Corruption

We know it's bad - but what is it?

That issue lies behind an excellent programme broadcast by C-SPAN. I watched it in bed this morning. It is available here. Long term readers of this blog - and my law students, will know why it is a subject that I take a deep interest in.

Lord Acton said "power tends to corrupt...." - sometimes that is dismissed, because he is taken to mean that all who exercise political power will be tempted (and presumably, many have fallen) to accept bribes. I contend that the corruption he was thinking of is a much wider concept. In essence, it recognises that as humans we easily persuade ourselves that what is in our own interest is actually in everyone else's interest. We trust - and listen to friends, more than judge fairly between competing arguments. We are very good at justifying to ourselves what onlookers may think is unacceptable. I saw the Westminster expenses scandal up close - honourable people, who never thought they were doing wrong, got embroiled in the scandal - and couldn't understand why their constituents were turning on them. They were blinded by 'group think'. The very narrow view of "corruption" is seen by the US Supreme Court - who can't seem to recognise how corrupting an influence the large sums of money now washing around US politics and elections are.

I thoroughly recommend setting aside 90 minutes to watch this programme. It raises some serious issues - and makes one think.

Some of the issues are addressed in a book "Ethics in Congress" - which discusses the difference between personal and institutional corruption.



Websites of the contributors to the programme include -

Zephyr Teachout - http://www.teachoutwu.com/
Janine Wedel - http://janinewedel.info/
Lawrence Lessig - http://www.lessig.org/about/

How Law seeks to tackle human nature

Do send me your comments. Does the existing law do enough to tackle the weaknesses of human nature?

Lord Acton's Dictum

"Power tends to corrupt, and absolute power corrupts absolutely."

Is "good government" possible?

Ronald Reagan once stated (actually I think he kept on saying it!) that "government is not the solution to our problem; government is the problem." It's a view that many people hold today. I have to say right from the start - it is not a view I share.

Yet we hear so much about cost overruns; corruption; blunders; if not sheer incompetence. It's not limited to a particular government; or even system of government - I subscribe to The Guardian (UK); Le Monde (France); New York Times (UK); and "European Voice" (EU). Very different systems are reported upon - but the stories are so familiar.

Is it a question of complexity? Our modern world is so complicated - that it may be impossible for any institutions to attempt to keep everything working at the same time. Some people argue that only unrestricted market forces can bring about the optimum results. Frankly, that seems to me to be complete rubbish. History is full of examples of the follies and disasters brought about by unregulated markets. If you want scandals, swindles; abuse of power - read any economic history. I remember reading Professor Galbraith's argument that modern economic history demonstrates a recurring cycle - scandal & crashes (from the South Sea Bubble to...applying his thesis - the Banking crisis of recent years), followed by government intervention to save the system and regulations to stop the same thing happening again - followed inevitably by demands for the relaxing of regulations - leading to new scandals and crashes. Public officials are (rightly) held to much higher ethical standards than business requires.

Certainly complexity is one of a (series) of problems - but can it explain the role of abuse of power and scandal?

I think that we have to accept the first part of Lord Acton's dictum that "POWER TENDS TO CORRUPT, absolute power corrupts absolutely." There are various ways that systems can seek to temper the downside of Human Nature.

Constitutional Law has its role to play. A constitution can set limits on power, and rules which invalidate actions which breach the Constitution. Most states have a single document which sets out the main rules. However that single document is not the complete statement of constitutional law. The US Constitution has been interpreted and applied by the Courts, particularly the US Supreme Court. Constitutional conventions can exist. Until Franklin Roosevelt ran for a third term it was a convention that Presidents served no more than two terms. He broke it, and a constitutional amendment was subsequently passed. Legal remedies may work (but may not be safe in the hands of clever lawyers), but sometimes other pressures encourage compliance. "Conventions" in the UK play this role - they are not legally enforceable, but constitutional actors regard themselves bound by the convention. They are effective when they mean that the cost of breaking the convention outweighs any short term advantage. The Queen could refuse to give the Royal Assent to a bill passed by Parliament (was she tempted when the Hunting Bill was passed?) - but the cost would be the loss of the unchallenged role that the Crown plays.

Ethics rules can play a role. While we might complain about our current politicians being a bunch of rogues - they are actually 'cleaner' than most generations in history. Many scandals of the last 40 years involve behaviour that, thanks to ethics rules, are forbidden - previously these practices were regarded as normal political behaviour.

"Accountability" is a requirement that can reduce scandal and show up incompetence. There is an important role for investigative committees - in Congress committees play an important role in questioning decisions; and requiring officials and others to justify their actions. Within constraints the Departmental Select Committees in the House of Commons can do the same. They are aided by professional support bodies - the GAO (Government Accountability Office) in the USA and the NAO (National Audit Office) in the UK.

In England MPs and Councillors can ask questions of officials carrying out policies; and the decision makers who have adopted policies - and demand answers. Sometimes the press can play a role in uncovering sharp practices and incompetence. There are also various organisations seeking to hold decision makers to account - such as the USA's Common Cause.

We don't live in a perfect world - and Human Nature can be deeply flawed - but in democracies - where power belongs to its citizens - we each have a responsibility (to ourselves and to others) to see that power is accountable to us.

American Hustle

I have to be honest - I didn't even read any reviews of this film. The title itself could have been designed to switch my "off" button. Then a newspaper article about Congress mentioned that the film was set around a congressional scandal called "Abscam", suddenly I was interested. For my whips study, one of the challenges for 'whips' that I identified was scandal - in their pastoral role whips have to deal with the aftermath of scandal, and a number have involved certain whips themselves. Abscam was important for my studies because it created a major problem for the institution of Congress - with the first expulsion of a member for a very long time; and a number of members going to jail. Some of the characters had been members of the whips organizations. My current work into the 94th Congress also involved members of that Congress' freshman group. I had to go and watch the film!

I went on Friday (after watching "12 Years a Slave" a film I will discuss in a forthcoming post). I thoroughly recommend "American Hustle". It was a satisfying film on a number of levels.

There are some super "comedy" moments in this film. "Comedy" is probably my favourite genre - and this is an entertaining film. Secondly, I like the soundtrack. I'm a big Duke Ellington fan, and homage was made to him. As a teenager in the late seventies the "contemporary" music in the film was of my era. (I've bought the soundtrack!)

On a deeper level this was a film about the psychology of individuals attempting to manipulate others. An understanding of behaviour is essential for both politics and law - and while there is more in this "review" for my Law Students - on that ground alone law and politics students should pay careful attention to this film.

At an even deeper level this film is about the abuse of power. As Acton said - "Power tends to corrupt...absolute power corrupts absolutely". This is a story of corruption and abuse of power. The people ensnared in this sting operation, may not have even regarded themselves as corrupt. They (at least the politicians involved) may have considered that they were helping their constituents - that the money involved was necessary to ensure that they could continue helping their constituents (running for office was costly then - it is even more so then - and without election or re-election you can do little). But it was corrupt - and the message I stress to my law students - and to anyone else who will listen - is that the human mind is very good at persuading itself that what is in the interests of the individual is also in the best interests of everyone else. Blindness towards one's own wrongdoing is horrifyingly widespread. The "expenses scandal" at Westminster proved that. I was working there during the period of revelations - and spoke to people who just couldn't understand that what they had done - which seemed reasonable and justified to them - was seen by everyone else as outrageous.

The film also raises the issue of "entrapment". Would the people convicted have committed the crimes - if they hadn't been invited and encouraged to do so by undercover law enforcement officers? The whole issue of entrapment is something for law students to reflect upon. I remember looking at the issue while I was studying for my law degree - and the issue is rarely far from the news (even this week the UK news has involved the activities of undercover police officers and there role in the "crimes" of groups they infiltrated).

So - well worth the price of a cinema ticket. Of course, I wanted to get a bit more background - so consulted contemporary reports of the scandal (a reason why I'm so pleased that I was persuaded to subscribe to the New York Times (digital), which gives access to that paper's archives). I also bought and have almost finished "The Sting Man: The True Story Behind the Film American Hustle" by Robert W Greene. I read it using the Kindle App on my iPad - but saw it was on sale this morning at the Waterstones bookshop in Midsummer Place, Milton Keynes.

Of course the film has taken some liberties. Characters are merged - and the character's names have been changed, but as I think I'll be going back to see it again.

Does it matter who we vote for?

I care less and less about which members of the political elite hold key offices. Does it really make any difference as to whether its the Old Etonian Boy's Club (Cameron et al)? privately educated MPs [ALL parties - 54% of Conservative MPs attended fee paying schools, compared with 40% of Liberal Democrat MPs, and 15% of Labour MPs.]? or the extremely wealthy (Essential if you want to be a Senator; Congressman and to an increasing extent an MP or Peer)?

[Well yes, if you believe in a representative democracy]

But my point isn't to decry the "pay to play" principle; or to deny that there are vastly different policies being put forward by the different parties - but to consider the implications of an important point made by Lord Acton in 1887.

 "Power tends to corrupt, and absolute power corrupts absolutely."

Sadly, Acton's words are true. There is a tendency for power to corrupt - perhaps not in its grossest form - but subtly, by desensitising people once they achieve power. Recent history is full of examples - the expenses scandal at Westminster is classic. Decent, hard-working, dedicated people ended up making claims which were outrageous - but their time in power had desensitised them. "Group-think" took over. Benefits became entitlements - and the public purse dipped into in a way they'd have condemned before they entered the Westminster village. We've read in the papers over recent months of how people thrust into power - whether they be performers or DJs; or politicians - abused their positions to claim sexual victims. Senator Fulbright spoke of the "arrogance of power" that can be shown by nations - but it can often be shown by individuals.

One of the defining demands of 'Extreme-Conservatives' is for less regulation. Cast off regulation and everyone would be better off. Their little experiment now has its results - the banking crisis; Enron; the horsemeat scandal...

We can't alter human nature - but we can put in safeguards to lessen the change of power corrupting. The Americans when they drew up their Constitution were keen to insert "checks and balances".

Montesquieu proposed 'separation of powers' as one way to lessen the likelihood of tyranny developing. Even medieval Kings required 'weights and measures' laws to stamp on the 'rip-off merchants.

Requiring greater accountability from those who exercise power is the only way to take on our human failings. Judicial Review in the UK has developed to challenge - not the substance of decisions - but the way they've been taken. A decision made by a public official who has a financial interest in the result of that decision, will be declared invalid. Decisions can be challenged and struck down where there is irrationality; or irrelevant considerations have been taken into account.

At Westminster and in Congress - our representatives can investigate and question how decision makers have acted. The National Audit Office [NAO] and the Government Accountability Office [GAO] can undertake professional, in-depth investigations and report their findings to our representatives. In Britain MPs and Peers can ask oral questions during question times - and grill Ministers in committee.

Freedom of Information laws can also shed sunlight upon decisions made - allowing questions to be asked.

It does matter who we vote for - because our representatives can call decision makers to account. The issue for us as voters is whether our Parliament/Parlement/Congress has the powers; tools and commitment to holding decision makers to account.

But politics is boring.......

I often hear this comment - not only on the doorsteps when out canvassing; but from students. Of course I disagree (it would have been difficult to be me - and to have done the things I've done, if I hadn't discovered a fascination for politics!!). Yes it can be tedious, and sometimes depressing - Yes, it can be a challenge to keep up with developments or understand all the issues that arise - but it is no accident that politics has proved such a rich source for novelists & playwrights.

It can provide first class entertainment - but more seriously, as citizens, it is about how we shape the world around us. In a democracy - we have both the privilege and DUTY of choosing our own leaders.

Lord Acton wrote (and I make no apology for repeating what I have quoted in numerous blogs; lectures; tutorials and speeches) - "Power tends to corrupt, Absolute Power corrupts absolutely".

The role of legislatures in particular, is to hold those who exercise power, to account. MPs can question Ministers about their policies and actions in the daily question time. [PMQs - Prime Minister's questions are just one half hour on a Wednesday, the first hour of business in the Commons on Mondays through Thursdays is set aside for oral questions. The House of Lords has a 30 minute Question Time]. Select Committees can conduct detailed inquiries. The Public Accounts Committee is charged with examining "the accounts showing the appropriation of the sums granted to Parliament to meet the public expenditure, and of such other accounts laid before Parliament as the Committee may think fit"  - their website is accessible here.
The US Congress is given extensive powers.

Many decry the amount of argument in Parliament or Congress - but this is central to their purpose. Many different opinions are held within a nation. Parliament and Congress are the forum for the differing ideas and solutions to problems to be discussed. While Athens was small enough to allow direct democracy (and the telecommunications revolution opens up new opportunities today and in the future), Representative Democracy will have to do. [ Churchill - "Democracy is the worst form of government, except for all those other forms that have been tried from time to time"].

Do you know how to get your voice heard?, or how to make your representative work for you? - a challenge for 2012 is to empower more people to use the democratic powers they should enjoy.

Bonfire of the Regulations?

Leading on from Tuesday's post - the same principles apply to regulation. It is a frequent complaint of business that regulation is strangling them. It is a popular election pledge - and government action - to have a "bonfire of regulations" [any review of political history in the last 70 years will show how often this idea is resurrected!]

Regulations do impose costs - the original purpose may be quickly forgotten and rules added ['gold plating'] - turning a regulation into a mighty bureaucratic obstacle. But it is worth reflecting upon why regulations were imposed.

There are people who cheat and lie; who put lives at risk in order to increase their own profit. "Power tends to corrupt" is not a rule that is confined to Government or the public sector. Once again the study of history comes in useful - there is a cycle of

Scandal   -   demands for 'something to be done'   -   imposition of regulation   -  
growing feeling that regulations are costing too much and are stifling innovation, leading to calls for deregulation   -  
deregulation   until next scandal (repeat for ever!!!)

The history of banking and finance amply illustrates this recurring cycle.

Are They Necessary?

Why have Constitutions, Laws and Regulations? I know that it's a theme I keep coming back to - but it is worth repeating -

"Power tends to corrupt,
 Absolute Power corrupts absolutely"

Experience tells us that without effective constraints - power WILL be abused - whether it is the petty official or the great dictator. That suggests that two principles need to be adhered to -

1 the costs of breaking constitutional (and other) rules need to be greater than the advantage that can be gained through disregard of them. That cost may be in the form of legal sanctions. A President of the United States "shall be removed from office" when he has been impeached and convicted of "Treason, Bribery, or other high Crimes and Misdemeanors"; a breach of electoral law can lead to the election being declared void - which is the reason why there was a recent by-election in Oldham East and Saddleworth (for more information press here). In Britain we may rely more on "conventions" rather than legal rules - but they still work on the principle that the cost of breaking the convention is greater than the short term advantage.

2 there should be limits on the discretion of officials. Dicey was opposed to granting wide discretionary powers because he believed that it would lead to arbitrary decisions. In the modern state, that may be unworkable. The English Courts have responded to modern needs by developing the remedy of "Judicial Review" which allows the Courts to oversee the use of discretion by public bodies and others exercising public (as opposed to private) functions.

Welcome Back

I hope you had a good Christmas break. Washminster returns to close off a fascinating year in both British and American politics - and to look forward to 2011.

The Elections of 2010 have far reaching implications for both the UK and US. Major constitutional changes are being pushed through at breakneck speed in Britain. The 112th Congress will be very differenf from the ones that preceded it. It will be a year of interesting developments.m Washminster will be following them!

Looking back to 2010 we have lost some great people.

Lord (Richard) Acton
Robert Byrd
Elizabeth Edwards
Michael Foot
Alexander Haig
Brian Hanrahan
Richard Holbrooke
Anthony Howard
Lord (Andrew) McIntosh
Jimmy Reid
Dan Rostenkowski
Andrew Roth
Sir Cyril Smith
Stephen Solarz
Ted Stevens
Ted Sorensen
Alan Watkins
Charlie Wilson
Howard Zinn

Lord Hunt of Kings Heath on Lords Reform

This was the speech that Lord Hunt made introducing the short debate on Lords Reform.

He begins by paying tribute to Lord Acton, who was an active member of the House of Lords - and would attend regularly, despite living in Iowa. He took a keen interest in both British and US Politics. Other members of the House of Lords were saddened to hear of his death, and I took was very sorry to learn of the death of a lovely man.

The debate can be watched in full here.

Checks and Balances

If Lord Acton is correct that "power tends to corrupt, and absolute power corrupts absolutely", then there is a need to design institutional rules and procedures to ensure that the tendency is revealed and stopped. Political thinkers have sought to identify ways of doing that.

The Framers of the American Constitution attempted to build "checks and balances" into the foundation document. There was a deliberate attempt to create a separation of powers - building upon the warnings of Montesquieu - echoed by Madison who wrote that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of opne, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny"

Other "checks and balances" include requiring special majorities or procedures to change the law - sometimes referred to as "entrenchment"; requiring confirmation by the legislative branch of executive branch nominees; control of the raising of taxes by the legislature...

The UK has its checks and balances. It has relied heavily on unwritten rules of behaviour which are enforced by social pressures. Conventions have been defined as "rules which are not legally enforceable, but which are regarded as binding by the constitutional actors". Some have been surprisingly effective. The House of Lords prides itself on "self regulation" - again which seems to work in practice.

But "checks and balances" can over time lose their effectiveness - the challenge for Britain and America - and every other country; city - even club - is to ensure that any system of checks of balances develops to continue the effective control necessary.

Reforming Westminster

Recent events have exposed some of the weaknesses of the current political system operating at Westminster - and brought the idea of major constitutional reform to the centre of debate. Washminster will follow this debate closely.

The starting point must be Lord Acton's comment that "Power tends to corrupt, and absolute power corrupts absolutely."

In the UK we tend to concentrate on the latter part of the quote - congratulating ourselves that no one is given absolute power. The Magna Carta in 1215 established that no one was above the law, even the King has limited power. When the Stuart monarchs overstepped the mark - they were removed (In 1649 Charles I was tried and executed; and at the 'Glorious Revolution', James II was "run out of town" by Parliament and the 'Bill of Rights' passed). There is significant separation of powers at the very core of the British constitutional system.

But the first part of the quote is just as important. The possession of Power itself holds dangers. Human nature is flawed. We can easily convince ourselves that what is in our own interest is also in the interest of others. We can "cut corners" and become blind to the wrongfulness of our behaviour. It is significant that many MPs defending their actions have stressed that they acted within the rules in making their claims - apparently unaware of how appalling their behaviour appears to everyone else. History is full of abuses of power.

The answer is to set up checks and balances to counter this natural tendency. The US Constitution is built on that principle. Separation of powers is crucial because, as Montesquieu argues, when one person has a hand in all three branches of government, tyranny will ensue. The exercise of power needs to be transparent and there must be accountability. Those who take decisions must be answerable for them. That's why I am an advocate of powerful parliamentary committees able to demand explanations. Only when there is a culture of accountability can lessen the opportunity for the abuse of power.

Over the coming weeks, this blog will discuss many of the reforms that could build on the strengths of the Westminster system, whilst adressing the weaknesses. I hope you'll engage in this important debate.