FCPA Enforcers at Conferences

 In Consulting, FCPA, Industry Conferences, Pay-to-Play, Regulatory Capture, revolving door

The FCPA Professor posted on LinkedIn and on his blog today about the optics of FCPA enforcement officials being offered speaking slots at pricey conferences attended by businesses potentially subject to enforcement action by the same speakers.

As to whether speaking engagements by American government regulators at industry conferences present a problem under the FCPA? In my view, this is not even a close call because: (1) the FCPA is not applicable to American regulators; and (2) the specifics required for a US Federal bribery prosecution are just not there. See, 18 US Code s201.

The real question is whether speaking engagements like this exacerbate the appearance (if not the reality) of a pay-to-play culture. In other words, are these conference promoters acting as “Revolving Door” matchmakers? Does the whole system lead to “Regulatory Capture?” Regarding what constitutes a revolving door, check out the excellent summaries authored by Legislative Attorney Jack Maskell and published by the Congressional Research Service in 2007, 2010 and 2014.

I consider the FCPAProfessor blog to be an excellent and practical source of FCPA-related information. I also generally understand the concerns raised in his blog entry.

I do not, however, agree that the solution is to ban DOJ, SEC, and FBI officials from speaking at for-profit sponsored FCPA conferences. That could push communications back behind closed doors into the darkness. The answer is more transparency, not less. To quote Supreme Court Justice Brandeis:

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

Like most of my colleagues and clients, I use industry conferences to network, and to gather and share information, sometimes on panels alongside government regulators. Curated public information exchange is generally a good idea. Short of banning such conferences, what can we do to improve the admittedly sketchy optics addressed by the FCPA Professor?

My solution is inspired by MOOCs (Massive Online Open Courses). Conference organizers could post videos of the presentations (at least those involving government employees) to YouTube. Free public access to videos (and slides) would help get the information into the public domain, level the playing field, and reduce the appearance of impropriety. What’s more, it would not have the effect of chilling the employment prospects of regulators who choose to leave government employment.

Free MOOCs of their most popular lectures has not diminished the demand for Harvard/MIT admission and it would not reduce conference promoter revenue streams. The best presentations could potentially generate separate revenue streams for conference organizers. The only thing that consumers of the presentations via YouTube would not get (compared to live attendees) is the benefit of networking. And even that, to some extent, can be accomplished using social media.

Before counting any chickens, let’s get real. Based on the level of engagement at our dinner table when I drone on about the FCPA, it’s just not viral stuff. Even a dream scenario (say…a cage match pitting Eric Holder & Loretta Lynn against Jeff Sessions & Sally Yates) won’t break the internet or threaten Gangnam style’s 3 billion views.

Seriously, though, government regulators invited to speak at such events could hasten the process by making their agreement to attend and present contingent on the promoter to post the event to YouTube.

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