The Siemens enforcement action is a powerful example of what FCPA enforcement is today . . . and what it is not.
Siemens paid bribes in China, Russia, Venezuela, Mexico, Israel, Bangladesh, Nigeria, and Vietnam. Across the developing world, Siemens corrupted the key sectors of infrastructure and health care. And perhaps most egregiously, they bribed the Saddam Hussein government through the Oil for Food Program, circumventing economic sanctions and undermining the world’s attempt to destabilize that regime.
But read the government’s filings and press releases. They speak of “inadequate internal controls,” “off-books accounts,” and “tone at the top.” They fault Siemens’ compliance program, and decry its culture of treating bribes “as a cost of doing business.” The government asserts that rigorous FCPA enforcement will “level the playing field,” making it “fair to those who seek to participate in it.”
Can you see the disconnect? “Fair to those who seek to participate in it”? What about fairness to the citizens whose laws were circumvented with bribes?
The government’s filings hardly talk at all about the countries in which Siemens paid bribes. They’re almost silent — not completely, but almost — on the harm that these bribes may have done to the economic, legal, and social development of these countries.
Reading these documents, one could quite reasonably infer that we think of bribery primarily in terms of the perpetrators, rather than the victims. I want to argue that FCPA talk is today dominated by what we might call a discourse of white-collar-crime.
So what? After all, defenders will say, we only have jurisdiction over the payors. But that is utterly beside the point. I’m not suggesting that the FCPA can reach the bribe solicitors (though I generally applaud the DOJ’s efforts to do so by other means).
I’m not talking about the other perps at all. I’m talking about the victims.
We’re just doing our job, the government will say. And to be fair, they’re right. This series of posts is less a criticism of the DOJ and SEC than it is a criticism of the intellectual paradigm in which the enforcement agencies now operate. Those now in office did not create this paradigm; they did not invent the white-collar-crime discourse of FCPA enforcement. It was shaped by much broader historical and political forces, as we’ll discuss.
Can the FCPA help bribery’s true victims? I can show that it was originally designed to do that very thing. And, on very rare occasion, we’ve used it creatively to do just that. But there is no reason, legal or practical, why we could not do more of it now. And as Wal-Mart will shortly remind us, there are plenty of reasons why we should try.