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    Op-Ed
    Saturday, May 18, 2024

    Here's how to ban congressional stock trading so politicians can't cheat

    Americans can hardly agree on anything anymore, but people across the political spectrum have had it with Capitol Hill's stock trading scandals. Last month, a Fox News poll found that 70 percent of registered voters were in favor of a ban on current members of Congress and their immediate family and staff trading stocks. The public is fed up.

    Our otherwise divided Congress, meanwhile, has long been united by its willingness to dodge ethics rules and avoid enacting meaningful ethical restrictions. When Congress created the federal conflict of interest law, it conveniently exempted its own members and staffers. There's nothing stopping a member such as Sen. Joe Manchin III, D-W. Va., from voting to block an environmental bill that would affect his own investment in waste coal. There's also nothing stopping other members from making suspiciously timed stock trades after receiving confidential government briefings on market-moving information.

    That could change, however, now that Congress is poised to ban congressional stock trading with bipartisan support. But the details of a policy such as this are everything. Depending on which of several competing bill prevails, Congress either will take a first step toward creating a real ethics program or will give us more window dressing for legalized corruption.

    The last time the public similarly demanded a change, Congress pulled a fast one by passing the nearly useless Stop Trading on Congressional Knowledge Act of 2012 (Stock Act). That law did not bar members from owning or trading stocks, which would remove opportunities for insider trading. All it did was shorten the deadline for disclosure, so it's no surprise this toothless law failed to prevent suspicious trades. In fact, former congressman Chris Collins, R-N.Y., pleaded guilty to insider trading in 2019. During the pandemic, the Justice Department investigated four senators on suspicion of insider trading related to the pandemic. Those probes were closed without action, but the appearance of impropriety left a stain. To make matters worse, some in Congress have shown they can't even be bothered to meet the disclosure deadline.

    Now, a decade after Congress conned the public with the Stock Act, there's a danger that its members could pass another ineffectual law to look as though they're addressing the public's concern without having to change their disgraceful behavior. Several proposals on the table fall short.

    Sen. Josh Hawley, R-Mo., has introduced a bill with a cumbersome enforcement mechanism that seems designed to fail. His bill would entitle a member to a vote by the full Senate or House before any fine is collected — a process bound to end in partisan side-taking. And while the bill authorizes a fine, it doesn't say how much, so the ethics committees may lack authority (or, at least, the nerve) to collect a significant sum. The bill does require members to forfeit profits or tax deductions from unauthorized transactions, but only sales and not purchases generate profits or deductible losses.

    Sen. Jeff Merkley, D-Ore., has introduced a weak ban that doesn't apply to members' spouses and lets members keep stocks they owned before taking office.

    Passing a bill with any of these deficiencies would be worse than doing nothing at all because it would once again let Congress hide behind the illusion of reform.

    In contrast, Sens. Jon Ossoff, D-Ga., and Mark Kelly, D-Ariz., introduced a stronger bill, the Ban Congressional Stock Trading Act. It improves on the Trust In Congress Act, previously introduced by Rep. Abigail Spanberger, D-Va., who was the first and most vigorous champion of a stock trading ban, and Rep. Chip Roy, R-Texas. Spanberger and Ossoff and their respective co-sponsors have proposed that members and their spouses divest several types of assets or put them in blind trusts they don't control, which would foreclose opportunities for insider trading.

    Ossoff's bill has a strong enforcement mechanism, applies to spouses and dependent children, and contains a crucial disclosure requirement. His bill would empower each ethics committee to assess a fine equal to a month's salary and to keep assessing successive fines in that amount for each month the member remains in noncompliance. A member would have no right to demand the full chamber vote on whether to dismiss the fine.

    Under an existing law, members can put assets, rather than just cash, into blind trusts. And lawmakers are notified when the trustee sells an asset, but the public is not, giving members more insight into their conflicts of interest than the public has. Ossoff addresses that problem in his bill by requiring all sale notices to be released publicly. The public would finally know which members have truly eliminated their conflicts of interest and which are only pretending not to know what they own. The disclosure is important because it would give the public a tool in pressuring members to sell off conflicting assets instead of just concealing them in blind trusts.

    Last week, Sens. Elizabeth Warren, D-Mass., and Steve Daines, R-Mont., introduced a bill, the Bipartisan Ban on Congressional Stock Ownership Act, that would bar members and their spouses not only from trading but also from owning stock in large corporations. This approach would meaningfully improve the situation, too. Although it goes further than the Ban Congressional Stock Trading Act by prescribing the strong medicine of divestiture for stocks, rather than the creation of a blind trust, it doesn't cover as many types of assets as Ossoff and Kelly's bill would. The two bills are therefore complementary and could be combined to magnify their effect on government ethics.

    Some opponents have objected that it's unfair to apply these proposed restrictions to spouses or children. If this resistance to government ethics weren't so sinister, it would be laughable. While working at the Office of Government Ethics, one of us (Shaub) spent over a decade forcing presidential nominees for Senate-confirmed posts to comply with a conflict of interest law that applied to them, their spouses and their minor children. In all those years, no senator picked up the phone after reading a nominee's ethics agreement to complain that making the nominee's spouse divest assets was unfair. Not once. Only now that similar requirements may apply to their own spouses and children do members of Congress suddenly care. And if they really see these restrictions as onerous, they could easily opt out of them by simply going back to private life.

    In truth, we'd like to see an even stricter ban — one that applies not only to members of Congress, their spouses and their minor children but also to their senior staffers, the president and vice president, political appointees and judges — and that limits the holdings they can own to diversified mutual funds and Treasuries (with narrow exceptions applicable only in unusual circumstances).

    But the bills Ossoff, Kelly, Warren and Daines have introduced are a strong first step in the right direction. After passing these bills, or an amalgam of them, Congress could use the momentum to establish the stricter ban we propose. The public has entrusted government leaders with great power; it's time those leaders realized that they must put the public above all else.

    Ours is not the radical position. The radical position is asking Americans to continue accepting the low ethical standard to which Congress has held itself.

    Walter M. Shaub Jr., is a former director of the U.S. Office of Government Ethics. He currently serves as senior ethics fellow with the Project On Government Oversight.

    Liz Hempowicz is the director of public policy at the Project On Government Oversight. 

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