A scholar comes to our rescue

Dear FCPA Blog,
 
I am an Assistant Professor of Political Science at York University in Toronto, Canada. I follow the FCPA Blog, as I have been researching in the areas of transnational crime and corruption, and especially transnational bribery, for quite some time. (My PhD thesis (2005) was on compliance with the OECD Anti-Bribery Convention in the United States, Germany, France, and the United Kingdom.)
 
I recently published an article on the FCPA, which I thought might interest you. It is pitched at a scholarly audience in international studies and framed within theoretical debates concerning the study and explanation of foreign policy, but it includes an explanation of the origins and early trajectory of the FCPA. Short answer, in response to the question you pose in your blog post of September 2: it did so for norm-driven reasons and constraints, notwithstanding significant material costs in strategic trade.
 
Best,
 
Ellen Gutterman, PhD
 
Assistant Professor, Department of Political Science
Glendon College, York University
2275 Bayview Avenue, Toronto, ON M4N 3M6
416-736-2100 x 88582

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From the editor . . .

Here’s an excerpt from Professor Gutterman’s excellent article:

A deeply held American norm against corruption made continued state support for “foreign corrupt practices,” as well as any repeal of the FCPA’s anti-bribery provisions, politically untenable—regardless of the material, strategic trade benefits offered by such a move. In particular, high public sensitivity to the norm against corruption—conceptualized as norm resonance—in the wake of the Watergate scandal in the mid-1970s limited the potential range of “appropriate” policies regarding transnational bribery. Congress passed the FCPA in the context of a heightened focus on ethics in government and business that was part of the political fallout of the Watergate scandal. In Watergate’s aftermath, amidst increased public sensitivity to issues of corruption in business and government, repealing provisions of a law that banned bribery became “easier done than said” (Chapman 1998). That is, policymakers would have done it were they not required to provide reasons in the course of democratic deliberation to justify and defend corrupt practices. When called on to justify their support of foreign corrupt practices, as judges must give reasons when departing from a legal precedent, policymakers could not do so under the terms of the highly resonant norm of anti-corruption and were therefore constrained to endorse a materially costly policy.

The full article, “Easier Done Than Said: Transnational Bribery, Norm Resonance, and the Origins of the US Foreign Corrupt Practices Act,” can be viewed and downloaded here.