Payments to government employees in exchange for the performance of a non-discretionary function such as issuance of a license or a permit occur far more often than bribes to government officials in exchange for assistance in winning a government contract.
Thus far, this question has been discussed as if it were a strictly legal issue to be determined by the courts. However, as more individuals are charged with FCPA violations, and more cases go to trial, the courts are likely to deem this issue a factual question to be decided by a jury. This is because the government must show that any payment was for the purpose of retaining of obtaining business. This is an essential element of the crime which the government must demonstrate beyond a reasonable doubt.
Moreover, whether a payment was made to “secure” or “expedite” “routine government action,” and thus excluded from the reach of the FCPA, necessarily opens the door to the defense presenting testimony concerning the foreign nation’s vastly different political culture. If a U.S. corporation is legally entitled to be issued a permit to build a hospital but cannot get the permit without making a significant payment to a government official, the defense should be entitled to show that such payments are required of all similarly situated businesses in order to prove that the company was not getting a leg up on the competition by bribing the official.
If the U.S. Department of Commerce is encouraging U.S. corporations to invest in nations where our government knows business cannot be conducted without making such payments, the defense should be entitled to present such facts, not to prove that the government condones violation of the law, but to show that in these circumstances, the U.S. government does not believe that such payments violate the FCPA.
A number of issues remain. Is facilitation an element to be disproved by the government or is it a defense? What quantum of proof must be presented in order to argue the issue before the jury? Who has the ultimate burden of proof? Unfortunately finding the answers to these and other questions will require putting human beings through the trial and error of our criminal justice system.
Jon May, above, practices white collar criminal defense before federal courts throughout the United States. He is a former Chair of the White Collar Crime Section of the National Association of Criminal Defense Lawyers. He's the author of The New British Invasion: Will the UK Bribery Act of 2010 Eclipse the FCPA, The Champion, March, 2012 (here). He can be contacted here.