I’ve got a new post at Cato at Liberty summarizing the case for rolling back, not just clarifying, the vague yet draconian Foreign Corrupt Practices Act (& Point of Law, @RameshPonnuru). More: FCPA Professor. Related: Open Society Foundation publishes lawprofs’ defense of FCPA. How convincing is it? [FCPA Prof]
More from Scott Greenfield, including some comments on the FCPA-entrenching tendency of the DoJ-white collar bar partnership, and this from commenter “Libertarian Advocate”: “Seen through a different prism, the FCPA is a loud and unambiguous statement by the federal government that it reserves unto itself the exclusive right to corrupt foreign entities and officials.” And FCPA Professor isn’t on board with our criticism. Further: PoL on specific reform proposals.
7 Comments
You are just committing the standard libertarian fallacy of conflating your own values with those of the law-makers. You argue that because the FCPA is “vague” and “draconian” it “should” be repealed. You assume that everyone shares your view that vague, draconian laws with harmful effects on private companies should be repealed.
The fallacy here is that from the point of view of the government, a vague law with draconian punishments is highly desirable. It gives the government considerable leverage in negotiating with domestic companies and citizens (e.g., we saw that just recently in the Gibson action).
The problem with these kinds of arguments, ones which you and Cato make and have made for decades now with little effect about things like CPSIA, asset forfeiture, and the like, is that you conflate the utility functions of private citizens and of governmental decision-makers. This conflation arises from your word “should” in the article. In fact, the utility functions are quite different – from the government’s point of view, vague, draconian laws have positive utility (even though, from private citizens’ point of view, their utility is negative).
If you can show that repealing a vague and draconian law actually benefits the people who make the decision whether to repeal the law, then the argument has some force. But all your and Cato’s arguments typically show is that repealing vague, draconian laws benefit other people, usually private citizens. But that doesn’t mean the law “should” be changed.
You might argue that there is some nexus in the utility functions of private citizens and legislators – that if enough citizens are harmed, they will vote out the legislators. But this nexus, if it exists at all, is obviously much too tenuous in this instance.
@ asdfasdf
What you’re describing is what we in the Army (I served under Gaius Marius) called “The Logic Trap.” “They bust be going to do such and such, because that’s the only logical thing.”
BZZZZZZZZT
They did exactly the opposite, for reasons that have nothing to do with your sorry arse.
Wow. asdfasdf you are so brainwashed, it is hard to know where to begin commenting. First, do you live in the United States? Are you aware that our government has a constitution that guides and restricts its authority? Perhaps you should give it a look-over before suggesting that a law that benefits government over the liberty of citizens is a good thing. What “should” be changed here is the direction of the wind billowing through too many statist craniums.
My memory of the enactment of FCPA was to free companies of the need to compete for projects through bribes that complicated bidding. Penalties had to be outsized to get the benefits of transparent transactions. I take Mr. Olson’s word for it that enforcement went too far. I have found Mr. Olson’s to be a thoughtful reasonable guy.
Reading asdfasdf’s comment, I wonder what utility adheres to the governmental decision-makers who would deprive children of their bicycles through the CPSIA.
If he has committed no crime, he can not be controlled.
That is the gist of ASDF’s point.
MOV –
“Are you aware that our government has a constitution that guides and restricts its authority?”
If that was really the case, then a man could grow his own food without interference. However, it’s illegal to grow your own wheat or produce milk for personal consumption without a ‘by your leave my Lord” permission from the Govt. ASDF is spot on in his cynical observation.
(Note: Coming from a perspective of someone in the aerospace business that must regularly undergo FCPA training. My view, prohibiting bribing foreign officials = good. FCPA = over complex abomination that is ripe for abuse.)
No Name Guy –
Point taken, but you took the bait. If we collectively continue to accept the chronic exertion of power by Congress that is not vested constitutionally then we are hoplessly doomed to be a nation of far too many laws: The product of decades of willy-nilly knee-jerk lesgilation that routinely tightens the fence around our freedom and invariably results in unintended consequences. If the Constitution is no longer a backstop, then what is? Whatever the media purports to be popular opinion? May God help us all.
@MOV
“If the Constitution is no longer a backstop, then what is? Whatever the media purports to be popular opinion? May God help us all.”
Yes, indeed. May God help us, because that is where the backstop stands in so many cases. It’s hard not to be fatalist when the Constitution is hanging by a thread. But I agree with you, MOV – we can’t give in.