The White House recently released this “Fact Sheet: The U.S. Global Anticorruption Agenda.”
It is an informative read as it sets forth in one document the policy views of the White House on bribery and corruption topics.
The fact sheet also highlights that FCPA enforcement is merely one prong of the U.S. government’s multi-dimensional approach to fighting bribery and corruption. Other prongs mentioned include asset recovery, denial of visas, money laundering, curtailing the use of shell companies, increasing transparency in certain industries, and other open government initiatives.
As to the FCPA specifically, the White House Fact Sheet states:
“The United States has been a global leader on anticorruption efforts since enacting the first foreign bribery law, the Foreign Corrupt Practices Act (FCPA), in 1977. […] The United States continues to apply the FCPA to prosecute those who pay bribes to foreign officials to obtain business benefits. Since 2009, the United States has resolved criminal cases against more than 50 corporations worldwide with penalties of approximately $3 billion, and it has convicted more than 50 individuals, including CEOs, CFOs, and other high-level corporate executives, for FCPA and FCPA-related crimes.”
However, and consistent with prior examples of political actors or advocates describing FCPA enforcement – see here and here for instance), the White House “fact” sheet omits several salient facts or other relevant information concerning FCPA enforcement and/or the general fight against bribery and corruption.
Since 2008 approximately 80% of DOJ/SEC corporate FCPA enforcement actions have not resulted in any related charges against company employees. In other words, the U.S. government’s FCPA enforcement efforts are, to a large extent, corporate only and not achieving, as even the enforcement agencies recognize, maximum deterrence as only individual enforcement can achieve.
The U.S. government has an overall losing record – including during this so-called new era of FCPA enforcement – when put to its ultimate burden of proof in FCPA enforcement actions. In other words, the White House is emphasizing the quantity of FCPA enforcement over the quality of FCPA enforcement. However, in a legal system based on the rule of law, quality of enforcement should take priority over quantity.
The U.S. government largely enforces the FCPA through non-prosecution agreements, deferred prosecution agreements, and other vehicles (such as with increasing frequency SEC administrative settlements) not subjected to any meaningful judicial scrutiny. These resolution vehicles – in the minds of many – are inconsistent with rule of law principles such as limited government authority, a system of checks and balances, and transparency in law enforcement.
The U.S. crusade against bribery suffers from several uncomfortable truths or double standards. For instance, the U.S. government offers bags of cash to influence foreign leaders. For instance, some of the most egregious FCPA violators, per the U.S. government’s own allegations, have involved U.S. government contractors or suppliers including of goods and services critical to national security, and because of this, those companies were not even charged with FCPA anti-bribery violations. For instance, a notable example of FCPA enforcement (the Giffen case) ended with a whimper after the defendant asserted that the alleged bribery occurred with the knowledge and support of the highest levels of the U.S. government. For instance, the general fight against bribery and corruption suffers from a double standard in that corporate interaction with “foreign officials” under the FCPA is judged by different standards than corporate interaction with U.S. officials under other U.S. laws.
In sum, the recent White House document is an informative read and to be sure the U.S. government does deserve credit for advancing certain of the policy objectives and initiatives described in the document.
However, the purpose of this post was to provide additional data points and information concerning the topics discussed in the recent White House document.