U.S. regulators addressing the demand side of corruption – What you need to know

December 17, 2021
Susan Divers

For decades, the fight against corruption in the U.S. and most countries has focused on the “supply side,” i.e. deterring organizations and individuals from offering bribes, luxury items, and advantages to induce government officials to do the wrong thing.  Finally, some concrete steps are underway by U.S. regulators to deal with the “demand side,” i.e. making it harder for corrupt officials to hide their actions and enjoy their ill-gotten gains. 

30-second take | 3-minute deeper dive | 3-second links 

LOCATION: U.S. 

EFFECTIVE: Immediately 

30-second take 

  • Life is getting harder for corrupt officials and criminals.   
  • Earlier this month, FinCEN, part of the U.S. Treasury, issued draft rules designed to bring transparency to the ownership of shell companies—a long-standing mechanism used by the corrupt to hide their actions. 
  • FinCEN is also proposing enhanced scrutiny of all cash real estate deals, which could make it more difficult for the corrupt to enjoy the fruits of their wrongdoing. 
  • Additionally, the new U.S. Strategy on Countering Corruption announced by the White House is holistic in scope, with new emphasis on the role of gatekeepers and those who facilitate corruption, such as law firms, accountants, and trusts. It also offers support for protecting journalists and others who expose corrupt officials.  
  • FinCEN’s proposed registry of shell companies could make it easier for ethics and compliance teams to conduct meaningful due diligence on third parties and consultants to mitigate FCPA risks. 
  • The U.S. Strategy on Countering Corruption includes government investment in data analytics and cooperation with the private sector to identify and combat corruption. 

3-minute deeper dive

For decades, the fight against corruption in the U.S. and most countries has focused on the “supply side,” i.e. deterring organizations and individuals from offering bribes, luxury items, and advantages to induce government officials to do the wrong thing.  Finally, some concrete steps are underway by U.S. regulators to deal with the “demand side,” i.e. making it harder for corrupt officials to hide their actions and enjoy their ill-gotten gains. 

Earlier this month, FinCEN, part of the US Treasury, issued draft rules designed to bring transparency to the ownership of shell companies—a long-standing mechanism used by the corrupt to hide their actions. Additionally, FinCEN is proposing enhanced scrutiny of all cash real-estate deals which could make it more difficult for the corrupt to enjoy the fruits of their wrongdoing. 

The White House also just released the first-of-its kind U.S. Strategy on Countering Corruption. The strategy provides a whole-of-government approach and comprehensive roadmap to amplify U.S. efforts domestically and internationally—with governmental and non-governmental partners— to prevent, limit, and respond to corruption and related crimes. 

In many ways, this news provides a capstone for a year marked by promises of increased enforcement efforts in the fight against corruption. 

FinCen’s draft rules relate to legislation last January that required the Treasury’s Financial Crimes Enforcement Network to create a centralized database containing information about the owners of limited liability companies and other corporate entities. The draft rules don’t address who may access the ownership registry and how they will gain access. FinCEN announced that those elements would be covered in a later set of rules. Greater transparency in this area could substantially boost corporate anti-corruption due diligence as shell companies are an area of great risk. 

FinCEN’s announced plans to increase scrutiny of all cash real estate deals could also have a long-overdue and chilling effect on the ability of corrupt officials to launder their ill-gotten gains through the U.S. property market.   

Increasing pressure to diminish the demand side of corruption, particularly in light of the corrosive impact of corruption on the social and governance structures of countries in which bribery takes place, is consistent with ESG objectives—as demonstrated by the Global Compact’s Goal 16 focus on stable institutions. 

The new U.S. Strategy on Countering Corruption is organized around five mutually reinforcing pillars of work: 

  1. Modernizing, coordinating, and resourcing U.S. Government efforts to fight corruption. 
  2. Curbing illicit finance. 
  3. Holding corrupt actors accountable. 
  4. Preserving and strengthening the multilateral anti-corruption architecture. 
  5. Improving diplomatic engagement and leveraging foreign assistance resources to advance policy goals. 

It includes the prioritization of intelligence collection, analysis, and collaboration on corrupt actors and their networks. Corrupt actors and their facilitators rely on vulnerabilities in the United States and international financial systems to obscure ownership of assets and launder the proceeds of their illicit activities.   

These include addressing new beneficial ownership transparency regulations that help identify bad actors hiding behind opaque corporate structures; introducing first-of-their-kind regulations that target those closest to real estate transactions to reveal when real estate is used to hide ill-gotten cash or to launder criminal proceeds; working with Congress and within existing regulations to make it harder for certain gatekeepers to the financial system—including lawyers, accountants, and trust and company service providers—to evade scrutiny, and working with partner countries through multilateral fora, diplomatic engagement, law enforcement cooperation; and capacity building to strengthen their anti-money laundering regimes to bring greater transparency to the international financial system. 

How this push in anti-corruption efforts impacts ethics and compliance 

While much of the attention is focused on the demand side of corruption, there are consequences and implications for the ethics and compliance office. The news follows a string of announcements from the DOJ and SEC that signal increased enforcement pressure to crack down on individual responsibility for corporate crime, including increased enforcement of corporate corruption.  

Chief among the considerations for ethics and compliance professionals is a strategic review of existing ethics compliance programs. This includes an analysis of:  

  1. How well programs evolve to reflect and address new risks. 
  2. Whether they work effectively in practice, requiring knowledge of current and emerging practices and access to research for comparison. 

This could be a good time to review anti-corruption and anti-money laundering (AML) compliance programs to ensure effectiveness, including the level of awareness and education within workforces and by function and geography, particularly in high-risk areas. It is also important to review systems of reporting and investigations and efforts to promote speak-up and listen-in cultures.   

The focus on data analytics could be helpful. Regulators are planning to engage the private sector to collaborate on tracking, developing, improving, and applying new and existing technological solutions to systemic challenges in preventing and detecting corruption. The implication for companies is to ensure they are incorporating new technologies and data analytics into their own compliance programs. Embedding technologies and data analytics programs has already been identified as a critical capability and best practice to ensure program effectiveness, outside of the new governmental guidance. 

3-second links 

About the Author

Susan Divers

LRN Senior Advisor

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