Conflicts from Political Fundraising Act of 2019

II 116TH CONGRESS 1ST SESSION S. 232 To amend the Ethics in Government Act of 1978 to require individuals nominated or appointed to Senate-confirmed positions or to positions of a confidential or policymaking character to disclose certain types of contributions made or solicited by, or at the request of, the individuals. IN THE SENATE OF THE UNITED STATES JANUARY 28, 2019 Mr. WHITEHOUSE (for himself, Mr. CARPER, Mr. UDALL, and Mr. VAN HOL- LEN) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend the Ethics in Government Act of 1978 to require individuals nominated or appointed to Senate-confirmed positions or to positions of a confidential or policymaking character to disclose certain types of contributions made or solicited by, or at the request of, the individuals. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Conflicts from Political 4 Fundraising Act of 2019’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 232 IS (1) Public confidence in the Federal Govern- 1 ment is based on the expectation that officers and 2 employees will discharge their duties impartially, and 3 avoid either actual conflicts of interest or the ap- 4 pearance thereof. 5 (2) The risk of an actual conflict of interest, or 6 the appearance thereof, arises when a nominee or 7 appointee to a Senate-confirmed position or an indi- 8 vidual in a position of a confidential or policymaking 9 character has previously donated to, solicited for, or 10 received funds from a political action committee or 11 entity organized under section 501(c)(4) or section 12 501(c)(6) of the Internal Revenue Code of 1986. 13 (3) Since the 2010 decision by the Supreme 14 Court of the United States in Citizens United v. 15 Federal Election Commission, spending by corpora- 16 tions subject to Federal laws and regulations has in- 17 creased dramatically. 18 (4) While some corporate political spending is 19 done publicly, contributions to entities organized 20 under section 501(c)(4) of the Internal Revenue 21 Code of 1986 need not be disclosed, making this 22 spending effectively anonymous. The risk of an ac- 23 tual conflict of interest, or the appearance thereof, 24 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 232 IS arises whether political spending is public or anony- 1 mous. 2 (5) Current financial disclosure requirements do 3 not require filers to report funds they have donated 4 to, solicited for, or received from political action 5 committees or entities organized under section 6 501(c)(4) or section 501(c)(6) of the Internal Rev- 7 enue Code of 1986. 8 (6) Apparent or actual conflicts of interest are 9 best ameliorated through public disclosure of this ac- 10 tivity to the Office of Government Ethics so the ap- 11 parent or actual conflicts can be addressed in ethics 12 agreements negotiated between the filer and the 13 agency in which the filer will serve. 14 SEC. 3. DISCLOSURE OF CERTAIN TYPES OF CONTRIBU- 15 TIONS. 16 (a) DEFINITIONS.—Section 109 of the Ethics in Gov- 17 ernment Act of 1978 (5 U.S.C. App.) is amended— 18 (1) by redesignating paragraphs (2) through 19 (19) as paragraphs (5) through (22), respectively; 20 and 21 (2) by inserting after paragraph (1) the fol- 22 lowing: 23 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 232 IS ‘‘(2) ‘covered contribution’ means a payment, 1 advance, forbearance, rendering, or deposit of 2 money, or any thing of value— 3 ‘‘(A)(i) that— 4 ‘‘(I) is— 5 ‘‘(aa) made by or at the request 6 of a covered individual; or 7 ‘‘(bb) solicited in writing by or at 8 the request of a covered individual; 9 and 10 ‘‘(II) is made— 11 ‘‘(aa) to a political organization, 12 as defined in section 527 of the Inter- 13 nal Revenue Code of 1986; or 14 ‘‘(bb) to an organization— 15 ‘‘(AA) that is described in 16 paragraph (4) or (6) of section 17 501(c) of the Internal Revenue 18 Code of 1986 and exempt from 19 tax under section 501(a) of such 20 Code; and 21 ‘‘(BB) that promotes or op- 22 poses changes in Federal laws or 23 regulations that are (or would 24 be) administered by the agency in 25 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 232 IS which the covered individual has 1 been nominated for appointment 2 to a covered position or is serving 3 in a covered position; or 4 ‘‘(ii) that is— 5 ‘‘(I) solicited in writing by or at the 6 request of a covered individual; and 7 ‘‘(II) made— 8 ‘‘(aa) by an individual or entity 9 the activities of which are subject to 10 Federal laws or regulations that are 11 (or would be) administered by the 12 agency in which the covered individual 13 has been nominated for appointment 14 to a covered position or is serving in 15 a covered position; and 16 ‘‘(bb) to— 17 ‘‘(AA) a political organiza- 18 tion, as defined in section 527 of 19 the Internal Revenue Code of 20 1986; or 21 ‘‘(BB) an organization that 22 is described in paragraph (4) or 23 (6) of section 501(c) of the Inter- 24 nal Revenue Code of 1986 and 25 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 232 IS exempt from tax under section 1 501(a) of such Code; and 2 ‘‘(B) that is made to an organization de- 3 scribed in item (aa) or (bb) of clause (i)(II) or 4 clause (ii)(II)(bb) of subparagraph (A) for 5 which the total amount of such payments, ad- 6 vances, forbearances, renderings, or deposits of 7 money, or any thing of value, during the cal- 8 endar year in which it is made is not less than 9 the contribution limitation in effect under sec- 10 tion 315(a)(1)(A) of the Federal Election Cam- 11 paign Act of 1971 (52 U.S.C. 30116(a)(1)(A)) 12 for elections occurring during such calendar 13 year; 14 ‘‘(3) ‘covered individual’ means an individual 15 who has been nominated or appointed to a covered 16 position; and 17 ‘‘(4) ‘covered position’— 18 ‘‘(A) means— 19 ‘‘(i) a position described under sec- 20 tions 5312 through 5316 of title 5, United 21 States Code; 22 ‘‘(ii) a position placed in level IV or V 23 of the Executive Schedule under section 24 5317 of title 5, United States Code; 25 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 232 IS ‘‘(iii) a position as a limited term ap- 1 pointee, limited emergency appointee, or 2 noncareer appointee in the Senior Execu- 3 tive Service, as defined under paragraphs 4 (5), (6), and (7), respectively, of section 5 3132(a) of title 5, United States Code; or 6 ‘‘(iv) a position in the executive 7 branch of the Government of a confidential 8 or policy-determining character under 9 schedule C of subpart C of part 213 of 10 title 5 of the Code of Federal Regulations; 11 and 12 ‘‘(B) does not include a position if the in- 13 dividual serving in the position has been ex- 14 cluded from the application of section 15 101(f)(5);’’. 16 (b) DISCLOSURE REQUIREMENTS.—The Ethics in 17 Government Act of 1978 (5 U.S.C. App.) is amended— 18 (1) in section 101— 19 (A) in subsection (a)— 20 (i) by inserting ‘‘(1)’’ before ‘‘With- 21 in’’; 22 (ii) by striking ‘‘unless’’ and inserting 23 ‘‘and, if the individual is assuming a cov- 24 ered position, the information described in 25 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 232 IS section 102(j), except that, subject to para- 1 graph (2), the individual shall not be re- 2 quired to file a report if’’; and 3 (iii) by adding at the end the fol- 4 lowing: 5 ‘‘(2) If an individual has left a position described in 6 subsection (f) that is not a covered position and, within 7 30 days, assumes a position that is a covered position, the 8 individual shall, within 30 days of assuming the covered 9 position, file a report containing the information described 10 in section 102(j)(2)(A).’’; 11 (B) in subsection (b)(1), in the first sen- 12 tence, by inserting ‘‘and the information re- 13 quired by section 102(j)’’ after ‘‘described in 14 section 102(b)’’; 15 (C) in subsection (d), by inserting ‘‘and, if 16 the individual is serving in a covered position, 17 the information required by section 18 102(j)(2)(A)’’ after ‘‘described in section 19 102(a)’’; and 20 (D) in subsection (e), by inserting ‘‘and, if 21 the individual was serving in a covered position, 22 the information required by section 23 102(j)(2)(A)’’ after ‘‘described in section 24 102(a)’’; and 25 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 232 IS (2) in section 102— 1 (A) in subsection (g), by striking ‘‘Political 2 campaign funds’’ and inserting ‘‘Except as pro- 3 vided in subsection (j), political campaign 4 funds’’; and 5 (B) by adding at the end the following: 6 ‘‘(j)(1) In this subsection— 7 ‘‘(A) the term ‘applicable period’ means— 8 ‘‘(i) with respect to a report filed pursuant 9 to subsection (a) or (b) of section 101, the year 10 of filing and the 4 calendar years preceding the 11 year of the filing; and 12 ‘‘(ii) with respect to a report filed pursuant 13 to subsection (d) or (e) of section 101, the pre- 14 ceding calendar year; and 15 ‘‘(B) the term ‘covered gift’ means a gift that— 16 ‘‘(i) is made to a covered individual, the 17 spouse of a covered individual, or the dependent 18 child of a covered individual; 19 ‘‘(ii) is made by an entity described in item 20 (aa) or (bb) of section 109(2)(A)(i)(II); and 21 ‘‘(iii) would have been required to be re- 22 ported under subsection (a)(2) if the covered in- 23 dividual had been required to file a report 24 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 232 IS under section 101(d) with respect to the cal- 1 endar year during which the gift was made. 2 ‘‘(2)(A) A report filed pursuant to subsection (a), (b), 3 (d), or (e) of section 101 by a covered individual shall in- 4 clude, for each covered contribution made by or at the re- 5 quest of, or that was solicited in writing by or at the re- 6 quest of, that covered individual during the applicable pe- 7 riod— 8 ‘‘(i) the date on which the covered contribution 9 was made; 10 ‘‘(ii) if applicable, the date or dates on which 11 the covered contribution was solicited; 12 ‘‘(iii) the value of the covered contribution; 13 ‘‘(iv) the name of the person making the cov- 14 ered contribution; and 15 ‘‘(v) the name of the person receiving the cov- 16 ered contribution. 17 ‘‘(B)(i) Subject to clause (ii), a covered contribution 18 made by or at the request of, or that was solicited in writ- 19 ing by or at the request of, a covered individual shall con- 20 stitute a conflict of interest, or an appearance thereof, 21 with respect to the official duties of the covered individual. 22 ‘‘(ii) The Director of the Office of Government Ethics 23 may exempt a covered contribution from the application 24 of clause (i) if the Director determines the circumstances 25 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 232 IS of the solicitation and making of the covered contribution 1 do not present a risk of a conflict of interest and the ex- 2 emption of the covered contribution would not affect ad- 3 versely the integrity of the Government or the public’s con- 4 fidence in the integrity of the Government. 5 ‘‘(3) A report filed pursuant to subsection (a) or (b) 6 of section 101 by a covered individual shall include the 7 information described in subsection (a)(2) with respect to 8 each covered gift received during the applicable period.’’. 9 (c) PROVISION OF REPORTS AND ETHICS AGREE- 10 MENTS TO CONGRESS.—Section 105 of the Ethics in Gov- 11 ernment Act of 1978 (5 U.S.C. App.) is amended by add- 12 ing at the end the following: 13 ‘‘(e) Not later than 30 days after receiving a written 14 request from the Chairman or Ranking Member of a com- 15 mittee or subcommittee of either House of Congress, the 16 Director of the Office of Government Ethics shall provide 17 to the Chairman and Ranking Member each report filed 18 under this title by a covered individual and any ethics 19 agreement entered into between the agency and the cov- 20 ered individual.’’. 21 (d) RULES ON ETHICS AGREEMENTS.—The Director 22 of the Office of Government Ethics shall promptly issue 23 rules regarding how an agency in the executive branch 24 shall address information required to be disclosed under 25 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 232 IS the amendments made by this Act in drafting ethics agree- 1 ments between the agency and individuals appointed to po- 2 sitions in the agency. 3 (e) TECHNICAL AND CONFORMING AMENDMENTS.— 4 (1) The Ethics in Government Act of 1978 (5 5 U.S.C. App.) is amended— 6 (A) in section 101(f)— 7 (i) in paragraph (9), by striking ‘‘sec- 8 tion 109(12)’’ and inserting ‘‘section 9 109(15)’’; 10 (ii) in paragraph (10), by striking 11 ‘‘section 109(13)’’ and inserting ‘‘section 12 109(16)’’; 13 (iii) in paragraph (11), by striking 14 ‘‘section 109(10)’’ and inserting ‘‘section 15 109(13)’’; and 16 (iv) in paragraph (12), by striking 17 ‘‘section 109(8)’’ and inserting ‘‘section 18 109(11)’’; 19 (B) in section 103(l)— 20 (i) in paragraph (9), by striking ‘‘sec- 21 tion 109(12)’’ and inserting ‘‘section 22 109(15)’’; and 23 VerDate Sep 11 2014 01:18 Feb 01, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S232.IS S232 pamtmann on DSKBFK8HB2PROD with BILLS 13 •S 232 IS (ii) in paragraph (10), by striking 1 ‘‘section 109(13)’’ and inserting ‘‘section 2 109(16)’’; and 3 (C) in section 105(b)(3)(A), by striking 4 ‘‘section 109(8) or 109(10)’’ and inserting ‘‘sec- 5 tion 109(11) or 109(13)’’. 6 (2) Section 3(4)(D) of the Lo [Text truncated for display. 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