A Look Back in Time

Literally, Time Magazine that is.

In connection with my work in progress on the FCPA's legislative / early history, the below articles from Time's searchable archives caught my eye. (See here).

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In November 1979, Time carried a piece (here) about the DOJ's new program to offer advice on the FCPA - what has come to be called the FCPA Opinion Procedure Release. The article contains this quote from Stanley Sporkin, the SEC's then Enforcement Chief: "We do not have guidelines for rapists, muggers and embezzlers, and I do not think we need guidelines for corporations who want to bribe foreign officials." Fast forward 30-some years and Sporkin is still on the FCPA scene. It was recently reported (here) that Sporkin is assisting former FBI Director Louis Freeh as the monitor in the Daimler enforcement action. Among the monitor's duties is "review[ing] and evaluat[ing] the effectiveness of Daimler's internal controls, record-keeping, and existing or new financial reporting policies and procedures as they relate to Daimler's compliance with the books and records, interal accounting controls and anti-bribery provisions of the FCPA, and other applicable anti-corrption laws." (See here Appendix D).

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Almost as soon as the FCPA was passed, concerns were raised that the law was harmful to U.S. business. There was much activity on this issue in the early 1980's as evidenced in this article from October 1980, this article from March 1981, this article from March 1981 as well, and this article from June 1981.

These articles detail, among other things: (i) that the Carter administration (Carter signed the FCPA into law in December 1977) "sent a hefty 250-page report to Congress on the various ways the U.S. discourages exporters" - one example - "the provisions of the 1977 Foreign Corrupt Practices Act, which have never been clearly spelled out by the Justice Department." (ii) that the GAO released a report in 1981 (see here for a prior post) detailing how the FCPA "is riddled with complicating ambiguities and shortcomings" including the key "foreign official" element; and (iii) that President Reagan's "transition team on the workings of the Securities and Exchange Commission [...] has recommended decriminalization of bribery."

At to this last point, Time notes:

"Such a stance by the Administration toward foreign bribery would itself cause problems. By failing to enforce the act as written, the Administration not only would leave the legislation's ambiguities unresolved, but would show a disrespect for the law, which is itself corrupting. Since the U.S. has adopted a moral position with regard to foreign bribery, neither the Administration nor Congress can now afford to let the subject wither away without compromising its principles in the process."

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In response to Forbes recent FCPA article (see here), the Wall Street Journal Law Blog asked (see here) "is the FCPA just a full employment act for the private bar." Such a question as it relates to the FCPA is not new. This March 1981 Time piece notes that the FCPA was "dubbed by one Wall Street wag" as the "Accountants' Full Employment Act of 1977."