In recent years, the Biden Administration has been vocal that combatting foreign public corruption is a key pillar of its national security efforts.[1] Consistent with those policy goals, on December 22, 2023, Congress passed the Foreign Extortion Prevention Act (FEPA), a long-awaited complement to the Foreign Corrupt Practices Act (FCPA). Where the FCPA targets those who offer or pay bribes to foreign officials, the new FEPA targets those who solicit and receive the bribes—the foreign officials themselves.
The FEPA specifically bans “any foreign official or person selected to be a foreign official to corruptly demand, seek, receive, accept, or agree to receive or accept, directly or indirectly, anything of value personally or for any other person or nongovernmental entity.” H.R. 2670, 118th Cong. Div. E, Title LI, § 5101(f)(1) (2024). Notably, the FEPA’s jurisdictional hook is relatively narrow and criminalizes only those acts which involve “use of the mails or any means or instrumentality of interstate commerce, from any person . . . “ or “while in the territory of the United States.” Id. The bribe solicitation must also be “from an issuer . . . or, from a domestic concern” and be “in return for (A) being influenced in the performance of any official act; (B) being induced to do or omit to do any act in violation of the official duty of such foreign official or person; or (C) conferring any improper advantage, in connection with obtaining or retaining business for or with, or directing business to, any person.” Id. Interestingly, the FEPA was added to the domestic bribery statute, codified at 18 U.S.C. § 201, not the FCPA itself (codified at 15 U.S.C. § 78dd-1, et. seq.).
The FEPA differs from the FCPA in more than just its target and location in the United States Code. For example, the FCPA defines foreign officials as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.” 15 U.S.C. § 78dd-1(f)(1)(A). By contrast, the new FEPA arguably creates a broader definition of “foreign official,” including those captured by the FCPA and senior political figures, as well as those acting in an unofficial capacity for a government or similar entity. Compare id. § 5101(4) with 15 U.S.C. § 78dd-1(f)(1)(A). However, those foreign officials must be wrongfully influenced while performing an “official act,” as defined by the domestic bribery statute[2], while the FCPA contains no such limitation. In addition, the FEPA includes stiffer penalties than the FCPA in terms of potential prison time. Compare H.R. 2670, § 5101(f)(2) (15 years) with 15 U.S.C. § 78dd-2(g)(2)(A) (5 years).
Since DOJ officials have yet to comment upon how they intend to utilize and enforce the FEPA, only time will tell whether this new law will have a significant impact on the Department’s efforts to combat foreign corruption.
[1] United States Strategy on Countering Corruption Memo (December 2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/United-States-Strategy-on-Countering-Corruption.pdf
[2] That statute defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” 18 U.S.C. § 201(a)(3).