Modernizing Legislative Ethics: Costa Rica’s Turn?

The conduct of parliamentarians has not escaped the anticorruption community’s attention.  Ethics codes and parliamentary immunities are everywhere being examined to ensure legislators adhere to the highest standards of conduct and can be held to account if they do not. In Costa Rica, for example, reform-minded parliamentarians recently launched an effort to determine whether their legislative ethics code and immunity rules, unchanged for several decades, need revision.

As a first step, the parliament’s in-house research center prepared a fine summary and analysis of legislative codes of conduct and member immunities in selected European and Western Hemisphere nations. To follow up, I met with reformers to discuss what issues to weigh when amending ethics codes or revising parliamentary immunities. The English PowerPoint Slides for my presentation are here, the Spanish version here. Points emphasized during the discussion: Continue reading

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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Sometimes Motives Don’t Matter: The Establishment’s Impulse to Protect (Allegedly) Corrupt Politicians Can Create Opportunities for Criminal Justice Reform

Since 2016, Israeli Prime Minister Benjamin Netanyahu has been investigated for a number of corruption allegations (see here and here). In apparent response, David Amsalem, a member of the Knesset (Israel’s parliament) from Netanyahu’s Likud Party, has proposed several bills which, if enacted, would help to protect the Prime Minister from these investigations (see here and here). Most recently, in June 2018 Amsalem presented a bill that would change Israel’s system of criminal appeals. Currently, the prosecution can appeal criminal verdicts, including acquittals; according to Amsalem’s so-called Appeal Bill, such appeals would require an appellate court’s permission, and this permission could only be given under special circumstances, and only for crimes punishable by ten or more years in prison. Amsalem, who denied that the Appeal Bill has anything to do with the investigations of Netanyahu, claimed that he proposed this bill because “[a] moral state doesn’t have to persecute a citizen who has received a sentence too light for its taste.” However, opposition Knesset members and commentators – many of whom usually support defendant-protective reforms to criminal procedure – have harshly attacked the Appeal Bill. The critics’ main (sometimes only) argument against the Appeal Bill has been that its purpose is to prevent the prosecution from appealing a possible acquittal of Netanyahu. As Tamar Zandberg, Chair of the opposition Meretz Party put it, “[t]his [government] coalition’s obsessive preoccupation with the legal authorities to protect a prime minister immersed in investigations is a mark of Cain for Israeli democracy.”

The hostility to bills that appear to be devised specifically to protect politicians from corruption prosecutions is definitely understandable, and the wide opposition in Israel to the Appeal Bill is therefore a natural reaction. Nevertheless, this impulse should be overcome when considering bills proposing criminal justice reforms with general application, and in particular bills strengthening individual rights in the criminal process. I do not claim that the Appeal Bill should be enacted into law, and I acknowledge that there may be some legitimate reasons to oppose limitations on prosecutorial appeals. However, generally speaking, we should not refrain from supporting criminal justice reforms just because their initiators may have had bad motives. Instead, every proposal of systemic reform should be considered on its merits, and, if found justified, be enthusiastically supported, despite its tainted origin. Continue reading

Part-time Legislatures Should Use Disclosure, Not Recusal, To Regulate Conflicts of Interest

For most state legislators in the United States, public service is a part-time gig; forty U.S. states have part-time or hybrid legislatures. These part-time state lawmakers have regular jobs, and while some are conventional—law or business—some are less so. (There’s the pizza delivery guy in Arkansas, the boxing and mixed martial arts judge in Nevada, the hula dancer in Hawaii, and the alligator hunter in Louisiana.) Part-time legislatures are popular because they’re cheap—New Hampshire pays its legislators just $100 per year—and also because of distrust of professional politicians and a romantic notion that the legislature should instead be a forum for citizens of varied professional backgrounds to bring their unique perspective to the lawmaking process.

But part-time legislatures also entail significant corruption risks for three reasons. First, when legislators have private sector jobs, it may be easier for them to conceal bribe payments as legitimate outside income. Second, part-time legislators’ low public salaries may make them more inclined to accept bribes or otherwise abuse their office than better-paid full-time legislators. These two factors have been discussed previously on this blog. Here, I want to consider a third factor: the potential conflicts of interest between an official’s public and private work.

A part-time legislator’s dual responsibilities will often, perhaps inevitably, conflict. Teachers will vote on education issues, doctors on health care bills, and business owners on tax plans. Lawyers, lobbyists, and insurance agents may vote on legislation that directly affects their clients. Part-time legislators may even introduce bills advancing their private professional interests. Take the Missouri legislator who introduced and secured passage of a bill prohibiting cities from banning plastic bags at grocery stores—and who also happened to be the director of the Missouri Grocers Association. Similarly egregious, lawyers serving as part-time legislators have sponsored bills raising the salaries or pensions of judges before whom they had cases. One might worry too that part-time legislators, especially those who are lawyers or lobbyists, will implicitly or explicitly use their public positions as a way to drum up business, precisely because potential clients might think that hiring a part-time legislator will increase the odds of favorable legislative treatment. And even if a part-time legislator is not influenced in the slightest by her private professional interests, conflicts like those just described still risk creating the appearance of corruption. What can be done about this?

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When Should We Put Anticorruption Agencies in the Constitution?

To fight corruption more effectively, many countries have created specialized government institutions that focus primarily on corruption issues. Most common are specialized anticorruption agencies (ACAs) with investigative and/or prosecutorial functions, although some countries have also created specialized anticorruption courts, special coordinating bodies, or other entities. This trend has generated a great deal of debate, both about whether to create such specialized bodies at all and about how they should be designed (for example, whether ACAs should combine prosecutorial and investigative power). Absent from much of this debate, however, is a discussion of the means countries should use to create these specialized bodies—in particular, whether these specialized anticorruption bodies should be enshrined in the nation’s constitution, or should be created by ordinary law.

Anticorruption bodies vary quite a bit on the extent to which they are constitutionalized. Most existing ACAs and other anticorruption institutions—including many considered highly successful—are not mandated by the constitution. For example, Indonesia’s anticorruption agency (the KPK) and its anticorruption courts (the Tipikor courts) were created by ordinary legislation, as was Belgium’s anticorruption investigation body and Spain’s anticorruption prosecutor’s office. However, in other countries specialized anticorruption bodies are explicitly established (or required) by the constitution. For example, the Philippines’ anticorruption court, the Sandiganbayan, is enshrined in that country’s 1987 constitution. Indeed, the trend (if one can be discerned) seems to be in the direction of constitutionalization. Tunisia’s new constitution, adopted in 2014, includes a specialized anticorruption investigation body. Egypt’s 2014 constitution similarly includes a specialized anticorruption prosecutor. Mexico’s 2015 amendments constitutionalized three types of anticorruption agencies (investigative, prosecutorial, and judicial), as well as a coordinating body.

But should these agencies be constitutionalized? And if so, when? Continue reading

Preventing the Next Sheldon Silver

Sheldon Silver, speaker of the New York State Assembly, was arrested last week on federal corruption charges, sending shock waves through New York’s political circles. He is accused of accepting millions of dollars in disguised bribes for more than a decade. Silver allegedly asked developers with business before the state to spend money on a law firm that, in turn, paid Silver for legal work he never did. He was able to disguise the source of the income for so long because New York, like the vast majority of other states, considers its legislature to be “part time,” freeing up legislators to maintain legitimate outside jobs, as well as their government work.

Such outside payments are ripe for unscrupulous dealings (or, at very least, the appearance of impropriety), and have long been decried by anticorruption forces. Outside payments were a primary focus of Governor Cuomo’s anticorruption Moreland Commission, which the Governor then disbanded under pressure from legislators. Governor Cuomo recently proposed a new commission to look at ways to increase disclosure of outside income and to cap the amount of outside income legislators may receive. While Cuomo’s new proposals would be a good start, they do not go far enough. The time has come to ban outside legal work for state legislators and to compensate them fairly for the full time job the people elected them to do.

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The Prosecution of Bribery: What Lawmakers Can Learn from Bavaria and Virginia

Prosecutors thinking about whether to pursue a case against the recipient or payer of a bribe will surely think twice given events of the past weeks in the German state of Bavaria and the American state of Virginia.  In Bavaria the bribery prosecution against Formula One impresario Bernie Ecclestone collapsed mid-trial after the judge expressed strong doubts the case could be proved.  In Virginia prosecutors are slogging through the third of what is expected to be a six week trial as they try to show that Robert McDonnell, the state’s former governor, was paid to shill for a local business.  To prosecutors, the two cases remind that bribery is no easy crime to prove and that losing carries risks both personal and professional.  To lawmakers, the two cases should prompt a scrub of their nation’s bribery laws to see whether the bar they have set for proving a case is too high. Continue reading