Congress and the FCPA: Here We Go Again

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2 Responses

  1. Bill Wilson says:

    The entire charade over the FCPA reminds me of two prior episodes, where Congress suddenly finds a statute used successfully to get the right bad guys to be fatally flawed because business interests dislike it. The first was RICO. Everyone thought RICO was a gem until E.F. Hutton started kiting checks, and RICO claims sprouted like weeds. But guess what? If a business whose owner had a vowel at the end of their surname and belonged to "organized crime" had done it, we would have been saying "yup, exactly what we were trying to fix". The law doesn't depend on who runs afoul of it. That type of ad honinem nonsense is antithetical to our system of justice. The next episode was "honest services" mail fraud. Same play, different actors. As soon as "legitimate" business people get indicted, it's a travesty. Never a peep when it was applied to everyone from mail order investment scams to trade secret theft. But if legitimate business people do the crime, they should do the time. Take your proposal for defining "foreign official". It's the wrong solution: if the person who gets bribed isn't a government official, that doesn't make it legitimate to bribe someone. Prosecute them under the 36 state statutes, or the Travel Act, or the mail and wire fraud statutes. That's why the UK Act reads as it does: private bribery is not OK, and there are several international treaties with lots of signatories that take that position. This hand-wringing about how hard it is for legitimate business people to know how to act is another fantasy created by our friends at the US Chamber of Commerce, who don't like any form of regulation, period. We demean the role of law as a check against behavior that deserves our condemnation, as well as our profession, when we create these faux issues because of who is in the dock.

  2. Bill Wilson says:

    The entire charade over the FCPA reminds me of two prior episodes, where Congress suddenly finds a statute used successfully to get the right bad guys to be fatally flawed because business interests dislike it. The first was RICO. Everyone thought RICO was a gem until E.F. Hutton started kiting checks, and RICO claims sprouted like weeds. But guess what? If a business whose owner had a vowel at the end of their surname and belonged to "organized crime" had done it, we would have been saying "yup, exactly what we were trying to fix". The law doesn't depend on who runs afoul of it. That type of ad honinem nonsense is antithetical to our system of justice. The next episode was "honest services" mail fraud. Same play, different actors. As soon as "legitimate" business people get indicted, it's a travesty. Never a peep when it was applied to everyone from mail order investment scams to trade secret theft. But if legitimate business people do the crime, they should do the time. Take your proposal for defining "foreign official". It's the wrong solution: if the person who gets bribed isn't a government official, that doesn't make it legitimate to bribe someone. Prosecute them under the 36 state statutes, or the Travel Act, or the mail and wire fraud statutes. That's why the UK Act reads as it does: private bribery is not OK, and there are several international treaties with lots of signatories that take that position. This hand-wringing about how hard it is for legitimate business people to know how to act is another fantasy created by our friends at the US Chamber of Commerce, who don't like any form of regulation, period. We demean the role of law as a check against behavior that deserves our condemnation, as well as our profession, when we create these faux issues because of who is in the dock.