The bill would amend 18 U.S.C. §201 to make a foreign official liable for wrongfully soliciting, requesting, receiving, accepting, or agreeing to receive or accept anything of value, directly or indirectly, for himself or herself or for any other person or entity, in exchange for:
- influencing the execution of any official act; or
- acting or omitting to act in carrying out the provisions of any act in contravention of such person's official duties.
For committing such an offense, the bill provides for the imposition of a fine, or imprisonment for up to 2 years, or both.
The Act also establishes the range of persons who qualify as "foreign officials," including:
- officials of a foreign government or department, public body or public organization;
- officials of public international organizations;
- any person acting in an official capacity for or on behalf of a foreign government or department, public authority, public organization or public international organization.
The draft law is aimed at filling the current gap in U.S. law, which in the context of bribery in international commercial transactions establishes the possibility of prosecuting only persons who give, offer or promise bribes to foreign officials (Foreign Corrupt Practices Act - FCPA).
Experts, however, note a number of possible difficulties that law enforcers may encounter if the bill is passed.
First, the application of the provisions of U.S. law to foreign officials will surely entail jurisdictional obstacles.
Second, the inclusion of the proposed provisions criminalizing bribe solicitation by foreign officials in the portion of the U.S. Code that deals with "domestic" bribery (i.e., domestic bribery) is odd. This could result in inconsistencies between the liability established for bribe recipients and bribe givers (i.e., the FCPA provisions). For example, the bill establishes as a qualifying characteristic of bribe solicitation influencing the execution of an "official act" or using the
...(A) (i) influencing the actions or decisions of a foreign official in the performance of his or her duties in a position of authority, (ii) inducing a foreign official to act or fail to act in violation of the official's statutory duties , or (iii) securing any improper advantage; or
(B) inducing a foreign official to use his or her influence in a foreign governmental body or governmental organization to influence or affect any action or decision of such body or organization....
Third, it remains unclear whether it would be a crime under the new bill for an official to solicit a bribe if the bribe is a so-calledfacilitation payment under the FCPA, which the FCPA itself does not prohibit.
Finally, the bill does not explain how its provisions would apply if a payment to a foreign official qualifies as a "reasonable and bona fide expenditure," which is also permitted under the FCPA.