Even “Tough on Corruption” Proponents Should Worry about “Zero Tolerance” Rules

“Zero tolerance for corruption,” as Professor Stephenson suggested in a 2014 post, is an expression that can be construed in several different ways: from a general attitude that corruption should be considered “a high priority,” to an uncompromising policy mandating that “all feasible measures to minimize corruption must always be used.” In this post I will discuss another common, narrower understanding of “zero tolerance for corruption,” according to which corruption – at least in certain contexts – must always be addressed with a mandatory predetermined harsh sanction. A clear example of such a “zero tolerance” rule is the Colombian and Peruvian law demanding the instant termination of “any public contract tainted by corruption.” Another illustrative example is the EU’s directive mandating debarment from public contracting of any company convicted of offenses of corruption, fraud, or money laundering.

Granted, the potential deterrent value of mandatory harsh sanctions for corruption is substantial. A company aware that any conviction for corruption will inevitably incur severe penalties is more likely to be dissuaded from violating the law. Nevertheless, the costs of this “take no prisoners” approach to anticorruption may be much higher than the actual benefit. Thus, as Rick Messick recently showed, the law mandating termination of corruption-tainted public contracts has proven to have disastrous ramifications for the infrastructure in Peru and Colombia. As it turns out, not only has the nondiscretionary cancellation of corruption-tainted public contracts halted the advancement of existing infrastructure projects, but it has also deterred investors and developers from taking any part in such projects, for fear that they will be cancelled due to “the tiniest of infractions by anyone associated with the project.” Similarly, debarment is nothing less than “a death-sentence” for companies whose main business involves public contracts, and its mandatory imposition for even a relatively minor offense may be so draconian as to be counterproductive.

This kind of cost-benefit reasoning, though compelling to some, would not convince many proponents of an unequivocally “tough on corruption” stance. Many anticorruption hardliners believe in maximizing deterrence notwithstanding any associated costs. From this point of view, the end of deterring corruption justifies all necessary means. Yet even for those who take this view, it turns out that “zero tolerance” may not be the ideal approach. Supporters of “zero tolerance” rules assume that adoption of mandatory sanctions for corruption would guarantee that actors in the anticorruption system – judges, prosecutors, and legislators – will adhere to the “zero tolerance” ideal, and that such rules would be sustainable. But these decisionmakers in the anticorruption system may evade the application of “zero tolerance” rules where doing so would lead to sanctions perceived (rightly or wrongly) as patently absurd or unjust. In other words, a “zero tolerance” rule on the books does not guarantee that a “zero tolerance” policy would actually be implemented. Consider the various ways that actors in the anticorruption system may avoid triggering the mandatory sanctions for corruption:

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Reflections on the Recent Dismissal of One of the Emoluments Clause Suits Against Donald Trump

One of the issues we’ve been following (on and off) over the last couple of years concerns the lawsuits (three in total) that various plaintiffs have brought against President Trump for alleged violation of the U.S. Constitutions “Emoluments Clauses” (see here, here, here, here, and here). In brief, Article I, Section 9 prohibits officers of the United States from accepting “any present, Emolument, Office or Title, of any kind whatever, from any … foreign state” unless Congress consents, while Article II, Section 1 prohibits the President specifically from receiving (during his or her term in office) “any other Emolument [other than the President’s official salary] from the United States, or any of them.” Critics of President Trump have argued that, because President Trump has not fully divested himself from his various businesses, and foreign governments have purchased goods and services from those businesses (or granted them other advantages, such as regulatory approvals or tax breaks), President Trump is in violation of the Foreign Emoluments Clause. Similar sorts of transactions between state governments and Trump-owned businesses give rise to alleged violations of the Domestic Emoluments Clause. And these various lawsuits have sought a judicial remedy for these alleged violations—presumably an injunction requiring either divestment, or else a transfer of any proceeds or profits from prohibited transactions to the U.S. Treasury or some third party (though the plaintiffs in these suits have been a bit vague on exactly what sort of relief they’re seeking).

A potential hurdle for these suits, though, is whether these plaintiffs are allowed to bring them in the first place—a question independent of, and prior to, the merits of their claims. Under U.S. law, a plaintiff bringing a challenge in federal court must have “standing” to bring the claim, a requirement that has been interpreted (pursuant to an aggressive extrapolation from Article III of the Constitution) to require the plaintiff to demonstrate that the defendant’s unlawful conduct causes the plaintiff a direct, concrete injury that is fairly traceable to the defendant’s conduct and that could be remedied by a court order. In addition to this standing requirement, the plaintiffs must also show that they have a valid “cause of action”—in other words (and simplifying the legal complexities a bit) they must show that the legal provision under which they’re suing (here the Constitution’s Emoluments Clauses) allow plaintiffs like them to sue to enforce those legal requirements. This in turn typically requires the plaintiffs to show that they have at least a colorable argument that their interests fall within the “zone of interests” protected by the law in question. Even some people (me included) who were sympathetic to the merits of the plaintiffs’ claims worried that, under existing doctrine, the plaintiffs in these cases might lose on standing and/or cause-of-action grounds, especially because federal courts might be anxious to make these cases go away without having to reach the merits.

Three weeks ago, the U.S. Court of Appeals dealt a serious blow to one of these Emoluments Clause cases, ruling that the plaintiffs (Washington D.C. and the state of Maryland) lacked standing to bring the case. In doing so, the appeals court reversed—and chastised—a district court judge who had concluded the plaintiffs had standing, and who later rejected the defendant’s other arguments for dismissing the suit before discovery could proceed. It’s taken me a while to read the opinion carefully, but now that I have, I figured it might make sense to offer some quick reactions. (The delay means that this can’t count as a “hot take.” Perhaps we can call it a “lukewarm take”?)

My main reactions—what the kids today would call the “TL;DR” version—are as follows: (1) The appeals court’s standing ruling is badly flawed as a matter of law. (2) That doesn’t mean the suit should have been allowed to proceed, because there are other preliminary barriers that might have been harder to overcome. (3) Despite the serious legal flaws in the Court of Appeals’ ruling, I think it significantly reduces the odds that these cases might proceed to discovery and trial, notwithstanding the fact that the litigation isn’t technically over. (4) The political consequences of the dismissal, though not great, are likely not as significant as people like me had worried, but nonetheless this case is a troubling and unnecessary abdication of a potentially important judicial check on (unconstitutionally) corrupt behavior. Let me elaborate each of these points: Continue reading

Should a Kleptocrat Be Able to Bribe Her Way Out of Trouble?

Gulnara Karimova parlayed her position as daughter of Uzbekistan’s first post-Soviet ruler into an international symbol of kleptocracy.  Reviled at home and abroad for vulgar excess, after her father’s death she was sentenced to a long prison term following a sham trial.  But most of the billion or so dollars she stole remains beyond the Uzbek government’s reach, tied up in complex litigation principally in Switzerland.

Now, as she recently revealed, she is in negotiations to hand back most of what she stole – in return for her release from one of Uzbekistan’s notorious prison colonies and the right to hang onto to perhaps as much as a hundred million for herself and the lawyers and fixers negotiating the deal. Uzbek citizens and activists are in arms over this blatant attempt by a posterchild for kleptocracy to bribe her way out of prison.  In an open letter, civil society activists call on the Swiss government, which would have to accede to this unseemly bargain, to repudiate it. They ask too that other government with claims over some of the assets, and thus possibly some say over the deal, to help kill it.

Allowing a kleptocrat to bribe her way out of jail sets a terrible precedent. Is it one the international community wants to see set?  Do Swiss citizens really want their government to be the one setting it? Why is the Swiss government in such a hurry to return dirty money to the Uzbek government?  Particularly in the face of opposition from representatives of the real victims of Karimova’s crimes, the citizens of Uzbekistan.

In their letter, the activists outline an alternative to a hasty return, one that would see Karimova held accountable in a real trial for her crimes and the stolen assets returned in ways that would advance the welfare of all Uzbeks. The English version of the letter here, the Russian one here, and the French one here.

Anticorruption Bibliography–July 2019 Update

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.

Fighting Healthcare Corruption with Smiles and Stickers

Compared to other EU countries, petty bribery in Lithuanian healthcare is quite common (see here and here). Though extortion seems rare, Lithuanians frequently make informal (and illegal) payments to doctors either to get better/faster treatment or as an expression of gratitude. When describing this practice, Lithuanians use the language of “giving a gift” or “giving a little envelope,” euphemisms that imply that these payments have come to be perceived as acceptable expressions of gratitude rather than bribes, despite the fact that the Criminal Code prohibits bribery and the Civil Code prohibits giving doctors any sort of gifts outside their private lives. Though formally bribery, giving money to a doctor in Lithuania seems to have developed a different social meaning—rather than implying that you are a dishonest or corrupt person, giving extra money to your doctor has come to be understood as something that reasonable people do in recognition that doctors work hard, are underpaid, and deserve gratitude. Offering gifts or money to a doctor has also become a way to express how much you care about the health of your loved ones who are unwell. So, in Lithuania, the practice of making illegal payments to doctors seems to have become a “social norm” – a shared understanding that such behavior is permitted or even obligatory. It has become a norm both in the descriptive sense (people make these payments because they think that everyone else does so) and in the injunctive sense (making an extra payment to your doctor is an appropriate expression of gratitude). That doesn’t mean it’s good, or something we should ignore or tolerate. But it’s something we need to take into account when thinking about how to combat this form of corruption.

Once we recognize that petty bribery has become a social norm, we should ask what tools could be used to disrupt that norm. Because the problem is so extensive and multifaceted, many of the solutions will require significant institutional reforms, changes in management style, budget reallocations, and the like. Without minimizing the importance of those more fundamental changes, it’s also possible that seemingly small, inexpensive, and non-coercive interventions might help disrupt this dysfunctional social norm. Back in 2011, when I was working for Transparency International Lithuania (TI Lithuania), we piloted one such initiative in collaboration with the Lithuanian Medical Students Association. Our objective was to disrupt social norms surrounding informal healthcare payments—not through loud or aggressive actions, but with stickers and smiles. Continue reading

I Caught the Sheriff: Why U.S. Anticorruption Officials Should Keep an Eye on Sheriffs

An unusual feature of US law enforcement is the important role of the county sheriff. As of 2013, over 3,000 sheriffs’ offices across 47 U.S. states employed 352,000 people—roughly one-third of the country’s law enforcement personnel. The sheriff’s job varies from state-to-state, but the common denominator is responsibility over county corrections, including the operation of jails and transportation of inmates to and from court. In some states—Massachusetts, for instance—that’s essentially the extent of sheriffs’ duties. In other states, though, sheriffs wield much broader authority. Texas sheriffs, for example, can enforce the state’s criminal laws anywhere in their county, even where municipal police departments have jurisdiction. Most states are somewhere in the middle, tasking sheriffs with general law enforcement duties only in unincorporated parts of the county and sometimes with security for state government buildings, in addition to their correctional responsibilities.

Despite the variety of roles played by sheriffs, many commentators view sheriffs as merely another kind of police. After all, they wear badges, can legally use force, and, in many parts of the country, patrol the beat. But sheriffs are distinct from their police counterparts in significant respects. Most notably, whereas police chiefs are appointed by city officials, sheriffs are popularly elected by the county they serve. And, unlike police departments, which are creatures of state statute, the responsibilities of a county sheriff are often rooted in the state constitution.

These differences render sheriffs more susceptible than police to corruption for three reasons:

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New South Wales Anticorruption Commission’s Excellent Guide to Conflict of Interest

Conflict of interest is a critical element of any government ethics program.  It is also perhaps the most difficult to implement.  The challenge comes in determining when friendships, kinship ties, and other personal relationships affect, or appear to affect, a government employee’s duty to put the interest of the public above his personal interest.  Was the contract awarded because the bidder lived in the same neighborhood as the procurement official making the award or because the bidder offered the best value? Was the individual hired because the hiring manager came from the same tribe or because she was the most qualified? Even if there were no actual conflict in the two cases, is there an appearance of one?

Rules that produce sensible answers to such questions are not easy to write, and as I have suggested in earlier posts (here and here), much well-meaning advice on how to do so is either counterproductive or impossible to implement.  A recent publication by the New South Wales Independent Commission Against Corruption is thus a welcome addition to the literature. In 26 clear and crisply written pages, Managing Conflicts of Interest in the NSW Public Sector provides a road-map for writing and enforcing practical, workable conflict of interest rules.

It offers a short, easily understandable definition of conflict of interest followed by a commonsensical approach to applying it.  The touchstone for determining when there is a conflict or an appearance of a conflict” is not the disappointed bidder or applicant or the government’s political opposition.  It is instead a “fair-minded and informed observer,” otherwise known as “a reasonable person.”  How to apply the reasonable person standard and the other standards and rules that make for a sound conflict of interest regime is illustrated throughout with real-world examples.

Written for agencies of Australia’s most populous state, a much broader audience will find the guide a valuable resource.