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To its fans, it’s an undeniable force for good in a corrupt world, a groundbreaking anti-bribery statute that has brought powerful businessmen to heel for secretly paying off foreign government officials to win contracts abroad.
To detractors, the Foreign Corrupt Practices Act unfairly hobbles American companies while foreign rivals not so encumbered swoop in.
On Monday, President Donald Trump took a side.
“It sounds good on paper but in practicality, it’s a disaster,” Trump said while signing an executive order freezing enforcement of the law. “It’s going to mean a lot more business for America.”
The consequences could be dramatic, depending on Trump’s next move.
If he halts many prosecutions, essentially defanging the law, it could help U.S. businesses win deals abroad. But it also could tarnish America’s image, allow corrupt autocrats ruling over impoverished people to get even richer and lead France, Britain, Japan and other wealthy countries to weaken their own anti-bribery laws so their companies can make payments, too.
“We are facing a Wild West situation,” said Mark Pieth, a criminal law professor at the University of Basel in Switzerland and anti-bribery law expert. “It will be everyone against everyone.”
WHAT EXACTLY DOES THE LAW BAN?
The Foreign Corrupt Practices Act of 1977, or FCPA, prohibits people or companies operating in the U.S. from giving money or gifts to foreign officials to win or retain deals in those countries. The law doesn’t require that the bribe is actually paid, but only offered.
Punishment for conviction is imprisonment of up to 20 years, and companies face fines double their profits from the illicit deal. That has often meant hundreds of millions of dollars, sometimes billions, in payments.
HOW OFTEN HAS THE LAW BEEN USED?
The law has been used hundreds of times in the past decade to stop bribes to win deals, leading to massive settlement payments from multinationals like Goldman Sachs, Germany’s Siemens and the Swiss commodities trader Glencore.
But it’s real impact, experts say, is arguably not in the headlines, but what happens behind the scenes as the fear of punishment deters businesses from even thinking about bribes in the first place.
WHAT SPECIFICALLY DOES TRUMP THINK IS WRONG WITH THE LAW?
In a nutshell, Trump is claiming that so many others are corrupt, we’re fools for playing by the rules.
Specifically, Trump said the law is being enforced in “excessive, unpredictable” ways that U.S. companies are competing on an uneven “playing field” with foreign rivals. He also said the law was “draining resources” from law enforcement and harming U.S. national interests because companies were being held back from deals that would give the U.S. access to deep water ports, critical minerals and other assets.
Trump’s statements are reviving a criticism of the law that was common decades ago before other developed countries enacted their own bribery laws. More recently both Republican and Democratic administrations have embraced the FCPA not just as a way to stamp out U.S. corruption but to fight the kinds of conditions abroad that allow cartels and terrorist groups that act against U.S. interests to thrive.
WHAT EXACTLY DID TRUMP DO UNDER HIS EXECUTIVE ORDER?
Trump can’t overturn the law, but as head of the executive branch he can change the way it is enforced and shift resources to other Justice Department priorities.
His order puts in place a 180-day “pause” to all investigations under the FCPA while they are being reviewed. He also ordered no new ones be opened during that period. The order also says it will halt other Justice Department “actions” under the law, which might mean ongoing prosecutions though that is unclear.
Trump said the pause is also necessary to give his administration time to come up with new “reasonable” guidelines on how to enforce the law that don’t put U.S. companies at a disadvantage in striking foreign deals.
Duncan Levin, a criminal defense attorney, said he expects Trump will essentially kill the law by neglect.
“He can’t get rid of the law, but he can refuse to enforce it,” said Levin, who has represented high profile defendants Harvey Weinstein and Russian oligarch Oleg Deripaska. “I don’t think this is just a pause.”
WHAT KIND OF BRIBES WERE UNCOVERED UNDER THE LAW?
The FCPA was enacted after investigators at the U.S. Securities and Exchange Commission in the 1970s found more than 400 American companies making questionable or illegal payments to foreign officials to win business.
Since then the list of bribes brought to light by prosecutions is long and varied.
Last year, the military contractor RTX, formerly Raytheon, paid more than $300 million to settle charges it had allegedly bribed officials in Qatar by using a sham contract and other devices to hide its tracks.
In 2019, Walmart paid $282 million to settle charges from a seven-year investigation into allegations it won approval to open stores in Mexico, India and Brazil by bribing local officials, including one contact called the “sorceress” who had an uncanny ability to make permitting problems disappear.
WHAT DO OTHER COUNTRIES DO TO STOP BRIBERY?
Since the FCPA was enacted nearly 50 years ago, U.S. businesses have complained that it was hurting more than helping and unfair because bribes were commonplace in some countries. Then under U.S. pressure, allies in the Organization for Economic Cooperation and Development started enacting their own laws, especially after the Berlin Wall fell in 1989 and African and Asian countries formerly in the communist orbit opened their borders to business.
Eventually, 40 wealthy countries adopted anti-bribery laws based on the FCPA, according to University of Basel’s Pieth, including the ability to prosecute foreign companies operating in their countries for acts committed in a third country.
Therein lies another danger of Trump weakening the FCPA.
“If a U.S. company bribes because Trump is giving them the green light, the French and the British will jump on that company,” Pieth said. “It will be a mess.”
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