II 

118TH CONGRESS 

1ST SESSION S. 293 

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 

FEBRUARY 7, 2023 

Mr. CRAMER (for himself, Mrs. BRITT, Mr. TUBERVILLE, Mr. SULLIVAN, Mr. 

BOOZMAN, Mr. COTTON, Mr. RUBIO, Mr. SCOTT of Florida, Mr. CRAPO, 

Mr. RISCH, Mr. BRAUN, Ms. ERNST, Mr. MARSHALL, Mr. MORAN, Mr. 

CASSIDY, Mr. KENNEDY, Mrs. HYDE-SMITH, Mr. WICKER, Mr. SCHMITT, 

Mr. DAINES, Mrs. FISCHER, Mr. RICKETTS, Mr. TILLIS, Mr. HOEVEN, 

Mr. VANCE, Mr. LANKFORD, Mr. MULLIN, Mr. GRAHAM, Mr. SCOTT of 

South Carolina, Mrs. BLACKBURN, Mr. HAGERTY, Mr. CORNYN, Mr. 

CRUZ, Mrs. CAPITO, Mr. JOHNSON, Mr. BARRASSO, and Ms. LUMMIS) 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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Fair Access to Bank3 ing Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds that— 

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

7 States guarantees the people of the United States 

8 the right to enact public policy through the free and 

9 fair election of representatives and through the ac10 tions of State legislatures and Congress; 

11 (2) banks rightly objected to the Operation 

12 Choke Point initiative through which certain govern13 ment agencies pressured banks to cut off access to 

14 financial services to lawful sectors of the economy; 

15 (3) banks are now, however, increasingly em16 ploying subjective, category-based evaluations to 

17 deny certain persons access to financial services in 

18 response to pressure from advocates from across the 

19 political spectrum whose policy objectives are served 

20 when banks deny certain customers access to finan21 cial services; 

22 (4) the privatization of the discriminatory prac23 tices underlying Operation Choke Point by banks 

24 represents as great a threat to the national economy, 

25 national security, and the soundness of banking and 


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1 financial markets in the United States as Operation 

2 Choke Point itself; 

3 (5) banks are supported by the United States 

4 taxpayers and enjoy significant privileges in the fi5 nancial system of the United States and should not 

6 be permitted to act as de facto regulators or 

7 unelected legislators by withholding financial services 

8 to otherwise credit worthy businesses based on sub9 jective political reasons, bias, or prejudices; 

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

11 unrelated to financial exposures and the operations 

12 required to deliver financial services; 

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

14 for large banks during the Great Recession of 2008 

15 because they were deemed too important to the na16 tional economy to be permitted to fail; 

17 (8) when a bank predicates the access to finan18 cial services of a person on factors or information 

19 (such as the lawful products a customer manufac20 tures or sells or the services the customer provides) 

21 other than quantitative, impartial risk-based stand22 ards, the bank has failed to act consistent with basic 

23 principles of sound risk management and failed to 

24 provide fair access to financial services; 


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1 (9) banks have a responsibility to make deci2 sions about whether to provide a person with finan3 cial services on the basis of impartial criteria free 

4 from prejudice or favoritism; 

5 (10) while fair access to financial services does 

6 not obligate a bank to offer any particular financial 

7 service to the public, to operate in any particular ge8 ographic area, or to provide a service the bank offers 

9 to any particular person, it is necessary that— 

10 (A) the financial services a bank chooses to 

11 offer in the geographic areas in which the bank 

12 operates be made available to all customers 

13 based on the quantitative, impartial risk-based 

14 standards of the bank, and not based on wheth15 er the customer is in a particular category of 

16 customers; 

17 (B) banks assess the risks posed by indi18 vidual customers on a case-by-case basis, rather 

19 than category-based assessment; and 

20 (C) banks implement controls to manage 

21 relationships commensurate with these risks as22 sociated with each customer, not a strategy of 

23 total avoidance of particular industries or cat24 egories of customers; 


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

2 services to any individual customer, but first, the 

3 banks must rely on empirical data that are evaluated 

4 consistent with the established, impartial risk-man5 agement standards of the bank; and 

6 (12) anything less is not prudent risk manage7 ment and may result in unsafe or unsound practices, 

8 denial of fair access to financial services, cancelling, 

9 or eliminating certain businesses in society, and have 

10 a deleterious effect on national security and the na11 tional economy. 

12 SEC. 3. PURPOSES. 

13 The purposes of this Act are to— 

14 (1) ensure fair access to financial services and 

15 fair treatment of customers by financial service pro16 viders, including national and State banks, Federal 

17 savings associations, and State and Federal credit 

18 unions; 

19 (2) ensure banks conduct themselves in a safe 

20 and sound manner, comply with laws and regula21 tions, treat their customers fairly, and provide fair 

22 access to financial services; 

23 (3) protect against banks being able to impede 

24 otherwise lawful commerce and thereby achieving 

25 certain public policy goals; 


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1 (4) ensure that persons involved in politically 

2 unpopular businesses but that are lawful under Fed3 eral law receive fair access to financial services 

4 under the law; and 

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

6 manner by making judgments and decisions about 

7 whether to provide a customer with financial services 

8 on an impartial, individualized risk-based analysis 

9 using empirical data evaluated under quantifiable 

10 standards. 

11 SEC. 4. ADVANCES TO INDIVIDUAL MEMBER BANKS. 

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

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

14 the end the following: 

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

16 LENDING PROGRAMS.—No member bank with more than 

17 $10,000,000,000 in total consolidated assets, or sub18 sidiary of the member bank, may use a discount window 

19 lending program if the member bank or subsidiary refuses 

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

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

22 Act.’’. 

23 (b) INSURED DEPOSITORY INSTITUTIONS.—Section 

24 8(a)(2)(A) of the Federal Deposit Insurance Act (12 

25 U.S.C. 1818(a)(2)(A)) is amended— 


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

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

3 end and inserting ‘‘; or’’; and 

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

5 ‘‘(iv) an insured depository institution 

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

7 consolidated assets, or subsidiary of the in8 sured depository institution, that refuses to 

9 do business with any person who is in com10 pliance with the law, including section 8 of 

11 the Fair Access to Banking Act,’’. 

12 (c) NONMEMBER BANKS, TRUST COMPANIES, AND

13 OTHER DEPOSITORY INSTITUTIONS.—Section 13 of the 

14 Federal Reserve Act (12 U.S.C. 342) is amended by in15 serting ‘‘Provided further, That no such nonmember bank 

16 or trust company or other depository institution with more 

17 than $10,000,000,000 in total consolidated assets, or sub18 sidiary of such nonmember bank or trust company or 

19 other depository institution, may refuse to do business 

20 with any person who is in compliance with the law, includ21 ing , including section 8 of the Fair Access to Banking 

22 Act:’’ after ‘‘appropriate:’’. 

23 SEC. 5. PAYMENT CARD NETWORK. 

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

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


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1 921(c) of the Electronic Fund Transfer Act (15 U.S.C. 

2 1693o–2(c)). 

3 (b) PROHIBITION.—No payment card network, in4 cluding a subsidiary of a payment card network, may, di5 rectly or through any agent, processor, or licensed member 

6 of the network, by contract, requirement, condition, pen7 alty, or otherwise, prohibit or inhibit the ability of any per8 son who is in compliance with the law, including section 

9 8 of this Act, to obtain access to services or products of 

10 the payment card network because of political or 

11 reputational risk considerations. 

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

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

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

15 percent of the value of the services or products described 

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

17 SEC. 6. CREDIT UNIONS. 

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

19 (12 U.S.C. 1786) is amended by inserting ‘‘or is refusing 

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

21 refused, to do business with any person who is in compli22 ance with the law, including section 8 of the Fair Access 

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

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

25 (a) DEFINITIONS.—In this section: 


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1 (1) COVERED CREDIT UNION.—The term ‘‘cov2 ered credit union’’ means— 

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

4 section 101 of the Federal Credit Union Act 

5 (12 U.S.C. 1752); or 

6 (B) any credit union that is eligible to 

7 make application to become an insured credit 

8 union under section 201 of the Federal Credit 

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

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

11 has the meaning given the term in the third undesig12 nated paragraph of the first section of the Federal 

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

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

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

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

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

18 State-chartered non-member bank, may use the Auto19 mated Clearing House Network if that member bank, 

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

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

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

23 SEC. 8. FAIR ACCESS TO FINANCIAL SERVICES. 

24 (a) DEFINITIONS.—In this section: 

25 (1) BANK.—The term ‘‘bank’’— 


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1 (A) means an entity for which the Office 

2 of the Comptroller of the Currency is the appro3 priate Federal banking agency, as defined in 

4 section 3 of the Federal Deposit Insurance Act 

5 (12 U.S.C. 1813); and 

6 (B) includes— 

7 (i) member banks; 

8 (ii) non-member banks; 

9 (iii) covered credit unions; 

10 (iv) State-chartered non-member 

11 banks; and 

12 (v) trust companies. 

13 (2) COVERED BANK.— 

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

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

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

17 to obtain an offered financial service from 

18 the bank or from a competitor; or 

19 (ii) significantly impede a person, or 

20 the business activities of a person, in favor 

21 of or to the advantage of another person. 

22 (B) PRESUMPTION.— 

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

24 presumed to be a covered bank if the bank 


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1 has less than $10,000,000,000 in total as2 sets. 

3 (ii) REBUTTABLE PRESUMPTION.— 

4 (I) IN GENERAL.—A bank is pre5 sumed to be a covered bank if the 

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

7 total assets. 

8 (II) REBUTTAL.—A bank that 

9 meets the criteria under subclause (I) 

10 can seek to rebut this presumption by 

11 submitting to the Office of the Comp12 troller of the Currency written mate13 rials that, in the judgement of the 

14 agency, demonstrate the bank does 

15 not meet the definition of covered 

16 bank. 

17 (3) COVERED CREDIT UNION.—The term ‘‘cov18 ered credit union’’ means— 

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

20 section 101 of the Federal Credit Union Act 

21 (12 U.S.C. 1752); or 

22 (B) any credit union that is eligible to 

23 make application to become an insured credit 

24 union under section 201 of the Federal Credit 

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


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

2 refuse to enter into or terminate an existing finan3 cial services relationship with a person. 

4 (5) FAIR ACCESS TO FINANCIAL SERVICES.— 

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

6 persons engaged in activities lawful under Federal 

7 law are able to obtain financial services at banks 

8 without impediments caused by a prejudice against 

9 or dislike for a person or the business of the cus10 tomer, products or services sold by the person, or fa11 voritism for market alternatives to the business of 

12 the person. 

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

14 service’’ means a financial product or service, includ15 ing— 

16 (A) commercial and merchant banking; 

17 (B) lending; 

18 (C) financing; 

19 (D) leasing; 

20 (E) cash, asset, and investment manage21 ment and advisory services; 

22 (F) credit card services; 

23 (G) payment processing; 

24 (H) security and foreign exchange trading 

25 and brokerage services; and 


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1 (I) insurance products. 

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

3 has the meaning given the term in the third undesig4 nated paragraph of the first section of the Federal 

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

6 (8) PERSON.—The term ‘‘person’’— 

7 (A) means— 

8 (i) any natural person; or 

9 (ii) any partnership, corporation, or 

10 other business or legal entity; and 

11 (B) includes a customer. 

12 (b) REQUIREMENTS.— 

13 (1) IN GENERAL.—To provide fair access to fi14 nancial services, a covered bank, including a sub15 sidiary of a covered bank, shall, except as necessary 

16 to comply with another provision of law— 

17 (A) make each financial service the covered 

18 bank offers available to all persons in the geo19 graphic market served by the covered bank on 

20 proportionally equal terms; 

21 (B) not deny any person a financial service 

22 the covered bank offers unless the denial is jus23 tified by such quantified and documented fail24 ure of the person to meet quantitative, imparVerDate Sep 11 2014 01:00 Feb 17, 2023 Jkt 047007 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S293.IS S293

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1 tial risk-based standards established in advance 

2 by the covered bank; 

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

4 the request of others, any person a financial 

5 service the covered bank offers; and 

6 (D) when denying any person financial 

7 services the covered bank offers, provide written 

8 justification to the person explaining the basis 

9 for the denial, including any specific laws or 

10 regulations the covered bank believes are being 

11 violated by the person or customer. 

12 (2) JUSTIFICATION REQUIREMENT.—A jus13 tification described in paragraph (1)(D) may not be 

14 based solely on the reputational risk to the covered 

15 bank. 

16 (c) CAUSE OF ACTION FOR VIOLATIONS OF THIS

17 SECTION.— 

18 (1) IN GENERAL.—Notwithstanding any other 

19 provision of law, a person may commence a civil ac20 tion in the appropriate district court of the United 

21 States against any covered bank or covered credit 

22 union that violates or fails to comply with the re23 quirements under this section, for harm that person 

24 suffered as a result of such violation. 


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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 section. 

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

5 action under this section, a court shall award the 

6 person— 

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

8 and 

9 (B) treble damages. 

Æ 


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