II 

117TH CONGRESS 

1ST SESSION S. 563 

To amend the Federal Reserve Act to prohibit certain financial service providers who deny fair access to financial services from using taxpayer 

funded discount window lending programs, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 3, 2021 

Mr. CRAMER (for himself, Mrs. BLACKBURN, Mr. DAINES, Mr. KENNEDY, Ms. 

LUMMIS, Mr. SCOTT of Florida, Mr. TILLIS, Mr. INHOFE, Mr. HOEVEN, 

Mr. TUBERVILLE, Mr. BARRASSO, Mr. CRUZ, Mr. CASSIDY, Mrs. CAPITO, 

Mr. CORNYN, Mr. COTTON, Mr. SCOTT of South Carolina, Mr. SULLIVAN, 

Mr. HAWLEY, Mr. LANKFORD, Mr. BRAUN, Mr. RISCH, Mr. MARSHALL, 

Mr. WICKER, Mrs. HYDE-SMITH, Mr. CRAPO, and Mrs. FISCHER) introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs 

A BILL 

To amend the Federal Reserve Act to prohibit certain financial service providers who deny fair access to financial 

services from using taxpayer funded discount window 

lending programs, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Access to Bank5 ing Act’’. 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 563 IS

1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) article I of the Constitution of the United 

4 States guarantees the people of the United States 

5 the right to enact public policy through the free and 

6 fair election of representatives and through the ac7 tions of State legislatures and Congress; 

8 (2) banks rightly objected to the Operation 

9 Choke Point initiative through which certain govern10 ment agencies pressured banks to cut off access to 

11 financial services to lawful sectors of the economy; 

12 (3) banks are now, however, increasingly em13 ploying subjective, category-based evaluations to 

14 deny certain persons access to financial services in 

15 response to pressure from advocates from across the 

16 political spectrum whose policy objectives are served 

17 when banks deny certain customers access to finan18 cial services; 

19 (4) the privatization of the discriminatory prac20 tices underlying Operation Choke Point by banks 

21 represents as great a threat to the national economy, 

22 national security, and the soundness of banking and 

23 financial markets in the United States as Operation 

24 Choke Point itself; 

25 (5) banks are supported by the United States 

26 taxpayers and enjoy significant privileges in the fiVerDate Sep 11 2014 23:24 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S563.IS S563

kjohnson on DSK79L0C42PROD with BILLS
3 

•S 563 IS

1 nancial system of the United States and should not 

2 be permitted to act as de facto regulators or 

3 unelected legislators by withholding financial services 

4 to otherwise credit worthy businesses based on sub5 jective political reasons, bias or prejudices; 

6 (6) banks are not well-equipped to balance risks 

7 unrelated to financial exposures and the operations 

8 required to deliver financial services; 

9 (7) the United States taxpayers came to the aid 

10 for large banks during the great recession of 2008 

11 because they were deemed too important to the na12 tional economy to be permitted to fail; 

13 (8) when a bank predicates the access to finan14 cial services of a person on factors or information 

15 (such as the lawful products a customer manufac16 tures or sells or the services the customer provides) 

17 other than quantitative, impartial risk-based stand18 ards, the bank has failed to act consistent with basic 

19 principles of sound risk management and failed to 

20 provide fair access to financial services; 

21 (9) banks have a responsibility to make deci22 sions about whether to provide a person with finan23 cial services on the basis of impartial criteria free 

24 from prejudice or favoritism; 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 563 IS

1 (10) while fair access to financial services does 

2 not obligate a bank to offer any particular financial 

3 service to the public, or to operate in any particular 

4 geographic area, or to provide a service the bank of5 fers to any particular person, it is necessary that— 

6 (A) the financial services a bank chooses to 

7 offer in the geographic areas in which the bank 

8 operates be made available to all customers 

9 based on the quantitative, impartial risk-based 

10 standards of the bank, and not based on wheth11 er the customer is in a particular category of 

12 customers; 

13 (B) banks assess the risks posed by indi14 vidual customers on a case-by-case basis, rather 

15 than category-based assessment; and 

16 (C) banks implement controls to manage 

17 relationships commensurate with these risks as18 sociated with each customer, not a strategy of 

19 total avoidance of particular industries or cat20 egories of customers; 

21 (11) banks are free to provide or deny financial 

22 services to any individual customer, but first, the 

23 banks must rely on empirical data that are evaluated 

24 consistent with the established, impartial risk-man25 agement standards of the bank; and 


kjohnson on DSK79L0C42PROD with BILLS
5 

•S 563 IS

1 (12) anything less is not prudent risk manage2 ment and may result in unsafe or unsound practices, 

3 denial of fair access to financial services, cancelling, 

4 or eliminating certain businesses in society, and have 

5 a deleterious effect on national security and the na6 tional economy. 

7 SEC. 3. PURPOSE. 

8 The purposes of this Act are to— 

9 (1) ensure fair access to financial services and 

10 fair treatment of customers by financial service pro11 viders, including national and state banks, Federal 

12 savings associations and State and Federal credit 

13 unions; 

14 (2) ensure banks conduct themselves in a safe 

15 and sound manner, comply with laws and regula16 tions, treat their customers fairly, and provide fair 

17 access to financial services; 

18 (3) protect against banks being able to impede 

19 otherwise lawful commerce and thereby achieve cer20 tain public policy goals; 

21 (4) ensure that persons involved in politically 

22 unpopular businesses but that are lawful under Fed23 eral law receive fair access to financial services 

24 under the law; and 


kjohnson on DSK79L0C42PROD with BILLS
6 

•S 563 IS

1 (5) ensure banks operate in a safe and sound 

2 manner by making judgments and decisions about 

3 whether to provide a customer with financial services 

4 on an impartial, individualized risk-based analysis 

5 using empirical data evaluated under quantifiable 

6 standards. 

7 SEC. 4. ADVANCES TO INDIVIDUAL MEMBER BANKS. 

8 (a) MEMBER BANKS.—Section 10B of the Federal 

9 Reserve Act (12 U.S.C. 347b) is amended by adding at 

10 the end the following: 

11 ‘‘(c) PROHIBITION ON USE OF DISCOUNT WINDOW

12 LENDING PROGRAMS.—No member bank with more than 

13 $10,000,000,000 in total consolidated assets, or sub14 sidiary of the member bank, may use a discount window 

15 lending program if the member bank or subsidiary refuses 

16 to do business with any person who is in compliance with 

17 the law, including section 8 of the Fair Access to Banking 

18 Act.’’. 

19 (b) INSURED DEPOSITORY INSTITUTIONS.—Section 

20 8(a)(2)(A) of the Federal Deposit Insurance Act (12 

21 U.S.C. 1818(a)(2)(A)) is amended— 

22 (1) in clause (ii), by striking ‘‘or’’ at the end; 

23 (2) in clause (iii), by striking the comma at the 

24 end and inserting ‘‘; or’’; and 

25 (3) by adding at the end the following: 


kjohnson on DSK79L0C42PROD with BILLS
7 

•S 563 IS

1 ‘‘(iv) an insured depository institution 

2 with more than $10,000,000,000 in total 

3 consolidated assets, or subsidiary of the in4 sured depository institution, that refuses to 

5 do business with any person who is in com6 pliance with the law, including section 8 of 

7 the Fair Access to Banking Act.’’. 

8 (c) NONMEMBER BANKS, TRUST COMPANIES, AND

9 OTHER DEPOSITORY INSTITUTIONS.—Section 13 of the 

10 Federal Reserve Act (12 U.S.C. 342) is amended by in11 serting ‘‘Provided further, That no such nonmember bank 

12 or trust company or other depository institution with more 

13 than $10,000,000,000 in total consolidated assets, or sub14 sidiary of such nonmember bank or trust company or 

15 other depository institution, may refuse to do business 

16 with any person who is in compliance with the law, includ17 ing , including section 8 of the Fair Access to Banking 

18 Act:’’ after ‘‘appropriate:’’. 

19 SEC. 5. PAYMENT CARD NETWORK. 

20 (a) DEFINITION.—In this section, the term ‘‘payment 

21 card network’’ has the meaning given the term in section 

22 921(c) of the Electronic Fund Transfer Act (15 U.S.C. 

23 1693o–2(c)). 

24 (b) PROHIBITION.—No payment card network, in25 cluding a subsidiary of a payment card network, may, diVerDate Sep 11 2014 23:24 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S563.IS S563

kjohnson on DSK79L0C42PROD with BILLS
8 

•S 563 IS

1 rectly or through any agent, processor, or licensed member 

2 of the network, by contract, requirement, condition, pen3 alty, or otherwise, prohibit or inhibit the ability of any per4 son who is in compliance with the law, including section 

5 8 of this Act, to obtain access to services or products of 

6 the payment card network because of political or 

7 reputational risk considerations. 

8 (c) CIVIL PENALTY.—Any payment card network 

9 that violates subsection (b) shall be assessed a civil penalty 

10 by the Comptroller of the Currency of not more than 10 

11 percent of the value of the services or products described 

12 in that subsection, not to exceed $10,000 per violation. 

13 SEC. 6. CREDIT UNIONS. 

14 Section 206(b)(1) of the Federal Credit Union Act 

15 (12 U.S.C. 1786) is amended by inserting ‘‘or is refusing 

16 or has refused, or has a subsidiary that is refusing or has 

17 refused, to do business with any person who is in compli18 ance with the law, including section 8 of the Fair Access 

19 to Banking Act,’’ after ‘‘as an insured credit union,’’. 

20 SEC. 7. USE OF AUTOMATED CLEARING HOUSE NETWORK. 

21 (a) DEFINITIONS.—In this section: 

22 (1) COVERED CREDIT UNION.—The term ‘‘cov23 ered credit union’’ means— 


kjohnson on DSK79L0C42PROD with BILLS
9 

•S 563 IS

1 (A) any insured credit union, as defined in 

2 section 101 of the Federal Credit Union Act 

3 (12 U.S.C. 1752); or 

4 (B) any credit union that is eligible to 

5 make application to become an insured credit 

6 union under section 201 of the Federal Credit 

7 Union Act (12 U.S.C. 1781). 

8 (2) MEMBER BANK.—The term ‘‘member bank’’ 

9 has the meaning given the term in the third undesig10 nated paragraph of the first section of the Federal 

11 Reserve Act (12 U.S.C. 221). 

12 (b) PROHIBITION.—No covered credit union, member 

13 bank, or State-chartered non-member bank with more 

14 than $10,000,000,000 in total consolidated assets, or a 

15 subsidiary of the covered credit union, member bank, or 

16 State-chartered non-member bank, may use the Auto17 mated Clearing House Network if that member bank, 

18 credit union, or subsidiary of the member bank or credit 

19 union, refuses to do business with any person who is in 

20 compliance with the law, including section 8 of this Act. 

21 SEC. 8. FAIR ACCESS TO FINANCIAL SERVICES. 

22 (a) DEFINITIONS.—In this section: 

23 (1) BANK.—The term ‘‘bank’’— 

24 (A) means an entity for which the Office 

25 of the Comptroller of the Currency is the approVerDate Sep 11 2014 23:24 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S563.IS S563

kjohnson on DSK79L0C42PROD with BILLS
10 

•S 563 IS

1 priate Federal banking agency, as defined in 

2 section 3 of the Federal Deposit Insurance Act 

3 (12 U.S.C. 1813); and 

4 (B) includes— 

5 (i) member banks; 

6 (ii) non-member banks; 

7 (iii) covered credit unions; 

8 (iv) State-chartered non-member 

9 banks; and 

10 (v) trust companies. 

11 (2) COVERED BANK.— 

12 (A) IN GENERAL.—The term ‘‘covered 

13 bank’’ means a bank that has the ability to— 

14 (i) raise the price a person has to pay 

15 to obtain an offered financial service from 

16 the bank or from a competitor; or 

17 (ii) significantly impede a person, or 

18 the business activities of a person, in favor 

19 of or to the advantage of another person. 

20 (B) PRESUMPTION.— 

21 (i) IN GENERAL.—A bank shall not be 

22 presumed to be a covered bank if the bank 

23 has less than $10,000,000,000 in total as24 sets. 

25 (ii) REBUTTABLE PRESUMPTION.— 


kjohnson on DSK79L0C42PROD with BILLS
11 

•S 563 IS

1 (I) IN GENERAL.—A bank is pre2 sumed to be a covered bank if the 

3 bank has $10,000,000,000 or more in 

4 total assets. 

5 (II) REBUTTAL.—A bank that 

6 meets the criteria under subclause (I) 

7 can seek to rebut this presumption by 

8 submitting to the Office of the Comp9 troller of the Currency written mate10 rials that, in the judgement of the 

11 agency, demonstrate the bank does 

12 not meet the definition of covered 

13 bank. 

14 (3) COVERED CREDIT UNION.—The term ‘‘cov15 ered credit union’’ means— 

16 (A) any insured credit union, as defined in 

17 section 101 of the Federal Credit Union Act 

18 (12 U.S.C. 1752); or 

19 (B) any credit union that is eligible to 

20 make application to become an insured credit 

21 union under section 201 of the Federal Credit 

22 Union Act (12 U.S.C. 1781). 

23 (4) DENY.—The term ‘‘deny’’ means to deny or 

24 refuse to enter into or terminate an existing finan25 cial services relationship with a person. 


kjohnson on DSK79L0C42PROD with BILLS
12 

•S 563 IS

1 (5) FAIR ACCESS TO FINANCIAL SERVICES.— 

2 The term ‘‘fair access to financial services’’ means 

3 persons engaged in activities lawful under Federal 

4 law are able to obtain financial services at banks 

5 without impediments caused by a prejudice against 

6 or dislike for a person or the business of the cus7 tomer, products or services sold by the person, or fa8 voritism for market alternatives to the business of 

9 the person. 

10 (6) FINANCIAL SERVICE.—The term ‘‘financial 

11 service’’ means a financial product or service, includ12 ing— 

13 (A) commercial and merchant banking; 

14 (B) lending; 

15 (C) financing; 

16 (D) leasing; 

17 (E) cash, asset and investment manage18 ment and advisory services; 

19 (F) credit card services; 

20 (G) payment processing; 

21 (H) security and foreign exchange trading 

22 and brokerage services; and 

23 (I) insurance products. 

24 (7) MEMBER BANK.—The term ‘‘member bank’’ 

25 has the meaning given the term in the third undesigVerDate Sep 11 2014 23:24 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S563.IS S563

kjohnson on DSK79L0C42PROD with BILLS
13 

•S 563 IS

1 nated paragraph of the first section of the Federal 

2 Reserve Act (12 U.S.C. 221). 

3 (8) PERSON.—The term ‘‘person’’— 

4 (A) means— 

5 (i) any natural person; or 

6 (ii) any partnership, corporation, or 

7 other business or legal entity; and 

8 (B) includes a customer. 

9 (b) REQUIREMENTS.— 

10 (1) IN GENERAL.—To provide fair access to fi11 nancial services, a covered bank, including a sub12 sidiary of a covered bank, shall, except as necessary 

13 to comply with another provision of law— 

14 (A) make each financial service it offers 

15 available to all persons in the geographic mar16 ket served by the covered bank on proportion17 ally equal terms; 

18 (B) not deny any person a financial service 

19 the covered bank offers unless the denial is jus20 tified by such quantified and documented fail21 ure of the person to meet quantitative, impar22 tial risk-based standards established in advance 

23 by the covered bank; 


kjohnson on DSK79L0C42PROD with BILLS
14 

•S 563 IS

1 (C) not deny, in coordination with or at 

2 the request of others, any person a financial 

3 service the covered bank offers; and 

4 (D) when denying any person financial 

5 services the covered bank offers, to provide 

6 written justification to the person explaining 

7 the basis for the denial, including any specific 

8 laws or regulations the covered bank believes 

9 are being violated by the person or customer, if 

10 any. 

11 (2) JUSTIFICATION REQUIREMENT.—A jus12 tification described in paragraph (1)(D) may not be 

13 based solely on the reputational risk to the deposi14 tory institution. 

15 (c) CAUSE OF ACTION FOR VIOLATIONS OF THIS

16 SECTION.— 

17 (1) IN GENERAL.—Notwithstanding any other 

18 provision of law, a person may commence a civil ac19 tion in the appropriate district court of the United 

20 States against any covered bank or covered credit 

21 union that violates or fails to comply with the re22 quirements under this Act, for harm that person 

23 suffered as a result of such violation. 


kjohnson on DSK79L0C42PROD with BILLS
15 

•S 563 IS

1 (2) NO EXHAUSTION.—It shall not be necessary 

2 for a person to exhaust its administrative remedies 

3 before commencing a civil action under this Act. 

4 (3) DAMAGES.—If a person prevails in a civil 

5 action under this Act, a court shall award the per6 son— 

7 (A) reasonable attorney’s fees and costs; 

8 and 

9 (B) treble damages. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS