Earlier this month, the Counter-Kleptocracy Act was introduced in the House of Representatives by Representative Steve Cohen (D-TN) and Representative Joe Wilson (R-SC).
As explained in this release, “the legislation consolidates seven bipartisan counter-kleptocracy bills led by members of the Helsinki Commission and the Caucus against Foreign Corruption and Kleptocracy during the 117th Congress.”
As further explained in the release, The Counter-Kleptocracy Act includes the following counter-kleptocracy bills:
- Revealing and Explaining Visa Exclusions for Accountability and Legitimacy (REVEAL) Act (H.R. 4557, S. 2392), introduced by Co-Chairman Cohen & Rep. Steve Chabot (OH-01), and Helsinki Commission Chairman Sen. Ben Cardin (MD) and Commissioner Sen. Marco Rubio (FL)—Enables the executive branch to reveal the names of human rights abusers and kleptocrats banned under Immigration and Nationality Act section 212(a)(3)(c) for “potentially serious adverse foreign policy consequences,” a major provision for banning bad actors.
- Transnational Repression Accountability and Prevention (TRAP) Act (H.R. 4806, S. 2010), introduced by Co-Chairman Cohen and Rep. Wilson, and Helsinki Commission Ranking Member Sen. Roger Wicker (MS) and Chairman Cardin—Establishes priorities of U.S. engagement at INTERPOL, identifies areas for improvement in the U.S. government’s response to INTERPOL abuse, and protects the U.S. judicial system from abusive INTERPOL notices.
- Combating Global Corruption Act (H.R. 4322, S. 14), introduced by Rep. Tom Malinowski (NJ-07) and Rep. María Elvira Salazar (FL-27), and Chairman Cardin and Sen. Todd Young (IN)—Creates a country-by-country tiered reporting requirement based on compliance with anti-corruption norms and commitments. Leaders of those countries in the lowest tier will be considered for Global Magnitsky sanctions.
- Foreign Corruption Accountability Act (H.R. 3887), introduced by Rep. John Curtis (UT-03) and Rep. Malinowski—Authorizes visa bans on foreign persons who use state power to engage in acts of corruption against any private persons and publicly names them.
- Foreign Extortion Prevention Act (H.R. 4737), introduced by Rep. Sheila Jackson Lee (TX-18) and Rep. Curtis—Criminalizes bribery demands by foreign officials.
- Golden Visa Accountability Act (H.R. 4142), introduced by Rep. Adam Kinzinger (IL-16) and Rep. Malinowski—Creates a U.S.-led database to prevent the abuse of investor visas allowing foreign corrupt officials to move around the world freely and covertly and enjoy ill-gotten gains.
- Justice for Victims of Kleptocracy Act (H.R. 3781, S. 2010), introduced by Rep. Malinowski and Rep. Curtis, and Helsinki Commissioners Sen. Richard Blumenthal (CT) and Sen. Rubio—Creates a public Department of Justice website documenting the amount of money “stolen from the people” by corrupt officials in each country and “recovered by the United States.”
Of the bills referenced above, the Foreign Extortion Prevention Act has received the most coverage on these pages (see here, here, here, here and here for prior posts).
The Foreign Extortion Prevention Act is included as Section 4 of the Counter-Kleptocracy Act and, like prior versions, seeks to amend 18 USC 201 (the so-called domestic bribery statute and not the Foreign Corrupt Practices Act) to address the so-called “demand” side of bribery.
As indicated in prior posts, including the “demand” side prohibition in Title 18 (the Criminal Code) while having the “supply” side prohibition in the Foreign Corrupt Practices Act Title 15 (the Securities Laws) is 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 seeks to capture).
For this reason, two years ago I drafted statutory amendments to the FCPA to amend the FCPA’s anti-bribery provisions to include the “demand” side of bribery – if indeed Congress believes that explicitly capturing the “demand” side is needed (against the backdrop of other laws the DOJ is using with increasing frequency to capture the “demand” side).
