Navigating Anti-Corruption Uncertainty

The implications for the fight against corruption stemming from potential FCPA enforcement changes were examined meticulously in these pages. To situate these changes within the broader framework of business ethics, I spoke recently with Alison Taylor, Clinical Associate Professor at NYU Stern School of Business, former Executive Director of Ethical Systems, and author of 2024’s acclaimed Higher Ground: How Business Can Do the Right Thing in a Turbulent World. Note that my conversation with Alison took place before the June 9 release of the new FCPA Guidelines.

Writing for Bribery Matters in March of 2024, A Zero-Tolerance Policy Can Only Go So Far, Taylor pointed out that in spite of the FCPA, “corporate bribery scandals continue, and corruption as a societal challenge remains unresolved” and that while “essential,” a compliance-based approach is “insufficient to tackle the wider challenges of corruption.” In that piece, she urged companies to examine their internal incentive systems, and to address the challenges of doing business in kleptocracies, or where corruption comes with the risk of violence or extortion. When I spoke with Taylor, she also pointed out that white collar crime enforcement has decreased, and that the government has mostly gone after small firms. She further noted that FCPA cases are often difficult and expensive to pursue, and the complexities can be hard for juries to follow.

By the same token, she told me that she did not anticipate the decision to review the FCPA enforcement guidelines. She notes that the law had never been an “obvious source of partisan division,” and that the current Administration may have “misunderstood the business case” in favor of anti-corruption efforts, as well as “overestimate[ed] the degree to which companies wanted” changes. It is possible, she speculates, that the Administration “thought it would be welcome by the financial services industry,” in particular. She says the Administration may have “overestimated the norm shift.” While they awaited the new guidance, she says, far from being excited, companies were “not celebrating,” and did not “welcome changes,” due to the inconsistency and uncertainty. She draws a contrast with the backlash against ESG and stakeholder capitalism, which she viewed as “predictable,” as she wrote in Bloomberg here: ESG’s Rhetoric Doesn’t Match Its Reality. Along those lines, she told me she is not surprised by Europe’s vote to delay the implementation of CSRD and CS3D, situating the vote as part of the larger ESG pushback, amid a sense that the EU tends to overregulate. 

Again, as we had not seen the new guidance when we spoke, I was curious about her views on how companies might react if the FCPA were weakened. She noted that even if they wanted to, most would struggle to dismantle their compliance infrastructure. Before making any changes, firms would have conducted assessments of their compliance budgets, services and staffing levels. Now we have seen the guidance, which clearly acknowledges why corruption is bad for business, aligning with the understanding among companies, as Taylor put it, that “the problem with bribes is you can't get your money back; if you signal that you pay, you will be hit up again and again; and that corruption is inflationary.” While companies pay attention to signals and are sensitive to reputational risk, she says, they tend not to take stands on the issue of corruption. Even from the reputation point of view, she noted that it will be interesting to see whether companies ever decide to re-enter the Russian market at some point in the future.

On the other hand, Taylor expressed concern that some industries which at times have been resistant to anti-corruption compliance and regulation – citing the pharmaceutical sector in particular – might take this moment as a sought-after respite. With respect to the EU Anti-Corruption Directive and the new UK, French and Swiss anticorruption alliance, she feels that “anything that helps with extraterritoriality and coordination is welcome.” But she shared her concern at the time we spoke about effectiveness without the US on the scene; in fact, now we know that the new guidance indicates that the US will only engage in investigations where US interests are directly implicated. Last, she noted concern about companies in newer industries, such as crypto and AI, operating in a kind of governance, regulatory and ethical “Wild West.” All in all, Taylor thinks it is still too early to know the impact of the new FCPA landscape, saying we should “check back this time next year.”

Marc Schleifer

Governance, Democracy and Economic Development Expert