The recent reporting about Wal-Mart's alleged misadventures in Mexico elicited some really wonderful commentary from a number of new sources. My two favorites came from The New Yorker and The Atlantic. I don’t agree with everything they said, but they were unmistakably thoughtful and well-researched, and both advanced the public debate about global graft and how to fight it.
An article in The New Republic by Steve LeVine stood out as well, but for the wrong reasons. It was thinly sourced and logically weak -- certainly not characteristics I normally associate with The New Republic in general, or with Steve LeVine in particular. I have long been a fan of his work. His investigative journalism concerning James Giffen, the oil industry, U.S. energy policy, and the challenges of FCPA enforcement has been outstanding. So, with LeVine's past achievements in mind, I turned to his offering in The New Republic. Perhaps my expectations were unreasonably high, which could account for some -- but not all -- of the disappointment that followed.
LeVine's core thesis was that corporate America “yawned” at the allegations about Wal-mart's massive bribery in Mexico -- that U.S. corporations aren’t particularly concerned about violating the FCPA and “have little to fear from the law.” Really? For years I've been doing almost daily research into global corruption and enforcement. Yet I've never come across one piece of evidence to support LeVine's central claims.
He relied principally on a WSJ summary of a television interview with Warren Buffett. The Oracle of Omaha did express his view that “someone at larger corporations is always doing something wrong.” But Buffett then said “the company’s job is to get the issue corrected.”
That -- no matter how you judge slumbersome gestures -- was no yawn. Buffett's remark, I realized, couldn't possibly be cited as evidence of indifference to bribery or bribery violations. And when LeVine didn't come up with anyone else from corporate America who might have yawned, my disappointment grew.
LeVine also lost me with his claim that U.S. corporations have been growing progressively indifferent to the FCPA since about 2003 -- that companies subject to its jurisdiction are less concerned about the statute now than they were ten years ago. That is plainly wrong. Between 1977 (when the FCPA was enacted) and 2002, there was very little FCPA enforcement, and thus very little compliance. Today, however, we see lots of both -- ask anyone who regularly reads the FCPA Blog. And ask them if they've heard a single person even faintly intimate that corporations were more concerned about FCPA violations yesterday than they are now.
Steve LeVine, as always, made plenty of interesting and credible points in his New Republic article. But ultimately his "yawn" thesis was a house of cards that collapsed in the first light breeze.
Andy Spalding is the senior editor of the FCPA Blog. He teaches international business law at the Chicago-Kent College of Law. Effective June 1, he’ll be an Assistant Professor at the University of Richmond School of Law.