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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3181 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  1st Session
                                S. 3181

  To prohibit certain foreign and domestic emoluments, and for other 
                               purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            November 4, 2021

 Mr. Blumenthal (for himself, Mr. Whitehouse, Mr. Markey, Ms. Warren, 
 Ms. Hirono, Mr. Booker, Mr. Sanders, Mr. Wyden, Mrs. Gillibrand, and 
Ms. Klobuchar) introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL

 
  To prohibit certain foreign and domestic emoluments, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Foreign and Domestic Emoluments 
Enforcement Act''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) The Founders of the United States believed that 
        political corruption and the interference of foreign 
        governments were among the gravest threats the Nation faced. As 
        a result, they viewed anti-corruption measures as essential to 
        preserving an enduring democracy.
            (2) The Founders wanted to ensure that the Nation's leaders 
        would be dependent on the people alone, not on those offering 
        private financial rewards--and would be motivated solely by the 
        national interest, not their own personal interests.
            (3) The Founders were especially worried that foreign 
        powers would interfere with the internal affairs of the United 
        States, undermining the Nation's republican institutions and 
        making its leaders subservient to foreign interests. In The 
        Federalist No. 22, Alexander Hamilton wrote that one of the 
        vulnerabilities of republics ``is that they afford too easy an 
        inlet to foreign corruption''. He was aware that eighteenth-
        century monarchs used lavish presents to ingratiate themselves 
        with ambassadors and ministers from other nations and wanted to 
        avoid the potential for such corruption in the new Government 
        of the United States.
            (4) Of particular concern to the Founders was the risk that 
        benefits and rewards given by foreign states would subvert the 
        President's undivided loyalty to the Nation's best interests. 
        As Hamilton noted during the Constitutional Convention, the 
        personal interest of a hereditary monarch was ``so interwoven 
        with that of the Nation . . . that he was placed above the 
        danger of being corrupted from abroad.''. By contrast, as James 
        Madison observed, an elected President would lack ``that 
        permanent stake in the public interest which would place him 
        out of the reach of foreign corruption.''.
            (5) The Founders were also concerned that domestic 
        government officials might corrupt the President's independence 
        and gain the loyalty of the President by giving the President 
        financial benefits and advantages. Hamilton observed in The 
        Federalist No. 73 that ``a power over a man's support is a 
        power over his will,'' and that if legislatures could alter the 
        President's financial circumstances, they could ``tempt him by 
        largesses'' and thereby cause the President ``to surrender at 
        discretion his judgment to their inclinations.''.
            (6) To increase the likelihood that the Nation's leaders 
        would be dependent upon ``We the People'' alone, the Founders 
        included in the Constitution a number of safeguards against 
        corruption, including article I, section 9, clause 8 (in this 
        section referred to as the ``Foreign Emoluments Clause'') and 
        article II, section 1, clause 7 (in this section referred to as 
        the ``Domestic Emoluments Clause'').
            (7) In the Foreign Emoluments Clause, the Founders mandated 
        congressional approval of presents, emoluments, offices, and 
        titles offered by foreign states to Federal officeholders. They 
        recognized that the dangers of foreign-government influence and 
        divided loyalty would be reduced if officeholders were required 
        to obtain the affirmative consent of Congress before accepting 
        any foreign benefit. As Representative James Bayard explained 
        in the 1790s, the Foreign Emoluments Clause requires 
        officeholders ``to make known to the world whatever presents 
        they might receive from foreign Courts and to place themselves 
        in such a situation as to make it impossible for them to be 
        unduly influenced by any such presents.''.
            (8) In the Domestic Emoluments Clause, the Founders 
        provided that Presidents must receive a fixed compensation, 
        which may not be increased or decreased during their time in 
        office, and that Presidents are prohibited from accepting 
        anything beyond that compensation from Federal, State, or local 
        governments. These requirements were meant to prevent Federal, 
        State, and local officials from exerting undue influence over 
        Presidents by manipulating the financial rewards of their 
        office.
            (9) At the time of the Founding, the word ``emolument'' was 
        a broad and commonly used term that meant profit, advantage, 
        gain, or benefit, including payments and other financial 
        rewards derived from private commerce. The use of this broad 
        term in the Foreign Emoluments Clause and the Domestic 
        Emoluments Clause was consistent with the Framers' goal of 
        preventing the corruption of leaders of the United States 
        through private rewards.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Business entity.--The term ``business entity''--
                    (A) means a for-profit corporation, association, 
                partnership, limited liability company, limited 
                liability partnership, other legal entity, or sole 
                proprietorship; and
                    (B) does not include an entity--
                            (i) in which 100 or more individuals hold a 
                        share or ownership interest;
                            (ii) in which the official covered by this 
                        section owns or has a beneficial interest in no 
                        more than 5 percent of the ownership interests; 
                        and
                            (iii) that--
                                    (I) issues securities registered 
                                with the Securities and Exchange 
                                Commission pursuant to section 12 of 
                                the Securities Exchange Act of 1934 (15 
                                U.S.C. 78l);
                                    (II) is an investment company 
                                registered pursuant to section 8 of the 
                                Investment Company Act of 1940 (15 
                                U.S.C. 80a-8) that does not have a 
                                stated policy of concentrating the 
                                investments of the investment company 
                                in any industry, business, single 
                                country other than the United States, 
                                or bonds of a single State within the 
                                United States; or
                                    (III) is a unit investment trust, 
                                as defined in section 4 of the 
                                Investment Company Act of 1940 (15 
                                U.S.C. 80a-4) that--
                                            (aa) is a regulated 
                                        investment company, as defined 
                                        in section 851 of the Internal 
                                        Revenue Code of 1986; and
                                            (bb) does not have a stated 
                                        policy of concentrating the 
                                        investments of the investment 
                                        company in any industry, 
                                        business, single country other 
                                        than the United States, or 
                                        bonds of a single State within 
                                        the United States.
            (2) Emolument.--The term ``emolument'' means any profit, 
        gain, advantage, or payment (including a payment arising from a 
        commercial transaction, without regard to whether the payment 
        is at fair market value) that is received directly or 
        indirectly from--
                    (A) any government of a foreign country;
                    (B) the Federal Government;
                    (C) any State; or
                    (D) any instrumentality of a government described 
                in subparagraphs (A) through (C).
            (3) Government of a foreign country.--The term ``government 
        of a foreign country'' has the meaning given the term in 
        section 1 of the Foreign Agents Registration Act of 1938, as 
        amended (22 U.S.C. 611).
            (4) Person holding any office of profit or trust under the 
        united states.--The term ``person holding any office of profit 
        or trust under the United States''--
                    (A) means any individual holding a position listed 
                in paragraph (A) through (F) of section 7342(a)(1) of 
                title 5, United States Code, including any individual 
                appointed pursuant to section 105(a), 106(a), or 107 of 
                title 3, United States Code; and
                    (B) includes the President and the Vice President.

SEC. 4. PROHIBITION ON ACCEPTANCE OF FOREIGN AND DOMESTIC EMOLUMENTS.

    (a) Foreign.--Except as provided in section 7342 of title 5, United 
States Code, it shall be unlawful for any person holding any office of 
profit or trust under the United States to accept from a government of 
a foreign country, without first obtaining the consent of Congress, any 
present, emolument, office, or title.
    (b) Domestic.--It shall be unlawful for the President to accept 
from the United States, or a State, any emolument other than the 
compensation for his or her services as President provided for by 
Federal law.
    (c) Applicability.--The prohibitions under this section apply if 
the present, emolument, office, or title is--
            (1) provided directly or indirectly--
                    (A) by the government of a foreign country or an 
                instrumentality thereof; or
                    (B) in the case of the President, provided directly 
                or indirectly by the United States, a State, or an 
                instrumentality of the United States or a State; and
            (2) provided to--
                    (A) the person holding any office of profit or 
                trust under the United States; or
                    (B) any business entity or trust in which the 
                person holding any office of profit or trust under the 
                United States has a beneficial or ownership interest.
    (d) Consent.--Congress consents to--
            (1) the acceptance, by any person who holds an office of 
        profit or trust under the United States, of any emolument that 
        has a monetary value below the minimum value set under section 
        7342(a)(5)(A) of title 5, United States Code;
            (2) the acceptance, by any person who holds an office of 
        profit or trust under the United States, other than the 
        President or the Vice President, of any emolument that solely 
        constitutes a benefit or compensation--
                    (A) accepted by the spouse or minor child of a 
                person other than the President or Vice President as an 
                employee, consultant, or contractor; and
                    (B) that has not been given or enhanced--
                            (i) because of the relationship of the 
                        spouse or minor child to the office holder;
                            (ii) in return for the office holder being 
                        influenced in the performance of an official 
                        act; or
                            (iii) for the purpose of avoiding the 
                        requirements of this section;
            (3) the acceptance of any emolument by any person in the 
        Federal executive branch, other than the President and Vice 
        President, who holds an office of profit or trust under the 
        United States and is not appointee of the President or the Vice 
        President, if the emolument--
                    (A) is attributable to such individual solely as a 
                result of the individual or the individual's spouse or 
                minor child having a beneficial or ownership interest 
                in a business entity that accepted the emolument; and
                    (B) has been exempted as part of a class of 
                emoluments, by regulation issued by the Director of the 
                Office of Government Ethics and published in the 
                Federal Register, from the requirements of subsection 
                (a) as being too remote or too inconsequential to 
                affect the integrity of the services of the class or 
                classes of Federal Government officers or employees to 
                which such regulation applies; and
            (4) the acceptance of any emolument by a Member of Congress 
        or by an officer or employee of the Congress, if the 
        emolument--
                    (A) is attributable to such individual solely as a 
                result of the individual or the individual's spouse or 
                minor child having a beneficial or ownership interest 
                in a business entity that accepted the emolument; and
                    (B) has been exempted as part of a class of 
                emoluments, by the supervising ethics office, as 
                defined in section 109 of the Ethics in Government Act 
                of 1978 (5 U.S.C. App.), from the requirements of 
                subsection (a) as being too remote or too 
                inconsequential to affect the integrity of the services 
                to the Government of individual's to which such 
                exemption applies.
    (e) Acceptance.--An emolument is accepted by a person who holds an 
office of profit or trust under the United States if--
            (1) the emolument is received directly by the officer 
        holder, the spouse of the office holder (unless such individual 
        and his or her spouse are separated) or a dependent, as defined 
        in section 152 of the Internal Revenue Code of 1986, of the 
        office holder; or
            (2) the emolument is received by--
                    (A) any other person on the basis of designation, 
                recommendation, or other specification by an individual 
                described in subparagraph (1); or
                    (B) a business entity or trust in which an 
                individual described in (1) has a beneficial or 
                ownership interest; and
            (3) the emolument is retained.

SEC. 5. CIVIL ACTIONS BY CONGRESS CONCERNING FOREIGN EMOLUMENTS.

    (a) Cause of Action.--The House of Representatives or the Senate 
may bring a civil action against any person for a violation of section 
4(a).
    (b) Special Rules.--In any civil action described in subsection 
(a), the following rules shall apply:
            (1) The action shall be filed in the United States District 
        Court for the District of Columbia.
            (2) The action shall be heard by a 3-judge court convened 
        pursuant to section 2284 of title 28, United States Code. It 
        shall be the duty of such court to advance on the docket and to 
        expedite to the greatest possible extent the disposition of any 
        such action. Such action shall be reviewable only by appeal 
        directly to the Supreme Court of the United States. Such appeal 
        shall be taken by the filing of a notice of appeal within 10 
        days, and the filing of a jurisdictional statement within 30 
        days, of the entry of the final decision.
            (3) It shall be the duty of the Supreme Court of the United 
        States to advance on the docket and to expedite to the greatest 
        possible extent the disposition of any such action and appeal.
    (c) Remedy.--If the court determines that a violation of section 
4(a) has occurred, the court--
            (1) shall issue an order enjoining the course of conduct 
        found to constitute the violation; and
            (2) may order, as are appropriate--
                    (A) the disgorgement of the value of any foreign 
                present or emolument;
                    (B) the surrender of the physical present or 
                emolument to the Department of State, which shall, if 
                practicable, dispose of the present or emolument and 
                deposit the proceeds into the general fund of the 
                Treasury;
                    (C) the renunciation of any office or title 
                accepted in violation of section 4(a);
                    (D) a prohibition on the use or holding of such an 
                office or title; and
                    (E) such other relief as the court determines 
                appropriate.
    (d) Use of Government Funds Prohibited.--No appropriated funds, 
funds provided from any accounts in the Treasury, funds derived from 
the collection of fees, or any other Government funds shall be used to 
pay any disgorgement imposed by the court pursuant to this section.

SEC. 6. DISCLOSURES CONCERNING FOREIGN AND DOMESTIC EMOLUMENTS.

    (a) Disclosures.--Section 102(a) of the Ethics in Government Act of 
1978 (5 U.S.C. App.) is amended by adding at the end the following:
            ``(9) Any present, emolument, office, or title received 
        from a government of a foreign country, including the source, 
        date, type, and amount or value of each present or emolument 
        accepted on or before the date of filing during the preceding 
        calendar year.
            ``(10) Each financial interest or arrangement that is 
        reasonably expected to result in the receipt of any present or 
        emolument from a government of a foreign country during the 
        current calendar year.
            ``(11) With respect to a report filed by the President--
                    ``(A) any emolument received from the United 
                States, or any of them, other than the compensation for 
                his or her services as President provided for by 
                Federal law; and
                    ``(B) any financial interest or arrangement that is 
                reasonably expected to result in the receipt of any 
                emolument from the United States, or any of them.''.
    (b) Rule of Construction.--Nothing in the amendments made by this 
section shall be construed to affect the prohibition against the 
acceptance of presents and emoluments under section 4.

SEC. 7. ENFORCEMENT AUTHORITY OF THE DIRECTOR OF THE OFFICE OF 
              GOVERNMENT ETHICS.

    (a) General Authority.--Section 402(a) of the Ethics in Government 
Act of 1978 (5 U.S.C. App.) is amended--
            (1) by striking ``(a) The Director'' and inserting ``(a)(1) 
        The Director''; and
            (2) by adding at the end the following:
    ``(2) The Director shall provide overall direction of executive 
branch policies related to compliance with the Foreign and Domestic 
Emoluments Enforcement Act and the amendments made by that Act, 
including having the authority to--
            ``(A) issue administrative fines to individuals for 
        violations;
            ``(B) order individuals to take corrective action, 
        including disgorgement, divestiture, and recusal, as the 
        Director deems necessary; and
            ``(C) bring civil actions to enforce such fines and 
        orders.''.
    (b) Specific Authorities.--Section 402(b) of the Ethics in 
Government Act of 1978 (5 U.S.C. App.) is amended--
            (1) in paragraph (14), by striking ``and'' at the end;
            (2) by striking the period at the end of paragraph (15) and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(16) developing and promulgating rules and regulations to 
        ensure compliance with the Foreign and Domestic Emoluments 
        Enforcement Act and the amendments made by that Act, including 
        establishing--
                    ``(A) requirements for reporting and disclosure;
                    ``(B) a schedule of administrative fines that may 
                be imposed by the Director for violations; and
                    ``(C) a process for referring matters to the Office 
                of Special Counsel for investigation in accordance with 
                section 1216(d) of title 5, United States Code.''.

SEC. 8. JURISDICTION OF THE OFFICE OF SPECIAL COUNSEL.

    Section 1216 of title 5, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (4), by striking ``and'' at the 
                end;
                    (B) in paragraph (5) by striking the period and 
                inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(6) any violation of section 4 of the Foreign and 
        Domestic Emoluments Enforcement Act and paragraphs (9), (10), 
        and (11) of section 102(a) of the Ethics in Government Act of 
        1978 (5 U.S.C. App.).''; and
            (2) by adding at the end the following:
    ``(d)(1) If the Director of the Office of Government Ethics refers 
a matter for investigation pursuant to section 402 of the Ethics in 
Government Act of 1978 (5 U.S.C. App.), or if the Special Counsel 
receives a credible complaint of a violation referred to in subsection 
(a)(6), the Special Counsel shall complete an investigation not later 
than 120 days thereafter.
    ``(2) If the Special Counsel investigates any violation pursuant to 
subsection (a)(6), the Special Counsel shall report not later than 7 
days after the completion of the investigation to the Director of the 
Office of Government Ethics and to Congress on the results of the 
investigation.''.

SEC. 9. SEVERABILITY.

    If any provision of this Act or amendment made by this Act, or the 
application of a provision or amendment to any person or circumstance, 
is held to be unconstitutional, the remainder of this Act and 
amendments made by this Act, and the application of the provisions and 
amendment to any person or circumstance, shall not be affected by the 
holding.
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