A double standard in bribery law has emerged. Over the past decade, the Supreme Court has broken with a century of progressive reforms by narrowly interpreting domestic bribery and other conflict-of-interest laws. This weak federal domestic bribery law now stands in stark contrast to the robust and expansive prosecutions of bribery under the Foreign Corrupt Practices Act (FCPA), which limits the ability of U.S. entities to bribe foreign public officials. As a result of this double standard, those who seek to improperly influence domestic public officials are often able to engage in behavior that looks and smells like bribery but is not bribery. Similar behavior in the foreign context, however, is punished by the FCPA.

The act of bribery, whether foreign or domestic, not only undermines the practice of good governance but also delegitimizes government institutions themselves. Federal bribery laws were traditionally designed and interpreted to address both of these concerns, evolving into powerful tools of public accountability. But the Supreme Court has restricted the interpretation of federal bribery laws in ways that have weakened the domestic antibribery regime. As a result, high-profile elected officials are able to avoid punishment for acts that would have, until recently, been considered illegal. In contrast, the FCPA has not only withstood legal challenges, but is widely recognized as a powerful tool for curbing corruption. This Article explores this divergence, argues that the domestic bribery law should be modified, and identifies two aspects of the FCPA as a model for domestic statutory reform.

* Anna A. Mance is a Thomas C. Grey Fellow and Lecturer in Law at Stanford Law School. Dinsha Mistree is a Research Fellow at the Hoover Institution and in the Rule of Law Program at Stanford Law School.

For helpful conversations and comments, we are grateful to George Fisher, Erik G. Jensen, Shirin Sinnar, Robert Weisberg, as well as participants in the NYU Clinical Law Review Writers’ Workshop, in the Grey Fellows Forum, and in the Stanford Legal Research in Progress Workshop. We are also grateful for research support from Nitisha Baronia, Rehana Mohammed, and Tim Rosenberger. Research for this Article was generously supported by Stanford SEED and Stanford’s Rule of Law Program.