Professor Elizabeth Spahn spoke for victims of bribery before most of us had discovered the topic. She has defended compliance as pro-business and condemned bribes for destroying capitalism. More eloquently than anyone else, she has stood for the idea — once derided and now embraced — that compliance and enforcement can change the world and help people live better lives.
She was at it again last week, celebrating ‘the great shift’ in the global outlook against corruption that’s happened over the last decade.
‘[P]articipating in this great shift has been the most important work of my lifetime,’ Professor Spahn wrote in her FCPA Blog Thanksgiving message. ‘I am truly thankful to have lived long enough to see some real successes.’
To her, the global anti-graft campaign is ‘the crown jewel of the movements for global justice.’
‘As a veteran foot soldier in several earth-shaking global reform movements,‘ she said, ’from the struggle for racial justice, to the explosion of energy now known as the womens’ movements, to the environmental movements, I was privileged to be there as each movement found its roots and began to expand.’
When the Foreign Corrupt Practices Act first appeared 35 years ago, it was thought of as a ‘quaint American utopian fantasy,’ Professor Spahn said. But it helped change minds from Washington to the four corners of the earth. In 2007, the Wall Street Journal even called enactment of the FCPA one of Congress’s finest moments. By then the utopian fantasy had also produced the OECD Anti-Bribery Convention and the U.N. Convention Against Corruption, both now gaining acceptance and enforcement around the globe.
Professor Spahn’s ‘crown jewel of movements for social justice’ came to mind when Transparency International released its 2013 Corruption Perceptions Index this week. TI was founded 20 years ago and two years later published its first CPI. That one covered just 41 countries and didn’t make a huge splash. But over the years, the CPI, which now ranks 171 countries, has also helped change minds.
Few leaders or citizens in the mid 1990s bothered to talk about corruption. Why waste time debating something that can’t be changed, was the common attitude. Now the CPI is cited by the press somewhere every day. It has become an indispensable tool for journalists, pundits, graft fighters, legislators, lawyers, and concerned citizens.
Graft won’t disappear anytime soon because it springs from the human heart. As Professor Spahn said, ‘Like murder, rape and bigotry, reforms will never totally eradicate corruption. I should know — I’m from Chicago.’
But the dark side of the human heart isn’t the end of the story, for Professor Spahn or the rest of us. Today ordinary people who live in countries terrorized by corruption are fighting back, online and in the streets. Leaders now fear a bad CPI ranking because of the trouble it can cause at home and abroad.
For anyone who still clings to the idea that compliance and enforcement are passing fads that will sooner or later fade away, Professor Spahn has done a great service. She’s shown how the global fight against graft is already part of the arc of the moral universe, which Martin Luther King said is long but bends towards justice. She may not admit it, but some of the credit for all that belongs to Professor Spahn herself.
Elizabeth Spahn’s most recent article, Implementing Global Anti-Bribery Norms from the FCPA to the OECD Anti-Bribery Convention to the U.N. Convention Against Corruption, 23 Indiana Int’l & Comp. L. Rev. 1 (2013), is available from SSRN here.
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Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.
1 Comment
As a professional engaged in attesting to the veracity of financial statements, the investigating of irregularities, fraud and bribery globally, and latterly as an academic, it has taken me exactly the past quarter century to discern that the fight against corruption and inequity is indeed a long one and will continue as long as there is humanity.
I used to be much encouraged by laws, regulations and conventions to combat corruption. At the same time, similar to the comprehensive and enduring implementation of good governance being driven by a tone at the top, it appears to me that such legalistic interventions are often missing the point. What exactly drives the tone at the top globally? And how could we adjust that to create a world with fewer regulatory interventions and responses which complicate the environment and lead to further intervention in the ideal of free markets?
I think the key here is the use of the term capitalism, which Professor Spahn refers to in the context of the deleterious effect of bribery thereon. I believe it is necessary to assess whether our world currently practices capitalism as it was envisaged by Enlightenment thinkers, including Adam Smith. I believe that we are globally not practicing capitalism as so defined, but that we are instead predominantly on the path of mercantilism by virtue of the manipulation of credit by sovereign governments and central banks, lately through the process of quantitative easing.
Once it is accepted that our world is replete with mercantilism and that there is in fact a severe manipulation of free markets by and for the few, the answer to the question as to what tone at the top really exists will lead us to conclude that, far from being led by the invisible hand, we are, as humanity, led by the manipulation of credit.
This being the case, treating the symptom of corruption is similar to a doctor treating a patient's symptoms without regard to the underlying causes of the disease. The disease will recur ad infinitum and require increasing doses of whatever prescription to maintain a semblance of normalcy and a patient that is in some semblance of health.
This is how I would actually liken the progress in combating corruption these 25 years. And unless we recognize this fact, the next 25 years will see an ever expanding arsenal of detailed regulatory interventions, supported by an ever increasing cohort of compliance professionals.
Ferdinand
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