Senator Warren’s Proposed Anticorruption Agency Should Be Headed By a Multi-Member Commission, Not a Single Director

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Last August, Senator Elizabeth Warren introduced a sweeping bill that, if enacted, would substantially reform the current ethics systems in place in the U.S. government. The bill includes a broad range of substantive reforms, including stricter conflict of interest rules, much stronger lobbying restrictions (such as a lifetime ban on lobbying by former members of Congress, Presidents, and agency heads), and new judicial ethics rules. But in addition to these and other changes to substantive law, the bill is striking in its call for a quite drastic institutional change: the creation and empowerment of a single anticorruption agency called the U.S. Office of Public Integrity. The proposed Office would not only consolidate the functions of the U.S. Office of Government Ethics (OGE) and the agency Inspectors General under one roof, but would also have broad investigative authority (including subpoena power), as well as the ability to impose civil and administrative penalties, and to refer criminal violations to the Department of Justice. Moreover, the Office of Public Integrity would have the responsibilities to ensure agency compliance with the Freedom of Information Act (FOIA), create and maintain a central FOIA database, and maintain a separate online database containing financial disclosures, lobbyist registrations, lobbyist disclosures of meetings and materials, and all ethics records (including recusals and waivers). A division within the Office of Public Integrity, known as the Office of the Public Advocate, would represent the “public interest” in executive branch rulemaking.

In addition to its broad powers, the proposed Office of Public Integrity is notable for its distinctive leadership structure. The bill proposes that the office be headed by a single Director, appointed for a renewable five-year term. The Director would have “for-cause” removal protection, meaning that the President could only remove the Director for good cause, defined as “inefficiency, neglect of duty, or malfeasance in office.” The Office would therefore be an “independent agency,” which is a term typically (at least in the U.S.) referring to an agency whose leaders have this sort of for-cause removal protection. But most U.S. independent agencies are headed by a multi-member commission, rather than a single director. (This is true, for example, for the National Labor Relations Board and the Federal Communications Commission.) The commissioners at such agencies typically serve staggered terms and make decisions by majority vote. It’s rare for an independent agency in the U.S. federal government to be headed by a single director rather than by a commission. (The most notable exception is the Consumer Financial Protection Bureau—perhaps not coincidentally an agency based on a proposal by Senator Warren.)

While there is much to be said in favor of Senator Warren’s proposed Office of Public Integrity, this leadership structure is a mistake. While it makes sense for an agency devoted to enforcing ethics rules and fighting corruption to be independent from the President, it would be better for such an agency to be governed by a multi-member commission rather than a single director.

There are three reasons for this:

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Guest Post: The Importance of Integrating Anticorruption into Military Capacity-Building Programs

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Today’s guest post is from Associate Professor Åse Gilje Østensen of the Royal Norwegian Naval Academy, and Sheelagh Brady, Senior Analyst at SAR Consultancy:

In developing countries faced with security challenges—such as armed conflict, insurgencies, or widespread violence—foreign donors often offer capacity-building programs to strengthen local security institutions. However, many of these capacity-building programs do not consider corruption or incorporate anticorruption measures within their design. And when donors do consider corruption in military capacity-building programs, they typically focus narrowly, and short-sightedly, on safeguarding program funding, with little apparent concern beyond that. The view seems to be that one can build military or police capacity first, and then (perhaps) deal with corruption later, or even leave anticorruption efforts entirely to organizations and agencies dedicated to this purpose.

This approach is likely mistaken. As documented in a recent case study from the U4 Anti-Corruption Resource Centre, Capacity Building for the Nigerian Navy: Eyes Wide Shut on Corruption?, capacity-building efforts in weak states with pervasive corruption can stimulate corrupt or even criminal activity, which may result in more of the insecurity that these efforts are supposed to reduce. As the U4 report notes, “capacity building can strengthen the abilities of corrupt actors to devise corrupt schemes, as the skills and equipment provided may be used to ‘professionalise’ corrupt practices.” Donors and policymakers therefore need to see corruption as a critical concern at the top level of foreign and security policy across countries, and make anticorruption a key component of the design, implementation, and follow-up of military and police training.

In contrast to more ambitious and comprehensive security sector reform programs, capacity building programs seek to achieve modest improvements in capabilities, usually by providing training, mentoring, and/or equipment. Yet while modesty in terms of goals may be useful, donors may be tempted to think that the limited scope of capacity-building interventions implies limited risk. Yet a host of problems can arise when anticorruption measures are not incorporated into capacity building. Most obviously, when adding particular skill sets or strengthening the operational capacity of corrupt security institutions, security personnel may improve their ability to divert resources from their intended purposes. Worse still, building selected capacity without addressing corruption could mean bolstering the segments of the security apparatus involved in facilitating or carrying out criminal activity. It is hard to know just how big of a problem this is, but there are indications that capacity building very often is provided to corrupt security sectors. For example, several studies have found the Nigerian Navy to be heavily involved in facilitating illegal bunkering, oil theft at sea, and piracy in the Gulf of Guinea (see here, here, here, and here). At the same time, the Navy is a partner to two capacity building programs sponsored by the U.S. military’s Africa Command (AFRICOM): the Africa Maritime Law Enforcement Partnership (AMLEP) and the Africa Partnership Station (APS). Neither of these programs implements measures to prevent corrupt actors in the Navy from using their newfound skills and better technology to fuel insecurity and crime. More generally, according to the Security Assistance Monitor, in 2016 alone the United States provided over $8 billion in arms and training to 50 of the 63 countries that Transparency International (TI) has rated as a having a high or critical risk of corruption in their defense sectors.

How can anticorruption efforts be made part of capacity-building programs? The first step is to recognize that corruption can undermine the results of security assistance programs, and to avoid compartmentalizing “security” and “corruption” as two unrelated issues. After recognizing this fundamental point, one can design and implement sensible anticorruption measures, tailored to the particular circumstances, in particular the informal power distributions and incentive structures that determine who gains from corruption and how. And before implementing capacity building programs in the first place, donors should carefully consider whether those programs will translate into institutional improvements or will instead create “capital” that may be attractive to corrupt actors, subversive forces, or disloyal individuals.

Holding Relatives Hostage: China’s Newest Way of Pressuring Fugitives to Return to Face Corruption Charges

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China’s latest tactic in Operation Fox Hunt, its campaign to force those who have fled abroad to return to face corruption charges, has had the extraordinary, if unintended, consequence of uniting America’s bitterly divided political elite.  Last June, the American wife and children of accused fraudster Liu Changming were detained in China after a brief visit; his wife held in a “black site” and his children barred from leaving.  The ostensible the reason for holding them is because they are being investigated for “economic crimes,” but almost surely, as the family claims, the real reason is to pressure paterfamilias Liu to return to China to stand trial for corruption offenses.  Trump National Security Advisor John Bolton, avowed Trump opponents Senator Elizabeth Warren and Congressman Joseph P. Kennedy III, and leaders of Harvard and Georgetown universities are all demanding the Americans be permitted to leave China at once (accounts here and here).

Holding family members hostage to force a relative to surrender to authorities is a species of collective punishment, a patent human rights’ violation universally condemned by the world community. No wonder the Boltons, Warrens, Kennedys, Harvards and Georgetowns find themselves on the same side of the issue.

Reporting by the New York Times, however, suggests that there could be more to the case than appears at first glance.  That there may be reason for both the Chinese government and the strange bedfellows its policy has created in opposition to examine their actions in view of the global fight against corruption. Continue reading →

Tracking Corruption and Conflicts of Interest in the Trump Administration–December 2018 Update

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Since May 2017, GAB has been tracking credible allegations that President Trump, as well as his family members and close associates, are seeking to use the presidency to advance their personal financial interests, and providing monthly updates on media reports of such issues. The December 2018 update is now available here.

As always, we note that while we try to include only those allegations that appear credible, we acknowledge that many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.

Getting State Anticorruption Commissions to Work

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In the elections last November 6, citizens in New Mexico and North Dakota voted to amend their state constitutions to establish state anticorruption commissions. In doing so, they joined the vast majority of American states (currently 44 out of 50) that have created similar (or at least similarly-named) commissions—starting with Hawaii back in 1968. The impulse to create a special commission to deal with a significant problem like public corruption is certainly understandable. Indeed, many state commissions were created immediately after a major public corruption scandal, when public frustration was running high. At the same time, though, the record of such state-level anticorruption commissions in the US is mixed at best (see, for example, here, here, and here). And despite the similarities in their names, many of these commissions actually do quite different things—with some functioning like ethics commissions that publish quasi-legislative standards and others functioning more like mini-prosecutors’ offices. Indeed, it’s not entirely clear that voters in New Mexico or North Dakota knew exactly what they were voting for when they went to the ballot boxes. In New Mexico, the referendum measure left to it to the state legislature to determine how the commission would operate, while the language in the North Dakota referendum suggested that the commission’s duties would be largely optional.

Despite their diversity and admittedly mixed track record, state anticorruption commissions have many potential benefits. They can provide clear reporting channels for individuals who have witnessed corruption; they can evaluate systemic corruption risks by sector and recommend more targeted reforms to state legislators; and they can enhance accountability by investigating ethics complaints and corruption allegations, and referring appropriate cases to state prosecutors’ offices. But in order to be effective, state commissions need to have certain institutional features and safeguards.

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An Interesting Collection of Corruption Posts at the Public Administration Review’s Blog Symposium–Worth a Look!

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The Public Administration Review recently published a blog symposium on corruption, edited by Liz David-Barrett and Paul Heywood. (As some readers might recall, GAB published the announcement and call for submissions last April.) The broad-ranging symposium includes an impressive lineup of contributors and a diverse set of topics–and in keeping with blogging norms, the pieces are short and to the point, and often provocative. Worth checking out. You can find the full table of contents at the link in the first line of this post, but I’ll also copy it below so readers can jump directly to posts that look particularly interesting:

Corruption: A Bully Pulpit Symposium

Introduction

  1. Why re-think anti-corruption? An introduction to the symposium, Elizabeth Dávid-Barrett and Paul M. Heywood

A systems approach to corruption

  1. Learning to understand corruption as a systemic problem, Johannes Tonn
  2. Eradicating Corruption: You Can’t Just Pin Your Hopes on Democracy, Elisabeth Kramer
  3. Informal networks: the invisible drivers of corruption and implications for anti-corruption practice, Claudia Baez-Camargo, Saba Kassa and Cosimo Stahl
  4. What ‘hidden’ success stories tell us about anti-corruption policy and practice, Heather Marquette and Caryn Peiffer
  5. Pressure to change: a new donor approach to anti-corruption? Phil Mason

Broadening the definition of corruption

  1. Fighting corruption through strengthening financial integrity: Reflections on Pakistan’s experience, Tom Keatinge and Anton Moiseienko
  2. Add women and stir? Exploring the gendered dimension of corruption, Rrita Ismajli and Miranda Loli

Moving away from compliance-based, regulatory approaches to anti-corruption

  1. Fighting Corruption with Insights from Behavioral Science, Johann Graf Lambsdorff
  2. Focusing efforts and blurring lines: the OECD’s shift from ethics to integrity, Sofia Wickberg
  3. Rethinking corruption risk management for global health programmes: from compliance-based approaches to informed programme design, Sebastian Bauhoff, Sarah Steingrüber and Aneta Wierzynska
  4. Interpreting anti-corruption within a public ethics of accountability, Emanuela Ceva and Maria Paola Ferretti
  5. Using a social norms approach to tackle corruption in Nigeria, Abdulkareem Lawal

New roles for the private sector in tackling bribery and corruption

  1. Market for Bundles: A New Stage of Foreign Anti-Bribery Enforcement, Branislav Hock
  2. Towards a system of compensation for the victims of foreign corruption, Friederycke Haijer
  3. Public/private partnerships – an opportunity or risk for anti-corruption? Nick J Maxwell
  4. Communicating with SMEs on anti-corruption, Brook Horowitz and Jan Dauman
  5. Charting a New Path of Anti-Corruption in Africa: Bringing the Private Sector in from the Cold, Tahiru Azaaviele Liedong

Engaging more local and community partners in anti-corruption

  1. “Bottom Up” Corruption Prevention, Jennifer Widner and Tristan Dreisbach
  2. Look beyond the nation-state: Local-level success stories may reflect different power dynamics, Tom Shipley
  3. Nuevo Leon’s Anticorruption System: Taking Stock of an Ongoing Experiment in Fighting Corruption at the Local Level, Bonnie J. Palifka, Luis A. García and Beatríz Camacho
  4. Can Customary Authority Reduce Risks of Corruption and Local Capture? David Jackson and Jennifer Murtazashvili
  5. Every Penny Counts: Exploring Initial Strategies for Successful Open Contracting Initiatives in Challenging Environments, Tom Wright, Eliza Hovey and Sarah Steingruber
  6. Empowering Agents of Change, Phil Nichols

OECD Nations Should Criminalize the Unexplained Wealth of Politically Exposed Persons

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Today’s guest post is from Hamid Sharif, Managing Director, Compliance, Effectiveness and Integrity, for the Asian Infrastructure Investment Bank.  Writing in his personal capacity, he urges OECD countries to enact laws like that giving the British government the power to demand public officials from another nation explain how they acquired assets held in Britain.  If the official cannot show the assets were purchased with honestly-obtained monies, they are confiscated.  The laws Mr. Sharif advocates would provide that if the official were from a developing country, the seized assets would go to development projects in the victim state.  The views expressed in no way reflect or represent those of AIIB, its Board, or Management.

Since 1996, when then World Bank President James Wolfensohn condemned corruption as a “cancer” which stood “as a major barrier to sound and equitable development,” combating corruption has figured prominently on the international development agenda. In 1997, the OECD nations agreed to make it a crime to bribe a foreign public official, and in the early 2000s the World Bank, the African Development Bank, and the other multilateral development banks (MDBs) introduced corruption prevention policies into their procurement rules, adopted anti-corruption policies, established procedures for investigating corruption in their operations, and instituted systems for sanctioning firms and individuals found to have engaged corruption. Beyond ring-fencing their own projects against corruption, both the MDBs and bilateral development agencies have worked to strengthen institutions to prevent corruption in developing countries. Civil society in both developing and developed states has also stepped up its efforts to fight corruption.

Both the MDBs and bilateral donors have urged developing nations to operate with greater transparency and accountability and funded projects to strengthen anticorruption agencies, judiciaries, and other domestic institutions responsible for combatting corruption. Today there is far more information on corruption and how to fight it available to citizens of the developing world than 20 years ago. The result has been a multitude of reforms aimed at preventing or deterring corruption, from the spread of right to information laws to more effective anticorruption laws and agencies.

Despite this progress, in most developing countries institutions are not yet strong enough to investigate and successfully prosecute the corrupt acts of senior government officials whether elected or appointed, individuals who in antimoney laundering parlance are, along with their relatives and close associates termed “politically exposed persons” or “PEPs.”  In many countries, investigating and prosecution agencies as well as courts lack the independence, security, and institutional capacity to instill public confidence in their ability to deal with high-level political corruption perpetrated by PEPs. Continue reading →

Carr Center Conference on Human Rights and Corruption: Full Video

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There’s been a great deal of recent interest, in both the anticorruption community and the human rights community, about the connections between these topics. Back in May 2018, the Carr Center for Human Rights at the Harvard Kennedy School held a conference on this topic (entitled “Corruption and Human Rights: The Linkages, the Challenges, and Paths for Progress”). I posted a link to the written summary report of the conference last summer. I’m now pleased to report that a full video of the all-day conference is available here.

It’s long (over 4 1/2 hours), so here’s a quick guide to what speakers and presentations you can find where: Continue reading →

The Case for Abolishing Police Commissioners’ Extendable Terms in Israel

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The investigations into corruption allegations against Israel’s Prime Minister Benjamin Netanyahu have received massive attention from the media in Israel and around the world ever since they began in late 2016. In one of the most recent developments, last September Israel’s Minister of Public Security, Gilad Erdan, officially announced his decision not to extend the three-year term of the current head of the Israeli Police, Commissioner Roni Alsheich, by an additional year. Therefore, Alsheich is expected to complete his tenure at the end of this year. Erdan ascribed his decision not to extend Alsheich’s tenure to “differences of opinion and divergent approaches on various issues, some of them substantial and weighty, and which had a significant impact on the public’s trust in the police.” Opposition members and commentators, however, claimed that this decision was driven by the fact that Alsheich has been (or has been perceived as) leading the investigations into Prime Minister Netanyahu. According to the critics, Erdan, a member of Netanyahu’s Likud Party, was acting to please influential senior members of the Likud, as well as Netanyahu himself – an allegation that Erdan denied.

The facts of this particular case are murky. There is no solid evidence to show that Erdan’s decision not to extend Alsheich’s term was related to the latter’s involvement in the Prime Minister’s corruption probe. (In fact, even critics of Erdan’s decision do not seem to claim that Alsheich’s commissionership was flawless.) Nevertheless, this incident highlights a larger institutional flaw in Israel’s current practice of appointing police commissioners for three years with the option for extension.

Israeli law does not actually specify a fixed length for a police commissioner’s term, nor does it mention anything about the potential for term extension. In fact, Israel’s Police Ordinance says only that the commissioner is to be appointed by the government, per the recommendation of the Minister of Public Security. However, over the years it has become an accepted practice (though not without exceptions) that the police commissioner is appointed for a term of three years, and toward the conclusion of that term, the Minister of Public Security decides whether to recommend that the government extend the commissioner’s term by approximately one additional year. This practice should be abolished. Instead, the law should be amended such that the commissioner would be appointed for a fixed, non-extendable term (except in certain emergency situations) – a proposal that has been advocated by commentators and some members of the Knesset (Israel’s parliament), but so far has gone nowhere.

There are three strong arguments, from the perspective of anticorruption policy, for giving the police commissioner a fixed non-extendable term (at this point, regardless of its exact duration): Continue reading →

Myanmar Should Adopt Formal User Fees To Displace Petty Bribery

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Corruption is part everyday life in Myanmar. While the wealthy can use bribery to get around the law, for the vast majority of Burmese citizens, bribery is necessary to get things done even when the law is on your side. The term “tea money” exists in common parlance to describe the small bribes necessary to obtain even the most basic of services—bribes that are so ubiquitous that many people don’t think they count as corruption. The imposition of unofficial, discretionary and discriminatory “fees” means that formally public services are in practice “privatized.”

One explanation for the persistence of this petty corruption is that both the national government and the regional governments lack the revenue necessary to provide the public services that, under Myanmar’s Constitution, the government is supposed to provide. According to the Asia Foundation, “Decades of deliberate neglect of Myanmar’s tax-administration system have left the country with one of the lowest tax takes in the world [….] Myanmar’s tax revenues in 2016–17 were only 6–7% of GDP. This compares to 10–20% of GDP for countries at similar levels of income.” The country does earn significant revenue from natural resources, but these rents have gone into the pockets of military elites; other revenue sources are severely limited. When the demand for government services and benefits outstrips the supply, people become willing to pay extra for the promised public goods. The idea that these extra fees are acceptable is exacerbated by the fact that Myanmar’s lower-ranking public servants earn very low official salaries. But allocating public services on the basis of bribe payments is not fair, equitable, transparent, or efficient.

In an ideal world, Myanmar would reform its tax system, collect adequate revenue, pay its public servants decent salaries, and be able to provide all of the goods and services to which its citizens are legally entitled. But while we can all hope Myanmar works toward that goal, nothing like that is going to happen anytime soon.

A more practical short-term solution is to raise the official administrative fees—or “user fees”—for public services. Continue reading →