Foreign Corrupt Practices Act (1977)

Jonathan S. Berck

Aseries of corruption scandals in the early 1970s led to the Foreign Corrupt Practices Act of 1977 (FCPA) (P.L. 95-213 91 Stat. 1494), which prohibits bribery of foreign officials by American and certain other companies. The act has been controversial since its enactment, with some critics attacking it as ineffective and the American business community complaining that it places U.S. enterprises at a competitive disadvantage abroad. Since the late 1990s, however, it has become a model for international efforts to stamp out corruption and improve the business climate in the developing world.

BACKGROUND

In the 1970s a complex of scandals collectively known as Watergate consumed both government and public attention. Misdeeds committed during the administration of President Richard M. Nixon prompted investigations, including scrutiny of the conduct of major American corporations with close ties to the administration. Investigators learned of hidden slush funds and substantial payments of bribes by over 400 U.S. companies to foreign officials or political parties to obtain major contracts or other advantages. Following extensive hearings, Congress enacted the FCPA in 1977. Significant amendments followed in 1988 and in 1998. The 1998 amendments incorporated technical changes required by the anticorruption treaty of the Organization of Economic Cooperation and Development (OECD) that went into effect in 1999.

In addition to the anticorruption fervor that swept the United States in the post-Watergate period, the major justification for enacting the FCPA was the belief that bribery is also an economic evil. In this view, bribery is a hidden cost of doing business, and the award of business for other than economic reasons distorts competition. Those most concerned about bribery believed that contracts should be awarded only on the basis of the merits of products and services as well as fully disclosed prices.

MAJOR PROVISIONS

There are three significant parts to the FCPA: prohibitions on activities, reporting requirements, and an exception for small "grease," or facilitating payments.

Prohibitions. The FCPA bars U.S. companies from "corruptly" offering, paying, promising to pay or authorizing the payment of money or other things of value to any foreign official in order to (1) influence any act or decision by the official, (2) persuade the official to do anything contrary to his or her duty, (3) secure any "improper advantage," or (4) induce the official to use his or her influence with a foreign government to influence its acts or decisions, in each case for the purpose of "obtaining or retaining business" or directing business to any person. A parallel section covers the same acts when made to political parties or candidates. Penalties include fines of up to $2 million against the company and up to $100,000 against officers or directors, as well as prison terms of up to five years. The U.S. Department of Justice generally is responsible for prosecuting violations of these provisions.

For a company to be found guilty of violating these prohibitions, there must be some sort of "quid pro quo"—some exchange of value for advantage. The "corrupt" requirement makes guilty intent an element of the crime. In short, it is very hard to violate the FCPA inadvertently.

The FCPA provides two primary defenses to an accusation of bribery: a company can claim (1) that the offending act was in fact legal under the written laws of the foreign country, or (2) that the act was a "reasonable and bona fide" expenditure directly related to promotional activities or to the execution or performance of a contract with a foreign government.

Reporting Requirements. The FCPA also has provisions requiring publicly held companies to fully record and report to investors and the Security and Exchange Commission (SEC) all expenditures made in violation of the prohibitions described above. In addition, such companies must have policies in place to ensure that all transactions comply with management's directions and are recorded in accordance with generally accepted accounting procedures. The SEC generally enforces these provisions. Civil liability to company shareholders is also possible. The penalty for violation of the reporting requirements is civil fines. There are no criminal penalties unless the violation was knowing or willing.

These requirements were a reaction to the revelations about secret slush funds maintained by companies involved in the bribery scandals, as well as bribes disguised to look like legitimate transactions. Given the intent requirement of the prohibitions described above, it is generally easier to prove misrepresentation in the financial statements than that an actual "quid pro quo" transaction has occurred. Put another way, these requirements provide a basis for prosecuting a wrongdoer even if the basic crime cannot be proved, much as the gangster Al Capone was finally jailed for tax evasion rather than for more blatant criminal activities like gang shootings.

"Grease" or Facilitating Payments. The 1988 amendments to the FCPA responded to businessmen's complaints that minor officials in many underdeveloped countries demanded small payments, known as "grease"—whether in the form of fees, tips, or gifts—for the provision of routine services such as the issuance of visas, licenses, and permits, as well as for speedy service. These payments, no matter how minor, were illegal under the FCPA as originally enacted. As a practical matter, American business interests were having trouble even getting into countries where petty corruption was common. Congress therefore loosened the FCPA slightly, to permit such payments for the provision or expedition of "routine government action," so long as the payments were not made for the purpose of influencing the award or retention of business.

CRITICISM

A major rationale for the FCPA was the notion that eliminating corruption would create a level playing field for free competition. American businessmen, though, complained bitterly that in fact the opposite was created: U.S. business was placed at a competitive disadvantage as only U.S. companies were barred from paying bribes, whereas no such restrictions were in place for companies from other countries. The result, these critics charged, is that major contracts went to foreign companies willing to engage in graft.

Other critics attacked the FCPA as being ineffective. They charged that open bribery is prohibited, whereas more sophisticated forms of exerting influence continue to be perfectly legal. For example, payments of charitable contributions or the tacking on of extraneous goods and services outside the economic scope of a contract often serve the same purpose of a corrupt appeal for business. Similarly, the defense of expenditures for bona fide promotional activities can easily be abused. In this cynical view, all the FCPA requires is that companies act in a more refined way than handing over a suitcase filled with cash.

THE OECD ANTIBRIBERY CONVENTION

The complaint that the FCPA created a competitive disadvantage for American businessmen was addressed through the adoption of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the OECD, which went into effect on February 15, 1999.

This convention, ratified by thirty-four countries as of 2003, requires participating countries to make it a crime to offer, promise, or give a bribe to a foreign public official to obtain or retain international business deals, and is based in large part on the FCPA. A related text effectively puts an end to the practice according tax deductibility for bribe payments made to foreign officials—a practice that used to be accepted in many major trading countries, such as Germany.

Building on the OECD Convention, many programs for the provision of aid in the form of grants or loans from developed countries to the developing world insist that the latter put reforms in place to prevent corruption, so that the aid reaches its targets and goes to the purposes earmarked by the donors rather than into the pockets of corrupt officials. In this way, developed countries seek to further create a level playing field for open competition for international contracts in an increasingly globalized world.

See also: Bribery Act.

BIBLIOGRAPHY

Goldbarg, Andrea. "The Foreign Corrupt Practices Act and Structural Corruption." 18 Boston University International Law Journal 273 (fall 2000).

Johnson, J. Lee. "A Global Economy and the Foreign Corrupt Practices Act: Some Facts Worth Knowing." 63 Missouri Law Review 979 (fall 1998).

INTERNET RESOURCE

Transparency International. Business Principles for Countering Bribery. <http://www.transparency.org/building_coalitions/private_sector/business_principles.html>.

FOREIGN CORRUPT PRACTICES ACT OF 1977

The Foreign Corrupt Practices Act of 1977 (FCPA) evolved from investigations by the Office of the Special Prosecutor that provided evidence of illegal acts perpetrated by U.S. firms in foreign lands. More than 400 U.S. companies admitted to making questionable payments to various foreign governments and political parties as part of an amnesty program (U.S. Department of Justice, http://www.usdoj.gov). Given the environment of the 1970s and the proliferation of white-collar crimes (e.g., insider trading, bribery, false financial statements, etc.), particularly the payments made to foreign officials by corporations, Congress felt obligated to introduce legislation that led to the act. Congress's objective was to restore confidence in the manner U.S. companies transacted business.

THE ACT

The FCPA is unique. Throughout history, governments have had laws making it illegal for governmental officials to take a bribe. One basic provision of the FCPA is that it prohibits U.S. partnerships, companies, and organizations from not only giving payments but also offering or authorizing payments to foreign officials or political parties with the objective of encouraging or assuring business relationships.

There are two types of bribery provisions. The first prohibits any bribes made directly by the U.S. company. The second prohibits any organization from knowingly arranging for a bribe through an intermediary. Many thought that the FCPA would place U.S. companies at a disadvantage in the international marketplace because they could no longer influence foreign governments, officials, political parties, or candidates through gifts or payments. There has been no conclusive evidence that this has actually happened.

The FCPA includes record-keeping provisions for companies not involved in criminal conduct. These provisions were an amendment to the Securities and Exchange Act of 1934. The FCPA amendment requires all firms under the jurisdiction of the Securities and Exchange Commission (SEC) to maintain an adequate system of internal control whether or not they have foreign operations. This provision of the act applies to issuers of registered securities and issuers required to file periodic reports with the SEC.

ACCOUNTING PROVISIONS

The accounting provisions require companies to "keep books and records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets." The purpose of this accounting provision is to make it difficult for organizations to "cook the books" or use slush funds to hide any corrupt payments. Representative means for transfer of corrupt payments included:

• Overpayments
• Missing records (no receipt)
• Unrecorded transactions
• Misclassification of costs (bribes recorded as consulting fees or commissions)
• Retranscription of records

The accounting provisions include a requirement that companies design and maintain adequate systems of internal accounting controls that provide reasonable assurance that:

• Transactions are executed in accordance with management's authorization
• Transactions are recorded as necessary
• Access to assets is permitted only in accordance with management's authorization

Any internal document that misrepresents the actual nature of a financial transaction could be used as the basis for a charge that the "books and records" section of the FCPA has been violated.

ENFORCEMENT

Enforcement of the act is shared. Civil and criminal enforcement of the bribery provisions for those not required to file with the SEC rests with the Department of Justice. Responsibility for civil enforcement of the bribery provisions for those who have SEC filing requirements rests with the SEC.

In 1988 the FCPA was amended to allow for "facilitating payments" for expediting routine governmental action. These payments are distinguishable from corrupt payments in that these "grease payments" are for facilitating the performance of officials who are obligated to perform said duties. Questions regarding this amendment, affirmative defenses, or other provisions of the FCPA should be directed to counsel, or companies may wish to use the Department of Justice's Foreign Corrupt Practices Act Opinion Procedure. Under this procedure, upon receiving a question from a company or individual, the attorney general has thirty days to issue an opinion regarding the inquiry. The objective is to alleviate uncertainty regarding acts covered by the FCPA.

PENALTIES

The FCPA provides penalties for violations. Criminal penalties for bribery violations include fines of up to $2 million for firms; fines of up to $100,000 and imprisonment of up to five years for officers, directors, and stockholders; and fines of up to $100,000 for employees and agents (fines imposed on individuals cannot be paid by companies). The SEC or attorney general may also bring actions that lead to civil penalties. Also, the act's penalties do not supersede penalties or fines levied under the provisions of other statutes. A violation of the bribery provisions of the FCPA may give rise to a private cause of action for treble damages under RICO (Racketeer Influenced and Corrupt Organizations Act).

The penalties can have long-term ramifications for companies. For example, a company found guilty of violating the FCPA may be barred from doing any business with the federal government. A company indicted for an FCPA violation may not be eligible to obtain various export licenses.

COMPLIANCE

Clearly, large multinational corporations cannot monitor every transaction of every dollar amount by every employee. However, companies do have a due-diligence obligation to implement adequate systems with sufficient internal controls. Key ways to avoid violation and liability include establishing policies and procedures that provide reasonable assurance that the business is adhering to the act's provisions. Suggested due-diligence steps for compliance with the FCPA include the following:

• Utilizing the compliance program under the Corporate Sentencing Guidelines Act
• Performing a risk evaluation of locations known for unethical business practices
• Performing risk evaluation of employees/agents who operate out of the home country
• Assuring that personnel who work out of the home country are knowledgeable regarding the provisions of the FCPA
• Assessing internal controls to be assured they are sufficient
• Monitoring internal controls, including reviews by auditors
• Reviewing critical transactions, such as those related to consulting services
• Establishing a procedure requiring that critical employees, vendors, and contractors provide written statements that they are in compliance with the requirements of the FCPA

SUBSEQUENT DEVELOPMENTS

On November 1, 1991, the Corporate Sentencing Guidelines Act was enacted. The guidelines appear to be a direct descendent of the FCPA. The guidelines for organizations "are designed so that the sanctions imposed upon organizations and their agents will, taken together, provide just punishment, adequate deterrence, and incentives for organizations to maintain internal mechanisms for preventing, detecting, and reporting criminal conduct" (U.S. Sentencing Guidelines, chapter 8, intro. comm., appendix p. Al).

In most corporations, accountants and auditors have responsibility to prevent, detect, and report errors and irregularities. The Corporate Sentencing Guidelines are legislation to deter white-collar crime. The guidelines' major objective is requiring organizations to monitor business activities to detect criminal conduct within their own ranks.

The guidelines allow organizations to use mitigating factors to reduce their exposure to fines. One mitigating factor is maintaining a corporate compliance program. The corporate compliance program is to be the responsibility of an officer or high-level employee. Elements of the compliance program include:

• Established standards and procedures
• Communication of the standards to employees
• Systems designed to detect criminal conduct
• A reporting system in place whereby individuals may report criminal conduct
• Disciplinary mechanisms that are consistently enforced

FURTHER GUIDANCE

Information regarding the FCPA or the Foreign Corrupt Practices Act Opinion Procedure may be obtained from the U.S. Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530-001, (202)514-2000.

see also Fraudulent Financial Reporting; International Trade

Charles H. Calhoun