A bipartisan group of senators is discussing a possible legislative package to reform anti-money-laundering rules, including adding a requirement that businesses identify their true owners when incorporating, according to Senate staffers familiar with the talks.
Senate Banking Committee members Thom Tillis, R-N.C., Tom Cotton, R-Ark., Mark Warner, D-Va., and Doug Jones, D-Ala., are currently negotiating changes to the Bank Secrecy Act, the aides said. The banking industry has long supported changes to the law, and analysts say BSA reforms are a rare case in a divided Congress where lawmakers could agree on a bipartisan bill.
AML reform “always comes up as kind of a top issue to be addressed in the banking sector now … in the top three of [banks’] ongoing compliance concerns,” said Paul Merski, group executive vice president for congressional relations and strategy at the Independent Community Bankers of America. “So there’s been a lot of discussion and pressure on Capitol Hill to get some needed reforms on BSA/AML reforms. … I really don’t think this issue, unlike many others, is highly partisan.”
Possible changes to the BSA regime are likely to come up Thursday at a Senate Banking Committee hearing on AML policy, at which law enforcement and regulatory officials are scheduled to testify.
“Senator Warner is working together with Senators Tillis, Cotton and Jones to determine if bipartisan legislation is possible,” a spokeswoman for the Virginia Democrat said in an email.
The Senate discussions come after a House AML reform package failed earlier this year over a disagreement about whether the bill should include “beneficial ownership” requirements. Reps. Blaine Luetkemeyer, R-Mo., and Steven Pearce, R-N.M., introduced the bill in June that would triple the dollar threshold for filing currency transaction reports to $30,000, and double it for suspicious activity reports to $10,000. Those thresholds have been unchanged since 1970 and 1996 respectively.
They attempted to work with Rep. Carolyn Maloney, D-N.Y., on the bill, but she did not support the final version because it did not include a provision creating a federal requirement for companies to disclose the beneficial owner at the time of incorporation. Such a requirement is supported by banks, which are now required under a federal regulation to ferret out that information from their customers.
Some conservative Republicans on the House Financial Services Committee opposed the measure over the potential burdens for companies in the incorporation process. The committee ultimately tabled the bill when it appeared that the removal of the beneficial owner requirement had killed the legislation’s chances of passing.
After Democrats gained enough House seats to win control of the chamber starting in January, the legislative chances for BSA reform may have improved.
Maloney, who is currently the ranking Democrat on a House subcommittee, said in a statement she intends to reintroduce a bill she sponsored in 2017 that would require entities that form corporations to disclose information about their beneficial owners, known as the Corporate Transparency Act. That bill had four Republican co-sponsors.
Senate staffers from both parties working on the possible deal have expressed interest in including the beneficial owner requirement. “We think a beneficial ownership provision is critical to BSA/AML legislation,” said the spokeswoman for Warner.
But it is still unclear if a bill could make it to the finish line.
“With the House under Democratic control and the Senate under Republican control, … it is up in the air,” said Quyen Truong, a partner at Stroock & Stroock & Lavan. “I think the proposal would likely include [a beneficial ownership] provision, but it’s still questionable whether that kind of provision could survive the compromise process and related veto threat.”
Beneficial ownership has been a concern for banks after the Treasury Department issued a rule in 2016 that requires them to verify beneficial owners if a person had at least a 25% stake in the newly formed entity. The banking industry and some members of Congress have argued that businesses, rather than banks, are in a better position to disclose beneficial ownership information.
“There is support in Congress for having businesses provide ownership documentation to” the Financial Crimes Enforcement Network instead of “requiring banks to collect this data,” said Sam Whitfield, senior vice president of congressional affairs at the Consumer Bankers Association. “There has been some concern this would put a burden on small businesses, but businesses are better situated to provide this information directly instead of requiring banks to serve as a middleman.”
With Democrats controlling the House next Congress, and Rep. Maxine Waters, D-Calif., expected to chair the House Financial Services Committee, it’s possible the panel would introduce a bill similar to the Luetkemeyer-Pearce effort that would include the beneficial ownership provision.
At a hearing a year ago, Waters signaled support for a set of reforms that “require beneficial ownership disclosures for anonymous shell companies.”
Despite some bipartisan interest in the issue, Truong said she is still skeptical about whether it meets the 60-vote threshold in the Senate or could get support from the Trump administration.
“Whether [beneficial ownership] would survive the entire negotiation process in light of Republican control of the Senate and the threat of the presidential veto I think remains an open question,” Truong said. “It’s still a tossup whether any final legislation would include that provision.”
The banking industry has long argued that the current system of filing currency transaction reports and suspicious activity reports is inefficient.
“Just collecting tens of thousands of SARs and CTRs … are we really getting the right information that needs to be done?” Merski said. “At some point, I’m not sure why the banking sector needs to be the law enforcement sector. Really the ownership rules could be collected at the time that the business is being incorporated or chartered.”
A senior Treasury Department official said Tuesday at a U.S. Chamber of Commerce eventthat the administration is actively engaging with regulators, law enforcement and regulated entities about ways to make the current BSA/AML framework more efficient.
“We think that there is real value in getting the regulated parties, their primary regulators, which is to say the federal banking agencies, [Fincen] and other law enforcement, having a single conversation about how to modernize and render the AML-CFT system more modern and more efficient without losing the benefits that we gain from it, which are truly substantial,” said Brent McIntosh, Treasury’s general counsel, using the abbreviation for countering the financing of terrorism.
The Consumer Bankers Association sent a letter ahead of Thursday’s hearing to Senate Banking Committee Chairman Mike Crapo, R-Idaho, and Sen. Sherrod Brown, D-Ohio, the committee’s ranking member, saying it is supportive of legislation to raise the reporting threshold for financial institutions from $5,000 to $10,000 for SARs and from $10,000 to $30,000 for CTRs, similar to what Luetkemeyer and Pearce proposed in the House.
They are also urging the Senate to pass legislation to require beneficial ownership to be verified at a time a legal entity is formed.
“Stronger laws governing the beneficial ownership information that must be supplied at the time a legal entity is formed will better equip financial institutions with reliable and useful information at account opening, lessen the burden on financial institutions to collect this information, and prevent criminals from accessing the financial system under a cloak of secrecy,” CBA President and CEO Richard Hunt said in the letter.