Prepared Statement of Professor Mike Koehler Before the Subcommittee on Crime and Drugs of the United States Senate Committee on the Judiciary - 'Examining Enforcement of the Foreign Corrupt Practices Act'

Abstract

This prepared statement was in connection with my November 30, 2010 testimony before the Subcommittee on Crime and Drugs of the United States Senate Committee on the Judiciary in a hearing titled, "Examining Enforcement of the Foreign Corrupt Practices Act."

The following topics are covered: Congressional intent in enacting the FCPA; why FCPA enforcement has changed; the impact of the "new era of FCPA enforcement;" the prosecution of individuals; and FCPA enforcement and deterrence.

Despite being a fundamentally sound statute, the FCPA is being enforced in this "new era of FCPA enforcement" in many fundamentally unsound ways. The issue is not whether FCPA enforcement is good or bad for any one constituency, but whether the DOJ is enforcing, in many instances, the FCPA consistent with its provisions and consistent with Congressional intent. The issue is also whether the DOJ''s rhetoric is consistent with its conduct in prosecuting the most egregious instances of corporate bribery so that FCPA enforcement deters and not yield inconsistent results and two tiers of justice. These are the issues that need to be examined and the time to examine these issues is now.

Keywords: Foreign Corrupt Practices Act, FCPA