Reagan administration officials yesterday called for major changes in in the Foreign Corrupt Practices Act, including limiting the enforcement role of the Securities and Exchange Commission, the agency that brought the issue of overseas bribery by American firms to public attention.
U.S. Trade Representative William E. Brock said the administration supports substantial changes in the law proposed by Sen. John H. Chafee (R-R.I.). Democratic Sen. William Proxmire of Wisconsin characterized the proposed Chafee bill as a slug through the heart of the Foreign Corrupt Practices Act.
Brock and other administration officials testifying before the Senate Committee on Banking, Housing and Urban Affairs echoed the business view that the act has damaged American sales abroad -- a negative they conceded is difficult to prove. Faced with uncertainties about what is proper and what is not, some companies have simply ceased trying to do business abroad, he said.
Chafee's proposed changes would clarify a murky law while maintaining strong sanctions against bribery, Brock said.
Among other things, the Chafee bill would eliminate a provision in the law that prohibits payments to an agent while "having reason to know" that the payment might be used to bribe a foreign official. It would also require that corporate records reflect only information that is "material" rather than keeping records in "reasonable detail." Critics of that approach say it would allow large companies to ignore all but the biggest payments.
Brock said that the administration also wants to remove accounting and bookkeeping provisions that require all publicly owned businesses, whether engaged in overseas trade or not, to maintain accurate books and records and a system of internal controls to guarantee that management knows how a company's assets are being used. Instead, Brock said, the administration prefers to set criminal sanctions for concealing information about illicit foreign payments.
The accounting and bookkeeping provisions represent "a significant extension of the juridiction of the SEC over business practices unrelated to the protection of investors and unnecessary for the effective operation of the prohibitons against illicit payments overseas," Brock said. SEC officials and former officials do not share that view.
"The accounting and record-keeping provisions are not an extension of our powers," said SEC Commissioner John R. Evans. Evans said that before the Foreign Corrupt Practices Act was adopted in 1977, the SEC believed it had the power to enforce the requirements later spelled out in the law.The agency recommended inclusion of the provisions, believe it ""would be helpful for Congress to give it their endorsement," he said. "To take that endorsement away might be considered kind of a negative."
The SEC has not yet developed a position on the Chafee bill or the administration proposal.
"There's something to be said for 'Actions speak louder than words,'" said John Burton, former chief accountant for the SEC who now teaches at Columbia Business School. "I would view this is as symbolic rather than an act that really deals with substance very much. Most companies are not going to dismantle their control systems because of this. But I think it is a bad message to send." Burton also said that most companies have already incurred any costs connected with setting up those systems.
Brock said the accounting and record-keeping requirements "are highly inflationary, having caused U.S. companies to develop expensive new accounting systems and to utilize costly accountants and auditors with no assurance from the SEC that such systems meet SEC requirements."