Collective Action to Counter Corruption: Learning from Mothers against Drunk Driving (MADD) et al. and Leveraging the Power of Social Media By Beverley Earle, Gregory H. Adamian Professor of Law, Department of Law, Taxation and Financial Planning, Bentley University, Waltham, Massachusetts, United States of America & Anita Cava, Professor, Department of Business Law, University of Miami School of Business Administration; Director of Business Ethics Program and Co-Director of UM Ethics Programs, Miami, Florida, United States of America [email protected] [email protected] The authors would like to thank Caitlain Devereaux Lewis for her contribution. The opinions expressed and arguments employed herein are solely those of the authors and do not necessarily reflect the official views of the OECD or of its member countries. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. This paper was submitted as part of a competitive call for papers on integrity, anti-corruption and trade in the context of the 2016 OECD Integrity Forum. Abstract Collective action – the cooperation between various stakeholders in society to advance shared economic development goals – is a long-standing concept. Its recent incarnation is as a more highly focused and united strategy being used by businesses, NGOs and governments to address corruption. This theoretical notion became experimental when the World Bank approved Siemen’s decision to invest in and promote collective action strategies in the global marketplace. This paper briefly examines the history of Collective Action in the context of battling corruption, focusing on new and successful cooperative ventures among competitors. The review illuminates the importance of not only the evolving legal landscape, but also the media’s role in engaging society as a whole to promote change. The paper examines other effective Collective Action campaigns combatting social ills, including drunk driving, often associated with the efforts of Mothers Against Drunk Driving (MADD), domestic violence, money-laundering, as targeted by the initiatives of Global Witness, and smoking, as possible models to assist in the anti-corruption fight. The paper concludes with some suggestions regarding using social media to augment the promising start of effective collective action by industry competitors. Keywords collective action, Foreign Corrupt Practices Act, FCPA, corruption, viral media campaign, social justice media campaign 1 1. Introduction Collective action – the cooperation between various stakeholders in society to advance shared economic development goals – is a long-standing concept. Its recent incarnation is as a more highly focused and united strategy being used by businesses, NGOs and governments to address corruption. This theoretical notion became experimental when the World Bank approved Siemen’s decision to invest in and promote Collective Action strategies in the global marketplace (Siemens 2016). Not surprisingly, academics have become interested in further understanding and expanding the theory; thought leaders, including Dr. Mark Pieth of the University of Basel (Pieth ed. 2012), have assumed dynamic leadership roles in this area. Of course, most agree there is much more to be done. Corruption continues on a large scale and, despite a shared understanding of the costs of such conduct, continues unabated. As Brook Horowitz, the CEO of a non-profit that promotes responsible business practices in the international arena, has noted: Collective Action still remains somewhere on the periphery and until more is done, the jury is still out on its ability to catalyze change. It requires more publicity, advocacy, more success stories – and dare I say it – more funding to demonstrate real impact in changing the culture of corruption (Horowitz 2014). We will review the progress of this relatively nascent movement and then consider elements of the concerns expressed by Brook Horowitz: the need for ‘more publicity, advocacy, success stories’ (Horowitz 2014). Specifically, we will examine the extremely successful MADD campaign in the United States, which embraced various strategies to accomplish its single, seemingly impossible, goal (MADD 2016). Mothers Against Drunk Driving was started in 1980 by a mother whose child was killed by a drunk driver. It spread throughout the United States and Canada, relying primarily on community and grassroots campaigns that ultimately found a voice in legislation and in the court system (Davies 2 2005). In 2006, MADD expanded its focus to an emphasis on new technology, including ignition kill switches that could assist in deterring drunk driving. It also has pursued a strong social media presence (MADD 2016). We believe the MADD model is applicable in the anti-corruption fight. MADD’s strategies succeeded in completely reversing the social acceptability of drinking and driving in a relatively short period of time. There is a perception that bribery is a similarly deeply-embedded practice, nearly impossible to root out. We believe there are lessons to be learned. How can community engagement and grassroots campaigns be strengthened? How might social media be used effectively? Arguably, a distraught mother is a more compelling advocate than an academic discussing the social costs of bribery. Thus, how can the story about bribery be made more compelling? The ubiquity of YouTube, and the possibility of attracting one million views, makes it an enticing medium to consider. The recent Kony videos illustrating the atrocious crimes of a Ugandan warlord offer some tantalizing possibilities; that project succeeded in capturing international imagination and attention, but fell short as the group seemed to lose its credibility and focus, squandering the incredible media capital it brought to the issue (Truthloader 2013; ABC News 2012). Our research will focus on articulating how the next stage of Collective Action, continuing legal reform and prosecution, coupled with a media strategy, could proceed to place anti-corruption on the public’s agenda. 2. Brief selective history of Collective Action Historically, most agreements between competitors have been deemed anti-competitive, illegal and grounds for prosecution and possible incarceration – even for first-time offenders. The offense of price-fixing is a most salient, but not the only, example (Federal Trade Commission 2016). However, 3 the law makes an exception if an agreement centers on a plan to avoid engaging in corruption or paying bribes. In the health care arena, for example, compliance professionals from various pharmaceutical and medical device companies formed the Latin American Ethics and Compliance Network, which has been meeting since 2010 ‘to discuss compliance issues and best practices trying to raise ethical standards through better compliance educational opportunities’ (LAECN 2016; LAECN 2014). The mission of the network is ‘to open a forum of valuable information exchange for compliance professional[s] in Pharma and Medical Devices in Latin America’ (LAECN 2016). Each meeting begins with a disclaimer to the effect that the discussion is to focus solely on sharing strategies for promoting compliance in the relevant marketplace. A lawyer is always present to assure that the agenda never strays from that goal. Outcomes of these meetings have included a number of effective initiatives, including two Latin American Health Care Compliance Congresses with high attendance in the region (LAECN 2014). In the maritime industry, an especially encouraging undertaking to promote a shared anti-corruption agenda has emerged and is beginning to be viewed as an exemplary model. The Maritime AntiCorruption Network, established and formalized in 2011 to 2012, states its mission is to be ‘a global business network working toward . . . a maritime industry free of corruption that enables fair trade to the benefit of society at large’ (MACN 2012, p.2). MACN’s main objective is to ‘make doing the right thing during a port of call easier for the captain’, and its strategy is to promote effective compliance programs throughout the industry and to then ‘join forces in collective action’ (Winslow 2015, p.6). MACN has adopted a set of seven principles that generally track the familiar elements espoused by U.S. Department of Justice, but which reflect a more nuanced understanding of business reality. For example, the principle of ‘Proportionate Procedures’ suggests that the compliance policies and procedures should ‘give specific guidance on facilitation payments with the ultimate aim of their elimination’ and ‘should be proportionate to the risks faced by the various parts of each Member, as well as the nature, scale and complexity of the organization’s activities’ (MACN 2016). 4 As of early 2015, MACN had fifty-one participating companies and organizations in two levels of engagement, associate and regular membership. Regular members are ‘vessel owners and operators that commit to implementing the MACN Anti-Corruption Principles’ (MACN 2016, Join MACN). The Network has achieved some success in its effort to create a checklist for captains as they enter a port of call, and has also released a report on its effort to deploy a collective action strategy in the Nigerian port sector (MACN 2014). This cooperative business strategy is actually encouraged by law, governments and NGOs to eradicate the two sides of corruption: extortion and bribery. In his seminal collection of essays addressing collective action, Pieth noted that ‘the current interest in Collective Action as a means of combatting corruption is a response to a drastic increase in regulatory risks for corporations’ (Pieth ed. 2012, p.19). Indeed, one need only look to the 2016 disgorgement of and penalties imposed on VimpelCom to understand the stakes for companies that get compliance wrong (Cassin 19 February 2016). VimpelCom, a Dutch telecommunications company, and its Uzbek subsidiary paid USD $114 million to a government official. Their penalty, USD $397.6 million plus additional money to the Dutch government, or a total of USD $795 million, is the sixth largest penalty in U.S. history (Cassin 18 February 2016). Companies would prefer to avoid such penalties by effective compliance, as well as Collective Action with competitors to eliminate the ‘free rider problem’ (Pieth ed. 2012, p.4). Many NGOs and business organizations have played an important role in moving the conversation forward, particularly Transparency International (TI) (De Swardt & Wiehen 2012). Launched in 1993 by the former head of the World Bank, Peter Eigen, TI pioneered ‘Islands of Integrity’ and ‘Integrity Pacts’, which are tool[s] for preventing corruption in public contracting. They are essentially an agreement between the government agency offering a contract and the companies bidding for it that they will abstain from bribery, collusion and other corrupt practices for the extent of the contract. 5 To ensure accountability, Integrity Pacts also include a monitoring system typically led by civil society groups (often [TI’s] chapters). Integrity Pacts have been around since the 1990s, and have been applied in more than 15 countries and 300 separate situations. They help save taxpayer funds, ensure that infrastructure projects and other public works are delivered efficiently, and stave off avenues for illicit gain (Transparency International 2015). Significantly, TI understands that technology and monitoring have a role in combatting corruption; it created the well-known Corruptions Perception Index and Bribe Payers’ Index (Transparency International (CPI) 2015; Transparency International 2011). These rankings, based on surveys, are now an internationally-recognized means for measuring and tracking the most corrupt environments, as well as the countries and home of companies most likely to require or offer to pay bribes in the course of conducting everyday business. This, coupled with technology, allows for more tracking and monitoring by cooperating parties. It is the hope for those participating in Collective Action that the spirit of integrity need not be confined to islands. As a new wave of demands for public accountability spreads, a new wave of social tools for achieving those demands is also spreading. We are seeing new technologies drive demands for Integrity Pacts to new levels. Just as they drove the Arab Spring in a manner hitherto unimaginable, social media can be used to make mundane bureaucratic procedures, like government spending and procurement accountable in new ways. Dozens of governments now use Internet portals to give citizens access to budgets and decisions (De Swardt & Wiehen 2012, p.94). Another iteration of Collective Action, reflected in the Wolfsberg Group, started in 1999 and named after the place where an association of eleven banks met to work on anti-money laundering guidelines, is actually regarded as the beginning of Collective Action. The Group has expanded its mission and has issued principles and guidance on a number of topics, including its Anti-Corruption Guidance 2007 and 2011 (Aiolfi & Bauer 2012, p.109). 6 Around the same time, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was signed in 1997 and entered into force in 1999 (OECD 1997), added to the end-of-the-century push with the other organizations to resurrect and reinvigorate the international anti-corruption efforts started in part by the passage of the U.S. Foreign Corrupt Practices Act (FCPA) in 1977. The OECD was seminal in bringing other countries into the collective understanding that bribery is not just morally corrupt, but also destabilizes economic and political systems and stymies a country’s future development. It also started a movement to end tax deductions in home countries for overseas bribe payers (Earle 1996, pp.208, 225, 238). The UN Global Compact, started in 2000, adds to this partnership of governments, business and NGOs working in tandem to address the scourge of corruption (UN Global Compact 2016). The principles are hortatory and without teeth, but are a step away from countries allowing tax deductions for bribes. There is some movement with Principle 10: ‘Anti-Corruption’, which provides ‘Businesses should work against corruption in all its forms, including extortion and bribery’ (UN Global Compact 2000). Certainly other groups like TRACE International, Inc. (2016) have tried to engage the business community in ways to combat corruption while still being able to conduct business in countries where bribery is endemic. Another group trying to bring standardization to compliance and anti-bribery measures, just as it did for other business processes, is the International Organization for Standardization (ISO) through its ‘19600:2014’ standard pertaining to ‘Compliance management systems’ (ISO 2014; Tolar 2013). The Ernst & Young (2015) description of the 2014 ISO standard enables even small companies to assess what compliance looks like, and understand how to build a program that clearly zeroes in on risk. Additionally, the ISO has also proposed an ‘Anti-bribery management system’, ISO 37001:2015, which is currently in draft form (ISO 2015). However experts like Alexandra Wrage, president of TRACE, question the efficacy of such monitoring and certification (Wrage 2016). 7 It may seem ironic that Siemens, which holds the record for the highest FCPA penalty under a settlement agreement with the U.S. Department of Justice, has now become part of the solution as a result of a 2009 parallel settlement with the World Bank (Zindera & Forstnig-Errath 2012). One settlement term was that the company would dedicate USD $100,000,000 to the Siemens Integrity Initiative, to be distributed over a period of fifteen years (Siemens 2016). A sample project funded from Siemens’ initiatives to date is the Integrity Partner in Brazil, intended to help insure transparency for both World Cup 2014 and the 2016 Olympic games (Zindera & Forstnig-Errath 2012, p.191). Collective Action has demonstrated undeniable power to change law and practice in the past and augurs well for the future. The obvious example is the United States’ civil rights movement, where civil disobedience and massive marches – the precursor to viral action – protesting segregation and the denial of access of black citizens to housing, public accommodations and jobs generated a series of legal reforms culminating in the election of Barack Obama as President for two terms (PBS 2015). 3. Current examples of using an effective media strategy and Collective Action History teaches us, of course, that legal strategies alone are generally not sufficient to usher in change. Some organizations have already used an aggressive media strategy to push their message and alter public opinion. One need not look far to find several effective examples of the use of enhanced strategies to drive change through Collective Action, as well as two with uncertain results. 3.1 Driving under the influence (DUI) Mothers Against Drunk Drivers, commonly known as MADD (2016), has long used a combined media strategy with a push for legal change to advance their agenda. This grassroots organization, a club to which no one wants a membership card, began in 1980 and in short order established a chapter in almost every state within the United States. MADD (2016) reports that in 1980, 25,000 people died as a result of drunk drivers; by 2013, the number had dropped 55%, or to 10,076. The use of media has been very persuasive in changing an entire culture of impaired driving. In the 1970s, many people 8 drove drunk and did not think much about it. If something happened, it was simply an accident. However, by introducing designated drivers, and making it seem glamorous, MADD helped to change the culture. Companies are now more careful about alcohol-fueled parties. In 2010, MADD and the National Football League (NFL, the U.S. ‘football’ league) teamed up to start a campaign for designated drivers, the well-known ‘Take the pledge to play the most valuable position in the NFL: Designated Driver’ (MADD 2016). The campaign includes a graphic of keys tossed in the air as a football being passed to a designated driver. But there was not just a media focus; there was also a focus on necessary legislative changes, such as reducing the limit of alcohol sufficient to support a charge of driving under the influence. The federal government adopted a new standard in 2000, leaving the states to follow suit. More recently, MADD has embraced a legislative agenda to encourage states to adopt ignition interlock laws; as of June 2015, twenty-five states have done so, including Texas. It is important to note that this strategy is not peculiar to one particular political view: ‘to mobilize victims and their allies the public conviction that impaired driving is unacceptable and criminal, in order to promote correspondingly public policies, programs and personal responsibility’ (MADD 2016). Perhaps the personal nature of the stories, combined with the fury of bereaved mothers, have made MADD so effective. It may be difficult for other groups with messages against anti-corruption to harness the same anger and urgency. Although TI has included a ‘True Stories’ section on its website, replicating the MADD strategy, it is unclear whether this has caught on in the same way (Transparency International 2012). 3.2 Smoking cessation The campaign to eradicate smoking is another interesting example of a legislative agenda being enhanced by sophisticated media efforts (ASH n.d.). For example, a strong anti-smoking media campaign has led to a decline in smoking in the United States. While the 1964 decision by the U.S. Surgeon General to put a warning on every package of cigarettes was startling at the time, it certainly 9 was widely ignored by smokers (CNN 2015). Smoking was still tolerated in a majority of homes with not a thought to its impact on children or other family members. Undeniably, however, more recent videos have definite visual impact; one connects smoking and its damage to subsequent erectile dysfunction, while another shows a grey and wrinkled middle-aged woman tethered to an oxygen tank in bed. Smoking declined an average 25 percent among men in 187 countries from 1980–2012, and by 42 percent among women. Because of population growth, the number of smokers worldwide has increased and rates remain high in many countries. More than half of men smoke in Russia, Indonesia and Armenia, and more than 1 in 4 women smoke in Chile, France and Greece (CBS 2014). A number of groups are involved in trying to change these statistics. Further, a host of legal and policy changes contributed to this decline: making public and private places smoke-free, including private work places; developing and deploying medical treatments to assist in smoke cessation; the rising cost of cancer and other illnesses caused by smoking; increasing taxation on cigarettes, causing prices to rise dramatically; the emergence of electronic cigarettes; and the media attention to the personal cost of smoking. Even most universities and companies are requiring smoke-free campuses. Although it is difficult to pinpoint the exact driver of this huge societal change, one must acknowledge that it is much more difficult to be a smoker in 2016 in the United States, just as is the case in many parts of the world. 3.3 Domestic violence Domestic violence has not been as easy to tackle as the first two societal ills. The first ever Super Bowl advertisement against domestic violence aired in 2015 (Holmquist 2016). Based on an actual call to 911, the ad depicted a woman pretending to be ordering a pizza and hoping the emergency operator can figure out she needs help. This effort illuminates the breadth and depth of domestic violence: the NFL, which has been plagued by players being accused of domestic violence, certainly reflects a problem in the larger society that cuts across race, gender, class and economic strata. Still, 10 statistics about the rate of domestic violence are mixed. One study says that the crime rate is down across the board (Lagorio 2006), while another more recent study says the incidents of domestic violence rose with the worsening of the economy in the United States (Huff Post Business 2012). Nonetheless, we can all appreciate that this public service announcement illustrates the role the media plays in shaping public opinion. Historically, domestic violence was considered a ‘private matter’ that law enforcement or agencies would generally avoid unless it involved a death, trip to the hospital or an official complaint to the authorities. This is certainly no longer the case. In 2015, Aroldis Chapman, a renowned New York Yankee pitcher, was suspended for fifty games for having an altercation with his girlfriend, even though the prosecutor declined to pursue charges due to weak evidence (Diamond 2016). Nevertheless, because major league baseball adopted a domestic violence policy for its players in 2015, this incident became the ‘test case’. Enforcing the policy resulted in not only the suspension, but also a fine of USD $2 million from his USD $11.325 salary in 2016. Chapman also will give up USD $2 million out of USD $11.325 million of his 2016 salary. 3.4 Overt cooperation in corruption A fourth example involves Global Witness, a U.K.-based NGO dedicated to ‘exposing corruption and environmental abuse’ that has utilized an interesting media strategy (Global Witness 2016). It hired an actor to pretend to represent an anonymous African minister from an unnamed country who received millions of dollars garnered from ‘facilitation payments’ and wanted to stash the cash in the United States by purchasing planes, boats and property. It secretly filmed the ‘representative’ as he met with fourteen lawyers in the United States. Only one of these many lawyers refused to be involved in the scheme and declined to move forward with discussions. All the others agreed to a second follow-up meeting, although some appeared to give lip service to the law by saying they would have to complete due diligence. Nonetheless, all agreed to continue discussions, despite the representative making it clear that this huge sum of money came from facilitation payments and demanding the buyer’s name be kept secret (Global Witness 2016, Undercover). This clip was shown on the popular news show, Sixty Minutes, on January 31, 2016 (CBS News 2016). However, despite the power of the piece and 11 the startling revelation that it was easier to create shell companies in the United States than in any other country, which obviously enables hiding illegal proceeds, it is unclear how to link anger over this practice to action and change. Global Witness’ slogan is ‘we change the system’, but time will assess the effectiveness of its media approach. Of course, collective action is not an overnight strategy. MADD has been working on its campaign for over three decades, catalyzing and capitalizing on its success in reframing the acceptability of driving under the influence and causing harm. The Kony video example mentioned above is at the other end of the spectrum, the ‘one-shot wonder’, and stands as an example of a media strategy to avoid. The challenge for those who would pursue Collective Action to combat corruption is clear: Corruption is harmful and contributes to the decay of society and its essential infrastructures, both governmental and private. The interest of an investigative journalism television show is important, but a weekly show that airs a story just once does not have the impact of the daily press and the daily reporting of harm. Since the 60 Minutes clip aired about a month ago, there has been virtually no further commentary or follow-up. Obviously, the challenge is how to leverage the impact of the story, and others like it, for the audience that views the story, as well as those who hear about it from others. The message must be visual, constant and compelling. Is anti-corruption different from the issue of drunk drivers killing the innocent? Yes, certainly, but the lesson of MADD may help the anti-corruption effort make its message both more personal and dramatic and less abstract. Is it different than the personal, social and business costs of smoking? Yes, smoking is still a voluntary (like bribery) but legal (unlike bribery) activity. Again, the media campaign was effective in changing attitudes about a practice, smoking, that previously was widely accepted. The verdict is still out as to whether the strategy will work with domestic violence to change law, attitudes and behavior. We are suggesting that academics and NGOs consider how to connect an effective media strategy to their policy and regulatory goals. 12 4. Suggestions to harness the power of the media to fight corruption There are examples of using the Internet to harness citizens’ anger; for example, in India citizens can report bribes using www.ipaidabribe.com (Lahiri 2010). Yet, the question is how does the anticorruption movement take advantage of the multiple players and different Collective Action efforts? How is this energy carried to the multiple global enforcement environments and pushed by every country and NGO so there is no place to hide for those that plunder – foreign officials and businesspeople alike? How can the true power of the Internet be harnessed to logarithmically move this agenda forward? We offer several suggestions: 4.1 Open Siemens funding rounds, or another settlement source, to launch a YouTube contest to begin a viral campaign against corruption. There should be a number of prizes recognizing different geographic areas, including Africa, China, Europe (or sub groups), U.S., South America (perhaps with separate countries), Mexico, India and Russia. 4.2 Bring in the top marketers from Amazon, Facebook and other companies to discuss elements of a media strategy (much like how the government is finally asking for their help in combatting ISIS recruitment) (CBS News 2016, US recruits tech leaders). 4.3 Borrow from the Global Witness strategy of using sting operations to expose the reality of corruption in a country. 4.4 Continue multi-country legal cooperation so criminals have no place to hide. 4.5 Make corruption not academic but real; identify the cost to the people. Harness the anger that caused Mohammed Bouazizi to set himself on fire in Tunisia because of a bribe (Fisher 2011), which led to the toppling of a twenty-three-year reign of its President (Chrisafis & Black 2011). Academics, together with NGOs, should craft an effective media strategy to work in tandem with policy and regulatory goals. In the year 2016, one need only look at the United States presidential primaries to see there is much anger (Gibson & Kahn 2016). We in the United States witness the election cycle with concern as the Republicans are poised to choose a candidate whose inflammatory pronouncements would have been 13 unthinkable in years past. There is also anger in other parts of the world about the economy, unfair trade, unchecked immigration and poor governance. This anger is both real and diffused. We believe this is an opportune moment to redirect this anger away from the immigrant and instead to those in power who have long profited from their greed and illegal actions. 5. Conclusion We are heartened by the development of Collective Action and the enthusiasm with which parts of industry and business have embraced the practice. The example of the shipping industry uniting in both self-interest and to promote a public good is instructive. What is missing is the strategy and mechanism to connect all these specific actions and movements directed to changing the culture of corruption around the world. Although arguably a monumental task, in 2016 it is possible to harness and leverage the power of social media to exponentially elevate the level of exposure of any issue, but especially corruption. Clearly, being simply a ‘flash in the pan’ will not be enough; even forty million views of a video will not amount to change. We have recently witnessed the reality that even the toppling of a president, without more, will not bring the necessary change (Chrisafis & Black 2011). Accordingly, we suggest that the long-term effectiveness enjoyed by those fighting to end drunk driving and smoking offers important lessons for those engaged in the effort to reduce and even eradicate corruption. Our analysis reveals that a multi-pronged strategy of legal reform, coordinated enforcement and Collective Action is a necessary start in that endeavor. We believe what is now required is a collective consensus regarding deploying social media to share the message and to promote general awareness and intolerance of corruption in our everyday governmental, business and personal affairs. Media experts will hopefully be motivated to take their rightful place at the Collective Action table, bringing their much-needed expertise to bear on the seemingly-impossible task of reducing corruption. Our study demonstrates the possibility of the power of social media to successfully address other daunting dilemmas with undeniable success. 14 References ABC News (2012) Kony 2012: ‘Invisible Children’ video attacking Uganda warlord Joseph Kony goes viral [Online Video] 8 March 2012. Available from: https://www.youtube.com/watch?v=w9AntesKLS. [Accessed: 14 March 2016]. 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