As highlighted in this post, once again the Foreign Extortion Prevention Act was introduced in Congress in an attempt to address the so-called “demand side” of bribery.
Similar to prior versions, the bill does not seek to amend the Foreign Corrupt Practices Act, but rather 18 USC 201 (the domestic bribery statute).
This post posed several questions about the Foreign Extortion Prevention Act.
As highlighted here, once again the Foreign Extortion Prevention Act was introduced in Congress in an attempt to address the so-called “demand side” of bribery.
Similar to prior versions, the bill does not seek to amend the Foreign Corrupt Practices Act, but rather 18 USC 201 (the domestic bribery statute).
The Foreign Extortion Prevention Act is odd in several respects.
Bribery of a “foreign official” involves two parties (the supply side and the demand side).
From a U.S. law enforcement perspective, is a specific demand side prohibition even needed?
Since at least 2019 (see here for the prior post), there have been efforts to address the so-called “demand side” of bribery through a bill titled the “Foreign Extortion Prevention Act.”
Recently, Senators Sheldon Whitehouse (D-RI) and Thom Tillis (R-NC), together with Representatives Sheila Jackson Lee (D-TX) and Joe Wilson (R-SC) once again introduced the Foreign Extortion Prevention Act.” (See here).
Similar to prior versions, the bill does not seek to amend the Foreign Corrupt Practices Act, but rather 18 USC 201 (the domestic bribery statute).
Set forth below is the existing text of 18 USC 201 in italics with language from the proposed “Foreign Extortion Prevention Act” included in bold.
Prior posts here, here and here in 2019 highlighted a bill introduced in the House of Representatives titled the Foreign Extortion Prevention Act which sought to capture the so-called “demand side” of bribery by foreign officials given that the FCPA’s current anti-bribery provisions only capture the so-called “supply side” of bribery.
The bill sought to prohibit such conduct – not through amending the FCPA – but through amending 18 USC 201 (the domestic bribery statute) and the prior post highlighted how this potential statutory placement was odd and could lead to several areas of incongruous between liability for the “bribe” payor (what the FCPA captures) and the “bribe” demander (what the Foreign Extortion Prevention Act sought to capture).
Recently, Representative Shelia Jackson Lee (D-TX), along with a bipartisan group of co-sponsors, reintroduced the bill (H.R. 4737). Once again, the bill seeks to capture the “demand side” of bribery through amending 18 USC 201 – and not the FCPA – and therefore presents the same issues as hinted at above.
Consistent with this post from 2019, I continue to believe that if Congress seeks to explicitly capture the “demand side” of bribery (the DOJ already uses the money laundering laws against alleged “bribe taking” foreign officials when there is jurisdiction), this goal is best accomplished through amending the FCPA and set forth here are FCPA amendments I previously drafted (and shared with certain legislative aides) to accomplish this task.
Prior posts here, here and here highlighted a bill recently introduced in the House of Representatives titled the Foreign Extortion Prevention Act which seeks to capture the so-called “demand side” of bribery by foreign officials given that the FCPA’s current anti-bribery provisions only capture the so-called “supply side” of bribery.
As noted in the prior posts, The Foreign Extortion Prevention Act seeks to prohibit such conduct – not through amending the FCPA – but through amending 18 USC 201 (the domestic bribery statute). As further highlighted in the prior posts, if enacted, The Foreign Extortion Prevention Act will lead to several areas of incongruous between “bribe” payor liability (what the FCPA captures) and “bribe” demander liability (what the Foreign Extortion Prevention Act seeks to capture).
Recently, I was contacted by the legislative assistant of a member of Congress who sought my views on the above topics. In preparing for the conference call, I drafted this document which highlights statutory language to amend the FCPA’s anti-bribery provisions to include the “demand” side of bribery.
The below post describes the statutory amendments and provides other general observations.
