As we saw in Part II, the government has come to think that the FCPA’s chief purpose is to “level the playing field.” And much criticism of modern enforcement, especially from the U.S. Chamber of Commerce, charges that it has failed to achieve that goal.
But the metaphor speaks volumes of the limitations in our current understanding of the FCPA. If U.S. businesses are the players, what then are the countries in which they do business? The spectators? Or the turf? Think about it for a second, and the metaphor starts to turn your stomach. Or it should. The predominance of that metaphor is perhaps the best evidence of what I call the discourse of white-collar crime that now controls FCPA enforcement. We talk about the bribe-paying companies quite a lot; we talk about the countries in which they do business much less so.
But we didn’t always think of the FCPA this way. When we originally enacted it in 1977, it was all about promoting liberal-democratic values in developing countries through commerce. We wanted to build free market and democratic institutions, and we feared that corporate bribery was undermining our effort, creating the conditions in which illiberal forces could gain influence. It was the Cold War, a clash of ideologies, one that we wanted to win.
But the Berlin Wall fell, the Cold War ended, and we stopped thinking about the FCPA as a tool for building liberal-democratic institutions. Go back and compare the congressional debates from the 1970s with the debates of the late 80s and late 90s. The paradigm completely shifted. Suddenly, it was about creating better conditions in which our companies could compete. It was about the level playing field. And most of us still think that way now.
Granted, the Cold War is over, but do stable governments and efficient markets now prevail across the developing world? If they did, we wouldn’t need the FCPA at all. The very existence of FCPA enforcement proves that there is much institution-building work to be done.
To be sure, the FCPA is doing some of that work now. But it could do a lot more, and far more efficiently. Let me explain.