Is it Legal in the U.S. To Buy Delegate Votes at Party Nominating Conventions?

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As bizarre as the U.S. presidential campaign has been so far, it may get even more so this summer. There is a chance (although maybe not a probability) that the Republican Party will have its first contested convention since 1976. If no candidate has a majority of delegates on the first ballot, then many “bound delegates” can switch their vote to any candidate for the nomination (here is a brief primer on how a contested convention might work). If that happens, might some candidates (or, more likely, their surrogates) actually try to buy delegates’ votes—offering them cash or other crude material inducements in exchange for support? Donald Trump recently told a friend—apparently (and hopefully) in jest—he would “buy the delegates” if he did not obtain a majority in the primaries.

Such conduct would certainly be corrupt in the traditional sense. Believe it or not, however, such vote buying might not be against the law. Buying votes in a federal election is certainly illegal. But, as a recent Bloomberg article explained, “There is nothing in the [Republican National Committee]’s rules that prohibits delegates from cutting a deal for their votes, and lawyers say it is unlikely that federal anti-corruption laws would apply to convention horse-trading. (It is not clear that even explicitly selling one’s vote for cash would be illegal.)” Similarly, when respected former Republican National Committee counsel Ben Ginsberg was recently asked whether an unbound delegate to the convention could legally accept a suitcase full of cash in exchange for a vote for a candidate for the nomination, Ginsberg replied, “That is a great legal question that I’m not sure there’s an answer [to]. It’s not official [] action.” (Ginsberg did, however, emphasize that most lawyers “would not want to be defending somebody who just took a suitcase of cash for a vote at a convention.”)

So while outright vote buying at a contested convention is not exactly likely, it’s a serious enough concern to make it worthwhile to assess the risks, the current law that might apply, and the steps that Congress and the political parties can take to do something about this concern. Continue reading →

#Ley3de3 and the Power of Mexican Civil Society

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As I discussed in an earlier post, Mexico enacted a series of constitutional anticorruption reforms last spring. I praised those reforms for their comprehensiveness and their potential to resolve problems of corruption at the state and local levels. However, I also noted that they required secondary enabling laws to actually go into effect. Until recently, the likelihood of enacting those laws on time looked slim, as the late-May deadline approached with considerable foot-dragging by the legislature. But Mexican civil society has risen to the challenge in an exciting way. Thanks to a 2012 constitutional reform that allows citizens to introduce bills to the legislature with 120,000 signatures (or 1.3 percent the voter rolls), an anticorruption bill has now been delivered to and is being debated by the Mexican Senate.

Called Ley 3de3, the initiative is an extraordinary example of civic engagement. Leading civil society groups have spearheaded the campaign, and universities and even for-profit businesses have gotten involved (see here and here). When the law was first delivered to the Mexican Senate on March 17th, it had over 300,000 signatures. A second installment of almost 325,000 more signatures was delivered nineteen days later. The legislation works to fill a number of important holes in the Mexican anticorruption landscape. For example, it requires public servants to disclose their assets, private interests, and tax returns (the 3-out-of-3 which gives the law its title) and proposes protection for whistleblowers who report corruption. The law faces a number of obstacles before it is passed, and other laws will be necessary to fully enact the National Anticorruption System promised by the constitutional reforms. However, the Ley 3de3 effort should be cause for, at least tempered, optimism. Continue reading →

Guest Post: Curbing Judicial Corruption To Make “Justice For All” a Reality

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Elodie Beth, Asia-Pacific Regional Anti-Corruption Advisor for the United Nations Development Programme (UNDP), submits the following guest post:

Judicial corruption is a serious problem, one that threatens further progress on a range of other good governance and institution-building initiatives. According to Transparency International’s 2013 Global Corruption Barometer, citizens around the world perceive the judiciary as the second-most corruption-prone sector (after the police). That depressing figure is a worldwide average; in some countries, the situation is even worse. For example, a recent study by the International Bar Association in Cambodia (discussed at greater length here) reported that Cambodian lawyers estimated that bribes are paid to judges or clerks in 90% of cases. Some renowned judges and legal experts have taken the matter in their own hands at the international level by creating the Judicial Integrity Group and developing the Bangalore Principles of Judicial Conduct. However, the implementation of the Principles remains a major challenge in many countries.

One way to help fight corruption in the judiciary would be to incorporate anticorruption more explicitly and comprehensively into judicial capacity assessments. Many development partners have already created tools and methods to assess the judiciary, but with a few exceptions, these evaluation tools rarely focus on corruption. Moreover, these judicial assessments tend to be externally driven, meaning that their recommendations often do not generate a sense of ownership on the part of the judiciary being evaluated, and there is therefore often too little follow-up.

So what more can we do? Fortunately, there are some lessons we can draw from UNDP’s capacity development work for other institutions and sectors, such as National Human Rights Institutions and anticorruption agencies, while keeping in mind some of the specific characteristics of the judiciary. UNDP’s recent report A Transparent and Accountable Judiciary To Deliver Justice for All, produced jointly with the U4 Anti-Corruption Resource Centre, illustrates how experiences from around the world can help promote judicial integrity. The report also suggests some general principles that could guide capacity assessments of the justice sector and follow-up implementation strategies: Continue reading →

Not the “Panama Papers” But the “BVI Papers” or Better Still the “EI” Papers

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The immense public service performed by the consortia of journalists who exposed the inner-workings of the Panamanian law firm Mossack Fonseca is plain to all.  The thousands of stories in multiple languages revealing how M/F works with law firms and banks around the globe to help individuals hide their wealth has provided law enforcement a cornucopia of leads — as the investigations launched in France, Switzerland, South Africa, Pakistan, the United Kingdom, El Salvador, Argentina, and India attest to.  Far more important than nailing a few tax cheats or crooked politicians, though, are the revelations showing how easily firms like M/F can dodge laws that supposedly bar them from helping individuals keep their wealth a secret and what changes are needed to end this legal dodge ball.

But there is a risk that, because the revelations have been dubbed the “Panama Papers,” reformers will be thrown off the scent.  Panama is a small part of the story at best.  The real problem lies in jurisdictions like the British Virgin Islands where, as an April 4 Guardian story shows, an obscure provision in its antimoney laundering law allows M/F and other firms like it to establish a BVI corporation without having to verify who the true, or beneficial, owner of the corporation will be.  This creates an opportunity to introduce a layer of secrecy between the owner and his or her money and law enforcement authorities.  A name better calculated to lead reformers in the right direction would have been the “BVI Papers” since most of the corporations M/F establishes for clients are created under the law of BVI.

An even better name still might be the “EI Papers” as it is the “EI” provision of BVI law that allows M/F to duck verifying the identity of the beneficial owners of the corporations it creates.  “EI” stands for “eligible introducer,” and the best way to see how the EI provision in BVI law makes hiding money so easy is through an example.  Suppose, just for the sake of illustration, Russian President Vladimir Putin was about to come into a large amount of rubles that he would rather Russian citizens and his critics abroad not know about.  How would the EI provision in BVI law help him keep his wealth secret? Continue reading →

Against Global Standards in Corporate Settlements in Transnational Anti-Bribery Cases

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A couple weeks ago, Susan Hawley, the policy director of the UK-based NGO Corruption Watch, published a provocative post on this blog calling for the adoption of “global standards for corporate settlements in foreign bribery cases.” Her post, which drew on a recent Corruption Watch report on the use (and alleged abuse) of the practice of resolving foreign bribery enforcement actions through pre-indictment diversionary settlements—mainly deferred-prosecution and non-prosecution agreements (DPAs/NPAs)—echoed similar arguments advanced in a joint letter sent by Corruption Watch, Transparency International, Global Witness, and the UNCAC Coalition to the OECD, on the occasion of last month’s Ministerial meeting on the OECD Anti-Bribery Convention.

A central concern articulated in Ms. Hawley’s post, as well as the CW report and the joint letter, is the fear that corporate settlements too often let companies off too easily–and let responsible individuals off altogether–thus undermining the deterrent effect of the laws against transnational bribery. I’m sympathetic to the concern about inadequate deterrence, but unconvinced by the suggestion that over-reliance on DPAs/NPAs is the real problem. (Indeed, I tend to think that under-use of these mechanisms in other countries, such as France, is a far greater concern.) My last post took up that set of issues. But, as I noted there, the question whether the U.S. use of settlements is (roughly) appropriate is conceptually distinct from the question whether there ought to be global standards (or guidelines) on the use of such settlements. After all, while one could object to U.S. practices and call for (different) global guidelines—as Corruption Watch does—one could also object to U.S. practices but still resist attempts to develop global guidelines. Or one could not only endorse current U.S. practices, but also call for global guidelines that similarly endorse those practices. And then there’s my position: basically sympathetic to the general U.S. approach to corporate settlements in FCPA cases, and generally skeptical of the case for global guidelines.

Having spent my last post elaborating some of the reasons for my former instinct, let me now say a bit about the reasons I’m unconvinced by the call for global guidelines on corporate settlements (or at least why I think such calls are premature): Continue reading →

Violence Is Not the Answer: The Case Against Rodrigo Duterte

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The life of Rodrigo Duterte, mayor of Davao City in the southern Philippines, reads more like that of a mob boss than a mayor. The National Bureau of Investigation (NBI) has investigated Duterte for his alleged links to a vigilante group called the Davao Death Squad (ties he later admitted), as well as threats made to kill village chiefs who did not support his government programs. He has expressed his support for extrajudicial killings as a means to fight corruption and crime. And in case you don’t think he’s serious, suspects have turned up dead after Duterte issued an ultimatum to all drug dealers to either leave his city within 48 hours or be killed. The man is rumored to have pushed a drug dealer out of a moving helicopter, and has openly stated that he would like to kill all criminals himself and throw them into Manila Bay. The most terrifying thing about him? He’s running for President, and he’s winning.

Duterte’s success can be explained by a number of factors, but one of the most troubling reasons for his popularity is that Filipinos have become so disillusioned by corruption in politics that they’ve become attracted to dangerous, zero tolerance policies. Duterte has stated that he would like to bring back the death penalty for the crime of plunder, and while he back-pedaled on his support for extrajudicial killings in the last presidential debate, Duterte still admits to having killed in the past, with a new ominous and unclear caveat: “It’s always bloody, but I never said extrajudicial.”

The popularity of these extreme policies reflects how frustrated citizens are with corruption in the Philippines. Corruption is incredibly widespread, and plagues the country’s politics, courts, and police forces at the local and national levels. Many voters view Duterte’s approach as necessary to combat this immense problem, which persists despite years of promises from many so-called anticorruption candidates.

While I understand this frustration with Philippine corruption, Duterte’s zero-tolerance approach is short-sighted, misguided, and incredibly dangerous. As voters prepare for the election next month, they should consider the troubling implications of Duterte’s violent approach to the fight against corruption.

Continue reading →

The Case for Including Sextortion Measures in TI’s CPI

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In a recent post, I called for the creation of an international index of sexual corruption. While I believe that such an index will have an effect standing alone, I also believe that such an index, once created, should be included as one of the sources used to construct composite indexes such as Transparency International’s Corruption Perceptions Index (CPI). As most GAB readers are likely aware, the CPI is does not reflect TI’s own independent assessment of corruption perception, but rather aggregates corruption perception measures from a range of other sources. These other sources, however, all measure perceptions of monetary corruption, such as bribery and embezzlement. But, as TI itself acknowledges, sexual corruption may not correlate well with other forms of corruption, meaning that an index like the CPI may give us an incomplete and misleading picture.

The exclusion of sexual corruption is not TI’s fault; there are currently no global comparative measures of perceptions of sexual corruption for TI to incorporate. Indeed, this gap is precisely why I advocate the creation of an international sexual corruption perceptions index. Of course, even if such an index is created, it would be a separate question whether the results ought to be included in the CPI. I believe it should be.

Continue reading →

Guest Post: The British Academy/DFID Anti-Corruption Evidence Programme

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Paul M. Heywood, the Sir Francis Hill Professor of European Politics at the University of Nottingman, contributes the following guest post:

In a recent post, Matthew recommended a speech by Robert Barrington, Executive Director of Transparency International UK, on the relationship between academics and advocates in the fight against corruption. I was very pleased to read the post, as Robert had given the speech at my invitation during the inaugural meeting of research projects funded under an exciting new initiative being jointly run by the British Academy and the Department for International Development (DFID). The Anti-Corruption Evidence (ACE) Programme, which I serve in the capacity of Academic Leader, is designed explicitly to address the interface between researchers and practitioners, with a fundamental focus on what actually works when it comes to fighting corruption.

Prompted in part by a highly critical report of DFID’s anticorruption approach by the Independent Commission for Aid Impact (ICAI) – itself reproached for poor use of evidence (including on this blog) – and in part by its own commissioned evidence papers into corruption (here and here), DFID has partnered with the British Academy to launch a £3.6m programme aimed at helping us understand better exactly how and why specific interventions succeed or fail in particular contexts. Some may wonder why we need yet more research on corruption; indeed, that is precisely the question I was recently asked by Jeremy Lefroy MP when giving evidence to the House of Commons Select Committee on International Development inquiry into tackling corruption overseas: “I would have thought there was plenty of evidence around. In what way do you think the evidence base needs to be strengthened, or is this just creating extra work for people who look at these things?”

The question is a reasonable one, especially given the exponential rise in the number of books and articles on corruption published over the last quarter century (as reflected in Matthew’s ever-expanding bibliography on the topic). There are many answers that could be given, but one key factor is that much of the existing research on corruption has simply been too generic to produce specific recommendations on which policymakers can act. Although it is widely recognized that corruption is not just one thing, such recognition has often not been translated into research design. Notably, many large-n studies have used an undifferentiated concept of corruption to serve as either a dependent or independent variable, seeking to explain a host of specific failings across a very wide canvas. Where there have been attempts to disaggregate corruption, these have often proposed bipartite, rather than graded, classifications (grand/petty, political/bureaucratic, need/greed, and so forth). In practice, corruption is a much more complex phenomenon than such dichotomous approaches can conceivably capture. Four observations follow from this: Continue reading →

Five Things Washington Should Do to Help Latin America Curb Corruption

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The following is based on a March 24 talk I gave at the Washington office of the Council on Foreign Relations.  It is posted in a slightly different form on “Latin America’s Moment,” the Council’s blog on Latin America.

One of the most promising developments in U.S. foreign relations is the all out war on corruption being waged across Latin America.  From “Operation Car Wash” in Brazil to investigations of presidential wrongdoing in Bolivia, El Salvador, Honduras, Guatemala, and Panama, across the region independent, tenacious prosecutors and investigators are out to end the massive theft of state resources that for so long has hobbled political development and throttled economic growth.  Americans should be cheering for these corruption warriors, for we have much to gain if they succeed.  Less corruption translates into more stable, reliable political allies; it means faster, more equitable growth and that means shared prosperity and less northward migration.  Finally, less corruption in government will offer American firms new opportunities. Think what the end of corruption in Brazilian public works would mean for U.S. engineering and construction companies.

But given the stakes in Latin America’s corruption war, America should be doing more than cheering from the sidelines.  It should be doing everything it can – without infringing the sovereignty or sensibilities of Latin neighbors – to see its corruption warriors succeed.  Here are five things to start with: Continue reading →

The Case for Corporate Settlements in Foreign Bribery Cases

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Although 41 countries have signed onto the OECD Anti-Bribery Convention, the United States remains the most active enforcer—by a lot. Two salient facts about the U.S. strategy for enforcing its Foreign Corrupt Practices Act (FCPA) are often noted: Sanctions against corporations are more common than cases targeting individuals, and most of these corporate cases are resolved by settlements—often pre-indictment diversionary agreements known as deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs). Both of these facts are sometimes exaggerated a bit: According to the OECD’s most recent composite data (for enforcement actions from 1999-2014), the U.S. imposed sanctions on 58 individuals (compared to 92 corporations or other legal persons), and of those 92 legal persons sanctioned, 57 reached a settlement via a DPA or NPA (meaning that 35 of them were sanctioned through a post-indictment plea agreement or—much more rarely—a trial). Still, it’s true that the U.S. enforcement strategy makes extensive use of pre-indictment settlements with corporate defendants, and that fact has attracted its share of criticism.

While most of that criticism (at least in the FCPA context) has come from the corporate defense bar and others opposed to aggressive FCPA enforcement, the use of DPAs/NPAs has been questioned by anticorruption advocates as well. Recently, the UK-based anticorruption NGO Corruption Watch (CW) published a report entitled “Out of Court, Out of Mind: Do Deferred Prosecution Agreements and Corporate Settlements Fail To Deter Overseas Corruption”; shortly thereafter, CW, along with several other leading NGOs (Global Witness, Transparency International, and the UNCAC Coalition) sent a letter to the OECD expressing “concern that the increasing use of corporate settlements in the way they are currently implemented as the primary means for resolving foreign bribery cases may not offer ‘effective, proportionate and disuasive’ sanctions as required under the Convention,” and “urg[ing] the OECD Working Group on Bribery to develop as a matter of priority global standards for corporate settlements based on best practice.” Last week, here on GAB, CW’s policy director Susan Hawley provide a succinct summary of the case for greater skepticism of the practice of resolving foreign bribery cases through DPAs/NPAs, and the need for some sort of global standard.

I disagree. While I have the utmost respect for Corruption Watch and the other NGOs that sent the joint letter to the OECD, and I sympathize with many of their concerns, I find most of the criticisms of the DPA/NPA mechanism, particularly as deployed by U.S. authorities in FCPA cases, wide of the mark. I also remain unconvinced that there is a pressing need for “global standards” for corporate settlement practices, and indeed I think that pushing for such standards may raise a host of problems. These issues—whether DPAs/NPAs are sufficiently effective sanctions, and whether we need common global standards regulating their use—are quite different, so I will address them separately. In this post, I will respond to the main criticisms of the U.S. practice of using DPAs/NPAs to resolve FCPA cases, focusing on the concerns emphasized in the CW report. In my next post, I will turn to the question whether the OECD, the UN Convention Against Corruption, or some other international agreement or body ought to try to establish global standards regulating the use of corporate settlements.

So, what’s wrong with the analysis in the CW critique of corporate settlements? Lots of things—so many that it’s hard to know where to begin. But before turning to my criticisms, it’s worth starting out by re-stating some of the main reasons why it might make sense to resolve some anti-bribery cases via corporate settlements: Continue reading →