A friend was recently having lunch with his friend (let’s call this individual the “Person”). The Person is in a senior position at a high-profile U.S. government department. Discussion turned to the Foreign Corrupt Practices Act. Discussion then turned to this website. The Person said that he reads FCPA Professor, but joked that the website should be called “Anti-FCPA” Professor. This is a bit ironic given that the Person’s current employer was steadfastly against the FCPA ever becoming law. (See here for my article “The Story of the Foreign Corrupt Practices Act”).
While grateful to hear that my website is read at high levels, I was equally disappointed that the Person is misinformed as to my clear and often articulated positions.
So I use this post to once again articulate my positions and to further discuss what I see as a growing, yet troublesome, trend.
Since launching this website in July 2009, I have consistently stated (see here for the first instance) that “the FCPA is a fundamentally sound statute when enforced by DOJ/SEC in a way that is consistent with Congressional intent.” In my 2010 Senate FCPA testimony I again stated that “the FCPA is a fundamentally sound statute that was passed by Congress in 1977 for a specific reason.” In this post, I stated that “the FCPA is a fundamentally sound, but not perfect, statute.” In this Q&A, I stated as follows. “The FCPA is a fundamentally sound statute that was rightly passed by the U.S. Congress in 1977.” In this post, I stated as follows. “I firmly believe that the FCPA, if enforced consistent with its statutory terms and consistent with legislative intent, is a fundamentally sound statute.”
In fact, when others have suggested that the FCPA ought to be repealed (see here for a prior post), I said that this was taking FCPA reform too far and again said that the “FCPA is a fundamentally sound statute that was passed by Congress for a valid and legitimate reason.” Just last month, in this post regarding FCPA reform, I likewise stated that “the FCPA is a fundamentally sound statute.” Still in doubt as to my position on the FCPA? You can watch this October 2012 interview.
In short, the suggestion that I am anti-FCPA is just plain wrong.
That the FCPA is a fundamentally sound statute, does not mean that the FCPA could not be improved, and I have suggested limited FCPA reform through a compliance defense (see here for my article “Revisiting a FCPA Compliance Defense”) as well as other reforms (such as abolishing NPAs and DPAs) that would not require amending the law.
There is a difference however between the FCPA (as a law) and FCPA enforcement. Thus, while I have consistently stated that the FCPA is a fundamentally sound statute, I have likewise consistently stated that FCPA enforcement is not always fundamentally sound. Indeed, in my Senate testimony I stated as follows. “That the FCPA is a fundamentally sound statute does not mean that FCPA enforcement is always fundamentally sound.” I have made this same observation countless other times.
In short, to the misinformed Person (and to perhaps others), my FCPA positions are as follows.
The FCPA is a fundamentally sound statute that was rightfully passed by Congress in 1977 for legitimate and valid reasons. That the FCPA could be improved through limited reform, does not negate that the FCPA is a fundamentally sound statute. That the FCPA is a fundamentally sound statute does not mean that FCPA enforcement is always fundamentally sound and it is true that I have expressed criticisms as to how the DOJ and SEC enforce the FCPA, as well as other FCPA or related issues relevant in this era.
I would also like to highlight in this post what I see as a growing, yet troublesome, trend.
There seems to be a trend (and one advanced by many, including civil society organizations and monitoring groups) that more FCPA enforcement is an inherent good regardless of investigative devices, theories of liability, resolution methods, or outcomes. I reject that trend and consider it troubling.