Volume 7 Number 2

Spring 1998

Special
     How the rule of law can facilitate the spread of sleaze

Corruption, Clientelism, and the Future of the Constitutional State in Eastern Europe
Andras Sajo

     What are the principal preconditions of an effective anticorruption policy? Corruption in Eastern Europe is decidedly mis-
understood and is, to some extent, enveloped in myths. An elementary failure of understanding helps explain the preponderance of misdirected policies in the region. An inquiry into the potential for, and problems of, the efficient enforcement of the laws against corruption in Eastern Europe, as well as the dangers that official policies toward constitutionalism pose, is therefore in order. In particular, four key issues merit discussion.
     (1) Designing a feasible anticorruption policy first requires an understanding of the particular nature of corruption in postcommunist societies. Corruption in Eastern Europe is structural in the sense that it is part and parcel of the region’s emerging clientelistic social structures. An analysis of corruption cannot be divorced from an understanding of clientelism.
     (2) Clientelistic structures in Eastern Europe are related to the previous communist nomenklatura. But the way actual socioeconomic developments are
currently unfolding creates levels and forms of state-centered clientelism distinct from those of earlier regimes. The nature of Eastern Europe’s clientelism has a direct impact on the kinds of anticorruption policies adopted in the region and their potential for success.
     (3) Anticorruption policies are, in part, a response to characterizations of the region by those outside the region. Postcommunist states are often said to be saturated with corruption, steeped in clientelism. This view is a frequently recycled theme of the Western press and is dutifully amplified by the East European press, which mostly uses it in partisan struggles. Exaggerating the problem and exploiting it for political purposes has triggered inappropriate legal reactions and moral
crusades. The ritual affirmation that corruption characterizes the postcommunist state has dwindled into a stereotype, and it fosters a spiraling delegitimation of the new democracies. The public’s misperceptions about corruption and government sleaze are partly the consequence of this simplification, which has direct consequences on anticorruption policies. Such consequences range from hysterical short-term police actions to social hopelessness and resignation. That the public’s understanding of corruption is warped by Western categories does not mean that no corruption exists in Eastern Europe, only that how it is perceived is not always the result of genuine endogenous factors. Were it not for the drumbeat of external criticism, corruption would not be construed as an acute social problem, at least not in East Central Europe.
     (4) The success of constitutional democracy in Eastern Europe depends in large measure on society’s values, such as meritocracy. Political morality requires transparency to be effective. But “morality” and transparency depict, perhaps somewhat misleadingly, a corruption and clientelism that undermine the faith of an increasing number of citizens in the promises of a democratic state based on the rule of law. The rule of law and the fight against corruption and favoritism have an inherently problematic relationship. The public’s belief in, and allegiance to, the rule of law is fragile, for the whole concept was parachuted into Eastern Europe. It is alien to most of the local cultures, acquainted as they are with only the primacy of surviving by mutual social favors. Those seeking to combat corruption and favoritism with the rule of law, moreover, have been profoundly disappointed. The rule of law inhibits swift and decisive action and is seen in the region as a formula for passivity or as an impediment to a successful crackdown on corruption. In truth, the rule of law is protective of the status quo, and, as a result, it does contribute, in many instances, to the institutionalization and normalization of clientelism and corruption. While transparency is widely recognized as a preventive remedy to corruption, it is also seen, sometimes, as a burdensome transaction cost that impedes the region’s economic development. In addition, hasty measures initiated by moral crusaders and by the political rivals of the current winners in the game of corruption erode the fundamental preconditions of the rule of law and perpetuate, as well as enhance, society’s acquiescence in police-state tactics.

Corruption and clientelism distinguished
     Moral crusaders and lawyers with do-gooder inclinations tend to approach corruption in a vacuum, oblivious of its social context. In a number of countries, however, corruption is an endemic bacillus; it belongs to a family of social interactions—not all of them healthy, but not all dangerous or life-threatening, either—that, taken together, can be loosely classified as clientelism. It is in this particular context that East European corruption needs to be considered.
Corruption is a well-established notion, at least in one sense: we all know that the experts will never agree on any single definition. In some respects, the problem of contemporary corruption is that its definition almost always reflects the moral opprobrium of outsiders. Just as corruption in southern Italy has traditionally been a matter of northern perception, so corruption in Eastern Europe is, in part, a function of Western perceptions. The globalization of communications and information has made such external labeling virtually inevitable.
     The most often-cited definition of corruption, that of Joseph LaPalombara, is misleading when applied to Eastern Europe. He classifies as political corruption any act performed by officials when departing from their legal obligations in exchange for personal advantages. (See “Structural and Institutional Aspects of Corruption,” Social Research, 61 [1994].) In Eastern Europe, however, “corrupt” officials often do exactly what they would have done under the law anyway. (The degree of discretion at their disposal is a different matter.) Second, and this is true not only in Eastern Europe, officials may depart from rules out of a sense of loyalty and without any personal gain or quid pro quo. (This is often the pattern in cases related to party financing.) Finally, governmental sleaze is often completely legal but still unethical, for instance, taking a vacation to Madagascar and claiming the trip was intended to study how that country’s public administration operates. Such forms of behavior must obviously be included in the catalogues of government corruption.
     But what is clientelism? In Roman law, clients were liberated slaves or immigrants who sought the protection of a patrician paterfamilias. They were dependent on the head of the family, as were all the other members of the household and, in exchange for protection, they were expected to render services. In contemporary political science, clientelism has assumed a generalized meaning. It is now seen as a network of social relations where personal loyalty to the patron prevails against the modern alternatives of market relations, democratic decision making, and professionalism in public bureaucracies. Client-patron relations are frequently invoked in explaining social relations in Latin America. And the concept is increasingly used to explain developments in other societies experiencing distorted processes of modernization.
     Clientelism and corruption are different notions. Clientelism is a form of social organization, while corruption is an individual social behavior (where you are your own client, trying to play patron to yourself) that may or may not grow into a mass phenomenon. One can imagine clientelism without corruption, although the two often go hand in hand. In the postcommunist context, the two phenomena seem fused at the hip. To say that postcommunist clientelism presupposes or generates corruption is to imply that corruption has become a foundation stone of the region’s emerging clientelist social structure. I will call this phenomenon “clientelist corruption.” Clientelist corruption is a form of structural corruption, which should be distinguished from discrete individual acts of corruption.
     In Eastern Europe, clientelism—in interaction with various forms and levels of corruption—is becoming a stable form of social organization. Clientelistic corruption pervades all areas of public life, although favoritism might be more important in public life than pure corruption. The feeling that governments are sleazy is inevitable. The omnipresence of governmental sleaze reinforces the impression that both public and private action (like favoring the admission of certain students over others at a school) will be reasonably understandable only within a clientelist setting. Under postcommunist conditions, corruption, and other services rendered within the patronage system, become social actions in the Weberian sense. In the eyes of observant citizens, a public action will always fit into a clientelistic scheme; this is the context that gives social meaning to otherwise haphazard events (like the outcome of a public tender or a government position paper advocating exclusive executive responsibility for privatization). Attributing meaning to an action by defining it as clientelist corruption is rational, all the more so since the outcome of the social action cannot be explained in terms of market rationality or bureaucratic professionalism.
     The preceding analysis leads to the conclusion that, to the extent that clientelism is present in postcommunism (discussed below), corruption will fulfill a social function. The normative question that one has to ask, in seeking any policy alternative, is this: What are the socioeconomic consequences of corruption? In the 1960s it was fashionable to follow Samuel Huntington and Nathaniel Leff’s view that, in the early stages of a country’s modernization, corruption is an efficient social (economic) action. Furthermore, in developing democracies, corruption is democratic. It offers opportunities to those who, because of protectionism, would otherwise be excluded from participation in the process. Their thesis is seductive, in the current East European context. Whenever a civil servant is bribed, the costs are paid by the party who is truly the most interested in the civil servant’s decision, rather than by the general tax-paying public. The party offering the highest bribe in the privatization of a firm, so the argument runs, is the most efficient investor. But this thesis presupposes that the bribing bid is undistorted. Given that political actors are involved in the decision-making processes, this assumption may not be valid unless the free market in bribing extends to the political decision makers, too. Of course, if the barriers to entry (like special protectionist rights and permits) are few, then there are fewer opportunities for corruption.
     Gains in efficiency through corruption can also benefit people not doing business with government. When illegal and legal immigrants bribe authorities for residence permits, their payoffs ease their entry into an overprotected labor and service market. There are, as well, striking similarities between postcolonial and postcommunist societies. (Nation building in the shadow and aftermath of an imperialist legacy is one.) But the applicability of the Huntington–Leff approach to postcommunism stumbles, in the East European context, due to literacy rates, relatively conslidated parties, and integration into the world economy. Moreover, there is growing criticism of the claim that corruption can be efficient. Corruption’s economic advantages are only in the short-run, while its destabilizing effects on the political regime are undeniable. It may well be in the interest of transitional societies (not only in terms of efficiency) that a natural-resource-development license be given to the group that gives the largest bribe or has the best political patrons if, and only if, the company pays its taxes and wages. The problem is that we face here ubiquitous as well as endemic corruption: once the protégé gets his license, he will arrange through the same patronage system to be exempted from tax payments. This is close to what we see in classical feudal patronage: the feudal lord gave protection to his client against both legal and illegal exactions by authorities. Moreover, protectionist national (domestic) clientelism may discourage foreign investment, which is essential to modernization, even as domestic client groups accuse the international investors of foreign domination and exploitation.
     Whatever the theoretical value of corruption in modernization, in Eastern Europe or elsewhere, even if it smooths the operations of an underpaid bureaucracy, mostly it perpetuates the influence of political, party-centered, client-patron structures over the distribution of resources. In Hungary, for example, broadcasting frequencies are allocated by a board composed of party commissars. The board members are expected to allocate frequencies impartially, and, indeed, they may not be interested in personal gain. What matters for them is to grant licenses to those who seem to offer loyalty to the political party that nominated them and may nominate them again in the future.

Increased opportunities for clientelistic corruption under postcommunism
     While the communist past proved decisive in the early formation of clientelistic corruption in Eastern Europe, it will not necessarily determine its future. What is perceived as corruption is, in part, a function of fundamental economic adjustment processes. Even if there were no tradition of nepotism and corruption, the ubiquitous opportunities for corruption under communism explain the perceived high degree of corruption now. By opportunities, I mean not only the level of governmental redistribution of assets and services but also the legal and administrative circumstances of this redistribution. Laws are written in ways that enable insider dealing, and, therefore, in the eyes of outsiders, immediately create an aura of impropriety, unfairness, and corruption. What cannot be explained by the transition opportunities is the structure used for these unfair transactions, hence the importance of the clientelist networks.
     One could rightly add, of course, that the opportunities are not simply given by nature: they are created or shaped by those who set the rules. After all, the model privatization of British Telecom (copied in Italy, France, and even Germany) occurred in a setting that excluded clientelism and bribery: stocks were floated on the open stock exchange, and all citizens had the opportunity to buy. In Eastern Europe, however, the vast majority of citizens simply lack the financial resources to get in on the privatization process. The voucher-share schemes in Russia, which formally entitled all citizens (and the employees of firms, in particular) to ownership rights, became the new patrons’ source of power. But we still lack a structural explanation.
     The way that loyalty within the clientelistic networks operates is explained partly by the nomenklatura legacy and partly by the institutional structures in which that legacy functions. For example, both civil servants and private service providers might be interested in the continued maintenance of state-sponsored social services, where personal (and party) loyalties prevail and determine exchanges rather than open markets determining outcomes. Both are interested in operating state monopolies. It is the surviving governmental institutions and the new ones, succeeding them, that have become the rallying point for the former nomenklatura and their clients. Such governmental institutions include social security (insurance) plans, public radio and television, national security, public education, and health care. The nomenklatura’s headstart advantage remains unsurpassed. This rule applies even in the Czech Republic, where the disqualification of former communists was the most radical. Those who possessed relational network capital became the new patrons of postcommunism, and, although they now have other forms of influence at their disposal (like money), they are interested in preserving their powers as patrons, with control over (and access to) monopolistic government services. All this presupposes that the government remains the key service provider and the most important economic decision maker.
     The level, nature, and future of corruption and clientelism depends very much on the ways in which national property has been privatized. The privatization processes were not a happenstance of history and geographic location but a function of the structure of the economy and of the interrelations of economic actors. In this regard, a comparison of Hungary and Russia is most useful. Since 1989, both countries, albeit to different extents, have tried to surpass and liquidate their predecessor regimes through the rule of law and by constitutionalizing freedom. In both countries, especially after the collapse of the traditional Communist Party elite, it was decisive that the only surviving, all-encompassing organized force that remained active was the state, with its huge, underpaid, and incompetent bureaucracy. (Following communism’s collapse, as part of the Hungarian espousal of the rule of law, these bureaucrats were rechristened “civil servants.”) In Hungary in 1990, and to a lesser extent in 1994, the parties that won government power offered public-service positions to their clients and benefits to these clients in the form of access to special government services. More importantly, the emerging governments acted as clients, in their turn, of the patrons who helped these governing parties win elections.
     Many analysts describe Russia as a country where surviving elements of the former nomenklatura have maintained an intimate relationship with the government (executive) bureaucracy. This network developed into systems of clientelistic structures in the games of privatization, governmental subsidy, and the formation of public bodies. There is increasing competition among these clientelistic structures. In comparative terms, it is remarkable how much more the Russian patrons were willing to keep the national economy under domestic control. The price Russia and ordinary Russians paid for this behavior was the stunning decline in the country’s GDP. Russia created a “closed commercial state” in the sense of Fichte’s Der geschlossene Handelstaat. The patron-bosses in Russia managed to protect the Soviet legacy of the closed economy in an increasingly open world market, exploiting all the advantages of national monopolies. For Hungary, with its complete dependence on the world economy, the Russian strategy of self-closure was out of question. In Hungary, everyone who wanted to become rich had to make use of their networks in a rapidly opening economy. But even in Hungary they had to make use of, first of all, the good offices as well as services of the state and its bureaucrats. Hence the opportunity for sleaze.
     At the early stages of privatization, as there were no alternative social networks, the nomenklatura associated with government bureaucracies (and the newly elected political elite) seemed to be successful in the new and different socioeconomic environment. Very soon after, however, the patrons had to choose different strategies. Privatization required investment, particularly foreign investment, and the states that were capital and resource poor, like Hungary, could not afford to pass by these investments. At this point, fundamental differences emerge. Russia had oil, so it had no need to buy it on the world market. Besides, the masses were comfortingly inert. When the slightest danger of competition emerged in Russia, as it did in the banking sector, foreign banks were practically expelled, notwithstanding serious international repercussions. In Hungary, on the contrary, concessions were given increasingly to foreign (and domestic) banks, as the banks were gradually taken over by foreign investors. In Russia, the public administration seems to operate in conformity with the wishes of its patrons; the patronage system emerged out of the ruins of the nomenklatura.
     But Hungary’s needs left it defenseless in the face of the West. In 1989, there was no intellectual or moral desire to resist the West. Like the other Central European countries, Hungary wanted to Westernize itself institutionally and was willing to copy the West’s rule-of-law system as well as its democracy, in one form or another. In the power vacuum of 1989–90, there were no prevailing forces to oppose this Westernization. Perhaps, because Western institutions were copied in an institutional void, the foundations for a relatively stable party system took root. The electoral and party systems operated in line with their Western models, which resulted in campaign-financing excesses. A need emerged to cover election expenses and to compensate those who were loyal to the party but often lacked sufficient funds. To be sure, this generated ad hoc clientelistic structures. In countries like Hungary, where there are lots of state assets to be distributed, it was and is easier to satisfy the clients than it is in the West. Access to government jobs—the traditional form of patronage—was secondary to such opportunities.
     Still, the clientelism surrounding the political parties, when combined with the efforts to maintain the distributive powers of the state, resulted in less clientelism in Hungary than in Russia. In Hungary, actors outside of the nomenklatura network got involved early on in the scramble for resources. Locals were successful in creating their own interest-enforcing corporative structures. Foreign investors and their entourages emerged in partnership or competition with former nomenklatura networks. The bar, the chamber of notaries, and the churches used Parliament to push through their parochial interests. (To what extent
corporatism engenders its own distinct form of public sleaze is a different matter.) But even these corporatist structures presuppose the central distributive role of government. The chamber of pharmacists and the (often foreign-controlled) drug industry are both interested in government-subsidized medicine. It is highly relevant who controls politics; it follows that investment in parliamentary elections makes perfect sense.

The making of bad reputations
     The analysis thus far suggests that corruption is structural in the sense that it is a natural consequence of the use of power in a clientelistic regime. The shortcomings of the economic and governmental systems in Eastern Europe cannot simply be labeled as “corrupt.” These systems have their own clientelistic logic, serving purposes beyond those corruption itself would advance. The clientelistic network provides a viable form of social organization where other networks and forms of social organization are nonexistent or at least underdeveloped. Relations within the power elite are particularly open to patronage. As other forms of social organization did not exist when communism collapsed, it was both obvious and inevitable that clientelist networks would survive and become the core for future relations, notwithstanding the inefficiencies of the resulting give-and-take that corrupts the morale of democracy and the logic of the market.
     The departure from the logic of the free market that governmental patronage exemplifies is so obvious that it is nearly impossible to resist the stereotypical characterization of Eastern Europe as corrupt. It must be added that this accusation seems to be only a special application of a global trend related to the internationalization of the economy. Similar
comments were made of Italy by the other members of the European Union and of Japan by Americans, when investors sought entry into their domestic markets in the holy name of free trade and ran headlong into protectionist barriers. The faster globalization advances, the more likely are such criticisms and the exposure of some corruption. The countries under attack eventually come to share the free-market rhetoric of their attackers, and gradually they impose transparency rules on themselves.
     The successful imposition of the “corruption” stereotype on East Central Europe is somewhat curious, as Western governments (with the exception of the Nordic states) are resigning or at least losing elections exactly because of electoral corruption and illegal party financing. In the not-so-distant past, countries like Japan and South Korea were considered by many admirable examples for Eastern Europe; yet both had thrived for decades on systematic political corruption. The family-corporate conglomerates that have historically supported the state in Asia can be compared to the style of clientelism seen today in the Russia. To call the transition economies “corrupt” remains, however, a therapeutic means of preserving Western self-esteem, of maintaining its sense of moral superiority. The cheapest form of such therapy consists in disdain for “the countries in the East.”
     The noninitiated perceive only ad hoc immorality, the way the illegal exchange of government favors for money seems to pervade all relations. But the structural regularity—the bureaucratization—of these exchanges, the impact and the place of the transactions in the everyday functioning of the transition economy and its political spheres, remains hidden.
     The difference between Eastern and Western Europe is not that between a robust and a corrupt public morality. It is neither the “Balkan culture of corruption” nor the “destruction of morals by atheist communists” that makes the difference. The difference lies in the pattern of opportunities. In systems where the economy is functioning in a transition to a free and open market there are, simply speaking, incomparably more opportunities for corruption. The postcommunist states inherited a central allocative role, and privatization is carried on in the state sector as part of the political process. The routine application of anticorruption policies remains, at best, only in its formative stage. At present, the clientelist structures have every interest in maintaining the lack of transparency. The confusion is increased by the introduction of some stylistic features of the rule of law, which make the fight against corruption more difficult. Even if neither nepotistic traditions nor a culture of corruption had developed under communism, countless opportunities would still exist, now, and these current opportunities account in large measure for the corruption we observe.
     Moral disdain may be justified even if it originates in countries where the milk of nonexistent cows is routinely subsidized. It is certainly telling that, although East European governments have had to resign for reasons of dubious party financing, this is not a matter of major public concern. Nor are there serious or persistent criminal investigations in this area. It is even more telling that successful prosecutions of governmental corruption and illegal party financing are rare and that corruption and governmental sleaze are not crucial issues in electoral campaigns. Public opinion seems to acquiesce in the morass. Of course, this is true mostly in cases where entrenched interests are not offended and there is no blatant abuse of power. But this is exactly the case in the transitions of Eastern Europe. In the most notorious opportunity for corruption, namely, privatization, none of the bidders has a preexisting right. Structural uncertainty impedes the development of moral condemnation. Generally, moreover, the authorities are not clearly abusing their powers. When the mayor of a city issues an order (in the best French tradition) providing housing for himself and his employees at the state’s expense, he is authorized to do so by the municipal council, and once again, the validity of that delegation of competence is not clearly objectionable, although the delegation imposes no clear rules on the mayor. Empirically, it is quite revealing where people place corruption on a scale of social problems, and what importance is attributed to anticorruption and antifavoritism in electoral choices. A survey that I conducted shows that corruption, and to a lesser extent favoritism, is not perceived as a major problem in Hungary and Russia but is perceived as such much more so in Bulgaria and Poland—a public feeling that seems unrelated to the “unknown” level of real corrupt practices. The normalization of corruption in the public’s mind has occurred in a number of Western countries, too. In France, 70 percent of the respondents of a survey taken by L’Express internationale in 1994 said that a certain measure of corruption is inevitable in a modern society.
     The way corruption and government sleaze are dealt with in Eastern Europe certainly differs from what people expect (though not necessarily from observable behavior) in Western Europe today. The anticorruption and antipatronage (for example, conflict-of-interest) rules and measures that were adopted in Eastern Europe were half-hearted at best. One can dream of serious conflict-of-interest rules only where there is little or no preexisting clientelist dependence, where private property is well protected, and where guaranteed salaries safeguard personal autonomy. In a system where the public (governmental) and the private sectors are intertwined, as they are in postcommunist clientelism, concepts of private morality will be held to be inapplicable to the public sphere. Indeed, there will be no standards of criticism applicable to the public sphere, except those of the enforceable law, which is itself, however, the emanation of the clientelistic ethos. In other words, as there will be scant enforceable law, there will be little public morality.
     There is not enough hard evidence concerning the level of corruption in the East compared with the West. The level of actual corruption is simply nowhere known. As mentioned above, the public’s beliefs are conditioned by facts and relations other than actual verified cases of corruption. If so, from where does the image of corrupt postcommunist countries come? After all, as a form of structural corruption, most social actors tend to normalize it. Why do the postcommunist societies fall prey so easily to the label of corruption imposed on them by the West? Western “experts” rely on anecdotes and so-called “surveys.” These “surveys” are often based on hotel-lobby chats with disgruntled businessmen, which are frequently conducted by journalists and “experts” who generally do not speak the local language. (In this case, the chat is called an “interview.”) The reports remind one of the descriptions of South American Indians written by Jesuit missionaries. As there was no communication and understanding, the Indians were seen and depicted as savages. The objections of Western observers concern what they regard as “barbarous” situations, where the national bureaucracy is distributing governmental services and assets. All efforts by the locals to deny the allegations turn out to be futile and are from the very beginning doomed to fail. The national image makers follow the policy of stupid politicians: they accuse the media, or they repeat that the only problem is that the national authorities did not communicate their message well; that they failed, for example, to explain that the privatization process is eminently impartial and transparent.
     Admittedly, such useless attacks on the media are not without merit. The media is indeed playing an important role in the delegitimation of a regime based on fraud, abuse of power, and clientelism. In most postcommunist countries (Russia is an exception) the media is, at least for the time being, surprisingly independent of the authorities as well as of the power elites who are connected to the government. One of the reasons for this independence is that any modern media enterprise is capital intensive. Thus, after 1989, the media gladly sacrificed controlling interests in exchange for foreign investment. Even more importantly, the media has to make a living on the market. News of government sleaze sells.
     Given the growing normalization of corruption, the value of scoops about corruption scandals is somewhat surprising. Perhaps it can be explained by the new dominance of Western political (democratic) values in the legitimation of political power. Partly to distance themselves from their communist pasts, postcommunist leaders seek to legitimate themselves in conformity with Western political morals. Politicians claim to be the servants of the public’s interests. All observed departures from this professed self-legitimation resonate as newsworthy hypocrisy and lies. Politicians promise ascetically to serve those whom they represent. (Nationalist politicians are in a somewhat superior situation, for they do not base their mandate on the representation of a specific constituency but rather on the defense of the nation’s interests.) The promise of ascetic service generates expectations that are impossible to meet, given the nature of the postcommunist system and the relative poverty of new members of parliaments and other public bodies. In less Westernized “democracies,” the investigatory press can simply be censored. In a rule-of-law state, one has to rely on national-security claims or on the claim that there is a lack of professionally satisfactory evidence to silence a journalist crying “bribe!”
     Constitutional legitimation makes governmental sleaze newsworthy, because it generates certain expectations of service, honesty, and transparency. This effect is amplified by the widely held belief in equality. The ideal of serving the general interest has become the ruling idea of modern public administration. This ideal is further enhanced by expectations of the rule of law, including the dream of unbiased, impartial civil servants following only the guidance of law. The decision making of civil servants and politicians is expected to be transparent. (This is clearly in opposition to the Prussian tradition of secrecy, inherited in East Central Europe and further enriched by the communist tradition of paranoid nondisclosure.) But the decisive factor is the transformation of public taste: the general public would like to see soap operas everywhere, including in the otherwise unbearably boring activity of their politicians. (The concept of a “public figure” nicely combines royalty with the underage lovers of rock stars.) The desire for soap opera increases one’s sensitivity to the drama of corruption and abuse of power. Political corruption was always paramount, but it was normalized in the past in Western Europe. Offices were sold by French monarchs. In nineteenth-century England, roughly half of the elections were contested on grounds of electoral fraud (primarily corruption of the electorate). All of this had little visibility, and people were not particularly alive to it. In the premodern setting, constitutional sensitivities were underdeveloped. Once the soap-opera sensibility prevails, one can expect serious legitimacy tensions to emerge in Eastern Europe, especially when politicians promise equality and transparency in an effort to secure their own political propriety and viability.
     The less such constitutional promises pervade the political system, including popular beliefs, the fewer the groups interested in the rule of law; and the less independent the media, the less likelihood there will be of legitimacy tensions. Without such tensions, the state will not have to grapple with governmental sleaze, and routine anticorruption campaigns will not amount to serious confrontations.

How constitutional democracy contributes to political corruption
     In Eastern Europe, at least to some extent, political corruption is a consequence of modern participatory mass politics under conditions of soap-opera consumerism. Political parties are increasingly recognized by constitutional courts as indispensable building blocks of the democratic constitutional state. A constitutional institution is subject to constitutional scrutiny; hence it is possible and necessary to scrutinize the internal doings of parties and to foist constitutional limits on their behavior and financing. Elections and party financing are increasingly subject to restrictive rules, and the demand for more campaign spending is growing. Hence a turn to illegality becomes almost inevitable.
     Winning elections in a democracy is expensive. At the same time, in a democracy, majority rule and legislative supremacy foster a somewhat arbitrary definition of political morality. So long as the distribution of electoral booty is provided for in the democratic legislative process, the moral high ground from which to refuse these practices is missing. In Eastern Europe, the state has at its disposal many assets and other resources to “exchange.” Therefore, illegal campaign contributions there have greater returns than in the US or Western Europe. The way these assets are used is given legitimacy in standard democratic terms. After all, the revolutions of 1989–90 occurred in the name of democracy. The revolutionary rhetoric of 1989 is like that of President Andrew Jackson. In the name of democracy, Jackson promised to terminate the partisan rule of the previous administrative establishment, which operated a “tyranny of the elite” over the people. In 1829, he institutionalized a spoils system in the name of revolutionary democracy. “Let the democratic process prevail,” which in practice meant, it is up to the people to determine who will get the people’s money, including their bribes.
     This asset-distributing conception of democracy sounds attractive in an era of democratic legitimation, but it contradicts fundamental ideas of professional, nonpartisan public administration. Political leaders today, and not only in Eastern Europe, are saying, “if the people don’t like the way we reward our loyal supporters, which is in the interests of the nation, they will replace us in conformity with the rules of democracy.” Free elections thus justify the system of favoritism and distributive robbery. This results in a generally shared political ethic of normalized clientelistic corruption and self-dealing, formulated perfectly by the former president of the Hungarian Ice Hockey Association: “if we, in the interest of hockey, take thirty percent [of the taxable revenue generated by the games], this is okay, but to take eighty percent, this is pure and simple theft.”
     Free elections will turn into authorizations for moderate pilfering of the public purse. The principle of temperate kleptocracy assumes a sustainable yield; that is, skimming is permissible so long as it allows future political elites to have their own feast. (Because not all assets are taken away, there is enough for further reproduction of national assets.) The citizens may acquiesce in such arrangements, but they will hardly develop loyalty to a political regime that operates under such rules. This will make the political system vulnerable and will rapidly increase its maintenance costs, as officeholders will increasingly have to replace loyalty and voluntary obedience to the law with reliance on bribes, force, and perhaps even violence.
Paradoxically, even the rule of law, the self-imposed strait-jacket of postcommunist countries, has hastened the normalization of governmental sleaze. It is the legitimacy of law that makes it possible to turn morally dubious dealings and practices into legally tolerated, and, therefore, politically feasible ones. It is the legitimacy of democratically created law that provides a salvus conductus to behavior that would otherwise be reproachable. These legitimating possibilities of
legislation have been exploited fully under postcommunism. In this way, dubious legal standards may supersede and even displace the evaluations private morality might otherwise apply to the public sphere.
     The power of postcommunist legislation reflects the public’s lack of experience in market affairs. There was no experience that could serve as a basis for judgment in these areas, as the whole phenomenon of market exchange was nonexistent under communism. For example, the “property” of the Communist Party existed outside of the law, and this made it illegal in the eyes of the population, at least after the collapse of the communist power structures. But when the new democratic parties seized the old communist parties’ assets through legislation, this was presented as being perfectly legitimate. Similarly, there is no place left for criticism, once legislation, supported by all parties, approves in a procedurally correct way the financing of political parties from the state budget. Even where such financing is without transparency and without preconditions (as to the use of the subvention), it is sheltered by the legislative process and is immunized against any public criticism. The public is without norms in this regard anyway, and without mechanisms of self-defense. Once party financing by the state has been formally legalized, people become uninterested in the lawful looting of the budget. The factory of law is capable of lending respectability to its own solutions. At least it enjoys public indifference to its privileges. Thus does postcommunist legislation put to sleep the moral sense.

Successes and failures of anticorruption measures under postcommunism
     As argued above, free trade and integration into the global economy condemn postcommunist governments (both the executive and Parliament) to work permanently on anticorruption measures. This is a Herculean task assigned to Sisyphus. Every time antifavoritism measures get tougher, the “system” (that is, the beneficiaries of the system) is mobilized. The more promising the measure, the less likely it will be implemented.
     There might even be a sincere wish on the part of the government to create the impression that there is no sleaze. If one looks at legislation and the attempts to enforce the law in the East Central European states, it is obvious that serious efforts are made to create the deontology needed to attract international investment and to develop the rule of law in line with shared national programs of integration into the West. These efforts remain, however, within the orbit of creating appearances that are “adequate” for some kind of Western acceptance. Anticorruption measures will serve propaganda purposes, while remaining the means of interelite fighting, unless efficient and influential social forces emerge that have a real and lasting interest in government transparency and in terminating sleaze, which is exposed by such transparency. The openness of a country to the world economy is not sufficient. At this point in time, there is no credible scenario that would curtail the clientelist systems. Booty distribution through parties or neocorporative formations will therefore continue to flourish. Given the communist legacy, postcommunism tends to be egalitarian, which means that envy is the supreme public virtue. The electorate will never agree to a highly paid civil service, which, in any event, is unaffordable given the sheer size of the state bureaucracy. For its part, this immense public bureaucracy, through its institutional influence, resists all efforts at downsizing. The semiprivatization of public services, which allows for the transformation of civil servant status into private employment, thus permitting radical increases in the salaries of managers and middle-level employees, continues the tradition of dependency on the state.
     But let us assume that forces will emerge that are interested in relief from paying ransom. After all, as a result of clientelistic redistribution, a middle class may appear that has control of material means sufficient for independent action. These people might be fed up with feeding their (former) patrons, and they might be interested at least in alleviating the present symptoms to the extent of forcing a moral code on public actors and civil servants. In some cases, it is easy to grasp the current obstacles to fighting corruption and even to predict which procedures would make corruption more difficult. Some of these are worth experimenting with. The full cure, however, as the current trends show, makes the friends of the rule of law, liberty, and constitutionalism tremble. The means to be applied against organized corruption and favoritism may undermine and even destroy the fragile structures of the newly created rule of law.

How anticorruption measures may undermine the rule of law
     In eighteenth-century America, “corruption” was a mobilizing, revolutionary accusation. Corruption
signaled a distortion of the relationship among the branches of power. It indicated that one of the branches had exceeded its sphere of authority. This is exactly the kind of corruption that may result from the coming war on corruption. The boundaries of the separation of powers will be transgressed. If investigative magistrates in Italy, France, England, and the US review matters pertaining to foreign policy (and that means, pertaining to the executive) or if they deal with an expertise and competence traditionally exceeding that of judges, they almost inevitably violate the principle of the separation of powers. When parliamentary investigative committees order searches and conduct hearings with subpoena powers, they have the powers of a court, but without the impartiality of a judge and without the procedural safeguards traditionally granted to the accused. A transparent government requires all sorts of disclosures that are detrimental to privacy. The revocation or
suspension of the immunities of ministers and parliamentarians, brought about by the requirements of transparency, will help to disqualify the politicians under investigation, regardless of the outcome of the procedure. Further, as histories of the Jacobins prove, the search for transparency can become a brutal tool for eliminating political adversaries. The suspension of parliamentary immunity is generally the first step in the process of the physical liquidation of political adversaries and political opposition. If corrupt parliamentarians can be recalled in the name of an efficient and militant democracy, then the fundamental institution of representative democracy will be imperiled. But what to do when representative democracy not only allows for the reelection of corrupt representatives but turns this into a norm? After all, a corrupt representative is in the best position to provide his electorate with private rents and, in particular, with governmental subsidies. He is the one who has pork to distribute. In Japan, corruption serves party interests and only through serving, as it were, the winning party can the constituency benefit from governmental redistribution. In Russia, criminals buy immunity by bribing constituencies to elect them.
     There is growing evidence that the new and increasing sensitivity to political favoritism and overspending has produced diminishing returns in the public administration. The fear of suspicion among civil servants and increased external supervision has resulted in additional waste (inefficient use of resources), for example, in public procurement, and in the loss of innovation and creativity in public administration. In the poorer countries of Eastern Europe, where public service is underdeveloped, a major emphasis on rooting out corruption might simply be an inefficient use of scarce resources.
Constitutionalism is an institutional reaction to a Murphy’s Law of political history: where there can be an abuse of power, there will be an abuse of power. Where the cabinet is endowed with its own anti-corruption police, that police will investigate those whom the majority in the cabinet dislike. The rule of law will be stabbed in the back by a partisan and arbitrary knife, although the use of that knife was originally authorized to protect the rule of law. At the moment, however, corruption and governmental indecency go unpunished everywhere in Eastern Europe and precisely in the name of the rule of law.

Andras Sajo is Professor of Law at the Central European University, Budapest.

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