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Stop Trading on Congressional Knowledge Act of 2012

Floor Speech

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Date:
Location: Washington, DC

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The Senator from Connecticut.

Mr. LIEBERMAN. Mr. President, I thank the majority leader. I thank Senator Collins, Senator Brown of Massachusetts, Senator Gillibrand, and a lot of others, who have worked to get us to this point where we can do two things. Most important to those of us who have worked on the STOCK Act is that we are now in a position this afternoon of adopting a clear statement that Members of Congress and our staffs are covered by anti-insider trading rules and that we can also provide for fuller disclosure by Members, making it accessible to the public online.

Instead of coming to a point where the system broke down again and Senator Reid being forced to file a cloture motion, we worked out an agreement here, people were reasonable, and there will be votes on a number of germane amendments--and some that are not, but we have agreed to a 60-vote threshold.

This is the way I think the Senate is supposed to work. Some of these votes will be controversial, some difficult. But that is why we are here. I thank everybody who was part of getting to this point.

I note the presence of the Senator from Massachusetts, Mr. Brown, and I yield to him.

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Mr. LIEBERMAN. Madam President, in 6 or 7 minutes the Senate will begin a series of votes on the matter before us, the STOCK Act. I want to take a few moments to restate the underlying main purpose of the legislation, which is to respond to the public concern, informed by testimony before our committee from experts on securities law, that it is not totally clear that Members of Congress and our staffs are covered by anti-insider trading laws enforced by the SEC. The No. 1 accomplishment of this proposal will be to make that crystal clear.

We are not exempt from that law; we should not be exempt. I presume most Members of Congress have assumed we have never been exempt. But this will make it clear if anybody crosses the line, they cannot defend themselves by saying that Members of Congress are not covered by the law.

We have also added in committee a couple of provisions which embrace the old but still important notion that sunshine is the best disinfectant in government by requiring that the annual financial disclosure reports we file will now be filed electronically and will therefore be available on the Internet. Right now, these are public documents. When they are filed in the Office of the Secretary of the Senate, people have to go there and make copies of them to see them. As Senator Begich, our colleague from Alaska, said: That is not easy if you are an Alaskan. This will bring that system up to date.

The third part--which I know is controversial for some, but I think it is sensible--is to require that within 30 days of any stock trades, disclosure forms must be filed with the Senate and also online. I can tell you that the Securities and Exchange Commission has made clear in testimony before the House committee and in discussions with our staff that that kind of periodic requirement for disclosure of trades in stock and securities will help them do the job we want them to do to make sure that insider trading laws are not being violated and, of course, will keep the public, our constituents, informed of what we are about.

A number of amendments are up. As Senator Reid said, I hope we don't have rollcall votes on all of them. I think a number of them will receive unanimous support on both sides. I hope we can adopt them by voice.

There is one amendment, Senator Shelby's amendment No. 1491, to which, as part of the agreement, I filed a side-by-side, as it were. I support the goal that Senator Shelby has of holding the executive branch accountable in ways similar to the way we are; that is, the amendment, generally speaking, would extend the 30-day reporting requirement, disclosure requirement, to a very large number of executive branch employees. That, to me, is the problem. It is too broad. It would create a cost and an unnecessary reporting system for many executive branch employees.

I want to point out here that when it comes to avoiding and preventing conflicts of interest, the executive branch is probably well ahead of the legislative branch. The ethics rules requirement and guidance put forward over the years by the Office of Government Ethics at the agencies are extensive and address a wide range of potential conflicts of interest and/or improprieties. They have teeth, criminal sanctions.

For instance, high-level executive branch employees already file financial disclosure forms that face a very extensive system of agency review. These agency officials and career civil servants are often forced to divest themselves of their stock holdings if they seem to be in conflict with their responsibilities or to recuse themselves, not to be involved in matters in order to minimize potential conflicts of interest. That is a much different standard than we impose on ourselves, which is the standard of disclosure.

I have introduced a version of Senator Shelby's amendment, which I think achieves his goal in a significant way but not so broadly. Rather than the tens of thousands of people encompassed in the Shelby amendment, mine is targeted at policymakers most equivalent to those of us in Congress and those who work with us; that is, positions in our government that are Senate-confirmed and also certain high-level White House and agency staff who might not be Senate-confirmed but are policymakers. These individuals are public officials with visible high-profile roles, and the extra scrutiny that comes with increased reporting requirements seems to be more appropriate for this group--including the President, Vice President, appointees in the White House, the so-called policy czars, special assistants to the President, as well as members of the Federal Reserve Board.

I hope we can take this significant step to achieve what Senator Shelby had in mind, but not, if I can put it this way, overdo it in a way that will actually, according to comments we have had from people in the executive branch, get in the way of the existing very tough ethics rules they live under now.

I yield the floor at this point.

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Mr. LIEBERMAN. Madam President, this is a highly technical amendment. It simply says the GAO report, required by the underlying bill on the question of political intelligence, be sent not only to the Committee on Government Oversight in the House but also to the Judiciary Committee.

If there is no objection, I urge the adoption of the amendment. I don't believe there is any opposition and, therefore, no need for a rollcall vote.

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Mr. LIEBERMAN. Mr. President, I respectfully oppose the amendment. It would, as the Senator from Kentucky, with his characteristic directness said, strike the entire bill. The affirmation by Members they have not violated insider trading laws is, in my opinion, not enough. In the opinion of the SEC, it is not enough because it doesn't establish the duty of trust this underlying bill does that is required to guarantee charges against a Member of Congress or staff on insider trading will not be successfully defended against on the argument that Members are not covered.
I yield the rest of my time to my friend from Maine.

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Mr. LIEBERMAN. This is one of a series of amendments in which our colleagues are applying ethics rules to the executive branch although the bill, of course, is focused on Members of Congress. In this case, this applies probably the harshest penalty that has ever been applied to members of the executive branch. The fact is, executive branch employees are already subject to an effective, in some ways broader ethics regime than we face now. It is backed up by criminal sanctions. As an example, executive branch employees file financial disclosure forms. Agency ethics officials who examine them can compel divestiture of holdings. They can require the individual to recuse himself from certain matters and, if recusal is not sufficient, the agency can reassign the individual.

In this case, Senator Paul would say that an executive branch employee is forbidden from holding a position in which they or their family have any financial interest of $5,000 or more, so I oppose the amendment.

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The Senator from Connecticut.

Mr. LIEBERMAN. Mr. President, this is a side-by-side with an amendment offered by my friend from Alabama. The question is, How many employees of the executive branch of government should be required to electronically file their disclosure statements? I believe, respectfully, Senator Shelby's amendment requires maybe more than 300,000 Federal employees, including many who filed confidential disclosure statements.

This amendment would include people in the Federal executive branch who hold positions equivalent to those of us in Congress who are policymakers, and that includes the President, the Vice President, appointees in the White House, members of the Federal Reserve Board, and Senior Executive Service. It is the difference between applying this requirement to 2,000 executive employees or more than 300,000 Federal employees.

I yield the remainder of my time.

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Mr. LIEBERMAN. Madam President, I respectfully ask for a ``no'' vote.

As I indicated in support of the side-by-side I offered, executive branch employees are now under very tough ethics regulations requiring, in many cases, divestiture or recusal, and this adds a good requirement which is for some of them to file electronically the disclosure statements they have to make. But the amendment we just passed--mine--would add that requirement to 2,000 of the top-level policymakers in our Federal Government. Senator Shelby's amendment would extend that to more than 300,000 Federal employees, including some, by our count in the Office of Government Ethics, drivers and secretaries.

In addition to the burden it would place on them unduly, we are asking agencies to stretch personnel and resources to fulfill a totally new requirement when, in fact, we want them to save money and not figure out ways to spend more money.

I respectfully ask my colleagues to vote no.

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Mr. LIEBERMAN. Mr. President, I respectfully oppose the amendment put in by my two friends. This would amend the Senate rules to make it out of order for the Senate to proceed to any bill or joint resolution unless the committee of jurisdiction has posted on its Web site a CRS analysis of whether the bill would create a new program, office, or initiative that duplicates or overlaps an existing one. So it sounds pretty good on the surface, but there are two problems. One is that CRS tells us it would be hard-pressed to carry out this responsibility, certainly in a timely manner. The second results from the first, which is that this would be another way to slow legislation because it did not yet have the CRS analysis.

A final point is this: The committees of jurisdiction ought to be making their own judgment and probably know better than CRS whether they are creating a new program that duplicates or overlaps an existing one.

So, respectfully, I would urge a ``no'' vote.

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Mr. LIEBERMAN. But this amendment doesn't fix it. In the bill before the committee, there was a provision to bring so-called political intelligence under the Lobbying Disclosure Act. Political intelligence is defined as information which is intended for use in analyzing securities or commodity markets or information investment decisions, but what does that mean? Does it apply to a retailer who wants to open new stores and calls the Armed Services Committee to see whether there is a base that is going to be built in a particular neighborhood? Some would say yes; some would say no. Violation of the Lobbying Disclosure Act carries civil and criminal penalties. We just felt we wanted to get the anti-insider trading provision out quickly and study this more. The bill calls for a GAO study.
Senator Collins and I announced we are going to hold a hearing on this question. We need a little more time to do it thoughtfully. We are ultimately dealing with first-amendment rights, and we ought not to legislate until we are prepared to do so in a reasonable way.

I ask my colleagues to oppose this amendment.

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Mr. LIEBERMAN. Mr. President, I rise to oppose the amendment. This amendment would take Congress from where we have always been and are going to be after this law passes. In pursuit of disclosure and transparency, sunshine is the best guarantee of integrity. This would be the first time I am aware of that in the legislative branch we would require divestment of personal holdings. For that reason, I oppose the amendment.

Remember, in the underlying bill we have increased the public's access to information about our holdings and our transactions. Ultimately, that knowledge ought to be enough to guarantee the public or to energize the public to make sure we are following the highest ethical norms. Divestment, in my opinion, is a step too far.

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