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Bipartisan Senate Legislation Aims to Prevent Foreign Extortion

November 2, 2021 by Reece Nations
The U.S. Capitol, Nov. 1, 2021. (Photo by Dan McCue)

WASHINGTON — Sens. Thom Tillis, R-N.C., and Sheldon Whitehouse, D-R.I., announced the introduction of legislation to the Senate on Tuesday that would criminalize bribery demands by foreign officials.

Although bribery is considered criminal activity under the Foreign Corrupt Practices Act of 1977, current law only punishes domestic entities in circumstances of illicit behavior. Foreign officials involved in bribery schemes do not face the same threat of prosecution under federal statutes.

“Kleptocrats and criminals will seize on any opportunity to extort American businesses, enrich themselves, and undermine our national security,” Whitehouse said in a written statement. “It’s illegal for an American business to pay a bribe abroad; this bipartisan legislation makes it illegal for a kleptocrat to demand one. In order to win the new clash of civilizations, America must defend the rule of law and signal that violations will not be tolerated.”

If enacted, the bill would make it unlawful for any foreign official to demand, seek or receive anything of personal value for themselves in exchange for being influenced in the performance of any official duty. Unlawful acts include being persuaded to do any act in violation of official duty or negotiating any improper advantage, according to the text of the act. The bill’s companion was filed in the House of Representatives in July by Rep. Sheila Jackson Lee, D-Texas, and cosponsored by Rep. John Curtis, R-Utah.

“American business needs a level playing field,” Tillis said in a written statement. “The Chinese don’t play fair. The Russians don’t play fair. The Iranians certainly don’t play fair. These countries all rely on corruption and bribery to capture business opportunities. The Foreign Extortion Prevention Act attacks corruption at its source — those who demand bribes. It is a common-sense approach that brings the United States in line with best practices in fighting foreign bribery.”

The bill’s current House cosponsors are three Republicans, including Curtis and seven Democrats: Reps. Brian Fitzpatrick, R-Pa., Maria Elvira Salazar, R-Fla., Steve Cohen, D-Tenn., Tom Malinowski, D-N.J., William Keating, D-Mass., Marcy Kaptur, D-Ohio, Katie Porter, D-Calif., Dean Phillips, D-Minn., and Abigail Spanberger, D-Va.

A previous version of the bill was sponsored by Jackson Lee during the 116th Congressional Session where it received similar bipartisan support but failed to pass the House Judiciary Committee. Currently, the House companion piece awaits a hearing in the same committee where it was eventually killed in 2019.

“Transnational kleptocrats pose a serious national security threat to the United States,” Jackson Lee said in a written statement. “They act as agents of U.S. adversaries, undermining the rule of law internationally and in their own countries, and accessing elite circles and levers of power in democracies through strategic graft and corruption.”

Jackson Lee continued, “U.S. prosecutors have been able to indict such individuals under criminal statutes such as wire fraud, mail fraud, and the Travel Act; however, these laws were not designed to tackle the problem of transnational kleptocracy, and each contain deficiencies which make it less than ideal for prosecuting foreign extortion. We cannot leave our prosecutors without the legal tools they need to protect the rule of law.”

The United States office of Transparency International, a global anti-corruption coalition, published an analysis of the bill’s legal framework to accompany the bill’s introduction and to demonstrate its overseas enforceability. Scott Greytak, director of advocacy for TI-US, said in a statement that while the legislation is good for both American businesses and individuals who have suffered from corruption, it will also help prevent environmental decline.

Greytak asserts that while foreign bribery is economically damaging, it also abets environmental damage by providing immunity to nefarious actors seeking to illegally mine, log or poach wildlife. The resulting fines associated with cracking down on these unlawful practices could in turn be used to finance responses to climate change, Greytak said.

“U.S. businesses abroad are regularly targeted by foreign extortionists,” Curtis said in a written statement. “Transnational kleptocrats hide under the veneer of officialdom and abuse their power to warp the regulatory environment, attempting to co-opt or eliminate legitimate job-creators and entrepreneurs who follow the rules. The Foreign Extortion Prevention Act would protect U.S. businesses from these individuals by punishing the demand side of bribery.”

Curtis continued, “Currently, a business being extorted for a bribe can only say ‘I can’t pay you a bribe because it is illegal and I might get arrested.’ This long-overdue bill would enable them to add, ‘and so will you.’”

Reece can be reached at [email protected]

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