Watch Your Language: Not “Everyone” Is Corrupt–Anywhere.

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I’ve noticed something about the way many people (including me) sometimes describe the severity of the corruption problem in many parts of the world: When calling attention to the problem of widespread, systemic corruption, it’s not uncommon to hear people say—usually in casual conversation, occasionally in more formal presentations—that in this or that country, or this or that government or department, “everyone” is corrupt, or “everybody” takes bribes, or similar. I’m sure I’ve used this or similar language myself, without even thinking about it. And I understand that when most people say things like “everyone in [X] is corrupt,” they don’t mean that literally. Yet I find myself increasingly bothered by statements like this, for several reasons: Continue reading →

Artful Transactions: Corruption in the Market for Fine Arts and Antiques

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The fascination surrounding art theft and forgery has long been the subject of much exploration. Only more recently, however, has the art market come under increased scrutiny regarding its connection to money laundering and corruption. It’s not just that stolen artworks often end up in the hands of criminals: even the market for non-stolen art is especially vulnerable to money laundering and corruption. With more banks cracking down on illicit activities, art has become an “efficient instrument for hiding cash.” As an article in the New York Times observed, no business seems “more custom-made for money laundering, with million-dollar sales conducted in secrecy and with virtually no oversight.”

Considering the attention paid by anticorruption and anti-money laundering activists to the role of the real estate market and the market for other luxury goods to facilitate money laundering and bribery, it is perhaps a bit surprising that there hasn’t been more attention to the art market—which is perhaps even more deserving of scrutiny. Continue reading →

Anticorruption Bibliography–August 2016 Update

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An updated version of my anticorruption bibliography is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

When Lunch is a Bribe: American and Korean Law Compared

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It is the rare businessperson or lobbyist who takes a politician or bureaucrat they barely know to lunch just for the pleasure of their company.  Lunch-buyers may enjoy the food (particularly if the money comes out a corporate pocket) and not all politicians and bureaucrats are self-centered bores.  But face it: the main reason bureaucrats and politicians world-wide are wined and dined by people they hardly know is because they are in positions of power and the meal-buyers want to influence them — perhaps to persuade them to purchase the lunch-buyer’s product for their ministries, maybe to change their minds about pending legislation.  Yet as obvious as the reason for picking up a lunch the tab is, in the Republic of Korea, and many American jurisdictions as well, on its face the law provides that if lunch-buyers admit why they paid for lunch, they and their luncheon companion go to jail.

That despite these laws Seoul’s upscale restaurants and their counterparts in many American state capitols continue to do a brisk lunchtime business suggests many lunch-buying businesspersons and lobbyists and their government guests regularly deny the obvious.  It would be one thing if lawmakers had intended to turn this group into liars and hypocrites, but they did not.  It is instead an unintended consequence of laws actually meant to permit public servants to take lunch with those having business with them. Continue reading →

Guest Post: The U4 Proxy Challenge and the Search for New Corruption Indicators

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Osmund Grøholt, a research assistant at the Chr. Michelsen Institute and the U4 Anti-Corruption Resource Centre, contributes the following guest post:

One of the major challenges that the development community faces in promoting effective anticorruption reform efforts is the difficulty of measuring progress. This challenge has become all the more pressing in light of the explicit inclusion of anticorruption targets as part of the Sustainable Development Goals. Unfortunately, many of the most widely-used national-level corruption perception indexes, such as the Transparency International Corruption Perceptions Index and the Worldwide Governance Indicators control-of-corruption index, are not suitable proxies for measuring anticorruption reform effectiveness.

To help address this challenge, the U4 Anti-Corruption Resource Centre is announcing its second “Proxy Challenge Competition.” The Proxy Challenge Competition invites researchers and practitioners to submit proposals for indicators that can help show the direction of change and the progress of reform efforts, rather than measuring the quantity or volume of corruption per se. Ideally, the proxy indicators should be reliable, intuitive, accessible, and cost-effective.

The proposed proxies will be evaluated by a panel of experienced anticorruption practitioners and academics, and the individuals who submit the two best submissions will be invited to present their proposed proxies at a special session at the International Anti-Corruption Conference in Panama (Dec. 1st-4th, 2016), with travel, hotel, and conference registration expenses covered. In addition, the UK’s Department for International Development (DFID) will work with the proposal authors to test the relevance and the validity of the proposed indicators, including financial support for a policy paper on the proposed proxy indicators and, if appropriate, developing a plan for testing the proxy indicator for actual reporting in selected countries.

Proposals of no more than 700 words should be submitted to proxychallenge@u4.no by September 1st, 2016. The submissions should:

  • Clearly define the proposed proxy indicator, and explain why and how this indicator reflects changes in corrupt behavior;
  • Explain how the indicator can be combined with other indicators to obtain a better measurement of overall anticorruption progress, including how the proxy indicator would be useful for different agents (e.g., aid agencies, governments, civil society) for purposes of monitoring and reporting;
  • Comment on the strengths and weaknesses of the proxy indicator, including how they differ with shifting national contexts.
  • Present ideas for how to test the validity of the proxy indicator.

More information on the Proxy Challenge Competition, including a complete list of requirements, can be found here. Additional background reading, including material from the first Proxy Challenge Competition (held in 2013-2014) can be found here and here.

We look forward to your submissions!

Culture Matters: How Indonesia Should Account Culture to Eradicate Corruption

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Corruption in Indonesia is endemic, permeating all levels of society. As I argued in my last post, Indonesia’s culture of corruption is a result of the corruption of culture: Far too many people see corruption as unsolvable and even “normal,” even though they clearly realize its wrongfulness.

To date, Indonesia’s independent anticorruption agency, the KPK, has pursued a main strategy of prosecuting the “big fish”—the high-ranking officials (including numerous parliament members and powerful politicians) whose corrupt behavior has caused massive damage to the country. Laudable though the KPK’s bold enforcement efforts have been, eradicating corruption requires more than prosecutions. Rather, the KPK needs to complement its aggressive law enforcement with preventive measures designed to change Indonesia’s “culture of corruption” to a “culture of anticorruption.” There are several strategies the KPK could pursue to foster such cultural change:

Continue reading →

Guest Post: What the McDonnell Ruling Means for Future Corruption Prosecutions

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Ziran Zhang, an associate at Burnham & Gorokhov, PLLC, a Washington D.C. law firm, contributes the following guest post:

The Supreme Court’s decision last month in United States v. McDonnell has raised questions about the continued vitality of public corruption prosecutions in the United States. Some observers, including Professor Stephenson, pointed out that the decision itself was cast in narrow terms, and may not make a big difference to most public corruption cases.  I respectfully disagree: McDonnell created an important substantive rule of law that will have a lasting impact, and this impact is apparent when one applies McDonnell’s holding to another high-profile public corruption case—the prosecution of former New Jersey Senator Robert Menendez.

To prove a bribery offense, the government must show (among other things) that the public official promised an official act, defined further as a “decision or action” on a “question or matter” (or cause, proceeding, or suit). A “question or matter,” the McDonnell opinion holds, must be a “formal exercise of government power” that is “specific” and “concrete.” As for a “decision” or “action,” it can be direct (such as when an official issues an order or makes a decision) or indirect (such as when an official “exerts pressure” or “gives advice” to another official.) McDonnell left substantial uncertainty over what counts as “exerting pressure” or “giving advice.”  As Professor Stephenson’s post points out, pressure is inherent from any kind of contact between a subordinate and an official in high office, but in McDonnell the Supreme Court quite clearly rejected that view, indicating that something more is required.

So, how does the McDonnell holding affect the prosecution of Senator Menendez? The facts of the Menendez prosecution are remarkably similar to those of the McDonnell case. According to the indictment, Senator Menendez had a longstanding friendship with Dr. Salomon Melgen. Melgen gave Menendez gifts, such as free flights, luxury hotel stays, and money to various political campaigns benefiting Menendez; Menendez returned the favors in various ways: Continue reading →

A Tale of Two Regions: Anticorruption Trends in Southeast Asia and Latin America

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OK, “best of times” and “worst of times” would be a gross exaggeration. But still, when I consider recent developments in the fight against corruption in Latin American and Southeast Asia, it seems that these two regions are moving in quite different directions. And the directions are a bit surprising, at least to me.

If you’d asked me two years ago (say, in the summer of 2014) which of these two regions provoked more optimism, I would have said Southeast Asia. After all, Southeast Asia was home to two jurisdictions with “model” anticorruption agencies (ACAs)—Singapore and Hong Kong—and other countries in the regions, including Malaysia and especially Indonesia, had established their own ACAs, which had developed good reputations for independence and effectiveness. Thailand and the Philippines were more of a mixed bag, with revelations of severe high-level corruption scandals (the rice pledging fiasco in Thailand and the pork barrel scam in the Philippines), but there were signs of progress in both of those countries too. More controversially, in Thailand the 2014 military coup was welcomed by many in the anticorruption community, who thought that the military would clean up the systemic corruption associated with the populist administrations of Thaksin Shinawatra and his successor (and sister) Yingluck Shinawatra—and then turn power back over to the civilian government, as the military had done in the past. And in the Philippines, public outrage at the brazenness of the pork barrel scam, stoked by social media, and public support for the Philippines’ increasingly aggressive ACA (the Office of the Ombudsman), was cause for hope that public opinion was finally turning more decisively against the pervasive mix of patronage and corruption that had long afflicted Philippine democracy. True, the region was still home to some of the countries were corruption remained pervasive and signs of progress were scant (such as Vietnam, Laos, Cambodia, and Myanmar), but overall, the region-wide story seemed fairly positive—especially compared to Latin America where, aside from the usual bright spots (Chile, Uruguay, and to a somewhat lesser extent Costa Rica), there seemed to be precious little for anticorruption advocates to celebrate.

But now, in the summer of 2016, things look quite a bit different. In Southeast Asia, the optimism I felt two years ago has turned to worry bordering on despair, while in Latin America, things are actually starting to look up, at least in some countries. I don’t want to over-generalize: Every country’s situation is unique, and too complicated to reduce to a simple better/worse assessment. I’m also well aware that “regional trends” are often artificial constructs with limited usefulness for serious analysis. But still, I thought it might be worthwhile to step back and compare these two regions, and explain why I’m so depressed about Southeast Asia and so cautiously optimistic about Latin America at the moment.

I’ll start with the sources of my Southeast Asian pessimism, highlighting the jurisdictions that have me most worried: Continue reading →

The Culture of Corruption and the Corruption of Culture in Indonesia

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With over 300 ethnic groups scattered across more than 17,000 of its islands, Indonesia is justly proud of its extremely diverse cultural heritage. But Indonesia is certainly not proud of a different aspect of its culture: a ”culture of corruption” so pervasive that it is not merely associated with grand corruption in the central government, but also infects the daily lives of the citizens through petty corruption, as well as daily harassment by local officials and governmental departments.

When trying to diagnose the root cause of such pervasive corruption, a common knee-jerk response is to focus on the legal system and law enforcement institutions. Yet Indonesia seems to do fairly well on these dimensions: A well-regarded independent anticorruption agency, the KPK, in cooperation with the police and prosecution spearheads enforcement of a comprehensive Anticorruption Law that both considers domestic needs and incorporates principles enshrined in international materials such as the United Nations Convention Against Corruption. Still, corruption persists. Why?

To answer this question, one must look at not only the legal system, but also the society—the people whose conduct the laws are supposed to regulate. Such observation reveals that the “culture of corruption”— society’s permissive, tolerant, and even accepting attitude toward corruption – is perhaps the main culprit responsible for Indonesia’s incurable corruption.

Continue reading →

Fact-Checking the FCPA Scaremongers

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In my last post, I made a disparaging in-passing reference to assertions, by some critics of the US Foreign Corrupt Practices Act (FCPA), that companies could get in FCPA trouble if they do things like buy a foreign government official a cup of coffee, take her to a reasonably-priced business meal, cover her taxi fare, etc. In my view, that’s just wrong, both because the US government would not bring such a case, and because the FCPA wouldn’t cover such isolated, modest benefits. The reason, as the DOJ/SEC FCPA Resource Guide explains, is that such benefits, without more, would not be offered “corruptly”–that is, with the wrongful intent of inducing the official to misuse her official position). I described those who suggest that the FCPA would criminalize such minor benefits as “FCPA scaremongers.”

My use of that the term “scaremonger” seems to have touched a nerve with Professor Mike Koehler–the self-described “FCPA Professor”–who had this to say in his comment my earlier post:

Scaremongering? Recent FCPA enforcement action have included allegations about flowers, cigarettes, karaoke bars, and golf in the morning and beer drinking in the evening.

I responded by asking Professor Koehler to identify the most ridiculous example of an actual FCPA settlement in which a trivial benefit was the sole basis of the enforcement action, as opposed to a small part of a larger scheme to corrupt government officials into misusing their authority. Professor Koehler answered:

The following is a factual statement: recent FCPA enforcement action have included allegations about flowers, cigarettes, karaoke bars, and golf in the morning and beer drinking in the evening.

I take the position that the DOJ/SEC include such allegations in FCPA enforcement actions for a reason and not just to practice their typing skills.

I again asked for an example. Professor Koehler’s response was to send, not the name of any individual case, but rather the links to the DOJ and SEC sites with all enforcement documents, suggesting that I could go through them myself to find “numerous examples of inconsequential things of value” included in the government allegations. He also referred to “several speeches” by SEC enforcement chief Andrew Ceresney (I actually think it’s one speech, given by Mr. Ceresney in November 2015) that supposedly acknowledged the government’s sweeping view of FCPA-prohibited conduct.

Having tried unsuccessfully to get Professor Koehler to point me to a specific example, I did a bit of digging on my own to see if I could find out if it’s really true that the DOJ and/or SEC have brought FCPA enforcement actions in cases that involve nothing more than “flowers, cigarettes, karaoke bars, and golf in the morning and beer drinking in the evening.” What I found makes me even more confident that I was fully justified in my use of the term “FCPA Scaremongers,” with Professor Koehler as perhaps the FCPA Scaremonger-in-Chief. Here are the cases to which I’m fairly sure Professor Koehler was referring: Continue reading →