Since the Walmart saga became news earlier this week, well-meaning people have been asking the question:
Why do we have the FCPA?
Bribery is a way of life in lots of places, they say. If American companies can’t pay bribes, we’ll lose business. The winners will be Chinese companies, or Russians, or (gasp) Europeans.
To which we reply: Yes, the FCPA is idealistic, impractical, and naive. It’s a law dreamed up thirty five years ago by people who believed they could change the world. Who weren’t ready to give in to the Dark Side. Who, despite everything, still listened to their better angels.
How typically American. Just what you’d expect from the descendants of men and women who conquered a continent with mules and shovels. Who fought and won two world wars — sacrificial victories that really did save the Western democracies. Who put men on the moon and, well, you know the rest.
We’ll stipulate that sometimes the FCPA causes Americans to lose business. That’s tough to swallow. But does it mean we should unleash American bribery across the globe? How is that a better choice? Business isn’t about making money by any means. If that were true, mafia dons would be teaching at the Harvard B School.
Because of the work we do here, people tell us things. Like how they admire and even love the FCPA. People in Nigeria, Colombia, Indonesia. Places where corruption really is a way of life. To those people, the message from America and the FCPA is that bribery is wrong. That it can and should be opposed. That for corruption’s victims, counted in the millions or even billions, there’s always hope.
The FCPA isn’t perfect. Name a law that is. We’d like to see a corporate immunity plan and a good-faith defense. Less successor liability. More sunshine on declinations. And practical guidance from the DOJ. Those are easy changes and won’t reduce compliance. They’d make the FCPA better and stronger.
But even as it is, we’re proud of the FCPA. And of a country that still believes in laws that are idealistic, impractical, and naive.