President Obama talked yesterday to the U.S. Chamber of Commerce — the folks pushing for some big changes to the Foreign Corrupt Practices Act. But if his audience was hoping for the President’s support, they didn’t get it.
Some laws may need reform, he said — the tax code, environmental regulations, and medical malpractice rules among them — but he didn’t mention the FCPA.
In October, the Chamber of Commerce started a big push to “fix” the antibribery provisions. In a paper co-written by a former Enron prosecutor, the Chamber proposed creating a so-called “good-faith” defense, limiting the application of respondeat superior, trimming back successor liability for acquiring companies, and narrowing the definition of “foreign official.”
The President’s silence on FCPA reform doesn’t mean no one in Washington is on board with the Chamber of Commerce. As Michael Volkov wrote in this space last month, Senators Klobuchar (D-MN) and Coons (D-DE) are close to introducing a bill to make some changes to the FCPA. Volkov said the changes could include: (1) a de minimis exception for in-kind gifts or other benefits which would create some type of safe harbor for gifts and hospitality and (2) a clarification of the term “instrumentality” as part of the definition of “foreign official” to reduce the application of the FCPA to private businesses which are partially owned by foreign governments.
Without the President’s support, however, any bill with changes to the FCPA isn’t likely to become law. And yesterday he didn’t coddle the crowd or promise any easy fixes. Instead he delivered what the White House itself called a “stark message of shared responsibility for winning America’s future:”
But I want to be clear: even as we make America the best place on earth to do business, businesses also have a responsibility to America.
As Michael Volkov said, those in and out of government pushing for changes to the FCPA may be hoping someone other than the President is paying attention. The proposed legislation, Volkov said, “is intended for another audience –- the Justice Department. The hope is that as support gathers behind legislation and hearings that the Justice Department may address some of the problems identified by business by clarifying and changing its prosecution policies.”