Prohibitions that Extend Beyond Bribery

Abstract

Prohibitions that cover “fraud” or “improper accounting” or “illicit enrichment” can be used as substitutes for prohibitions of bribery, but this approach has both pros and cons. To illustrate the general issues we can conduct a thought experiment in which a prohibition on bribery is replaced with the broadest prohibition imaginable, one that simply covers “corruption.” Broader prohibitions can, if crafted with sufficient care, address the problem of underbreadth that undermines the effectiveness of prohibitions limited to bribery. Their risks include unpredictability and illegitimate after-the-fact lawmaking. In addition, the effectiveness of broad prohibitions can be compromised by overbreadth and imprecision. These issues clearly arise in connection with prohibitions on fraud, improper accounting, and illicit enrichment.