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Political Cycles and Organizational Life Cycles: Delegation to Anticorruption Agencies in Central Europe gove_1599

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AGNES BATORY* A large number of “independent” anticorruption agencies (ACAs) sprung up around the world in past decades. Yet little comparative work has been done to explain the diversity of their organizational forms or development trajectories. Using insights from regulatory theory and the regulation of government literature, this article argues that the formal powers and independence ACAs are granted crucially depend on whether external and/or domestic impetuses for setting them up can counterbalance governments’ incentives for no action, or only symbolic action. The ACAs’ initial mandate influences but does not determine how they fare in later life: Support or obstruction from ruling governments, their own ability to use strategic resources, and leadership shape the extent to which the agencies are able to carry out their tasks in practice. These arguments are examined through comparison of three ACAs in the European Union’s “new” member states—Latvia, Poland, and Slovenia. Introduction Following the example of anticorruption commissions in Singapore and Hong Kong—both commonly described as phenomenal success stories— independent agencies to combat corruption have spread around the world in the past decades. The agencies were initially hailed as major achievements in curbing corruption and propagated by international organizations of various kinds to a wide range of countries. Since then, however, enthusiasm has waned, as particularly in unstable governance contexts such as sub-Saharan Africa, the agencies have tended to fail to deliver visible results and thus lose credibility, or in the absence of government support and resources fade into oblivion. In most cases, the design of the bodies seems to have rather obviously failed to strike the difficult balance between agency autonomy and political control/accountability (e.g., Christensen and Lægreid 2007; Egeberg and Trondal 2009). Although a lot has been written about why anticorruption efforts fail— and this literature is very relevant to this article—there is no convincing explanation of the cross-national variation, even in countries with similar *Central European University Governance: An International Journal of Policy, Administration, and Institutions, Vol. 25, No. 4, October 2012 (pp. 639–660). © 2012 Wiley Periodicals, Inc. doi:10.1111/j.1468-0491.2012.01599.x

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political systems and governance contexts, in the anticorruption agencies’ (ACAs) autonomy and the scope of their mandate. For instance, why do some agencies have investigative powers, while others are set up for policy coordination and/or prevention only? Why are some agencies directly subordinated to bodies made up of, or dominated by, governing parties (cabinets and parliaments), whereas others are carefully removed from the influence of political decision makers? What is the motivation for political parties to set up agencies that wield the power to discredit them in the first place? And how do the agencies change over time, and what are these shifts (expansion or contraction in powers, resources, and independence) in response to? One contention of this article is that the literature on independent regulatory agencies (IRAs) is helpful for addressing these questions. The simple idea behind this is that while corruption is multifaceted, notoriously amorphous, and contextually dependent, corruption control is public policy: the provision by governments of a public good, that is, “an acceptable degree of freedom from corruption,” a little like reasonably clean air or health and safety at the workplace. This is also to say that governmental anticorruption activity can be usefully conceptualized as regulatory activity, or more precisely, the regulation of government. To be sure, there are important differences between IRAs and ACAs, stemming from the fact that agencies charged with controlling political (and administrative) corruption are often directly confronted with political parties setting them up, and consequently, there is a limit to the direct applicability of mainstream regulatory theory. There are, however, also many commonalities in terms of the drivers for the creation of agencies, such as policy diffusion and isomorphism (conditionality or problem pressure), the need for specialized expertise, the enhancement of the credibility of policies, or insulation/lock-in effects. Obvious as these parallels seem, surprisingly, little work has so far attempted to utilize insights from the IRA literature to the anticorruption field systematically. There have also been relatively few attempts to shed light on the role of electoral incentives, despite the fact that the comparative politics literature can contribute major insights into how party politics shapes governmental action, in this case, the setting up and institutional design of a particular public body. This article is a preliminary exploration of the following arguments: First, anticorruption and ACAs can be studied as regulation of government and as bodies analogous to IRAs, respectively. Second, the formal powers and independence that ACAs are granted at the outset will crucially depend on whether external and/or domestic impetuses for setting them up (the external impetus being conditionality and the domestic essentially the need to please voters in the wake of scandals) can counterbalance governing parties’ strong incentives for no action, or only symbolic action. Politicians’ time horizons (i.e., the timing of the creation of an agency within an electoral cycle) in turn have major implications for both

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the body’s independence and the scope of its mandate. Finally, the ACAs’ initial formal mandate influences but does not determine how they fare in later life: Exigencies, such as support or obstruction from ruling governments, their own ability to use strategic resources, and finally leadership shape the extent to which the agencies are able to carry out their tasks in practice. These arguments will be examined through comparison of the establishment and evolution over time of a number of ACAs in the “new” member states of the European Union (EU), thus combining a national and temporal comparative approach (see generally Levi-Faur 2004). The empirical focus on the new member states is both relatively novel and eminently suitable for a project of this kind. The literature on anticorruption bodies is dominated by case studies of agencies in postcolonial contexts, whereas little research deals with European anticorruption bodies.1 In-depth empirical work on ACAs in Central and Eastern Europe (CEE) is particularly rare, despite the fact that the vast majority of European ACAs are located in the EU Member States of the 2004 and 2007 enlargements— indeed, ACAs are now more common in CEE than in any other region of the world (Charron 2008). The new EU Member States produced a wide variety of agencies that offer interesting contrasts and parallels: multipurpose agencies with law enforcement powers (e.g., Latvia and Lithuania), law enforcement type services (Poland, Romania), and preventive and coordination bodies (Slovenia). At the same time, the countries share a sufficient number of characteristics to control for other sources of variation. These similarities include postcommunist legacies, public administration traditions, parliamentary political systems, and most importantly, EU conditionality as an important, if not the chief, driver of reform prior to EU accession (see, e.g., Batory 2010; Open Society Institute 2002; Szarek-Mason 2010). The absence of suitable quantitative data rules out a large N comparison of all agencies in CEE, but Latvia, Poland, and Slovenia, the cases selected for this article, possess a set of some of the most established anticorruption bodies in the region that are sufficiently diverse for exemplifying different patterns through a qualitative methodology. The article relies on empirical material from policy documents and news coverage. The written sources consulted include Freedom House’s (FH) Nations in Transit reports that provide an annual summary of corruption-related developments for each of the countries under discussion, evaluation reports by the Council of Europe’s Group of States against Corruption (GRECO), and comment and analysis by local nongovernmental organizations. The first section later discusses the existing literature on ACAs and generates a short list of factors that international experience suggests are important determinants of the agencies’ development trajectories. The second section refines this picture by considering insights from the regulation literature, putting forward a number of propositions linking agency development patterns to particular circumstances present

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at their establishment and subsequent operation. The third section illustrates these patterns in the case of the three agencies selected for this article. A brief section concludes. ACAs: State of Play The (modern) literature on corruption has taken a meandering path, from a period in the 1960s when the phenomenon was seen as an inevitable and not necessarily harmful by-product of “modernization,” put explicitly in North/South, developed/developing country terms, to the 1990s through to today, when it is (almost) universally described as both omnipresent and in its consequences strongly detrimental (for a review of the literature, see, e.g., Andvig et al. 2000). For the dominant (public choice influenced) strand of literature, corruption is seen as a form of rent seeking, a harm to be managed and mitigated, similar to other social problems such as poverty or discrimination. Corruption control, in turn, is seen as “public policy aiming to reduce the opportunity structures for corruption and to punish deviant and unlawful [behavior] through the implementation of an integrated set of measures” (de Sousa 2010, 8). The set of measures, advocated most notably by international financial institutions and development agencies, were informed by principal–agent models, and the idea, put forward perhaps most prominently by Robert Klitgaard (1988, 75), that corruption “flourishes when agents have monopoly power over clients, when agents have discretion, and when the accountability of the agents to the principal is weak.” In recent years, powerful critiques of the mainstream approach have also emerged. On the one hand, scholars coming from new institutional economics consider it as paying insufficient attention to formal and informal institutions underpinning corrupt exchanges (e.g., Lambsdorff 2007; Lambsdorff, Taube, and Schramm 2005), and on the other hand, particularly sociological institutionalist and anthropological accounts reject its perceived lack of sensitivity to local culture and context (e.g., contributions in de Sousa, Larmour, and Hindess 2009; Haller and Shore 2005; Harrison 2007; Samson 2004). Nonetheless, in the past decades, a host of anticorruption interventions informed by the rentseeking perspective were introduced around the globe aiming to break up public sector monopolies through privatization and liberalization, and increasing bureaucratic controls in public administration. This is the context in which ACAs—“public bodies of a durable nature, with a specific mission to fight corruption and reducing the opportunity structures propitious for its occurrence in society through preventive and/or repressive measures” (de Sousa 2010, 5)—emerged as perhaps the single most important weapon in the armory of corruption fighters. The ACA model appeared to offer the way out of an all-important policy paradox, namely, that corruption tends to flourish in countries with weak institutions, that is, countries where governments are quite literally powerless to affect change, and is at the same time the principal obstacle to


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creating more effective public institutions. As Rothstein (2007) put it, the problem is that “everything (almost) has to change and this should be conducted as simultaneously as possible.” The ACA model was initially seen to solve this problem because instead of gradually changing the existing system (a “corrupt” equilibrium), with all the ensuing questions about sequencing, it promised to break up the vicious cycle by wedging in a new actor. The expectation was that a new body can be a “catalyst and a building block” for further reforms (Doig 1995, 163). In the late 1980s and 1990s, ACAs spread like wildfire around the globe. The single most important reason for the speed of policy diffusion is the spectacular success of Hong Kong’s Independent Commission against Corruption (ICAC), established in 1974, itself following in the footsteps of Singapore’s earlier agency, in visibly reducing levels of corruption within a relatively short period of time (Klitgaard 1988). The ICAC model was innovative because it centralized hitherto dispersed and badly coordinated anticorruption functions into a single powerful agency, lavishly resourced and equipped not only with strong investigative powers but also a mandate for prevention and public education (Meagher 2005). The diffusion of the model was then assisted by every conceivable international transfer agent and transfer mechanism known in the policy transfer literature (e.g., Holzinger and Knill 2005; Stone 2004). The need for specialized bodies entered emerging international norms, most notably the United Nations (UN) Convention Against Corruption (UNCAC), which in Article 6 creates an obligation for signatories to “ensure the existence of a body or bodies” “with the necessary independence” and resources that implement, oversee, and supervise anticorruption policy and promote corruption prevention.2 These provisions were widely (although not necessarily correctly) interpreted as a call for specialized agencies, and “preferably one” in each country (Hussmann, Hechler, and Penailillo 2009). ACAs were also—and given the lack of a monitoring mechanism adopted with the UNCAC perhaps even more importantly—actively promoted by international financial institutions as “best practice” in countries seeking development assistance. Unfortunately, by now, evidence abounds that, more often than not, the model was also transferred to countries where elementary preconditions, such as a degree of administrative capacity and a working judicial system were not in place. Unsurprisingly, in these circumstances ACAs proved unable to produce results in island-like isolation from the rest of the public sector, engulfed by systemic corruption and/or incompetence. Many of the agencies eventually fell victim to the same structural problems— principally, capture—as other public (law enforcement) agencies had done in the past (e.g., Doig, Watt, and Williams 2005; Meagher 2005). Consequently, in recent years, a sense of disappointment has been mounting about the ACAs’ performance (de Sousa 2010). According to a 2004 Organisation for Economic Co-operation and Development (OECD) report, “anticorruption agencies have met with mixed results” outside their original

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sites in microstates of South-East Asia, while a 2005 UNDP report points out that “[t]here are actually very few examples of successful independent anticorruption commissions/agencies” (both quoted in Doig 2009). How do ACAs get, as de Sousa (2010) puts it, from empowerment to irrelevance? And conversely, how did the successful cases make this journey, in the reverse? In Hong Kong, ICAC literally went from strength to strength: Having been established with strong political backing from the governor (Hong Kong being a British crown colony at the time), it was staffed with highly paid professionals and managed to establish its credibility early on by putting a notoriously corrupt official behind bars in a high-profile case (Klitgaard 1988). Public confidence in the agency grew, which meant more citizens reporting corruption, then over time, even more resources and more staff were provided to handle an increasing case-load and a wide range of public outreach and prevention activities, and so on. According to its website today, ICAC employs a staggering 1,200 staff and responds (within two days!) to approximately 3,500 reports on corruption acts annually. Hong Kong is normally among the 10–15 “cleanest” countries internationally, way ahead of many OECD countries, on Transparency International’s (TI) Corruption Perception Index—a profound transformation indeed since the 1970s.3 In contrast, the life cycle of later ACAs in developing countries seems to be generally that of gradual decline—albeit not necessarily linear decline. Doig, Watt, and Williams’ (2005, 4) study of five African ACAs describes the agencies’ life cycle as going from unrealistically high expectations that the body is unable to meet, to disillusionment, and as a consequence, a decline in resources and political support that then undermine the agency further. The (downward) spiral corresponds to the changing salience of corruption as a political issue, that is, “the gradual displacement of anticorruption as a high priority” following each election. There is a question as to the relevance of these observations beyond Africa, but Maor (2004) established similar patterns with respect to a range of anticorruption mechanisms in countries and time periods as different from each other as the final days of the Soviet Union, mid-1990s Australia (Queensland), and the Italian “mani pulite” magistrates of the early 1990s. The article finds that in each of these cases, governmental reprisals against investigators, commissioners, and magistrates occurred partly because the agencies or officials invited attacks by becoming “over-zealous,” largely in response to mass media attention (Maor 2004). However, within predictable patterns of high hopes and brave ideas slowly giving way to political realities, ACA development trajectories are quite different across cases. Even in a downward swing, there are multiple possibilities for how an agency might fare. One possibility is, as Doig, Watt, and Williams (2005, 4) argue that “[w]hen discredited governments are toppled or new leaders emerge, donors become enthusiastic again and the neglected ACC is reborn or reconstituted”—that is, that after periods of neglect and marginalization, the agencies are given a lifeline, and an


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upward swing follows, until temporary decline starts again. Another possibility is that hostility from governments in office is expressed in the dismissal of the agency’s head, budget cuts, or the withdrawal of cooperation from other (government controlled) public bodies—making the work of the agency very difficult, but not impossible. Yet another possibility is that the agency does not survive, although the termination of ACAs is, in fact, quite rare (de Sousa 2010). What might explain this range of paths, from almost linear development, with an expansion in mandate and resources, as in the “goldstandard” Hong Kong case; a rollercoaster ride shaped by changes of government; stagnation in a hostile political environment; to agency termination? Four factors are suggested by the brief overview of international experience previously. One is the agency’s initial official mandate: How strong and independent an ACA is at the outset has important implications for its ability later to fend off attempts to redraw this mandate and to isolate itself from adversely changing external circumstances. A second factor is de facto operational autonomy, shaped by the agency’s resources. This is in turn dependent on a third factor, the degree of political support/ opposition from changing governments—that is, the question whether elections change the attitudes of politicians toward the agency and its work. And finally, the fourth is leadership, the somewhat ill-defined yet recognizable quality of individuals heading up agencies that enables them to instill a sense of mission and dedication in their staff, and to go after their goals with single-minded determination (“zealotry”). Insights from the Regulation Literature Before these factors are formulated as tentative hypotheses to be considered in relation to the CEE ACAs, a brief excursion into regulatory theory seems to be in order to put them into context. One shortcoming of the otherwise rich literature on ACAs, and more broadly anticorruption, is that it is relatively insular: The subject tends to be studied by scholars who were drawn to it because of their interest in corruption, rather than in public sector organizations and their management. The assumption seems to be that corruption is just too multifaceted and, for lack of a better word, special for governmental responses to it to be compared with other policies (this is analogous to a rather extreme version of what Lægreid, Roness, and Rubecksen, 2008, describe as a task-specific perspective on regulatory agencies). Thus, despite the fact that some influential early studies explicitly rely on theories of delegation and principal–agent frameworks to explain corruption (and in some cases, corruption control; see, e.g., Klitgaard 1988; Rose-Ackerman 1999), discussion of anticorruption in a regulatory context and explicit parallels with IRAs is rare. This article clearly cannot (not does it aim to) overcome this limitation in one fell swoop, but perhaps a number of ways in which the regulation literature is relevant can be identified and utilized here. One preliminary

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question that naturally arises in this respect is whether the control of the operation of the public sector can be seen as regulation, normally taken to mean “state intervention in the economy or the private sphere designed to steer them and to realize public goods” (Lægreid, Roness, and Rubecksen 2008, 4). While some ACAs have a mandate to control both public and private sector corruption, it is more common for the agencies to be set up for preventing and rooting out corrupt practices within the state apparatus. However, it is now well established in the literature that regulation also takes place inside government, as public bureaucracies also face scrutiny by an “army of waste-watchers, quality checkers, “sleaze-busters” and other regulators” (Hood et al. 1998, 61). Common to these relationships is one bureaucracy in possession of an official mandate overseeing and seeking to shape the activities of another, organizational separation between regulator and regulatee, and the externality of the regulator to direct lines of command, all of which apply to ACAs (Hood et al. 1999; Hood, Peters, and Scott, 2004; James 2000). One example of the relevance of regulatory theory is the applicability of now “classic” explanations, of both the rational choice and the sociological institutionalist variety, of why (independent) agencies are established. Many, if not all, of the reasons why IRAs are set up—particularly credible commitment and political uncertainly (both problems arising as a result of the lapse of time between a decision taken and its implementation)— should also apply in the anticorruption context. This scholarship is synthesized below relying primarily on Thatcher and Stone Sweet (2002), Jordana and Levi-Faur (2004a), Gilardi (2008), and in terms of insulation effects by de Figueiredo (2002). • Enhancing the credibility of commitments. Agency creation is a common answer to time-inconsistency problems and can essentially be seen as one type of “commitment device that will force [the policymaker] to stick to the original decision even when preferences change” (Gilardi 2008, 31). Anticorruption bodies are commonly established by governments needing to boost their integrity credentials to voters and/or to powerful external actors who would otherwise worry that policymakers will simply backtrack once they get what they want. African cases in particular point to governments setting up commissions to convince the World Bank that they are serious about reform. Similarly, political parties rocked by corruption scandals show voters their determination to clean up public life by creating agencies (notable examples are commissions in Australia’s states, e.g., New South Wales). • Policy transfer through (coercive) isomorphism. The flipside of the coin, from the external actors’ perspective, is to push for credible commitments through conditionality in various forms. Aid conditionality, used by the international financial institutions in developing countries, and EU membership conditionality in CEE are prime examples.


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• Reducing political uncertainty in the policy area over time. Agencies also address another time-inconsistency problem, namely, the risk that as a consequence of the democratic process, policymakers change, and decisions are reversed (Gilardi 2008, 28). With the creation of an independent ACA, governments “insulate” the policy area, they tie their own hands and the hands of future politicians, thereby lessening the impact of electoral volatility (de Figueiredo 2002; Jordana and Levi-Faur 2004b, 17). “To curb corruption without political interference” was perceived as one of the strongest rationales for setting up agencies by heads of ACA surveyed by de Sousa (2006, 14). • Addressing information asymmetries by utilizing technical expertise. In the same survey, curbing corruption in a knowledge-based manner was seen as the most important reason for setting up an ACA. Information asymmetry is a particularly important consideration as corruption is a type of risk that involves conscious opponents; control operations thus resemble “a game of intelligence and counterintelligence” (Sparrow 2008, 199). • Legitimizing policies by choice of a valued institutional model (Jordana and Levi-Faur 2004b, 18). The expectation to reproduce the Hong Kong “miracle” played a part in many agencies’ creation. Lithuania, for instance, justified setting up its Special Investigative Service by explicit reference to the Hong Kong model (OECD 2007, 46). Many, if not all, of these motivations for governments to establish agencies apply simultaneously and, apart from coercive policy transfer, all the time. So why are ACAs established when they are established? Again, the theory of regulation has one plausible answer: Delegation occurs as a “response to disaster,” when a “spark” puts an issue on the agenda (James 2000, 335). In the ACA literature, references to scandals as triggers are common. In each case, including Hong Kong’s ICAC, they exposed the inadequacy of existing control arrangements and demanded immediate counteraction (de Sousa 2010; Heilbrunn 2006; Maor 2004). Anechiarico and Jacobs (1996) argue that U.S. regulation of government is layer upon layer of control, each added in response to successive scandals. What might then explain the changes over time in the agencies’ mandate and the divergent outcomes in their life cycles (development, stagnation, and termination)? Here, too, regulatory theory adds depth to the picture by explaining why principals (government parties) are unable to “calibrate” or “hardwire” agencies in completely self-serving ways, why agencies sometimes develop in unfavorable political climates, and, as Boin, Kuipers, and Steenbergen (2010) argue, why agency survival is not simply a function of initial institutional design. This is the idea of feedback effects. “[D]elegation is often a process rather than a one-off event and, moreover, one in which NMIs [agencies] can be active agents” (Thatcher

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and Stone Sweet 2002, 18; see also Boin, Kuipers, and Steenbergen 2010). Wilks and Bartle’s (2002) study of competition agencies illustrates these unanticipated—and, one may add, unintended—consequences of delegation to independent bodies: the fact that, once established, agencies develop their own preferences, influence, and, most importantly, legitimacy that is no longer dependent on the delegating politicians or their successors in office. Having become actors in their own right, the agencies show striking resilience. This might explain why, even in such an exceptionally political field as anticorruption, there are very few cases of ACA termination. Wilks and Bartle’s (2002) study provides another important insight about the nature of the action governments take when a crisis necessitates some sort of policy intervention. Adding to common explanations for the decision to delegate, listed previously, Wilks and Bartle argue that the creation of agencies and their organizational design is often “motivated by a need to reassure and to appear to act” (p. 148, emphasis added). What takes place is a symbolic action, and the newly created agencies are in fact not expected to be actively pursuing the declared policy objective. It is the unanticipated activism (in Maor’s model, zealotry) of the agencies that might make them effective institutions as they find their feet and demonstrate what can be done, turning “symbolism into reality” (Wilks and Bartle 2002, 171). Symbolic action is a particularly important explanation for setting up ACAs because the assumptions about credible commitment apply to a lesser extent than in other regulatory contexts. This is where the need for ACAs to oversee their own principals comes in, that is, that while governments draw up ACAs’ mandate and approve their budgets, at least in some cases the agencies have the authority to investigate individual politicians and discredit political parties, for instance, by reporting irregularities in party financing to parliaments, that is, political opponents and the media. Consequently, delegation to independent ACAs is extremely costly for politicians subject to electoral pressures: They would not only forego direct policy influence by insulating the area, as happens with delegation in any policy area, but also increase political risk by becoming a new actor’s targets (i.e., regulatees) themselves. Politicians would thus need to get over a particularly high hurdle (act against particularly strong incentives) when setting up independent ACAs, were they really to tie their own hands.4 So much so, that it is more likely for governments to want to be seen to combat corruption, than actually combat it. Thus, an agency would only be created if some other influence counterbalances the incentive not to do anything—most likely the need for a (semicredible) commitment to meet an external actor’s demand (e.g., EU conditionality) and/or to appease public opinion (domestic constituents). Why governments choose ACAs rather than some other intervention is because this is the model that has been internationally diffused and legitimated as “best practice”—that is, ACAs are the most credible signals available. In any


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case, the odds are that governments will create paper tigers rather than ICAC-style independent and powerful organizations. At least, this should be the case when governments expect to be on the receiving end themselves. In terms of the scope of the agencies’ powers, motivations are fundamentally different when agencies might be used against political opponents. As Doig, Watt, and Williams (2005, 4) put it, “political commitment is frequently confined to exposing the crimes of previous regimes.” The incentives would then be to create powerful organizations that are easy to manipulate—not so much paper tigers as attack dogs. (Note that in either case, from the ruling government’s point of view, there is nothing to be gained from granting any more independence to the agencies than absolutely necessary for maintaining some credibility of the action.) This sort of strategic calculus can be reasonably expected to be motivated by the time horizons of political actors as conditioned by political (electoral) cycles. As Heilbrunn (2006, 143) points out, agencies with strong investigative powers tend “to be established in countries with centralized executives free from . . . regular and competitive electoral cycles,” that is, low levels of political uncertainty. Indeed, the ICAC was set up when Hong Kong was governed by a nonelected British administrator, and this was the case in a number of African countries where elections were not free or fair, or simply did not take place. More controversially, it might also be the case in countries with regular competitive elections if the electoral cycle is predicable. If a new government comes to power in the fairly certain knowledge that they have four years at the helm, they might decide that this is in fact a long enough political time horizon to make the creation of an attack-dog-type agency worthwhile. To summarize the discussion so far, the factors identified from the ACA literature might be turned into a number of tentative propositions. The first one, about the initial official mandate of an agency, is that the impetus for setting up ACAs has strong implications for how viable these organizations will be. The desire to please an external actor (international organization) or to flaunt anticorruption credentials to voters could well result in nothing more than symbolic action—this is in fact the likely outcome, given strong incentives to avoid the risk that the agency will turn against its creators. Unless these incentives are counterbalanced by a pressing need to send a credible signal, then the new agencies created will not be endowed with either too much power or autonomy. Conversely, if a government wants to use the agency against its political opponents and has sufficient time and opportunity to do so (this is most likely at the beginning of the electoral cycle), chances are better that the agency will in fact get substantial powers (including investigative powers), but hardly any distance from its political paymasters. Second, although governments seek to calibrate the agencies with the initial official mandate in predictable ways, a lot depends on how the

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ACAs, once established, use whatever material and immaterial resources they have. This relates to the second, third, and fourth factors, operational autonomy, political support, and leadership, respectively, identified in the context of the ACA literature previously. How easy or hard an ACA’s life depends on the disposition of the government in office—that is, a party, having been given a lot of trouble by the ACA while in opposition, is unlikely to look at the agency favorably once in office. The agency’s de facto operational autonomy will evolve (even if its formal official mandate is not redrawn) in a series of attacks and counterattacks, the outcomes of which are shaped by the extent the agency has managed to establish itself as an actor in its own right by this time.5 This in turn has a lot to do with the personal qualities of the agency’s leader and possibly other strategic resources. Clearly, these propositions are difficult to test formally because there are no obvious ways to measure the ACAs’ de facto autonomy, nor commonly agreed criteria to assess their performance. A number of benchmarks can, however, be devised for the following short case studies: Agency intervention against ruling governments is clearly a strong signal of de facto autonomy, while a high level of visibility and public support should at least indicate agency output (although not necessarily outcome, i.e., a reduction in corruption). The Story of Three ACAs ACAs are very common in the “new” member states: the Czech Republic, Lithuania, Latvia, Poland, Slovak Republic, Slovenia, Romania, and Bulgaria each possess an agency, most established in the run-up to the respective country’s accession to the EU (Charron 2008). The exception here is Poland, as discussed later. This is no accident: There is consensus in the literature that membership conditionality was a key driver of the spread of the agencies (e.g., Charron 2008; Dionisie and Checchi 2008; Open Society Institute 2002). Corruption always featured high on the list of concerns about the CEE countries’ accession, and while the acquis contains no explicit requirement to set up ACAs, the candidate countries’ governments could often think of no other way to show their determination to combat corruption—particularly as the ICAC model was actively promoted to them by various other external actors, as discussed later. Latvia set up its ACA in 2002, Slovenia in 2004, and Poland in 2006. This is the order in which the agencies are reviewed later. Latvia’s Corruption Prevention and Combating Bureau (KNAB) The idea to create a Hong Kong-style agency in Latvia was first suggested by the World Bank, after a bank study found Latvia to score very highly on an index of state capture (Delna–TI Latvia 2009). A 2002 GRECO report pointed out that corruption control suffered from lack of coordination


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among various institutions responsible for relevant tasks. The EU shared these concerns in its monitoring reports, repeatedly pointing to corruption as a serious obstacle to EU accession. The inadequacy of the existing control system was demonstrated all too clearly by a number of highprofile conflict of interest cases, including one where the prime minister himself (who ex officio chaired the Corruption Prevention Council) was implicated (Open Society Institute 2002, 308). Thus, all the conditions were given for the creation of an agency: strong international pressure, principally in the form of EU conditionality; scandals the existing system could not deal with; and an election that brought into power a party, “New Era,” that already in its name stressed the need for a radical break with the past. The KNAB came into being in 2002, finalizing plans that had been in the making for some time, with the Hong Kong case serving as an explicit model (OECD 2007, 54). In line with our expectations for agencies created early in the political cycle, its wide mandate included investigative powers, the authority to verify the compliance of political parties with party financing laws, and preventive tasks—indeed, strongly resembling the original ICAC model, with one crucial difference: KNAB was subordinated to the Ministry of Justice. Early in the new government’s term, the law regulating KNAB was changed, and in April 2003, the bureau (operational since the end of the previous year) was placed under the direct supervision of the cabinet, and then in 2005, the prime minister personally (OECD 2007, 58). This implies even less distance from party political influence than that was originally the case, although there was lack of clarity as to what “supervision” might entail: the right to take over a KNAB matter or case (Delna–TI Latvia 2009, 19), or merely to oversee the legality of operations (OECD 2007, 58). With respect to the appointment and removal of the director of the bureau, the government of the day had decisive influence: The head of the agency was recommended by the cabinet for appointment by parliament. In practice, most Latvian governments filled the position by open competition, with the evaluation of the candidates performed by a (nonpartisan) selection committee—the recommendation of which was, however, rejected in three cases (Delna–TI Latvia 2009, 9). One such case occurred in 2004, when a political appointee, Aleksejs Loskutovs, was chosen over the candidate recommended by the committee. Loskutovs, however, seems to have proven “too independent,” and after four years at the helm, he was removed in 2008 (as discussed later). His successor was appointed without convening a selection committee, with the decision taken by the cabinet directly (Delna–TI Latvia 2009, 13). In spite of these institutional constraints, KNAB’s operations indicate a relatively high degree of de facto operational autonomy. As early as 2003, the agency caused the removal of a minister from office on corruption charges and required two parties in the ruling coalition (including “New Era”) to repay large illegal campaign donations (FH 2003). KNAB also maintained this record under the coalition taking office in 2006, for

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instance, requiring the leading coalition member, the People’s Party, to repay a large sum of illegal overspending to the central budget (FH 2009). By its activism over time, the agency amassed a large capital of public goodwill: By 2009, KNAB was one of the most trusted public bodies in Latvia (Delna–TI Latvia 2009). This high level of support in turn served to insulate KNAB from disruptions—the agency has always been relatively well resourced, with no unjustified budget cuts and relatively stable staff numbers (between 128 and 147; Delna–TI Latvia 2009)—and, to some extent, to protect it when a ruling government wanted to exercise its legal powers for retaliation against the agency. Having initiated three disciplinary proceedings against KNAB director Aleksejs Loskutovs, in 2008, Prime Minister Kalvitis finally dismissed him (Delna–TI Latvia 2009, 12). Despite bad weather, thousands turned out to protest against the move in the streets of Riga (the event is sometimes referred to as the “umbrella revolution”), until the prime minister backtracked, and Loskutovs was reinstated. Eventually, Kalvitis succeeded, and the director was fired after news of a case of financial mismanagement within KNAB broke. Political parties remained divided over the status of KNAB—at least some parties in opposition favored giving it more independence, while others, in or close to power, saw no reason to remove the possibility of political interference (Delna–TI Latvia 2009). Slovenia’s Commission for the Prevention of Corruption Similar to the Latvian case, EU and GRECO monitoring reports played an important part in putting the idea of an anticorruption body on the agenda in Slovenia. It was following a GRECO report that an office for corruption prevention, attached to the prime minister’s office, was established in 2001. The office was tasked with the drafting of a comprehensive anticorruption strategy, which was eventually adopted, including a decision to create an ACA as an independent constitutional body (a status similar to that of an ombudsman) reporting to parliament. The Commission for the Prevention of Corruption was given coordinative, analytical, and preventive functions with respect to both the public and the private sectors, and while it was not granted power to investigate individual cases, it was given administrative powers with respect to officials’ asset declarations and conflicts of interest (OECD 2007, 110). Members of the Commission were nominated and appointed by a complex procedure involving all branches of power (executive, legislative, and judicial) to minimize the influence of any one political actor. In October 2004, the Commission was off to what proved to be a very rocky start, almost at the same time that a parliamentary election replaced a center-left government with a center-right coalition led by Janez Jansa. Only a few months into the new parliament’s term, an opposition party proposed closing down the Commission and transferring its


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competencies to a parliamentary body, that is, back to the politicians themselves. According to Nations in Transit reports, there was some indication that the initiative in fact originated from the government, wishing to remove a source of external oversight into its affairs, although the reason publicly cited to support the move was the Commission’s alleged ineffectiveness. In an unusual show of unity between government and some opposition parties, parliament approved the Commission’s termination— until the Constitutional Court suspended the bill and allowed the Commission to resume operation (FH 2006, 2007). Political attacks against the body were, however, far from over. In November 2007, a bill was tabled to extend the Commission’s operations only until 2009, and while it was not approved, the Commission remained in limbo in 2008, possibly at the worst possible time. In that year, just a few weeks before the parliamentary elections, Slovenia’s biggest corruption scandal (“the Patria affair”) broke, involving allegations that a Finnish company bribed senior Slovene officials to secure a large military procurement contract. In the Finnish investigation of the scandal, Prime Minister Janza was also implicated, and, although the government maintained that the allegations were nothing but an attempt to manipulate the elections, the party lost the elections. The year 2009 then saw further clashes between the Commission and parliament, this time with a center-left coalition in power. A parliamentary commission (led by an opposition member of parliament [MP]), for instance, demanded to have access to all reports filed to the Commission, or in effect, the identity of any potential whistleblower disclosing acts of corruption (FH 2010). Government attacks took the form not only of attempts to redraw (extinguish) the Commission’s original mandate but also of severe budget cuts and a lack of cooperation (almost amounting to a boycott) by other agencies essential for the Commission’s effective operation (CPC 2008). The Commission’s 2008 annual report notes that “due to very serious issues with the budget which almost led to the staff of the Commission not receiving their monthly salaries, the Commission had serious staff deficiency problems” (Commission for the Prevention of Corruption 2008, 37). The body was receiving only 50% of the necessary financial resources and employed only 11 staff instead of the 25 that would have been needed; Parliament had also cut the salaries of the top officials by 25–35% (Dionisie and Checchi 2008, 15). In the circumstances, it is nothing short of a miracle that the Commission carried out any of its tasks at all. In fact, its 2008 report shows a heavy caseload, up considerably on previous years (CPC 2008, 27). The attacks on the body seemed only to send a message to the public about its independence. Public opinion was overwhelmingly in favor not only of keeping the Commission but also of boosting its powers (CPC 2008, 19). This seems to be, in large part, thanks to strong leadership. Drago Kos, the Commission’s first, and, so far, only president, was a well-respected public figure who doggedly—one might say zealously—pursued what he

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considered was his small organization’s mission. As a Nations in Transit report puts it, “Drago Kos . . . is a thorn in the side of the politicians and public officials . . . which a priori suggests that he is executing his duties . . . professionally and lawfully’ (FH 2007). Kos was vice-chairman and then chairman of the Council of Europe’s GRECO, and his international professional networks undoubtedly helped to secure strong condemnation of governmental attacks on the Commission by a wide range of bodies from the OECD to TI. In 2010, a new law finally reaffirmed the Commission’s independence and its (still largely preventive and coordinative) mandate. Poland’s Central Anticorruption Bureau (CBA) The Polish case differs from that of Slovenia and Latvia, and indeed the majority of cases in CEE, in that, with Poland already safely in the EU, membership conditionality was no longer relevant when the CBA was established in 2005. Plans to establish a special investigative service were announced by Poland’s then new government, led by the Law and Justice Party, shortly after the elections. As its name suggests, the party was founded largely on a law-and-order platform, and indeed corruption was a central issue in the 2005 election campaign (Szczerbiak 2005). From 2002, the country had been rocked by a series of high-profile corruption scandals discrediting the governing Democratic Left Alliance. When Law and Justice came to power in 2005, there was thus much to be gained by, and sufficiently long-time horizons for, the new government’s determination to relentlessly fight corruption—mainly among the former governing party’s ranks. Indeed, it was announced shortly after the election that an “elite group of 500 officers” would be tasked to verify politicians’ asset declarations and to investigate suspicions of corruption (FH 2006). The bill on the CBA was approved in May 2006, setting up the Bureau as one of Poland’s five special services. In addition to preventive and coordination tasks, it was given a mandate to fight “any activity which may endanger the State’s economic interests” (CBA 2010)—a formulation that gave the agency wide discretion in what (and whom) it chose to investigate. CBA was also granted strong police powers, including the right to monitor bank accounts, wiretap, search company and private premises, detain vehicles, use firearms, and carry out covert operations. In this, CBA closely resembled ICAC’s three-pronged approach and strong investigative powers—although without any of ICAC’s guarantees for operational independence or accountability. The head of CBA reported directly to the prime minister, who also had the right to appoint and recall him/her, with the consent of the president of the republic, the Committee for Special Services and the Parliamentary Special Services Committee (CBA 2010). Law and Justice appointed an active politician from among its own ranks, Mariusz Kamin´ski, as CBA’s first director—in the middle of


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predictable media reactions fearing that the body would be used for a witch-hunt against the opposition. From this perspective, it may seem surprising that one of CBA’s first high-profile political “victims” was a member of the government, agriculture minister Andzej Lepper—who was, however, a leader of an increasingly awkward coalition partner for Law and Justice. Lepper was duly sacked by Prime Minister Jaroslaw Kaczynski, effectively ending the coalition that led to early parliamentary elections Law and Justice may have expected to win. The agency made front page news again when tapes implicating a female candidate of Civic Platform—Law and Justice’s main rivals in the elections—who had been drawn into a shady deal by an undercover CBA agent, were released in the middle of the election campaign. The 2007 elections were eventually won by Civic Platform, and with this, the political context in which the agency operated dramatically altered. The agency was frequently criticized as ineffective and overly partisan, and in June 2009, a Constitutional Court ruling found part of the law setting up CBA, including the wide definition of corruption, unconstitutional, and required the amendment of the law. CBA, however, seemed to carry on regardless—including a botched operation in October 2009, which failed to implicate former President Aleksander Kwasniewski of the Democratic Left Alliance. However, in the same month, a CBA investigation did implicate several senior Civic Platform politicians in the so-called Blackjack affair, involving efforts to tailor legislation to the interests of the gambling industry. This proved a bridge too far. While accepting the resignation of several of his ministers, Prime Minister Tusk also put in motion the procedure to terminate Kaminski’s appointment as head of CBA, claiming that Kaminski abused his position, and through him, Law and Justice used CBA to trip up Civil Platform. Kaminski and President Kaczynski both protested against the move, with Kaminski claiming that CBA was only carrying out its mandate, and his removal was nothing but revenge for exposing corruption within Civic Platform. The investigation of the Blackjack affair was referred to a special parliamentary commission, and rather than finding another active politician, Civic Platform appointed a professional, the former director of Poland’s Central Investigation Bureau, as CBA’s new head. The controversy around the agency abated somewhat, but the new leadership alone may not be sufficient for turning around public perceptions of the agency as a partisan creation of the former government party, or for appeasing the many powerful enemies that CBA made in the few short years of its existence. Conclusion What do these stories tell us about the establishment and development trajectories of ACAs? In all three cases, as in most others known from the literature, isomorphism played a major role in the choice of

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ACAs as a policy response: Agency creation was seen as the anticorruption intervention because the model has been so widely diffused and legitimated internationally. There is, however, considerable variation in terms of the powers, resources, and degree of independence the agencies were granted at the outset, which primarily reflects domestic political dynamics. Once created, ACAs in CEE, as elsewhere, have a difficult life, being subjected to repeated attacks from politicians seeking to assert their influence. The three CEE cases also tell us that the spark of scandals ignites only if other conditions are also present—strong external pressure in the form of conditionality, as was the case in Latvia and Slovenia, and/or a window opened by party politics, more specifically, political parties playing the corruption card in an election, as happened in Latvia and Poland. Yet, of the three, only in the Polish case is the agency’s initial official statute a good predictor of its development trajectory. The Polish government succeeded in calibrating the agency in a way that would allow it to serve partisan interests. While the party setting it up was in power, CBA seems to have functioned as an extended arm of the government—thus enjoying government support and pursuing preferences perfectly aligned with those of its political principals. Following a change of government, the agency’s partisan leadership had powerful allies (notably the president of the republic), allowing it to continue in the same vein for some time, but the inevitable clash with the new government eventually arrived and ended with the latter’s predictable victory. Given its weak autonomy, the strongest determinant of the ACA’s fate was, and remains, the attitude of ruling parties toward it. On the other hand, the Slovene commission is not a paper tiger, and the Latvian bureau is not an attack dog, as may have been expected on the basis of their formal initial mandate and independence alone. In contrast to CBA, both agencies developed as legitimate, trusted actors in their own right that pursue their goals with a high degree of de facto operational autonomy. Feedback effects are particularly strong in the Slovene case, where the commission survived a long period of stagnation to become an influential player in the prolonged process of drawing and redrawing its formal mandate. This is particularly notable given the Commission’s small size and, in comparison with CBA and KNAB, limited powers. Both KNAB and CBC regulated political parties and/or individual politicians in what appears to be an unbiased way, even through governments had a wide array of methods at their disposal to control the agencies, such as the appointment and dismissal of the head of the agency, a particularly strong control method in Latvia, or severe budget cuts and obstruction by other public bodies, as was the case, for some time, in Slovenia. Both agencies earned independent actorness by carrying out their functions in the face of, at times, strong political opposition from governments, benefiting from strong leadership and reliance on public and/or international support. Their experience suggests that


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ACAs’ official mandate influences but does not determine how they fare in later life. The three CEE countries’ experience suggests that the decision to delegate to an ACA, and the organizational form the agency would take, is a function of contradictory pressures between, on the one hand, needing to send a signal to meet an external actor’s demand (e.g., EU conditionality) or to appease public opinion (domestic constituents) and, on the other hand, wanting to make sure that the agency subsequently does not turn against its creator. The agencies reviewed here illustrate that the way this plays out depends at least partly on timing. It seems that in the wake of an electoral victory, politicians in Central Europe are not overly perturbed by political uncertainty: The remainder of a regular political cycle provides them sufficiently long-time horizons for creating, and trying to calibrate, agencies, even through they run the risk that their creation turns into a powerful weapon against them in the hands of a political opponent—four years down the line. How ACAs are born and develop thus speaks of the tension between agency autonomy and control, in rather extreme—that is to say, extremely politicized— circumstances. This is also to say that regulatory theory, and more specifically the regulation of government literature, provides a useful analytical lens for the study of anticorruption. In this policy area too, the need for enhancing the credibility of commitments provides key incentives to policymakers for agency creation. At the same time, isomorphism and specifically emulation of what is promoted internationally as best practice explain why ACAs are selected by governments as commitment devices rather than some other policy measure. In terms of the efficacy of ACAs as a policy response for reducing corruption, it needs to be acknowledged that the decks are strongly stacked for political control and against agency autonomy—at least, if one accepts the central assumption of comparative politics that political parties are goal-oriented actors motivated by the pursuit of votes, office, and policy influence. Even if ACAs are set up, governments have strong incentives to create paper tigers rather than the ICAC-style independent and powerful organization that helped Hong Kong significantly reduce corruption. If, against the odds, a strong agency is in fact created, the most likely reason is the intention to highjack it from the outset. In other words, governments create powerful ACAs not so much to bind their own hands, but rather in the expectation that they can punish electoral opponents. Whether or not this happens seems to be largely determined by the integrity and zealousness of the agency’s leadership, which leaves rather a lot to chance. If further research finds that the patterns observed in the new member states of the EU in CEE apply beyond that region, then ACAs should only be created where a lasting consensus can emerge among politicians to delegate—in other words, in countries that probably do not need an anticorruption agency in the first place.

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Notes 1. 2. 3. 4. 5.

A notable exception is a large data set and comparative analysis by Ancorage-net, coordinated by Luis de Sousa. UN Convention Against Corruption, available online at the UN Office on Drugs and Crime website at http://www.unodc.org/unodc/en/treaties/ CAC/ (accessed February 24, 2011). The index is available at TI’s website at http://www.transparency.org. A number of disclaimers about the methodology, stated by TI on the same webpage, apply. Krastev and Ganev (2004) refer to this as “the missing incentive”: Governments either directly benefit from corruption or they fail to see the benefits of corruption control—at least, within a politically relevant period of time. On the distinction between formal independence (“enshrined in the constitutions of agencies”) and de facto independence (effective independence in day-to-day activity), see Maggetti (2007) and Yesilkagit and van Thiel (2008).

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