In a 9-0 vote, the US Supreme Court overturned the conviction of former Virginia governor Virginia Bob McDonnell for public corruption under the Hobbs Act. Chief Justice Roberts, writing for the Court said, "There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government's boundless interpretation of the federal bribery statute." The Court went on to find that it was prosecutorial over-reach which invalidated the conviction, not the Governor’s distasteful acceptance of gifts.
However the Supreme Court’s narrowing of the definition of corruption under the Hobbs Act should have no effect on FCPA enforcement going forward. There are several reasons. First and foremost is that the Hobbs Act reaches acts by public officials acting in their official capacity. A public official commits a crime when he obtains a payment to which he is not entitled knowing that it was made in exchange for official acts.
The second reason is that the FCPA focuses on the conduct of the bribe payor, not the bribe-receiver. It is a supply-side focus to deter the illegal conduct of U.S. companies from engaging in bribery and corruption of foreign officials. Therefore the legal analysis will be on the conduct of the company or individual which pays or even offers to pay a bribe.
Finally, the Hobbs Act does not have the specific language of the FCPA. The FCPA prohibits actions “(A) (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or (B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such issuer in obtaining or retaining business for or with, or directing business to, any person”.
Clearly the focus of the FCPA is the quid part of quid pro quo actions. The Supreme Court’s decision focused on the quo part of the equation.