One of the biggest stories in anticorruption enforcement over the last two decades is the surge in enforcement of the U.S. Foreign Corrupt Practices Act. This development has not only been greeted with enthusiasm by anticorruption advocates, but has had bipartisan political support, at least within the executive branch (the enforcement surge began under President George W. Bush, and has continued through President Obama’s administration). But not everyone has been happy about aggressive FCPA enforcement. About five years ago, the U.S. Chamber of Commerce and its allies launched a coordinated lobbying assault on the statute and on the U.S. government’s enforcement practices. The Chamber not only published a report (“Restoring Balance”) advocating significant limitations on the FCPA’s scope, but it convinced (and/or paid) a number of other “experts” to take up the cause, writing op-eds, testifying before Congress, and lobbying in other forums. (The Chamber seemed to deliberately prefer to hire ex-DOJ officials to make its case, most notably former Attorney General Michael Mukasey.) These editorials and presentations, perhaps not surprisingly, tended to recite the same Chamber of Commerce talking points.
But this concerted, coordinated lobbying effort basically went nowhere. Why not? Well, there were probably a number of reasons, including the vigorous resistance of the Department of Justice, the intrinsic weakness of many of the Chamber’s arguments, and the difficulty of getting anything through the U.S. Congress. But another major factor was the Walmart corruption story, which the New York Times broke in 2012 (see here and here.) The allegations involving Walmart’s conduct in Mexico were so shocking that any appetite there might have been in Congress for “reforming” (that is, weakening) the FCPA quickly dissipated. Although FCPA critics continued to advocate changes to the statute and current enforcement practices, the concerted, orchestrated push for FCPA “reform” faded away.
But now there are signs that it’s back. Maybe I’m over-reading the limited evidence, but I think a new campaign for FCPA reform may well be underway—and anticorruption advocates should may attention and be ready to fight back.
Why do I think that there may be a renewed, orchestrated attempt to weaken FCPA enforcement? Well, often the way these campaigns start is by placing, or arranging for, editorials in the popular media that raise questions or concerns about the issue—in this case, FCPA enforcement practices. You can sometimes tell that these seemingly independent, unrelated pieces are in fact part of a coordinated lobbying campaign when they tend to recite very similar “talking points.” And I happened to notice two such pieces published, in rapid succession, within the last month. The first, by a former DOJ lawyer, appeared in the Wall Street Journal. The second was an op-ed in The Economist that I criticized in my post last month. Notably, both pieces emphasize many of the same points, and cite some of the same statistics—such as the fact that the average time for FCPA investigations to conclude has increased from three years to seven years, and the amount of money that Walmart has spent on internal investigations since the DOJ began its FCPA probe. And both emphasize that excessively long and costly investigations will discourage firms from self-reporting. Maybe I’m being paranoid, but two major periodicals publishing opinion pieces on the length and cost of FCPA investigations within a three week period seems unlikely to be a coincidence.
On top of that, as Liz noted in her post a few weeks back, the Senate questioning of then-nominee, now Attorney General Loretta Lynch, included a quite a few questions about the FCPA (particularly from Republican Senators Ted Cruz and Chuck Grassley). And if you think these Senators (or their aides) came up with these questions on their own, rather than being fed questions by interest group lobbyists, then you don’t know much about how the U.S. Congress works.
I suspect that all this is a sign of things to come, and that over the next year or two, we’re going to see a revival of attempts to “reform” the FCPA—though I also suspect that the real push will come after the 2016 election, and what we’re seeing now is an attempt to lay the groundwork. Should this be a cause for concern for the anticorruption community? After all, last time around the Chamber’s lobbying efforts went nowhere. And if I had to bet, I’d bet that they’ll go nowhere again. But I do think there’s some cause for concern, and some reasons why this time may be different.
First, as the discussion provoked by Liz’s commentary on the questions to Loretta Lynch suggested, there’s a risk that FCPA reform may be developing into a more partisan issue. As noted above, the surge in FCPA enforcement has generally had strong bipartisan support. But the Republican Party has typically been more sympathetic to the Chamber of Commerce, and if FCPA enforcement becomes a more partisan issue, then the election of a Republican president might lead to significant chances in enforcement practices, even without congressional action. Moreover, even under the current administration, it’s very worrying that the individual selected to run the DOJ’s fraud section was the same person who the Chamber of Commerce hired to write its (shoddy and misleading) “Restoring Balance” paper on FCPA reform back in 2010. In addition to all that, the recent FCPA investigations of hiring practices by investment banks in Asia may get the financial sector—a heavy-hitter when it comes to influencing Congress—much more involved in FCPA lobbying efforts. Finally, insofar as the Walmart scandal played a significant role in derailing the last round of anti-FCPA lobbying, there’s no reason to expect something similar to happen again.
Maybe I’m wrong that there’s a new concerted lobbying effort underway to weaken the FCPA. Even if I’m right about that, the odds are that this effort won’t succeed. Nonetheless, the anticorruption community shouldn’t be complacent about this.