As the FCPA Blog reported last week, DOJ criminal division chief Leslie Caldwell recently gave an important talk at Duke Law School in which she laid out her vision of the Foreign Corrupt Practices Act. Her vision is compelling, and important, in so many ways. I rise in defense of one of them.
Caldwell said, in relevant part,
“Corruption thwarts economic development, traps entire populations in poverty, and leaves countries without a credible justice system. Corrupt officials who put their personal enrichment before the benefit of their citizenry create unstable countries.”
In other words, the FCPA is not merely about corporate governance. Reading so many of the recent settlement documents — replete with references to internal controls and tone at the top but no mention of overseas impact — it’s easy to believe that all we’re trying to do is reform companies.
Not so, says Caldwell.
It is also tempting to believe — as scholars and commentators have sometimes suggested — that we don’t want our companies investing in corruption-prone countries. If the country isn’t clean, then we shouldn’t be there, so the argument goes. Better to wash our hands of it. Leave them to their own devices.
Not so, says Caldwell.
Quite the contrary. The aim of the FCPA is to engage. It’s a foreign policy tool. A tool for what? For building institutions committed to transparency, accountability, fairness, and stability. For creating the conditions that we believe tend to promote long-term prosperity and freedom. And Caldwell is directly in line with the founding purposes of the FCPA — the mid-1970s legislative history is chock full with the themes she articulates so well today.
Put another way, the FCPA is meant to improve the conditions in which people around the world live. It’s in our national interest. FCPA enforcement should help the true victims of corruption: the citizens whose governments fail them time and again. We’re trying to raise awareness, build political will, reform institutions.
Interesting premise. Now query: if we were to build an enforcement regime truly committed to the Caldwell Doctrine, what would it look like? Would we merely penalize corporations?
Or would we do more?
Andy Spalding is a senior editor of the FCPA Blog. He is an Assistant Professor at the University of Richmond School of Law.