Legal Commentary

This last Friday, I had the pleasure of appearing on a panel with some very distinguished public officials in federalism and the fight against corruption in the United States. The panel was part of a conference on Policing, Regulating, and Prosecuting Corruption, organized by NYU's Center on the Administration of Criminal Law, a think tank run by Tony and Rachel Barkow. Ron Goldstock, the moderator of our federalism panel (as well as former director of the NY task force on organized crime and New York State Commissioner of the Waterfront Commission of New York Harbor), adopted the unconventional approach of posing to the panel hypothetical instances of corrupt behavior over which both state and federal prosecutors had jurisdiction. Imagining that we were a blue-ribbon commission tasked with figuring out rules for divvying up jurisdiction over corruption offenses, he asked us which level of government ought to handle the hypothetical offenses.

Being unhampered by responsibility, experience, or any practical knowledge, I had the temerity to press my strong prescription for subsidiarity: The feds ought to prosecute corruption cases involving state or local officials only if either (a) subnational authorities request such help, (b) the crime has significant interstate effects (say, on TARP money) that state officials would have insufficient electoral incentives to monitor, (c) the crime in question involves violations of national civil rights entrusted to the federal government's care (e.g., the police beating of Rodney King), or (d) objective criteria, developed by Main Justice in advance of specific disputes, indicates that state or city officials were too closely linked to the allegedly corrupt political figures to investigate their behavior in an independent manner. Absent one of these factors, the feds ought to back off and leave the cure for the corrupt behavior to non-federal prosecutors. On this theory, New York City's officials should never be subject to federal corruption investigations for garden-variety corruption -- bribes, extortion, gratuities, and conflicts of interest -- because the City's Department of Inspections, Conflict of Interest Board, very independent-minded district attorneys, and the NY Attorney General all provide sufficiently robust correctives for dishonest politicians. Needless to say, the practicing public officials on the panel were much too responsible and experienced to embrace my formula whole hog. But, to my surprise, Nora R. Dannehy and R. Blake Chisam (the two panelists most famous for their experience as federal watchdogs) seemed open to the idea of imposing pretty strict limits on the federal role.

So what is the chief obstacle to my theory of federalism in policing corruption? The problem is developing a good metric of subnational jurisdictions' capacity for controlling corruption. Such a metric would take into account factors like the independence of subnational watchdogs -- inspector generals, DAs, etc -- as well as the competitiveness of political parties, transparency of the governments' procedures, robustness of the local press, and any other political facts relevant to the monitoring and policing of corruption.

Here's my question: Does anyone out there know of academic work shedding light on states' capacity to police themselves? I'm looking for an index analogous to Heather Gerken's "Democracy Index" -- a sort of "corruption control index" -- that Main Justice could use in evaluating whether U.S. Attorneys should be permitted to go forward with corruption cases because subnational anti-corruption systems have, in some objective sense, "failed." Anything out there? Many thanks in advance for your tips.