WASHINGTON — More than three decades after the United States Congress passed the Foreign Corrupt Practices Act — striking a major blow against international corruption by criminalizing bribes to foreign officials — the U.S. Chamber of Commerce is trying to carve out some major exceptions in the law to prevent prosecutors from enforcing it too aggressively.
The move by the increasingly activist Chamber has led critics to fear there may be no checks left on the corporate lobby’s ambition — or its influence.
Not only is the Chamber taking on something as seemingly unassailable as an anti-bribery law, but it’s doing so just as the movement the FCPA launched is finally taking hold across the globe, corruption fighters say.
And without much organized opposition — at least so far — the Chamber’s army of lobbyists is making serious headway in Congress, even among Democrats.
The Chamber is not overtly taking a pro-bribery position. Rather, its lobbying blitz couches the proposed changes as tune-ups, a few safeguards needed to protect against overzealous prosecutors.
“Our proposals are aimed at preserving existing law enforcement tools so that the government can pursue the bad actors while ensuring that the good actors have clarity and more certainty under the law, which is clearly lacking today,” said Harold Kim, a senior vice president at the Chamber’s Institute for Legal Reform, in a statement to The Huffington Post.
But the Chamber’s list of demands boils down to this: It wants four loopholes that companies could use to escape criminal liability — and it wants the government to make a clearer demarcation between foreign officials they are not allowed to bribe and those they are.
The interactive chart below lists the business lobby’s five chief grievances and its proposed changes — along with rebuttals from supporters of the law, and a simple potential overall solution.
“The proposals by the Chamber are quite dramatic,” said Harvard Law School professor David Kennedy, who specializes in international law. “Although presented as modest legislative clarifications, the Chamber’s proposals would seriously undermine the enforcement efforts and scale back criminal liability under the FCPA.”
“I have a hard time figuring out how they justify a push on this law that essentially amounts to, ‘We want to make it easier to bribe,’” said Per Olstad, the executive director of Chamberwatch, a labor-backed group. “It’s shocking that an organization purporting to represent a mainstream business view would take that position.”
The Chamber’s arguments and proposals were summed up in a 28-page paper released in October by its legal arm, entitled “Restoring Balance.”
Some observers have pointed out that the proposed amendments to the FCPA also target basic concepts key to establishing other forms of corporate liability, including environmental liability, tax liability, product liability and liability for racketeering, discrimination and so on.
“I think what they’re really trying to do is push reform that will make it harder for anyone to hold business accountable, period,” Olstad said.
“It could be that the FCPA just seems an easy first target,” said Kennedy.
The Chamber, for its part, insists that it respects the spirit of the anti-bribery law.
“Allegations that the Chamber is trying to gut the Foreign Corrupt Practices Act are completely false,” Kim said. “The FCPA is a valuable law that helps reduce corruption in markets and advances the cause of free enterprise.”
GROWING ENFORCEMENT, HERE AND ABROAD
When the Chamber talks about restoring balance, it is referring to what it describes as an asymmetrical relationship that has recently developed between gung-ho, unaccountable prosecutors on the one hand and beleaguered corporations on the other. Its principal evidence is the dramatic rise in recent years in the number of criminal prosecutions under the FCPA.
That increase in prosecutions has indeed been dramatic. Although enacted in 1977, the FCPA was virtually unenforced for decades. The pace of enforcement only picked up in 2007, as part of the George W. Bush administration’s anti-kleptocracy initiative, at which point the number of criminal enforcement actions each year rose into double digits for the first time. It then shot up again, to 48, in 2010.
Graphic by Chris Spurlock
But officials say even 48 enforcement actions per year is hardly a large number relative to the size of the problem.
“Foreign corruption remains a problem of significant magnitude,” Greg Andres, deputy assistant attorney general in the Justice Department’s criminal division, told a congressional committee in June. He cited a World Bank estimate based on data from 2001 and 2002 that more than $1 trillion is paid in bribes each year. At the time, those bribes constituted roughly 3 percent of the world economy.
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