The federal government’s pursuit of criminal sanctions against businesses and their managers and employees received high-profile coverage this weekend in two large-circulation daily newspapers.
Reporters Gary Fields and John Emshwiller authored a front-page story in the Weekend Edition of The Wall Street Journal, As Criminal Laws Proliferate, More Are Ensnared (subscription required). Their story focused on the general rise in the number of statutes and regulations which can be enforced criminally, and federal prosecutors’ and agencies’ increased proclivity to eschew civil or administrative remedies in favor of the criminal law. They prominently featured the plight of Krister Evertson, whose appeal Washington Legal Foundation took to the U.S. Supreme Court in 2009. The Court denied certiorari in the case.
The title of David Hilzenrath’s Washington Post article on the Foreign Corrupt Practices Act (FCPA), Quandary for U.S. Companies: Whom to Bribe reflects the tone and tenor of the piece. It focuses on efforts to clarify certain aspects of the federal anti-bribery law, including who qualifies as a “foreign official.” The article labors to minimize the relevance of who is and is not a foreign official, painting a picture of business actions which don’t pass the “straight face test” regardless of what the law is. It seems to embrace this absurd statement by the Justice Department’s Greg Andres (quoted in the story):
If companies aren’t paying bribes, they have nothing to fear with respect to enforcement.”
For more on the rising criminalization of free enterprise, read the second edition of WLF’s Special Report: Federal Erosion of Business Civil Liberties.