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Looking Back At The Senate’s FCPA Hearing

Capital Hill

Seven years ago this week, the Senate held a hearing titled “Examining Enforcement of the Foreign Corrupt Practices Act.”

(See here for the full hearing transcript, here for the video).

It was the first congressional hearing on the FCPA during its new era of enforcement (to be followed by a June 2011 FCPA hearing in the House) and the first FCPA hearing in Congress since the FCPA was amended in 1998.

In opening the hearing, Senator Arlen Specter (who passed away in 2012) noted that “oversight is a major function of Congress,” but that Congress does “not do very much of it.”

During the hearing:

  • Greg Andres (then the DOJ’s Acting Deputy Assistant Attorney General, Criminal Division) provided an overview of the DOJ’s FCPA enforcement program;
  • I provided a critique of the DOJ’s charging decisions in the most egregious cases of corporate bribery as well as the DOJ’s prosecution (or lack thereof) of individuals in connection with most corporate enforcement actions;
  • Andrew Weissmann (then with Jenner & Block, appearing on behalf of the U.S. Chamber of Commerce) suggested potential reforms to the FCPA, including an affirmative compliance defense and clarification of the “foreign official” element; and
  • Michael Volkov (then with Mayer Brown) proposed a more balanced enforcement approach and suggested a limited amnesty program for corporations.

During the hearing, Senator Amy Klobuchar (D-Minn.) noted, among other things, that “one of the basic principles of due process is that people in companies have to be able to know what the law is in order to comply with it” and she further stated that “many very good standing companies [in her state of Minnesota] … do not always know what behavior will trigger an enforcement action.”

Senator Christopher Coons (D-Del.), a former in-house compliance lawyer, stated, among other things, that he “would welcome [the] opportunity” to work on “potential amendments to the [FCPA] that would allow clarification on the definition of foreign official and the creation of a compliance defense.”

Seven years have passed since the Senate’s FCPA hearing and certain things have changed.

Most interestingly, Weissmann, who advocated for FCPA reform at the hearing, served as the DOJ’s Fraud Section Chief between 2015 and mid-2017 (see this prior post for additional discussion) and Andres, who defended the DOJ’s FCPA enforcement program, joined FCPA Inc. (he is currently back in the government) and as highlighted in this prior post he largely abandoned many of the positions he articulated on behalf of the DOJ at the hearing. (For more on this general issue, see this prior post “In the FCPA Space, Who Speaks for Whom?”).

Other things have not changed, including my FCPA views (see here for my written testimony and here for my post-hearing “homework” assignment).

I went to Capitol Hill seven years ago this week without an agenda and on behalf of no one but myself.

My testimony represented my genuine beliefs and I was proud of what I said then and I remain proud today.

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