Corruption Is a Systems Failure, But Not All Systems Failures Are Corruption

As regular readers of this blog are probably aware, I try to avoid extended discussions about the definition of corruption (see here, here, and here). Of course it’s important to have a sense of what one is talking about, if only to avoid misunderstandings, but I tend to find extended definitional debates arid and unproductive. (As I’ve remarked before, when academics run out of ideas, they start arguing about definitions.) In my view, there isn’t a single “true” or “correct” definition of corruption—only definitions that are more or less useful, depending on the context. I’m generally perfectly happy with the fairly standard “abuse of entrusted power for private gain” definition. There’s some inherent vagueness (and perhaps some normative/legal judgment) built into concepts like “abuse” and “private gain,” but so what? There are lots of other open-textured concepts that researchers are able to study even though their boundaries are not completely sharp and clear (and where we must sometimes make do with arbitrary cut-off points).

Still, I do think one of the hazards of a term like “corruption” is the occasional tendency to define it so capaciously that it loses any specific meaning. There is an associated tendency to confuse or conflate the somewhat distinct meanings that “corruption” can have in different contexts (for example, legal versus non-legal contexts). So I think, despite my usual aversion to definitional squabbling, it’s occasionally useful to push back against the attempt to define corruption so broadly as to swallow up every way that an institution or organization can go wrong.

I came across an illustration of this in an opinion piece in last week’s Boston Globe (based on an associated post on the MIT Sloan Management Review blog) by George Mason Professor Gregory Unruh. Professor Unruh frames his piece using the recent arrests of various FIFA officials, but suggests that the focus on the personal moral failures of these individuals “muddles executives’ understanding of what corruption is and how it can be managed.” Rather than defining corruption in terms of the “dishonest abuse of power or moral depravity,” Professor Unruh advocates what he calls “the engineer’s definition”:

Any organized, interdependent system in which part of the system is not performing duties as originally intended to, or performing them in an improper way, to the detriment of the system’s original purpose.

This definition, Professor Unruh claims, makes “[i]dentifying corruption in … social systems [like businesses] straightforward.” I don’t think it does. Or if it does, it does so only by defining corruption so expansively as to make the concept essentially useless. Continue reading

A Victory for the Government, Justice, and Common Sense, in the Bob McDonnell Appeal

Over the past year, we had a few posts (from Jordan, Rick, and myself) about former Virginia Governor Bob McDonnell’s appeal of his federal bribery convictions. All of us took the position that McDonnell’s main argument on appeal—that his actions on behalf of a local businessman were not “official acts” (and that the loans and lavish gifts this businessman provided were merely for “ingratiation and access”)—was inconsistent both with the governing law and with the facts as presented in the trial record. (Lots of people, though, including two distinguished criminal law experts on my faculty, took the contrary position.) The issue is important not just for U.S. political and legal junkies, but also because the McDonnell appeal raises more general issues about how we think about the line between illegal corruption and legal (though perhaps sleazy) political wheeling & dealing.

As many readers are no doubt aware, the Court of Appeals for the Fourth Circuit decided the case earlier this month. And while courts don’t always get it right, this time they did: The three-judge panel unanimously rejected all of McDonnell’s arguments, and cogently explained why in this case the evidence was more than sufficient to support a corruption conviction. Indeed, while there are indeed hard questions about the appropriate line between legal and illegal forms of private influence on public officials, the McDonnell case was not even particularly close to that line.

A few quick observations about the Court of Appeal’ opinion: Continue reading

Guest Post: Typologies of (Anti-) Corruption — How Much More Boring Can It Get? Or Maybe Not…

Dieter Zinnbauer, Senior Program Manager for Emerging Policy Issues at Transparency International, contributes the following guest post:

Remember that childhood game, you say a word over and over and it seems to lose its meaning and just dissolves into a melodic sound? I feel similarly about trying to slice up the umbrella concept of corruption and sort it into practical, reasonably comprehensive, and distinctive subcategories – an endeavor that usually gets out of hand, consumes disproportionate amounts of scarce thinking-time and energy, and eventually leaves the participants more confused and in disagreement than at the outset. Yet quite recently I have begun to change my mind a bit about the unproductiveness of typologizing (anti)corruption. In fact, I have begun to derive some surprising enjoyment and inspiration from playing around with different ways to look at and classify different types of (anti)corruption. Here three examples: Continue reading

Beyond Sextortion: How Corruption Uniquely Affects Women

A teenage girl at a refugee camp in Sierra Leone applies to the camp administrator for the food, soap, and medicine she’s entitled to and needs to survive. He falsely tells her that “your name is not on the list” but, instead of demanding money – the classic corruption scenario — he demands sex and she has no choice but to comply.

Corrupt sexual extortion (dubbed “sextortion” by the International Association of Women Judges) is not hypothetical and it is not rare. For example, a report from Human Rights Watch last September found that sexual exploitation by Burundian and Ugandan soldiers in Somalia is “routine and organized.” A refugee in Sierra Leone said “If you do not have a wife or a sister or a daughter to offer the NGO workers, it is hard to have access to aid.” Another refugee said “In this community no one can have access to CSM [a soya nutrient] without having sex first.” According to Transparency International, “the perception that women do not have the money to pay bribes may mean that they are not asked for payments… Instead, compensation may take the form of sexual favours.” This corrupt sexual exploitation often has a far greater adverse effect on victims than monetary corruption, not only because of the act itself–which can be extremely violent and is always a violation of personal dignity and human rights–but also because of the possibility of disease, pregnancy, and, all too frequently, social ostracization, victim blaming, and loss of prospects in the marriage market.

Yet despite occasional references to corrupt sexual exploitation by anticorruption activists, most major anticorruption groups have neglected this topic, focusing instead on monetary corruption. This is a mistake. The anticorruption community should recognize sextortion and other forms of corrupt sexual coercion as a distinctive and devastating form of corruption, deserving of special attention and appropriately-tailored responses. Continue reading

Who Cares How Madison and Hamilton Defined “Corruption”?

We’ve had a few posts in recent weeks on Fordham Law Professor Zephyr Teachout’s ultimately unsuccessful, but surprisingly effective, campaign for the New York governorship (see here and here). Teachout’s campaign has had the side effect of increasing the attention to her scholarly work, most notably her recent book Corruption in America.  Rick has already posted a more general discussion of Teachout’s major thesis regarding the allegedly corrupting effects of money on American democracy (and a follow-up yesterday). I want to touch on a somewhat narrower point, but one that has attracted a great deal of attention: Teachout’s claim that the people who framed and ratified the U.S. Constitution had a much broader understanding of the meaning of “corruption” than is reflected in contemporary U.S. Supreme Court decisions on campaign finance. (I should acknowledge up front that I have not yet had the opportunity to read Teachout’s book, though I have read her earlier article making substantially the same point, as well as an excerpt from the book posted online.)

The basic argument, which Teachout persuasively documents, is that for the founding generation — including leading members like James Madison, Benjamin Franklin, Alexander Hamilton, George Mason, and others — the term “corruption” had a much broader meaning than the exchange of money or other material benefits for official acts; the term instead included an institution’s “improper dependence” on some outside party. My colleague Larry Lessig made this argument the basis of an amicus brief he submitted to the Supreme Court in the McCutcheon case. In his post discussing the brief, Lessig asserts that the evidence of how the term corruption was used in the Founding generation “suggest that only a non-originalist could support the idea that ‘corruption’ refers to ‘quid pro quo’ corruption alone.”

I’m not sure I can improve on Jill Lapore‘s assessment of Teachout and Lessig’s evidence about the historical usage of corruption: “This isn’t uninteresting, but it’s not especially helpful, either.” I agree wholeheartedly. At the risk of belaboring the issue (about which I’ve written before, in the context of the McCutcheon case), let me say a bit more about why I think the evidence that Madison, Hamilton, and other members of the Founding generation used “corruption” in a broader sense is (mostly) irrelevant to contemporary discussions of campaign finance and other issues. Continue reading

Multiple Errors in Quantitative Data Analysis, from Site Specializing in Quantitative Data Analysis

Like many people out there, I’m both a huge fan of Nate Silver–and the rigorous quantitative approach to election forecasting that he popularized–and at the same time quite disappointed in his FiveThirtyEight website, where the posts (especially those not by Silver himself) often seem to be slapdash efforts by people who have a smattering of statistical knowledge but don’t really know much about the topics they’re writing about. A depressing recent example, germane to this blog, is a post from last week entitled “It Only Seems Like Politics Is More Corrupt.” I normally wouldn’t bother to comment on something so slight here (especially because the post appears to have been written by an intern, and I generally try to avoid beating up on people who are just starting out), but many of the errors in analysis are both sufficiently elementary, and sufficiently common in discussions of corruption trends in other contexts (and by people with much more experience and therefore less of an excuse), that it’s worth taking a moment to explain what’s wrong.

A quick summary: The author cites recent U.S. Gallup poll data showing that the percentage of Americans who believe that “corruption is widespread” throughout the government in the United States has increased from about 60% in 2006 to a little over 75% in 2013. However, the author argues, the data doesn’t support the idea that corruption in the U.S. has actually worsened. To support that claim, she points to two other data sources:

  1. U.S. Department of Justice statistics from 1992-2012 show that the number of cases prosecuted by the DOJ’s Public Integrity Section (as well as the number of convictions and number of cases awaiting trial) appears to have declined, or at least hasn’t increased.
  2. The U.S. score on the Transparency International Corruption Perception Index (CPI) hasn’t changed very much between 1995 and 2013 (although there’s concededly a slight downward trend).

Do these two data sources disprove the idea that corruption in the U.S. has worsened over the last eight years, or more generally that the U.S. public’s perception of corruption is inaccurate?  In a word, no. There are so many elementary conceptual and statistical errors in this analysis, it’s difficult to know where to begin, but let me take a shot at cataloguing the most egregious problems: Continue reading

More Confused & Confusing Commentary on Corruption, Earmarks, and Campaign Finance

When a prominent platform like the New York Times Op-Ed page features a piece on corruption, I feel like I should say something about it.  (Furthering the public dialogue and all that.)  But it’s hard for me to come up with something productive to say about Thomas Edsall’s rambling editorial on “The Value of Corruption,” published last week. So far as I can make out, Edsall makes three main points:

  1. The Congressional ban on legislative earmarks, intended as a means of fighting one form of perceived “corruption,” has in fact undermined one of the key tools legislators can use to build compromise and overcome gridlock.
  2. The Supreme Court’s campaign finance decisions in cases like Citizens United and McCutcheon have given wealthy interests more power to influence elections (which some characterize as “legalized corruption”).
  3. Sometimes corruption can be “good” — the “honest graft” praised and defended by George Washington Plunkitt — particularly when it helps certain excluded groups overcome barriers established by entrenched interests.

If your first reaction to this is that these points have little to do with one another — other than the fact that they all use the word “corruption” — then we’re on the same page. But instead of just trashing the Times Op-Ed page (much fun as that is), let me see if I can try to say something substantive.  Not sure if I’ll succeed — here goes: Continue reading

Quid Pro Quo: The Deus Ex Machina of Bribery Law?

In a recent post Phil spotted an apparent anomaly in U.S. anticorruption laws: these laws make it is easier to get away with bribing an American politician than a non-American one.  As Phil explains, the difference arises from what seems to be the higher burden the prosecution must meet to prove that what is ostensibly a campaign contribution is in reality a bribe when the recipient is an American politician rather than a non-U.S. officeholder.

When the payment is to an American politician, the prosecution must, in the words of McCutcheon v. FEC, the Supreme Court’s most recent decision interpreting the Federal Election Campaign Act, prove “quid pro quo corruption,” which the Court defines as “a direct exchange of an official act for money.” By contrast, when the challenged payment is to a non-American office holder, the Foreign Corrupt Practices Act merely requires that the prosecution establish that the money was “corruptly” given for the purpose of “influencing any act or decision [taken in an official capacity].” Phil takes the absence of an express requirement of a quid pro quo in the FCPA as easing the prosecutor’s burden. But is Phil’s reading of the two laws correct? Continue reading

Is US Campaign Finance Law More Permissive of Corruption than the FCPA?

An odd feature of U.S. law is that it appears to impose more stringent restrictions on private donations to foreign politicians than on donations to U.S. politicians.

Consider first domestic U.S. campaign finance laws.  These laws have received a great deal of scrutiny over the last 40 years, because of the argument that restricting spending on political activities may offend the “freedom of speech” guaranteed by the First Amendment of the U.S. Constitution. The U.S. Supreme Court has issued a number of landmark decisions on this subject over the last 40 years, beginning with Buckley v. Valeo (1976), and most recently in McCutcheon v. FEC (2014) (which Matthew discussed in a post from a few months back). The dominant trend in these decisions has been a loosening of restrictions on campaign contributions and independent donations, but one specific change in the campaign finance jurisprudence is particularly interesting. In McConnell v. FEC, the Supreme Court held that “selling access” or “influence” constituted a form of corruption, prevention of which could justify certain campaign finance restrictions. In Citizens United v. FEC, the Court, in an opinion by Justice Kennedy (citing to his dissent in McConnell), narrowed the definition of corruption “to quid pro quo corruption,” and held the “fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”

Now consider the main U.S. statute that addresses payments to foreign officials (as well as foreign candidates for public office): the Foreign Corrupt Practices Act (FCPA). In contrast to the campaign finance area, there is very little case law clarifying the meaning of the FCPA’s provisions (a fact that some commentators have lamented). Nonetheless, the FCPA’s prohibition on “corruptly” giving “anything of value” to a foreign official or foreign candidate for public office for the purpose of “influencing any act or decision [taken in an official capacity]” does not require an express quid pro quo, (see 15 U.S.C. § 78dd-1(a)(2)(A)(i)).

Thus it appears that payments (including campaign donations or other forms of political support) that are intended to influence politicians’ official decisions are proper (indeed, constitutionally protected) if made in the U.S., but improper (indeed, criminal) if made in other countries.

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McCutcheon v. FEC Is a Substantive Clash, Not a Definitional One

The U.S. Supreme Court’s decision last week in McCutcheon v. Federal Election Commission – which struck down limits on the aggregate amount any one individual could contribute to multiple candidates during a single electoral cycle – has attracted a great deal of attention.  Indeed, it has already generated so much discussion that I’m not sure I have much to add (particularly given that I’m not a campaign finance expert). But one piece of commentary on the decision caught my eye: on the Wall Street Journal’s blog, Jacob Gershman argues that McCutcheon is not just about the clash over the value of political speech and the effect of money on political integrity, but “at a more basic level” the decision is about “how to define the concept of ‘corruption.’”  Many of my colleagues in the legal academy – several of whom are quoted in Mr. Gershman’s post – agree with that assessment, as does Justice Breyer in his dissenting opinion in McCutcheon.  But I don’t think it’s quite right—or at least it’s only partly right.

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