II 111th CONGRESS 1st Session S. 431 IN THE SENATE OF THE UNITED STATES February 12, 2009 Mr. Whitehouse introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs A BILL To establish the Temporary Economic Recovery Adjustment Panel to curb excessive executive compensation at firms receiving emergency economic assistance.

1.

Short title

This Act may be cited as the Economic Recovery Adjustment Act of 2009.

2.

Findings

Congress finds that— (1)the deterioration of financial firms in 2008 and the resulting crisis of confidence in the financial markets have required broad intervention by the Federal Government in the financial sector; (2)the Emergency Economic Stabilization Act of 2008, signed by President Bush on October 3, 2008, included a $700,000,000,000 Troubled Asset Relief Program (or TARP) for the express purpose of providing stability to and preventing disruption in the economy and financial system; (3)the investment and commercial banks and other financial institutions that have received taxpayer-funded bailouts perform public functions supporting the operation of the economy, in addition to their private profit-making functions; (4)reports of billions of dollars in compensation and obligations to executives have eroded public confidence in the TARP, and have caused increasing opposition to other bailout proposals, thereby impeding the Government’s ability to address the financial crisis; (5)participation in the TARP and any other Federal Government bailout program should be conditioned on a fair restructuring of executive compensation obligations; (6)taxpayer dollars should not support unreasonable compensation to executives, particularly when in the absence of taxpayer support, such compensation would be reduced as part of a bankruptcy restructuring or liquidation; and (7)establishing a due process forum will allow the Government to ensure that executive compensation relying on taxpayer funds is fair and reasonable, and that all sides enjoy an opportunity to be heard.

3.

Definitions

In this Act, the following definitions shall apply: (1)

Assisted entity

The term assisted entity means any recipient or applicant for assistance under the TARP. (2)

Panel

The term Panel means the Temporary Economic Recovery Oversight Panel established under section 7. (3)

Executive compensation

The term executive compensation means wages, salary, deferred compensation, benefits, retirement arrangements, options, bonuses, office fixtures, goods, or other property, travel, or entertainment, vacation expenses, and any other form of compensation, obligation, or expense that is not routinely provided to all other employees of the assisted entity. (4)

Office

The term Office means the Office of the Taxpayer Advocate, established under section 4. (5)

TARP

The terms TARP and TARP funds mean the Troubled Asset Relief Program established under section 101 of the Emergency Economic Stabilization Act of 2008 and funds received thereunder, respectively, or pursuant to any successor program. (6)

Secretary

The term Secretary means Secretary of the Treasury.

4.

Taxpayer Advocate

(a)

Establishment

There is established within the Department of Justice, the Office of the Taxpayer Advocate. (b)

Advocate

The Office shall be headed by an Advocate, to be appointed by the Attorney General of the United States for such purpose. (c)

Duties

The Advocate is authorized to conduct ongoing audits and oversight of the recipients of TARP funds with respect to compensation of the officers and directors of such entities. (d)

Access to records

(1)

In general

To the extent otherwise consistent with law, the Advocate and the Office shall have access, upon request, to any information, data, schedules, books, accounts, financial records, reports, files, electronic communications, or other papers, things, or property belonging to or in use by the assisted entity and to the officers, directors, employees, independent public accountants, financial advisors, and other agents and representatives thereof (as related to the agent or representative’s activities on behalf of or under the authority of the assisted entity) at such reasonable time as Office may request. (2)

Copies

The Advocate may make and retain copies of such books, accounts, and other records as the Advocate deems appropriate for the purposes of this Act. (e)

Reporting

The Advocate shall submit quarterly reports of findings under this Act to the appropriate committees of Congress, the Secretary and the Special Inspector General for the TARP established under the Emergency Economic Stabilization Act of 2008 on the activities and performance of the Office. (f)

Audits

The Office is authorized to conduct an audit of any assisted entity for purposes of this Act.

5.

Powers of the Office

(a)

Investigations and evidence

The Office may, for purposes of carrying out this Act— (1)take depositions or other testimony, receive evidence, and administer oaths; and (2)require, by subpoena or otherwise, the attendance and testimony of witnesses and the production of books, records, correspondence, memoranda, papers, and documents. (b)

Subpoenas

(1)

Service

Subpoenas issued under subsection (a)(2) may be served by any person designated by the Office. (2)

Enforcement

(A)

In general

In the case of contumacy or failure to obey a subpoena issued under subsection (a)(2), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court. (B)

Additional enforcement

Sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192 through 194) shall apply in the case of any failure of any witness to comply with any subpoena or to testify when summoned under the authority of this section. (c)

Information from Federal agencies

The Office may secure directly from any department, agency, or instrumentality of the United States any information related to any inquiry of the Office conducted under this Act. Each such department, agency, or instrumentality shall, to the extent authorized by law, furnish such information directly to the Office, upon request.

6.

Executive compensation authority

(a)

Negotiated reductions authorized

The Advocate is authorized to assist the Secretary in the negotiation of assistance under the TARP, in order to assure that fair and reasonable executive compensation is paid by entities receiving TARP funds, and to defend any such agreements in the event of any challenge to the adjustments to compensation obligations. If, after an audit authorized by this Act, the Advocate finds reason to believe that any assisted entity would have become insolvent if not for the receipt of assistance under the TARP, the Advocate shall negotiate a reduction in the executive compensation obligations of the assisted entity as a condition of the continuing use or future receipt of such TARP assistance. (b)

Form

Negotiated reductions in compensation under subsection (a)— (1)may include vested deferred compensation; and (2)shall be in an amount that is fair and reasonable in light of the taxpayers' assistance, but not less than the estimated value of the compensation obligations that would face the estate or debtor-in-possession if the TARP funds had not been granted and the entity had filed for bankruptcy protection. (c)

Certification to adjustment panel

The Advocate shall certify the findings of the Office under this section to the Panel.

7.

Temporary Economic Recovery Oversight Panel

(a)

Establishment

There is established the Temporary Economic Recovery Oversight Panel. (b)

Makeup of Panel

The Panel shall be comprised of 5 members, appointed by the President for such purpose from among United States bankruptcy court judges. The Secretary shall provide for appropriate space and staff to support the functioning of the Panel. (c)

Duties

The Panel shall— (1)promptly evaluate each proposed settlement reached under section 6; (2)approve or deny such proposed settlement; and (3)if no settlement is reached under section 6, upon petition of the Advocate or any individual subject to the actions of the Advocate under section 6, issue an order establishing an executive compensation program for such individuals in accordance with this section. (d)

Notice and hearing required

The Advocate shall provide adequate notice to all affected persons of its intention to seek an order from the Panel in accordance with this section, and the Panel shall hold an evidentiary hearing on any proposed settlement or petition of the Advocate. (e)

Standing

Under any proceeding before the Panel, any individual whose compensation might be adversely affected by Panel action shall be a party in interest, having full procedural rights, including the right to challenge a settlement between the assisted entity and the Advocate, to challenge the certified findings of the Advocate, or to appeal any order of the Panel. (f)

Appeals

The Advocate and any party having standing before the Panel shall have the right to appeal an order under this Act directly to the United States Court of Appeals for the District of Columbia Circuit. (g)

Effective period

Any order of the Panel setting forth a reduction in compensation shall be effective 6 months after confirmation, and shall remain in effect while any obligation arising from assistance provided under the TARP remains outstanding.