The Increasing Importance of Antibribery Compliance for Nonprofits

Corporations have traditionally been a source of generous funding for local charities and international NGOs committed to causes they want to support. These include emergency donations in the wake of natural disasters, as well as ongoing support of important charitable initiatives. Contributions like these provide real benefits to the charities, along with a reputational boost to the company providing the support. The relationship should be entirely positive but can, on occasion, become a conduit for inappropriate payments—or even outright bribery. Increasingly, companies are recognizing this risk and vetting charities with the same rigor as they vet service providers and other third parties. But nonprofits have been slow to embrace their donors’ compliance efforts.

Most nonprofit organizations do not make antibribery compliance a priority. Some, including those working in high-risk countries, state that their mission is important enough to justify the payment of bribes; others argue that the U.S. Foreign Corrupt Practices Act does not apply to the work of nonprofit organizations. Both positions are risky for two reasons: (1) paying bribes to move sacks of rice into a country feeds the same cycle of corruption, in the same manner, as the payment of bribes to move oil rigs into a country; and (2) nonprofit organizations are, in fact, subject to the FCPA and other international antibribery laws and norms, in the same manner as multinational corporations.

Moreover, in addition to facing the same enforcement penalties as international companies for bribery—including high fines and employee jail time—nonprofit organizations also face the grave risk of reputational loss and the associated loss of donor funding. Nonprofit organizations, and the companies supporting them, should be aware of the following:

The FCPA Does Apply to Nonprofits

The U.S. Department of Justice in a 2010 Opinion Procedure Release (10-02) [PDF] found that a nonprofit, U.S.-based microfinance institution qualified as a “domestic concern” and was therefore subject to the FCPA. There is no express exception for nonprofit organizations under the FCPA or any international antibribery convention. Both the U.N. Convention against Corruption and the OECD’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions have been interpreted to cover the work of nonprofit organizations.

Scrutiny of Nonprofit Organizations is Increasing Overall