By Zachary Meskell
First published on the Global Anticorruption Blog
Most readers of this blog are likely to support rigorous anti-corruption laws. But a modicum of caution is necessary: If poorly designed, even anti-corruption laws adopted with the best of intentions can be weaponised by bad-faith actors. This is not only a modern problem. Indeed, a troubling illustration of how overly ambitious anti-corruption laws can spectacularly betray their core purposes can be found some two thousand years ago, in the dying days of the Roman Republic.
The Roman Republic had a comprehensive and complex legal code, with multiple statutes (lex) prohibiting the general crime of ambitus. It is frustratingly unclear what precisely constituted ambitus, but at its core, ambitus (which shares the same linguistic root as modern-day “ambition”) covered electoral bribery and other forms of electoral fraud and corruption. That said, the line between legal electioneering and illegal ambitus was often blurry, and ambitus was sometimes used as a general pejorative accusation for when a candidate’s ambition “went too far.” (In that sense, Roman debates over the definition of ambitus may parallel modern debates over the definition of “corruption.”)
A handful of ambitus laws were passed during the Middle Republic. For example, an ambitus law from 358 BC prohibited political candidates from canvassing on market days, and a 314 BC law created a commission to investigate election rigging. Yet such laws were relatively rare, and ambitus does not seem to have been a prominent concern during this period. During the Late Republic, however, the problem of rampant electoral bribery prompted the Senate to enact a flurry of new ambitus legislation. Many of these laws were direct responses to specific incidents of ambitus, and exhibited a pattern of increasingly harsh punishments and prosecution-friendly procedural changes. Despite addressing a very real problem, these reforms to the ambitus laws of the Late Republic ended up being not only ineffective, but actively exacerbated the decline of the Republic.
The expansion and intensification of anti-ambitus legislation during the Late Republic arguably begins with the lex Cornelia Baebia (181 BC). While the exact prohibitions of this landmark ambitus law are unknown, the law barred those convicted of ambitus from holding political office for 10 years. This penalty was extended to a disqualification for life in the lex Acilia Calpurnia (67 BC), the passage of which was prompted by “notorious bribery” undertaken in 70 BC to prevent Cicero from being elected as aedile (an administrative position generally seen as a stepping stone to higher office). Less than five years later, the Senate—with Cicero now presiding as one of the two executive consuls—passed the lex Tullia, which prohibited practices beyond direct bribery that were intended to improperly influence electors, including public banquets, gladiatorial shows, and hired crowds (which had been frequently used to accompany the candidate or to intimidate voters at the polls).
Yet despite the expansion of ambitus laws—both in scope and severity—bribery continued to play a large part in Roman elections. Having failed to adequately discourage the candidates themselves, the Senate went after the enablers and facilitators: In 55 BC, the Senate passed the lex Licinia to suppress sodalitates (generally considered to be “electioneering clubs”) whose members acted as bribing agents or facilitated other illegal activities to benefit their chosen candidates. The lex Licinia also dramatically streamlined the judiciary process: those accused under the lex Licinia were prosecuted in front of a special jury. The prosecutor was permitted to choose four members of the jury, one of which the defence was able to reject, thus making the majority of the jury “virtually nominated by the accuser”—a powerful tool in the hands of those trying to root out corruption, but also one ripe for abuse.
Three years later, consuls Crassus and Pompey led the Senate in passing two pieces of legislation designed to further expedite ambitus prosecutions. The first expanded penalties, invalidating any office gained through bribes, exiling the guilty, and (according to some sources) confiscating and selling the perpetrator’s property as well. More importantly, the Senate’s second piece of legislation overhauled the quaestio de ambitu, the inquiry commission that looked into ambitus violations, and granted immunity to informants (what we might call “whistle-blowers”). Hearings were shortened, advocates and character witnesses were required to be present at trial (as opposed to the earlier practice of sending in written statements, which imposed a much lower burden), speeches were restricted to specific lengths, and the appointment of judges was weighted in favour of the prosecutor, among other procedural changes designed to expedite the prosecution of those accused of ambitus.
These final sets of reforms, however, proved to be the undoing of Roman ambitus laws altogether. The highly partisan nature of these streamlined trials meant that, realistically, anyone with sufficient political clout could secure a favourable verdict. Having reformed the ambitus laws, Pompey himself could not resist using them to attack his political enemies and bar them from holding office. Simply losing an election to a candidate of lower social standing came to be treated as sufficient cause to accuse that candidate of ambitus in order to have him expelled from office and exiled. Electoral corruption was hardly the only threat to the Republic during its final decade: Rome was beset by increased debt, the collapse of the credit system, inflation, gangs, riots, and murder. Nevertheless, the broad scope and prosecution-friendly nature of ambitus reforms meant that not only were the laws ineffective at stemming the spiralling corruption, but they largely served as a road for partisan interests to attack their enemies. In attempting to address the very real problem of constant and worsening corruption in the electoral process, the Senate’s legislation may only have accelerated the Republic’s decent into civil war.
Although one must be appropriately cautions in drawing conclusions from events that occurred over two millennia ago, there are a couple of important lessons that the modern anti-corruption legislator can take from this:
First, one of the biggest flaws of Roman ambitus laws was that ambitus was never clearly defined. The vague and ever-broadening nature of the crime made it susceptible to abuse by equally broad or vague accusations against political opponents.
Second, the Roman experience highlights the risk of dispensing with procedural safeguards and designing a process in order to maximise convictions. To be sure, the Senate passed ambitus laws in response to real and alarming corruption. But in its effort to address these problems with force and expediency, the Senate irreparably undermined its own ambitus laws by creating disproportionate punishments and a process that excessively favoured the prosecution. Even well-intentioned laws could be, and were, abused by bad-faith actors. Indeed, a process that unduly favoured those in power proved too tempting even by those who supported these laws in good faith to address a legitimate problem. Although Pompey himself was deeply concerned that “bribery and corruption were the cause of the era’s instability,” his use of the ambitus reforms passed under his consulship to push a partisan agenda almost certainly exacerbated the toxic political climate that devolved into civil war three years later.
One is tempted, in concluding a post like this, to trot out tired clichés about the doom of those who forget their history. It will do, however, to simply state that the issues that the Senate in the Late Roman Republic faced in revising its ambitus laws are not so different from the issues confronting any legislative body considering drastic measures in the face of rampant corruption. Legislators would be well advised to reflect on this history and to consider whether the laws they pass will actually serve their cause.