Anticorruption Bibliography–May 2022 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. Additionally, the bibliography is available in more user-friendly, searchable form at Global Integrity’s Anti-Corruption Corpus website. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

The Coal Industry Has No “Final Villain”

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“Manchin’s coal corruption is so much worse than you knew.” So proclaimed the headline of a Rolling Stone article this past January, referring to West Virginia Senator Joe Manchin. In March, the New York Times published a similar article. “At every step of his political career,” the Times reported, “Joe Manchin helped a West Virginia power plant that is the sole customer of his private coal business.” Salon, just a few days later, followed suit, describing Machin’s ties to the coal industry as a “stunning portrait of political corruption.” (See also here, here, here, and here). These stories, understandably, focus on Machin himself—the Rolling Stone article even calls him “the final villain” in the story of corruption it unfolds. And Manchin’s conduct is indeed outrageous: First as Governor and then as a Senator, Manchin lined his pockets off of personal stakes in the coal industry—an industry he used his political power to prop up at every turn—in spite of pollution, climate change, inefficiency, and high costs to his constituents.

Yet the journalistic outrage over Manchin’s unethical (albeit not illegal) behavior may be distracting from the real issue, if not outright misdiagnosing it. Corruption in the coal industry is not the result of individual unscrupulous politicians. The problem is coal itself.

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Civil Non-Prosecution Agreements: A Promising New Tool for Advancing Brazil’s Anticorruption Agenda

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In late 2019, the Brazilian Congress passed an “anti-crime package” which included, among other things, an amendment to the Administrative Improbity Act that authorized a new form of “civil non-prosecution agreement” (known by its Portuguese initials, ANPC). Under an ANPC, prosecutors can reach civil agreements with individuals who voluntarily disclose their corrupt acts, thus avoiding the usual judicial proceedings for determining penalties under the Improbity Law. (To be clear, ANPCs are used to resolve civil matters and impose administrative sanctions, rather than to resolve criminal cases.) More recent amendments to the Improbity Act have strengthened this mechanism by giving prosecutors greater discretion to reach settlements with individuals accused of improbity.

This reform is a major change to the traditional Brazilian approach to administrative sanctions, which historically bars the settlement of any case involving corruption or improbity. That said, Brazil has already expanded the use of settlement agreements in other contexts. For example, in the context of enforcing criminal laws against corporations, the 2014 Clean Company Act (CCA) authorized so-called “leniency agreements,” under which prosecutors may offer to lower penalties to companies that self-disclosure wrongdoing and cooperate with the investigation. The ANPC mechanism is similar but different in a couple of important respects. First, the ANPC applies to individuals rather than firms. Second, while the CCA authorizes leniency agreements only in cases where the company discloses information about other unlawful activities and thus helps the investigation, an ANPC may be issued as long as the individual agrees to reform her own conduct, even if she does not provide additional information that is useful in ongoing investigations. On the other hand, similarly to leniency agreements, the enforcement authorities need not seek judicial approval to resolve a case via ANPC, so long as the agreement is reached before the beginning of a judicial proceeding. (If a formal proceeding has already begun, then the judge would still need to sign off on the termination of that proceeding.)

Although ANPCs have yet to be used on large scale, this tool holds great promise for substantially improving Brazil’s effective enforcement of its anticorruption laws, for several reasons:

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New Podcast Episode, Featuring Frederik Obermaier

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, we are pleased to welcome back to the podcast the Pulitzer Prize-winning investigative journalist Frederik Obermaier of the German publication Süddeutsche Zeitung, who is also affiliated with the International Consortium of Investigative Journalists. We’ve been fortunate enough to have Mr. Obermaier on the podcast twice before, first in 2019 to discuss the Panama Papers, and then in 2020 to discuss the FinCEN Files. In this week’s episode, my ICRN colleague Christopher Starke talks with Mr. Obermaier about the work he and has collaborators have done on a set of stories based on another major leak, the so-called Suisse Secrets documents–files on thousands of customers of the Swiss Bank Credit Suisse, leaked by an anonymous source, which revealed that many Credit Suisse companies were extremely suspicious figures, including numerous corrupt politicians, as well as other organized crime figures and human rights abusers. The conversation highlights the systemic problems that continue to persist in the Swiss banking system, and more broadly. You can also find both this episode and an archive of prior episodes at the following locations: KickBack is a collaborative effort between GAB and the Interdisciplinary Corruption Research Network (ICRN). If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.  

Guest Post: Do Governments Have a Clue About the Money Laundering Risks They Face? UPDATE

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UPDATE: the World Bank hosts a discussion on the report that is the subject of this post May 30, 12:00 noon EDT. Link to register here.

Today’s guest post summarizes an April World Bank study of money laundering risk assessments. The first step in preventing money laundering is identifying where it occurs and how likely it is to occur. In short, the risks of money laundering. The Bank study evaluated risk assessments eight governments had conducted in accordance with the methodology prescribed by the Financial Action Task Force. For reasons that will become plain, the post’s author has chosen to remain anonymous.

The title from a new World Bank report on money laundering risks could scarcely be blander: National Assessments of Money Laundering Risks: Learning from Eight Advanced Countries’ NRAs.  The content is anything but. Authored by Joras Ferwerda of Utrecht University and Peter Reuter of the University of Maryland, the report concludes that not a one of the eight money laundering risk assessments examined, all done as the report’s title advertises by “advanced” countries, is worth a damn. Not a one merits a passing grade from the two professors, both highly regarded money laundering experts. What’s worse, despite close to a decade of experience doing such assessments, the two find that no government seems to have learned a thing from the mistakes of others.

This raises a fundamental question about the existing AML regime. How can it be effective if national authorities lack an understanding of the money laundering risks their countries face?

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How To Improve Whistleblower Protection in Malaysia

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Malaysia’s poor reputation on corruption took a serious hit with the 2015 scandal concerning the 1Malaysia Development Board (1MDB), and things have not improved much since then. If the Malaysian government is serious about cleaning up the country, and improving its international reputation, it needs to do more than just hold accountable those responsible for 1MDB and other scandals. Looking forward, Malaysia must also improve its legal framework for the detection and prevention of corruption. In this regard, as leading anticorruption advocacy organizations have emphasized, stronger whistleblower protection is essential. Most forms of corruption are hard for outsiders to detect, and those with first-hand knowledge of possible wrongdoing will be reluctant to report what they know unless they have, at a bare minimum, sufficient protections against retaliation.

Malaysia does already have a dedicated whistleblower statute, the Whistleblower Protection Act 2010 (WPA2010). But while the existence of this law is a good first step, its provisions are not satisfactory. Even the government has acknowledged this: Noting the gaps and weakness of the current statute, the Minister for Parliament and Law recently placed the question of amending the WPA2010 on Parliament’s agenda. As Parliament takes up this vital question, the following improvements to the law should be high priorities:

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The Future of FCPA Enforcement After KT Corp.

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Earlier this year, the US Securities and Exchange Commission (SEC) settled a Foreign Corrupt Practices Act (FCPA) case with KT Corporation, the largest telecommunications operator in South Korea. The facts of the case, as described in the settlement documents, are cinematically scandalous: From at least 2009 through 2017, high level executives at KT maintained enormous slush funds in off-the-books accounts and physical stashes of cash, from which they made illegal political contributions and paid off government officials in both Korea and Vietnam. In their home country, they frequently used these slush funds to pay for substantial unreported gifts, entertainment, and campaign donations to members of the Korean National Assembly who were serving on committees that addressed issues of public policy directly related to KT’s business. Furthermore, after the South Korean press reported on the slush fund allegations back in 2013—reporting that led to a Korean criminal prosecution of KT’s president for embezzlement—the company simply shifted its tactics for filling its slush funds: Rather than siphoning off inflated executive bonuses, KT had its Corporate Relations (CR) Group purchase gift cards, which were then converted into cash to replenish the slush funds. In genuine “cloak and dagger” style, a member of the CR Group would meet the corrupt gift card vendor in the parking lot behind the KT building and receive a paper bag containing a large envelope of cash.

In a magnificent understatement, the Chief of the SEC’s FCPA Enforcement Unit noted that KT “failed to implement sufficient internal accounting controls with respect to key aspects of its business operations,” and that in the future, the company’s leaders should “be sure to devote appropriate attention to meeting their obligations under the FCPA.” But this was not simply a case of a company failing to keep its financial records up to date. Rather, there was a complete and total collapse of any semblance of a culture of compliance at KT. The fact that executives at the highest levels of this corporation, including the president and the CR Group, were directly responsible for these bribery schemes indicates that the culture of this corporation was corrupt, thorough-and-through; bribery was an indispensable component of its business model, and continued even after the company’s president was prosecuted. Yet because KT cooperated with the SEC’s investigation, the SEC only required KT to pay a paltry $6.3 million in combined disgorgement and civil penalties; the SEC also put the company on a two-year probation, during which KT must update the SEC every six months on its compliance measures, though it is unclear what, if anything, will happen if KT somehow mishandles the recommended compliance improvements.

This outcome is unacceptable. If the U.S. government is serious about its intention to deter future misconduct, it must ensure that civil penalties for FCPA violations cannot simply be seen as an “acceptable cost of doing business.” Over the past few years, SEC and DOJ leadership have repeatedly emphasized the importance of anticorruption enforcement and have suggested a desire to reverse the trend of steadily declining FCPA enforcement actions. If deterrence of corrupt corporate conduct is truly a priority for the SEC and the DOJ, then now would be a good time to start substantially ramping up FCPA investigations and enforcement actions, especially in cases of companies like KT that have exhibited the incorrigible culture of brazen corruption.

There are two substantial objections to the call to ramp up FCPA enforcement actions against foreign companies and dramatically stiffen penalties for violations, but on closer inspection neither is compelling. Continue reading →

Guest Post: The Government Defence Integrity Index — Assessing Corruption in Defence

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Stephanie Trapnell, Senior Advisor on Defence and Security at Transparency International, and Matthew Steadman, Research Officer at Transparency International UK’s Defence and Security Programme, authored today’s post on the UK Programme’s Government Defence Integrity Index. The Index evaluates corruption risks across defence financing, operations, personnel, political, and procurement for 87 countries using data on 77 defence-related areas. (As the index was produced by TI Defence & Security, a program housed within the TI-UK chapter, the British spelling is followed throughout.)

Corruption in the defence sector poses grave risks for security in both national and international contexts. Transparency International’s flagship report for the Government Defence Integrity Index (GDI) shows 86% of global arms exports between 2016-2020 (worth US$1439.6 billion) originated from countries at a moderate to very high risk of corruption in their defence sectors. The top five exporters – the United States (overall score of 55/100), Russia (36/100), France (50/100), Germany (70/100) and China (28/100) – accounted for 76% of the global total. Meanwhile, 49% of global arms imports are arriving in counties facing a high to critical risk of defence corruption.

Although President Biden’s new anticorruption strategy outlines a “whole-of-government approach” to countering corruption, it stresses the importance of addressing corruption specifically in defence and security. Indeed, the strategy is a critical and welcome acknowledgment, by a global power and major provider of security assistance, that corruption plays a considerable role in destabilising democracy. In Strategic Objective 5.5, emphasis is placed on assessment of corruption risk, causes of corruption, and political will for reform. Specifically for the security sector, there is a call for greater transparency in military budgets, whistle-blower protections, and oversight.

Not only does corruption have a devastating impact on both the defence apparatus itself and on wider peace and security, it can undermine otherwise robust democracies, by serving as a type of statecraft for defence officials and military elites. Corruption undermines the efficiency of security forces, damages popular trust in state institutions, and feeds a sense of disillusionment, which threatens the social contract and the rule of law, and can empower non-state and extremist armed groups.

Given the distinct nature of governance in the defence sector, and the evolving understanding of how corruption operates, the question then turns to what can be done to counter or prevent corruption in a traditionally secretive yet critical sector like defence. The answer is not to measure corruption itself, which is inherently covert and difficult to capture, but instead to measure institutional resilience to it. The Government Defence Integrity Index (GDI) is the only tool that captures comprehensive information on the quality of institutional controls on corruption in the defence sector.

The GDI recognises that:

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Humanitarian Aid Corruption in Regime-Held Syria: How Should the International Donor Community Respond?

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In response to the humanitarian disaster caused by Syria’s ongoing civil war, international aid has poured into the country, to the tune of over $40 billion since 2011. Yet 14.6 million people (out of a total Syrian population of approximately 18 million) remain in need of some form of humanitarian assistance. One of the main reasons that so many people remain in need is the Assad regime’s systematic co-optation and corrupt diversion of international aid. The regime has required that foreign donors partner with one of two local Syrian organizations—the Syrian Arab Red Crescent (SARC) and Syria Trust for Development (founded and run by President Assad’s wife); these government-affiliated organizations can then deliver aid money “out of sight” of the international organizations that sent that money, thereby obstructing aid workers’ ability to ensure that aid is distributed based on need. The government also mandates that all international organizations in Damascus hire local personnel hand-selected by the regime who supervise all programming and select which beneficiaries receive aid. These tools enable the Assad regime to use aid for political purposes, and to corruptly divert tens of billions of aid to politically connected elites, many of whom are responsible for the human rights violations that made humanitarian aid necessary to begin with.

For those whose top priority is to help suffering Syrians, it may be tempting to ignore or downplay the corrupt diversion of humanitarian aid—to view it as the unpleasant but inevitable cost of doing relief work in a country ruled by a despot. But continuing with the status quo is not a viable option. Right now, the aid pouring into Syria is helping the regime much more than it is helping suffering civilians, and it would be irresponsible to ignore this fact. Does this mean the international community should simply suspend humanitarian aid to Syria altogether? That option is also unpalatable. For one thing, it would impose grave costs on Syrian civilians: Even if the regime steals or misdirects up to 90% of incoming humanitarian aid, the 10% that ordinary Syrian civilians currently receive is still better than nothing. Furthermore, a decision to halt aid completely could also send the message that the international community does not think helping Syrian civilians is worth the hassle.  

If neither continuing the current approach to delivering humanitarian aid nor suspending aid altogether is acceptable, what should the international donor community do? There is no good answer to this question, but as the humanitarian crisis in Syria shows no sign of abating, the international community must do what it can to find ways to get aid to the citizens who need it most. There are a few measures that, while imperfect, might be helpful:

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From “Final Period” to “Business as Usual”: Why Has AMLO’s Ambitious Promise to Combat Mexican Corruption Faltered

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In 2018, Andres Manuel Lopez Obrador (commonly known as AMLO) won a landslide victory in Mexico’s presidential election, and his leftist Morena Party won a large majority in Congress. AMLO and Morena campaigned on a populist platform that promised a “Fourth Transformation” of Mexico (the other three being Mexican Independence, the Liberal Reformation, and the Revolution); this Fourth Transformation would, they claimed, eliminate historic government abuse and tackle widespread government corruption. Now, more than halfway through AMLO’s six-year term, the credibility of that anticorruption rhetoric has dramatically faded. Not only has AMLO’s government failed to deliver on his promise to usher in a new era of clean government, but in many respects his administration has been moving in the wrong direction.

Understanding the ways in which AMLO’s approach to governance has undermined rather than strengthened Mexico’s fight against corruption is crucial to getting the country back on track. Four problems with the AMLO regime’s approach to anticorruption are especially significant: Continue reading →