CONGRESSIONAL INSIDER TRADING - By Ethan Jasny - HMC San Francisco

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CONGRESSIONAL INSIDER TRADING - By Ethan Jasny - HMC San Francisco
CONGRESSIONAL INSIDER
                        TRADING
                                     By Ethan Jasny

                                             INTRODUCTION
                             On January 24, 2020 the Senate Health and Foreign Affairs
                         Committees held closed-door briefings on the emergence of the novel
                         coronavirus. Later that day, Sen. Kelly Loeffler (R-GA) and her
                         husband began selling off stock holdings that would significantly
                         decrease in value after the stock market plunge caused by the
                         pandemic. In sum, Loeffler and her husband sold stocks estimated to
Sen. Richard Burr,       be worth between $1,275,000 and $3,100,00 (Bredderman et al.,
implicated in the        2020).
2020 insider                 Loeffler was not the only member of Congress who appeared to
trading scandal          sell off stock in advance of the stock market crash. On February 13,
             Roll Call   2020, Sen. Richard Burr (R-NC) and his wife unloaded between
                         $628,000 and $1,700,000 — including stocks in hotel companies,
                         which fell precipitously in value less than a month later. Around the
                         same time, Burr privately expressed concerns about the
                         transmissibility of the virus (Evers-Hillstrom, 2020).
                             Sen. Jim Inhofe (R-OK) and Sen. Dianne Feinstein (D-CA) were
                         also found to have sold off stock shortly before the crash (Faturechi
                         and Willis, 2020). Furthermore, Sen. David Purdue (R-GA)
                         purchased stocks in a company that manufactures personal
                         protective equipment (Sheth, 2020).
                             Ultimately, after conducting investigations into these senators’
    Insider Trading      personal transactions, the Department of Justice decided not to
– the act of buying or   charge any of them with illegal insider trading (AP, 2021). But the
selling a company’s      scandal brought the personal finances of members of Congress into
public stock based on    the limelight–raising questions about widespread conflicts of
insider, nonpublic       interest. To address these recent revelations, members of Congress
information about the    must prioritize considering the views of their constituents while
company                  taking into account their own financial interests.
CONGRESSIONAL INSIDER TRADING - By Ethan Jasny - HMC San Francisco
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                                     EXPLANATION OF THE ISSUE
                                                Historical Development
                               In the corporate world, insider trading has long been prohibited.
                           The Securities Act of 1933 and the Securities Exchange Act of 1934
                           outlawed various forms of securities fraud and became crucial for
                           prosecuting cases of illegal insider trading. The Insider Trading
                           Sanctions Act of 1984 and the Insider Trading and Securities Fraud
                           Enforcement Act of 1988 further defined insider trading and
                           introduced new stringent penalties for illegal behavior (“A History of
                           Insider Trading,” 2016).
                               While Congress has been relatively successful at curtailing insider
                           trading on Wall Street, it has been less successful at regulating the
                           practice among its own members. A 60 Minutes segment in 2011
                           revealed the extent of potential conflicts of interest on Capitol Hill —
                           among both political parties. In 2008, House Speaker Nancy Pelosi
   Initial Public          (D-CA) and her husband Paul invested in an initial public
Offering (IPO) – a         offering (IPO) from the credit card company Visa at the same time
process through            that a controversial piece of legislation that would have regulated
which a private            credit card companies was being considered. Just two days after
company “goes              purchasing the shares, the value of the Pelosi’s investment had
public” by issuing new     increased by roughly 45%. Meanwhile, in 2009, then-House
stocks that can be         Minority Leader John Boehner (R-OH) purchased stocks in health
traded on the market       insurance companies just before the public option health care reform
                           was defeated in Congress. The public option would have created a
                           new government-funded health insurance program that could
                           compete with private insurance companies. When the proposal
                           failed, the insurance stocks Boehner had invested in increased in
                           value (“Insider,” 2011).
                               Insider trading with political information extended beyond just
                           members of Congress themselves; an entire industry formed around
                           the exchange of political intelligence. Former political insiders would
                           collect information on the prospects of legislation and emerging
                           economic issues and sell this information to traders on Wall Street,
    The STOCK Act          who could then anticipate changes in the market (“Insider,” 2011).
   passed Congress             In response to these revelations, Congress passed the Stop
        with near-         Trading on Congressional Knowledge (STOCK) Act in 2012, which
                           had originally been introduced back in 2007. The bill was approved
       unanimous,          with near-unanimous support in Congress: 96-3 in the Senate and
        bipartisan         417-2 in the House. The law prohibits members of Congress,
agreement: 96-3 in         congressional staffers, and employees of the executive and judicial
the Senate, 417-2 in       branches from using “nonpublic information derived from such
         the House         person’s position … or gained from the performance of such person’s
                           official responsibilities as a means for making a private profit.”

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                                              Scope of the Problem
                            While the STOCK Act was a significant step toward ensuring that
                        members of Congress and congressional staffers are held to the same
                        financial scrutiny as regular Americans, there are significant gaps in
                        its provisions and methods of enforcement. The STOCK Act’s
                        weaknesses have allowed for congressional conflicts of interest to
                        persist.
                                          Weak Enforcement Mechanisms
                        The STOCK Act relies on the transparency of financial transactions
                        to hold members of Congress and their staffers accountable.
                        Members of Congress and staffers who make more than $132,552
                        annually are required to report stock transactions worth over
    63 members of       $1,000 within 45 days of the exchange. If members of Congress or
Congress and 182        staffers fail to report their transactions within this timeframe, they
     congressional      are subject to a $200 fine — which increases in value upon repeated
  staffers violated     offenses.
the STOCK Act by            But these penalties have been shoddily enforced. According to
                        reporting from Business Insider, in 2020 and 2021, 63 members of
 missing financial      Congress and 182 congressional staffers violated the STOCK Act by
         disclosure     reporting stock exchanges after the maximum 45-day deadline
         deadlines      (Levinthal, 2022). But there are no public records to show that
                        those in violation of the Act paid their fines. According to a former
                        counsel in the Office of Congressional Ethics, “The enforcement of
                        the financial-disclosure requirements is virtually nonexistent.” The
                        lack of transparency surrounding the enforcement of a law whose
                        main goal is to promote transparency renders the legislation futile.
                        Disclosure of stock transactions allows the Department of Justice
                        and government watchdogs to closely monitor for signs of insider
                        trading and other financial malfeasance. If members of Congress
                        are able to report exchanges months after the set deadlines without
                        significant penalties or public accountability, illegal insider trading
                        may go unnoticed (DeChalus et al., 2021).
                            Even when there is public outcry over congressional insider
                        trading, such as the scandal surrounding stock sales during the early
Former President        days of COVID-19, investigations into these incidents may not be
Barack Obama            fruitful. Since its passage, no one has been prosecuted under the
signs the STOCK Act     STOCK Act. The Act designates the executive branch to enforce its
on April 4, 2012        provisions. However, the executive branch is constitutionally limited
               NPR      in its ability to investigate and prosecute members of Congress due
                        to concerns over the separation of powers. Barring the most flagrant
                        cases, members of Congress are thus unlikely to face criminal or civil
                        penalties for insider trading (Fodor 2014).

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                                Delineating Between Public and Nonpublic Information
                              Another problem with the STOCK Act is definitional: it is difficult
                          to determine what constitutes “nonpublic” information. Burr argued
                          that he sold stocks in advance of the COVID-19 market crash based
                          “solely on public news reports” rather than confidential briefings. It
                          can be hard to conclusively determine whether financial decisions
                          were made based on nonpublic information — or whether the
                          information is nonpublic in the first place (Gellasch, 2o2o). Did Burr
                          trade stocks because of congressional briefings or because he was
                          closely following the news? Should it even matter? Should members
                          of Congress have the right to make private financial decisions
                          relating to issues they are addressing as representatives of public
                          offices–even if they have no greater access to information than
                          regular citizens?
                                                  Copycat Investments
                              An increasingly common tactic among savvy investors is to copy
                          the disclosed exchanges of members of Congress — particularly those
                          who have historically beat the market. Betting on the assumption
                          that these members of Congress indeed have access to nonpublic
A Reddit post             information, these investors attempt to piggyback off of potential
reporting on a            insider trading. This means that congressional disclosures effectively
recent stock trade        become self-fulfilling prophecies: if enough investors buy a stock
by Speaker Nancy          after a member of Congress does so, that member of Congress’ stock
Pelosi, enabling          will now be worth more. Members of Congress can thus make
copycat investing         positive returns on investments not by acting on inside information
               Reddit     but simply by having their exchanges disclosed through the STOCK
                          Act (Payne, 2022).

                                                Congressional Action
                              Several proposals that would expand upon the STOCK Act were
                          recently introduced to Congress — many of them bipartisan. The Ban
    Blind Trust – a
                          Conflicted Trading Act, introduced by Sen. Jeff Merkley (D-OR),
financial
                          would issue a flat-out ban on members of Congress and high-level
arrangement under
                          congressional staffers trading stocks and most other financial
which an asset-holder
                          products. The Ban Congressional Stock Trading Act, introduced by
gives an independent
                          Sens. Jon Ossoff (D-GA) and Mark Kelly (D-AZ), would force
trustee control over
                          members of Congress, their spouses, and their dependent children to
their financial assets
                          place their financial assets in a blind trust while in office. Members
and loses the right to
                          of Congress who violate the law would be fined their annual salary.
interfere in the
                          Sen. Josh Hawley’s (R-MO) Banning Insider Trading in Congress Act
trustee’s actions
                          would also require the creation of blind trusts but does not apply to
                          the dependent children of representatives. Sen. Ben Sasse’s broad
                          Ethics Reform Act includes provisions to ban stock trading among
                          members of Congress but does not place restrictions on their spouses

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                          or children. Finally, the Bipartisan Ban on Congressional Stock
                          Ownership Act, introduced in the Senate by Sen. Elizabeth Warren
                          (D-MA) and Sen. Steve Daines (R-MT) and introduced by Reps.
                          Jayapal (D-WA) and Rosendale (R-MT) in the House, is probably the
                          most sweeping of the proposed reforms. The legislation would
                          require members of Congress and their spouses to fully divest from
                          stocks and most other financial products while in office (Rainey,
                          2022).
                                                 Other Policy Action
                              Given that this topic deals with insider trading and conflicts of
                          interest solely among members of Congress and their staffers,
                          outside policy action is not particularly relevant to the committee.
                          Congress must decide whether to restrict its own members and
                          promote financial transparency and accountability.

The office of the                   IDEOLOGICAL VIEWPOINTS
Congressional
Ethics Committee,             Unlike most contentious issues facing Capitol Hill, congressional
which overseess           stock trading reform seems to transcend partisan and ideological
financial disclosures     divides. The Ban Conflicted Trading Act, for example, was sponsored
              The Hill    by both Reps. Alexandria Ocasio-Cortez (D-NY) and Matt Gaetz (R-
                          FL), representing the exact opposite ends of the political spectrum.
                          When Burr was accused of using insider knowledge to sell off stocks
                          in advance of the COVID-19 market crash, both Ocasio-Cortez and
                          right-wing Fox News commentator Tucker Carlson called for him to
                          resign (Shepherd, 2020).
                              The stock trading debate thus provides a unique opportunity for
                          members of Congress to consider different proposals on their merits,
                          without the fear of partisan squabbles. Partisanship may still inform
                          the bill-drafting process (i.e., Republicans may feel more
                          comfortable working with other Republicans on writing legislation,
                          and vice-versa), but there has been fairly widespread bipartisan
                          support for action on this issue.
                              Perhaps the more important consideration for members of
                          Congress is their personal financial interests. For instance, Speaker
                          Pelosi was initially resistant to calls for further regulating insider
                          trading or even banning members of Congress from trading stocks.
                          “We are a free market economy. [Members of Congress] should be
                          able to participate in that,” Pelosi told reporters in December 2021.
                          Pelosi’s husband owns an investment firm and holds millions in
                          stocks and other financial instruments (Slodysko, 2021). Although
                          Pelosi has backtracked these statements and has suggested she
                          would be open to reform, members of Congress who have significant
                          financial investments may hesitate to support more comprehensive
                          limits on personal finances, such as complete bans on stock trading.

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                              Meanwhile, members of Congress from both parties who
                          campaigned on weeding out government corruption in the political
                          establishment may be supportive of stronger measures to combat
                          insider trading. On the Democratic side of the aisle, politicians like
                          Warren and Ocasio-Cortez have prioritized placing tighter
                          restrictions on Wall Street and would support holding members of
                          Congress to the same rigid standards. On the Republican end,
                          members of Congress who campaigned on “draining the swamp,”
                          such as Rep. Chip Roy (R-TX), support sweeping government
                          reform. In short, representatives who have expressed opposition to
                          establishment politicians and corporate elites are likely to be the
                          most avid proponents of insider trading reform.

                                             AREAS OF DEBATE
                              Although there is bipartisan support for actions intended to limit
                          insider trading in Congress, a wide range of proposals are being
                          considered. The most extreme of these proposals would ban
                          members of Congress and their families from owning stocks. Smaller
                          reforms involve strengthening the enforcement mechanisms of the
                          STOCK Act and increasing penalties for violating its provisions.
                          Members of Congress must consider which policies will be most
                          effective at deterring financial malfeasance while also considering
                          their own financial interests.
                                         Complete Ban on Stock Trading
                              The most radical solution currently being considered is banning
                          members of Congress from owning, buying, or trading individual
                          stocks and other financial instruments. Under this proposal,
    Mutual Funds –        members of Congress would have to sell off their stock holdings and
investment vehicles       invest the money in mutual funds. New members of Congress
through which money       could be given a grace period in which they would have to divest from
is pooled from a          their individual stocks. This solution would preempt most of the
variety of investors      problems mentioned previously: without owning stocks, members of
and collectively          Congress would be unable to conduct trades on nonpublic
invested in stocks and    information and make a private profit. Copycat behavior would be
other financial           impossible because the investments of members of Congress would
products                  be held in larger mutual funds.
                              Proponents of this solution argue that it is a simple yet
                          comprehensive method for eliminating conflicts of interest in
                          Congress. Not only does it effectively preclude insider trading, but it
                          also prevents members of Congress from making decisions based on
                          their current stock investments. When members of Congress own
                          individual stocks, they can make legislative decisions that benefit the
                          companies that they are invested in. Even if representatives do not

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                           trade these stocks based on inside information, simply owning
                           certain stocks can lead to conflicts of interest.
                               Opponents of this solution contend that it is an unnecessarily
                           extreme measure. As participants in the economy, members of
                           Congress should have the right to own stocks. Moreover, opponents
                           argue, the central ethical problem is not that members of Congress
                           own stocks but that they can trade them on nonpublic information.
                           An all-out ban on stock ownership unnecessarily restricts members
                           of Congress.
                               Another criticism of a ban on congressional stock trading is that
                           it could deter strong candidates from running for Congress.
                           Businesspeople may be discouraged from running for Congress if
                           they would have to sell off their entire stock portfolios, thus
                           disincentivizing individuals with a strong understanding of the
                           economy and financial markets from pursuing public office. If stock
                           trading bans are applied to the spouses of members of Congress, a
                           candidate could also be deterred from running if their spouse works
                           in investment banking; the spouse would effectively be forced to quit
                           their job if the candidate is elected (The Wall Street Journal
                           Editorial Board, 2022).
                                                        Blind Trusts
                               A similar proposal would require members of Congress to place
                           their assets in blind trusts rather than mutual funds. Members of
                           Congress could still own individual stocks and other financial
   Trustees –              products but would not have the ability to buy or sell them while in
individuals or firms       office. Trustees would control these assets and make financial
that manage the            decisions independently from members of Congress. This solution
assets of a third-party    would neuter most of the gaps in the STOCK Act — if members of
                           Congress cannot buy or sell their stocks, they will be unable to make
                           illegal trades based on insider information.
                               Supporters of this approach contend that it eliminates the
                           possibility of congressional insider trading while still allowing
                           members of Congress to maintain ownership over stocks. For some
                           members of Congress, creating blind trusts might be more feasible
                           than completely divesting from entire stock portfolios.
                               Opponents of this solution argue that using blind trusts would be
                           unrealistic for many members of Congress. Compliance costs for
                           blind trusts can be quite expensive. And many financial firms require
 Under the STOCK           significant initial investments to qualify for a blind trust —
   Act, members of         potentially as much as $500,000. For many members of Congress,
Congress have up to        these costs would be unworkable.
 45 days to disclose           Another flaw in this solution is that members of Congress would
              trades       likely still know the assets initially placed in the trust, creating
                           conflicts of interest unless all of the initial stocks are sold off by the
                           trustees (Marquette, 2022).

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                                       Tightening Disclosure Requirements
                               Under the STOCK Act, members of Congress have up to 45 days
                           to disclose their trades. This reporting timeframe could be shortened
                           to further promote transparency. Alternatively, members of
                           Congress could be required to pre-clear stock transactions with the
                           House or Senate ethics committees before finalizing a trade.
                           Members of Congress could also be required to disclose the exact
                           value of trades. Currently, transactions are only reported in ranges
                           (e.g., $50,001-$100,000).
                               Proponents of these reforms argue that they would boost
                           transparency and accountability. With more up-to-date and precise
                           disclosures, it may be easier to determine when members of
                           Congress are engaging in insider trading. Greater transparency
                           surrounding disclosures may also deter members of Congress from
                           making illegal trades in the first place.
                               Critics respond that these incremental reforms would not do
                           enough to discourage insider trading. Given the difficulty of proving
                           that trades were made based on nonpublic information, it would still
                           be extremely difficult to charge members of Congress under the
                           STOCK Act–even with greater transparency. And unless
                           enforcement mechanisms are improved, members of Congress may
                           continue to blow past disclosure deadlines without significant
                           penalty, rendering changes in the disclosure timeframe useless.
      Currently, the       Increasing and Enforcing STOCK Act Violation Penalties
      initial fine for         Members of Congress who fail to meet STOCK Act disclosure
   violations of the       deadlines are only charged $200 on first offense. This small fine is
       STOCK Act’s         likely not enough to deter late disclosures, especially when stock
disclosure period is       trades are often worth hundreds of thousands of dollars. Financial
                $200       penalties for violating STOCK Act provisions could be increased to
                           discourage delayed disclosures.
                               Furthermore, congressional ethics investigators could be
                           empowered to better enforce the STOCK Act by establishing a unified
                           procedure for responding to violations. For example, members of
                           Congress could be required to publicly provide proof of paying fines
                           for violations. STOCK Act disclosures could also be made more easily
                           accessible to the public so that government watchdogs and
                           journalists can easily monitor records for signs of suspicious
                           financial activity.
                               Increasing penalties for STOCK Act violations—and publicly
                           documenting the payment of these penalties—will increase
                           transparency and deter lawbreaking, proponents of these reforms
                           argue. The STOCK Act is designed to prevent insider trading, in part,
                           by increasing public access to the financial records of members of
                           Congress. Strengthening the Act’s public accountability mechanisms
                           will allow it to work as intended.

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                              Detractors contend that the STOCK Act was never enough. Even
                         if these reforms increase compliance with the Act’s provisions, it is
                         still exceedingly difficult for the executive branch to investigate
                         insider trading incidents. Furthermore, public accountability
                         measures are reliant on outside organizations closely scrutinizing
                         congressional financial records.
                                        Spouses and Dependent Children
                             For all of the proposals outlined previously, an important
                         consideration is whether the spouses and/or the dependent children
                         of members of Congress should be included. Under the STOCK Act,
                         members of Congress have to disclose stock trades made by their
                         spouses and dependent children. If stock ownership was to be
                         banned outright, should spouses and dependent children also be
                         prohibited from owning stocks? Should members of Congress and
                         their spouses be held to different standards for the purposes of
                         financial disclosures and penalties?
                             Some argue that insider trading legislation is toothless if it does
                         not also apply to spouses: members of Congress could transmit
                         nonpublic information to their spouses, who could then make trades
                         with this insider advantage.
                             But critics maintain that it is unfair to restrict the financial
                         activity of spouses and dependent children, who should not be held
                         to the same public accountability standards as public officials.

                                BUDGETARY CONSIDERATIONS
                             Budgetary considerations are not hugely important for this topic
                         given that most proposals consider how best to regulate the financial
                         actions of members of Congress. However, some spending may be
                         required to empower the congressional ethics committees to enforce
                         new stock trading regulations or bans.

                                                CONCLUSION
      Only 37% of
Americans have a             Congress is facing a crisis of public trust. According to public
 “great deal” or a       opinion polling from Gallup from 2021, only 37% of Americans have
 “fair amount” of        a “great deal” or a “fair amount” of trust in Congress (Brenan, 2021).
trust in Congress        The perception that members of Congress are able to use their
                         positions to gain unfair advantages in the stock market only serves
                         to further undermine this trust. It is no surprise, therefore, that
                         movements on both the far-right and far-left of the political spectrum
                         have aimed at increasing government transparency and limiting the
                         power of elites.

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                        Congress must take steps to ensure that its members are held to
                    the same standards as regular Americans—whether by strengthening
                    the STOCK Act or introducing new legislation. But members of
                    Congress must also consider whether proposals are financially
                    feasible and can reasonably be enforced. It can be tempting to pass
                    sweeping legislation, but if enforcement mechanisms are not clearly
                    defined, these proposals may suffer the same fate as the STOCK Act.
                    Moreover, members of Congress must consider how their own
                    finances and families will be affected by different proposals. This is a
                    rare topic in which Congress is attempting to regulate itself, meaning
                    that representatives must balance their personal interests with the
                    will of their constituents.
                        In responding to this issue, delegates are encouraged to be
                    creative: consider how the proposals explained in this briefing can be
                    combined and explore other potential solutions not mentioned
                    above.

                           GUIDE TO FURTHER RESEARCH
                        You are encouraged to look through the sources cited in the
                    bibliography for more details on the issues and proposals discussed
                    in this briefing.
                        It is recommended that you research whether your assigned
                    representative has cosponsored any of the recent STOCK Act reform
                    bills or made statements on congressional insider trading. You can
                    search your member of Congress on congress.gov to see if they
                    sponsored bills addressing the topic (Beckler et al., 2021).
                        Finally, you should have a sense of your representative’s personal
                    finances. Research whether your member of Congress has been
                    implicated in any insider trading scandals. For more detailed
                    financial information on individual representatives’ finances,
                    Business Insider created a series of databases based on STOCK Act
                    financial discourses.

                                              GLOSSARY
                       Insider Trading – the act of buying or selling a company’s
                    public stock based on insider, nonpublic information about the
                    company

                       Initial Public Offering (IPO) – a process through which a
                    private company “goes public” by issuing new stocks that can be
                    traded on the market

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                       Blind Trust – a financial arrangement under which an asset-
                    holder gives an independent trustee control over their financial
                    assets and loses the right to interfere in the trustee’s actions

                        Mutual Funds – an investment vehicle through which money
                    is pooled from a variety of investors and collectively invested in
                    stocks and other financial products

                        Trustees – individuals or firms that manage the assets of a
                    third-party

                                         BIBLIOGRAPHY
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                         richard-burr-with-insider-trading-01611104898#.

                    Beckler, Hannah, et al. “Search the Assets, Investments, Outside
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                         Insider's Exclusive Databases.” Business Insider, 17 Dec. 2021,
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                    Bredderman, William Bredderman, and Lachlan Markay. “Sen.
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                    DeChalus, Camila, et al. “Congress and Top Capitol Hill Staff Have
                        Violated the Stock Act Hundreds of Times. but the
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                    Evers-Hillstrom, Karl. “Senate Intel Chair Unloaded Stocks in Mid-
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                    Gellasch, Ty. “Restoring Trust: 5 Steps to Reduce Congressional
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                    Levinthal, Dave. “63 Members of Congress Have Violated a Law
                         Designed to Stop Insider Trading and Prevent Conflicts-of-
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                         violations-senate-house-trading-2021-9.

                    Marquette, Chris. “Qualified Blind Trust Proposal Receives Chilled
                        Reception at Congressional Stock Hearing.” Roll Call, 7 Apr.
                        2022, https://rollcall.com/2022/04/07/qualified-blind-trust-
                        proposal-receives-chilled-reception-at-congressional-stock-
                        hearing/.

                    Payne, Kedric. “Hard Lessons Learned after a Decade of the Stock
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