William Steinman, with Steinman & Rodgers.

Federal prosecutors have been able to indict corporations and their employees for foreign bribery since 1977, but on the flip side there is no U.S. law that allows prosecutors to go after foreign officials who solicit those bribes.

That may be changing. Last week a bipartisan group introduced a bill in the House of Representatives that would allow U.S. prosecutors to indict foreign officials who demand or accept bribes in return for fulfilling, ignoring or violating their official duties.

Attorney William Steinman told Corporate Counsel the proposed law does not impose any significant new burden or corporations. Steinman is a name partner at Steinman & Rodgers, a boutique Washington, D.C., law firm that focuses on foreign bribery cases.

“The bill does not require a company to report a bribe solicitation,” he said. “But could they face more burdens as witnesses in such cases? Sure, it’s possible.”

He said to the extent that a company or employee is an innocent victim “hit up for bribery or corruption, and the U.S. finds out about it, certainly the company could be asked to give evidence.”

The bill takes a broad view of what constitutes a public official, including any employee of any government or of any public organization—such as the United Nations or the World Bank—or anyone acting on behalf of a government or public organization.

It also imposes penalties of a fine or imprisonment for not more than two years, or both.

Kristen Savelle, managing director of the Rock Center for Corporate Governance at Stanford University, saw some possible rough spots in the bill. Savelle also oversees Stanford Law School’s Foreign Corrupt Practices Act Clearinghouse.

Savelle said Tuesday the title of the bill suggests some form of coercion is a necessary element of the crime. “In fact,” Savelle added, “the law criminalizes the receipt of a bribe, whether solicited or not.”

She also found the bill to be vague about its jurisdictional parameters, “and there are certainly concerns that the U.S. is interfering with local prosecutions by the jurisdictions where the foreign officials reside.”

Savelle said some discrepancies between the FCPA and the bill may need to be worked out. “The FCPA also includes defenses and exceptions that are not accounted for in the proposed bill,” she added.

Both Savelle and Steinman noted that the U.S. can file charges now against foreign officials who demand bribes.

But such cases are much trickier, Steinman said. “Now you have to get them for an independent violation of the law, such as money laundering or under the Travel Act,” he explained. “The cases are hard to prove.”

Rep. Sheila Jackson Lee, D-Texas, who sponsored the bill, agreed. Lee said in a statement, “These laws were not designed to tackle the problem of transnational kleptocracy, and each contains deficiencies which make it less than ideal for prosecuting foreign extortion. We cannot leave our prosecutors without the legal tools they need to protect the rule of law.”

Steinman said he thought corporations and their general counsel would be “agnostic” about the bill, neither strongly supporting nor opposing it.

“In my experience responsible companies that spend a lot of time and effort avoiding bribery and corruption issues will be pleased to see it,” he added. “But would they stand up and affirmatively advocate for it? I don’t know.”

One problem, Steinman acknowledged, is that U.S. prosecutors may not be able to extradite the perpetrators from other countries to stand trial. But an indictment could lead to other measures, such as sanctions or pressure against the foreign government to bring its own charges.

The U.S. would not be the first country to enact a flip-side law. France, the Netherlands, Switzerland and the United Kingdom have already criminalized bribe demands.

The Organization for Economic Cooperation and Development, the key international group fighting bribery, also supports criminalizing transnational extortion.

“To have a globally effective overall enforcement system,” it said in a 2018 report, “both the supply-side participants (i.e. the bribers) and the demand-side participants (i.e. the public officials) of bribery transactions must face genuine risks of prosecution and sanctions.”