II 111th CONGRESS 1st Session S. 195 IN THE SENATE OF THE UNITED STATES January 9, 2009 Mr. Dorgan introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs A BILL To extend oversight, accountability, and transparency provisions of the Emergency Economic Assistance Act of 2008 to all Federal emergency economic assistance to private entities, to impose tough conditions for all recipients of such emergency economic assistance, to set up a Federal task force to investigate and prosecute criminal activities that contributed to our economic crisis, and to establish a bipartisan financial market investigation and reform commission, and for other purposes.

1.

Short title

This Act may be cited as the Taxpayer Protection Act.

2.

Increased oversight over Federal emergency economic assistance

(a)

In general

Notwithstanding any other provision of law, a Federal financial entity that provides emergency economic assistance to any private entity or group of private entities shall be subject to the oversight, reporting, accountability, and transparency provisions of sections 104, 105, 108, 116, 121, and 125 of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5214, 5215, 5218, 5226, 5231, 5233), in the same manner as those sections apply with respect to assistance provided under that Act. (b)

Monthly reports to Congress

Each Federal financial entity that provides emergency economic assistance to any private entity or group of entities shall make monthly reports to Congress that provide, among other relevant information, the names and other details about the private entities receiving such financial assistance, together with a full description of the collateral or other interests granted to the Federal financial entity to ensure that taxpayers are repaid, to the maximum extent possible. (c)

Definition

As used in this Act, the term Federal financial entity means— (1)the Secretary of the Treasury; (2)each member of the Financial Institutions Examination Council established under section 1004 of the Federal Financial Institutions Examination Council Act of 1978 (12 U.S.C. 3303); and (3)the Federal Housing Finance Agency.

3.

Establish conditions for emergency economic assistance

(a)

In general

Notwithstanding any other provision of law, before receiving funds under any program by a Federal financial entity to provide emergency economic assistance to private entities or groups of entities (including assistance under the Emergency Economic Stabilization Act of 2008), the intended recipient of such assistance shall agree, in writing— (1)to provide a detailed monthly report to Congress about how emergency economic assistance provided to such entity or group of entities is being used to meet the intended objectives and goals of such assistance; (2)to permit the Federal financial entity providing such assistance access to personnel and any books, papers, records, or other data that may be relevant to the assistance, including compliance with the financial terms and conditions, and the right to audit such activities; (3)to limit executive compensation and annual executive compensation tax deductions, to prohibit golden parachutes for officers and directors, and prohibit the payment of dividends or other distributions, as provided, to the maximum extent possible, in section 111 of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5221) and regulations and notices issued thereunder; (4)to prohibit bonuses or incentive compensation awards to the 25 most highly compensated employees of the recipient; (5)to prohibit any compensation plan that could encourage manipulation of reported earnings to enhance the compensation of any employee; (6)to prohibit the use of emergency economic assistance for entertainment and lobbying expenditures; (7)to sell or divest itself of any privately owned passenger aircraft or interest in such aircraft, and to prohibit the leasing of any such aircraft by or on behalf of any officer, director, or employee of the recipient; and (8)to such other appropriate standards for executive compensation and corporate governance as the Federal financial entity overseeing the provision of such assistance determines appropriate. (b)

Applicability

Subsection (a) shall apply whether or not the recipient of emergency economic assistance from a Federal financial entity sells assets to the Federal financial entity. (c)

Duration

The provisions of subsection (a) shall apply, and the written agreement of the recipient of assistance described in subsection (a) shall remain in effect, until such time as all obligations to the Federal financial entity are repaid in full, and such entity ceases to own any equity securities, including warrants or collateral, acquired from the recipient of such assistance. (d)

Violations

A violation of any provision of an agreement described in subsection (a) by the recipient of emergency economic assistance from a Federal financial entity shall be considered a default on the obligation of the recipient to the Federal financial entity, and such obligation shall be immediately due and payable to the Federal financial entity. The Federal financial entity shall be entitled to any and all remedies pursuant to such agreement and otherwise available under applicable provisions of law.

4.

Creation of a taxpayer protection prosecution task force

(a)

In general

The Attorney General of the United States shall immediately establish a Taxpayer Protection Prosecution Task Force (referred to in this section as the Task Force) . (b)

Duties

The Task Force shall— (1)investigate and prosecute financial fraud cases or any other violation of law that contributed to the collapse of our financial markets; and (2)seek to claw back any ill-gotten gains, particularly by those who received billions of dollars in compensation creating the real estate and financial bubble. (c)

Membership

The membership of the Task Force shall include— (1)Department of Justice attorneys acting as a team of Federal prosecutors; (2)special agents from the Federal Bureau of Investigation, the Internal Revenue Service, and United States Postal Service; and (3)additional assistance from the Board of Governors of the Federal Reserve System, the Securities and Exchange Commission, and other Federal banking regulators or investigators. (d)

Staffing

The Task Force shall be staffed by Department of Justice career attorneys, enforcement attorneys, and other private and public sector legal professionals and experts in the violations of law under investigation. (e)

Director

The Director of the Task Force shall be appointed by the President, subject to the advice and consent of the Senate. (f)

Outside employment

The Director of the Task Force and all professional members of the staff shall for a period of 2 years after their employment with the Task Force be prohibited from directly or indirectly representing any client in or in connection with any investigation relating to any of the work of the Task Force. (g)

Report

The Task Force shall file— (1)a public report directly with Congress every 6 months on its activities; and (2)if necessary, a classified annex to protect the confidentiality of ongoing investigations or attorney-client privilege or other non-public information. (h)

Statute of limitations recommendation

The Task Force shall make recommendations to Congress not later than 60 days after the date of the establishment of the Task Force about extending the statute of limitation for complex financial fraud and other similar cases.

5.

Establishment of financial market investigation and reform commission to learn how the economic crisis happened

(a)

Establishment of commission

There is established the Financial Market Investigation and Reform Commission (in this Act referred to as the Commission), the purposes of which are— (1)to examine and report on the facts and causes of the collapse of the Nation’s financial system and credit crisis; (2)to ascertain, evaluate, and report on the extent to which Federal entities had information on financial practices that they knew or should have known were risky or reckless, and posed a threat to the well being of the Nation’s financial system; (3)to build on any investigations by the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives, by other congressional committees and the Federal banking agencies (as that term is defined in section 3 of the Federal Deposit Insurance Act), and the Securities and Exchange Commission) to avoid duplication of effort; (4)to make a full and complete report of the reasons for the worst financial system collapse since the Great Depression; and (5)to report to the President and the Congress on its findings, conclusions, and legislative and regulatory recommendations to prevent a similar financial crisis in the future. (b)

Membership

The Commission shall be composed of 10 members, of whom— (1)1 member shall be appointed by the President, who shall serve as chairperson of the Commission; (2)1 member shall be appointed by the minority leader of the Senate, in consultation with the minority leader of the House of Representatives, who shall serve as vice-chairperson of the Commission; (3)2 members shall be appointed by the majority leader of the Senate; (4)2 members shall be appointed by the minority leader of the Senate; (5)2 members shall be appointed by the Speaker of the House of Representatives; and (6)2 members shall be appointed by the minority leader of the House of Representatives. (c)

Qualifications; initial meeting

(1)

Conflicts of interest

No member of the Commission may be an employee, or an immediate family member of an employee, of a private entity or group of private entities that has received or applied for emergency economic assistance from any Federal financial entity (as defined in section 2). (2)

Criteria

Members of the Commission shall be chosen from among United States citizens with national recognition and expertise in— (A)the operations of United States and global financial markets; (B)the safety and soundness of United States financial institutions; (C)the use of complex derivatives and other structured financial instruments; or (D)the investigation and prosecution of fraud and other intricate financial crimes. (3)

Limitation on public service

Not more than 2 members of the Commission may be appointed from among Federal, State, or local government employees. (4)

Timing

Members of the Commission shall be appointed not later than 30 days after the date of enactment of this Act. (5)

Meetings

The Commission shall meet not later than 45 days after the date of enactment of this Act. After the initial meeting, the Commission shall meet upon the call of the chairperson or a majority of the members of the Commission. (6)

Quorum; vacancies

Six members of the Commission shall constitute a quorum. Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made. (7)

Procedures

To carry out this Act, the Commission may establish, by majority vote, any other rules for the conduct of the business of the Commission, if such rules are not inconsistent with this Act or other applicable law. (d)

Powers and duties

The Commission may— (1)hold hearings, take testimony, and collect evidence, by subpoena or otherwise; (2)issue subpoenas, under the signature of the chairperson or any member designated by a majority of the members of the Commission, by agreement of the chairperson and vice-chairperson, or by the affirmative vote of 6 members of the Commission, and may enforce the subpoena in the United States district court for the judicial district in which the subpoenaed person resides; (3)contract with appropriate entities to enable the Commission to discharge its duties; (4)obtain information from Federal departments and agencies; (5)obtain assistance from Federal agencies, including the General Services Administration, for support services and other agencies for services, funds, facilities, and staff, as needed; (6)accept, use, and dispose of gifts or donations of services and property; and (7)use the United States mails, in the same manner as Federal departments and agencies. (e)

Conflicts of interest

The Commission shall issue rules to manage or prohibit conflicts of interest involving its members, staff, consultants, and any others providing assistance to the Commission. (f)

Reports

The Commission shall submit to Congress 2 interim reports to discuss the Commission’s progress. The Commission’s final report shall be submitted to Congress 12 months after the date of enactment of this Act. (g)

Administrative support

Upon the request of the Commission, the Administrator of General Services shall provide to the Commission, on a reimbursable basis, the administrative support services necessary for the Commission to carry out its responsibilities under this Act, including human resource management, budget, leasing, accounting, and payroll services. (h)

Pay

(1)

Nongovernment employees

Each member of the Commission who is not otherwise employed by a Federal, State, or local government entity shall be entitled to receive the daily equivalent of the annual rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5 United States Code, as in effect from time to time, for each day (including travel time) during which such member is engaged in the actual performance of duties of the Commission. (2)

Government employees

A member of the Commission who is an officer or employee of a Federal, State or local government entity shall serve without additional pay (or benefits in the nature of compensation) for service as a member of the Commission. (i)

Travel expenses

Members of the Commission shall receive travel expenses, including per diem in lieu of subsistence, in accordance with subchapter I of chapter 57 of title 5, United States Code 55. (j)

Staff

(1)

Appointment and compensation

The chairperson of the Commission, in consultation with the vice-chairperson, in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of a staff director and such other personnel as may be necessary to enable the Commission to carry out its functions, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter II of chapter 53 of such title relating to classification and General Schedule pay rates, except that no rate of pay fixed under this subsection may exceed the equivalent of that payable for a position at level V of the Executive Schedule under section 5316 of title 5, United States Code. (2)

Personnel as Federal employees

(A)

In general

Any personnel of the Commission shall be employees under section 2105 of title 5, United States Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title. (B)

Detailees

Any Federal Government employee may be detailed to the Commission without reimbursement from the Commission, and such detailee shall retain the rights, status, and privileges of his or her regular employment without interruption. (C)

Consultant services

The Commission is authorized to procure the services of experts and consultants in accordance with section 3109 of title 5, United States Code, but at rates not to exceed the daily rate paid to a person occupying a position at level IV of the Executive Schedule under section 5315 of title 5, United States Code. (k)

Termination

The Commission shall terminate 60 days after the date of submission of its final report under subsection (f). (l)

Funding

There are authorized to be appropriated to the Commission such sums as are necessary to carry out this Act, to remain available, without fiscal year limitation, until the termination of the Commission.