Guest Post: Lessons from Athenians’ Efforts to Define Corruption

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Gab readers have been treated to a lively and valuable debate in past weeks on precisely what we mean when we say that someone or some behavior is “corrupt.” Many readers have joined the discussion. Responding to my request for their views by offering comments and analyses of six real world cases where a court, ethics commission, or legislature has been asked to decide whether the conduct of a public official was corrupt.

I had promised to post “the right answers” to the six, or at least the answers the court, commission or legislature gave this week. I am putting it off to share the guest post below by classics scholar and American attorney Kellam Conover. Drawing on the dissertation that garnered him a PhD. in Classics from Princeton, he explains how citizens of ancient Athens decided when an official’s conduct was corrupt. What he takes from their method provides the only way I see for arriving at genuine right answers – not only to the six cases I presented but to the general issues of how to define corruption and how to measure our progress in overcoming it. Many thanks Kellam.

I have read with great interest the fascinating discussion that has unfolded recently among Bo Rothstein, Matthew Stephenson, Robert Barrington, Paul Heywood, and Michael Johnston.  The questions they raise about how to define corruption, how to link up theory with practice, and how to measure success are all ones I have grappled with since writing my dissertation on Bribery in Classical Athens. 

As a historian, I’ve spent far more time describing corruption than prescribing solutions.  But I hope a few observations from ancient Athens will be helpful to others.  First, in my view corruption defies definition because it is an inherently political claim that changes with different social and political contexts.  Second, and as a result, it may be fruitful to augment anti-corruption programs with institutions specifically designed for articulating, contesting, and legitimating evolving political norms.  Finally, I offer one potential metric of success:  i.e., whether patterns of corruption in a polity have grown less disruptive over time.

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New Podcast Episode, Featuring Michael Johnston

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview Michael Johnston, the Charles A. Dana Professor of Political Science, Emeritus, at Colgate University. Professor Johnston is one of the leading academic voices on the study of corruption, and has been working in this area for over three decades. In our interview, we discuss the trajectory of his own research on corruption, including his identification and analysis of four distinct “syndromes” of corruption, as well as his broader perspective on the overall direction of the field, how his own views have shifted in light of new findings and developments, and his advice for a new generation of researchers interested in better understanding corruption and how to combat it.

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 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.

ENABLERS in the Legal Profession: Balancing Client Confidentiality Against Preventing Money Laundering

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The anticorruption world is abuzz with discussion of the Pandora Papers, a major leak of financial documents that exposed how wealthy elites, including various political leaders and shady businesspeople, conceal their assets. But alongside revelations about the illicit expenditures of the rich and powerful, reporting based on the Pandora Papers also highlighted the role that lawyers and law firms have played in facilitating these arrangements—many of which are technically legal, but at least some of which suggest possible money laundering or other illicit activities.

This is hardly the first time that concerns have been raised about attorneys’ involvement in money laundering. Indeed, such concerns have existed for years, and have been repeatedly emphasized by groups like the Financial Action Task Force, and a 2010 study found that lawyers played a facilitating role in 25% of surveyed money laundering cases in an American appeals court. But perhaps because of the Pandora Papers revelations, U.S. legislators finally appear to be taking the problem seriously. Within days of the Pandora Papers leak, Members of Congress introduced a bill called the ENABLERS Act, which would expand the scope of the Bank Secrecy Act (BSA) so that many of the BSA’s requirements, including the duty to file suspicious activity reports (SARs) with the Treasury Department and to implement anti-money laundering (AML) controls, would apply to a broader set of actors—including attorneys and law firms.

The American Bar Association (ABA), which has consistently resisted pretty much every effort to impose even modest AML requirements on the legal profession, has strenuously opposed this aspect of the ENABLERS Act. The ABA’s principal objection is that many BSA requirements—especially the requirement that covered entities file SARs with the government—conflict with the lawyer’s ethical duty of client confidentiality—the attorney’s obligation not to reveal information gained in the course of representing a client to outside parties, including the government, save in a very narrow set of circumstances. (The duty of confidentiality is related to, but distinct from, the attorney-client privilege, which prevents a lawyer from testifying against her client in court regarding private communications that the attorney had with the client in the course of the legal representation, or providing such communications in response to a discovery request. Some critics have also raised attorney-client privilege concerns about SAR filings.) The ABA and other commentators have argued that extending the BSA’s mandatory reporting requirement to attorneys, as the ENABLERS Act would do, compromises attorneys’ ability to guarantee confidentiality, and thereby discourages the full, frank communications between attorney and client that are essential for effective legal representation.

The ABA has a valid concern, but only to a point. A broad and unqualified extension of BSA reporting requirements to attorneys could indeed impinge on traditional and important principles of lawyer-client confidentiality. But this is not a reason to leave things as they are. Rather, the ENABLERS Act and its implementing regulations can and should draw more nuanced distinctions, imposing SAR and other AML requirements on lawyers when those lawyers are acting principally as financial advisors, but enabling lawyers to preserve client confidentiality—including with respect to suspicious transactions—when lawyers are providing more traditional legal representation, for instance in the context of litigation.

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Little Trust on the Prairie

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Offshore finance has always been glamorous. The world’s tax dodgers and kleptocrats seem to favor the same jurisdictions as James Bond, places with soring vistas, crystalline waters, and plenty of five-star resorts. Yet as the recent release of the Pandora Papers makes clear, the geography of offshore finance has shifted in recent years. For those seeking to obscure the origins of their wealth, South Dakota now eclipses Grand Cayman. Customer assets in South Dakota trusts have more than quadrupled over the past decade to $360 billion. And while there are of course legitimate reasons to set up a trust, trusts offer an ideal mechanism—even better than shell companies—for concealing ownership and preserving anonymity.

South Dakota is an especially attractive jurisdiction for setting up such trusts because it offers not only low costs and flexibility, but also a combination of privacy and control that those seeking to hide their wealth find attractive. Notably, South Dakota automatically seals trust records, preventing outsiders from identifying settlors and beneficiaries, and does not require publicly filing trust documents. (Although South Dakota’s privacy laws do not shield settlors and beneficiaries from federal law enforcement, they do conceal the trust from journalists and the private parties, making it less likely that those involved in the trust come to the attention of government authorities.) South Dakota also allows the creation of “dynasty trusts,” which exist in perpetuity, as well as “directed trusts,” which give families and their advisors maximum control in managing the trust’s affairs. Unusually, South Dakota also allows trusts whose settlor and beneficiary are the same person.

These rules make South Dakota trusts particularly appealing to business and political elites whose assets may be the target of civil as well as criminal litigation. Indeed, the Pandora Papers identified, among those who used South Dakota trusts to conceal their assets, a Colombian textile baron who had sought to launder international drug proceeds, a Brazilian orange juice mogul who allegedly underpaid local farmers, and the former president of a Dominican sugar producer who was accused of exploiting workers. With banks and even real estate agents wary of taking large sums from officials in corrupt regions, a U.S. domiciled trust offers a veneer of legitimacy.

Allowing states like South Dakota to join the archipelago of secrecy jurisdictions where bankers and trustees ask few questions undermines the United States’ fight against global corruption. Indeed, attacking those who abet foreign corruption while welcoming dirty money as an investment strategy is not just hypocritical but self-defeating. The rise of anonymous domestic trusts in the United States demands and an aggressive response from federal regulators. That response can and should include the following measures:

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Anticorruption Bibliography–November 2021 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 from 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.

Conference on Empirical Approaches to Anti-Money Laundering and Financial Crimes

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The Central Bank of the Bahamas hosts the Third International Research Conference on Empirical Approaches to Anti-money Laundering and Financial Crimes this January 20 and 21 in Nassau. 

Countering the laundering of the proceeds of corruption and other financial crimes has become a critical issue at both the national and international level. Enormous time and attention has been devoted to putting an end to money laundering and enormous sums spent complying with existing laws and directives. Few, however, are happy with the results to date. 

The principal reason for the failure of anti-money laundering laws is the lack of a sound empirical base on which to build an enforcement regime, a point their critics have made at since Reuter and Truman’s 2004 Chasing Dirty Money. The conference is an important step towards remedying our lack of knowledge about how such basic issues as how money launderers works, where the risks are the greatest, and what are the most effective means for reducing them. Details on attending either in person or online here. Current list of speakers and papers follows.

[Submissions to last week’s poll on the definition of corruption still being received.  It is not too late to enter with the chance to win a lifetime subscription to GAB at the current rate.]

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Some Reflections on the Meaning of Anticorruption “Success”

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Last month, we had a spirited debate in the anticorruption blogosphere about the conceptualization of corruption, academic approaches to the study of the topic, and the relationship between research and practice. (The debate was prompted by provocative piece by Bo Rothstein, to which I replied; my critical reaction prompted a sur-reply from Professor Rothstein, which was followed by further contributions from Robert Barrington, Paul Heywood, and Michael Johnston.) I’ve been thinking a bit more about one small aspect of that stimulating exchange: How do we, or should we, think about evaluating the success (or lack thereof) of an anticorruption policy or other intervention? I was struck by the very different assessments that several of the participants in last month’s exchange had regarding whether the anticorruption reform movement had been “successful,” and this got me thinking that although part of the divergence of opinion might be due to different interpretations of the evidence, part of what’s going on might be different understandings of what “success” does or should mean in this context.

That observation, in turn, connected to another issue that’s been gnawing at me for a while, that I’ve been having trouble putting into words—but I’m going to take a stab at it in this post. My sense is that when it comes to defining and measuring “success” in the context of anticorruption reform (and probably many other contexts too), there’s a fundamental tension between two conflicting impulses: Continue reading →

Why the U.S. Corporate Transparency Act Should Cover Trusts

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In late 2020, anticorruption and transparency advocates scored a major victory: the passage of the U.S. Corporate Transparency Act (CTA), which requires U.S. corporations, limited liability companies, and “other similar entities” to disclose the identities of their true beneficial owners to the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN). FinCEN is currently in the process of drafting regulations to implement the CTA. One of the key questions FinCEN is considering concerns the scope of the CTA’s coverage—in particular whether trusts should be considered “similar entities” to which the CTA’s disclosure obligations apply.

The answer ought to be a resounding yes. As the recent revelations from the International Consortium of Investigative Journalists (ICIJ) stories on the so-called Pandora Papers has made all too clear, trusts are prime vehicles for kleptocrats, organized crime groups, and others who want to hide their illicit assets. To be sure, trusts have legitimate uses, such as estate planning, charitable giving, and certain (lawful) strategic business purposes. But the potential for abuse means that it is essential to increase transparency and oversight of trusts.

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Leniency Revisited: China Should Also Reward Bribe Takers Who Confess

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China’s anticorruption campaign has focused almost exclusively on the so-called “demand side” of bribe transactions—the public officials who request or accept bribe payments. Indeed, it is quite common for a bribe-taking government official to be prosecuted while the bribe giver receives no punishment at all (see here, here, and here). Overall, China has convicted and punished almost four times as many bribe-takers as bribe-givers, and only 1% of bribe-givers have faced criminal prosecution. 

This lopsided emphasis on the demand side of bribery is mostly caused by a odd asymmetry in China’s Criminal Law. According to Article 390, bribe givers who confess their crimes to the authorities before the case is handed over the procuratorate office for criminal prosecution are eligible for leniency, including outright exemption from punishment, but there is no equivalent provision for bribe takers. (There are some general provisions in Chinese criminal law that afford criminal defendants mitigated punishment, but these sections are applicable only when suspects voluntarily turn themselves in before any investigation has commenced, or provide sufficiently valuable service in uncovering other criminal misconduct. These provisions are not as generous as Article 390.) Due to the asymmetric structure of Article 390, coupled with the fact that bribery is often hard to uncover without the cooperation of one of the parties involved in the transaction, China’s principal anticorruption agency, the Central Commission for Discipline Inspection (CCDI), has cut deals almost exclusively with bribe givers, offering them immunity pursuant to Article 390 in exchange for their assistance in going after the corrupt officials.

This asymmetry has contributed to criticism that China is too lenient on bribe givers. Some critics have argued that China should eliminate the disparate treatment of bribe givers and bribe takers by abolishing Article 390 altogether, thus making it equally difficult for bribe givers and bribe takers to receive leniency (see, for example, here and here). While China has not gone that far, it has taken steps in this direction, for example by amending Article 390 back in 2015 to narrow the set of bribe givers who would be eligible to receive mitigated punishment under that section.

I agree that the asymmetric treatment of bribe givers and bribe takers makes little sense, but rectifying that asymmetry by restricting the availability of leniency to bribe givers who voluntarily confess is the wrong approach. On the contrary, China should expand Article 390 so that bribe takers who report to the government and offer evidence against the bribe payer would be eligible for leniency. But only the party that reports first (and fully and candidly) should be eligible for leniency—the other party to the transaction would be punished harshly. This system, which would resemble the US Department of Justice’s Antitrust Leniency Program, creates a prisoner’s dilemma problem for both parties to the bribe transaction, thus helping to detect and deter bribery more efficiently.

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Guest Post: Shifting Anticorruption Messaging from “Crime and Punishment” to “Guardrails for Good Government”

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Today’s guest post is from Joe Grady, a co-founder of the Topos Partnership, a firm that specializes in public opinion research:

Public backing is critical to the success of anticorruption reform efforts. Yet communications intended to mobilize the public against corruption often backfire, making audiences less engaged and less confident the problem can be solved. To better understand this problem, the Open Society Foundations recently sponsored an international research effort led by the Topos Partnership to better understand how residents of three countries—the United States, North Macedonia, and Brazil—think about corruption in the public sphere, and how best to engage them in efforts to combat the problem. In each country, ethnographers spoke at length with roughly 150 people, followed by internet surveys testing different kinds of messages.

Not surprisingly, findings across the countries are distinct in various interesting ways. Macedonians, for example, often have a sense that their country lags behind other European countries, and they may also look back nostalgically at the Yugoslav era when things seemed to run more predictably. Brazilians see themselves as being culturally averse to rigid rules and procedures, including those that keep government “honest.” The U.S. public has a strong sense that government is supposed to be by and for the people. But despite these important differences, there are also important similarities across the three countries. Continue reading →