS — a two-centuries-old statute that permits aliens to sue in U.S. courts for torts committed in violation of the law of nations — has followed a path that is, in a way, the inverse of the FCPA: at first it was used primarily to sue individual foreign officials who often fled U.S. jurisdiction rather than litigate; only after a few decades was the ATS commonly used to target corporations, and these targets began to push back in court. Unfortunately for ATS plaintiffs, that inverse story arc hit its climax in the Supreme Court’s 2013 decision in Kiobel, a case that did to the ATS what Matthew fears might happen to the FCPA.

Fret not, though, supporters of the FCPA! Yes, the rise and fall of the ATS might teach us something about the fate of the FCPA — but I think the lesson is to be thankful, not fearful. Here’s why: Continue reading →

The U.S. Indictments of FIFA’s Corrupt Officials Are Legally, Morally, and Politically Justified

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For avid soccer fans and students of anticorruption, last week’s announcement that top FIFA officials had been indicted by U.S. authorities was not all that shocking. Commentators on this blog have been documenting FIFA’s collision course with the criminal justice system for some time now (see here, here, and here). But as American law comes to bear on the world’s most powerful sporting organization, it has caught the attention of millions. The reaction of many has been a wry “How fitting? The Americans going after soccer, and relying on tenuous legal reasoning to boot.”

Harvard Law School Professor Noah Feldman articulated the critique in a recent Bloomberg article, entitled “The U.S. is Treating FIFA Like the Mafia.” Feldman’s overarching point is that, while FIFA may be a problematic organization, the U.S. enforcement action reflects dubious politics more than genuine legal interest. Professor Feldman raises three main objections to the DOJ’s indictments–focused, respectively, on the law, policy, and politics of the indictments. First, with respect to the law, he casts doubt on the legal basis for prosecuting FIFA officials under the U.S. Racketeering Influenced and Corrupt Organizations Act (RICO), given that the alleged offenses occurred on foreign soil, and suggests more generally that the entire case is absurd because RICO is designed to go after organized criminal enterprises, not sporting organizations like FIFA (or groups within FIFA). Second, Professor Feldman contends that, as a matter of policy, even if the U.S. has a sound legal basis for prosecution, exercising its jurisdiction in this case is inappropriate due to the lack of a strong U.S. interest in misconduct within FIFA, given that the U.S. cares much less about soccer than most other countries do. Third, and related to the preceding point, Professor Feldman suggests that the political fallout from the indictments is likely to be damaging to the U.S. He argues that the underlying premise of the RICO action–that FIFA (or a group within FIFA) is a criminal enterprise–is “incendiary,” and will be viewed as an imperialistic power play by the United States against soccer’s true fan-base (a.k.a, the rest of the world).

In my view, Professor Feldman is wrong on the law, shortsighted about the scope of U.S. interests in the alleged criminal conduct, and overly pessimistic about the political repercussions of the U.S. action. If the facts alleged can be proven, the U.S. is legally, morally, and politically justified in treating the indicted FIFA officials as RICO offenders.

Continue reading →

Shoddy Craftsmanship: How Not to Design an Independent Prosecutor

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There is a reason that New York Governor Andrew Cuomo has graced the pages of the Global Anticorruption Blog so many times in recent months (see here, here, here, and here): life just isn’t easy for a candidate who campaigns on promises to clean up politics only to drown in allegations once in office. Today I offer another installment in our (entirely unofficial) series on the trials and tribulations of New York’s Governor: “Designed to Fail: Andrew Cuomo’s Interactive Guide to Building an Independent Anticorruption Prosecutor. (Parts Sold Separately).”

Continue reading →

The Problem With Framing Freedom From Corruption as a Human Right

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It is widely recognized that corruption and human rights violations are linked. Corruption, after all, facilitates the violation of human rights–not only civil and political rights, but social and economic rights as well. (This blog has previously discussed those linkages here and here.) Some scholars and activists have gone further, arguing that freedom from official corruption is itself a human right. A useful recent example is a Brookings Paper by attorney Matthew Murray and Professor (and occasional GAB guest contributor) Andrew Spalding, but they are not alone. Advocates of this position claim that reframing corruption as a human rights violation is needed to instill a greater sense of obligation among national governments and to promote more robust enforcement.

I am skeptical. I do not deny the deep connection between human rights and anticorruption, particularly in developing countries, where access to basic human rights such as food, shelter, water, and education, is often hampered by rampant corruption. But I do not think that trying to establish “freedom from official corruption” as a human right per se (as opposed to recognizing the ways in which corruption contributes to human rights violations and other egregious social harms) is a productive use of time and energy.

Let me first summarize what I take to be the core arguments in favor of establishing freedom from corruption as a human right, and then explain why I respectfully disagree. Continue reading →

Raising the Ethics Bar: Namibia’s President Voluntarily Discloses His Income and Assets

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Namibia is not the first country that comes to mind when looking for international trend setters.  Roughly the size of Turkey but with a population of only 2.1 million, it has been an independent state for just 25 years.  Yet thanks to a recent initiative by its newly installed President, Hage Geingob, the country could become a leader in the worldwide struggle to combat corruption.  On May 21 the President voluntarily disclosed his income and assets and those of his spouse.  The disclosure is an effort to prod Namibia’s public servants to follow his example, but if President Geingob’s precedent setting move prompts other heads of state, in Africa and elsewhere, to voluntarily disclose details of their personal finances, the country may long be remembered for its contribution to the international movement to curb corruption.

As important as the disclosure are the actions the President took in connection with it, actions other heads of state seeking to emulate him should take as well.  Continue reading →