STATE-BUSINESS RELATIONS AND POLICY

Elaine Yong Jamee Moudud Fiscal Sociology: “Public Finance and the Fiscal Crisis of the State” Fall 2015 Conference Project: State‐Business Relations and Policy INTRODUCTION The term “corrupt” as an adjective originates from the Latin word “corruptus” which means, “broken in pieces”. The general notion of corruption is that of dishonest or fraudulent conduct by those in power. It typically involves bribery and the abuse of power. There have been many attempts by international organizations like Transparency International, United Nations, and the World Bank to define corruption. Variations of such definitions can be found along the lines of “the misuse of a public or private position for direct or indirect personal gain” (United Nations Office on Drugs and Crime 23). For example, Transparency International defines corruption as “the abuse of entrusted power for private gain” (transparency.org) whereas World Bank defines corruption as “the abuse of public power for private benefit” (worldbank.org). Further attempts have been made to derive a more precise definition of corruption but these have been met with legal, political, and criminological problems across countries. In the 2002 United Nations Convention Against Corruption, consideration was given to forego precise definitions and to simply list a whole series of specific types or acts of corruption (United Nations Office on Drugs and Crime 23). However, human interaction is fluid and certain activities not commonly associated with the notion of corruption may actually be an act of corruption. Therefore, can all forms of corruption actually be easily identified and categorized? What are some useful indicators of corruption? According to Transparency International, corruption can exist in many forms. It can exist in the form of bribery of a law enforcement officer, embezzlement of company funds, the misuse of public funds, and more. It can be found in both the private and public sector and its effects can be felt across states on every level of society. The three general classifications of corruption are grand corruption, petty corruption, and political corruption. This is dependent on the amount of money lost and the sectors involved. These sectors include but are not limited to politics and government, public procurement, oil and gas industry, defense and security, judiciary, education, healthcare, sports and can affect issues such as poverty and development, climate change, humanitarian assistance, and access to clean water. Some forms of corruption include base erosion, profit shifting, beneficial ownership, secrecy, bribery, clientelism, collusion, embezzlement, extortion, fraud, illicit financial flows, money laundering, nepotism, offshore financial systems, opaque lobbying, petty corruption, political corruption, secrecy jurisdiction, solicitation, state capture, tax evasion, transfer mispricing, and more (transparency.org). In 2014, Transparency International published the Corruption Perceptions Index that measures the perceived levels of public sector corruption in 175 countries worldwide on a scale ranging from 0 to 100 with 0 as highly corrupt and 100 as very clean. The map can be found below in Figure 1.1. The results were alarming showing an average global score of 43/100 and 69% of countries scoring below 50/100. This means that more than half of the countries scored on the lower end of the corruption scale. The leading region was European Union and Western Europe with an average score of 66/100 and the lowest scoring regions were Sub‐ Saharan Africa and Eastern Europe & Central Asia, both averaging at a score of 33/100 (transparency.org). Only 2 countries – Denmark and New Zealand, scored above 90/100, and only 11 countries – Finland, Sweden, Norway, Switzerland, Singapore, Netherlands, Luxembourg, Canada, and Australia, scored above 80/100. On this scale, the U.S. ranks at number 17 out of 175 countries with a score of 74/100, and the UK ranks at number 14 with a score of 78/100, both missing the 80% mark. Figure 1.1: Corruption Perceptions Index 2014 Source: transparency.org As can be observed above, the aggregate results are not very promising. An apparent trend is that countries scoring on the lowest end of the corruption scale were those plagued by conflict and poverty. Corruption does not just fuel conflict and poverty but actually makes such issues harder to solve. Therefore, the aim of the corruption perceptions index is to force governments to take notice of the problems and to take necessary actions to counter corruption. It is important to note that the CPI is an indicator of perceptions of public sector corruption and does not encompass levels of corruption of entire nations or societies, their policies, or the activities of the private sector. Corruption is indeed a complex matter that comprises of multiple facets. In this paper, I take a closer look at corruption within the relationship of the private and public sector, the effects of state‐business relations on public policy, and the notion of “legal corruption”. Specifically, I explore lobbying activities and the line (if any) between legitimate and illegitimate lobbying. I will also discuss the complexity of campaign financing and the revolving door phenomenon. The first section of this paper discusses lobbying, campaign financing, and the revolving door, in a general sense. It includes the definition of lobbying, its historical context, and significance. The second section consists of case studies on state‐business relations in the U.S. and across Europe, specifically the UK. I discuss the complex state‐business relations in each country. Following this, I explore the various measures taken to ensure transparency, and whether such ‘firewalls’ effectively reduce corruption. Finally, I attempt to situate state‐business relations within the conventional notion of corruption. STATE‐BUSINESS RELATIONS Lobbying The lobbyist framework as provided by lobbyingtransparency.net defines lobbying as a term that should “cover any direct or indirect communication with a public official that is made, managed or directed with the purpose of influencing public decision‐making.” According to Transparency International’s Anti‐Corruption Glossary, lobbying is “any activity carried out to influence a government or institution’s policies and decisions in favor of a specific cause or outcome”. The term ‘lobbying’ originates from the lobbies and hallways where Members of Parliament and peers used to gather before and after debates in the Commons and Lords chambers in the UK. In the past, those who wanted to affect the opinions of MPs or peers often go to the lobbies seeking to persuade members of the rationale behind particular viewpoints (BBC News). However, lobbying activities are distorted especially when they are not carried out with transparency and integrity. Lobbying can take various forms such as direct lobbying which involves speaking or writing to someone directly involved with developing legislation, and grassroots lobbying that communicates a particular view to the general public and rallying the public to bring this issue up to their local legislators. There are also indirect ways of lobbying which entails a whole other discussion of their legitimacy. Many different types of people and organized groups are involved in lobbying. These can include individuals in the private sector, corporations, fellow legislators or government officials, or advocacy groups. Campaign Financing Campaign financing refers to funding raised in support of a particular candidate, political party, or policies. During elections, many different forms of costs are needed to facilitate the campaigns. These include travel costs, political consulting, advertisements, and various channels of communication with voters. Campaign financing is thus an important component of political elections and can either be a limiting or enabling factor in the success of political campaigns. Some countries opt for campaign financing sources to be from private donors whereas some other countries choose to use government funding to run campaigns. It is especially so in the case of private funding that corruption‐related controversies can arise. This is also important aspect in my paper. Revolving Door The term ‘revolving door’ refers to the movement of individuals between positions of public office and jobs in the private sector, in either direction (Transparency International UK 2). The motivations for leaving one sector into the other tend to be political. With well‐made connections especially within the public sector, ex‐public officials are able to easily communicate, negotiate, and lobby their previous colleagues in favor of policies that benefit the ex‐public officials themselves. Conversely, those leaving the private sector to enter the public sector are usually motivated to gain insights into the workings of the public sector and the government whilst making new connections for future benefits. Moving on, I focus attention onto state‐business relations in the United States and United Kingdom . CASE STUDY 1: UNITED STATES OF AMERICA Lobbying In the U.S., lobbying is an activity protected under the first amendment of the U.S. Constitution that states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". The clauses within the amendment relate to how government came to view interest groups and lobbying. For example, the “freedom of speech” clause has been interpreted to include political speech such as lobbying and campaign financing. The “freedom of the press” clause means that interests can make their political demands without governmental hindrance. The final two clauses – peaceful assembly and petitions also play a major role in setting out lobbying as a fundamental part of American politics. The peaceful assembly clause allows individuals to join groups with political interests in order to further their personal interests or ideologies, and the petitions clause can hinder attempts to constrain strategies and tactics currently found in modern lobbying. An interesting fact regarding interest groups in the U.S. is that the development of such group politics can be traced back even as early as the 1831‐1832 as evidenced in Alexis de Tocqueville’s classic “Democracy in America” (Hrebenar & Morgan 7). Due to lobbying being so deeply ingrained within the constitution whether directly or indirectly, such activities are very central within American politics. For example, policy assessments will not be complete without tracing the source of the money for enacting such policies. Some of the most successful lobbying activities are those carried out within groups. Self‐oriented groups tend to channel their efforts into lobbying in order to achieve a policy goal that will benefit their membership (Hrebenar & Morgan 12). Although personal interests are at the heart of the push for certain policy goals, self‐oriented groups tend to paint it as a benefit or desire of the general public. We see this time and time again even in movements of the past through idea framing for policy support. Movements that were originally to the benefit of the rich have in the past been able to gain support from the middle and lower working class for multiple reasons but mainly as a result of the cunning framing of ideas. For example, the tax limitation amendment in Congress was introduced as the climax of grand quasi‐biblical narrative with the 16th amendment as the fall from grace (Martin 84). The same can be said when self‐oriented groups or businesses lobby for certain legislations. Such interest groups should register as lobbyists and declare their lobbying activities. However, not all groups engaging in activities similar to that of lobbying necessarily register themselves as lobby groups. I will now shift the attention to one such group, the American Legislative Exchange Council (ALEC). American Legislative Exchange Council (ALEC) The American Legislative Exchange Council (ALEC) prides itself as a “forum for the exchange of ideas (a place for continuing education of state legislators)” (alec.org). Due to its ‘educational’ aspect, ALEC currently falls under the non‐profit category with a 501(c)(3) status. Therefore, its members do not pay taxes and easily get a ride off. The reality of ALEC as exposed by The Center for Media and Democracy is that it has been a platform through which strong business interest groups wine and dine and connect with state legislators in order to push for bills that benefit their self‐interests. Through the partnership within ALEC, state and business actors vote on model bills behind closed doors. These model bills are then brought up to the state congress via the ALEC‐affiliated state legislators who then introduce said bills as their own. The exact same copy of these model bills have showed up in local state legislatures and approximately 1000 bills have been introduced with an average of 200 being passed as state legislatures. Some example of legislations passed that originated from ALEC model bills include the Stand Your Ground law, Voted ID Act, Non‐Economic Damage Awards Act, Right to Work Act, and many more (billmoyers.com). ALEC has tried to claim that it is bipartisan although it currently has a majority of Republicans. The influence of ALEC is extensive, deep, and far‐reaching but the public is not necessarily aware of it. The main interests of these business and corporate actors are speculated to be to reduce the role of government and to introduce profit‐driven legislations that benefits the private interests of these business and corporate actors. Although its activities are similar to lobbying, ALEC says that it is not a lobby group but an educational non‐profit “offering businessmen the extraordinary opportunity to apply their talents to solve America’s problems and building on the opportunities present” (alec.org). Affiliation with ALEC does not benefit business and corporate interests solely but also benefits the state legislators within the council. Due to their close partnership with the network of business and corporations within ALEC, state legislators have more access to funding from these businesses for campaign financing and private benefits. One such example is Scott Walker, the Governor of Wisconsin since 2011. Walker is known as a “master political fundraiser”. Before his election into office, he had already forged close ties with corporate interests in ALEC. The Koch brothers were some of his largest contributors. When he first got into office, Walker was able to move the Stand Your Ground ALEC‐inspired bill really quickly and was praised by ALEC in a press release for giving “immediate attention to reforming the state’s legal system”. A candid footage caught an interaction between Walker and one of his financial backers, billionaire Diane Hendricks, during which Walker is caught talking about reforming collective bargaining and the “divide and conquer” strategy (billmoyers.com). This is just an example of the close ties between state legislators and business or corporations and gives just a glimpse into a relationship that is much more complex and multifaceted. The businesses and corporate actors within ALEC have come to realize that influencing politics does not necessarily have to be through presidential campaigns or lobbying on Capitol Hill but through state legislatures and careful framing of “partnership” between state legislators and business actors. The impact of such activities can be greater than federal lobbying activities because states have sovereignty over education, social services, taxes, and more. Hence, bringing change to these areas require cooperation from the state legislators themselves. Therefore, ALEC taps on the sovereignty of states to bring about the change that they want to see. Campaign Financing In addition to lobbying, campaign financing is also very much at the core of state‐business relations and is interpreted as an inherent right through the 1st Amendment of the U.S. Constitution. Political campaigns were quite inexpensive until the late 1800s. In 1896, Republican William McKinley was elected after what was called the first modern presidential campaign. During this campaign, his campaign manager, Mark Hanna, decided that McKinley needed as much media exposure as he could afford. The major concern was funding. Hanna knew that one way to do so lay in seeking contributions from big businesses and corporations. The decade of the 1890s was the period of industrialization during which the U.S. saw a growth of huge corporations and larger conglomerates. Hence, the timing for campaign financing efforts through big business couldn’t have been better. Additionally, the democrat candidate then was William Jennings Bryan who was unsupportive of industrialization in the nation (Hrebenar & Morgan 42). Hanna leveraged on this vulnerable period and made a case for protecting these big businesses from the likes of Bryan who may threaten the interests of these corporations and conglomerates. Hanna asked companies to contribute a set percentage to the McKinley campaign and accumulated more than $3.5 million ($82 million in 2006 inflation‐adjusted dollars). Using that money, Hanna hired 1,200 staff members, a stark 12 to 1 ratio in terms of campaign expenditure as compared to Democrat Bryan (Hrebenar & Morgan 43). Since then, presidential and congressional campaigns got more expensive and the role of big businesses within campaign financing continued. There have been many debates about the regulation of campaign financing. In addition to the relationship between campaign financing and the 1st Amendment, another big ruling that has had lasting impact is the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. The court ruled in a 5‐4 decision that corporations and unions could spend unlimited amounts of money to advocate for or against political candidates. This ruling freed certain non‐profit groups to spend massive amounts of money on politics. Patriot Majority USA is one such non‐profit organization that benefited from this ruling and was able to raise $30 million in ‘dark money’ over the past year (Beckel). Half of this $30 million alone was raised from five anonymous donors. Since the ruling, the Center for Public Integrity investigated that many blue‐chip U.S. companies have contributed at least $173 million in roughly a single year to politically active non‐profits. Such non‐ profits falling under sections 501(c)(4) and 501 (c)(6) are not obliged to publicly disclose the sources of their funding. This differs greatly from candidates, political parties, and super PACs (Beckel). Revolving Door The revolving door phenomenon is another cause for concern when it comes to state‐business relations in the U.S. It is also closely related to lobbying activities. Government officials have been known to go into the lobbying world after exiting the government. In order to curtail this, the Honest Leadership and Open Government Act of 2007 prohibited senators from lobbying their department or agency for two years. As good as this sounds on paper, one must be naïve to believe that such a law could successfully curtail lobbying activities by ex‐government officials. Human relationships are dynamic and so even if these activities weren’t conducted in the strict sense of lobbying, the connections built can still be leveraged by ex‐officials in other ways through private functions. One prominent revolver is David Hoppe, a future chief of staff to Rep Paul Ryan. Hoppe was president of his own firm, Hoppe Strategies, and has been and out of the public and private sector for years. He was first a lobbyist at the Heritage Foundation before becoming an aide to Sen. Daniel Coats. He continued his work in the public sector as chief of staff in the office of Senate Majority Leader Trent Lott. He now taps on his public connections and has represented AT&T, Berkshire Hathaway and MetLife (opensecrets.org). CASE STUDY 2: UNITED KINGDOM Similar to the U.S., Europe also faces problems with lobbying, campaign financing, and the revolving door phenomenon. In a 2012 Corruption Risks in Europe report by Transparency International, political parties, public administrations, and the private sector are all assessed as the weakest forces in promoting integrity across Europe. Only Norway and Sweden have a private sector that actively engages with government and civil society on anti‐corruption issues. The report highlights the key strengths and weaknesses of Europe as a region as a whole, and political party financing and lobbying are some of the key weaknesses of this region. Lobbying Out of the 25 countries assessed, only 6 countries namely France, Germany, Lithuania, Poland, Slovenia and the UK have regulated lobbying. The rest do not have transparency requirements when it comes to lobbying activities which is a worrying phenomenon. This could result in the sacrifice of the interest of many for the rich and powerful few. In the UK, there are 4000 people working in its £2 billion lobbying industry, making it the third largest in the world. Similar to ALEC, interest groups in the UK host fringe meetings or receptions, facilitating access to MPs and ministers and potentially seeking to influence policy, A great deal of policy making takes place elsewhere and not necessarily in a formal lobbying context. Lobbying can take place with no public record of the lobbying meetings, issues lobbied, and amount of money spent. In the same way, lobbying occurring outside departmental meetings is not recorded resulting in a lack of transparency of lobbying activities and the influence that lobbyists have on policy decisions. This is made even more complicated when ministers have personal relationships with these lobbyists and claim to be meeting within a private capacity and not a business capacity. Some ministers and officers also argue that transparency rules invade their privacy. One of the two cases of lobbying without transparency in the UK highlighted by Transparency International is that involving Eric Pickles. Pickle, a UK Local Government Minister attended a dinner hosted by the lobbying firm Bell Pottinger as well as Brandon O’Reilly, Chief Executive Officer of TAG Farnborough Airport. O’Reilly at that time was awaiting a decision by Pickles’ Department for Communities and Local Government (DCLG) and the Department for Transport (DfT) on his application to almost double the capacity of the airport (David‐Barrett 15). Unsurprisingly, the airport expansion plan was approved just 9 days after the dinner. Pickles denied being lobbied during the dinner and claimed that he attended it in a “private” capacity. An interesting point is that the DCLG “strongly advises” ministers to decline meetings from interested parties during a planning appeal. Clearly, Pickle did not heed this advice. Another case is that of Theresa Villiers, a Department of Transport Minister who did not declare lunch with Simon Hoare, a university friend and lobbyist for developers Helioslough. During that time, Helioslough’s lobbyists were campaigning to build a £400m international rail freight exchange (David‐Barrett 16). The development was discussed over lunch and emails pertaining to it were sent out after the event. Clearly, the lunch was more than a private engagement and was political. Campaign Contributions Campaign financing is an area whereby the UK differs slightly from the US. The US sets limits on campaign contributions but not on campaign spending. The dynamics between both campaign contributions and spending can encourage candidates to keep asking for donations within the one‐time limit. On the other hand, the UK has limits on campaign spending but not on campaign contributions. This may seem decent at a first glance since candidates will not be obsessively seeking out contributions. However, a criticism of this system is that huge sums of donations have a high possibility of entailing certain favors. Political funding is an area receiving increasing public scrutiny in the UK. Another interesting point is that the total party spending on campaigns in the UK and the US are starkly different. In the U.S., total party spending is soaring especially due to no limitations being set in place for campaign spending. On the contrary, campaign spending for the 2015 elections in the UK actually dropped by 26% less than spending in the 2005 elections (Thompson). The general restrictions in the UK on campaign finance spending resulted from the constitutional Bowman v United Kingdom case. This case stands in completely contrary to the Citizens United v FEC case in the U.S. Although there are limitations on campaign spending in the UK, the amount of campaign contributions and the hidden agenda behind these contributions are still up for scrutiny. Revolving Door In a Transparency International UK survey of public perceptions of the most corrupt section of British public life, political parties ranked as the most corrupt with Parliament and Legislature ranking third most corrupt. The same survey revealed that in the public’s ranking of potentially corrupt activities, the revolving door came first. Although the revolving door can be beneficial to both sides, it can also undermine trust in the government because of the potential of a conflict of interest. Some prominent cases that have recently come to light include ministers and civil servants taking on lucrative consultancies or directorships with companies that have relationships with their old departments. An example of such a phenomenon is Sir Kevin Tebbit who had been Permanent Under‐Secretary (PU) at the Ministry of Defense who left in November 2005 and joined the Smith Board in May 2007. He became the chairman of Finmeccanica in May 2007. Both companies had relations with the Ministry of Defense while Tebbit was the under‐secretary and when smith industries was given a contract to supply cockpit voice and flight‐data recorders, without other competitors. The revolving door is also closely related to lobbying and as hard as lobbying is to regulate, the revolving door is better addressed with explicit rules on lobbying than the revolving door itself. Transparency International says it well, “once an individual is embedded in a social network close to power it can be difficult to ensure that relations remain on a formal footing” (Transparency International UK). LEGAL CORRUPTION? When one thinks of corruption, it is often associated with bribery of low‐level public sector officers. However, as we have explored, corruption is much more prevalent than that and permeates all levels of society. The issue that I am getting at is that politically‐motivated activities such as lobbying, campaign financing, and the revolving door are plagued by corruption. Although certain legislations or measures are in place for activities like lobbying and campaign financing, corruption is still very much inherent within these structures. Such phenomenon can be termed “legal corruption” and it widely perpetuates from the inherent self‐interest of parties involved. The conventional notion of lobbying is that if it is transparent, it is legal. However, legality does not necessarily align mean that it is uncorrupted. Transparency International itself acknowledges the matter of legal corruption. In terms of lobbying, Transparency International’s general page states that “When undertaken with integrity and transparency, lobbying is a legitimate avenue for interest groups to be involved in the deliberative process of law making. When lobbying is non‐transparent and unregulated, problems arise and measures must be taken to ensure its accountability and openness” (transparency.org). Here we notice a wise word‐play in the organization’s choice of using the term ‘legitimate’ instead of uncorrupted because the organization itself is aware that legitimate actions are not necessary uncorrupted. A deeper look into the many publications of Transparency International surfaces the issue of legal corruption. The issue at hand then is a matter of measures to ensure transparency within state‐business relations. Some potential measures include mandatory registration of lobbyists and reporting of activities, cooling off periods for those joining or leaving the public sector, and setting codes of conduct. However, as mentioned earlier, these rules are still open to be bent and manipulated, and may be difficult to enforce. Another important point of consideration is that the relationship between the state and business can have an impact on legislations. Such legislations can then include those that regulate the relationship between the state and business actors. It is a cycle that perpetuates itself with no quick solution. More legislation can be put in place to counter this and for the case of the U.S., an amendment to reverse Citizens United may be necessary. However, as Lawrence Lessig points out, it may take looking at this issue from the perspective of funding for change to take place. If the issue at hand is the lack of independence of politicians, limiting spending can only have that much of an impact. For real impact, Lessig proposes moving from large‐dollar private funding to small‐dollar public funding. This way, the number of funders increases and this reduces the concentration of large funders that tend to have a hand at influencing policies. Some examples of public campaign funding already in place in the U.S. are in Arizona, Connecticut, and Maine, whereby “clean elections” laws offer full subsidies to candidates who agree to limit their spending and private fundraising (Lessig 9). Bernie Sanders, current democratic presidential candidate is also a strong believer of funding or contributions from the masses than a select few. His latest and first presidential campaign advertisement highlights that he is funded by a million contributors (Thompson). In a 2009 position paper, Transparency International outlined different actions that need to be taken by business, government and civil society as a whole in order to curb and control corporate lobbying and political financing activities. These include increased awareness by politicians, government, business, and institutions to understand and accept that corruption is a problem in key sectors of a country. Other recommendations include effective law enforcement, preserving anti‐ corruption defenses, high‐level policy response and coordination, and the need for further data and research (Krishnan and Barrington 3). A look a these recommendations shows that combatting corruption requires compliance and cooperation at many levels. Regardless of the different legislations that can potentially be put in place to limit the influence of businesses on the state, self‐ interested actors will still find ways to game the system for their own benefits. Another issue is when the enforcement of such regulations infringe on the benefit that actors have from the current rigged system. Actors benefiting from the system do not necessarily agree to pass such regulations. In order for this to change, people with high personal values need to be in office with hopes that these values can remain core in their conduct, something that cannot be ascertained. Education about the adverse effects of legal corruption or lack of transparency on civil society and the community needs to be further highlighted too. Until the effects that corruption, especially legal corruption has on the general public is brought to light, self‐interest may always be on the forefront for self‐interested actors at the expense of democracy and transparency. Combatting corruption especially within state‐ business relations is no easy job and there are no quick fixes for this complex issue. In a slide show created by Transparency International UK on corruption, one of the final questions posed is whether ethics and integrity are a lost cause. A final point in the slide then states that if “laws cannot mandate ethics and personal integrity, what can?” (Barrington). Indeed, the question remains ‐ what can? References: ALEC ‐ American Legislative Exchange Council,. "American Legislative Exchange Council ‐ Limited Government · Free Markets · Federalism". N.p., 2015. Web. 20 Nov. 2015. Barrington, Robert. "Corruption Beyond Bribery Lobbying, Ethics And The Law". 2013. Presentation. Beckel, Michael. "Secret Donors Fuel Democratic Political Powerhouse". The Center for Public Integrity 2015. Web. 1 Dec. 2015. Committee on Standards in Public Life,. Strengthening Transparency Around Lobbying. 2013. Print. David‐Barrett, Dr Elizabeth. Lifting The Lid On Lobbying: The Hidden Exercise Of Power And Influence In The UK. Transparency International UK, 2015. Print. 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