We’ve shown in the last two posts (here and here) how the Supplemental Transparency Project retains the punitive and deterrent effect of criminal penalties while still advancing the goals of international commerce. But what’s in it for the host countries, whose citizens are bribery’s true victims?
A forensic accountant in Mumbai once asked me what happened to the proceeds of FCPA enforcement. When I told her with some embarrassment that they went straight to the U.S. Treasury, she asked, “who does that help?”
The STP could be our reply. We’d set aside a portion of the settlement money to directly benefit the victims, using a variety of techniques designed to expose bribery and promote transparency across the world. Overseen by an international NGO, we’d use the settlement money to remedy past harms and prevent future harms. We’d clean up the environment, improve compliance with safety regulations, and repair damaged markets. We’d fund further investigative reporting to see who else, besides the Wal-Marts, are paying bribes; let them feel the full force of public pressure. We’d issue a public report that truthfully explained who accepted, or solicited, the bribes, thereby exposing the pre-existing corruption while also apologizing for the defendant’s complicity. And we’d have international experts go into the host country’s educational institutions to train a new generation of law and business leaders.
The STP advances the policies of the federal government. It furthers the interests of the Chamber of Commerce. And it requires no congressional authorization of any kind. There is simply no push back here, but from inertia.
This blog series is a plea — impassioned and idealistic, but eminently realistic — to enter what we might call a Third Period in anti-bribery history. The first was the Period of Enactment: it began in 1977 and reached its apex in the late 90s. The second is the Period of Enforcement: it began in the early- to mid-2000s and continues today. What’s next? What will the historians say? As surely as enactment should lead to enforcement, enforcement should lead to remediation.
Our aim, let’s remember, is to prevent bribery. But not just among ourselves: in those countries that now find themselves at pivotal times in their history, that seek to build democratic and free-market institutions. In other words, the countries in which we now do business and where bribery allegations typically arise. Current enforcement does some good there; but we could do so much more. And if there’s a better, more practical, more promising way than the STP, I’d really love to know what it is.
Let’s be bold, and creative. Let’s solve problems. We invented this law, and we can get it right. We can do more than just wash our hands of other countries’ bribery. We can make the world better. It’s what the FCPA was for. It’s what the FCPA is for.
Wal-Mart’s Victim’s Part I can be viewed here, II here, III here, IV here, V here, VI here, VII here, VIII here, IX here, X here, XI here, XII here, XIII here, XIV here, XVa here, XVb here, XVI here, XVII here, XVIII here, XIX here, XX here, and XXI here.
Andy Spalding is a senior editor of the FCPA Blog.