There is no Justice Department guidance on the Foreign Corrupt Practices Act yet, despite a report that it would be released in advance of an Oct. 10 meeting of the Organization for Economic Cooperation and Development anti-bribery working group in Paris.
We’re not surprised.
What incentive does the DOJ have to release it, when delay has worked so brilliantly to stave off congressional action to amend the 35-year-old foreign anti-bribery statute?
Next month, it will be precisely one year since Justice Department criminal chief Lanny Breuer announced that guidance on compliance and prosecutions would be forthcoming. The only deadline Breuer gave for its release was sometime in 2012. It’s our understanding that the guidance — essentially a collection of judicial ruling precedents and principles already articulated through FCPA settlements and Justice Department speeches — was completed last spring. So it’s just been sitting around. Why?
We suspect the reason for the delay is Congress. By running out the clock on the current congressional session, the Justice Department has ensured that no reform legislation would move forward this year. And next year, a new Congress will be in sworn in, meaning the tenuous bipartisan coalition that had seemed to be forming in favor of amending the FCPA might no longer exist.
Indeed, Sen. Amy Klobuchar (D-Minn.), who made early noises about the need for reform — and whose support was essential to give any legislation the necessary bipartisan cooperation to move forward in a divided Congress — told Just Anti-Corruption way back in February that she intended to wait for the guidance before deciding whether statutory amendments were needed.
Since then, the Wal-Mart Stores Inc. story erupted, as well as the Las Vegas Sands probe. After those cases, who in Congress wanted to be seen as “supporting foreign bribery?”
But the truth is that any proposed amendments were dead before the New York Times’s expose of Wal-Mart’s operation in Mexico was published in April.
That doesn’t mean proponents of changing the statute have given up, as Just Anti-Corruption recently reported. Amending any statute in Congress can take years of work.
As Just Anti-Corruption noted in an analysis of the 1988 amendments to the FCPA, it took some eight years before the first proposals to amend the FCPA, which started flying not long after the 1977 statute was enacted, finally came to fruition. And even when the statute was amended in 1988, business interests still didn’t get a whole lot of what they were asking.
Business raises a lot of legitimate issues about FCPA enforcement that are part of larger questions about the general trend toward “regulation by prosecution,” which we have documented.
But from a U.S. policy standpoint, there are just as good reasons not to be perceived on the international stage as pulling back on corruption enforcement. The U.S. has treaty commitments, and has been the world’s leader in anti-corruption enforcement. Now that these efforts are gaining traction internationally, with other countries moving toward stricter enforcement, how would it look if the U.S. retrenched?
My prediction: We’ll see the guidance either next month, during the big American Conference Institute FCPA conference near Washington at which Breuer announced last year that it was forthcoming; or we’ll see it sometime around Dec. 31.