Tag Archives: Congress

Responding to the ABA’s Objections to the ENABLERS Act

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In a rare moment of bipartisanship, the U.S. Congress is on the cusp of adopting a significant piece of anticorruption legislation: the ENABLERS Act.  The ENABLERS Act is targeted at closing loopholes in the American financial services system that have allowed corrupt foreign actors to use “gatekeeper” entities like law firms, trusts, payment processors, and accounting firms to launder billions of dollars through offshore accounts. The proposed legislation, which has been attached to the FY2023 National Defense Authorization Act (NDAA), would expand the definition of “financial institution” in the current Bank Secrecy Act (BSA) to cover more gatekeeper entities like those mentioned above, and would require these financial services-adjacent entities to institute anti-money laundering (AML) systems, comply with Know Your Client (KYC) regulations, and file suspicious activity reports (SARs) with the Treasury Department. 

The ENABLERS Act, discussed previously on this blog, has received widespread support in both the House and Senate, but some influential interest groups remain opposed. Notably, the American Bar Association (ABA) has objected to the inclusion of law firms among the entities that the ENABLERS Act would subject to the BSA’s AML rules. The ABA’s chief objections are that the ENABLERS Act—especially the requirement that law firms would be required to file SARs—would undercut attorney-client confidentiality and the right to effective counsel and would inappropriately interfere with state judicial regulation of the legal profession.

While the ABA is correct in emphasizing the fundamental principle that everyone is entitled to legal representation, and that lawyers have duties of confidentiality, loyalty, and zealous advocacy to their clients, the ABA’s objections to the ENABLERS Act are overstated. Upon closer inspection, the ENABLERS Act does not ask lawyers to do more than the ethical regime that governs the legal profession already requires or permits.

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U.S. States Have Failed to Address Charter School Corruption. It’s Time for Federal Intervention.

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In the United States, charter schools are publicly-funded, tuition-free institutions that operate largely independent from the traditional public school system. Charter schools are established through a contract, or charter, between the school and an “authorizer,” which is the school district, state education agency, or other entity that a state has sanctioned to approve these charters. Once approved, charter schools do not have to follow the same regulations as traditional public schools but instead are required to operate under the terms and academic standards set by their authorizing contract.

Proponents tout charter schools’ autonomy and flexibility: free from burdensome education laws and local regulations, these schools can be innovative in their curricula and management, and can compete with one another and with traditional public schools in the education “market.” Parents will then have the opportunity to “vote with their feet,” and they—along with the public funding designated for their children—will flow into better schools, leaving the poorly performing charter schools to shut down.

Or so the argument goes. In reality, thanks to rampant corruption that has come to plague the charter school industry, this public funding often flows not into the best schools but rather into the pockets of dubious school officials and their affiliates. There have been numerous charter school corruption scandals: self-dealing real estate leases, exorbitant salaries for school executives, and kickbacks from inflated purchases of school equipment and supplies, to name a few.

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Checked or Choked? How the Congressional Response to the Abscam Investigation Undermined the FBI’s Ability to Root Out High-Level Corruption

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On February 2nd, 1980, the FBI announced the results of a massive sting operation, codenamed “Abscam,” conducted against members of the U.S. Congress. At the time, this was the largest FBI political corruption operation ever conducted: two years in the making, involving over a hundred agents and hundreds of thousands of dollars in operating costs. The details of the operation were so outlandish they sound like they could have been lifted from a Hollywood movie. The FBI recruited an international con artist named Melvin Weinberg for “creative direction” of the operation, and then had agents pose as wealthy Arab sheiks (hence the name of the operation, a contraction of “Arab scam” or “Abdul scam”) that came a-calling to Capitol Hill to purchase favors and votes. The operation took place on Key West yachts and in Atlantic City casinos, in limousines and on chartered jets, where the “sheiks” lured politicians to glitzy affairs with offers of $50,000 for a favorable licensing deal or immigration waiver. They had astonishing success. Not only were the approached targets receptive, several actively recruited other elected officials to the bribery scheme. Congressmen were caught on tape accepting paper lunch bags stuffed with cash, paired with made-for-movie dialogue such as: “Money talks in this business,” “I’m no Boy Scout,” and “I got larceny in my blood. I’ll take [the bribe] in a goddamn minute.” Weinberg and the FBI reckoned that the sting easily might have nabbed a great deal more Congressmen if the FBI hadn’t run out of bribe money and the press hadn’t scored an early scoop. What followed was a flurry of resignations, hearings, and criminal trials. After the dust settled, six representatives and one senator had been convicted of bribery and conspiracy. Despite controversy over the ethics of the FBI’s methods, every conviction was upheld on appeal.

The fact that these convictions stuck is a reflection of the fact that although the undercover FBI agents involved in Abscam got very close to the line that separates legal deception from unlawful entrapment, the FBI had been scrupulous about staying on the right side of that line: all tapes were immediately reviewed to ensure that agents had not improperly induced wrongdoing; the cash transfers were witnessed and monitored by Justice Department attorneys; and judges signed warrants and sanctioned the FBI’s methods. Nevertheless, Congress—perhaps unsurprisingly—thought that the FBI had gone too far. At hearings before House Subcommittee on Civil and Constitutional Rights and the Senate Select Committee to Study Undercover Activities, Members of Congress aired grievances over FBI undercover procedures, and argued that while undercover investigations could be valuable, the FBI had gone too far, and had engaged in a wildly inappropriate exploratory fishing expedition.

Now, Congress’s actions may not have been purely self-serving. A few years prior to Abscam, a Senate select committee, known as the Church Committee, revealed significant FBI abuses, documented in a whopping fourteen reports that laid out intelligence agency abuses in extraordinary detail. Some suggest—controversially—that Abscam was the FBI’s retaliation against Congress for this public excoriation.

Whatever Congress’s motives, in the decade following Abscam, Congress circled the wagons, pressuring the Department of Justice to implement internal reforms by way of proffering dramatic legislative packages staunchly opposed by Attorneys General. The “compromise” result was a series of restrictive guidelines for undercover and sting operations, guidelines that effectively bar the FBI from ever again conducting an operation similar to Abscam.

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