Well, it’s the day of the Iowa caucuses, as the never-resting machinery of American Presidential politics kicks into high gear. Many people, understandably, are tired of it already.
Yesterday, though, an article in yesterday’s New York Times caught my eye. It was an op-ed piece by our Massachusetts Senator Elizabeth Warren. She reminds us of the many ways in which elections matter, emphasizing that the personnel appointments at federal agencies–made by the President–have substantial influence on how well laws are enforced, or whether they are enforced at all.
Warren’s staff just released a short little report, called Rigged Justice: 2016, How Weak Enforcement Lets Corporate Offenders Off Easy, and it does a nice job of summarizing some of the high profile cases where companies doing serious damage to the public have simply bought their way out of trouble by paying some (seemingly) hefty fine or penalty, often with no admission of guilt or liability, and no individual corporate actor being held responsible civilly or criminally. You can read the report here. Many of them are False Claims Act cases, i.e., the kind of cases we work on.
The theme of lack of individual accountability is one we’ve touched on many times in this blog, and for good reason. Until individual corporate officers are held individually accountable, companies will continue to pass these penalties off on to shareholders. When a company has $10 billion in revenue, how much does it really deter misconduct to pay a $100 million fine? And if that $100 million is paid by shareholders only, does it really slow down the bad conduct at all? In an unusually candid admission, one CEO of a corporate offender, apparently said that “it remains to be seen” whether the company’s recent multi-million dollar settlement for paying kickbacks would actually change the company’s behavior. Wow, he really sounds chastened, doesn’t he?
As whistleblower lawyers, we care deeply about how well or how poorly laws are enforced. It not only affects our livelihoods, but it has enormous personal consequences to our clients who are risking so much to do the right thing. And of course lax enforcement breeds contempt and cynicism from the public at large.
So yes of course Presidential elections matter. They determine what kind of Supreme Court we end up with; they determine whether we go to war or not; they determine to a large extent whether the Executive Branch pushes government to work better or go into hibernation.
Professionally speaking, we hope that the country elects a President who understands that “rigged justice” is not justice at all. Why should whistleblowers take personal and professional risks if the investigators, prosecutors, and agencies heads don’t really believe in vigorous enforcement of the laws?