There is a double standard in U.S. bribery law. 

Over the last decade, the Supreme Court has narrowly interpreted domestic bribery laws. 

This weakened application of the federal domestic bribery law now stands in stark contrast to the robust and expansive prosecutions of bribery under the Foreign Corrupt Practices Act (FCPA), which seeks to limit U.S. entities’ ability to bribe foreign public officials. 

The result is that those who seek to improperly influence domestic public officials are often able to engage in behavior that looks and smells like bribery, but is not bribery. Similar behavior in the foreign context, however, is punished by the FCPA.

That’s the take of Stanford Law School’s Anna Mance and Dinsha Mistree in a new law review article titled – The Bribery Double Standard: Leveraging the Foreign-Domestic Divide. 

“The Supreme Court has begun to interpret the domestic U.S. bribery law in a very narrow way,” Mance told Corporate Crime Reporter in an interview last month. “The Court is asking – does certain behavior of public officials constitute official acts? And the interpretation of that term has been narrowed to the point that almost any act could not be considered an official act.”

“So you can engage in all sorts of behavior as an elected public official that appears to be bribery, looks to be bribery, smells like bribery, but it technically does not run afoul of the law.”

“On the other hand, the FCPA has been highly effective at tackling bribery. Prosecutions of the FCPA have been increasing since its inception. And thus the double standard. The courts in the United States have been increasingly reticent to enforce domestic bribery laws, while the FCPA is being strictly enforced.”

The Supreme Court has played a big role in gutting the domestic law. A key case was the federal government’s corruption case against the former Governor of Virginia Robert McDonnell.

“The McDonnell case involved allegations that, as Virginia’s governor, Bob McDonnell had accepted gifts and loans, from a friend who owned a company and was seeking to get support from the Governor for that business.” 

“In exchange for Bob McDonnell providing access to public officials with decision-making power, throwing events at government business to advertise the company, and encouraging subordinates to buy the products, the friend gave McDonnell and his wife a series of gifts that included ball gowns for his wife, watches, access to fancy cars, vacations and money to repay debts. At the time, McDonnell was in significant debt following his latest campaign for governor.” 

“The lower court held that Bob McDonnell had in fact engaged in an official act by using his position as Governor to help his friend and promote his businesses. The Supreme Court reversed that decision, saying that this did not constitute an official act. They took the view that anybody in his position might be expected to host a party at some point or make a phone call. The Court wasn’t willing to say all of these things were official acts. The McDonnell case restricted the scope of an ‘official act.’” 

“And the fallout from that decision was that a number of officials who had been convicted of bribery in the past or who were then standing trial or awaiting trial were able to use the McDonnell decision to challenge their own convictions or charges against them.”

The case that best encapsulates your article is the case of Congressman William Jefferson. He was cleared of the domestic bribery charge but convicted of an FCPA charge. 

“The FCPA doesn’t use the term official acts. They instead refer to improper advantage. The FCPA takes a more expansive approach to bribery. The domestic law is focused on this specific definition of official acts.” 

What do you propose to remedy the situation?

“We suggest taking features of the FCPA and incorporating them into the domestic bribery law. If we were to borrow from the FCPA, that would bring the foreign and domestic laws more in line with each other.”

“In our view, our bribery law should not be so narrowly defined and not so focused on what constitutes an official act because the effect is that a lot of bad behavior goes unpunished. The FCPA takes a more expansive view about what constitutes bribery by focusing on the more expansive concept of improper advantage. It also has certain unique features that allow the government to tackle bribery, both proactively and after the fact.” 

“For instance, the FCPA enables the Attorney General to issue guidance and opinions within 30 days of a request. It’s a quicker, faster, more agile way to give feedback to companies or individuals before an act is committed.” 

“It can help to prevent a violation from occurring in the first place. If a violation does occur, it’s also easier to enforce after the fact because the government is looking for whether there was an intent to gain an improper advantage – the definition isn’t so confined to whether or not something was an official act.” 

Have there been any efforts in Congress to address this double standard?

“To our knowledge, bribery reform has been overlooked. HR 1, which is the current good governance legislation, excludes bribery reform. Part of the reason we wanted to focus on this issue is we wanted to call attention to the fact that bribery is a pressing and recurring problem. The current efforts at good governance reform have ignored bribery reform.”

Why is that?

“I wouldn’t want to speculate.”

[For the complete Interview with Anna Mance, see 35 Corporate Crime Reporter 24(15), June 21, 2021, print edition only.]