Category Archives: Commentary

U.S. States Have Failed to Address Charter School Corruption. It’s Time for Federal Intervention.

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In the United States, charter schools are publicly-funded, tuition-free institutions that operate largely independent from the traditional public school system. Charter schools are established through a contract, or charter, between the school and an “authorizer,” which is the school district, state education agency, or other entity that a state has sanctioned to approve these charters. Once approved, charter schools do not have to follow the same regulations as traditional public schools but instead are required to operate under the terms and academic standards set by their authorizing contract.

Proponents tout charter schools’ autonomy and flexibility: free from burdensome education laws and local regulations, these schools can be innovative in their curricula and management, and can compete with one another and with traditional public schools in the education “market.” Parents will then have the opportunity to “vote with their feet,” and they—along with the public funding designated for their children—will flow into better schools, leaving the poorly performing charter schools to shut down.

Or so the argument goes. In reality, thanks to rampant corruption that has come to plague the charter school industry, this public funding often flows not into the best schools but rather into the pockets of dubious school officials and their affiliates. There have been numerous charter school corruption scandals: self-dealing real estate leases, exorbitant salaries for school executives, and kickbacks from inflated purchases of school equipment and supplies, to name a few.

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Antibribery Policy: A Checklist

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That a law against bribery is the keystone of any serious fight against corruption goes without saying. What isn’t said is that an antibribery law is only the keystone. That just as an arch consists of more than its center stone, a robust, effective antibribery policy takes more than a law criminalizing bribery.  Below is my checklist of what else is required. Reader comments solicited.

My list starts with a careful review of the antibribery law itself. For as the United Nations Office on Drugs and Crimes reported in 2017, many nations’ law have gaps that make it easy for bribe takers and payers to maneuver around it unscathed; others contain ambiguities that leave it to the courts to say what is and isn’t a bribe.

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The Financial Weapon: Expanding Magnitsky Sanctions to Attack Corruption

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Economic sanctions targeted at individual wrongdoers can be a potent weapon in the fight against global corruption. The United States’ 2016 Global Magnitsky Human Rights Accountability Act (GMA) authorizes the President to impose targeted sanctions on corrupt foreign officials and their associates. And the GMA has had successes in deterring corruption: As earlier posts on this blog have highlighted, the GMA has prompted countries to strengthen their anticorruption laws and has prompted businesses to cut ties with corrupt individuals. Yet despite these successes, Magnitsky sanctions remain a relatively underused anticorruption tool. The U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) has only sanctioned around 200 people as part of its Magnitsky programs, and most of these individuals have been sanctioned for human rights abuses rather than corruption per se.

GMA sanctions can and should be scaled up by an order of magnitude, with a greater focus on targeting corrupt actors. The U.S. should be imposing GMA sanctions on several thousand people, not just a couple hundred. As the Biden Administration has recognized, global corruption increasingly threatens national and international security. In light of this, the Administration should use the GMA to impose sanctions on not only the most egregious of kleptocrats but those who engage in more modest—but still significant—forms of corruption. Continue reading →

“Municipal Takeovers”: Failing to Address Corruption While Threatening Democratic Self-Government 

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The town of Mason is a small, majority-Black community in the State of Tennessee. For two decades, Mason’s municipal government has been afflicted with serious corruption and financial mismanagement, leading to the resignation a few years ago of almost all of Mason’s elected leadership following allegations of fraud and embezzlement. In the wake of these persistent problems, this past February the Tennessee State Comptroller, Jason Mumpower, sent a dramatic request to every property owner in Mason: vote to dissolve your town (in which case Mason would be absorbed into majority-White Tipton County, thus ending Mason’s 153 years of independent governance), or else the state government will exercise its legal authority to step in and take financial control of Mason’s town government—which would likely lead to drastic layoffs and cuts to municipal benefits. (Mumpower’s ultimatum may well have been influenced not only by Mason’s history of municipal corruption, but also by the fact that Ford Motors is set to open up a massive manufacturing plant nearby, which will bring in significant tax revenue that Mumpower claimed Mason’s town government can’t handle responsibly.)

The situation in Mason may seem extraordinary, but it is far from unique. Roughly twenty U.S. states have laws that permit the state government to take over municipal governments, although the specifics of the laws differ. (Municipal takeovers are often preceded, as in Mason, by presenting the municipality with the option to dissolve and be absorbed into the surrounding county.) Though municipal takeovers come in various forms, they generally entail the appointment of an “intervenor,” such as a state official, emergency manager, or financial control board. In some states, the intervenor’s powers are limited to financial oversight and technical assistance, but in other states (including Tennessee), the intervenor can take steps as radical as entirely dissolving a locality.

Municipal takeovers are, unsurprisingly, controversial. While pursuing a takeover is an extreme step, one can understand why some people might find it warranted, especially when corruption is so deeply embedded in a municipality that it seems inconceivable that the local government can clean itself up. But this view is misguided, at least in the U.S. context. (Municipal dissolution has been deployed and endorsed by some anticorruption advocates in other countries, such as Italy. While some of my arguments may apply in other contexts, this post focuses on the United States.) First, the costs of municipal takeovers are substantial and are often underestimated. Second, the purported benefits of municipal takeovers—at least with respect to addressing the underlying corruption and misgovernance problems in a given community—rarely materialize.

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President Biden’s “Fishy” Corruption Statistics Called Out

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Thanks to GAB Editor-in-Chief Matthew Stephenson, readers of this blog have known for years not to believe the many numbers thrown around about the global cost of corruption.  As he has shown in a series of posts, (here, here, here, and here) and in a 2021 paper for the U4 Anticorruption Resource Centre with Cecilie Wathne, these estimates are, not to put too fine a spin on it, baloney. Or what I have somewhat scatologically termed WAGs (Wild A** Guesses).

Unfortunately, White House staff apparently (and disappointingly) neither read GAB nor follow U4’s work. That is the only explanation for why they would have let President Biden say at the launch the other day of the Indo-Pacific Economic Framework for Prosperity that “corruption saps between 2 to 5 percent of global GDP.”

Fortunately, Washington Post crack fact checker Glenn Kessler didn’t let the President’s citation of what his paper termed a “fishy statistic” go unchallenged. Relying on Matthew’s and Cecile’s paper, backed up by a chat with U.S T.I. director Gary Kalman, Kessler termed the 2-5 percent statistic “so discredited” that it should have never been “uttered by the president of the United States.” The White House, he wrote, must in the future do a better job of vetting such “dubious” data.

While I trust White House staff will, I hope the error in no way hope cools theirs or the president’s commitment to upping America’s anticorruption game. After all, as the president also said at the Indo-Pacific launch, corruption “steals our public resources,. . . exacerbates inequality [and] hollows out a country’s ability to deliver for its citizens.”  All unequivocally true. No fishy data required. QED

The Coal Industry Has No “Final Villain”

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“Manchin’s coal corruption is so much worse than you knew.” So proclaimed the headline of a Rolling Stone article this past January, referring to West Virginia Senator Joe Manchin. In March, the New York Times published a similar article. “At every step of his political career,” the Times reported, “Joe Manchin helped a West Virginia power plant that is the sole customer of his private coal business.” Salon, just a few days later, followed suit, describing Machin’s ties to the coal industry as a “stunning portrait of political corruption.” (See also here, here, here, and here). These stories, understandably, focus on Machin himself—the Rolling Stone article even calls him “the final villain” in the story of corruption it unfolds. And Manchin’s conduct is indeed outrageous: First as Governor and then as a Senator, Manchin lined his pockets off of personal stakes in the coal industry—an industry he used his political power to prop up at every turn—in spite of pollution, climate change, inefficiency, and high costs to his constituents.

Yet the journalistic outrage over Manchin’s unethical (albeit not illegal) behavior may be distracting from the real issue, if not outright misdiagnosing it. Corruption in the coal industry is not the result of individual unscrupulous politicians. The problem is coal itself.

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Civil Non-Prosecution Agreements: A Promising New Tool for Advancing Brazil’s Anticorruption Agenda

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In late 2019, the Brazilian Congress passed an “anti-crime package” which included, among other things, an amendment to the Administrative Improbity Act that authorized a new form of “civil non-prosecution agreement” (known by its Portuguese initials, ANPC). Under an ANPC, prosecutors can reach civil agreements with individuals who voluntarily disclose their corrupt acts, thus avoiding the usual judicial proceedings for determining penalties under the Improbity Law. (To be clear, ANPCs are used to resolve civil matters and impose administrative sanctions, rather than to resolve criminal cases.) More recent amendments to the Improbity Act have strengthened this mechanism by giving prosecutors greater discretion to reach settlements with individuals accused of improbity.

This reform is a major change to the traditional Brazilian approach to administrative sanctions, which historically bars the settlement of any case involving corruption or improbity. That said, Brazil has already expanded the use of settlement agreements in other contexts. For example, in the context of enforcing criminal laws against corporations, the 2014 Clean Company Act (CCA) authorized so-called “leniency agreements,” under which prosecutors may offer to lower penalties to companies that self-disclosure wrongdoing and cooperate with the investigation. The ANPC mechanism is similar but different in a couple of important respects. First, the ANPC applies to individuals rather than firms. Second, while the CCA authorizes leniency agreements only in cases where the company discloses information about other unlawful activities and thus helps the investigation, an ANPC may be issued as long as the individual agrees to reform her own conduct, even if she does not provide additional information that is useful in ongoing investigations. On the other hand, similarly to leniency agreements, the enforcement authorities need not seek judicial approval to resolve a case via ANPC, so long as the agreement is reached before the beginning of a judicial proceeding. (If a formal proceeding has already begun, then the judge would still need to sign off on the termination of that proceeding.)

Although ANPCs have yet to be used on large scale, this tool holds great promise for substantially improving Brazil’s effective enforcement of its anticorruption laws, for several reasons:

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How To Improve Whistleblower Protection in Malaysia

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Malaysia’s poor reputation on corruption took a serious hit with the 2015 scandal concerning the 1Malaysia Development Board (1MDB), and things have not improved much since then. If the Malaysian government is serious about cleaning up the country, and improving its international reputation, it needs to do more than just hold accountable those responsible for 1MDB and other scandals. Looking forward, Malaysia must also improve its legal framework for the detection and prevention of corruption. In this regard, as leading anticorruption advocacy organizations have emphasized, stronger whistleblower protection is essential. Most forms of corruption are hard for outsiders to detect, and those with first-hand knowledge of possible wrongdoing will be reluctant to report what they know unless they have, at a bare minimum, sufficient protections against retaliation.

Malaysia does already have a dedicated whistleblower statute, the Whistleblower Protection Act 2010 (WPA2010). But while the existence of this law is a good first step, its provisions are not satisfactory. Even the government has acknowledged this: Noting the gaps and weakness of the current statute, the Minister for Parliament and Law recently placed the question of amending the WPA2010 on Parliament’s agenda. As Parliament takes up this vital question, the following improvements to the law should be high priorities:

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The Future of FCPA Enforcement After KT Corp.

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Earlier this year, the US Securities and Exchange Commission (SEC) settled a Foreign Corrupt Practices Act (FCPA) case with KT Corporation, the largest telecommunications operator in South Korea. The facts of the case, as described in the settlement documents, are cinematically scandalous: From at least 2009 through 2017, high level executives at KT maintained enormous slush funds in off-the-books accounts and physical stashes of cash, from which they made illegal political contributions and paid off government officials in both Korea and Vietnam. In their home country, they frequently used these slush funds to pay for substantial unreported gifts, entertainment, and campaign donations to members of the Korean National Assembly who were serving on committees that addressed issues of public policy directly related to KT’s business. Furthermore, after the South Korean press reported on the slush fund allegations back in 2013—reporting that led to a Korean criminal prosecution of KT’s president for embezzlement—the company simply shifted its tactics for filling its slush funds: Rather than siphoning off inflated executive bonuses, KT had its Corporate Relations (CR) Group purchase gift cards, which were then converted into cash to replenish the slush funds. In genuine “cloak and dagger” style, a member of the CR Group would meet the corrupt gift card vendor in the parking lot behind the KT building and receive a paper bag containing a large envelope of cash.

In a magnificent understatement, the Chief of the SEC’s FCPA Enforcement Unit noted that KT “failed to implement sufficient internal accounting controls with respect to key aspects of its business operations,” and that in the future, the company’s leaders should “be sure to devote appropriate attention to meeting their obligations under the FCPA.” But this was not simply a case of a company failing to keep its financial records up to date. Rather, there was a complete and total collapse of any semblance of a culture of compliance at KT. The fact that executives at the highest levels of this corporation, including the president and the CR Group, were directly responsible for these bribery schemes indicates that the culture of this corporation was corrupt, thorough-and-through; bribery was an indispensable component of its business model, and continued even after the company’s president was prosecuted. Yet because KT cooperated with the SEC’s investigation, the SEC only required KT to pay a paltry $6.3 million in combined disgorgement and civil penalties; the SEC also put the company on a two-year probation, during which KT must update the SEC every six months on its compliance measures, though it is unclear what, if anything, will happen if KT somehow mishandles the recommended compliance improvements.

This outcome is unacceptable. If the U.S. government is serious about its intention to deter future misconduct, it must ensure that civil penalties for FCPA violations cannot simply be seen as an “acceptable cost of doing business.” Over the past few years, SEC and DOJ leadership have repeatedly emphasized the importance of anticorruption enforcement and have suggested a desire to reverse the trend of steadily declining FCPA enforcement actions. If deterrence of corrupt corporate conduct is truly a priority for the SEC and the DOJ, then now would be a good time to start substantially ramping up FCPA investigations and enforcement actions, especially in cases of companies like KT that have exhibited the incorrigible culture of brazen corruption.

There are two substantial objections to the call to ramp up FCPA enforcement actions against foreign companies and dramatically stiffen penalties for violations, but on closer inspection neither is compelling. Continue reading →

Humanitarian Aid Corruption in Regime-Held Syria: How Should the International Donor Community Respond?

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In response to the humanitarian disaster caused by Syria’s ongoing civil war, international aid has poured into the country, to the tune of over $40 billion since 2011. Yet 14.6 million people (out of a total Syrian population of approximately 18 million) remain in need of some form of humanitarian assistance. One of the main reasons that so many people remain in need is the Assad regime’s systematic co-optation and corrupt diversion of international aid. The regime has required that foreign donors partner with one of two local Syrian organizations—the Syrian Arab Red Crescent (SARC) and Syria Trust for Development (founded and run by President Assad’s wife); these government-affiliated organizations can then deliver aid money “out of sight” of the international organizations that sent that money, thereby obstructing aid workers’ ability to ensure that aid is distributed based on need. The government also mandates that all international organizations in Damascus hire local personnel hand-selected by the regime who supervise all programming and select which beneficiaries receive aid. These tools enable the Assad regime to use aid for political purposes, and to corruptly divert tens of billions of aid to politically connected elites, many of whom are responsible for the human rights violations that made humanitarian aid necessary to begin with.

For those whose top priority is to help suffering Syrians, it may be tempting to ignore or downplay the corrupt diversion of humanitarian aid—to view it as the unpleasant but inevitable cost of doing relief work in a country ruled by a despot. But continuing with the status quo is not a viable option. Right now, the aid pouring into Syria is helping the regime much more than it is helping suffering civilians, and it would be irresponsible to ignore this fact. Does this mean the international community should simply suspend humanitarian aid to Syria altogether? That option is also unpalatable. For one thing, it would impose grave costs on Syrian civilians: Even if the regime steals or misdirects up to 90% of incoming humanitarian aid, the 10% that ordinary Syrian civilians currently receive is still better than nothing. Furthermore, a decision to halt aid completely could also send the message that the international community does not think helping Syrian civilians is worth the hassle.  

If neither continuing the current approach to delivering humanitarian aid nor suspending aid altogether is acceptable, what should the international donor community do? There is no good answer to this question, but as the humanitarian crisis in Syria shows no sign of abating, the international community must do what it can to find ways to get aid to the citizens who need it most. There are a few measures that, while imperfect, might be helpful:

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