The new-look House must pull the pot industry out of the shadows
Written by: David P. Weber. Originally published in The Hill on 11/8/2018.
The House of Representatives is set to shift course.
Early next year, there will be 218 Democrats in the chamber, giving the left a majority and the speaker of the House for the first time in eight years. The Democrats will gavel the House committees. They’ll set the agenda and the priorities, and they’ll limit the authority of the president. In short, Congress is about to look very different, very soon.
As an example: Rep. Maxine Waters (D-Calif.) is poised to become the next chair of the House Financial Services Committee. Water’s ongoing animosity toward President Donald Trump will provide its own source of intrigue.
But political majorities can be fleeting things, so with that in mind, here are a few things the Democrats should consider, financial services-wise, while they have the floor.
Increase Bank Secrecy Act oversight: The BSA, also known as the Currency and Foreign Transactions Reporting Act, was passed almost 50 years ago. It requires U.S. financial institutions to work with the government in cases of money laundering and fraud, including filing mandatory currency transaction reports and suspicious activity reports with the government.
They are also supposed to have BSA programs to prevent the misuse of the national banking system by criminals. It’s more relevant than ever, as a read of the Panama Papers and Paradise Papers investigative reporting projects reveal.
Importantly, the investigations, one of which won the Pulitzer Prize for explanatory reporting, demonstrated how money launderers, terrorist financiers, Russian kleptocrats and plain old tax cheats routinely use the professional services of certified public accountants, including each of the Big Four accounting firms.
An undercover investigation by Global Witness even used undercover tape to show how New York City lawyers — including the then-president of the American Bar Association, were perfectly willing to help what they believed was a corrupt African dictator.
Critically, the oversight needs to be stronger than the current Financial Crimes Enforcement Network (FinCEN) guidance to address the revelations of Panama and Paradise Papers. Serious consideration needs to be had about bringing professionals within the ambit of the BSA.
Professionals must not be able to turn a blind eye to obvious money laundering, and state accounting and bar authorities have failed to hold professionals to account. Perhaps this is our Enron moment — again.
As a bonus, increasing oversight of the BSA could draw broad, bipartisan support, with its aim of cracking down on terrorism and money laundering or even staunching the loss of tax revenues as our federal deficit balloons.
Put a stopper in that revolving door: This one is a little inside financial baseball, but bear with me. It’s time to close the regulatory loophole that allowed the former FinCEN Director Jennifer Shasky Calvery to leave her position as the U.S. Treasury Department’s top anti-money laundering official and almost immediately start work at financial giant HSBC.
Her career move wasn’t prohibited — hence the loophole — because she wasn’t a “senior examiner” and FinCEN wasn’t a banking agency. But give us a break. She announced her departure from Treasury one month after the revelations of the Panama Papers.
HSBC was the largest global bank with U.S. connections in the Panama Papers, and her move to HSBC was an embarrassment to all public servants. Importantly, the time is now for the House to increase oversight of the Office of the Comptroller of the Currency, HSBC’s primary federal regulator, which seems to not be reacting quickly to the clear evidence contained within the Panama and Paradise Papers investigations.
Indeed, HSBC continues to hawk private offshore banking accounts in the Channel Islands. HSBC claims it is up to each customer to determine if their conduct is legal:
“While banking offshore may have tax related benefits for you, tax rules differ from country to country. If you’re unsure about your personal tax obligations, you should seek professional advice. It’s your responsibility to disclose your income to the tax authorities.”
As Calvery is capable of explaining to her new employer, this is simply not the manner in which the BSA works, nor should it be acceptable to HSBC’s U.S. and UK regulators.
Also, don’t allow the corporate subsidiary shell game anymore. A U.S. regulator plainly has jurisdiction over the Channel Island subsidiary. If it doesn’t, Congress must act to give the Fed or OCC the authority to act immediately, and ensure they do so.
The bank is engaged in obvious, willful blindness in failing to act under the BSA, and prevent the use of offshore secrecy by American account holders. Congress needs to ask, “where are the examiners?”
Pull legal marijuana businesses out of the shadows: Although nearly half of U.S. states now have legalized marijuana use in some way, pot entrepreneurs still face all the problems of a traditional drug dealer.
Marijuana growers, pot dispensaries, bakeries and other businesses are cropping up around this industry where pot has been legalized, but because marijuana remains illegal under federal law, it remains virtually impossible for pot-based business entrepreneurs to access financial service in the United States.
That creates a thick fog of problems. This measure is a lot less likely to find fans among the GOP.
The 2014 FinCEN guidelines were the first to articulate the considerations financial institutions must consider, before providing banking services to cannabis businesses. The guidance establishes risk considerations for depositories, but it doesn’t explicitly approve of providing financial services to cannabis businesses.
The Controlled Substances Act, meanwhile, still makes it a federal crime to manufacture, distribute or dispense marijuana, which remains a Schedule I narcotic under federal law, with the very serious potential penalties, including prison, fines and forfeiture, attendant on Schedule I drugs.
The uncertainty comes from wondering which laws will be enforced, and which won’t, at any given time, based on political whims and public sentiment.
With half of states greenlighting pot, it’s time for Congress to clear the roadway. This is good public policy if for no other purpose than to bring these tax-paying businesses into the payment system and mitigate the risk of shoot outs, armed robberies and cash payment of taxes, all of which continue to exist so long as these businesses are locked out.
David P. Weber is the academic director of Fraud Management Programs, and a full-time lecturer of forensic accounting, at the Robert H. Smith School of Business, University of Maryland. He is the former chief of enforcement unit I of the Federal Deposit Insurance Corp., and the former special counsel for enforcement of the Office of the Comptroller of the Currency. He concluded his federal career as the Assistant Inspector General for Investigations, the Chief Investigator, of the U.S. Securities and Exchange Commission.