[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''.
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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
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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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