Those who believe in the fundamental value of anti-corruption law do not now know what the future holds. And that is exactly the point. The theme of this election has been unpredictability, and nowhere is that more true than in FCPA enforcement.
Still, we may well feel the need to seek out assurance in unexpected places. To that very end I may now become the world’s first — and perhaps last — writer to put Donald Trump and Nelson Mandela in the same sentence without contrast. But doing so yields a deep and comforting truth, one already manifest just a few days post-election.
In his irresistibly powerful autobiography, Long Walk to Freedom, Mandela writes candidly of his early days as a radicalized Marxist youth. His anti-establishment extremism was unrestrained, his criticism acerbic and relentless. But when he achieved a position of senior leadership in the African National Congress, something changed.
I had moved from the role of a gadfly within the organization to one of the powers I had been rebelling against. It was a heady feeling, and not without mixed emotions. In some ways, it is easier to be a dissident, for then one is without responsibility. As a member of the executive, I had to weigh arguments and make decisions.
Mr. Trump is now making a similar transition, from self-styled dissident to Chief Executive. It is way beyond heady. And in areas such as health care, immigration, and financial regulation, his radicalism is already fading. He increasingly sounds like one who recognizes the difference between a TV personality and the POTUS.
What does this mean for FCPA enforcement? Nobody knows; unpredictability will remain our mantra for some time. So we who are engaged in the global anti-corruption movement should not cry wolf, at least not yet. We might follow the admonitions of such diverse figures as Hillary Clinton and LeBron James, and wait to see what happens next.
The Nelson Mandela we all remember and miss was a Mandela tempered by time and experience. Dissident Mandela and President Mandela were very different Mandelas indeed, different in ways that many would now like to forget. I too would like to forget much of the last many months. We should hope that President Trump will give us a reason to do so.
Andy Spalding is a Senior Editor of the FCPA Blog and a Professor at the University of Richmond School of Law.
One good thing about the FCPA is that it brings in a lot of revenue to the US treasury. The fines and disgorgement (in the hundreds of millions in total) far exceed whatever it costs to investigate these cases, where much of the investigative leg work is done by the outside counsel who conduct the internal investigations. This should impress Mr. Trump and his security law advisors. Also, the cases arise because the company has engaged in bribery, and the penalties are supposed to be based in large part on the value of the contracts that were obtained through bribery. This tends to undercut the argument that shareholders should not be indirectly penalized by the large FCPA recoveries against public companies.
I absolutely agree with Professor Andy Spalding.
I take Professor Spalding’s point that we don’t know what the next administration’s approach to FCPA enforcement will be. However, this article’s comparison of Nelson Mandela and Donald Trump is off-base and offensive.
Mandela was a freedom-fighter who dedicated and risked his life to ending the brutal oppression of his people by a regime intent on stripping the majority of South Africans of their dignity and rights. In no respect can he be compared to a man whose campaign fostered divisiveness, bigotry and hate. Even to characterize Mandela’s actions to end apartheid and the suffering he endured as a result of “anti-establishment extremism” shows the writer doesn’t get it.
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