[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Pages S5599-S5601]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 6068. Mr. CRAMER submitted an amendment intended to be proposed to 
amendment SA 5499 submitted by Mr. Reed (for himself and Mr. Inhofe) 
and intended to be proposed to the bill H.R. 7900, to authorize 
appropriations for fiscal year 2023 for military activities of the 
Department of Defense, for military construction, and for defense 
activities of the Department of Energy, to prescribe military personnel 
strengths for such fiscal year, and for other purposes; which was 
ordered to lie on the table; as follows:

       At the appropriate place, insert the following:

                  TITLE _____--FAIR ACCESS TO BANKING

     SEC. ___01. SHORT TITLE.

       This title may be cited as the ``Fair Access to Banking 
     Act''.

[[Page S5600]]

  


     SEC. ___02. FINDINGS.

       Congress finds that--
       (1) article I of the Constitution of the United States 
     guarantees the people of the United States the right to enact 
     public policy through the free and fair election of 
     representatives and through the actions of State legislatures 
     and Congress;
       (2) banks rightly objected to the Operation Choke Point 
     initiative through which certain government agencies 
     pressured banks to cut off access to financial services to 
     lawful sectors of the economy;
       (3) banks are now, however, increasingly employing 
     subjective, category-based evaluations to deny certain 
     persons access to financial services in response to pressure 
     from advocates from across the political spectrum whose 
     policy objectives are served when banks deny certain 
     customers access to financial services;
       (4) the privatization of the discriminatory practices 
     underlying Operation Choke Point by banks represents as great 
     a threat to the national economy, national security, and the 
     soundness of banking and financial markets in the United 
     States as Operation Choke Point itself;
       (5) banks are supported by the United States taxpayers and 
     enjoy significant privileges in the financial system of the 
     United States and should not be permitted to act as de facto 
     regulators or unelected legislators by withholding financial 
     services to otherwise credit worthy businesses based on 
     subjective political reasons, bias or prejudices;
       (6) banks are not well-equipped to balance risks unrelated 
     to financial exposures and the operations required to deliver 
     financial services;
       (7) the United States taxpayers came to the aid for large 
     banks during the great recession of 2008 because they were 
     deemed too important to the national economy to be permitted 
     to fail;
       (8) when a bank predicates the access to financial services 
     of a person on factors or information (such as the lawful 
     products a customer manufactures or sells or the services the 
     customer provides) other than quantitative, impartial risk-
     based standards, the bank has failed to act consistent with 
     basic principles of sound risk management and failed to 
     provide fair access to financial services;
       (9) banks have a responsibility to make decisions about 
     whether to provide a person with financial services on the 
     basis of impartial criteria free from prejudice or 
     favoritism;
       (10) while fair access to financial services does not 
     obligate a bank to offer any particular financial service to 
     the public, or to operate in any particular geographic area, 
     or to provide a service the bank offers to any particular 
     person, it is necessary that--
       (A) the financial services a bank chooses to offer in the 
     geographic areas in which the bank operates be made available 
     to all customers based on the quantitative, impartial risk-
     based standards of the bank, and not based on whether the 
     customer is in a particular category of customers;
       (B) banks assess the risks posed by individual customers on 
     a case-by-case basis, rather than category-based assessment; 
     and
       (C) banks implement controls to manage relationships 
     commensurate with these risks associated with each customer, 
     not a strategy of total avoidance of particular industries or 
     categories of customers;
       (11) banks are free to provide or deny financial services 
     to any individual customer, but first, the banks must rely on 
     empirical data that are evaluated consistent with the 
     established, impartial risk-management standards of the bank; 
     and
       (12) anything less is not prudent risk management and may 
     result in unsafe or unsound practices, denial of fair access 
     to financial services, cancelling, or eliminating certain 
     businesses in society, and have a deleterious effect on 
     national security and the national economy.

     SEC. ___03. PURPOSE.

       The purposes of this title are to--
       (1) ensure fair access to financial services and fair 
     treatment of customers by financial service providers, 
     including national and state banks, Federal savings 
     associations and State and Federal credit unions;
       (2) ensure banks conduct themselves in a safe and sound 
     manner, comply with laws and regulations, treat their 
     customers fairly, and provide fair access to financial 
     services;
       (3) protect against banks being able to impede otherwise 
     lawful commerce and thereby achieve certain public policy 
     goals;
       (4) ensure that persons involved in politically unpopular 
     businesses but that are lawful under Federal law receive fair 
     access to financial services under the law; and
       (5) ensure banks operate in a safe and sound manner by 
     making judgments and decisions about whether to provide a 
     customer with financial services on an impartial, 
     individualized risk-based analysis using empirical data 
     evaluated under quantifiable standards.

     SEC. ___04. ADVANCES TO INDIVIDUAL MEMBER BANKS.

       (a) Member Banks.--Section 10B of the Federal Reserve Act 
     (12 U.S.C. 347b) is amended by adding at the end the 
     following:
       ``(c) Prohibition on Use of Discount Window Lending 
     Programs.--No member bank with more than $10,000,000,000 in 
     total consolidated assets, or subsidiary of the member bank, 
     may use a discount window lending program if the member bank 
     or subsidiary refuses to do business with any person who is 
     in compliance with the law, including section ___08 of the 
     Fair Access to Banking Act.''.
       (b) Insured Depository Institutions.--Section 8(a)(2)(A) of 
     the Federal Deposit Insurance Act (12 U.S.C. 1818(a)(2)(A)) 
     is amended--
       (1) in clause (ii), by striking ``or'' at the end;
       (2) in clause (iii), by striking the comma at the end and 
     inserting ``; or''; and
       (3) by adding at the end the following:
       ``(iv) an insured depository institution with more than 
     $10,000,000,000 in total consolidated assets, or subsidiary 
     of the insured depository institution, that refuses to do 
     business with any person who is in compliance with the law, 
     including section ___08 of the Fair Access to Banking Act.''.
       (c) Nonmember Banks, Trust Companies, and Other Depository 
     Institutions.--Section 13 of the Federal Reserve Act (12 
     U.S.C. 342) is amended by inserting ``Provided further, That 
     no such nonmember bank or trust company or other depository 
     institution with more than $10,000,000,000 in total 
     consolidated assets, or subsidiary of such nonmember bank or 
     trust company or other depository institution, may refuse to 
     do business with any person who is in compliance with the 
     law, including , including section ___08 of the Fair Access 
     to Banking Act:'' after ``appropriate:''.

     SEC. ___05. PAYMENT CARD NETWORK.

       (a) Definition.--In this section, the term ``payment card 
     network'' has the meaning given the term in section 921(c) of 
     the Electronic Fund Transfer Act (15 U.S.C. 1693o-2(c)).
       (b) Prohibition.--No payment card network, including a 
     subsidiary of a payment card network, may, directly or 
     through any agent, processor, or licensed member of the 
     network, by contract, requirement, condition, penalty, or 
     otherwise, prohibit or inhibit the ability of any person who 
     is in compliance with the law, including section ___08 of 
     this title, to obtain access to services or products of the 
     payment card network because of political or reputational 
     risk considerations.
       (c) Civil Penalty.--Any payment card network that violates 
     subsection (b) shall be assessed a civil penalty by the 
     Comptroller of the Currency of not more than 10 percent of 
     the value of the services or products described in that 
     subsection, not to exceed $10,000 per violation.

     SEC. ___06. CREDIT UNIONS.

       Section 206(b)(1) of the Federal Credit Union Act (12 
     U.S.C. 1786) is amended by inserting ``or is refusing or has 
     refused, or has a subsidiary that is refusing or has refused, 
     to do business with any person who is in compliance with the 
     law, including section ___08 of the Fair Access to Banking 
     Act,'' after ``as an insured credit union,''.

     SEC. ___07. USE OF AUTOMATED CLEARING HOUSE NETWORK.

       (a) Definitions.--In this section:
       (1) Covered credit union.--The term ``covered credit 
     union'' means--
       (A) any insured credit union, as defined in section 101 of 
     the Federal Credit Union Act (12 U.S.C. 1752); or
       (B) any credit union that is eligible to make application 
     to become an insured credit union under section 201 of the 
     Federal Credit Union Act (12 U.S.C. 1781).
       (2) Member bank.--The term ``member bank'' has the meaning 
     given the term in the third undesignated paragraph of the 
     first section of the Federal Reserve Act (12 U.S.C. 221).
       (b) Prohibition.--No covered credit union, member bank, or 
     State-chartered non-member bank with more than 
     $10,000,000,000 in total consolidated assets, or a subsidiary 
     of the covered credit union, member bank, or State-chartered 
     non-member bank, may use the Automated Clearing House Network 
     if that member bank, credit union, or subsidiary of the 
     member bank or credit union, refuses to do business with any 
     person who is in compliance with the law, including section 
     ___08 of this title.

     SEC. ___08. FAIR ACCESS TO FINANCIAL SERVICES.

       (a) Definitions.--In this section:
       (1) Bank.--The term ``bank''--
       (A) means an entity for which the Office of the Comptroller 
     of the Currency is the appropriate Federal banking agency, as 
     defined in section 3 of the Federal Deposit Insurance Act (12 
     U.S.C. 1813); and
       (B) includes--
       (i) member banks;
       (ii) non-member banks;
       (iii) covered credit unions;
       (iv) State-chartered non-member banks; and
       (v) trust companies.
       (2) Covered bank.--
       (A) In general.--The term ``covered bank'' means a bank 
     that has the ability to--
       (i) raise the price a person has to pay to obtain an 
     offered financial service from the bank or from a competitor; 
     or
       (ii) significantly impede a person, or the business 
     activities of a person, in favor of or to the advantage of 
     another person.
       (B) Presumption.--
       (i) In general.--A bank shall not be presumed to be a 
     covered bank if the bank has less than $10,000,000,000 in 
     total assets.
       (ii) Rebuttable presumption.--

       (I) In general.--A bank is presumed to be a covered bank if 
     the bank has $10,000,000,000 or more in total assets.
       (II) Rebuttal.--A bank that meets the criteria under 
     subclause (I) can seek to rebut

[[Page S5601]]

     this presumption by submitting to the Office of the 
     Comptroller of the Currency written materials that, in the 
     judgement of the agency, demonstrate the bank does not meet 
     the definition of covered bank.

       (3) Covered credit union.--The term ``covered credit 
     union'' means--
       (A) any insured credit union, as defined in section 101 of 
     the Federal Credit Union Act (12 U.S.C. 1752); or
       (B) any credit union that is eligible to make application 
     to become an insured credit union under section 201 of the 
     Federal Credit Union Act (12 U.S.C. 1781).
       (4) Deny.--The term ``deny'' means to deny or refuse to 
     enter into or terminate an existing financial services 
     relationship with a person.
       (5) Fair access to financial services.--The term ``fair 
     access to financial services'' means persons engaged in 
     activities lawful under Federal law are able to obtain 
     financial services at banks without impediments caused by a 
     prejudice against or dislike for a person or the business of 
     the customer, products or services sold by the person, or 
     favoritism for market alternatives to the business of the 
     person.
       (6) Financial service.--The term ``financial service'' 
     means a financial product or service, including--
       (A) commercial and merchant banking;
       (B) lending;
       (C) financing;
       (D) leasing;
       (E) cash, asset and investment management and advisory 
     services;
       (F) credit card services;
       (G) payment processing;
       (H) security and foreign exchange trading and brokerage 
     services; and
       (I) insurance products.
       (7) Member bank.--The term ``member bank'' has the meaning 
     given the term in the third undesignated paragraph of the 
     first section of the Federal Reserve Act (12 U.S.C. 221).
       (8) Person.--The term ``person''--
       (A) means--
       (i) any natural person; or
       (ii) any partnership, corporation, or other business or 
     legal entity; and
       (B) includes a customer.
       (b) Requirements.--
       (1) In general.--To provide fair access to financial 
     services, a covered bank, including a subsidiary of a covered 
     bank, shall, except as necessary to comply with another 
     provision of law--
       (A) make each financial service it offers available to all 
     persons in the geographic market served by the covered bank 
     on proportionally equal terms;
       (B) not deny any person a financial service the covered 
     bank offers unless the denial is justified by such quantified 
     and documented failure of the person to meet quantitative, 
     impartial risk-based standards established in advance by the 
     covered bank;
       (C) not deny, in coordination with or at the request of 
     others, any person a financial service the covered bank 
     offers; and
       (D) when denying any person financial services the covered 
     bank offers, to provide written justification to the person 
     explaining the basis for the denial, including any specific 
     laws or regulations the covered bank believes are being 
     violated by the person or customer, if any.
       (2) Justification requirement.--A justification described 
     in paragraph (1)(D) may not be based solely on the 
     reputational risk to the depository institution.
       (c) Cause of Action for Violations of This Section.--
       (1) In general.--Notwithstanding any other provision of 
     law, a person may commence a civil action in the appropriate 
     district court of the United States against any covered bank 
     or covered credit union that violates or fails to comply with 
     the requirements under this title, for harm that person 
     suffered as a result of such violation.
       (2) No exhaustion.--It shall not be necessary for a person 
     to exhaust its administrative remedies before commencing a 
     civil action under this title.
       (3) Damages.--If a person prevails in a civil action under 
     this title, a court shall award the person--
       (A) reasonable attorney's fees and costs; and
       (B) treble damages.
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