News broke this week of a federal anti-bribery investigation against News Corp., Rupert Murdoch’s media giant, for paying U.K. police officials for confidential personal information on tabloid targets. This development, together with a report released at a briefing at the U.S. Capitol earlier this month, gives me hope that the tide has begun to turn on the U.S. Chamber of Commerce in its concerted attack on the Foreign Corrupt Practices Act (FCPA), the landmark U.S. law that makes it illegal for companies to bribe foreign officials.
In the last few years, businesses have been forced to pay enormous fines to the Department of Justice for engaging in widespread, intensive foreign bribery. Siemens AG, the German electronics giant, paid a whopping $800 million for corruption that spread across dozens of countries worldwide. In July, two Miami businessmen were convicted of bribing Haitian officials for a telecommunications contract, undermining the devastated country’s recovery from earthquake and civil war. They face the potential for hundreds of thousands of dollars in fines.
Meanwhile, U.S. diplomatic efforts have fostered the enactment of anti-bribery laws worldwide and the development of new international norms addressing corruption through treaty law and intergovernmental cooperation. While the FCPA may have been the first law of its kind, the UN Convention Against Corruption, to which 140 nations (including the U.S.) now belong, requires laws criminalizing foreign bribery.
You’d think these results would be thought of as representing a record of success for the fight against international corruption. Yet despite the extreme nature of these cases, the Chamber of Commerce claims that the DoJ is overreaching, prosecuting companies for minor, borderline cases using ambiguous legal theories, and hurting American competitiveness. In a paper released last year, the Chamber advanced five “modest proposals” that they claimed would clarify the FCPA, rein in an out-of-control DoJ, and restore “balance” to anti-corruption enforcement.
Of course, the Chamber wasn’t the first to criticize the FCPA. In 2009, two partners at Baker & McKenzie published an article in the American Journal of Criminal Law proposing a program of “corporate leniency” that would promote self-reporting and compliance programs in return for partial or complete amnesties for companies and their executives. In November of last year, in a hearing before the U.S. Senate, FCPA critics – mostly allies of the Chamber – complained of ambiguity in the Act’s definition of foreign officials and called for the addition of a compliance defense. These attacks appear to have gained some traction in Congress, and rumors are circulating that bills to amend the FCPA will be introduced in both Houses this term.
The recent briefing at the Capitol, however, unmasked business objections as the protestations of special interests with ulterior motives. Profs. David Kennedy and Dan Danielsen, the authors of a new report entitled Busting Bribery: Sustaining the Global Momentum of the Foreign Corrupt Practices Act, explained that the FCPA has played an important role in combatting bribery on a global scale and provided a level playing field for U.S. businesses.
The authors explained that DoJ exercises appropriate discretion according to a well-elaborated and clear set of guidelines when it decides how to handle a case and what kinds of penalties to seek. Its headline enforcement actions involve unambiguous, egregious instances of widespread bribery and are more often against foreign companies than domestic companies. The Chamber’s proposed amendments, far from being “modest” or aimed at “restoring the balance,” would badly undercut anti-corruption enforcement efforts, encourage willful ignorance by corporate executives, and provide what Prof. Danielsen called a “license to commit intentional acts of bribery.”
Perhaps the most interesting exchange of the briefing came in response to the report authors’ observation that weakening the FCPA would not even reduce compliance costs for companies, as they would still be required to meet the high standards of other jurisdictions with even stricter anti-corruption laws, like the U.K. One congressional staffer asked what the Chamber of Commerce was aiming at, if its proposed amendments would not lower the costs for U.S. businesses. In answer, Prof. Kennedy speculated that the Chamber plays a long game, and that it intends these amendments to establish a bridgehead for rolling back the principle of corporate criminal liability across a wide range of fields – for example, environmental, anti-trust, and securities law.
The FCPA is emblematic of U.S. laws that impose liability for corporate wrongdoing abroad, and any weakening of its reach could have ripple effects on other areas ERI cares about, like human rights and international environmental practice. Equally important, it’s hard to protect human rights and the environment from corporate wrongdoing if corporations can simply bribe their way out of any regulation or enforcement – anti-corruption is instrumental to protecting these values.
It’s instructive that the Chamber’s proposed amendments would likely undercut any attempt to prosecute Murdoch and News Corp., whose private investigators illegally bought confidential databases from the British police. The top editors of one of News Corp.’s British tabloids wined and dined Scotland Yard officials when the evidence of their malfeasance began to surface; these officials have since been arrested and questioned in connection with the case.
But the payments were made by News Corp.’s U.K. subsidiary, rather than being made directly by the parent company. The Chamber’s proposals would prevent prosecutors from holding News Corp. liable for the bribery – even though it completely controlled the British subsidiary – if it can’t be proven that the parent company’s executives were aware of it. Moreover, they would exonerate the defendants if it couldn’t be shown that the people who made the bribe knew that they were violating the specific provisions of the FCPA – which is certainly possible, given that the those who paid the money were British nationals living in the U.K, with little reason to have a detailed knowledge of U.S. law.
As the Busting Bribery report shows, the FCPA works, but the temptation to bribe remains strong. The standards the Chamber seeks to establish would make it nearly impossible to find companies guilty of criminal acts, as they would enable defendants to shed liability through acquisition, subdivision, and willful ignorance. In other words, they promote corporate form over reality and enable impunity through technicality.