Anti-corruption and government transparency activists say a new U.S. law that allows federal prosecutors to bring criminal charges against officials of foreign governments who solicit or accept bribes from U.S. companies will fill a major void in the global fight against corruption.
The Foreign Extortion Prevention Act (FEPA), part of the National Defense Authorization Act, was signed into law by U.S. President Joe Biden in December. Advocates say it will serve as a much-needed adjunct to the nearly 50-year-old Foreign Corrupt Practices Act (FCPA), which makes it a crime for U.S.-based persons to pay bribes or otherwise corruptly influence foreign officials.
The U.S. government regularly files FCPA charges against U.S. companies for engaging in corruption overseas but until now, has had limited ability to punish the officials seeking or accepting a payoff.
Legal experts point out that when it comes to cross-border corruption, there are two sides of every equation: the "supply" side, populated by companies and individuals willing to pay bribes, and the "demand" side, made up of foreign officials who request or accept bribes. FEPA, for the first time, explicitly criminalizes the demand side.
Penalties include prison, fines
Under the law, U.S. prosecutors can file charges against any "foreign official" who solicits or accepts a bribe from a company or individual that does business in the United States, even if the illegal activity takes place outside of the U.S.
The law provides for fines of up to $250,000, or three times the amount of the bribe received, as well as up to 15 years in prison. Prosecutors will be able to request the extradition of individuals charged under the law, in the case of countries that have an extradition treaty with the U.S.
In cases where a foreign official remains out of the reach of U.S. authorities, prosecutors could seek to freeze their assets and issue orders that they be arrested if they appear on U.S. soil or in a third country with a U.S. extradition treaty.
‘The first enforceable law’
"We fully expect that this will be the first enforceable law to go after foreign officials for demanding or accepting bribes, and the implications of that are massive and tremendously positive for good government all around the world," said Scott Greytak, director of advocacy for Transparency International U.S.
Greytak told VOA that Transparency International, which has chapters in 120 countries around the world, has seen a positive response to the new law from its members. Many of those chapters report that their home governments have little capacity or willingness to prosecute corrupt officials, meaning that a large amount of graft and bribery goes unpunished.
"The overwhelming majority [of corrupt foreign officials], they’re just getting away with it, and we know all the horrific consequences that has," Greytak said. He cited low confidence in government, political instability, economic inequality, environmental damage and poor public health outcomes, among other things.
"So, this gives some real hope for those folks that, if they cannot prosecute their own corrupt officials at home, now, the United States government has authority to go after them, which is a potentially big game changer," Greytak said.
Years of pushing for legislation
In a statement emailed to VOA, Noah Bookbinder, president and CEO of Citizens for Responsibility and Ethics in Washington, said that his organization has been backing the introduction and passage of the new law for years and predicted that it will have far-reaching effects.
"The Foreign Extortion Prevention Act is the most important expansion of our country’s bribery and foreign anti-corruption laws in decades," he said. "Foreign and domestic corruption are inseparable, and fighting one is truly fighting both."
Bookbinder continued, "We are optimistic that FEPA, which criminalizes the demand side of bribery, will make corrupt foreign officials think twice before bringing that corruption into the American market via demands for bribes from American companies."
Future prosecutions possible
Experts say that in the future, prosecutions under the FCPA might be accompanied by mirrored charges brought under the FEPA.
For example, in 2021, the Department of Justice brought charges against a U.S. woman employed by an Ohio-based international adoption agency. The indictment included allegations that she paid bribes to a series of public officials in Uganda, including probation officers, court registrars, and high court judges in order to facilitate the adoption of Ugandan children by Americans.
According to Transparency International, if that case were brought today, in addition to the FCPA charges brought against the U.S. participants in the scheme, FEPA charges could have been levied against the Ugandan participants.
In another instance, the Securities and Exchange Commission in 2019 alleged that a Wisconsin-based printing and marketing services company engaged in multiple bribery schemes in China and Peru.
Under the FEPA, in addition to the action taken itself, the SEC would be able to refer the allegations to the Justice Department for prosecution of the Peruvian and Chinese recipients of the bribes.
