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Open Season On The FCPA

Thanks to the DOJ’s hyper-enforcement since 2007, the FCPA is on its way to becoming one of the most famous laws in the world.

It makes news somewhere every day — in Africa, the U.K., Asia, South America, or here at home.

Overseas the FCPA is generally admired. But at home it’s often under attack. Ever since the Chamber of Commerce declared open season on the statute, others have been piling on.

The latest is Bill Freeza, a contributor to Forbes.

Here’s how he opened a column this week:

In the annals of American legislation, few laws are as futile in their impact, capricious in their enforcement, and hypocritical in their content as the Foreign Corrupt Practices Act of 1977 (FCPA). Designed to put a stop to the bribery of foreign government officials, politicians, and political parties by corporations seeking to do business in corrupt countries around the world, the FCPA hangs as a sword of Damocles over any company that hopes to remain competitive in places that are not as enlightened as the U.S. when it comes to finding acceptable ways to bribe government officials.

For our part, we admire the FCPA and what it stands for. We don’t agree with every aspect of the DOJ’s enforcement policy. We know the FCPA isn’t a perfect law and our messy government isn’t a model of consistency. And we’ll stipulate that bribery will never be completely stopped. 

Still, we think it’s always better to fight corruption than to pretend it doesn’t hurt people. Graft undermines the rule of law. The poor become weaker. Schools and roads crumble. Hope disappears.

But does the FCPA fall unfairly on U.S. companies? Take a look at our top ten list. Nine companies there are from outside the U.S. If anything, it looks like foreign companies bear the brunt.

The FCPA isn’t perfect. But by our measure, it’s still a great law.

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1 Comment

  1. Thank you, FCPA Blog, for clarifying that FCPA defenders need not believe that bribery can ever be eradicated. Indeed, we can go even further: no criminal law will ever succeed in completely eradicating the conduct it prohibits. If the prospect of complete eradication were a prerequisite for criminal prohibitions, we would have none. I have never thought of Forbes as an anarchist's pamphlet.

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