118 S1486 IS: Presidential Conflicts of Interest Act of 2023
U.S. Senate
2023-05-09
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II
118th CONGRESS
1st Session
S. 1486
IN THE SENATE OF THE UNITED STATES
May 9, 2023
Ms. Warren (for herself, Mr. Murphy, Ms. Stabenow, Mrs. Feinstein, Mr. Casey, Mr. Markey, Mr. Van Hollen, Mr. Blumenthal, Ms. Duckworth, Mr. Merkley, Mr. Brown, Mr. Booker, Mr. Bennet, Mrs. Murray, Mr. Wyden, Mr. Cardin, Ms. Hirono, Mr. Padilla, Mr. Coons, Ms. Klobuchar, Mr. Luján, Mrs. Gillibrand, and Ms. Smith) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
A BILL
To address financial conflicts of interest of the President and Vice President.
1.

Short title
This Act may be cited as the “Presidential Conflicts of Interest Act of 2023”.
2.

Divestiture of personal financial interests of the President and Vice President that pose a potential conflict of interest
(a)

Definitions
(1)

In general
In this section—
(A)
the term conflict-free holding means an interest in a widely held investment fund (whether such fund is a mutual fund, regulated investment company, pension or deferred compensation plan, or other investment fund) that—
(i)
is diversified (as defined in section 2640.102 of title 5, Code of Federal Regulations, as in effect on the date of enactment of this Act); and
(ii)
is—
(I)
publicly traded;
(II)
registered as a management company under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.); or
(III)
a unit investment trust (as defined in section 4 of the Investment Company Act of 1940 15 U.S.C. 80a–4) that is a regulated investment company under section 851 of the Internal Revenue Code of 1986;
(B)
the term financial interest posing a potential conflict of interest means a financial interest of the President, the Vice President, the spouse of the President or Vice President, or a minor child of the President or Vice President, as applicable, that—
(i)
would constitute a financial interest described in subsection (a) of section 208 of title 18, United States Code—
(I)
if—
- (aa)
for purposes of such section 208, the terms officer and employee included the President and the Vice President; and
- (bb)
the President or Vice President, as applicable, participated in a particular matter affecting such financial interest; and
(II)
determined without regard to any exception under subsection (b)(1) of such section 208; or
(ii)
constitutes a present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state (including from an entity owned or controlled by a foreign government), within the meaning of article I, section 9 of the Constitution of the United States;
(C)
the term qualified blind trust has the meaning given that term in section 13104(f)(3) of title 5, United States Code; and
(D)
the term tax return—
(i)
means any Federal income tax return and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return for the taxable year; and
(ii)
includes any information return that reports information that does or may affect the liability for tax for the taxable year.
(2)

Applicability of Ethics in Government requirements
For purposes of the definition of qualified blind trust in this section, the term supervising ethics officer in section 13104(f)(3) of title 5, United States Code, means the Director of the Office of Government Ethics.
(b)

Initial financial disclosure
(1)

Submission of disclosure
(A)

In general
Not later than 30 days after assuming the office of President or Vice President, respectively, the President and Vice President shall submit to Congress and the Director of the Office of Government Ethics a disclosure of financial interests.
(B)

Application to sitting President and Vice President
For any individual who is serving as the President or Vice President on the date of enactment of this Act, the disclosure of financial interests shall be submitted to Congress and the Director of the Office of Government Ethics not later than 30 days after the date of enactment of this Act.
(2)

Contents
(A)

President
The disclosure of financial interests submitted under paragraph (1) by the President shall—
(i)
describe in detail each financial interest of the President, the spouse of the President, or a minor child of the President that is required to be disclosed under regulations of the Office of Government Ethics in addition to the financial interests required to be disclosed under section 13104 of title 5, United States Code; and
(ii)
include the tax returns filed by or on behalf of the President for—
(I)
the 3 most recent taxable years; and
(II)
each taxable year for which an audit of the return by the Internal Revenue Service is pending on the date the report is filed.
(B)

Vice President
The disclosure of financial interests submitted under paragraph (1) by the Vice President shall—
(i)
describe in detail each financial interest of the Vice President, the spouse of the Vice President, or a minor child of the Vice President that is required to be disclosed under regulations of the Office of Government Ethics in addition to the financial interests required to be disclosed under section 13104 of title 5, United States Code; and
(ii)
include the tax returns filed by or on behalf of the Vice President for—
(I)
the 3 most recent taxable years; and
(II)
each taxable year for which an audit of the return by the Internal Revenue Service is pending on the date the report is filed.
(c)

Divestiture of financial interests posing a potential conflict of interest
(1)

In general
The President, the Vice President, the spouse of the President or Vice President, and any minor child of the President or Vice President shall divest of any financial interest posing a potential conflict of interest by—
(A)
converting each such interest to cash or another investment that meets the criteria established by the Director of the Office of Government Ethics through regulation as being an interest so remote or inconsequential as not to pose a conflict; or
(B)
transferring such interest to a qualified blind trust.
(2)

Trustee duties
Within a reasonable period of time after the date a financial interest is transferred to a qualified blind trust under paragraph (1)(B), the trustee of the qualified blind trust shall—
(A)
sell the financial interest; and
(B)
use the proceeds of the sale of the financial interest to purchase conflict-free holdings.
(3)

Regulations
Not later than 120 days after the date of enactment of this Act, the Director of the Office of Government Ethics shall promulgate regulations to define the criteria described in paragraph (1)(A).
(d)

Review by Office of Government Ethics
(1)

In general
The Director of the Office of Government Ethics shall submit to Congress, the President, and the Vice President an annual report regarding the financial interests of the President, the Vice President, the spouse of the President or Vice President, and any minor child of the President or Vice President.
(2)

Contents
Each report submitted under paragraph (1) shall—
(A)
indicate whether any financial interest of the President, the Vice President, the spouse of the President or Vice President, or a minor child of the President or Vice President is a financial interest posing a potential conflict of interest;
(B)
evaluate whether any previously held financial interest of the President, the Vice President, the spouse of the President or Vice President, or a minor child of the President or Vice President that was a financial interest posing a potential conflict of interest was divested in accordance with subsection (c); and
(C)
redact such information as the Director of the Office of Government Ethics determines necessary for preventing identity theft, such as social security numbers or taxpayer identification numbers.
(3)

Trustee responsibility
If the President, the Vice President, the spouse of the President or Vice President, or any minor child of the President or Vice President transfers 1 or more interests to a qualified blind trust under subsection (c)(1)(B), the trustee for the qualified blind trust shall assist the Director in complying with paragraph (2)(B) of this subsection by notifying the Director of the Office of Government Ethics when all initial property of the qualified blind trust has been sold and furnishing such other information as the Director may require.
(e)

Enforcement
(1)

In general
The Attorney General, the attorney general of any State, or any person aggrieved by any violation of subsection (c) may seek declaratory or injunctive relief in a court of competent jurisdiction if—
(A)
the Director of the Office of Government Ethics is unable to issue a report indicating whether the President or the Vice President is in substantial compliance with subsection (c); or
(B)
there is probable cause to believe that the President or the Vice President has not complied with subsection (c).
(2)

Fair market value
In granting injunctive relief to the plaintiff, the court shall ensure that any divestment procedure is reasonably calculated to ensure the fair market return for any asset that is liquidated.
3.

Recusal of appointees
Section 208 of title 18, United States Code, is amended by adding at the end the following:
“(e)
(1)
Any officer or employee appointed by the President shall recuse himself or herself from any particular matter involving specific parties in which a party to that matter is—
(A)
the President who appointed the officer or employee, which shall include any entity in which the President has a substantial interest; or
(B)
the spouse of the President who appointed the officer or employee, which shall include any entity in which the spouse of the President has a substantial interest.
(2)
(A)
Subject to subparagraph (B), if an officer or employee is recused under paragraph (1), a career appointee in the agency of the officer or employee shall perform the functions and duties of the officer or employee with respect to the matter.
(B)
(i)
In this subparagraph, the term Commission means a board, commission, or other agency for which the authority of the agency is vested in more than 1 member.
(ii)
If the recusal of a member of a Commission from a matter under paragraph (1) would result in there not being a statutorily required quorum of members of the Commission available to participate in the matter, notwithstanding such statute or any other provision of law, the members of the Commission not recused under paragraph (1) may—
(I)
consider the matter without regard to the quorum requirement under such statute;
(II)
delegate the authorities and responsibilities of the Commission with respect to the matter to a subcommittee of the Commission; or
(III)
designate an officer or employee of the Commission who was not appointed by the President who appointed the member of the Commission recused from the matter to exercise the authorities and duties of the recused member with respect to the matter.
(3)
Any officer or employee who knowingly and willfully violates paragraph (1) shall be subject to the penalties set forth in section 216.
(4)
For purposes of this section, the term particular matter shall have the meaning given the term in section 207(i).”.
4.

Contracts by the President or Vice President
(a)

Amendment
Section 431 of title 18, United States Code, is amended—
(1)
in the section heading, by inserting “the President, Vice President, or a” after “Contracts by”; and
(2)
in the first undesignated paragraph, by inserting “the President or Vice President,” after “Whoever, being”.
(b)

Table of sections amendment
The table of sections for chapter 23 of title 18, United States Code, is amended by striking the item relating to section 431 and inserting the following:
“431. Contracts by the President, Vice President, or a Member of Congress.”.
5.

Presidential tax transparency
(a)

Disclosure requirement
(1)

in general
Chapter 131 of title 5, United States Code, is amended—
(A)
by inserting after section 13104 the following:
“13104A.

Disclosure of tax returns
(a)

Definitions
In this section—
(1)
the term covered candidate means an individual—
(A)
required to file a report under section 13103(c); and
(B)
who is nominated by a major party as a candidate for the office of President; and
(2)
the term covered individual means—
(A)
a President required to file a report under subsection (a) or (d) of section 13103; and
(B)
an individual who occupies the office of the President required to file a report under section 13103(e);
(3)
the term income tax return means, with respect to any covered candidate or covered individual, any return (within the meaning of section 6103(b) of the Internal Revenue Code of 1986) related to Federal income taxes, but does not include—
(A)
information returns issued to persons other than such covered candidate or covered individual, and
(B)
declarations of estimated tax; and
(4)
the term major party has the meaning given the term in section 9002 of the Internal Revenue Code of 1986.
(b)

Disclosure
(1)

Covered individuals
(A)

In general
In addition to the information described in subsections (a) and (b) of section 13104, a covered individual shall include in each report required to be filed under this subchapter a copy of the income tax returns of the covered individual for the 3 most recent taxable years for which a return have been filed with the Internal Revenue Service as of the date on which the report is filed.
(B)

Failure to disclose
If an income tax return is not disclosed under subparagraph (A), the Director of the Office of Government Ethics shall submit to the Secretary of the Treasury a request that the Secretary of the Treasury provide the Director of the Office of Government Ethics with a copy of the income tax return.
(C)

Publicly available
Each income tax return submitted under this paragraph shall be filed with the Director of the Office of Government Ethics and made publicly available in the same manner as the information described in subsections (a) and (b) of section 13104.
(D)

Redaction of certain information
Before making any income tax return submitted under this paragraph available to the public, the Director of the Office of Government Ethics shall redact such information as the Director of the Office of Government Ethics, in consultation with the Secretary of the Treasury (or a delegate of the Secretary), determines appropriate.
(2)

Candidates
(A)

In general
Not later than 15 days after the date on which a covered candidate is nominated, the covered candidate shall amend the report filed by the covered candidate under section 13103(c) with the Federal Election Commission to include a copy of the income tax returns of the covered candidate for the 3 most recent taxable years for which a return has been filed with the Internal Revenue Service.
(B)

Failure to disclose
If an income tax return is not disclosed under subparagraph (A), the Federal Election Commission shall submit to the Secretary of the Treasury a request that the Secretary of the Treasury provide the Federal Election Commission with the income tax return.
(C)

Publicly available
Each income tax return submitted under this paragraph shall be filed with the Federal Election Commission and made publicly available in the same manner as the information described in section 13104(b).
(D)

Redaction of certain information
Before making any income tax return submitted under this paragraph available to the public, the Federal Election Commission shall redact such information as the Federal Election Commission, in consultation with the Secretary of the Treasury (or a delegate of the Secretary) and the Director of the Office of Government Ethics, determines appropriate.
(3)

Special rule for sitting Presidents
Not later than 30 days after the date of enactment of this section, the President shall submit to the Director of the Office of Government Ethics a copy of the income tax returns described in paragraph (1)(A).”; and
(B)
in section 13106—
(i)
in subsection (a)—
(I)
in paragraph (1), in the first sentence, by inserting “or any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file an income tax return that such individual is required to disclose pursuant to section 13104A” before the period; and
(II)
in paragraph (2)(A)—
- (aa)
in clause (i), by inserting “or falsify any income tax return that such person is required to disclose under section 13104A” before the semicolon; and
- (bb)
in clause (ii), by inserting “or fail to file any income tax return that such person is required to disclosed under section 13104A” before the period;
(ii)
in subsection (b), in the first sentence by inserting “or willfully failed to file or has willfully falsified an income tax return required to be disclosed under section 13104A” before the period;
(iii)
in subsection (c), by inserting “or failing to file or falsifying an income tax return required to be disclosed under section 13104A” before the period; and
(iv)
in subsection (d)(1)—
(I)
in the matter preceding subparagraph (A), by inserting “or files an income tax return required to be disclosed under section 13104A” after “subchapter”; and
(II)
in subparagraph (A), by inserting “or such income tax return, as applicable,” after “report”.
(2)

Conforming amendment
The table of sections for chapter 131 of title 5, United States Code, is amended by inserting after the item relating to section 13104 the following:
“13104A. Disclosure of tax returns.”.
(b)

Authority To disclose information
(1)

In general
Section 6103(l) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:
“(23)

Disclosure of return information of Presidents and certain presidential candidates
(A)

Disclosure of returns of Presidents
(i)

In general
The Secretary shall, upon written request from the Director of the Office of Government Ethics pursuant to section 13104A(b)(1)(B) of title 5, United States Code, provide to officers and employees of the Office of Government Ethics a copy of any income tax return of the President which is required to be filed under section 13104A of such title.
(ii)

Disclosure to public
The Director of the Office of Government Ethics may disclose to the public the income tax return of any President which is required to be filed with the Director pursuant to section 13104A of title 5, United States Code.
(B)

Disclosure of returns of certain candidates for President
(i)

In general
The Secretary shall, upon written request from the Chairman of the Federal Election Commission pursuant to section 13104A(b)(2)(B) of title 5, United States Code, provide to officers and employees of the Federal Election Commission copies of the applicable returns of any person who has been nominated as a candidate of a major party (as defined in section 9002(a)) for the office of President.
(ii)

Disclosure to public
The Federal Election Commission may disclose to the public applicable returns of any person who has been nominated as a candidate of a major party (as defined in section 9002(6)) for the office of President and which is required to be filed with the Commission pursuant to section 13104A of title 5, United States Code.
(C)

Applicable returns
For purposes of this paragraph, the term applicable returns means, with respect to any candidate for the office of President, income tax returns for the 3 most recent taxable years for which a return has been filed as of the date of the nomination.”.
(2)

Conforming amendments
Section 6103(p)(4) of such Code, in the matter preceding subparagraph (A) and in subparagraph (F)(ii), is amended by striking “or (22)” and inserting “(22), or (23)” each place it appears.
6.

Sense of Congress regarding violations
It is the sense of Congress that a violation of section 2 of this Act or chapter 131 of title 5, United States Code, by the President or the Vice President would constitute a high crime or misdemeanor under article II, section 4 of the Constitution of the United States.
7.

Rule of construction
Nothing in this Act or an amendment made by this Act shall be construed to violate the Constitution of the United States.
8.

Severability
If any provision of this Act or any amendment made by this Act, or any application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the amendments made by this Act, and the application of the provision or amendment to any other person or circumstance, shall not be affected.