When Republican Sens. Richard M. Burr and Kelly Loeffler sold off substantial stock holdings after receiving nonpublic coronavirus briefings, the political optics were awful — but whether the Senate Ethics Committee will do anything, or whether those actions will result in legal repercussions, is a more nebulous question.
Burr’s actions are being examined by the Department of Justice in conjunction with the Securities and Exchange Commission, for instance, and the Ethics committees typically wait for any law enforcement action to play out before taking action at the congressional level.
Among the legal issues at play is whether Burr and Loeffler violated the law known as the Stop Acting on Congressional Knowledge, or STOCK, Act.
That measure, passed by a Republican House and Democratic Senate and signed into law by President Barack Obama in 2012, stated that lawmakers have a duty to Congress, the government and American citizens to not trade while in possession of material, nonpublic information they receive in their capacity as members of Congress. The law also established a requirement for members to report their securities transactions — exceeding $1,000 — within 45 days of the trade execution. These periodic transaction reports also extend to include spouses and dependent children of the lawmaker.
Tyler Gellasch, an aide to former Sen. Carl Levin, a Michigan Democrat, helped draft the STOCK Act. He noted that when companies — and, more broadly, industries — are experiencing financial turmoil, Congress is usually one of the first to know.
“When large companies are in trouble they often turn to their regulators and Congress for help,” Gellasch said. “So members of Congress and their staff are often some of the first to know when there are problems with a company or the economy writ large.”
Members of Congress are flooded with information from trade associations, companies and myriad other sources of nonpublic data. In congressional briefings, the nature of the information can vary widely — from company-specific information to insight that could influence a variety of markets.
For instance, if senators are briefed that the airline industry will be bailed out, they have insider knowledge of an event that will reverberate across financial markets. Additionally, if lawmakers have insight on the extent to which a pandemic, such as the novel coronavirus, will shutter industries — such as hospitality, travel and entertainment — they have a responsibility not to use that knowledge to benefit financially from securities moves.
Even lawmakers who outsource their money management in a blind trust, or a third party, can have an influence on the way in which strategy is run by letting their investment advisers know there could be big economic shutdowns or massive bailouts.
Burr and Loeffler, from North Carolina and Georgia, respectively, both said publicly that the coronavirus crisis was being appropriately handled. But their private actions to sell off securities raise the question of whether they used their positions to enrich themselves and avoid dire losses.
Markets had started trending down as coronavirus was tearing through China and other countries before the transactions were made. There is the distinct possibility that the two senators did not use knowledge from their offices to initiate the trades. However, until a full investigation is conducted, there is no way to say with certitude what actually informed these transactions.
Loefller started selling her jointly held assets on Jan. 24, the same day the Senate Health, Education, Labor and Pensions Committee — of which both she and Burr are members — had a coronavirus briefing with Trump administration health officials. In the weeks since, Loeffler sold over a million dollars in stock, The Daily Beast reported. And millions more in stock sales have since come to light, reported The Atlanta Journal-Constitution.
Loefller tweeted on March 20: “The allegations aren’t just wrong, they are completely false. I’m not involved in the decision-making of these trades, nor have I been in communication with my third-party financial advisors about them. I have no knowledge of these trades until well after they are made.”
She said the trades are completely orchestrated by a third-party financial adviser, but that doesn’t completely insulate her from liability.
If Loeffler gave her husband, Jeffrey Sprecher, who serves as chairman of the New York Stock Exchange, information she gleaned from her official duties and he made financial decisions based off that, it would be ripe for review. Also, if Sprecher relayed that information to their financial adviser, that action would also be subject to the STOCK Act.
Burr, who chairs the Senate Intelligence Committee, sold between $628,000 and $1.72 million in his securities holdings on Feb. 13, after the panel began receiving daily coronavirus briefings, ProPublica reported. Additionally, NPR obtained a recording on Feb. 27 in which Burr offered a private assessment of the adverse economic impact from the coronavirus — a contrast to his more upbeat public comments.
Following the ProPublica report, Burr wrote to Senate Ethics Chairman James Lankford, an Oklahoma Republican, asking for a review into his sales of stock, maintaining he used public information to guide his decisions.
“While I relied solely on public reporting to guide my decision to sell the stock, it is my belief that an independent review is warranted to ensure full and complete transparency,” Burr wrote. “I stand ready to be fully transparent with you and your Committee as you do your work.”
Additionally, a shareholder lawsuit filed on March 23 accuses Burr of securities fraud related to his stock transactions.
Other members of Congress or their spouses, including Oklahoma Republican Sen. James M. Inhofe, California Democratic Sen. Dianne Feinstein and Wisconsin Republican Sen. Ron Johnson, also unloaded at least hundreds of thousands of dollars in stock at around the same time.
The Senate Ethics Committee is among the least active panels on Capitol Hill. Its last notable public act was in April 2018 when it “severely admonished” New Jersey Democrat Bob Menendez for accepting improper gifts.
The Senate Ethics Committee did not respond to a request for comment.
A different scene in House
On the House side, there is an independent, nonpartisan investigative entity that looks into potential ethical violations of its members — the Office of Congressional Ethics. OCE has shed light on the misconduct of several lawmakers, including former Republican Reps. Duncan Hunter of California and Chris Collins of New York, both of whom resigned from office and were given federal prison sentences stemming from corruption charges.
A ProPublica report found a precipitous fall in the number of lawmakers and staff cooperating with OCE since mid-2016. The cooperation rate dropped from 74 percent to 33 percent. according to the report. However, those numbers don’t account for when OCE dismisses a case or terminates the matter in the preliminary review phase.
“Over the last six years, the cooperation rate over all matters begun by OCE has remained unchanged,” said OCE staff director Omar Ashmawy, citing statistics dating back to 2014.
OCE has referred many of its reports to the House Ethics Committee, a panel that, unlike OCE, has subpoena power and can formally discipline members. However, it is led by members of the House, making committee members less inclined to come down hard on their own colleagues. Often the reports OCE refers to the committee for further review stall, some of which are eventually released to the public.
The Senate has no such office.
“I would expect the Senate Ethics Committee to do absolutely nothing on this,” Craig Holman, a government affairs lobbyist for Public Citizen, said of Burr and Loeffler. “If there is any enforcement on this, it would have to come from DOJ.”
Jennifer Ahearn, policy director for Citizens for Responsibility ad Ethics in Washington, also said she doesn’t expect much legal action.
“History would tell us the consequences are more likely to be political and not legal,” Ahearn said.
There has been legislation proposed to address some of these concerns.
Sen. Elizabeth Warren introduced a measure in 2018 known as the Anti-Corruption and Public Integrity Act, a sweeping ethics bill that would, among many other initiatives, expand OCE’s oversight to include the Senate; give the office subpoena power and the ability to refer criminal and civil matters to DOJ; and recommend discipline to the Ethics panels. The Massachusetts Democrat’s plan would also ban members of Congress from owning individual stocks.