If you enjoy the FCPA reform debate, there is much to feast upon in this post.
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ABA Global Anti-Corruption Task Force Co-Chair T. Markus Funk and his Perkins Coie colleague M. Bridget Minder recently authored “Bribery of Foreign Officials: The FCPA in 2011 and Beyond: Is Targeted FCPA Reform Really the “Wrong Thing at the Wrong Time”? in the Bloomberg Law Reports.
Funk and Minder’s article examines a wide array of questions that are described as analytical precursors to substantive FCPA reform, including whether: incremental domestic FCPA reform is really going to impact foreign anti-corruption efforts; foreign policy considerations advanced in favor of the FCPA status quo ante should, as a matter of good public policy and criminal law theory, stand in the way of improving the clarity of domestic legislation; the “Busting Bribery” authors’ criticisms of US Chamber of Commerce reform efforts fall short of the mark; there are sound public policy arguments that counsel in favor of reform.
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As noted in this release from Global Financial Integrity, yesterday “more than 30 civil society and business groups, including human rights and anticorruption organizations, sent a letter to every member of the U.S. House of Representatives and U.S. Senate expressing their opposition to any efforts to amend the world’s flagship anticorruption legislation …”. As noted in the release “the organizations stated in their correspondence that any narrowing of the law, which serves as the model for other international anticorruption conventions and foreign anticorruption laws, would have a negative effect on global commerce, human rights, and the standing of the U.S. in the world.”
Typical of the rhetoric defining the FCPA reform debate, the release states that FCPA reform proposals “could deliver a devastating blow to the fight against human rights abuses and corruption across the globe.”
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In other FCPA reform news, The Hill’s Congress Blog recently hosted (here) an op-ed by David Riker (Managing Director, Third Party Screening at Kroll Risk & Compliance Solutions). In the piece Riker targets the U.S. Chamber’s FCPA reform proposals (see here) and states as follows. “Invoking the rhetoric of a populist manifesto, the Chamber is trying to make the case that increased enforcement of the FCPA has had a chilling effect on US businesses, causing them to avoid doing deals abroad for fear of setting off a FCPA investigation. But while this sentiment sounds pro-America, it is actually quite the opposite. Beneath the flag-waving sentiment, the Chamber is essentially asking for the US government to look the other way on bribery of foreign officials. That sets a dangerous precedent for a way of doing business that does not favor US corporations.” Riker states that “the Chamber’s logic on amending the FCPA is akin to raising blood-alcohol limits to reduce the number of drunken driving cases.”
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My two cents. What is most striking about many of the opposition pieces written about FCPA reform is that while opponents of FCPA reform warn of a U.S. retreat on bribery and corruption issues should the FCPA be amended, opponents of FCPA reform fail to address the fact that an amended FCPA, or revisions to FCPA enforcement policy, would actually align the FCPA with many FCPA-like laws or enforcement policies of peer nations.
And with that … a good weekend to all.