Thursday, April 8, 2021
Anna Mance and Dinsha Mistree have posted The Bribery Double Standard: Leveraging the Foreign-Domestic Divide (Stanford Law Review, 2022 Forthcoming) on SSRN. Here is the abstract:
A double standard in bribery law has emerged. Over the last decade, the U.S. Supreme Court has broken with a century of progressive reforms and has sought to interpret domestic bribery and other conflicts of interest laws narrowly. This weakened application of the federal domestic bribery law now stands in stark contrast to the robust and expansive prosecutions of bribery under the Foreign Corrupt Practices Act (FCPA), which seeks to limit U.S. entities’ ability to bribe foreign public officials. The result is that those who seek to improperly influence domestic public officials are often able to engage in behavior that looks and smells like bribery, but is not bribery. Similar behavior in the foreign context, however, is punished by the FCPA.
The act of bribery, whether domestic or foreign, not only undermines the practice of good governance, but also carries the potential to delegitimize the institutions of government themselves. Federal bribery laws have traditionally been designed and interpreted to address both of these concerns, evolving into powerful tools of public accountability. Now, by circumscribing the focus to the specifics of the act itself, rather than the appearance of the act, the Supreme Court’s restrictive interpretation has undermined the domestic antibribery regime, enabling high-profile elected officials to avoid punishment for acts that would have, until recently, been considered illegal. By contrast, the FCPA has not only withstood legal challenges, but is widely recognized as a powerful tool in the anticorruption arsenal. This Article explores this divergence, argues that the domestic bribery law should be modified, and identifies two aspects of the FCPA as a model for domestic statutory reform.