Who are the people asking tough questions about the FCPA and wanting to make some changes to it? Well, at least three of them are former hot-shot prosecutors.
At Tuesday's senate hearing on the FCPA, for example, the DOJ's Greg Andres faced tough questions from Senator Arlen Specter.
Before starting his senate career in 1980, Specter was Philadelphia’s "tough district attorney," according to his official bio. He's a former chair of the senate judiciary committee and chairs the judiciary subcommittee on crime and drugs. He wrote the Terrorist Prosecution Act, the Armed Career Criminal Act, and the co-authored the Second Chance Act.
At Tuesday's hearing that Specter chaired, two of the three non-DOJ witnesses were former top prosecutors. Michael Volkov served for more than 17 years in the U.S. Attorney’s Office in D.C., for 5 years as the chief crime and terrorism counsel for the senate judiciary committee, and for 6 years as a deputy assistant attorney general and a trial attorney in the antitrust division of the DOJ.
Andrew Weissmann was the director of the Enron task force, the chief of the criminal division of the U.S. Attorney’s Office for the Eastern District of New York, and special counsel to the director of the FBI.
Specter, Volkov, Weissmann -- not a gadfly, pundit, or crackpot among them -- all think the FCPA needs fixing, or at least some fine-tuning.
Senator Specter, for example, wants to know why the DOJ is fining corporations hundreds of millions of dollars but not indicting any of their leaders or employees. Michael Volkov wants to know why clients have to call him to ask if they can pay the taxi fare for a nurse from an overseas government-run hospital who's in the U.S. attending a conference. Andrew Weissmann, meanwhile, wonders why corporations that do everything right to stop corruption can still be punished because a single, low-level employee went off the rails.
Weissmann, we thought, put it best when he said, "It is unfair to hold a business criminally liable for behavior that was neither sanctioned by or known to the business. The imposition of criminal liability in such a situation does nothing to further the goals of the FCPA; it merely creates the illusion that the problem of bribery is being addressed, while the parties that actually engaged in bribery often continue on, undeterred and unpunished. The FCPA should instead encourage businesses to be vigilant and compliant."
At Tuesday's hearing the DOJ stuck to its script. That didn't include talking about what might be wrong with the FCPA and the way it's enforced. But at some point, maybe soon, the DOJ will either be inside the tent, working with others to fix the FCPA in the best ways possible, or outside the tent and looking in.