When Congress enacted the FCPA in 1977, the law, as Andy Spalding and others have said, was meant to protect America's foreign policy interests. Bribery scandals were bringing down governments in countries friendly to the United States, derailing American diplomacy and embarrassing its diplomats.
That's still a reason for the FCPA. But now there are others.
Almost no one in the mid-1970s voiced ethical concerns about bribery abroad. One who did was SEC Commissioner A.A. Sommer, who said "there are moral problems as well as legal problems that go far beyond simply the question of illegal payoffs to foreign officials."
But the moral problems Commissioner Sommer talked about didn't emerge as a reason for global anti-corruption laws and enforcement until the 1990s.
Why then? Both Transparency International and Global Witness were founded in 1993, the first year of Bill Clinton's administration. The NGOs, with encouragement from the United Nations, OECD, and U.S. State Department, shifted the debate about public graft. They started speaking for the victims -- the third-world poor who lack power and a voice.
Now we're seeing the next step in the global anti-corruption campaign -- celebrity advocacy.
“Bono’s model really worked,” George Clooney said this week. “There is more attention on celebrity than ever before -- and there is a use for that besides selling products.”
Bono -- frontman for the band U2 -- pushes for reform in Africa. And people listen. In late January, he used an Op Ed piece in Le Monde to challenge President Sarkozy of France, who's also chair of the European Union and president of the G-8 and G-20, to take leadership of the issue of transparency in the extractive industries.
Bono earlier had pushed for adoption of a "publish what you pay" law in the United States. The campaign worked. In December last year, the SEC proposed new rules as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The rules would require public companies engaged in the commercial development of oil, natural gas or minerals to disclose payments made to any foreign government, including a company owned by a foreign government or a subnational government.
In bringing his campaign to Europe, Bono said in his Le Monde Op Ed piece:
Africa is rich in natural resources yet it is rarely Africans (save some corrupt officials) who get rich off their extraction. Meanwhile the missing cash risks fueling conflict across the continent. Transparency could change that. It could re-route revenues to kickstart economies and invest in jobs, health and education.
The United States—prodded by activists like the ONE Campaign and visionaries like George Soros—recently passed historic legislation requiring energy companies to "publish what they pay" to officials. This is big. Could be even bigger than debt cancellation, in terms of the money it frees up for Africa's fight against poverty. It doesn't cost the U.S. a single dollar, and it wouldn't cost France or Europe a single Euro to enact the same law and make it binding.
How did President Sarkozy respond? With an emphatic Yes.
In a letter to Bono he said:
In your article, you bring up the need for transparency in the area of natural resources' extraction in Africa. I completely agree with you. France is organising an experts' conference on this issue in March in Paris. As of now, I have decided to ask the European Union to adopt, as speedily as possible, legislation to compel industries in the extractive sector to disclose their payments to all countries in which they operate.
The FCPA hasn't changed much since 1977. But the reasons for its enforcement have. That's what the NGOs, and now Bono, are talking about.