Punitive moralism and Wal-Mart’s Mexico mess

by Walter Olson on April 25, 2012

I’ve got a new opinion piece up at the Daily Caller on some relevant angles of the unfolding Wal-Mart FCPA story, including the feds’ growing crackdown on low-level “facilitating payments” that had previously been considered lawful, the potentially confiscatory effects of something called the Alternative Fines Act, and the question of why FCPA fines and settlements should be going to the U.S. Treasury, “which was surely not the victim of the Mexican bribe-paying, if victims there were.” Earlier here, here and (at Cato) here; and link thanks to Scott Greenfield (a must-read), Point of Law, Chris Fountain, Steve Bainbridge, and Coyote.

Plus: Scoop! Must credit Washington Post! Wal-Mart (like much of the rest of American business) has backed FCPA reform! In above-the-fold coverage with no fewer than three reporters’ bylines — though it does little more than recycle a meme that bounced around left-wing websites all day Tuesday — the Washington Post darkly warns that the giant retailer has been a member of broad business coalitions pressing various FCPA reforms “that, some advocacy groups argue, would eviscerate the Watergate-era anti-corruption statute.”  “There is no evidence,” the paper is constrained to concede to the disappointment of Some Advocacy Groups, “that suggests Wal-Mart participated in the Chamber’s efforts because of its problems in Mexico.”

The Post notes that the campaign is led by what it bizarrely describes as the U.S. Chamber’s “little-known” Institute for Legal Reform. Yet the Post’s own index indicates that the “little-known” Institute has gotten seven mentions in the paper within the past 12 months, mostly for its advocacy on FCPA reform. Indeed, the Post itself has covered the FCPA debate in some depth over the past year, and its editorialists have ardently defended the law (perhaps “Watergate-era” should serve as some kind of tipoff phrasing.)

It would be one thing if Wal-Mart’s Washington reps had shown some sort of special dislike of FCPA not shared by other American firms that do business in developing countries. But the real story here is how broad and pervasive the discontent with the law is among American businesses with international operations. They consider it unrealistic, incapable of reliable compliance, punitive and constantly changing in its interpretations. Wouldn’t the Post do better to begin listening to them, rather than demonize their efforts to petition Washington for redress?

{ 2 trackbacks }

PointOfLaw Forum
04.26.12 at 9:52 am
More re: FCPA, Wal-Mart and Mexico
04.27.12 at 12:23 am

{ 1 comment }

1 DEM 04.26.12 at 11:08 am

But the real story here is how broad and pervasive the discontent with the law is among American businesses with international operations. They consider it unrealistic, incapable of reliable compliance, punitive and constantly changing in its interpretations.

________________________

Well, punitive is the point, isn’t it? I can’t understand what interest the US Government has in policing bribes in Mexico. Mexico is a sovereign and public corruption in Mexico is Mexico’s business. Not that Mexico might have other problems they’re more concerned about.

These FCPA investigations and actions are like speeding tickets — they proceed on the pretense of protecting the public, but in reality are about raising revenue, first and foremost. The kicker in the case of Wal-Mart is that the Obama administration can use the prosecution as red meat to feed its leftist base, which, of course, loathes Wal-Mart and is only too happy to see it pursued and harassed by the government. And let’s not forget those tireless DOJ prosecutors in DC who doggedly pursue the “public interest” in bringing Wal-Mart to “justice,” only to walk through the revolving door and into private practice to make a killing defending the Wal-Marts of the world against the next FCPA witch hunt.

Comments on this entry are closed.