We’re sometimes asked what part of the FCPA we’d change if we had the power to do that.
Usually we say we don’t have a problem with the words of the FCPA, but that we might change respondeat superior, for example, to give companies a fighting chance to defend themselves.
But that answer isn’t the whole story.
There are a couple of words in the statute that concern us. In the facilitating payments exception, under the definition of ‘routine governmental action,’ the list includes ‘providing police protection.’ Those words, we think, ought to go.
We understand why the FCPA allows payments for police protection. Congress wanted Americans abroad to be able to bribe local cops if that’s what it took to be safe. And that made sense.
Still, we’re uncomfortable with Americans and U.S. companies bribing police anywhere. It perpetuates petty corruption and makes it harder for local politicians, civil society groups, and citizens to reform their own systems.
Beyond that, police corruption is a special scourge. It means people without money and power can’t depend on the police to protect them from human predators.
As Transparency International has said, “When people live in fear of violent crime and in states where organised crime has co-opted the institutions that are supposed to protect them, they are denied their basic human rights. These include the right to liberty, security of person, equal protection before the law, and freedom of peaceful assembly.”
Yet TI’s Global Corruption Barometer shows that more people pay bribes to police than any other public servants, and that police corruption is worsening. The 2010 report said about a third of the respondents who had contact with police had paid a bribe. And since 2006, the number of people reporting bribes to police has almost doubled.
The countries on the list above have the worst police corruption, with Nigeria’s police perceived as the most corrupt. But no country is immune. The News of the World scandal involved allegations of police corruption in the U.K.
We found a couple of FCPA enforcement actions that mentioned payments to police. Alcatel, in Nigeria, paid police for security services. Apparently the payments were too large to be facilitating payments. And a defendant named Faheem Mousa Salam offered $60,000 to an Iraqi police official to sell armored vests and a map printer. He pleaded guilty to a conspiracy count in 2007 and was sentenced to three years in prison.
It’s not the big bribes to police we’re thinking about. Those are clearly illegal and are swept up in FCPA enforcement actions.
But small bribes to police — ‘facilitating payments’ — are permitted by the FCPA and happen every day. And that’s making life tougher for some of the poorest and weakest people on the planet.