[Congressional Record Volume 167, Number 81 (Tuesday, May 11, 2021)]
[Senate]
[Pages S2430-S2441]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5,
UNITED STATES CODE, OF THE RULE SUBMITTED BY THE OFFICE OF THE
COMPTROLLER OF CURRENCY RELATING TO ``NATIONAL BANKS AND FEDERAL
SAVINGS ASSOCIATIONS AS LENDERS''
The PRESIDING OFFICER. The clerk will report the resolution by title.
The legislative clerk read as follows:
A joint resolution (S.J. Res 15) providing for
congressional disapproval under chapter 8 of title 5, United
States Code, of the rule submitted by the Office of the
Comptroller of Currency relating to ``National Banks and
Federal Savings Associations as Lenders''.
The PRESIDING OFFICER. Under the provisions of 5 USC 802, there will
now be up to 10 hours of debate equally divided.
Mr. VAN HOLLEN. Madam President, I will be back a little later to
debate the resolution.
For the information of my colleagues, we expect a vote on passage of
the joint resolution of disapproval around 5:30 p.m. today.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. TOOMEY. Madam President, I rise in opposition to S.J. Res. 15.
This is a misguided resolution. It would overturn an important
banking
[[Page S2431]]
resolution, the OCC's true lender rule. That is a rule that helps give
consumers more access to credit.
Overturning the true lender rule is a bad idea. It would reduce
access to credit for consumers, especially those who have the most
difficulty obtaining credit. It would stifle innovation, and it would
inhibit the functioning of our markets, our Nation's banking and credit
markets.
Let me explain why preserving this rule is so important. In the last
decade, we have seen financial technology companies, often referred to
as fintechs, use technology to revolutionize financial services.
Community and midsized banks that often lack the resources to develop
banking technology in-house are partnering with these fintechs to
compete more effectively and to offer their customers terrific services
at ever-better prices. That is what these partnerships do. They help
consumers because they increase competition in lending markets, they
lower the price of financial products, they improve credit options, and
they expand consumer choice.
Unfortunately, a patchwork of different legal tests in different
courts had made it difficult to predict whether the bank or the fintech
partner, when they have teamed up, would be considered legally
responsible for a given loan they would make together. So last year,
the OCC issued its true lender rule to provide the needed regulatory
clarity. The rule--a simple version of this is, it simply holds that a
national bank will be responsible for a loan if it is named in the loan
agreement or if it funds the loan, which banks often do when they team
up with fintechs in these ways.
Some of our Democratic colleagues have claimed that the rule, the
true lender rule, allows unaccountable ``rent-a-charter'' arrangements,
as they call them, but in fact, the true lender rule prevents the rent-
a-charter scheme, and it does so because it ensures that the national
banks are accountable for the loans they issue through these lending
partnerships, and it requires the OCC to supervise those loans for
compliance with consumer protection and anti-discrimination laws.
Other colleagues have expressed concerns that the rule will ``trap''
consumers in arrangements with high interest rates and a principal
balance that can never be paid back, but actually that is not possible
with these OCC-chartered banks, which are the only ones affected by
this rule. That is because a bank is required under the OCC resolution
to assess a borrower's ability to repay before making the loan. If a
bank is systemically approving loans by this fintech partnership to
consumers who can't repay the debt, they will face serious consequences
from their regulator, and that is a lot more protection than what would
otherwise exist for consumers.
Some of my Democratic colleagues claim that the true lender law
fundamentally changes existing laws around interest rates. In fact, it
preserves existing law. For over four decades, Federal law has allowed
banks to essentially export the State law governing interest rates from
the home State where the bank is based. So this allows the bank to
comply with 1 law of the bank's home State rather than have to try to
comply with 50 different laws of the 50 States in which its customers
may reside. Having this single standard allows for a competitive
national credit market.
The true lender rule simply allows fintechs that partner with banks
to get the same treatment. It is really not very different from what
happens today with credit cards. And may I remind everyone, credit
cards can often have high interest rates.
So if you believe that bank-fintech providers shouldn't be able to
``export'' interest rates from the State in which the bank is
headquartered, then I suppose you ought to be in favor of eliminating
credit cards for all Americans.
Well, that would be a terrible policy. It would be a bad policy to
get rid of the true lender rule as well. Now, I have heard the argument
that the true lender rule somehow harms low-income consumers. In fact,
the true lender rule benefits low-income consumers most by preserving
their access to well-regulated, bank-issued credit.
Absent the rule, uncertainty about which partner, whether it is the
bank or the fintech company, is the true lender means there would be
uncertainty about what laws to apply to the transaction and whether or
not the loan would be considered valid. Well, without the rule, without
that certainty, the secondary market for these loans would be
disrupted, and, again, that disproportionately harms lower income
borrowers.
Why is that? Well, it is because banks frequently sell these loans
after they are made so that they free up the capital to make the next
loan. Banks can issue far fewer loans if they can't reliably sell the
ones that they have into the secondary market. Uncertainty, as we would
have in the absence of the true lender rule, diminishes their ability
to sell into the secondary market, and that means fewer loans are going
to get booked altogether. Those that are are going to be more
expensive, and they will be limited to people of higher credit ratings.
And this isn't just my opinion. Forty-seven leading financial
economists from Harvard, Stanford, and other leading universities made
exactly these points in an amicus brief supporting the existing rule.
And we have empirical proof. Studies show that after a 2015 court
ruling created uncertainty about the ability to export interest rates
to New York, it became significantly harder for higher risk borrowers
to get loans in New York.
This is not surprising. This is exactly what you would expect. This
is what will happen nationally if this CRA is successful in repealing
the true lender rule.
Now, some of my colleagues want to overturn the true lender rule
because doing so would subject more loans to State interest rate caps,
they say. But, in fact, the more likely effect is that the loans will
just never get made in the first place, and that is terrible for the
low-income consumer for whom that loan is the best available option.
The true lender rule preserves access to well-regulated, bank-offered
credit.
At end of the day, we need to remember, if the CRA is successful and
the true lender rule is repealed, demand for credit won't disappear.
The need for credit doesn't go away because we get rid of a good rule.
You simply make it harder for people who need loans to get them, and
you will drive consumers to unregulated alternatives.
Voting in favor of the CRA, which would kill this rule, is also a
direct assault on fintech. It will make it harder for Congress to
legislate in this area. It will make it harder for regulators to issue
guidance and rules to promote the healthy competition that fintechs
represent. Courts will see this as Congress buying into this completely
false notion that fintechs are somehow inherently ``predatory''--they
are not--and it will scare away State legislators from promoting
fintech.
If you believe financial innovation and competition are good things
for consumers, as I do, then you should oppose this CRA.
For all these reasons, I urge my colleagues to join me in voting
against S.J. Res. 15.
I yield the floor.
The PRESIDING OFFICER. The Senator from Indiana.
ALS Caucus and Awareness Month
Mr. BRAUN. Madam President, today I am proud to join my colleague
Senator Coons in relaunching the bipartisan Senate ALS Caucus.
Currently, there are no effective treatments or cures available to
stop or slow the disease, and we still do not know what really causes
ALS.
More than 5,000 Americans are diagnosed each year. Yet there is no
ALS survivor community. Individuals diagnosed with ALS and their loved
ones rely on their elected officials to advocate on their behalf.
That is why the mission of the Senate ALS Caucus is to raise
awareness about the difficulties faced by ALS patients and their
families and to advance policies that improve their quality of life to
advocate for meaningful research.
May also marks ALS Awareness Month. Last Congress, Senator Coons and
I introduced and passed a resolution to designate May 2020 as ALS
Awareness Month. This effort, like the ALS Caucus, will raise awareness
about the impact of ALS on those who are diagnosed, their loved ones,
and their caregivers.
[[Page S2432]]
I look forward to reintroducing again here in May 2021 the awareness
month for ALS, and I hope my colleagues will help to pass this
resolution again this year.
There is more to be done, though, in really battling ALS. Promising
therapies that have demonstrated clinical safety and efficacy are on
the horizon for those with ALS. Failure to approve those promising
treatments means the difference between life and premature death for
these patients, and, sadly, the paradigm of the past has been to not be
erring on the side, when there is a promising treatment, to push it
through the system. Sadly, it has been indicative of what happens often
in this place, and that is that you belabor it, you stretch it out,
and, in this case, it has a much different consequence
Patients with ALS have been very clear that they are willing to take
a higher degree of risk to have access to these treatments at an
earlier point in time.
In September 2019, the FDA issued new guidance on developing drugs
for ALS, which touted regulatory flexibility when applying the standard
of safety and efficacy to drugs or diseases with serious, unmet medical
needs. FDA guidance has been an empty promise, and patients with ALS
lack flexible regulatory pathways to promising treatments as a result.
Indicative, in a way, of what I mentioned earlier, where we seem to
always be aware of those kinds of issues, we tell the Agencies that
might be involved, and then there is that natural tendency toward
inertia.
For example, Amylyx, a pharmaceutical company focused on developing
ALS treatments, announced clinical trial results of a promising
treatment that slowed the progression of the disease and increased
survival by 6 months. It may not seem like a long time, but when you
take into consideration from the point of diagnosis to the point of
dying from ALS, that is a lot of time, and the benefit of the doubt,
when you have a promising clinical trial, needs to be given to the
patient so that they have some hope.
Europeans and Canadians have put a dynamic into place that would be
quicker footed than our own FDA's. We need to take that as some
guidance.
Unfortunately, the FDA has expressed the need for additional clinical
trials before allowing patients to access these drugs in the United
States. This means Americans with ALS will not receive access when they
can see others in Canada and Europe being able to.
We need to get with it, and when you have the condition of no
effective treatment and it is working in other places, we need to give
the benefit of the doubt.
It is failing to use its flexibility, and we have just seen--and I
witnessed, all of us did, with the coronavirus--FDA, CDC squabbling out
of the gate about what to do with coronavirus.
Thank goodness we did do something that was going to change that
dynamic. We would still be wrestling over a vaccine if it had been
business as usual.
So it is clear here, for even a better reason, that nothing is out
there that is working, promising things on the horizon. We need to do
better. That is why I will be reintroducing the Promising Pathway Act,
the legislative solution to give those struggling with life-threatening
illnesses, like ALS, a fighting chance of access to timely, meaningful
treatments, especially when they are overwhelmingly wanting it, willing
to take the risk.
The Promising Pathway Act would require the FDA--require the FDA--to
establish a rolling, realtime priority review to evaluate the progress
and not make it subjective, the way it is now, to where they can do
what they have been doing, and that is dragging their feet.
Under this pathway, provisional approval would be granted by the FDA
to drugs demonstrating substantial evidence of safety and relevant
evidence of positive therapeutic outcomes, like those demonstrated in
Amylyx's clinical trials.
It is right here. We just need to do it, and you are going to be
doing what ALS patients would prefer.
This also encourages further research and clinical trials in not only
ALS, but this, of course, should apply to other diseases that are
similar where we are still wrestling, in clinical trials, with the
ability to get these across the finish line. But it does strengthen the
FDA's postmarket surveillance, which is another important thing for
patient safety, and grants access to promising treatments covered by
insurance.
To my colleagues, it is time to roll up our sleeves and to work to
advance policies that improve the quality of ALS patients. I encourage
every Member to lean in on this, to be a part of it, so that we can
help people that have no other hope.
It is up to us to speak for those who can no longer speak, to stand
up for those who can no longer stand.
I am grateful to my colleagues on both sides of the aisle who are
returning members of the ALS Caucus, and I welcome those who are new to
the caucus this Congress.
As the ALS Caucus continues to grow its membership, our commitment to
the mission of the ALS Caucus and the ALS community is strengthened
along the way.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Murphy). Without objection, it is so
ordered.
National Police Week
Mr. GRASSLEY. Mr. President, this is National Police Week, and
yesterday I spoke about the importance of police in our activities, our
daily life. I come to the floor now to address my colleagues about a
piece of legislation I am putting in.
I recently reintroduced the Protecting America's First Responders
Act, a bipartisan bill cosponsored by 11 of my colleagues. This bill
passed the Senate by unanimous consent in the last Congress.
In this new Congress, it is time that we once again turn our
attention to the public service officers across our Nation who
steadfastly serve and protect fellow Americans. These great men and
women fulfill some of our most vital and irreplaceable needs. Their
duties affect every part of our communities. We have seen that
clearly--very clearly--over the past year as their services have been
instrumental in keeping our communities safe during the pandemic.
Our firefighters dedicate themselves to braving harrowing fires. Our
police officers rush headlong into danger to protect the innocent.
Emergency first responders dutifully come to the aid of the injured, no
matter the threat. Despite these vast responsibilities, their purpose
is very much the same: to serve and protect their communities.
We know this call to service comes with great risk. We, in Congress,
will forever be indebted to the Capitol Police officers who suffered
substantial injuries and even gave their lives on these very grounds.
There is no way for us to truly comprehend or repay the sacrifices
made by these officers and their loved ones left behind. Yet, knowing
this, our public safety officers willingly accept the responsibilities
of injury and, if need be, lay down their lives to fulfill their duties
and their oaths.
We owe our firefighters, law enforcement, and all of our first
responders a great deal, and we don't say thank you enough. They don't
hesitate to take action when we need them to, and we must be equally
steadfast in coming to their aid by ensuring that those officers,
disabled or killed--killed in the line of duty--receive what they are
due.
They must receive what we, in Congress, first promised now four and a
half decades ago through the law that is called the Public Safety
Officers' Benefit Program. So the original PSOB Program was created in
1976. Yet, since that time, it has been plagued with unclear and out-
of-date regulations, forcing families of our fallen heroes to
continually suffer through technical interpretations and drawn-out
claim processes. This cannot continue.
This bill that 11 of us have introduced, the Protecting America's
First Responders Act, ensures that disability claims are consistent
with Congress's original intent for the PSOB Program. It received wide
bipartisan support here in the U.S. Senate in the last Congress.
Unfortunately, the bill stalled in the House.
[[Page S2433]]
Over the last year, I worked closely with Congressman Pascrell to
alleviate opposition and work through amendments that can pass the
House. I am confident that with these changes, it will reach the
President's desk very quickly.
The 117th Congress has a fresh opportunity to make this bill law, and
there are many waiting for us to do exactly that. I introduce this bill
with strong support from organizations, including the Fraternal Order
of Police, the Federal Law Enforcement Officers Association, and the
National Association of Police Organizations. I urge my colleagues to,
once again, vote for the Protecting America's First Responders Act,
thereby fulfilling the original promise to honor those whose lives were
forever altered by their service
Russia Investigation
Mr. President, on another subject, I come to the floor probably to
explain to my colleagues something I have done on three or four
different occasions, and nobody ever seems to get it right. So I am
back here again trying to explain something so we don't have to deal
with it again.
So here we go again. While I was traveling throughout Iowa meeting
with constituents, I kept my eyes on news reporting out of Washington,
DC. I have seen a lot of bad reporting in my time. The events that
occurred starting on April 30 are there at the top of bad reporting.
The Washington Post, the New York Times, and NBC all had to retract
their reporting about Russian disinformation warnings given to Rudy
Giuliani. I am not here to talk about Rudy Giuliani. I am talking about
how this report affects me and Senator Johnson because, unfortunately,
in the Washington Post article, my and Senator Johnson's investigations
into the Biden family's financial dealings was tethered, once again, to
Russian disinformation attempts, and that tethering is what I have been
here on the floor of the Senate, over the last maybe more than a year
now, trying to explain that that just is a big hoax.
The report was based on anonymous current and former U.S. officials.
Apparently, the Washington Post still hasn't figured out how to read a
Senate report. My staff also spent many hours talking with the Post the
day before the story ran in order to help them understand. And I
presume they called us; we didn't call them.
I am going to quote from my staff's emailing them the following,
which, in the end, the Post completely ignored in their article. So
here is a long email:
Sen. Grassley's report with Sen. Johnson relied on Obama-
era U.S. government records and information from a Democrat-
aligned U.S. lobby shop, which employed Telizhenko while
representing the corrupt Ukrainian gas company Burisma.
The email goes on:
Sen. Grassley never received a defensive briefing related
to his oversight of the Biden family's foreign business
ventures. Discussions with the FBI and the Intelligence
Community were initiated by requests from Democrats, as is
detailed in Section Ten of the report.
The FBI and members of the Intelligence Community indicated
last year that there was no reason for the committee's
investigation to be halted, even with knowledge of
Telizhenko's limited involvement (see report page 59).
This is what the email says to the Post. Continuing to read from my
staff's email to them:
The report and its underlying transcripts further reveal
that Telizhenko had deep and longstanding relationships with
Obama State Department officials, National Security Council
staff and left-wing lobbyists. The transcripts also
illustrate that material created by Derkach was introduced by
Democrats, not Republicans, and it was quickly rejected by an
expert witness as disinformation.
And then in parenthesis, it says: ``([S]ee Minority Exhibit J and
George Kent's response to Minority staff regarding that exhibit).''
Continuing to report from the email to the Post:
Following a classified letter authored by Democratic
leadership, portions of which were later leaked and
reportedly referenced Derkach, Democrats again sought an FBI
and Intelligence Community briefing, which was provided in
August of 2020. At that briefing, the FBI stated that it's
not attempting to--
And these are the words that the FBI used--
``quash, curtail, or interfere'' in the investigation in any
way.
And then in parenthesis it says: ``([S]ee report, page 59).''
That's not the sort of direction provided at defensive
briefings.
This is what my staff's email says to the Post.
Obviously, we didn't rely on any of this for the report's
findings on Hunter Biden's and James Biden's extensive
financial entanglements with questionable foreign nationals,
including some connected to the communist Chinese government.
Subsequent to the report, the public has also learned that
Hunter Biden is under criminal investigation relating to his
financial entanglements.
Given Telizheko's longstanding ties to Blue Star Strategies
and Obama administration officials, are you similarly asking
them whether they played into some Russian-pushed narrative?
I am going to go back because that question needs to be repeated. It
is not repeated in the email I am reading to you.
Given Telizheko's longstanding ties to Blue Star Strategies
and Obama administration officials, are you--
Meaning the Post--
similarly asking them whether they played into some Russian-
pushed narrative?
Given that Democrats introduced Derkach material, are you
similarly asking them whether they played into some Russian-
pushed narrative?
Now, that is the end of the quote, and I think those last two
questions indicate--because, obviously, the newspaper article doesn't
say that they asked these questions that I repeated one twice and then
the other question. They aren't really interested in getting to the
bottom of this.
Now, after all this information and long phone conversations, the
Washington Post opted for unnamed sources rather than on-the-record
comments from my staff. So they had an opportunity to quote Grassley
and explain all this stuff, and what do they do? They used an anonymous
source. Maybe the Post should work on putting more investigation into
so-called investigative reporting instead of focusing on false Russian
disinformation narratives; for example, maybe spend some time
investigating the Biden family's ties to Chinese nationals connected to
the Communist regime's military and intelligence services.
I have addressed these Russian disinformation issues at length in my
committee report with Senator Johnson, as well as right here on the
floor of the Senate three or four times over the course of many months,
maybe stretching into more than a year. I am going to do this again
even though I have better things to do. If you want every detail, read
section 10 in our September 23, 2020, report.
On July 13, 2020, then-Minority Leader Schumer, Senator Warner,
Speaker Pelosi, and Representative Schiff sent a letter with a
classified attachment to the FBI to express a purported belief that
Congress was the subject of a foreign disinformation campaign. The
classified attachment included unclassified elements that attempted and
failed to tie our work to Andrii Derkach, a Russian agent. This
document falsely accused us of potentially receiving material from
Derkach. It was pure speculative nonsense that the liberal media ran
with as what they would call or want you to believe was the truth. Do
you know what it was? It was garbage. Those unclassified elements were
leaked to the press to support a false campaign accusing us of using
Russian disinformation.
Then, during the course of our investigation, we ran a transcribed
interview of George Kent. Before that interview, the Democrats acquired
Derkach's materials. During that interview, they asked the witness
about it. He stated:
What you're asking me to interpret is a master chart of
disinformation and malign influence.
At that interview, the Democrats introduced known disinformation into
the investigative record as an exhibit. Now, more precisely, the
Democrats relied upon and disseminated known disinformation from a
foreign source who the intelligence community warned was actively
seeking to influence U.S. politics.
But there is yet more. On July 16, then-Ranking Member Wyden and
Senator Peters wrote a letter to me and Senator Johnson asking for a
briefing from the intelligence community on matters relating to our
investigation.
On July 28, 2020, Senator Johnson and I reminded those two Senators
[[Page S2434]]
that the FBI and relevant members of the intelligence community had
already briefed the committee in March 2020 and assured us that there
was no reason to discontinue the investigation we were involved in.
In August 2020, subsequent to these Democrat-led letters, Senator
Johnson and I had a briefing from the FBI on behalf of the intelligence
community. However, in that briefing, the FBI discussed matters that
were already known and completely irrelevant to the substance of our
investigation. The FBI also made clear that it was not attempting to--
and these are the FBI's words--``quash, curtail, or interfere'' in the
investigation in any way.
Any talk about an FBI briefing warning us that our investigation into
the Biden family's financial and business associations was connected to
Russian disinformation is complete nonsense. No such briefing ever
happened. Our investigation was based on Obama administration
government records and records from a Democrat-aligned lobby shop, Blue
Star Strategies. If those records amount to Russian disinformation,
then that means the Obama administration dealt in disinformation every
day, which brings me to the ultimate point I want to bring to attention
today.
The FBI assured me that the August 2020 briefing, which was a
pointless briefing that shouldn't have happened, would remain
confidential. That is what the FBI told us, that it would be
confidential. However, I was concerned that the substance of this
briefing or at least elements relating to it would leak, and I knew
that once it did, the briefing would be misreported and used to paint
our investigation in a false light. That is exactly what happened last
week.
Although the Washington Post failed, the Wall Street Journal got it
right in its May 4 editorial titled ``The FBI's Dubious Briefing.''
I ask unanimous consent to have that editorial printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered
There being no objection, the material was ordered to be printed in
the Record, as follows:
[May 4, 2021]
The FBI's Dubious Briefing
(By the Editorial Board)
Did the FBI set up two Members of Congress for political
attack under the guise of a ``defensive briefing''? It's
possible, and Senators Ron Johnson and Chuck Grassley are
rightly demanding answers.
On Monday the Republicans sent a letter to FBI Director
Christopher Wray and Director of National Intelligence Avril
Haines asking how the Washington Post came to know about an
FBI briefing to both Senators on Aug. 6, 2020. A Post story
last week used the info to smear Mr. Johnson and his report
on Hunter Biden's foreign business dealings, suggesting that
he'd ignored FBI warnings and thus may have been manipulated
by the Kremlin. The newspaper cited only anonymous ``current
and former U.S. officials.''
In their letter the Senators note that the briefing came
after ``pressure from Democratic Leadership.'' In July 2020,
the Democratic Members of the Gang of Eight--senior Members
with access to intelligence secrets--had sent a letter and
classified addendum to Mr. Wray specifically citing the
Johnson-Grassley probe into Hunter Biden as reason for an
urgent briefing for Congress about foreign
``disinformation.'' That news was then leaked, in what was an
obvious attempt to tar the work of the two Republicans.
The two Senators became more concerned when the ensuing
briefing by the FBI turned out to be what they described as
``not specific'' as well as ``unconnected to our
investigation.'' (Their report was based on U.S. government
documents.) They specifically expressed to the FBI during the
briefing their concerns that it would be ``subject to a
leak'' for partisan gain. Which is exactly what happened last
week, despite the FBI's promise to the Senators of
confidentiality.
After the August briefing, Messrs. Johnson and Grassley
sent a letter demanding that Mr. Wray and the intelligence
community disclose the reason for it. They never received the
answer. In light of last week's leak, they are renewing their
demand to know who recommended the briefing, and the
intelligence that supposedly supported it.
Whether the FBI was pressured, duped, or actively
political, the bureau has again landed in the center of a
partisan fight. Mr. Wray might ask how that keeps happening.
Mr. GRASSLEY. The editorial began this way:
Did the FBI set up two Members of Congress for political
attack under the guise of a ``defensive briefing''? It's
possible, and Senators Ron Johnson and Chuck Grassley are
rightly demanding answers.
On May 3, Senator Johnson and I wrote to FBI Director Christopher
Wray and Director of National Intelligence Avril Haines, asking to meet
with them to discuss the August 20 briefing. We need answers, and we
need answers now. Why did the FBI and the intelligence community brief
us? Who made that decision? At the briefing, the FBI didn't even show
us what intelligence product formed the basis for the briefing.
I will tell you this, even without seeing any paperwork, we were
already aware of everything they talked about that very day, and it was
unconnected to the substance of our investigation.
I asked the FBI whether they had any new intelligence to share
because we hadn't heard anything new, and they didn't give us a single
new item. So, as far as I am concerned, the briefing was totally
unnecessary.
Based on the timeline of events, it appears the briefing was done
because the Democrats wanted it done, which means it was a political
decision.
The Wall Street Journal ended its piece by saying this:
Whether the FBI was pressured, duped, or actively
political, the bureau has again landed in the center of a
partisan fight. Mr. Wray might [want to] ask how that keeps
happening.
That is exactly right. The FBI and the intelligence community have
lots of explaining to do.
We already know that under Comey, the FBI used intelligence briefings
as surveillance operations against Trump and his team. Did the FBI and
the intelligence community also misuse briefing processes against
congressional Members? Only Director Wray and Director Haines can
answer that question, and so far, they have failed to answer those
questions. Their credibility and, more importantly, their
professionalism are on the line.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call.
The bill clerk proceeded to call the roll.
Mr. MORAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator is recognized.
Softwood Lumber
Mr. MORAN. Mr. President, we have seen across many sectors of our
economy the onset of the COVID-19 pandemic and its consequences. It has
dramatically shifted the supply and demand for lots of products in
unexpected ways.
I am on the floor today to speak about the price of lumber and the
impact the soaring costs are having on homebuilders and on home buyers.
Nationwide, construction for new homes is up 37 percent over the last
year and up 87 percent in the Midwest region, where I come from. Rising
demand for new home construction, as well as an upturn in do-it-
yourself home projects during the pandemic, have rapidly driven up the
cost of lumber. As a result, since last April, overall lumber prices
are up over 300 percent.
Lumber and wood products account for roughly 15 percent of the
construction costs for a single-family home. We all work to see that
that single-family home is something that is available to Americans. It
is the American dream. But lumber accounts for the second largest
overall cost of building a new home, only behind the cost of the land
the home sits on. These increases have resulted in a $36,000 increase
in the price of a typical single-family home and a $13,000 increase in
the market value of a multifamily unit.
The reality is that record-high lumber prices are putting the
American dream of home ownership out of reach for hundreds of thousands
of potential home buyers and disproportionately harming middle- and
low-income families across our Nation.
At a time when residential homebuilding is booming, it is essential
that homebuilders and consumers have access to the materials they need
at competitive prices.
Historically, Canada has been the largest foreign supplier of
softwood lumber in the United States. These imports are vital to
support the ongoing housing boom but have been declining. These imports
have been declining over the past 4 years.
In April 2017, the U.S. Department of Commerce announced
countervailing
[[Page S2435]]
duties averaging 20 percent on softwood lumber products from certain
Canadian producers. In December of 2020, the average tariff was reduced
to 9 percent. While a reduction in tariffs for some Canadian producers
is a step in the right direction, the complete elimination of these
tariffs is necessary to provide additional relief for rising lumber
prices.
At a recent Commerce, Justice, and Science Appropriations
Subcommittee hearing, I raised this topic with U.S. Trade
Representative Katherine Tai and urged her to engage with her Canadian
counterpart to reach a long-term agreement on softwood lumber trade. It
is American home buyers, not Canadian lumber producers, who end up
paying the cost of these trade restrictions.
In addition to working to resolve this trade dispute, we should also
work to boost the domestic production of the types of lumber used in
home construction. Additional lumber can and should be sustainably
harvested from public lands managed by the U.S. Forest Service and the
Bureau of Land Management. Adding to the existing lumber supply and
ensuring that domestic sawmills are operating at full capacity will
help soften lumber prices.
It is important for Kansans to have the opportunity and economic
means to own their own homes. Unfortunately, the current lumber prices
are making that dream unattainable for way too many families.
Resolving the longstanding trade dispute with Canada on softwood
lumber and better managing our public lands to increase lumber
production will both help alleviate the problems facing homebuilders
and home buyers.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. RUBIO. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
China
Mr. RUBIO. Mr. President, in December of 2019, as a new virus was
emerging on the opposite side of the world, I spoke at the National
Defense University, and the title of the speech I gave was called
``American Industrial Policy and the Rise of China.''
The reaction of many people to that at the time was skepticism--from
Wall Street investors who, frankly, saw no problem with the status quo
on China; from these think-tank experts who mocked my claim at the time
that our country relied too much on China economically in our supply
chain; and from tech giants in Silicon Valley obsessed with access to
the Chinese marketplace.
But the problem I pointed to at that time in that speech, almost 2
years ago--a year and a half ago--was that for over a quarter century,
our economic policies have been mostly about one thing: how American
investors and companies can make money by doing business with China. In
that vein, it didn't matter if making money meant allowing China to
steal our intellectual property, it didn't matter if making money meant
stable American jobs kept disappearing, and it didn't matter if making
money meant investing in Chinese companies developing technologies to
help defeat our country in a future war.
Finally, Americans are waking up to what a mistake that was. It was a
bipartisan consensus that was flawed.
The 21st century will be defined by the relationship between China
and the United States. Frankly, I believe that this is our last chance
to make sure that it is a balanced relationship.
What we do not have time for are China bills or a China bill that is
a collection of half-measures and studies. Instead, an actually
meaningful China bill is what we need. I believe most Members here want
it, and I believe we can get to it in a bipartisan way. But, to do so,
I think it has to have six things. If you want a meaningful bill on
China, it must touch on six things.
The first is like I said in December of 2019: We need to identify
industries which are critical for our future, and we must spur
investment in these key industries. We have to remember that we are not
in a strategic competition with foreign Chinese companies. We are in a
strategic competition with the world's largest and second wealthiest
nation-state.
There is no way to compete with China by relying only, solely on
private investment, not while the Chinese Communist Party subsidizes
and cheats to boost its favorite companies. From industrial corporate
giants to small businesses that make up our supply chain, the private
sector is the most important area of this competition. We can encourage
them to step up, just like we did for semiconductors with the CHIPS
Act.
Frankly, the way we developed the vaccine with Operation Warp Speed
is an example of a targeted industrial policy in which government
partners with the private sector to solve a big problem. You can say
what you want about America's response to COVID, but we have done
vaccines better than anyone else in the world--not even close--and it
is due to that partnership.
But an essential part of our strategy has to be, as a result, to
build a strong foundation through targeted and sustained Federal
funding for American research and development. The bipartisan Endless
Frontier Act is a nod in that direction. Right now, that bill makes the
National Science Foundation the lead Agency in directing $100 billion
in government investment. The problem is that is the same Agency that,
time and again, has had the research we fund stolen by professors and
graduate students who are on the payroll for China.
DARPA and other advanced research Agencies within government have a
much better record of protecting research and, I believe, would be a
far better choice to administer these investments, instead.
The second thing a real China bill must do is communicate that while
we do not seek an armed confrontation with China, we will confront any
military aggression, we will maintain our defense commitments with our
allies, and we will win any conflict China starts.
We must never do anything that leads Beijing to doubt our commitment
to Taiwan, and we must never accept the Chinese Communist Party's
illegitimate claims on the world's most important shipping lanes in the
South and East China Seas. The Strategic Competition Act we recently
passed out of the Foreign Relations Committee is largely silent on this
topic, but Chairman Menendez has pledged to work with me to include my
South China Sea and East China Sea Sanctions Act in any final bill that
we take up here on the floor.
The third thing a real China bill must do is fix broken international
and domestic trade laws. The World Trade Organization is failing
miserably, and it must be reformed. And China's flagrant intellectual
property theft, industrial espionage, and massive subsidies to Chinese
companies can no longer be ignored and they must be addressed. My Fair
Trade with China Enforcement Act would help protect critical industries
in America from Chinese influence and possession and recover the lost
value of secrets and technologies that they have stolen.
The fourth area of focus of any real China bill must be making sure
China doesn't control our medicines and/or our medical technology and
patient data. Last year, panic over masks and ventilators was a wake-up
call for our medical dependence on Beijing.
From blood thinners to acetaminophen, which is the ingredient in
Tylenol, we have allowed China to dominate the pharmaceutical
manufacturing market. It is dangerous leverage over America and
Americans. We should be able to make medicines here. This will not only
make us safer; it will create well-paying, stable jobs for American
workers. My Medical Manufacturing, Economic Development, and
Sustainability Act would do exactly that and should be included in any
real China bill.
As I said in September of 2019, we must immediately enact stricter
guidelines to make sure that public funding never contributes to
Chinese genomics efforts and beats them in that R&D race. If we allow
China to dominate genetic data and that field of medicine, Americans
will one day find themselves begging Chinese companies, and even the
Chinese Communist Party, for access to future lifesaving treatments.
The fifth area a real China bill must address is our capital markets.
Our
[[Page S2436]]
stock market is the most open, liquid, and profitable in the world, and
it is being used by the Chinese Communist Party to fund its military
and to fund their companies. Any meaningful China bill must cut off the
tap and prohibit American money from being invested in communist
China's military companies.
We need to start requiring more transparency from Wall Street when it
comes to investing in China and Chinese Government-controlled
companies. My American Financial Markets Integrity and Security Act
needs to be part of the solution
How can we claim to be dealing with Chinese manipulation of our
capital markets if we don't ban Chinese companies exploiting our own
stock market to hurt us? Beijing long ago figured out how to get rich
and powerful Americans to use their influence in American politics.
Allowing Wall Street and Big Finance to enrich themselves by hurting
Americans may make a lot of money in the short term for those
individuals, but it is hurting America in the long run. It is national
economic suicide.
The sixth area any real China bill must address is genocide. Today,
in China, nationless corporations, cooperating with the Chinese
Communist Party, force Uighur Muslims to make clothing and shoes and
even solar panels. Sadly, without knowing it, you may have very well
purchased a product made partially or entirely by slave labor in
Xinjiang.
These companies partnering with China are complicit in these crimes.
The Chinese Communist Party's reduced labor costs mean increased
profits for these corporations. While they lecture us about social
justice in America, these companies are making billions off of slavery
in China.
My bipartisan Uyghur Forced Labor Prevention Act has almost half the
Senate as cosponsors. We must take it up and pass it out of the Foreign
Relations Committee as soon as possible.
Last year, we saw companies like Nike, Apple, Coca-Cola, and even the
U.S. Chamber of Commerce lobbying against this bill. Well, soon we are
going to find out what holds more power in our country: corporations
making billions off genocide and slavery or our basic sense of right
and wrong.
The good news is that, today, we have finally awoken to the reality
of how wrong the old consensus on China was. But we woke up almost too
late. We don't have time for half-measures. We must address the
dangerous growing imbalance between America and China comprehensively,
decisively, and swiftly, or we will live to see a future in which the
world's most powerful nation is a totalitarian, genocidal, communist
dictatorship and our country is relegated to the role of a once-great
nation in decline.
No part of our lives will go unaffected in a world like that. We can
see the shadows of it even today. American movies today are free to
portray their own country here, the United States, as racist, as
bigoted, anything they want, but they automatically self-censor their
own movies to make sure they meet China's standards so they can show
those films there.
American corporations threaten States whose democratically elected
leaders pass laws they object to. They have every right in our
democracy to object, but they will fire American employees and ban
messages that risk getting their corporation kicked out of the Chinese
market.
And American teenagers are already turning over valuable personal
data to the Chinese Government on an hourly basis in exchange for the
ability to watch what I will admit are clever videos on TikTok.
Yet, this is nothing compared to the world that awaits if we do not
take action, and on this the lessons of history could not be clearer.
Athens emerged from the second Persian war a great power, but their
greatness made them decadent and complacent. They thought nothing would
ever change, that they could ignore important problems, that they could
focus on the trivial. So when conflict finally came, initially they
used their superior navy to attack Sparta and retreat behind the safety
of the city's walls.
That worked for a little while. Then a plague decimated the city, and
more enemies of theirs sensed their weakness and joined the fight
against them. Then Athens fell.
Like Rome and Britain later, the end of Athens' golden age came as it
always does for a great power. It doesn't come from the outside in; it
always comes from the inside out.
Now, from across the centuries, the lessons of history cry out for
our attention. Our politics are broken. We fight over the trivial
because we think the past is irrelevant, because we think our place in
the world will never change, and because we think the future will
always belong to us automatically. We hide behind our own version of
the walls, two vast oceans, believing, ultimately, we are safe from
everything outside.
We should not repeat the errors of the great powers of the past. My
friends, we don't have time for studies and strategy statements. We
need big changes and decisive action. We need to prove that our
democracy can work again, that our system of government can function,
and that it can solve big problems in big ways.
If we succeed, I truly believe a new American century lies ahead. If
we fail, it is a century of humiliation that awaits us.
I yield the floor
The PRESIDING OFFICER. The Senator from Maryland.
S.J. Res. 15
Mr. VAN HOLLEN. Mr. President, I am on the floor to urge my
colleagues on both sides of the aisle to support the resolution that we
will be voting on shortly. This is a resolution to protect all of our
constituents against predatory lenders--people who lend others money at
loan shark rates and often in deceptive language that can be very
confusing to consumers until they get the phone call, and they are told
they owe unaffordable amounts on loans.
And States have been working very hard to protect consumers. In fact,
45 States--States with Republican Governors and Democratic Governors,
Republican attorneys general and Democratic attorneys general--45
States and the District of Columbia have passed laws to protect their
constituents, their consumers from these loan shark-type loans, from
these predatory lending practices.
But we have seen these predatory lenders find a way around these
State efforts to protect their consumers. And the tactic they used has
come to be known as ``rent-a-bank.'' And the way it works is that
national banks can make loans into any State, even if they are not
chartered in that State. And so what has happened is, some of these
lenders then go to a national bank and essentially just borrow their
name, buy the rights to their name and, using that mechanism, then can
make loans into all 50 States, in violation of the State law
protections against these usurious loans. That is what is happening
now.
Now, when this whole problem began to emerge, we saw the Federal
Governor take action. In fact, the minute the OCC and the FDIC and
State governments caught wind of this new trick in the loan shark
playbook, they took action. In fact, under President George W. Bush,
the OCC--the Office of the Comptroller of the Currency--called these
``rent-a-bank'' schemes ``an abuse of the national bank charter.'' And
President Bush's Comptroller of the Currency explained that the OCC was
``greatly concerned with arrangements in which national banks
essentially rent out their charters.''
And that stance and that position was echoed by State legislatures--
again, legislatures from both parties, Governors from both parties who
then worked to pass laws, State laws, to limit the amount that people
could charge as interest rates on loans.
In fact, just last year, in the State of Nebraska, voters passed a
ballot initiative with more than 70 percent support to cap interest
rates at 36 percent on consumer loans. That is the same cap we have in
my State of Maryland and the same cap that more and more States are
adopting across the country. So States are taking measures to protect
their constituents, their consumers, against these end-runs around
their laws designed to prohibit these predatory practices.
But last October, in the middle of the pandemic, when many working
families were plunged into economic uncertainty and turmoil, the former
administration--the Trump administration--
[[Page S2437]]
gave these ``rent-a-bank'' schemes a free pass to exploit these
loopholes again, to create an end-run around those State protections
for their consumers.
In the last administration--the Trump administration--the OCC
unveiled what they called the true lender rule. Well, it is a nice-
sounding name, an innocent name, but the consequence of that is to
unleash the full force of predatory lending on working families. And it
reneges on and reverses decades of both State and Federal government
policy to prevent this end-run on usury caps.
What we have seen is predatory lenders move quickly into the space
when the Trump administration opened the door to it. One online lender
recently told its investors that it was going to get around
California's new interest rate cap by making loans through ``bank
sponsors that are not subject to the same proposed State level rate
limitations.''
So what you do is you go to a national bank, and you essentially rent
their name. And by doing that, you create a loophole that allows you to
avoid the State laws that have been put in place to protect against
this kind of predatory lending. And we are seeing that now emerge like
wildfire around the country.
I do want to be clear, there are many innovative fintech
partnerships. These are lenders who use the internet. There are many
who are not exhibiting these kind of predatory behaviors. And we should
craft a rule that allows legitimate lending consistent with State laws
through those fintech practices.
But the way this rule was written during the Trump administration, it
opens the door to all the bad actors. It opens the door wide to the
predatory lenders to exploit this loophole.
And that is why we are on the floor today, because this resolution is
designed to stop the predatory lending practices that were unleashed by
the OCC rule. It is to shut the door on that Trump administration OCC
rule that now has allowed predatory lenders to rush through it.
And what we are seeing now are rates of 100 percent, 200 percent--
whatever they want. I mean, the sky is the limit. Some of these
interest rates would make loan sharks blush.
So we just saw, in fact, one OCC-regulated bank that has been helping
a short-term lending company pilot an online ``rent-a-bank''
installment loan program that runs at 179-percent APR. And the OCC rule
is being litigated in court right now to defend a $67,000 loan to a
restaurant owner at a 268-percent APR rate that violates the State law
where that restaurant is.
So this is a perfect example of where a small restaurant owner took
out a loan--$67,000--deceptively portrayed, only to discover that it
was 268 percent APR. And when the restaurant owner says, ``Wait a
minute, I thought the limit in our State was 36 percent,'' all of a
sudden they discover that the Trump OCC opened the door to this end-run
against their State law protections.
That is why we have State attorneys general from red States and blue
States, from Nebraska and North Carolina, who have called these ``rent-
a-bank'' schemes a ``sham'' and urged us to act. They wrote to us here
in the Senate, saying:
The most efficient course to prevent unrestrained abuse and
avert immediate and ongoing consumer harm would be for
Congress to invalidate the [True Lender] Rule pursuant to its
remedial oversight powers under the Congressional Review Act.
That is what we will be voting on soon. North Carolina's attorney
general, Josh Stein, just also said in a separate statement:
We need every tool at our disposal to uphold state law and
stop [predatory lenders] from coming back into our state[s].
I hope that we will act right now to stop what is a rush by many of
these predatory lenders to exploit the opening created by the Trump
administration's OCC. Then let's take a pause. Let's take time to craft
a proper rule that allows legitimate lenders to make loans in ways that
do not violate the State protections for the consumers and do not, at
the end of the day, wreak havoc with families who get sucked into
unsuspecting terms through deceptive practices. So I urge the U.S.
Senate to vote to pass this resolution to protect consumers around the
country.
I yield the floor.
Mr. VAN HOLLEN. Mr. President, if I could just actually say one more
thing, this has been something that the Banking, Housing, and Urban
Affairs Committee has been working on. We held a number of hearings on
this. And I do just want to thank my friend and colleague, the chairman
of that committee, Senator Brown from Ohio, who has been a stalwart in
protecting consumers. I don't know if he has been to the floor yet, but
I just wanted to thank him and other members of the committee for their
efforts and also thank the Biden administration, which just sent down a
statement of administration support for overturning the OCC rule and
for voting in favor of this resolution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
Mrs. LUMMIS. Mr. President, when I joined the Senate Banking
Committee last February, I pledged to fairly examine every issue that
came before us, with an eye for detail and a fresh perspective--
promoting innovation, free markets, and our dual banking system.
I support the policy goals of the true lender rule in promoting
access to credit for underserved communities. I also recognize how
vital it is to provide legal clarity to financial technology innovators
during this time of change. I support all banks' powers, both State and
national, to export interest rates across State lines and to make
unassigned loans with clear regulatory certainty. Again, this promotes
access to credit.
The issues raised by the Office of the Comptroller of the Currency's
true lender rule and S.J. Res. 15, however, are not limited to ensuring
access to credit or protecting consumers from predatory lending and
have much larger implications for our banking system.
State-chartered banks have existed since the founding of our
Republic. After the passage of the National Bank Act of 1864, our
country fostered a dual banking system, and our country is all the
stronger for it. The United States is the leader of the global
financial system because we have a banking system that is based on
competitive equality, flexibility, and innovation.
Under the Federal laws that protect our dual banking system, State
and nationally chartered depository institutions have nearly identical
powers to carry out the business of banking across State lines with
legal clarity. This is because of State parity and the so-called State
wild card laws, the Riegle-Neal Act, and subsequent amendments over the
years. The Federal Reserve and the FDIC have broadly supported these
policies as well, adopting rules that promote equality for State banks
vis-a-vis national banks.
Esther George, President of the Kansas City Fed, noted in a 2012
speech that ``the dual banking system has provided and continues to
offer significant benefits to our financial system and economy . . .
multiple options for state and federal charters have led to
considerable innovation and improvement in banking services.''
So Congress and our Federal bank supervisors, on a roundly bipartisan
basis, have always been committed to maintaining parity between State
and nationally chartered institutions.
This brings us to today's vote. The problem with the true lender rule
before us is that it has the potential to upend parity between State
and national banks. In a nutshell, the OCC true lender rule determines
which banks or other financial institutions actually make a consumer
loan. Many States have different legal standards for determining this.
Ultimately, this would allow national banks to make and assign loans
more easily than State-chartered banks, giving them a distinct
advantage in the lending business.
The Board of Governors of the Federal Reserve and the Federal Deposit
Insurance Corporation did not adopt companions to the OCC true lender
rule. It is likely those Agencies do not have the legal authority to
adopt a similar rule for State banks. The FDIC confirmed this during
public remarks in December 2020. Consequently, we are left with a
scenario where national banks and Federal savings associations have a
great deal of legal clarity about marketplace lending and State-
chartered banks do not.
[[Page S2438]]
Why does this matter? There are approximately 3,954 State-chartered
banks in our country as of December. There are approximately 1,062
national banks and Federal savings associations that are depository
institutions. That means that of the approximately 5,016 commercial
banks in our dual banking system, about 79 percent are State banks and
21 percent are national banks and Federal savings institutions. The OCC
true lender rule applies to only 21 percent of the banks in our
country. Does a rule that applies to only 21 percent of the banks
really promote parity between State and nationally chartered
institutions? This chart shows plain as day that it does not.
Moreover, State-chartered banks are the primary banks currently
engaged in the kind of marketplace lending envisioned by the OCC true
lender rule. Many State banks have innovative and thriving partnerships
with nonbank lenders today. The OCC true lender rule will cause those
partnerships to shift to national banks. Why would a nonbank lender
choose to partner with a State bank that lacks the legal clarity of a
national bank or savings association and the preemption that follows
Federal law? I do not believe they will. There would be a great deal of
legal uncertainty for them because of State consumer protection laws.
Many of the State bank partnerships we see today in the marketplace
lending arena may disappear as the nonbank lenders naturally gravitate
towards the greater legal clarity of national banks.
This rule, in effect, would make these innovative partnerships the
domain of national banks, rendering State-chartered banks to be more
like second-class institutions. That has not been the will of Congress
in the past, and I don't believe it is today.
A prominent law firm noted in January of this year that ``for
institutions that participate in marketplace lending, most of which are
state-chartered banks, the lack of an FDIC rule creates a significant
exception to the federal support for the marketplace lending model and
appears to largely leave the issue to the states.''
Many wonder why States cannot adopt their own true lender rules on a
State-by-State basis or adopt some kind of uniform law. This likely
will not work for a number of reasons.
First, were a State like Wyoming to adopt its own true lender rule
for its own banks, what would require another State to respect the
Wyoming true lender rule and set aside its own consumer protection laws
that conflict with the Wyoming law? It likely would not, and that State
would likely require a Wyoming bank without a branch in that State to
abide by its own consumer protection laws in doing business there. This
is a basic tenet of States maintaining sovereignty within their own
borders, limited only by the U.S. Constitution and Federal law.
Secondly, a uniform law adopted at the State level would likely take
3 to 5 years, and by that time, marketplace lending would firmly be the
province of nationally chartered institutions. There would then be no
need for the law.
So where does that leave our dual banking system? The OCC true lender
rule clarifies a thorny legal question and restricts the application of
State consumer protection laws, providing legal clarity in marketplace
lending to 21 percent of the banks in this country, while essentially
telling the other 79 percent that they should convert to a national
charter or risk being left behind. That is the kind of choice Congress
has rejected in the past.
Many question the value of using the Congressional Review Act against
the true lender rule since it will prevent the OCC from adopting a
similar rule in the future. However, again, both the FDIC and the
Federal Reserve likely do not have the requisite statutory authority to
adopt their own true lender rule anyway. As a result, there is no rule
or Agency-based solution that fixes this problem in a satisfactory way.
For the true lender rule to apply equally to all State and national
banks, Congress must act. Leaving the OCC true lender rule in place
would reduce the likelihood of Congress fixing the issue. Disapproving
this rule will ensure that this issue remains top-of-mind for many and
can be fixed in a lasting way that ensures a level playing field. This
is a classic example of an issue crying out for a uniform national
standard enacted by Congress, which applies to all banks.
The United States is the leader of the global financial system for
many reasons, but one of those is surely the innovation, competition,
and diversity of thought brought about by our dual banking system. This
is a privilege, not a right, however, and one must work hard to
maintain that for future generations.
I am proud to be a vocal advocate of financial innovation in this
Chamber, and I will continue to work hard towards modernizing our
financial system in a responsible manner. However, for innovation to be
truly lasting, it has to be built on a solid foundation and not pick
winners and losers between national banks and State banks.
Only Congress can truly fix this issue. I look forward to working
with my colleagues to accomplish this. In the coming days, I will be
introducing legislation to do just that. Until this is fixed, the
current ``valid when made'' rule will continue to provide legal clarity
to Federal and State banks.
I urge my colleagues to thoughtfully consider the potential impact of
the OCC true lender rule on State-chartered banks.
In order to preserve our dual banking system and Congress's past
actions to ensure parity between State and nationally chartered banks,
I do not have any other option but to support S.J. Res. 15
I yield the floor.
The PRESIDING OFFICER (Mr. Markey). The Senator from Ohio.
National Police Week
Mr. PORTMAN. Mr. President, this is National Police Week. It is a
time every year when we stop to pay tribute to our law enforcement
officers around the country, the men and women in blue who serve us
every day in my State of Ohio and every State represented in this
Chamber.
We also remember the brave law enforcement officers who tragically
died in the line of duty. We can never forget this is a dangerous
profession. The National Law Enforcement Memorial and Museum reported
that 2020 was the deadliest year for law enforcement in decades. In
Ohio alone, we sadly lost six brave law enforcement officers over the
past year. Here in the Capitol, of course, we lost three officers over
the past year, including on January 6. In the course of our Nation's
history, more than 24,000 officers have died in the line of duty.
I was proud to join colleagues in March in sponsoring legislation
called the Protect and Serve Act, which would create Federal penalties
on those who would attempt to harm or kill a police officer. I believe
Protect and Serve would send a strong message to help deter these
crimes. Ultimately, I think it would make our men and women in blue
safer and help save lives.
This week, I urge my colleagues to join me in standing with the
families of our fallen police officers and thanking them and thanking
law enforcement for what they do every day to protect us. One way to
express our gratitude is passing laws that will assist them in their
critical work to keep us safe.
Opioid Epidemic
With that in mind, I am also on the floor today to call on my
colleagues to support our law enforcement by taking decisive action to
help them to keep some of the deadliest drugs in the world from coming
into our communities. It is not an overstatement to say that this is a
matter of life or death.
Overdose deaths in the United States have sadly reached a record high
during the COVID-19 pandemic. According to recent data from the Centers
for Disease Control, 87,000 Americans died during the 12-month period
between September 2019 and September 2020, the most recent data we
have. This can be directly attributed to the circumstances surrounding
the pandemic. So many families are feeling the pain of these losses.
Sadly, based on the current trends, we expect calendar year 2020 in
full to be even worse.
What is the main driver of these overdoses and overdose deaths?
Synthetic opioids, most notably fentanyl. Fentanyl is 50 times more
powerful than heroin, relatively inexpensive, deadly, and incredibly
addictive. For years, this has been coming to our shores from China,
first predominantly
[[Page S2439]]
through our mail system, and with our new legislation in place to
prevent that from happening, much of it is now coming in through
Mexico. In 2019, there were 70,630 deaths from opioids and other drugs,
and more than half of those--36,359--involved fentanyl, sometimes mixed
with other drugs like cocaine and crystal meth or heroin.
Again, of all the poisons, fentanyl is the most deadly. It does have
a medical purpose and can be used to treat patients in severe pain the
same way morphine is used.
Both fentanyl and morphine are classified under schedule II by the
drug enforcement authorities. In order to avoid prosecution under that
scheduling order, drug traffickers started making slight modifications
to fentanyl, creating what we call fentanyl analogs or fentanyl-related
substances, essentially copycat fentanyl.
Evil scientists in places like China, Mexico, and India, working in
unregulated pharmaceutical plants, will make a slight modification to
fentanyl, sometimes adjusting a single molecule, to create what are,
essentially, these fentanyl copycats.
While these copycats may have the same narcotic properties as
fentanyl, these tiny variations allow these traffickers to evade
prosecution.
Oftentimes, by the way, these fentanyl-related substitutes, these
copycats, are even more powerful than fentanyl itself. Take, for
example, carfentanil.
These fentanyl-related substances are the reason I am on the floor
today. In 2018--2018--in recognition of the growing threat these
copycats posed to our public health, the DEA temporarily scheduled
fentanyl-related substances as schedule I, the highest designation they
can give.
Since then, we have passed two temporary extensions of that
designation. Most recently, Congress passed a 5-month extension just
ahead of the previous deadline of May 6, just a couple weeks ago, and
President Biden signed that legislation into law last week.
I supported that temporary extension because the alternative was
worse. The only alternative was to let these substances become legal.
But I don't think kicking the can down the road for another 5 months is
nearly enough to safeguard against the threat of copycat fentanyl. We
need to do much more between now and when this temporary scheduling
extension expires in October.
Law enforcement needs certainty, and the drug cartels and those evil
scientists need to know we are serious in addressing this problem, that
there will be consequences.
We need a permanent solution. Specifically, let's pass bipartisan
legislation I introduced with my colleague Senator Manchin called FIGHT
Fentanyl, which simply says: Let's not allow these illicitly
manufactured and deadly synthetic opioids to suddenly become legal
again. That is what law enforcement wants. That is what our communities
demand. That is what we deserve to give them. It is long overdue that
we make this designation permanent.
I know some of my colleagues oppose permanent scheduling of these
fentanyl drugs because they are concerned about mandatory minimum
sentences, and also that it could hinder research into future
medications to treat addiction. Let me address both of those quickly.
First, there is this concern about the harsh punishments that don't
fit the nature of the crime. I share that concern. That is why our
legislation ensures that mandatory minimum sentences are not
automatically imposed in any criminal case. We want the judge to look
at the severity of the crime and consider all relevant factors in
sentencing. So that issue has been addressed in our bipartisan
legislation.
There has been a great deal of conversation about the impact of
prosecutions and incarcerations on specific populations, including
minority communities. What is often lost in this debate, I will say, is
the growing impact of fatal overdoses in those same communities. Since
2016, while White fatalities have decreased through the period of 2019,
the data we have shows that overdoses from opioids among Black
Americans, particularly Black men, have actually gotten worse, not
better.
From 2011 to 2016, that same time period, when White overdoses and
deaths were reduced, Black Americans had the highest increase in
synthetic opioid-involved overdose deaths, compared to all populations.
And while in 2017 to 2018 overall opioid-involved overdose fatalities
decreased by just over 4 percent, rates among Black and Hispanic
Americans actually increased. This is an issue we must address here.
Another issue my colleagues have raised, again, is concern that
permanently scheduling fentanyl and its analogues somehow hinders
research into treating addiction. First of all, I agree we need this
research. We need it badly. One example of this is coming up with
naloxone, a miracle drug based on heroin that actually reverses the
effects of an overdose.
I spoke to the scientist, Roger Crystal, just last week, who
developed the nasal version of this naloxone. It is a miracle. I have
seen it work, and it saves lives.
Researchers have told me there are barriers to being approved to
legally research schedule I substances. There is also a stigma to
conducting this kind of research, even though we know that it could
lead to the development of new treatments. But this is something we can
easily address by allowing qualified researchers the ability to study
fentanyl analogues under schedule II as opposed to schedule I. So we
can address that issue.
I am open to working with my colleagues to address these barriers,
and I believe that we can do that through the legislation creating
flexibility in the registration system for scientists.
But I would urge my colleagues that we need to use the next 5 months
to do the hard work of finding a permanent solution to this crisis
before we have to once again run the risk of letting these drugs become
legal and the message that that sends and the deaths that would occur
as a result. The U.S. Senate can take the lead and permanently classify
these dangerous narcotics that are literally killing tens of thousands
of our fellow citizens every year. Instead of kicking the can down the
road again for 5 months from now, let's make it permanent. The House
and the Biden administration should support this effort. Lives are at
stake.
It is important that we continue to focus this body, as we have, on
the demand side of this equation--prevention, treatment, longer term
recovery for fentanyl and for other substances.
But it is also important that we not allow these substances to come
on the streets at lower and lower costs and at greater and greater
volumes. That is what would happen if we do not move as a Congress to
ensure that these fentanyl copycats and fentanyl itself remain illicit
drugs, as they are.
Let's do the right thing for our community. Let's do the right thing
for law enforcement. Let's be sure they have the predictability and
certainty in law enforcement to know that these criminals can be
prosecuted, these traffickers.
We need to act now to address the threat of these deadly fentanyl
drugs coming into our communities. I urge the Senate to pass the FIGHT
Fentanyl bill. Join us in this effort so we can better work to reverse
the tragic rise in overdose deaths around the United States of America.
I yield the floor
S.J. Res. 15
Mr. DURBIN. Mr. President, I come to the floor today in support of
the Congressional Review Act resolution to rescind the Office of the
Comptroller of the Currency's ``True Lender Rule.'' This rule was
rushed through by the previous administration with complete disregard
to the harm it would cause already struggling working Americans.
The true lender rule undercuts important consumer protections at the
State level and greenlights high-cost ``rent-a-bank'' schemes. These
schemes let predatory lenders evade State interest rate caps by
funneling high-interest loans--loans that are illegal under State law--
-through national banks.
We know these lenders prey upon those struggling to make ends meet
and are more likely to operate in areas with higher concentrations of
poverty. And they offer complicated loans that are designed to trap
consumers in an endless cycle of debilitating debt.
What is especially troubling is that this rule was finalized in
November of
[[Page S2440]]
last year at a time when so many were reeling from an unprecedented
public health and economic crisis. And while so many American families
struggle to put food on the table and make their rent or mortgage
payments, the OCC's rule makes it easier for predatory lenders to prey
on those most vulnerable, exacerbating the economic hardship of
millions.
Currently, 45 States and the District of Columbia have instituted
interest rate caps on installment loans to protect consumers. Earlier
this year, my home State of Illinois passed into law a 36-percent cap
on interest rates for consumer loans. These protections are essential
to ensuring that hard-working Americans are not exploited.
The true lender rule would allow predatory lenders to evade these
important State-level consumer protections. Twenty-five State attorneys
general, including Illinois Attorney General Kwame Raoul, recently
wrote to me and my colleagues to underscore the dangers of the OCC's
true lending rule. They say in their letter, ``The OCC's Rule would be
exploited by lenders seeking to circumvent these state interest-rate
caps and invite, indeed welcome, predatory consumer-lending
partnerships . . .''
I agree with the concerns raised by Attorney General Raoul and his
counterparts. The Federal Government should be doing more to protect
the financial security of Americans, not less.
Congress needs to take action--now more than ever--to protect working
families from predatory lending practices. We must rescind this harmful
true lender rule. However, addressing the harm of this rule is not
enough. More must be done to protect vulnerable American consumers. For
more than a decade, I have pushed for a Federal interest rate cap of 36
percent on all consumer loans. This standard is not radical or new. The
Federal Government already affords similar protections to military
servicemembers and their families. We should expand those protections
to all Americans.
COVID-19 has devastated the lives of millions of Americans and
brought significant economic challenges to so many households. We need
to be protecting the most vulnerable populations who are just trying to
get back to normal and get a fair shot at the American dream.
Let's come together on a common goal: to protect American consumers
from predatory lending practices. Passing today's CRA resolution would
bring us one step closer to that goal.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. BROWN. Mr. President, the vote we are about to take on this Van
Hollen resolution, S.J. Res. 15, is a bipartisan opportunity for us to
show people whom we serve that we are on their side.
States all over the country--red and blue States, States in the South
and Midwest, on both coasts--have all recognized that people need
protections from predatory lenders. That is why nearly every State and
the District of Columbia have passed laws to limit, to cap the
interest--the amount of interest--that can be charged on payday and
other loans.
In the late 1990s, payday lenders were desperate to find a way to
evade State laws that limited them from charging exorbitant interest
rates that trap people in a cycle of debt they can't get out of, no
matter how hard they work. They came up with what the Comptroller of
the Currency called ``rent-a-charter''--what we now know as a ``rent-a-
bank'' scheme.
Because banks are generally not subject to these State laws, payday
lenders funneled their loans through a small number of willing banks.
It looked like the banks were making the loans, when it was really the
payday lenders.
Federal regulators in both parties--Republicans and Democrats--saw
through this very obvious ruse that hurt low-income people who were
forced to get credit any way they could. Federal regulators cracked
down. Under both President Bush and President Obama, the Office of
Comptroller of the Currency and the Federal Deposit Insurance
Corporation--OCC and FDIC--shut down a series of these schemes by
payday lenders and banks.
States from across the country also stepped in to protect their
residents. Georgia, West Virginia, my State of Ohio, Pennsylvania, New
York, Maryland, Montana, South Dakota, Colorado, Illinois, Virginia,
and Nebraska all passed new laws and regulations either to stop these
schemes or to cap interest rates on payday loans at 36 percent--still a
very, very high number that most of us never pay, but that people who
can only get credit that way end up paying, unfortunately. It is still
a high number that, obviously, will make any company making these loans
plenty of money.
Several other States, including California and Ohio, also passed laws
to limit the interest that can be charged on consumer loans. These new
laws passed with overwhelming bipartisan support.
Now, get this: More than 75 percent of voters in Nebraska and South
Dakota supported the ballot initiatives to cap interest rates on payday
loans. So three-fourths of the voters going to the polls in a popular
vote wanted to cap interest rates on payday loans in those two States.
In recent years, new financial technology companies emerged that
partner with banks to offer responsible small-dollar loans at more
affordable rates.
But we also have a separate group of online payday lenders
resurrecting the same old rent-a-bank scheme to offer abusive, high-
interest loans. They are not even attempting to hide it.
One online lender told its investors it would get around California's
new law by making loans--these were their words, this lender's--through
``bank sponsors . . . not subject to the same proposed state level rate
limitations.''
So he or she is even acknowledging that States--voters or State
legislatures or both--are saying: We want to cap those interest rates
so people don't take out a small loan and end up paying 200, 300
percent after these payday lenders put that on them.
Another lender said: ``There is no reason why we wouldn't be able to
replace our California business with a bank program.''
So they know what they have to do. They know they are going against
the intent of the legislature and the intent of the voters.
Given the broad bipartisan support for these laws, we had hoped that
the Trump OCC would take action and crack down on these schemes, the
same way that Bush and Obama had done--schemes that have been rejected
by voters and legislatures over and over, in State after State after
State.
But last year, the OCC issued what is known as the true lender rule,
overruling voters of both parties, giving essentially a free pass to
these abusive rent-a-bank schemes.
Now, to fight back on behalf of low-income people and on behalf of
fair play, a broad bipartisan coalition is asking Congress to overturn
the OCC's harmful true lender rule.
That support includes credit unions, State bank regulators--
Republicans and Democrats alike--and State attorneys general of both
parties. One of the most outspoken has been the Republican attorney
general of Nebraska, because his State passed--his State's voters
passed--a limit, 75 percent of them, to keep interest rates down.
There is support from small business groups, support from the
Military Officers Association of America.
We know that payday lenders especially prey on young members of the
military. One of them may be off in a foreign country while the spouse
stays back at the base or stays back in a community and is struggling
with just having the resources to get by. They are preyed upon so
often.
Other groups are the National Association of Evangelicals, the
Southern Baptist Convention, and other members of the Faith in Just
Lending Coalition.
That coalition wrote to Congress:
Predatory payday and auto title lenders are notorious for
exploiting loopholes in order to offer debt-trap loans to
families struggling to make ends meet. The OCC's ``True
Lender'' rule creates a loophole big enough to drive a truck
through.
That came from this coalition--the coalition of attorneys general,
the Military Officers Association, the National Association of
Evangelicals, and the Southern Baptist Convention. They are saying the
OCC's true lender rule creates a loophole big enough to drive a truck
through.
[[Page S2441]]
We know why these commonsense laws that our States passed are
popular. We know why they enjoy bipartisan support in States across the
country. People don't want abusive lenders to prey on them, their loved
ones or their neighbors.
Some issues that come before the Senate are complicated. They divide
people. There are thorny nuances to consider. This isn't one of them.
It is simple. Let's protect the people whom we serve. They have clearly
cried out for us to do this. We should protect those people.
I urge my colleagues to support S.J. Res. 15 to overturn this rule.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. SCHUMER. First, let me thank our chair of the Banking Committee,
someone who has fought against the abuses in the financial services
industry throughout his career, Senator Brown. Let me also thank
Senator Van Hollen, who, again, has been one of those leaders doing
great things to help people who are often taken advantage of.
Now, for millions of working Americans, one of the most dangerous
things that can happen is falling victim to predatory lenders.
Unscrupulous actors have always promised quick cash or credit to people
with unexpected expenses or financial difficulties, only to trap them
with crippling interest rates that can erase a person's life savings or
even claim their homes. They are in trouble. They reach out to the
lifeline, and the lifeline is a trap. Often they are trapped for years
and even some for their whole lives.
That is why more than 40 States have passed laws that prohibit this
behavior and placed limits on interest rates made by nonbank lenders.
It runs the gamut from liberal California to conservative Texas.
Inexplicably--inexplicably--the Trump administration decided to give
these predatory lenders a massive loophole to circumvent State law and
once again prey on low-income Americans. Under the Trump
administration's rule, so long as payday lenders found a bank to
provide the cash upfront and attach their name to the transaction,
interest rates in the triple digits were suddenly OK, even if the
States explicitly banned it.
It is despicable and so typical of the Trump administration not
caring about average folks at all and just listening to the special
interests. It had devastating consequences for working families and for
small businesses.
In New York, the owner of a southern food restaurant in Harlem took
out a $67,000 loan from a fraudulent lender to make renovations to
their restaurant. They fell behind on payments and tried to work with
their lender when COVID hit and realized that their loan had an APR of
268 percent. Rather than work toward a solution, the lender went to the
bank to try and foreclose on their property--their property in which
they had put blood and sweat and tears--stating that the Trump rule
gave them the grounds to do so. It mattered little that New York State
law had a 268-percent interest rate as blatantly illegal.
So today's vote is simple. It would revoke the Trump administration's
so-called true lender rule that permits predatory lenders to exploit
small businesses and working Americans. In the middle of a pandemic,
the last thing we should be doing is perpetrating a rule that makes it
easier for payday lenders to scam working people and business owners.
With today's vote, the Senate stands up for working families and
small businesses all across the country by repealing this terrible,
essentially Scrooge-like rule pushed by former President Trump and his
allies.
And one final point for those who say elections don't make a
difference. Just look at this. Here was a rule protecting people--
States protected people. The Trump administration comes in and rips
away those protections, leaving so many people bare and defenseless
because they were desperate; they need the money.
Elections occur. A new Democratic President, a Democratic Senate, and
this horrible, horrible rule change by the Trump administration is
undone. We go back to giving some help and protection to working
families and small business people.
This story could be repeated not just with CRAs but up and down the
line--up and down the line. Elections do make a difference, and today's
vote shows one of many examples.
Vote on S.J. Res. 15
I yield the floor and, Mr. President, I ask unanimous consent that
all remaining time be yielded back.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The joint resolution was ordered to be engrossed for a third reading
and was read the third time.
The PRESIDING OFFICER. The joint resolution having been read the
third time, the question is, Shall the joint resolution pass?
Mr. SCHUMER. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Mexico (Mr.
Heinrich), is necessarily absent.
The PRESIDING OFFICER (Mr. Peters). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 52, nays 47, as follows:
[Rollcall Vote No. 183 Leg.]
YEAS--52
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Hassan
Hickenlooper
Hirono
Kaine
Kelly
King
Klobuchar
Leahy
Lujan
Lummis
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Ossoff
Padilla
Peters
Reed
Rosen
Rubio
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Van Hollen
Warner
Warnock
Warren
Whitehouse
Wyden
NAYS--47
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Ernst
Fischer
Graham
Grassley
Hagerty
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Marshall
McConnell
Moran
Murkowski
Paul
Portman
Risch
Romney
Rounds
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Tuberville
Wicker
Young
NOT VOTING--1
Heinrich
The joint resolution (S.J. Res 15) was passed, as follows:
S.J. Res. 15
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That Congress
disapproves the rule submitted by the Office of the
Comptroller of Currency relating to ``National Banks and
Federal Savings Associations as Lenders'' (85 Fed. Reg. 68742
(October 30, 2020)), and such rule shall have no force or
effect.
Mr. SCHUMER. Let me first commend my colleague from Ohio for the
excellent work, not only moving this forward but the vote counting that
he did, which worked with a little bit of margin of error.
____________________