Toward Greater Guidance: Reforming the Definitions of the Foreign Corrupt Practices Act

The Foreign Corrupt Practices Act of 1977 is the cornerstone of the United States’ efforts to combat the involvement of U.S. companies and individuals in corruption abroad. Enforced by both the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”), the Act targets companies and individuals that pay bribes to “foreign officials,” a nebulous category of persons that includes everyone from foreign cabinet members to janitors at companies only partially owned by a foreign state. After only sporadic enforcement in the early years of the Act’s existence, the SEC and DOJ now bring many cases annually. This increased enforcement has raised the ire of the business community, and many commentators have criticized the government for haphazard enforcement and unclear guidance. The definition of “foreign official,” which has always been deliberately broad and vague, has particularly vexed many companies. This Note proposes a creative amendment to the Act to solve this problem, not by changing the definition of “foreign official” but by requiring in-country State Department employees to provide country-specific guidance on who is-—and who is not—-a bona fide “foreign official” in a given place.