Wednesday, December 16, 2015
Koehler on the FCPA
Mike Koehler has posted The Uncomfortable Truths and Double Standards of Bribery Enforcement on SSRN with the following abstract:
In recent years, Foreign Corrupt Practices Act (FCPA) enforcement has become a top priority for the U.S. government, and government enforcement officials have stated that "we in the United States are in a unique position to spread the gospel of anti-corruption" and that FCPA enforcement ensures not only that the United States "is on the right side of history, but also that it has a hand in advancing that history."
However, the FCPA is not the only statute in the federal criminal code concerning bribery. Rather, the FCPA was modeled in large part after the U.S. domestic bribery statute, and when speaking of its FCPA enforcement program, the government has recognized that it "could not be effective abroad if we did not lead by example here at home." Indeed, the policy reasons motivating Congress to enact the FCPA — that corporate payments were subverting the democratic process, undermining the integrity and stability of government, and eroding public confidence in basic institutions — apply with equal force to domestic bribery.
Against this backdrop, this Article explores through various case studies and examples whether the United State’s crusade against bribery suffers from uncomfortable truths and double standards. Through these case studies and examples, readers can decide for themselves whether the U.S. government "practices what it preaches" when it comes to the enforcement of bribery laws and whether the United States is indeed "in a unique position to spread the gospel of anti-corruption."