President Trump still acts more tycoon than politician, so it isn’t entirely surprising to read of his efforts to weaken the Foreign Corrupt Practices Act (FCPA).
But at the same time, and especially from an optics standpoint, it is a shock to see any president put the world’s strongest anti-corruption law in his crosshairs. White House economic advisor Larry Kudlow told reporters Jan. 17 that the Trump administration is “looking at” making changes to the FCPA, days after an excerpt from a recently released book included alleged quotes from the president calling the law “unfair” and suggesting he would repeal it through executive means.
As it stands, the FCPA, enforced by the Securities and Exchange Commission and the Department of Justice, provides a guideline for compliance officers to follow in the worldwide fight against corruption. Even as other countries come up with their own laws, such as the U.K. Bribery Act, the FCPA’s power to cross borders (think the United States’ role in the record-setting $4 billion Airbus bribery settlement) helps keep anti-corruption compliance straightforward, unlike the potential mess on the horizon in the United States with individual state privacy laws.
In an effort to avoid being political, we’ll keep focus on the compliance element in play here. Consider life without the FCPA; how do you incentivize your business to do the right thing when you lose the potential for repercussions? That’s an arrow in the quiver of every compliance officer—gone (if Trump gets his way).
And that arrow has never been more fear-inspiring than it is now. An $850 million penalty handed down to Russian telecommunications provider Mobile TeleSystems in March 2019 cracked FCPA top-five territory, only to be dwarfed in December when Swedish telecommunications giant Ericsson settled for north of $1 billion for its violations.
Still reigning supreme is the approximately $1.78 billion penalty Brazilian state-owned energy company Petrobras was hit with in September 2018, and when you add Swedish telecommunications company Telia’s $965 million settlement in September 2017, the four largest FCPA enforcements money-wise have all occurred in just over a two-year period.
Back to Ericsson, the latest of the FCPA juggernaut fines. In a Form 6-K filing with the SEC on Jan. 24, the company provided more info on the case, including a note from CEO Börje Ekholm condemning the bad actors’ transgressions.
“The resolution of the US SEC and DOJ investigations highlights serious shortcomings in our otherwise proud history,” Ekholm wrote. “The events described in the resolution are totally unacceptable.”
Does that sound like someone content with the way in which their company did business? Even as the words come after the fact, they still carry weight.
Ericsson goes on to list its recent ethics and compliance enhancements, and while the purpose of the filing is to show the SEC where the company has progressed, it’s also important to appreciate the improvements that a $1 billion wakeup call brought. That’s where compliance stands to suffer most in a weakening of the FCPA: the lessons learned and pressure felt by senior executives to maintain at least the perception of a “proud history,” not one built on the back of bribes and corrupt activity.
Extra business for American companies should not be of concern for compliance officers. Their job is to make sure business is conducted ethically, and even if there weren’t a law to strictly govern corruption, those acts shouldn’t sit well with anyone who is supposed to work with an ethics-first mindset—for the sake of the rest of us that like to think our favorite companies have a conscience.
That still has to matter to someone in the Trump administration … right?