«The Good Bribe Philip M. Nichols* Bribery is justifiably condemned, and is the object of a global legal campaign. This article asks whether payment ...»
Second, and more importantly, as Klitgaard himself makes clear, the optimal level of corruption argument is not really an argument for corruption.142 The elimination of corruption remains a worthy goal.143 The cost-benefit analysis serves merely to remind those who develop anti-corruption programs of the constraints imposed by reality.144 At most, the optimal level of corruption argument addresses the concerns raised by Rose-Ackerman and others concerned with the harms imposed by corruption. The optimal level of corruption argument acknowledges those harms but suggests as a matter of theory that the cost of preventing all corruption would be even more burdensome for society. The optimal level of corruption argument does not in any way, however, address the observations of Noonan or Klitgaard. It would be difficult to argue that just because it is expensive to prevent the payment of a bribe, that a bribe somehow 140 See generally Matthew C. Turk, A Political Economy Approach to Reforming the Foreign Corrupt Practices Act, 33 NW. J. INT’L L. & BUS. 325, 354 n.150 (2013) (“It is likely impossible to exactly specify the optimal level of FCPA enforcement on a global scale — taking into account supply- and demand-side enforcement by the United States, other OECD states, and Host countries — in any meaningful or rigorous way.”).
141 See generally Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1221 (2001) (“[Q]uantifying the social cost of corruption is hardly a straightforward task.”); Steven L. Schooner, Fear of Oversight: The Fundamental Failure of Businesslike Government, 50 AM. U. L. REV. 627, 709-12 (2001) (criticizing optimal level of corruption arguments for failing to account for secondary benefits of eradicating corruption).
142 KLITGAARD, supra note 54, at 24 (“I did not mean that an ideal world would contain corruption, nor that if we could remake a society completely we would want any corruption.”).
143 See, e.g., Vincent R. Johnson, Corruption in Education: A Global Legal Challenge, 48 SANTA CLARA L. REV. 1, 29 (2008) (“As a matter of principle, the total elimination of corruption is an appropriate goal — perhaps the only appropriate goal.” (emphasis added)).
144 See id. (advocating a practical approach and suggesting that “perfect enforcement of ethical principles should not be the objective”). Bryane Michael proposes a practical use of cost-benefit analyses, by linking anti-corruption agencies’
budgets to successful enforcement. Bryane Michael, Issues in Anti-Corruption Law:
Drafting Implementing Regulations for Anti-Corruption Conventions in Central Europe and the Former Soviet Union, 36 J. LEGIS. 272, 286-87 (2010).
University of California, Davis 674 [Vol. 49:647 would not be morally condemned, or that that bribe would not interfere with the relationship between the public and their government. The optimal level of corruption argument, in other words, does not support the notion of a good bribe.
III. THE GOOD BRIBEAuthoritarian regimes offer a final place in which to find a justifiable bribe. Corruption does occur in democratic countries. The United States, generally considered a democratic country,145 suffers from corruption.146 Indeed, in states such as Illinois corruption appears commonplace.147 It would trivialize the hardships experienced in nondemocratic countries, however, to not acknowledge that much of the corruption found in the world occurs in authoritarian regimes.148 Authoritarian regimes tend to be repressive.149 Arguably, bribes might be justified as a means of escaping such repression.
A. The Argument in General In authoritarian regimes personal space and freedom is by definition limited. Activities that persons might think of as normal are often prohibited.150 Such activities, therefore, take place in a private realm 145 See, e.g., Arch Puddington, Discarding Democracy: A Return to the Iron Fist, FREEDOMHOUSE.ORG 14 (2015), available at https://freedomhouse.org/sites/default/ files/01152015_FIW_2015_final.pdf (depicting the United States on a map as “Free”).
146 See, e.g., Philip M. Nichols, The Perverse Effect of Campaign Contribution Limits:
Reducing the Allowable Amounts Increases the Likelihood of Corruption in the Federal Legislature, 48 AM. BUS. L.J. 77, 83-85 (2011) (discussing perceived levels of corruption in the United States, especially in Congress).
147 See, e.g., Adam M. Samaha, Regulation for the Sake of Appearance, 125 HARV. L.
REV. 1563, 1615 (2012) (noting “[t]he familiarity of former Illinois governors with the criminal justice system”).
148 See, e.g., Eric Chang & Miriam A. Golden, Sources of Corruption in Authoritarian Regimes, 91 SOC. SCI. Q. 1, 1 (2010) (“[N]ondemocratic regimes... are on average more corrupt than regimes where political leaders are freely elected....”).
149 See Mark Tushnet, Authoritarian Constitutionalism, 100 CORNELL L. REV. 391, 446 n.288 (2015) (“In my view, the literature on stable authoritarian regimes locates a great deal of the stability in authoritarian repression, often violent, and fraudulent elections.”).
150 The manner in which authoritarian regimes repress their people and the specific modes of life that are repressed vary, of course, from regime to regime. For very thoughtful accounts of life in repressive regimes, see, for example, BLAINE HARDEN,
ESCAPE FROM CAMP 14: ONE MAN’S REMARKABLE ODYSSEY FROM NORTH KOREA TO
FREEDOM IN THE WEST (2012); HARRIET ANN JACOBS, INCIDENTS IN THE LIFE OF A SLAVEGIRL: WRITTEN BY HERSELF (Jean Fagan Yellin ed., Harvard Univ. Press rev. ed. 2000) (1861); ALEKSANDR SOLZHENITSYN, THE GULAG ARCHIPELAGO (Thomas P. Whitney The Good Bribe 2015] 675 outside of the scrutiny of the government.151 Legal sociologist Kim Scheppele has described how this arrangement led to corruption in the former Soviet countries through the creation of unofficial economies.152 The desire for a private sphere, however, also contributes to bribery. In particular, people who live in authoritarian regimes can buy private space through the payment of bribes.153 Bribes, therefore, are paid so that people may engage in activities such as practicing a religion,154 secretly learning to read,155 bartering and exchanging goods,156 or visiting family.157 trans., 1973). For further discussion, see generally Daniel Byman & Jennifer Lind, Pyongyang’s Survival Strategy: Tools of Authoritarian Control in North Korea, 35 INT’L SECURITY 44, 47-58 (2010); Andrei Plesu, Intellectual Life Under Dictatorship, 49 REPRESENTATIONS 61 (1995).
151 See, e.g., George L. Priest, The Ambiguous Moral Foundations of the Underground Economy, 103 YALE L.J. 2259, 2262-68 (1994) (discussing the creation of numerous unofficial markets in the Soviet Union, which “prohibited a wide range of private economic activities”); Jeanne L. Schroeder, Commentary, The End of the Market: A Psychoanalysis of Law and Economics, 112 HARV. L. REV. 483, 535 n.181 (1998) (referring to the black market in the Soviet Union); Hansjörg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AM. J. INT’L L. 46, 56 n.44 (2001) (describing the creation of unofficial institutions among ethnic Albanians in Kosovo).
152 Kim Lane Scheppele, The Inevitable Corruption of Transition, 14 CONN. J. INT’L L.
509, 514-18 (1999).
153 See, e.g., James Heinzen, The Art of the Bribe: Corruption and Everyday Practice in the Late Stalinist USSR, 66 SLAVIC REV. 389, 389 (2007) (“Bribery was an everyday phenomenon in the late Stalinist USSR. The bribe represented a particular variety of informal relationship between the Soviet population and representatives of the state.”); David Remnick, Soviet Union’s “Shadow Economy” – Bribery, Barter, BlackMarket Deals Are The Facts Of Life, SEATTLE TIMES (Sept. 22, 1990), http://community.seattletimes.nwsource.com/archive/?date=19900922&slug=1094485 (“[N]early everyone now must participate in the immense ‘shadow economy’ of speculation and petty bribery, barter deals and black-marketeers.”).
154 See, e.g., Burma, U.S. DEP’T STATE 8 (last visited Oct. 29, 2015), http://www.state.gov/documents/organization/171649.pdf (describing bribes paid to practice religion in Burma).
155 See, e.g., HEATHER ANDREA WILLIAMS, SELF-TAUGHT: AFRICAN AMERICAN EDUCATION IN SLAVERY AND FREEDOM 20 (Waldo E. Martin, Jr. & Patricia Sullivan eds., 2005) (describing bribes paid by slaves in the United States to procure education).
156 See, e.g., Duncan DeVille, Combating Russian Organized Crime: Russia’s Fledgling Jury System on Trial, 32 GEO. WASH. J. INT’L L. & ECON. 73, 85 (1999) (describing bribes paid to allow black markets in the Soviet Union).
157 See Soo-Am Kim et al., Relations Between Corruption and Human Rights in North Korea, KOR. INST. NAT’L UNIFICATION 30, 44 (July 2013), available at http://www.kinu.or.kr/upload/neoboard/DATA05/ss13-02.pdf (describing bribes paid for mobility in North Korea).
University of California, Davis 676 [Vol. 49:647 Activities such as learning to read and visiting family are undeniably desirable; it may be tempting to proclaim bribes paid in authoritarian regimes as good. Such bribes, however, merit some scrutiny. Such bribes might prolong the authoritarian regime and delay reform. It is also difficult to distinguish between these inoffensive bribes and bribes that inflict societal damage.
Despite the caricature image held by many who live in democratic regimes, leaders in authoritarian regimes usually depend on the support of others in order to maintain power.158 Material reward is a common and successful incentive offered for that support.159 Institutionalized corruption, in turn, is frequently the mechanism used to provide material reward to politically relevant supporters.160 In such a system, bribes paid in order to secure personal freedoms may, ironically, support and prolong the regime that denies personal freedom.
A blanket assertion that bribes may be paid in authoritarian regimes also raises concerns about distinguishing between repressive dictatorships and imperfect democracies. A Sudanese student studying in the United States argues that [M]any countries, including the United States and Great Britain, have “winner takes all” elections that limit meaningful representation of minorities. When such deprivation is permanent and systematic, as is the case in pluralistic or heterogeneous societies, the line between democracy and tyranny is often blurred.161 Even though the United States, for example, is objectively regarded as free it is not difficult to find U.S. citizens who consider it to be oppressive. Rose-Ackerman discusses these critics, who “argue that 158 See generally Barbara Geddes, Authoritarian Breakdown, UCSD.EDU 5-7 (Jan.
2004), available at http://pages.ucsd.edu/~mnaoi/page4/POLI227/files/page1_11.pdf (discussing features of different authoritarian regimes).
159 See Joseph Wright, Do Authoritarian Institutions Constrain? How Legislatures Affect Economic Growth and Investment, 52 AM. J. POL. SCI. 322, 323 (2008) (“The basic method of rule in personalist regimes is simply the exchange of material rewards to a select group of regime insiders in return for mobilizing political support [(e.g., a legislature)].” (citations omitted)).
160 See BRUCE BUENO DE MESQUITA ET AL., THE LOGIC OF POLITICAL SURVIVAL 204 (2003) (discussing perpetuation of the “loyalty norm” in corrupt regimes through “access to private goods”).
161 Ahmed T. el-Gaili, Note, Federalism and the Tyranny of Religious Majorities:
Challenges to Islamic Federalism in Sudan, 45 HARV. INT’L L.J. 503, 509 (2004).
Although it has experienced some transition, “Sudan remains governed by authoritarian elites.” Mark Fathi Massoud, International Arbitration and Judicial Politics in Authoritarian States, 39 L. & SOC. INQUIRY 1, 26 (2014).
The Good Bribe 2015] 677 market actors who pay bribes to avoid complying with the rules, to lower tax bills, or to get favors, limit the harm that the state can do and consequently enhance the benevolent operation of the free market as a locus of individual freedom.”162 These claims may be easy to refute in a fairly democratic country such as the United States;
distinction becomes less clear when the arguments are applied to a historically oppressed people within a democracy, or to a flawed or semi-democracy.