Mark Kingwell is a professor of philosophy at the University of Toronto.
We don’t really understand the notion of bribery. This has been made clear in recent weeks, highlighted by media-saturated scandals in Canada, the United States, possibly Israel and probably elsewhere – there’s a lot of bribery going on in the world. The most recent – and perhaps the most egregious – example is the allegation that the former CEO of SNC-Lavalin signed off on the purchase of a yacht – for $38-million! – for Al-Saadi Gadhafi, the son of the late Libyan strongman Moammar Gadhafi. In exchange, it is alleged, the company secured a $450-million contract from the despotic regime. There’s also the $2-million or so that the Montreal-based engineering firm allegedly paid for the junior Mr. Gadhafi’s trip to Canada in 2008, which included tens of thousands of dollars for escorts and porn; just try to expense that on your company credit card.
Still, while certain cases of purchased influence are obvious and clearly illegal – and one would hope the example cited above, if true, fits those criteria – there are wide expanses of foggy territory where actual crime is perceived as mere bad behaviour, and then lack of strict ethics becomes just business as usual.
An inventory of types might be useful here, maybe even morally instructive.
Sharp-edged cases of bribery are predictable and, one would like to think, common-sensical. Sections 119 and 120 of the Canadian Criminal Code, for example, mandate a sentence of up to 14 years in prison for public officials who accept “any money, valuable consideration, office, place or employment” in exchange for special treatment of another party. The list of such officials is again pretty obvious: among others, police officers, judges, MPs and everyone employed in administering the criminal law.
Fourteen years is a long stretch, and it reflects the repugnance we rightly feel about breaches of public trust. There are other statutes that address bribery of foreign officials and payoffs connected with other wrongdoing. It is illegal to offer money or any other kind of exchange in relation to a previous crime, such as financing a witness to silence or giving false testimony concerning a murder.
But, as we know from current cases, it is not at all obvious what counts as “consideration,” especially when it comes to public servants in the legislative branch of governments. Aggressive lobbying is ubiquitous in most political systems, even ones with otherwise strict anti-corruption laws. Often, the lobbyists are inside-baseball former regulators who flip their moral compasses and become agents of the very industries they once sought to constrain. Regulatory capture, whereby sectors overwhelm the force of government oversight, is a regular feature of all money-talks democratic systems. It is not in itself illegal, nor is it obviously bribery; but it creates pathologies in the system.
Speaking of baseball, athletes and referees are often thought to be soft targets when it comes to gambling-related bribes and game fixes, especially if they are underpaid, in debt or otherwise susceptible. It’s easy to make a missed field goal or dropped fly ball look natural. Amateur athletes are showered with recruitment “gifts” and sweet on-campus perks to secure a commitment. Occasionally, this results in a moral-panic scandal, but the practices continue anyway. (Coincidentally, in the recent U.S. college admissions scandal, some coaches were allegedly bribed to help students gain acceptance into elite institutions by claiming the students were athletic recruits.)
U.S. President Donald Trump, meanwhile, is accused of offering hush money to two former mistresses who might have besmirched his reputation in the lead up to the 2016 American election. That fear may generate a logical impossibility, but never mind. Mr. Trump has insisted both that he did not make these payments – it was his lawyer, now-convicted felon Michael Cohen – and also that, if he did endorse the payouts, it was a personal matter between Mr. Trump and the women. Unfortunately true: The legal burden is whether these payoffs involved violations of campaign-financing regulations, and that has proven a difficult case to make.
Many people, especially those who enjoy viewing Canada as sadly provincial, have remarked that the SNC-Lavalin debacle has involved no sex, no money and no violence – although the fact this affair is partly tied to the company’s alleged actions in Libya means that is somewhat inaccurate. But when it comes to the current scandal, critics charge, there was no crime. Still, Jody Wilson-Raybould has emerged as a truth-to-power moral hero, even as Justin Trudeau’s Liberals continue to dig themselves a massive, election-threatening hole. We have seen two high-level resignations, from Principal Secretary Gerald Butts and the Clerk of the Privy Council, Michael Wernick, even as they insisted that they had done nothing wrong.
So what now? Many Canadians have shrugged off the scandal as an Ottawa-centric non-issue. Even the lurid revelations that SNC-Lavalin allegedly spent so much money on prostitutes and other “entertainment” for Al-Saadi Gadhafi, in order to secure future contracts, strike some observers as just a natural quid pro quo. Indeed, the company has a history of such deals. Of course they do! Why wouldn’t they, to potentially turn millions into billions? And, as the Prime Minister ever reminds us, to keep thousands of jobs in Quebec – although the company denies this was a part of their lobbying.
In the realm of business ethics, opinion is divided on such dealings. Most definitions of bribery refer to lack of equity or transparency, or both. So, if you are to secure an advantage not available to everyone else by using money, consideration and so on, that is considered unethical because it’s unfair. Likewise, you can hide the shady dealings with some narrative that plays down or denies the exchange. That might work, even if it’s a bit dubious.
The trouble is that equal access to government officials is not just dubious but fictitious, and transparency is too often a matter of narrative spin. Responses tend to focus on dismissing such objections as naive. How could things be otherwise? Can I help it if I met a senator or MP at a party, because I go to a lot of parties, and we got talking, and some ideas were exchanged? No money changed hands, and of course everyone does this, don’t they?
The everyone-does-it argument is bad moral philosophy to start with, but even more corrupt when, in fact, everyone does not do it, supposing they would if they could. The main moral argument against business bribery is that it exploits existing inequities by creating new ones, widening gaps in wealth and influence under cover of savvy practice. Corruption is a species of virus. It invades cultures, and then becomes endemic, developing perverse incentives for previously honest brokers to indulge in it, for fear of losing out on advantage.
Again, though, moral matters quickly become complicated. In many places, what North American regulators and lawyers would label as culpable bribery is entirely accepted and not viewed as corrupt. There is often a feeling that these dealings are victimless exchanges for mutual benefit. I witnessed no palming of cash on visits to Shanghai or Hong Kong, for example, but it was clear that the development of guan xi, the Chinese term for networks and relationships that oil the wheels of commerce and politics, depended heavily on expensive dinners, gifts of single malt whisky or Cuban cigars and golf-club memberships. A colleague in Qatar persuaded me that baksheesh, where tipping meets bribing, is an honoured tradition throughout the Middle East.
Now we come, for most us, closer to home. The notion of bribery, strictly applied, could easily cover picking up a drinks tab, proffering a pair of hockey tickets or offering an introduction to influential people at the next faculty mixer. But that strict view is rare. Plus, entertainment is a legitimate business expense in most tax jurisdictions – although it usually falls short of $2-million lavished on one creep – er, client. You offer me a round at Glen Abbey one day soon. And I understand that you would appreciate it very much if that internship went to your daughter, or if we favoured your tender on our new project. Say no more. In fact, say nothing.
More mundanely, parents bribe their kids every day to eat vegetables or go to sleep: “You get a cookie as long as you eat your broccoli first.” Employers bribe their workers to shoulder extra tasks: “We won’t forget this extra effort when we do year-end performance reviews.” These are sort-of bribes, with subtle escalations. When does a legitimate incentive scheme or enticement shade over into outright bribe, especially when both parties may actually feel pleasure in a given value-swap?
The recent U.S. college-admissions scandal offered a vivid example of this. Many people have excused the exam-fixing and fake claims of athletic status by noting that these moves are just a short step away from legacy admissions, big donations to elite universities and unequal access to preparation courses or connections to alumni. This is anti-elitist pushback! Others played what we must call the family-first justification card: I will do anything and everything for my kids, even if some legal jerk in Boston later says it’s a crime. So sue me.
Both arguments are bogus. They rely on false equivalencies, resentment and slippery slopes. But the conviction of people who make them can be hard to penetrate. Bribery is not genuine contract or genuine gift. Pretending otherwise mocks those ethical exchanges. Bribery thus becomes an essential moral litmus test. We ought to know bribery when we see it, or at least pause to wonder how it creeps into everyday life. You would probably not steal or murder to gain a competitive advantage, but would you exchange influence for consideration, if apparently agreeable and benign to everyone? Hmm…
I have lately been imagining a set of parables, Aesop for Evil People. The main character is a blustering orange fox. One monologue goes like this:
1. Everybody bribes, so my bribes are okay, even the massive ones.
2. You know what? Especially the massive ones. A mere blandishment is common mendacity. Years of habitual, comprehensive bribing is genius.
3. Yes, I bribed massively last week, so this week’s even more massive bribing is obviously okay.
4. Sure, I’m a jerk, but you knew that already. That makes me honest!
5. Anyway, I did nothing wrong, I never do, but I understand that people with sick personal agendas will attack me anyway.
6. They’re as bad as me, really, they just won’t admit it. That makes them losers.
7. You might want to get with the program, losers.
Bribery invades ordinary life in just the same way that it thrives in corrupt political regimes, but with more insidious effects. Every time we shrug and say, that’s the way of the world; or, everyone does it; or, why shouldn’t I, otherwise I’m a chump, we impoverish ourselves and our social compact.
Let’s write some new dialogue.