Yesterday’s post about corruption’s positive influence in poor, unfree countries brought the following comment from Andy Spalding. He’s a lawyer on a year-long Fulbright Research Grant in Mumbai, India whose own view of anti-corruption laws has caused a stir.
Here’s what he said:
Dear FCPA Blog,
I was delighted to read yet another article in our field written in the ever-important vein of constructive criticism. For those of us who support the FCPA, it is tempting to categorically dismiss the suggestion that in some economies, some of the time, bribery may actually promote development. But I’m not sure that this is the right response, for at least two good reasons:
1. This idea has been around for a very long time. As Carden and Verdon readily admit, theirs is a new permutation on an idea that has circulated in mainstream economics and political science for over forty years. It grew out of the study of Soviet bureaucracy, and many of us lawyers who took undergrad majors in poli sci, econ, or history, may at least vaguely recognize names like Samuel P. Huntington. This idea is not new, and it’s not radical. We would do well to see the FCPA, and the problem of corruption, in a broader context of human experience and intellectual inquiry.
2. Hasn’t the FCPA community understood this since 1988? That was the year that we amended the FCPA to include the affirmative defense — which some find counter-intuitive, or worse — for facilitating payments. How many of us have had the experience of describing this defense to non-lawyers in a compliance seminar, a meeting with clients, or around the dinner table, only to be met with chuckles of astonishment? The non-FCPA world believes that “a bribe’s a bribe,” and so did we when we originally drafted the FCPA in the mid-70s. But ten years of experience taught us otherwise. For those of us today who endorse the affirmative defense — who do not believe it is a “loophole” that should be abolished, but instead strikes an important balance — haven’t we tacitly accepted at least some version of Carden and Verdon’s thesis?
We may tend to assume, perhaps unconsciously, that if bribery is bad, then deterring bribery must always be good; the logic is seductive in its simplicity. But as Holmes taught, “the life of the law has not been logic; it has been experience.” Experience in bribery-prone countries, with all its irony and tragedy, teaches us that though bribery is indeed bad, the alternative may sometimes be worse. Those who amended the FCPA in 1988, and myriad observers of the human condition dating much further back, understood this regrettable fact. In today’s prosecutorial zeal we may try to ignore it, but those who live and work under corrupt and inefficient regimes cannot escape it.