Tag Archives: United States

How State Prosecutors Can Fill the Gap in U.S. Anticorruption Enforcement

Posted on by
Reply

It’s getting harder to prosecute federal corruption crimes in the United States. In a recent case called Snyder v. United States, the U.S. Supreme Court narrowed the scope of a key anti-bribery law. And this decision is only the latest in a series of cases over the past decade that have limited the reach of federal prosecutors in going after state and local public corruption. While Congress could always enact legislation to expand the scope of federal anticorruption laws, significant legislative action seems unlikely anytime soon.

Given the increasing difficulty of corruption prosecution at the federal level, could state prosecutors step in to pursue cases now beyond the reach of federal law enforcement? After all, federal and state prosecutors share partly overlapping responsibilities for anticorruption enforcement in the United States. Although the Supreme Court has increasingly rejected broad theories of federal criminal liability especially in the context of state and local corruption, the Supreme Court’s narrow readings of federal anticorruption laws pose no barrier to cases brought by state prosecutors enforcing state law (see, for example, here and here). To be sure, federal prosecutors have traditionally played a substantial role in rooting out state and local government corruption, and many remain skeptical that state prosecutors can take up the anticorruption role that federal prosecutors have long played. Yet while state prosecutions might not be a perfect substitute for robust federal anticorruption enforcement, there are compelling reasons to think that state prosecutors could meaningfully fill the gap that the Supreme Court has opened up in the U.S. anticorruption system.

Continue reading →

Will America’s Anticorruption NGOs Hold Trump II to Account?

Posted on by
Reply

If the trend Daniel Schuman identifies in “Open-Government Nonprofits Are Dying Off Just When They’re Needed Most,” the answer is a clear if frightening NO (here). Schuman, Executive Director of the American Governance Institute, ticks of a list of U.S. watchdogs closing their doors or drastically cutting staff thanks to multiple funding crises.

Those now on the block include: OpenSecrets, which for years has shown which politicians get money from what special interests; OMB Watch, a pioneer in unearthing hard-to-find data on government spending; and the Center for Public Integrity, the scourge of those officials who have never seen an ethical line they can’t cross.

Why, just when more eyes are needed on Trump and cronies, are those with 20-20 vision finding it so hard to raise money? Schulman puts it off to the polarization now infecting the American body politic. The foundations and high-net-worth individuals that have traditionally backed organizations dedicated to “public-informing, community-building work” have, he writes, become “auxiliaries for the parties in their trench warfare over political power.”

Bad enough the funding drought coincides with the return of an Administration likely to make Grant’s second term seem a model of probity. Many of those on the ropes have done much to advance the global war on corruption, from serving as models for citizens of other nations to providing critical technical assistance to anticorruption NGOs around the globe. The fight against corruption in the U.S. is entering a critical phase with the outcome likely to affect the fight in other nations. The stakes couldn’t be higher. Will donors please reconsider their decisions?

Thanks to TheBulwark, an indispensable source for what’s happening in the U.S., for publishing Schuman’s story.

Corruption as a National Security Priority: How Will it Shape U.S. Policy in Fragile States?

Posted on by
Reply

Corruption has increasingly been framed as a national security priority in United States policy. This is perhaps most readily apparent in the National Security Council’s 2023 U.S. Strategy on Countering Corruption, but it is also manifest in several major pieces of legislation. One such legislative initiative is the 2019 Global Fragility Act (GFA), which tasked the State Department, Department of Defense (DoD), and US Agency for International Development (USAID) with developing a coordinated ten-year strategy for preventing conflict in fragile states. This past March, the State Department published its inaugural Strategy for Preventing Conflict in four pilot countries—Libya, Mozambique, Haiti, and Papua New Guinea—and one region, Coastal West Africa (encompassing Guinea, Cote D’Ivoire, Ghana, Togo, and Benin). Each of these strategy documents center anticorruption reform as a means to improve state legitimacy and reduce the risk of conflict, but they take quite different approaches to addressing the problem of corruption within a national security framework. Continue reading →

The U.S. Congress Must (and Can) Right the Supreme Court’s Wrongs

Posted on by
1

This past June, in a case called Snyder v. United States, the U.S. Supreme Court dealt another blow to federal anticorruption law. The defendant in Snyder was a former mayor of an Indiana town. During his time as mayor, he helped steer a city contract to a certain company, and that company subsequently paid him $13,000 in “consulting fees.” He was convicted under a federal statute, 18 U.S.C. § 666, which makes it a federal crime for a state or local official to “corruptly solicit[,] demand[,] …or accept[] … anything of value from any person, intending to be influenced or rewarded in connection with any” federally funded program. The question in the case was whether this statute prohibits so-called “gratuities”—payments that are corruptly made to a government official in recognition of action that an official has taken or has committed to take, but without evidence that the promise of the payment was what induced the official to take that act. The Court held that § 666 does not prohibit gratuities. In other words, as long as there is no agreement beforehand, the Court held that § 666 allows people or businesses to reward their state and local officials for favorable government action. In so holding, the Supreme Court has in effect provided a blueprint for using money, gifts, and other material incentives to influence state and local government.

The Court’s Snyder decision is yet another in a string of recent cases that have undermined and impeded federal anticorruption prosecutions in the United States—a string that includes McDonnell v. United States, Kelly v. United States, and Percoco v. United States. These decisions have been criticized—often fairly—for their narrow, crabbed reading of the relevant statutes. But it is a bit too easy to make the Court the sole villain of the story. As the Court itself has emphasized, it is Congress’s responsibility to create clear laws. And Congress should not be given a free pass in light of its failure to respond to the Court’s decisions.

It is true, as noted on this blog (see here and here) and elsewhere (see here, here, and here), that Congress appears at best uninterested in, and at worst hostile to, enacting more robust anticorruption laws. Yet we should not be too quick to conclude that getting meaningful amendments to the laws that the Supreme Court has interpreted narrowly would be a political impossibility. Indeed, at the end of August three Members of Congress (two Democrats and one Republican) introduced the No Gratuities for Governing Act, which would amend § 666 to expressly prohibit gratuities, and in so doing would hold state and local officials to the same standard that applies to federal officials (codified at 18 U.S.C. § 201). Three Senators (all Democrats) introduced a parallel bill in the Senate, the Stop Corrupt Gratuities Act, in early September. Despite the understandable cynicism about the ability of the U.S. Congress to act on this matter, there are several reasons why this proposed legislation might actually have a fighting chance:

Continue reading →

New Podcast Episode, Featuring Tom Firestone and Scott Greytak

Posted on by
Reply
After a brief late-summer hiatus, a new episode of KickBack: The Global Anticorruption Podcast is now available.In this episode, host Liz Dávid-Barrett interviews Tom Firestone, a partner at the law firm Squire Patton Boggs, and Scott Greytak, the Director of Advocacy at Transparency International US, about the Foreign Extortion Prevention Act (FEPA), a new and groundbreaking piece of US federal legislation that makes it a crime for any foreign official to demand or accept a bribe from an American or American company, or from any person while in the territory of the United States. The conversation touches on the scope of the act, how it relates to the Foreign Corrupt Practices Act (FCPA), the effects that the law may have on anticorruption enforcement efforts in other countries, and the challenges related to FEPA enforcement.
You can find both this episode and an archive of prior episodes at the following locations:
KickBack was originally founded as a collaborative effort between GAB and the Interdisciplinary Corruption Research Network (ICRN). It is now hosted and managed by the University of Sussex’s Centre for the Study of Corruption. If you like it, please subscribe/follow, and tell all your friends!

Cautious Optimism: Leveraging Free Trade Agreements as Anticorruption Tools

Posted on by
Reply

The international trading system has had a dire decade. There has been a stunning drop-off in the growth of global trade, and the most recent World Trade Organization Ministerial Conference did little, if anything, to halt the multilateral trading system’s decline. Yet anticorruption policy’s place in international trade negotiations has never been stronger. Many of the most prominent regional free trade agreements (FTAs) that have either come into force or been the subject of intense negotiations over the last half-decade have featured remarkably strong anticorruption provisions. The United States-Mexico-Canada Agreement (USMCA), which came into force in 2020 as a replacement for NAFTA, included entirely new anticorruption protections alongside only modest, technocratic tweaks to actual barriers to cross-border trade. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the post-2016 replacement for the U.S.-led Trans-Pacific Partnership (TPP), includes almost all of the anticorruption provisions that the U.S. championed in the TPP. The negotiations for an Indo-Pacific Economic Framework (IPEF), though much maligned for their failure to coalesce around meaningful trade liberalization, nevertheless produced a “Fair Economy” pillar that includes substantial initiatives aimed at fighting corruption. And these are not the only examples: Indeed, there has been a general increase in anticorruption provisions in FTAs and bilateral investment treaties.

Of course, lumping all of these different provisions together is a bit misleading, because the “anticorruption” provisions in FTAs take a wide variety of forms. Many, including the anticorruption provisions of the USMCA and the CPTPP, commit members to adopting laws that either directly criminalize certain behavior (bribery, facilitation payments, etc.) or require that firms adopt transparency measures, such as regular financial disclosures. Other FTAs, like the IPEF or the World Customs Organization’s Anti-Corruption and Integrity Promotion (A-CIP) Program, focus on capacity building through information sharing, technical assistance, and training programs. Still others, like the African Continental Free Trade Area (which is still being negotiated), attempt to tackle corruption in trade through measures like simplifying and automating the customs process. Yet despite this diversity, it is fair to say that anticorruption is now firmly part of the international trade agenda—thanks in large part to sustained advocacy by pro-transparency and anticorruption advocates since the 1990s.

While the incorporation of anticorruption provisions in FTAs has obvious symbolic importance, we don’t yet know as much about the practical impact of these provisions. This is partly because it’s just too soon to make such assessments: Other than a few exceptional cases, the inclusion of anticorruption language in FTAs is a relatively recent phenomenon). Very few studies have engaged in empirical assessments of how FTA anticorruption commitments actually fare as anticorruption tools in practice. But the limited evidence we do have appears encouraging:

Continue reading →

Corruption on the Northeast Corridor: Addressing Bribery in Amtrak Procurement

Posted on by
Reply

Under the 2021 Bipartisan Infrastructure Law (BIL), the US federal government plans to allocate upwards of $550 billion to giving America’s infrastructure a much-needed facelift. About one-fifth of these funds have been pledged for public transportation improvements. Few agencies stand to receive more money than Amtrak, which has heralded its $66 billion cash infusion as ushering in “a new era of rail.” The BIL promises to provide sufficient capital to guarantee faster and more reliable rail service in the nation’s congested Northeast Corridor. Amtrak’s track record of project mismanagement, however, raises serious questions as to whether it can execute its vision. Poor financial planning has undoubtedly contributed to Amtrak’s inability to provide service on par with its Asian and Western European counterparts. Yet there is another factor that has that has been overlooked in discussions about Amtrak’s middling quality. In recent years, the agency has been rocked by multiple bribery scandals that have inflated costs and delayed projects. For example, this past March, federal prosecutors charged a contractor with bribing an Amtrak employee to inflate the costs of repairs to Philadelphia’s 30th Street Station—a project whose costs nearly doubled before its completion. A similar corruption scheme resulted in the conviction of a Delaware-based contractor in 2021. More generally, a 2023 report from Amtrak’s internal watchdog, the Office of Inspector General (OIG), estimated that nearly 10% of all infrastructure spending by the railroad could be lost to corruption.

Given the huge infusion of federal grant money under the BIL, it is especially important that the US government gets serious right now about rooting out what appears to be an alarming culture of corruption at Amtrak: Continue reading →

The Quotidian Corruption of the NYPD

Posted on by
2

In April 2024, the New York City Department of Investigation (DOI) released a scathing report on how the New York City Police Department (NYPD) enforces parking laws in New York City. The report found, in relevant part, that the NYPD frequently opts to turn a blind eye to illegally parked vehicles displaying inapplicable or expired parking permits, letting NYPD and other City Government employees park illegally with no consequences. The DOI also found that the NYPD “has no written policies or procedures” for enforcing parking laws in the areas around police precincts and other government buildings in NYC, and Traffic Enforcement Agents told DOI investigators that were subject to internal discipline if they issued parking tickets in sufficiently close proximity to NYPD precinct buildings. This parking permit enforcement problem comes on top of the longstanding problem of “ticket fixing,” in which officers make parking and traffic tickets “disappear” as favors for friends. A favorite technique for helping friends or family (or those willing to pay) get out of tickets (or worse) is the practice of police officers giving out (or even selling) “PBA cards” (named for the Police Benevolent Association, the largest municipal police union in the world); with a quick flash of a PBA card, drivers can avoid a speeding ticket or even arrest. PBA cards have long been identified as a notorious example of petty corruption within the NYPD (see here, here, and here, and here). In fact, an NYPD officer sued the department last year, alleging he was demoted for ticketing a cardholder who was a friend of his supervisor (see here and here).

These are examples of what we might call “quotidian corruption”: officers deciding that low-level civil laws apply to some members of the public but not others, and engaging in this selective non-enforcement to help out friends, family, or those with the right connections. While there are certainly far more important forms of police misconduct, such as racial bias and improper use of deadly force, it would be a mistake not to take quotidian police corruption seriously. As one former NYPD police officer turned prosecutor and law professor commented, in connection with a high-profile ticket fixing scandal, even though the alleged behavior might not be “seriously corrupt,” ticket fixing must stop “for the sake of the public trust[] and the NYPD’s own reputation.” 

The NYPD is unlikely to address these problems itself. Even if the NYPD leadership decided to support more evenhanded enforcement for these low-level offenses, police unions would likely prevent any such reforms from taking place. This leaves the possibility of reform largely in the hands of New York City Government. Here are three potential reforms that City Government could undertake to help combat the quotidian corruption permeating the NYPD, listed in order from least to most challenging:

Continue reading →

The Invisible Front: Russia’s Corruption-Themed Propaganda War Against Ukraine

Posted on by
2

The concept of “strategic corruption”—defined by the U.S. government as “when a government weaponizes corrupt practices as a tenet of its foreign policy”—has recently gained prominence as an important way to understand Russian foreign policy in the former Soviet republics, and elsewhere. The country that has faced the most sustained and systematic Russian state-sponsored strategic corruption campaign is almost certainly Ukraine. For the two decades preceding Russia’s full-scale invasion in 2022, Russia employed a wide variety of corrupt measures to influence Ukrainian politics, including the sale of vast quantities of discounted fossil fuels to bribe pro-Russian Ukrainian oligarchs and create a political class aligned with Kremlin interests (as exemplified by the “outrageously corrupt” tenure of President Viktor Yanukovych after his election in 2010); the cultivation of sympathetic media empires in the country; and money-driven attempts to discredit American officials perceived as obstacles to Russian influence. 

Much has been written on Russia’s use of this sort of strategic corruption. But there’s another aspect of Russia’s strategy that has become especially prominent since the 2022 invasion: using propaganda and disinformation to spread and amplify the narrative that Ukraine is pervasively corrupt. Here lies a paradox: for two decades, Russia deliberately fostered corruption in Ukraine to keep its neighbor firmly under its influence, and now Russia is seeking to leverage Ukraine’s reputation for corrupt practices to undermine Ukraine’s ability to resist Russia’s invasion.

Continue reading →

The U.S. Supreme Court’s Erosion of U.S. Anticorruption Law Continues

Posted on by
4

The U.S. Supreme Court has been chipping away at the federal public corruption prosecutor’s toolkit over the past decade, in cases like McDonnell v. United States, Kelly v. United States, and Percoco v. United States. This past month, the Court heard oral arguments in a case called Snyder v. United States, which may further undermine federal prosecutors’ ability to go after state and local corruption. If the Court finds in favor of the defendant in Snyder, it could create a roadmap for American state and local government officials to profit from private interests at the expense of the public they are supposed to serve.

The specific statute at issue in the Snyder case is codified at 18 U.S.C. § 666. That statute, which happens to be the most prosecuted public corruption statute in the U.S., makes it a federal crime for a state or local official to “corruptly solicit[,] demand[,] …or accept[] … anything of value from any person, intending to be influenced or rewarded in connection with any” federally funded program. The question at issue in the Snyder case is whether this statute criminalizes so-called gratuities—payments made in recognition of actions that a covered official has taken or has committed to take, but without any quid pro quo agreement to take those actions in exchange for the payment. The facts of the Snyder case illustrate this sort of payment: James Snyder, while mayor of Portage, Indiana, accepted $13,000, allegedly for “consulting services,” from a truck company shortly after that company was awarded a contract to sell garbage trucks to the city government. There is no evidence that the company offered or promised Snyder the payments in exchange for the contract. Nevertheless, the federal prosecutors successfully argued at trial that proving such an offer was unnecessary, because as long as the prosecution could show that the alleged “consulting fee” was actually a gratuity—a payment made by the company to thank, or reward, Snyder for the contract—then Snyder’s acceptance of this payment was enough to violate § 666.

It’s true, as Snyder’s lawyers argued to the Supreme Court, that the language of the statute does not explicitly include “gratuities.” But reading § 666 as covering gratuities is the only sensible way to read the statute if we are truly concerned with preventing public officials from being bought.

Continue reading →