How to reform the Foreign Corrupt Practices Act

That is the topic of my latest Bloomberg column, here is an excerpt:

Like it or not, this law is not going away — and there are some good reasons to have it. The U.S. has been the world leader in taking on corruption, and we shouldn’t give up that position without a fight. There has been a payoff, as other countries move in the American direction with tougher anti-bribery measures. Getting rid of the FCPA now would send the very worst possible message to the world. Furthermore, some aspects of the FCPA are useful in helping U.S. multinationals limit the demand for bribes, by claiming they are unable to comply for legal reasons.

Rather than junking the FCPA, we should consider reforming it, lowering its costs while simultaneously making it harder to use as an instrument of political retribution…

To improve the law, commentators have recommended adding a “willfulness” requirement for corporate criminal liability, limiting liabilities from the activities of subsidiaries or from previous acquisitions, clarifying exactly who counts as a “foreign official,” and more generally swinging the presumption back closer to innocence, especially for companies with active and responsible compliance programs. All of those changes could build in more safeguards for ambiguous cases and for companies that are basically engaged in honest business. Recently announced Department of Justice guidelines do take some steps in these directions, for instance by encouraging voluntary disclosure and remediation of infractions.

The column has plenty of information about how many companies violate FCPA — lots — and what is their chance of prosecution.  We would have to make the penalties at least eight times stiffer to make compliance profit-maximizing, at least on average.


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