08 November 2015

Multinationals, Corruption and the Tool that is the FCPA

The previous discussion regarding Multinational mining companies and their relationships with the Indonesian government compelled me to mention the ambiguous nature of the SEC and the Justice Department's mandate with regard to multinationals and diplomacy.

The FCPA comes to mind. It was also cited in the movie Syriana and utilized to bring down an oil man who had bribed his way into acquiring rights to a Caspian oilfield.

The FCPA like many other laws is selectively enforced. It's a tool utilized by the government that is often ignored but is quite handy if reasons are needed to remove someone from power and provide 'the perception or appearance of due diligence'. We might even say the illusion of due diligence.

Its use is often disingenuous. It's one of those laws that almost everyone doing international business can be found guilty of in some way or form, and yet who gets prosecuted? Well, that depends on many other factors. It's like driving your car. You can't drive down the road without ultimately breaking some law and yet all too often the police only enforce those laws when they have a reason to come after you. Sometimes it's just to vindicate their job and generate revenue.

I am reminded of a similar experience in the labour-business world. Many years ago I worked briefly for UPS. I worked at a distribution center and when you start you have to unload the tractor-trailers that are literally packed to the ceiling. The trailer is backed up to the loading dock and you pull up a conveyer belt to the back of the track and start unloading the boxes. The goal is speed. At the particular place I worked there were at any given time about ten guys going full bore at about a half-dozen loading bays. It was a serious workout and a lot of guys quit after just a day or two. If you worked hard, you got moved up to a job equally as intense but a little less physical.

The boxes go down the conveyors and are sorted at various points making their way to the lines where the brown delivery trucks are loaded. When you load the trucks you have to quickly read the address labels and determine if it belongs on your route. Then you pull it and run it into the truck and place it in the correct order for the driver.

You're scanning hundreds and hundreds of boxes every shift. It's really easy to miss something and make a mistake. It's easy to grab the wrong box or put the right box in the wrong place. If you misplace a box or miss one you can get 'written up'.

They tell you that if you get written up three times, you're done. Well, I kept getting promoted but at the same time I certainly made my share of mistakes. Again the tempo is nothing less than intense. We would show up at 0430 in the morning and the trucks had to be driving away around 0830 or so. The big trailers had to be unloaded, everything sorted and reloaded within a pretty short period of time.

I made mistakes and got written up once, then twice and finally a third time. I figured I was done but I wasn't. In fact everyone seemed pretty happy with my work and I continued to be moved along to better positions. I still made mistakes on occasion but I didn't get written up anymore.

Finally I figured out, and this was more or less confirmed that it's all something of a joke. They're getting 'paper' on you so that 'if' they want to fire you (for whatever reason) they have a documented justification for doing so. Everyone gets written up. It's really more of a rite of passage. But they have something they can hold over your head.

The FCPA operates in a similar way. Corrupt business and diplomatic practice is completely normative and some (like the oilman in Syriana) would argue it's a necessary and vital component of doing business. The diplomatic corps and certainly the enforcers at the SEC would acknowledge this and understand these bribes and other dirty deals are necessary to 'get the job done'.  

Of course there's also a great deal of legalised corruption. It defies ethics but is nevertheless legal. Because this is common in our laws, this is where things get fuzzy, this is the 'action zone' where an aggressive enforcer can find something to prosecute if he wants to. At the very least the fuzzy margins provide opportunities for inquiry and investigation. Who gets investigated? Well, that's where government corruption comes into play. The quest for justice is hardly the motivation. Usually it's just politics and the money behind it. Sometimes it's a bureaucrat trying to get a feather in his cap so he can climb the ladder.

Most of the time everyone involved just ignores the phenomenon. But if there needs to be a shake-up, something that made the music stop and a victim is needed, then the FCPA comes in rather handy and can be used to provide a sacrificial victim.

It's all dishonest and disingenuous but for most people who don't pay attention its utilization can make it look like the government is doing its job and self-policing and enforcing the law. The media knows better but since they are thoroughly compromised they will not explain the reality to their audience.

On the one hand, after realizing what was happening at UPS I was quite relieved. I thought I was going to be fired. But on the other hand it really irritated me to realize they were playing a game and I was being manipulated.

Truth is a precious commodity and almost nonexistent in the corridors of power. And that's true in almost any power structure. It's how the world works. Do we just go along with it all and play the same game or do we live and think differently even if the cost is great?