This is an abbreviated version of a paper written for submission to the American Society of International Law, International Symposium, “Trans-nationalization of Anti-Corruption Law,” Paris, France, 2018, “Call for Papers.” The topic is very different than most that appear in the regulatory law oriented Minutillo Newsletter but might help shed light on the detrimental effect of “grand corruption” on disadvantaged persons in a nation-state, so it is reprinted here.
Because political populism usually favors and targets the disenfranchised or disadvantaged in a nation-state, the title of this paper may appear to the savvy attorney, academic, or political scientist to advance inconsistent concepts. This was done intentionally to invoke interest and to lead into the notion that the disadvantaged fuel political populism; populism fuels grand corruption; and grand corruption detrimentally affects the disadvantaged; a cycle that must be highlighted so that it can be broken.
Because this submission for the Symposium targets a worldwide audience, key terms subject to multiple interpretations are defined.
For the purpose of this paper, populism is defined as a method or phenomenon used to fuel a political movement or the rise of a political candidate positioned to favor advancing the rights and power of a minority and sometimes the majority of an electorate, particularly the disenfranchised, over the privileged elite.
Populism, as a political tool, sidesteps traditional practices usually used for political advantage during an election, and “how to get elected” theories. Populist candidates tap into an ignored segment of the voting population using their charisma rather than deep, well thought-out, policies and plans.
Better put, populism is the basis for a movement or the philosophy embraced by a politician that seems to champion the interests of the common person, or a common, puritanical cause. Political populism targets the disadvantaged, the disenfranchised, those without a “voice.” People who are disadvantaged or feel disenfranchised and ignored by institutions and political processes gravitate toward populist candidates and causes because this is their chance to have a voice in their government.
A populist imprint on elections and referenda was evident during Brexit, recent elections in the United States, the Philippines, France, Germany, and the Netherlands, though not all successful for the populist cause or candidate. Populism as a movement or as a way to gather votes and influence only works because discontentment sells as a political tool for causes and for politicians.
Grand corruption is the unethical, illegal, or improper manipulation of public trust or use of tax dollars at high levels of government for the benefit of a person or group holding or attempting to attain political power. In many cases, grand corruption is the result of a bribe provided to a person in power. This is one type of corruption that the US Federal Foreign Corrupt Practices Act was designed to combat.
The generic, worldwide accepted definition of bribery is the act of improperly or illegally taking or receiving something of value to induce or influence the receiver to act in a way favorable to the party providing the bribe to the detriment of another. The definition of the word has been nuanced for use in statutes, case law, and regulations around the world but, in essence, this definition usually serves as the grounded, basic definition of the term.
The act of providing something of value to influence another improperly has occurred since the Stone Age. Note that I use the word “improperly” rather than “illegally” for obvious reasons. Though governments started to recognize some forms of bribery as a crime about the mid-1900’s, the art of bribery advanced as early as the Industrial Revolution in the early 1700’s because bribery meant more money, power, and advantage over competitors in an age of tremendous economic growth.
It is much faster to bribe a person to procure a project than to earn their respect in a competitive environment by working hard, being responsive, and following-up to ensure that the product or service to be sold is the best available at a competitive price. A bribe paid to gain a competitive advantage usually means that the product or service is not the best available at the best price.
Does grand corruption detrimentally affect the disadvantaged? Yes. Why?
A simple example:
Company X is to provide 1000 bottles of fresh water to the people of drought ridden, impoverished country Y, paid for by the government of country Y. Company X will make a profit of one USD in doing so, but a bribe to an elected government official is part of the bargain. Company X, in paying the bribe, has two options: To absorb the bride and reduce profit, or to keep profit at the same level absent the bribe, and “short” the number of bottles of water to be delivered to the people of country Y. If company X knows that the “short” will not be discovered, punished, or has been approved by the leader or appropriate government personnel of country Y (which usually means an “up the chain” kickback to the leader), then, many times, it will choose to “short” the delivery of bottles of water.
Who suffers? The obvious answer, the residents of the drought-stricken country who will not get part of the water shipment because of the bribe. These are usually the disadvantaged, seemingly powerless people of a poor, thirsty country. If country Y’s personnel or leader had not agreed, the bribe and resulting “short” would not have happened.
Monetary aid provided by an economically advanced country to a third-world country, partially skimmed to a leader of the third-world country is another example of a “short” detrimentally affecting the intended beneficiaries of the third-world country. The amount paid as a bribe is not used to help the intended recipients but lines the pockets of a government official or elected leader directly or as an “up the chain” payment. The disadvantaged are cheated.
Traditions, Policies, and Institutions
Government traditions, policies, and institutions accomplish two events, among others: On the positive side, they help to preserve government stability and predictability for the affected population for the purported purpose of providing economic opportunity, protection, and civil liberty for all. But, on the negative side, they create paperwork bureaucracies making it difficult for the “common man”, the disenfranchised, the person or group either too busy trying to feed a family or not understanding how to maneuver within a political process, to effect beneficial, positive change—an inconsistency if the goal is opportunity, etc. The later fuels a populist movement or helps to elect a populist candidate.
Frustration caused by government traditions, policies, and institutions (jointly, traditions) stoke populist movements in small townships and national Governments. The rise of secular populism happens because people feel frustrated with the “swamp” as, for example, US President Trump opines. The swamp, in political hyper-jargon, means institutions, politicians holding office, and traditions, which the populist considers steeped in failure resulting in the populist politician proclaiming “let me”, be your leader. I’ll drain the swamp for you so that your voice will finally be heard.
Traditions, as above identified, make it difficult for a politician to engage in grand corruption because of layers of time-honored, check and balance, bureaucracy which might catch the impropriety as it is happening, or at least deter the bad actor from attempting it merely because he or she knows that the “check” exists.
However, populist politicians can ignore tradition during a public campaign and after elected because their populist base favors “draining the swamp” demanding change, avoiding “traditions” to speed-up much-needed corrections demanded by the base of the populist.
The base has been ignored by the very institutions that advance traditions and the disenfranchised want the populist to ignore institutions to affect immediate change.
The logic goes like this:
“Traditions” as defined supra make affecting change difficult:
Traditions help preserve honesty in elected officials because of inherent checks and balances;
Populists tap into anger felt by the disenfranchised and disadvantaged;
Populists claim they can “drain the swamp” to quickly help the disenfranchised and the disadvantaged;
Draining the swamp requires sidestepping traditions once the populist leader is elected;
Sidestepping traditions enhances the power of the populist politician so this sidestepping can occur;
Populist politicians who do away with traditions lessen checks and balances to flag and punish grand corruption;
The disadvantaged, who make up the base of the populist politician, suffer the consequences of grand corruption as noted in the country X and company Y example supra.
Considering the point of this article, the cliché, “be careful what you wish [vote] for lest it come true” becomes a reality.