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6. Possible remedies
It is said among doctors that when there exist large numbers of alternative treatments and medicines for a disease, it is a sign that none of them is effective. This observation certainly applies to the control of the organized crime and the political corruption which so often accompanies it. A leading member of Transparency International, an international organization which campaigns against corruption, expressed the following view when asked for his suggestions for this report:
Similarly, a recent survey of experiences by experts for a recent Symposium on Enhancement of Probity held by the Organization of American States was only able to come up with highly general conclusions, which seemed to restate the problems without suggesting solutions. This is no reflection on the work of the international group of experts, but was an indication of the intractable nature of the problems. The main conclusions were:
It is essential to reinforce ethical values in order to improve democratic systems ...
... it is important for the ... Working Group on Probity and Public Ethics to resume its work ... so that more specific goals could be set and concrete action taken ...
It is particularly important to take an integral approach to the phenomenon of enhancing probity and public ethics and preventing and combating corruption, as it includes cultural, social, political, economic, legal, and institutional aspects. (Organization of American States, 1999, 3.)
Based on a variety of publications and reports in addition to that of the Organization of American States, A considerable number of possible remedies and approaches will be summarized and the disadvantages of most of them will be mentioned. Positive recommendations will then be suggested.
EDUCATION:
1. Training of public officials in public ethics for public officials, policemen and others.
The International Association of Schools and Institutes of Administration and such scholars as 0. P. Dwivedi have stressed the importance of including ethics within courses for administrators. (See, for example, Dwivedi 1988.) Over the long run, the educational approach is potentially crucial. When short-term change is required, the educational remedy is less effective since changes in attitudes and moralities cannot be achieved overnight.
MANAGERIAL METHODS:
2. Managerial, auditing and investigative techniques. One experienced international consultant, Robert Klitgaard, has claimed that «when auditing is strong, corruption can be dramatically reduced, even in what seem to be hopelessly corrupt surroundings.» (Klitgaard, 1988, 83.) Similarly, in the words of a report by the United States Agency for International Development,
Proven professional practices and techniques must be applied ... To this end, consultants must be recognized professionals in their fields with practical, real world experience.
Despite this faith in the value of the accountancy and auditing procedures practiced by the major Western accountancy firms, the same results are unlikely to be achieved in countries where record-keeping is deficient, where there is are great amounts of 'black' money, and where there are overwhelming political pressures on auditors.
3. Rules for awarding public contracts. Corrupt political contributions are often given by entrepreneurs who are seeking the award of profitable public contracts (for example, to construct a public building or to supply food to the army, etc.). Therefore, the introduction of strict rules for the award of such contracts will arguably reduce the scope for corruption in such contracts.
Unfortunately, there are frequently easy ways to circumvent the rules. Even if regulations specify that contracts must be advertised, that bids must be submitted confidentially (for example, in sealed envelopes), and that contracts must be awarded to the lowest bidder, it will still be possible to favor contractors who have made political contributions. Nearly one hundred years ago, the famous American anti-corruption journalist, Lincoln Steffens, revealed how a large contract had been awarded to a political friend of the city government in Pittsburgh. The government wished to award a contract to the owner of a stone quarry. The stone in this particular quarry had a gray streak. Therefore the specifications for the building said that the stone had to have a gray streak. In theory, several owners of stone quarries were free to enter an apparently open competition for the contract. In reality, only one single stone quarry produced the particular type of stones which had been specified.
This same technique is widely used today, especially where major international arms contracts are concerned. If the arms manufacturers have succeeded in bribing the officials of a country wishing to purchase arms, they will commonly arrange for the specification of the aircraft or the gun or the signals system to be purchased matches the capabilities of the product of the favored client. There is thus the appearance but not the reality of 'fair' competition.
ECONOMIC AND SOCIAL FREEDOM
4. Reducing the amount of government. Corruption is a way to avoid governmental regulations. It follows that the more regulations, the greater the scope for corruption. An example of this is the experience of the United States during 'Prohibition' (the era when an amendment to the US Constitution prohibited the manufacture and sale of alcohol). The legal ban on intoxicating drinks did not lead to a decline in consumption but only to illegal drinking and, associated with this, to the rapid growth of corruption as policemen were paid by organized criminal gangs to turn a blind eye. Other regulations in parts of the United States designed to regulate private morality have also led to widespread evasion and thereby to crime and political corruption. Laws concerning gambling, pornography and prostitution are examples. These laws have frequently led to police corruption, especially in major cities.
Restrictions are sometimes inevitable and justified. There must be regulations and taxes. To give two extreme cases, it would be unthinkable to relax rules concerning the licensing of brain surgeons or regulations concerning the servicing of commercial aircraft. As far as pollution by industrial enterprises is concerned, it is thought by many that there should be stricter controls. Poor nations must sometimes introduce restrictions on imports in order to protect their economies.
Nevertheless, some countries are arguably afflicted by a plague of needless regulations and licenses. The case for reducing restrictions against private enterprise is a theme of a Peruvian work which received strong backing from political aid bodies in the United States. Written by Hernando de Soto, and titled The Other Path, it suggested that those wishing to establish small businesses or to open shops were obliged to meet dozens of different regulations and that these regulations could only be handled if the would-be entrepreneur paid dozens of bribes. A bonfire of bureaucratic controls would lead, suggested de Soto, to economic growth; corruption would wither.
LEGAL REFORMS:
Lawyers specializing in policy concerning major frauds and organized crime have succeeded in recent years in persuading a number of governments to enact special laws designed to make it easier to convict and to punish the crime bosses.
5. Electronic surveillance. The American federal statutory law of electronic surveillance is generally contained in laws passed in 1968 and 1986. According to the director of the New York State Organized Crime Task Force, Ronald Goldstock:
«The value of electronic surveillance in dealing with the problems of organized crime, labor racketeering, narcotics trafficking, and official corruption cannot be exaggerated The American experience has been that virtually all of the major cases in these areas have relied on this investigative tool and that fact-finders can be confident in decisions based upon recorded evidence.» (Goldstock, 1991, 137)
However, there are obvious dangers to civil liberties if bugging is practiced too widely and for the wrong purposes. The 1968 US electronic surveillance law embodied five basic principles:
 it should be used only as a last investigative resort,
those who use it should be closely supervised,
those who supervise should be held accountable,
surveillance must conform to guidelines of the US Supreme Court,
penalties for misuse must be strictly enforceable. (135-6)
6. Immunity and witness protection. A conviction against a top crime boss will often require testimony from one of his associates. In view of the terrible revenge which crime gangs will often take against those who not only give information against them to the police but also are prepared to stand up in court to support the prosecuting lawyers, special measures are needed to protect such witnesses. Techniques which are used together to encourage such evidence are the offer of legal immunity from prosecution for the informer and - more difficult - the offer to provide police protection to members of the potential witness's family and even to provide an entire new, disguised identity to the informer - a new name, new home, a faked family history and so forth. Obviously, the costs of witness protection are sufficiently large to make this method practical only when a case against a major criminal is being prepared.
7. Forfeiture of assets. If a wealthy criminal - such as a dealer in narcotic drugs - is sentenced to a term of imprisonment, this may not be an onerous punishment if the criminal knows that he will emerge from prison as a rich man and that he will be able to resume a luxurious style of living. A stronger deterrent may be the threat that most or all of a criminal's assets - not merely those involved in the specific offence for which he is prosecuted - may be confiscated. According to Goldstock,
«Forfeiture may be one of the most significant remedies available to law enforcement. Few others have the capacity to accomplish so much:
a) to interfere with the underlying criminal activity,
b) to interfere with the organization engaging in that activity,
c) to act as a deterrent to the defendants and others,
d) to punish those who have engaged in criminal activity,
e) to deny criminals unjust enrichment... and
f) to produce revenue for law enforcement.» (Goldstock, 1991, 140.)
The British legal scholar and former official, Barry Rider, has pointed out that laws on the forfeiture of criminals' assets have a disadvantage. They lead to increasingly sophisticated methods of money laundering. (See item 9 below.) (Rider, 1996, 14 ff.)
8. Centralization of authority: special judges and prosecutors. It is easier for organized criminals to dominate the politics of a town or province and to corrupt the local police than it is to corrupt the politicians and law enforcement agencies of an entire nation. Where a local police force has been thoroughly infiltrated by and subverted by criminals and by their political associates, the only way to secure convictions is to assign the tasks of law enforcement to a central body. The importation of prosecutors and special judges from outside of the town or region may also be essential if there is an increased threat of assassination (as exists in Italian island of Sicily) against honest, determined judges and against their families if they are local residents.
At the level of one of the states in the USA, this means setting up a task force at the state level (for example New York State or Pennsylvania) in order to control wrong-doing in a locality (for example, within New York City or within Philadelphia). At the national level, centralized crime-busting means the establishment of agencies with special skills and special legal rights.
In the United States, the Federal Bureau of Investigation was established before the Second World War ostensibly to carry out investigations and to make prosecutions concerning crimes which went beyond the territory of a single state. In fact, one of the real motives was to set up a force that would be able to act in places where the local police were unable or unwilling to do so.
Centralized law-enforcement units too have their own problems. They may all too easily become entangled in national politics. For many years, the director of the Federal Bureau of Investigation, J. Edgar Hoover, gave a low priority to the fight against organized crime because he was more concerned to combat political subversion and Communist influence.
Another problem for centralized law enforcement bodies is that they may lack the specialized know-how to carry out a successful investigation into a local criminal syndicate. It may prove impossible for outsiders to penetrate a tightly-knit gang, especially if the members are all drawn from a special ethnic group, speak a foreign language and share habits and loyalties.
9. Rules for banks intended to control money-laundering. 'Money laundering' is the name for the process by which money derived from illegal activities is disguised, frequently by moving it through a series of different bank accounts in different countries, so that it emerges as apparently 'clean', legal money.
The main way to control the laundering of money through the banking system is to place upon banks an increased burden of recording transactions and of inquiring into the provenance of funds. Measures have been introduced mainly but not exclusively to control the laundering of the profits of illegal trafficking in narcotics. (Rider, 1991, 8.)
In Britain, the laundering of the proceeds of drugs related crimes was made an offence by the Drug Trafficking Offences Act 1986. In 1993, the European Community's Directive on Money Laundering was brought into British law by The Criminal Justice Act 1993 and made the laundering of the proceeds of all offences - not just from drugs trafficking - a specific criminal offence under British law. (Rider, 1996, 14 ff.) Among the legal provisions which have been introduced are requirements that officials (for example of a bank) must report suspicions of money-laundering and that they must not tip-off another person that an investigation into money-laundering is in progress.
In the United States and other countries it is the practice to require by law «the reporting to an official agency of all cash and certain other financial transactions in excess of a specific amount. This was opposed by the British banking community on the basis that it would be unworkable.» (Rider, 1996, 20.)
Laws against money-laundering are not ideal. They impose heavy, expensive administrative burdens and thus are to the disadvantage of honest businesses. Moreover, the introduction of such laws will normally have the effect of making the laundering process more costly but they will not eliminate money-laundering altogether. Prosecutions for the laundering of ill-gotten money often prove complex and expensive, especially as the 'hot' money tends to move across a number of countries.
INTERNATIONAL MEASURES:
It is only relatively recently that the international community has started to take problems of corruption seriously. In the 1960s and 1970s, the assumption of many of the leading scholars of economic development (and - connected with this - the thinking of their governments) was that political corruption was frequently beneficial. By allowing international corporations to evade tiresome local regulations and restrictions, corruption - it was argued - oiled the wheels of economic progress. The Harvard University scholar and adviser to the US government, Samuel Huntington, wrote that corruption was sometimes an alternative to violence and «may be the means of assimilating new groups into the political system.» (Huntington, 1968, 379.)
Since the late 1980s, the World Bank and other international agencies have taken the view that political corruption is not only damaging but that it is extremely significant. There has therefore been no shortage of international conferences and declarations on the subject.
10. International agreements, conventions and exchanges of information. A recent example is the Organization for Economic Cooperation and Development's Convention Against International Corruption. This has been signed by 34 countries and has been introduced in 1999 with considerable fanfare. The question is whether international declarations are sufficiently precise and whether concrete actions will stem from them. It is simple for a government to sign declarations and thereby to declare that it is on the side of the angels. Taking action against criminals whose main operations are in some foreign country may prove less attractive to that same government, especially if local politicians have been implicated in and have profited from such operations.
11. International cooperation between police forces. Almost one-third of the workload of Interpol reportedly involves crimes related to drugs-trafficking and to the political corruption which is often connected with it. (Kendall, 1987.) The fact that organized crime is itself international makes it vital for governments to cooperate with each other in the battle against such crime.
The tasks of international cooperation are hampered, however, by rivalries between different international organizations, by the lack of resources and trained staff at the disposal of bodies such as Interpol, and by the role of some small sovereign states.
The break-up of the former colonial empires has led to the creation of a considerable number of very small and very poor nations. Some of these nations must devise ingenious schemes for gaining foreign currency. Sales of postage stamps and the provision of cheap facilities for registering ships ('flags of convenience') are examples of such schemes. In some tiny countries, off-shore banking ('tax havens') is a source of profit. But there is also the temptation for the political leaders of mini-nations to succumb to the lures of international criminals. Rider is one scholar who has frequently complained about the damage done by these mini-nations when they come under the influence or control of a drug-trafficking syndicate. In 1987, Rider maintained that one independent island-state in the Pacific had been taken over by organized criminals from Japan. The existence of such havens for criminals can serious impede international anti-crime operations.
12. Economic aid intended to reduced incentives for crime. On the assumption that poverty leads farmers in Colombia and other remote areas to agree to grow poppies for opium and to produce other narcotics, one policy is to provide economic aid to enable them to make a more honest living. Such aid is one possible way in which rich countries where drugs are subsequently purchased and consumed (for example, the United states) can hope to combat the drug trade. The success of this strategy is doubtful.
13. Conditionality of aid. Donor countries which provide financial assistance (especially to the Third World) have become more willing to make their aid conditional upon the recipient nations' willingness to take the fight against corruption more seriously.
INFORMATION:
14. Promoting press freedom. Around the world, the press has regularly played the crucial role in exposing corruption. It was Per Spiegel, which revealed in west Germany in the early 1980s the massive scandals relating to illegal donations to political parties and to politicians that came to be known as the 'Flick Affair'. In Britain in the 1960s, it was the satirical magazine Private Eye which was largely responsible for bringing to light the web of corruption around the architect John Poulson. In Britain in the 1990s, it was The Sunday Times and The Guardian which revealed the questionable payments received by some members of Parliament from lobbyists. In India too it was the press which was responsible for exposing the Bofors scandal.
Whether or not there is an active, independent press will often depend upon the courage and vigor of journalists and the appetite of the public for news rather than on actions of the government. It may therefore be misleading to speak of promoting press freedom.
However, governments may certainly hinder press freedom in a number of ways. The harassment and arrest of journalists and unreasonably severe libel laws are methods whereby press freedom may be unreasonably restricted.
15. Mobilizing scandal. Following a major public scandal, there is likely to be a period of time during which politicians and administrators feel under pressure and are therefore more willing than normal to accept changes. Following the Watergate Affair in the United States, there was a period of years during which there was a special sensitivity to possible corruption. This enabled a large number of anti-corruption measures to reach the statute book. At a city level, a study by Lawrence Sherman, showed how the aftermath of a scandal provided the opportunity to tackle police corruption in a number of American cities in the 1970s. (Sherman, 1978.)
Nevertheless, the reforms which typically follow a public scandal may be of only temporary value. For example, in London, the task of cleaning up the Metropolitan Police became the priority of police commissioners in the 1970s and far-reaching organizational changes were made. It has become obvious that corruption in London's Metropolitan Police has not gone away, as current scandals demonstrate.
POLITICAL REFORMS:
16. Reforms of political institutions designed to limit rule by political bosses.
When campaigning journalists ('Muckrakers') revealed in the early twentieth century widespread and serious political corruption in the governments of some major cities and states, a 'political reform' movement was responsible for introducing a number of institutional measures designed to curb the prevailing ills.
Since the reformers attributed the problems of corruption to the excessive power of some leaders of party organizations at the city and state levels, the reforms were intended to limit these political 'bosses'.
In many cities, a single party was in almost permanent control. Whoever was selected as the ruling party's candidate for mayor or for the US Congress who be virtually assured of election. In order to limit the influence of party leaders over the crucial selection of these candidates, reformers in some states introduced 'primary' elections. Usually, these were elections in which all those registered as supporters of the party could vote to select the candidate.
A second device consisted of the rule that in each county, at least one of the main office-holders ('commissioners') should belong to the party which had lost the election. One-party rule and the evils that accompanied it would thus be lessened.
A third device was the 'recall'. If citizens were dissatisfied with the mayor of their city (or the governor of their state), they could organize a petition to hold an immediate further election. If a set number of citizens signed the petition, an election would be held to decide whether the politician should remain in office.
The results of these reforms were generally disappointing. Corruption and 'boss rule' were not eliminated. This was because professional politicians were able to work the new systems to their own advantage. For example, they could normally pay enough party workers to ensure that the strongest campaign for their favored candidate.
Another example of a recourse to institutional change as a response to scandal is Italy in the 1990s. The mountain of corruption uncovered in the 1990s was blamed on the fact that the Christian Democrats had remained in office throughout the period after the Second World War. This, in turn, was blamed on the electoral system of proportional representation, which led to inevitable coalition governments and to the virtually impossibility of ousting the Christian Democrats from power. By popular demand, the electoral system was reformed so that it became less proportional. The Christian Democrats disintegrated as a political party. However, the extent to which this political change stemmed from the change in the electoral system is unclear.
In short, it is not possible to rely on general reforms in political institutions as a method of eliminating political corruption.
17. Bans against criminals as candidates for public office. The question of whether criminals should be banned from presenting themselves as election candidates has been actively discussed in Russia and deserves therefore to be considered in some detail.
International comparisons show that rules vary widely from country to country. (See Appendix 2.) There are many examples of countries where criminal convictions disqualify citizens from standing as candidates for elective office and some examples of other countries where there is no such disqualification. Moreover, the details of such rules differ. In New Zealand, the ban on candidature applies only to those with a prison sentence of at least three years; in India, the sentence must have been at least two years and must Also have been imposed within the last six years; in Austria, the sentence must be one of at least one year.
Foreign rules, therefore, do not offer a clear guide, though they show clearly that there is no shortage of precedents for banning those with criminal convictions from becoming candidates.
However, when it comes to a ban on candidature by those charged but not yet convicted of a criminal offence, there do not appear to be examples.
It is not enough merely to look at the rules in foreign jurisdictions, it is important to consider also the rationale for the rules and to determine whether the various restrictions on candidatures are imposed in order to limit possible corruption or for some other purpose.
The normal rationale for a ban on candidature by criminals has nothing to do with a desire to control corruption. In most countries, the right to stand as a candidate is more restricted than the right to vote. The principle that democratic elections involve a universal right to vote means that there must be compelling reasons to prevent a citizen from the franchise. Normally, the only restrictions are age (voters must be above a certain age, usually 18 years old) and they should be mentally capable of voting. Severe mental incapacity is often a barrier against the right to vote. When it comes to the right to stand for election, the qualifications are sometimes higher on the ground that elective office carries greater responsibilities and power than mere voting. Thus, the qualifying age for candidates is higher in some countries than for voters. By the same reasoning, criminals are in many countries considered unsuitable for public office.
It is unusual to consider introducing a ban on criminals standing for election as an anti-corruption measure. It is necessary therefore to analyze the particular circumstances which may encourage persons connected with organized crime to put themselves forward as candidates. They will have the motive to do this if two conditions are fulfilled: (a) if they have been charged with a criminal offence but have not yet been convicted or if they fear being so charged and (b) if members of the legislature (or other elected officials such as governors or mayors) are exempt from criminal prosecution. It is only when these conditions apply that electoral success will save a criminal from punishment.
However, a ban on candidature by criminals (though probably justified on the general ground of lack of suitability) is not the only way or the best way to ensure that Parliament cannot be used as a refuge from imprisonment. The alternative is to change the rules relating to parliamentary immunity so that legislators may be prosecuted for criminal offences. Indeed, the most important issues about the possible entry of professional criminal into public life arguably concern such immunity rules rather than rules about the qualifications of candidates.
Immunity from prosecution for members of a legislature is to be found in a large number of countries. But it is necessary to distinguish three different levels of immunity:
a) Limited immunity. In Britain, members of Parliament cannot be prosecuted in the courts for libel on the basis of their statements in the House of Commons. This limited immunity has the purpose of allowing legislators to talk freely in parliamentary debates and without fear of prosecution in the law courts by powerful and rich individuals whose activities they may wish to expose.
But there is no immunity from prosecution for actions by a member of Parliament which are not directly connected with his official duties. For example, a member of the House of Commons who is suspected of committing a murder or of being involved in a robbery or any other ordinary crime is liable to prosecution in the normal manner.
b) Unlimited immunity which may be waived by a vote in the legislature. In some countries, members of the legislature have a much larger measure of immunity than in Britain. This is because of past histories which lead to the conclusion that legislators may be subjected by the government of the day to trumped up charges. For instance, unjustified charges of murder or of robbery may be brought against an awkward legislator in order to put him under political pressure.
In order to deal with this potential danger, legislators receive immunity from prosecution for criminal or civil offences. But in order to ensure that genuine crimes do not go unpunished and that the rule of law is safeguarded, the members of the legislature may vote to lift the immunity of a parliamentary colleague. Immunity will be lifted when criminal charges seem to be solidly based and do not derive from obvious political motives.
c) Unlimited and unconditional immunity. This system is like (b) except that immunity may not even be waived by the legislature itself. It is only in these extreme conditions that a place in the legislature provides a safe haven for the ordinary criminal.
Further issues arise from current debates in Russia. Is there any justification for a ban on candidature by those who have merely been charged but not yet convicted of law-breaking? And is there any justification for a rule that pending charges should be listed under a candidate's name on ballot papers in order to alert the electors? In my view, both these things are unjustified. Both measures contravene the principle that someone is innocent until proved guilty in a court of law.
The following conclusions emerge:
If the objective is to ensure that elective offices cannot be used as havens for criminals, the best way to achieve this is to modify the regulations concerning immunity. It is undesirable that immunity for members of the legislature should be both unlimited and unconditional. The rules summarized in (a) and, to a slightly lesser extent, in (b) above will both lessen the attractions of public office for crooks.
A ban on public office for convicted criminals is justified provided that there is a fair degree of faith in the system of justice. There may be a justification for restricting the ban on convicted criminals to those who have been brought before the courts after the introduction of competitive elections in Russia.
Rules which aim to penalize candidates on the basis of pending but unproved charges are unnecessary and undesirable.
18. Conflict of interest rules. One way to control corruption is to limit as far as possible the potential for corruption. The term 'conflict of interest' refers to a situation which provides a temptation for corruption. For example, a judge will have a conflict of interest if he (or she) is required to participate in a criminal trial in which the accused person is a close relative. Even if the judge acts fairly, the possibility of apparent or real injustice is so great that the judge must normally refuse to take part in the trial.
For the same reason, legislators, ministers and members of the bureaucracy should also avoid conflicts of interest. For example, a minister or civil servant who has a responsibility to advise or to decide on the award of contracts for military equipment should not leave his public position and become an employee of one of the arms companies whose contract bids he handled while in office. If someone is permitted to move between positions in the government and in companies which seek contracts from the government, there will be a strong temptation to use his public position to benefit his future employer. Indeed, a highly paid job in the private sector for a former minister or parliamentarian may justly be viewed as an indirect bribe - or, at least, as a potential bribe.
It is sometimes argued that it is in the public interest to permit an easy flow of personnel between the private and public sectors. Someone with experience in the arms trade may then be well placed to know the tricks of the trade and therefore to be able to act more effectively as a regulator. Moreover, opportunities for public officials to move into jobs in the private sector during some point in their careers may make employment in the public service more attractive and may thereby attract a higher quality of applicant.
These arguments cannot be dismissed. But they must be weighed against the potential for corruption when officials are permitted to move too easily between the public and private sectors. One common device to control such career moves is to impose a rule that a minister or civil servant must wait for a minimum period of time after leaving the government before he is permitted to take a job with a company with which he has had dealings in his public capacity. For instance, a minister who has had responsibility for the procurement of armaments should not be permitted for a period of two years after leaving office to find employment with an arms company.
Such rules are vital in the armory of anti-corruption measures. But they must be strictly enforced. It is possible to find ways of evading the rules and the loopholes must be closed. If an ex-minister is banned from working for an arms company for a period of two years, he may find employment instead with a bank. Seemingly, such employment will have no link with his former official duties. But what if the ex-minister's responsibility at the bank concerns the financing of one of those arms companies?
In the United States, the practice of moving between jobs in the government and in private industry and commerce is called the 'revolving door'. The practice leads to endless problems of conflicts of interest. (For Britain, see Pinto-Duschinsky, 1989.)
19. Limitations on campaign expenditures. The imposition of a legal limit on the amount of money a candidate or a political party is permitted to spend on an election campaigning is superficially appealing. According to Transparency International, this method is the only way to control corruption linked with organized crime. If no candidate or party is permitted to spend heavily, then there will be less temptation to seek campaign contributions from criminal sources.
Yet, legal limitations on campaign spending have proved extremely hard to enforce and for this reason have usually proved ineffective. There are several problems.
Difficulty of defining an 'election' expense . If 'election expenses' are subject to legal restrictions but non-election expenses are unrestricted, it will be tempting - and practical - for candidates to define their costs wherever possible as 'non election' items. For example, a candidate who is already a member of the legislature may spend heavily on communications with electors and claim that he is doing this not for electoral purposes but to give a good service to his constituents. In the United States, incumbent members of the House of Representatives regularly and notoriously use their office allowances for what are effectively campaign purposes. (They are not, however, subject to a legal spending limit.) In US presidential elections, in which a spending limit is enforced, the rules are evaded by claiming that major items of expenditure are for the purpose of 'building the party organization' or to prepare for elections for local offices and not for the presidential campaign. These excuses are used blatantly and on a large scale.
Difficulty of defining when an election campaign starts. In countries such as Britain, parliamentary candidates are subject to spending limits, but there is no clear legal definition of the date at which the campaign starts. According to rules which have been proposed for Britain by the Committee on Standards in Public Life, 'election expenses' will in future be defined as all expenses which have the 'foreseeable consequence' of affecting public opinion concerning the election. This is so vague that the rules - if they are passed into law - will be extremely difficult to define and to enforce.
Problems arise also in countries in which the starting date of an election is precisely defined (as in Canada or in Japan). If there is an exact starting time for the official campaign, candidates and political parties will have a strong incentive to concentrate their expenditures on the period just before the start of the campaign.
Use of interest groups for campaign purposes. If political parties and candidates are subject to spending restrictions, there will be an incentive to channel political spending through interest groups and other political organizations which are ostensibly independent but which are in reality linked with a particular political cause.
Apart from these problems, it is difficult to detect cash payments to party workers or other indirect financial investments in campaigning. It is the broad experience of scholars of political financing that spending limits are usually ineffective. The most plausible justification for such limits is that, even if they are disregarded, they will serve to restrict some blatant forms of spending. The analogy given by proponents of spending limits for national party organizations in general elections in Britain is that such limits are likely to have the same effect as speed limits on the roads. If drivers are restricted to a speed of 60 kilometers per hour, they will ignore the limit; but they may at least drive only at 80 or 100 kilometers per hour whereas they might otherwise have attempted 150 kilometers per hour.
20. Public funding political parties and political campaigns. Herbert E. Alexander (1985, 96) has suggested that the provision of public funding for political campaigns will reduce the need and the demand for 'dirty money'. Referring to the situation within the United States, he writes:
«if political money remains relatively scarce and alternative sources of financing are not readily available, the laws' prohibitions and limitations may get skirted. Too few laws at the federal or state level have been designed to assist candidates and parties in obtaining alternative sources of funds so that they need not rely on large contributions from special or corrupt interests.»
International experience suggests that public financing does not necessarily lead to the reduction or elimination of corruption related to political contributions. One has only to look at the situation in Italy to see this. As long as parties and candidates desire to beat their opponents - and this is the essence of the electoral process - they will seek to spend more money than their rivals. The provision of public funds may therefore result in an escalation of campaign costs and not to a reduced demand for private sources of money.
Nevertheless, public financing (and forms of in-kind subsidies such as free broadcasting facilities) may be justified on a separate ground. Though subsidies may not attack the problem of dirty money in politics, they will mitigate its effects by ensuring that 'honest' candidates will at the very least be able to express their viewpoints to the electors.
(For a fuller discussion of the broader advantages and disadvantages of different forms of public funding of elections, see Pinto-Duschinsky, 1998, especially the pcd files.)
21. Free access to public broadcasting and to other forms of publicity by political candidates and parties. This is arguably one of the most effective means to grapple with the problem of corrupt sources of political financing. First, it is east to introduce such a system in a short period of time (indeed it already exists in Russia and in many other countries). Second, it is comparatively easy to regulate and to enforce. Third, in view of the reality that the battle against corrupt sources of political financing will take a long time to win, free broadcasting facilities (as mentioned in item 20 above) are probably the best means of permitting 'honest' (and often poor) candidates to present their cases.
(For a fuller examination of issues concerning the allocation of free broadcasting time, see Pinto-Duschinsky, 1997.)
22. Controlling voting fraud. One of the traditional and most powerful means whereby major criminals gain political influence is by organizing and paying for voting frauds. It follows that schemes designed to control these frauds will lessen gang influence over the electoral process.
According to a graphic account by David Bellis (1985, 99 ft), voting fraud was the key to the influence of corrupt politicians in a small city where he was also a participant in public life. Bellis identified a number of different sources of election fraud:
Techniques used to fix elections include padding registration rolls, altering vote totals on tally sheets, actual ballot box stuffing, illegal registration and voting by nonresidents, illegal manipulation of the absentee voting process, voting in place of registered voters who have failed to vote, and intimidation of and actual physical assaults on voters.» (Bellis, 1985, 99.)
Bellis suggested that the absentee voting process in the Californian city about which he was writing was probably the main source of voting fraud. In order to promote participation in elections, there exist in most countries (including the United States) special provisions to allow the old and sick to vote without physically visiting a polling booth. They are permitted to cast an 'absentee ballot'. Abuses arise when the nurses in charge of the home or election officials 'help' aged residents to cast fill their ballots. It may be possible for them to ensure that the votes of all the residents are cast for a particular candidate in return for a financial reward. «In a small town where only 1000 or so voters turn out, 150 absentee ballots can control electoral outcomes.» (Bellis, 1985, 112.)
The modern trend is toward easier provisions for absentee voting, which encourages a higher turnout of electors but which, at the same time, makes voting fraud easier. In countries where voting fraud is prevalent, there is a strong case for restricting absentee voting rights. Another approach is to step up efforts to detect and to punish those responsible for organizing voter frauds. In practice, it will often be necessary to assign this task to a central election commission since local commission are more likely to be influenced by local political pressures.
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