Commentary: Congress Wants to Make It Easier for Corporations to Hide Corrupt Overseas Deals
Transparency in the oil, gas, and mining industries is a win-win for the U.S.—not only does it protect the interests of U.S. investors, it promotes our foreign policy and global development goals around the world.
A bipartisan group of senators recognized this in 2010 when they included the Cardin-Lugar anti-corruption provision in the Dodd Frank financial regulation law. This groundbreaking provision sought to bring transparency to the billions of dollars in payments made by U.S.-listed oil, gas, and mining companies to foreign governments. Since then, the world followed America’s lead: the European Union, United Kingdom, and Canada have adopted, and are implementing, similar laws.
Unfortunately, though, the U.S. is unlikely to become the leader on transparency we could’ve been. Before the Securities and Exchange Commission could fully implement the regulation it designed to carry out the anti-corruption provision, Congress voided the rule, along with over a dozen other regulations. And now, Congress is threatening to overturn the anti-corruption provision itself.
Killing the Cardin-Lugar provision is a bad move, detrimental to U.S. investors, the countries involved, and our global development efforts. Worst of all, it will let corporations hide questionable deals they make abroad.
Ironically, as one director of a public U.S. oil and gas company recently told one of us, most oil companies have long since accommodated the requirements of this provision. Indeed, this director said that while some of his fellow Republicans seek to fit the provision into the over-regulation narrative, Cardin-Lugar is not an operational issue. This provision merely provides transparency and disclosure to shareholders—who are after all the owners of these companies—and to the general public.
Investors rely on the SEC to protect themselves; maintain fair, orderly, and efficient markets; and facilitate capital formation. The Cardin-Lugar provision provides investors with critical information for assessing risk in the often opaque and unstable oil, gas, and mining sectors. Research by the Organization for Economic Cooperation and Development underscores the magnitude of the government payments transparency problem, finding that the oil, gas, and mining industries are more vulnerable to corruption than any other sector. Indeed, one in five cases of international bribery occur in these extractive industries.
Recognizing this, investors worth nearly $10 trillion in assets have voiced their support of the transparency provision on multiple occasions throughout the SEC rule-making process. These global investors require detailed information on specific oil, gas, and mining projects to analyze a company’s exposure to risk and thus its costs of doing business. According to one study submitted to the SEC, public disclosure of payment information like that called for in the Cardin-Lugar provision could actually lower the cost of capital for companies by an estimated $6.3 to $12.6 billion.
But it isn’t just investors in these U.S.-listed companies who are hurt by corruption and a lack of fiscal transparency. High levels of corruption, enabled by a lack of transparency, hinder economic growth and development worldwide. Investors often avoid countries with tremendous potential because they have corruptive reputations. To be clear, making payments to governments for mining licenses or oil blocks is perfectly legal when handled properly. As Americans we should want our companies to invest and to remain competitive. This can be accomplished without enabling corruption. Disclosing information should restrict the latter without hurting the former.
Transparency is particularly important in countries rich in natural resources that are too often afflicted with the resource curse: the economic paradox wherein resource-rich nations tend to have less economic growth, be less democratic, and suffer from poor development outcomes. Indeed, the OECD has found that corruption in the oil, gas, and mining industries is a major obstacle to economic development in countries around the world. Secret deals in this sector mean that large sums of money can too easily end up lining the pockets of corrupt government leaders instead of being added to government revenues, where they could help promote national development objectives.
A lack of transparency in unstable, corrupt environments also fuels the growth of violent extremism. Research by Transparency International found that organizations such as ISIS take advantage of corruption both to recruit members and smuggle weapons. The problem is then compounded by governments weakened by corruption and unable to combat rising extremism.
Information and transparency can be powerful tools; they enable citizens to hold their own governments to account and promote citizen-oriented institutions. Of course, this is true here at home as well. Fewer than two years ago, Congress passed the Foreign Aid Transparency and Accountability Act, which requires U.S. government agencies to publicly share data on foreign assistance programs. If we agree that it is important for government bodies to be transparent about their spending overseas, why shouldn’t we expect the same from companies?
Members of Congress will have to address this question when they face the upcoming vote to repeal the Cardin-Lugar anti-corruption provision. Recognizing the benefits to U.S. investors, U.S. companies, and our foreign policy, lawmakers from both sides of the aisle should kill this ill-founded effort.
Congress can help the U.S. continue to lead global anti-corruption and transparency efforts by supporting the SEC in issuing a new rule that aligns with regulations in other markets. The State Department will continue to be the primary U.S. agency for foreign policy and the Justice Department continues to play a leading role in fighting corruption, but only the SEC has the authority to require corporate transparency.
By supporting robust implementation of the Cardin-Lugar provision and a strong SEC rule as Congress originally intended, we have a unique opportunity to protect both U.S. investors and international anti-corruption and transparency efforts at the same time.
John Niepold is the managing partner and a portfolio manager at SQM Frontier Management, L.P., and has been investing and working in Africa for more than 25 years. Eric G. Postel was an emerging markets investment banker for over 20 years before serving as the associate administrator of the United States Agency for International Development (USAID).