Note: New Solutions to the Age-Old Problem of Private-Sector Bribery
By Sarah Clark. Full text here.
In its wake, commercial bribery leaves increased costs of business, decreased governmental standards and honesty, and a culture of corruption. To combat, and hopefully correct, the evils of corporate bribery, governments have enacted laws to prosecute those willing to pay bribes to garner unfair competitive advantages. Since 1977, the Foreign Corrupt Practices Act (FCPA) has stood as the international standard for criminalizing the payments of bribes by businesses or their actors to foreign officials. Other countries have followed suit in recognizing the harms of international bribery, demonstrated recently by the United Kingdom’s enactment of the U.K. Bribery Act in 2010.
Despite the United States’ success in prosecuting public sector bribery with the FCPA, no corresponding federal law exists for private-sector bribery, a similarly prevalent and serious form of corruption. Bribes paid between businesses distort the marketplace, causing economic, political, and commercial impacts in the country where the bribe occurs, and harm certainty and integrity in business for all. To fill this prosecutorial void, the United States relies on a patchwork of laws not originally intended to prosecute private bribery, such as the Travel Act and the mail and wire fraud statutes. However, this makeshift attempt fails to provide the efficiency and threat of an all-encompassing bribery statute.
This Note proposes that a single federal statute outlawing both public and private bribery is the best way to increase knowledge about the illegality and harms of private bribery and stop its occurrence. Using language from numerous state laws that ban private bribery, as well as the U.K. Bribery Act, which outlaws public and private bribery, federal lawmakers could amend the FCPA to protect businesses and citizens from both forms of bribery. Such a revision will ensure that the United States remains current with modern trends in prosecuting international private-sector bribery, allows businesses to understand that private bribery is taken as seriously and prosecuted as severely as public-sector bribery, and will demonstrate the United States’ continuing dedication to safeguarding fair and honest international business practices.