Last week we heard from Washington, D.C. lawyer and former aid worker Stephanie Connor. She disagreed with some comments Andy Spalding, left, has made in this space. Andy’s a lawyer on a year-long Fulbright Research Grant in Mumbai, India.
He’s questioned whether bribery is always bad and enforcement of the Foreign Corrupt Practices Act always good. (His concepts were discussed without attribution to him in a recent WSJ Law Blog post “Is the FCPA Standing in the Way of Haiti’s Recovery?” here.)
Here’s his response:
First, nice to meet you and thanks for your comments. They have forced me to examine my assumptions in some unexpectedly difficult ways.
I understand the crux of your comment to be that we should not treat the FCPA as if it were primarily designed as a poverty reduction tool. I agree.
Rather, the statute is primarily designed to be a bribery reduction tool, and we should not evaluate its success in the first instance by the extent to which it reduces poverty. But to say that it is not designed to be a poverty reduction tool is very different from saying that we should enforce it without regard to its impact on poverty.
As strongly as I agree with the former statement, I disagree with the latter. Indeed, many believed in 1977 and still believe today that proper enforcement of the FCPA will have the collateral effect of mitigating poverty — through reducing corruption, we will eventually improve economic productivity. I am among those who subscribe to this theory, when thinking about the very long term.
But what if FCPA enforcement has the more immediate effect, quite unwittingly, of exacerbating already severe social problems, including but not limited to poverty? Should we take notice? Should we modify our approach to enforcement? Can the FCPA be enforced in such a way that it can deter bribery without deterring investment in developing countries? I certainly believe that it can, and that it should. Is there a reason why it should not?
I would truly love to hear your response.
All the best,
Views from other readers are also welcome.
Editor’s Note: For the record, Andy has never said graft is good. Our over-zealous headline writers came up with that phrase. Andy himself says: ” I certainly don’t believe that ‘graft is good’ . . . I do believe, though, that our efforts to reduce bribery can, quite unintentionally, sometimes produce bad results. But fortunately, we need not choose between enforcing the FCPA or not. Rather, we should develop an approach to enforcement that is more sensitive to the reality of collateral damage in economically desperate countries, one that punishes bribery without punishing the citizens, for example, of Haiti.”