Category Archives: Uncategorized

The Purity Potlatch and Conflict of Interest Revisited

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A potlatch is a competition once found among tribes in the American Northwest.  Contestants took turns destroying things of value to them to demonstrate their wealth and status in the community, and overtime the combat escalated until eventually the only way to win was to reduce oneself to material ruin.  In a 1964 essay Stanford Law School Dean Bayless Manning, a member of the President’s Advisory Panel on Ethics and Conflicts of Interest in Government, compared the then current race in Washington, D.C., to condemn conflicts of interest to a potlatch – with similar unfortunate consequences.  Given the conflict of interest mania now gripping Washington, D.C., the time seems right to resurrect Dean Manning’s largely forgotten classic on the perils of ethics overstretch.  “The Purity Potlatch: An Essay on Conflicts of Interest, American Government, and Moral Escalation” appeared in volume 24 of the Federal Bar Journal. Available nowhere online, excerpts follow. The emphasis are as in the original:

“Something dramatic has happened of late to the subject of conflicts of interest.  This formerly obscure topic has become front page news and Big Politics. . . .

“The significant feature of these nation-rocking exposes is that, so far as is known from the record, none of the men involved actually did anything demonstrably injurious to the public treasury or the public interest.  None figured in an alleged Teapot Dome or anything resembling it.  The charge was only that the combination of their economics circumstances and their offices did not look just right.  The worst allegation that could be made against them was that they held an economic interest or received gifts that might, upon a certain set of assumptions about the conduct of their office and about human nature generally, tempt them in the future to act contrarily to the public interest in certain limited situations. Continue reading →

3 Things To Do About Corruption Rather Than Gripe

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Most of what passes for commentary or learned analysis about corruption in the press, on social media, or elsewhere does little more than say (again and again and again) that corruption is a pressing problem and that it should be addressed.  However valuable such calls to action might have been in the early years of the anticorruption movement, as Matthew suggested some time ago (almost two years ago to be exact), the principle of diminishing returns has long since set in.  I have serious doubts that another newspaper op-ed, “thought piece,” or (even) blog post will prompt one more policymaker or citizen to take up the anticorruption cause. If they have not by now, they simply aren’t going to.

Rather than wasting energy and time and sending more innocent trees to their death in the hopes of enlisting the remaining holdouts to the cause, here are three projects activists can tackle that will make a difference in the fight to curb corruption. Continue reading →

The SELDI Report on Combating Corruption in Southeast Europe: Good News/Bad News

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In an earlier post I cataloged several studies evaluating anticorruption policies in different regions or by different agencies and promised to summarize each for time-pressed readers.  Today I review a report by the Southeast Europe Leadership for Development and Integrity (SELDI), Anticorruption Reloaded: Assessment of Southest Europe, on the state of corruption in nine states:  Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Kosovo, Macedonia, Montenegro, Serbia, and Turkey.  SELDI is a coalition of 17 civil society organizations from the nine countries with one, the Center for the Study of Democracy in Sofia, serving as its secretariat.  The 250 page report was authored by the Center based on extensive consultations with SELDI members, assessments in each of the nine countries, and comparisons of surveys on corruption taken in 2001 and 2002 with the results of identical surveys taken in 2014.

The good news?  The report provides an exhaustive analysis of corruption trends in the nine countries, what each has done to reduce corruption, and what more needs to be done.  The focus is on critical, but often overlooked issues: corruption in the legislature and the courts, weaknesses in public financial management and how they fuel corruption.  The empirical and qualitative data are weaved together skillfully to provide a detailed picture of each country along with specific recommendations.  The really good news?  The existence of civil society organizations in these nine countries capable of producing such a high quality report.

The bad news? Continue reading →

Corruption Risks in the Criminal Justice System

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The U4 Anti-Corruption Resource Center has just published the introductory chapter to a new U4 issue paper, Corruption Risks in the Criminal Justice Chain and Tools for Assessment.  The forthcoming paper has separate chapters that examine where corruption is most likely to arise in the 1) investigation, 2) prosecution, and 3) trial of a criminal case and in 4) the detention of suspects and incarceration of convicted defendants.  The chapters also describe what tools exist to to assess these risks.  The introductory chapter, co-authored by this writer, summarizes the four chapters.

U4 will release the other four chapters one by one in January 2015.  Join U4’s linked-in group for updates and to interact with the authors who will answer questions and respond to comments in these weeks:

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 →

Corruption Risk Assessments: Some Observations on Private Sector Analyses

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As the pressure to curb corruption has grown, so too has the demand for “corruption risk assessments,” efforts to predict what form corruption in a public agency or private firm is likely to take and what can be done to reduce if not to eliminate it.  In the private sector risk assessments have been fueled by national laws that reduce penalties for corruption violations if a firm has a risk management program in place.  In the public sector risk assessments help assure citizens that their money is not being stolen and provide an agency leader unlucky enough to be at the helm when a corruption scandal breaks at least a partial defense to charges of incompetence or venality.

Public sector assessments come in several varieties: those which examine the risks faced by a single organization, say the Albanian tax agency, others which assess risks in a publicly-funded program, for example a de-forestation project in the Democratic Republic of the Congo, and still others which consider overall risk in a sector with a large public presence such as water or education.  While public sector assessments are almost always readily available, private sector assessments are not, presumably for proprietary or competitive reasons.  What is available on private sector risk assessment are hundreds (thousands?) of tomes advising firms on how to conduct a risk assessment — often written by those looking to assess the corruption risks a corporation faces for a fee.

A Google search for “corruption risk assessment” produced 300,000 hits, one for “assessing corruption risks” 48 million!  I won’t pretend to have read even a representative sample of the reports or “how to” manuals, but the many I have read so far have been a disappointment. Continue reading →

America’s Pursuit of Absolute Integrity

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Attempts to control corruption have a long history in the United States.  Since the late 19th century numerous laws have been enacted at the federal, state, and local level to end patronage and nepotism in government employment, control conflicts of interest by public servants, and reduce opportunities for bribery and kick-backs.  Although the current corruption landscape differs from that of 20th century America, policymakers considering anticorruption legislation today can profit from a look at the U.S. experience.

A useful, if sobering, place to start is with Professors Frank Anechiarico and James B. Jacobs’ 1997 analysis based on New York City’s century long effort to combat corruption supplemented by the federal government’s more recent experience with ethics laws.  Useful because the authors analyze many of the same interventions now commonly advocated to combat corruption around the globe: conflict of interest legislation, financial disclosure requirements for public servants, whistleblower protection, the creation of inspectors general, the reduction of officials’ discretion.  Sobering, not only because they conclude these reforms have done little to combat corruption, but also because the authors contend that together these laws have contributed to the current dysfunctional state of American government.  In short, they say, America’s effort to suppress corruption has produced little benefit at great cost.

Continue reading →

The New Chinese-Backed Infrastructure Bank: Will it Tame the Corruption Dragon?

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Asian governments are welcoming China’s recent decision to establish a bank to finance infrastructure across Asia.  As Devex reported June 2, China plans to capitalize it with an initial $50 billion with the possibility of increasing it by an additional $100 billion.  For China, the bank is one more way to assert leadership in the Asian region.  For Asian states leery of relying on the Western-led World Bank and Asian Development Bank for financing public works, the bank is a chance to diversify.  For both the lender and borrowers alike, the bank offers the chance to profit from Asia’s economic dynamism.

The Chinese-led bank will have to overcome many challenges to realize these objectives, the most difficult of which may well be preventing corruption from infecting the projects it finances.  Infrastructure corruption produces half-built roads, dilapidated ports, and white elephants of all kinds.  It leaves borrowing governments indebted for under-performing, over-priced assets while stirring a backlash against the lender.  Will the new bank and its principal backer be able to keep the corruption dragon at bay?   There are at least three reasons to worry that it won’t.  Continue reading →

Ignoring Corruption in Procurement: The World Bank’s New Procurement Policy

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In a recent post Matthew spotlighted a handful of academics that are in denial about the extent of corruption in developing countries.  As bad as it is for armchair analysts to ignore the facts about corruption, it is far worse when a leading development policy maker does.  Yet that is what the World Bank is on the verge of doing as it puts the finishing touches on its new procurement policy. Continue reading →