S.Amdt. 491

SA 491. Mr. WHITEHOUSE submitted an amendment intended to be proposed
to amendment SA 98 proposed by Mr. Inouye (for himself and Mr. Baucus)
to the bill H.R. 1, making supplemental appropriations for job
preservation and creation, infrastructure investment, energy efficiency
and science, assistance to the unemployed, and State and local fiscal
stabilization, for fiscal year ending September 30, 2009, and for other
purposes; which was ordered to lie on the table; as follows:

At the end of division B, add the following:

TITLE VI--TEMPORARY ECONOMIC RECOVERY ADJUSTMENT PANEL

SEC. 6001. SHORT TITLE.

This title may be cited as the ``Economic Recovery
Adjustment Act of 2009''.

SEC. 6002. FINDINGS.

Congress finds that--
(1) the deterioration of financial firms in 2008 and the
resulting crisis of confidence in the financial markets have
required broad intervention by the Federal Government in the
financial sector;
(2) the Emergency Economic Stabilization Act of 2008,
signed by President Bush on October 3, 2008, included a
$700,000,000,000 Troubled Asset Relief Program (or ``TARP'')
for the express purpose of ``providing stability to and
preventing disruption in the economy and financial system'';
(3) the investment and commercial banks and other financial
institutions that have received taxpayer-funded bailouts
perform public functions supporting the operation of the
economy, in addition to their private profit-making
functions;
(4) reports of billions of dollars in obligations to
executives have eroded public confidence in the TARP, and
have caused increasing opposition to other bailout proposals,
thereby impeding the Government's ability to address the
financial crisis;
(5) participation in the TARP and any other Federal
Government bailout program should be conditioned on a fair
restructuring of executive compensation obligations;
(6) taxpayer dollars should not unreasonably compensate
executives, particularly when in the absence of such relief,
such compensation would be reduced as part of a bankruptcy
restructuring or liquidation; and
(7) establishing a due process forum will allow the
Government to ensure that executive compensation relying on
taxpayer funds is fair and reasonable.

SEC. 6003. DEFINITIONS.

In this title, the following definitions shall apply:
(1) Assisted entity.--The term ``assisted entity'' means
any recipient or applicant for assistance under the TARP.
(2) Panel.--The term ``Panel'' means the Temporary Economic
Recovery Oversight Panel established under section 6007.
(3) Executive compensation.--The term ``executive
compensation'' means wages, salary, deferred compensation,
benefits, retirement arrangements, options, bonuses, office
fixtures, goods, or other property, travel, or entertainment,
vacation expenses, and any other form of compensation,
obligation, or expense that is not routinely provided to all
other employees of the assisted entity.
(4) Office.--The term ``Office'' means the Office of the
Taxpayer Compensation Advocate established under section 4.
(5) TARP.--The terms ``TARP'' and ``TARP funds'' mean the
Troubled Asset Relief Program established under section 101
of the Emergency Economic Stabilization Act of 2008 and funds
received thereunder, respectively, or pursuant to any
successor program.
(6) Secretary.--The term ``Secretary'' means Secretary of
the Treasury.

SEC. 6004. TAXPAYER COMPENSATION ADVOCATE.

(a) Establishment.--There is established within the
Department of Justice, the Office of the Taxpayer Advocate.
(b) Advocate.--The Office shall be headed by an Advocate,
to be appointed by the Attorney General of the United States
for such purpose.
(c) Duties.--The Advocate is authorized to conduct ongoing
audits and oversight of the recipients of TARP funds with
respect to compensation of the officers and directors of such
entities.
(d) Access to Records.--
(1) In general.--To the extent otherwise consistent with
law, the Advocate and the Office shall have access, upon
request, to any information, data, schedules, books,
accounts, financial records, reports, files, electronic
communications, or other papers, things, or property
belonging to or in use by the assisted entity and to the
officers, directors, employees, independent public
accountants, financial advisors, and other agents and
representatives thereof (as related to the agent or
representative's activities on behalf of or under the
authority of the assisted entity) at such reasonable time as
Office may request.
(2) Copies.--The Advocate may make and retain copies of
such books, accounts, and other records as the Advocate deems
appropriate for the purposes of this title.
(e) Reporting.--The Advocate shall submit quarterly reports
of findings under this title to the appropriate committees of
Congress, the Secretary and the Special Inspector General for
the TARP established under the Emergency Economic
Stabilization Act of 2008 on the activities and performance
of the Office.
(f) Audits.--The Office is authorized to conduct an audit
of any assisted entity for purposes of this title.

SEC. 6005. POWERS OF THE OFFICE.

(a) Investigations and Evidence.--The Office may, for
purposes of carrying out this title--
(1) take depositions or other testimony, receive evidence,
and administer oaths; and
(2) require, by subpoena or otherwise, the attendance and
testimony of witnesses and the production of books, records,
correspondence, memoranda, papers, and documents.
(b) Subpoenas.--
(1) Service.--Subpoenas issued under subsection (a)(2) may
be served by any person designated by the Office.
(2) Enforcement.--
(A) In general.--In the case of contumacy or failure to
obey a subpoena issued under subsection (a)(2), the United
States district court for the judicial district in which the
subpoenaed person resides, is served, or may be found, or
where the subpoena is returnable, may issue an order
requiring such person to appear at any designated place to
testify or to produce documentary or other evidence. Any
failure to obey the order of the court may be punished by the
court as a contempt of that court.
(B) Additional enforcement.--Sections 102 through 104 of
the Revised Statutes of the United States (2 U.S.C. 192
through 194) shall apply in the case of any failure of any
witness to comply with any subpoena or to testify when
summoned under the authority of this section.
(c) Information From Federal Agencies.--The Office may
secure directly from any department, agency, or
instrumentality of the United States any information related
to any inquiry of the Office conducted under this title. Each
such department, agency, or instrumentality shall, to the
extent authorized by law, furnish such information directly
to the Office, upon request.

[[Page S1753]]

SEC. 6006. EXECUTIVE COMPENSATION AUTHORITY.

(a) Negotiated Reductions Authorized.--The Advocate is
authorized to assist the Secretary in the negotiation of
assistance under the TARP, in order to assure that fair and
reasonable executive compensation is paid by entities
receiving TARP funds, and to defend any such agreements in
the event of any challenge to the adjustments to compensation
obligations. If, after an audit authorized by this title, the
Advocate finds reason to believe that any assisted entity
would have been forced to file for bankruptcy protection
under title 11, United States Code, if not for the receipt of
assistance under the TARP, the Advocate shall negotiate a
reduction in the executive compensation obligations of the
assisted entity as a condition of the continuing use or
future receipt of such TARP assistance.
(b) Form.--Negotiated reductions in compensation under
subsection (a)--
(1) may include vested deferred compensation; and
(2) shall be in an amount that is fair and reasonable in
light of the taxpayers' assistance, but not less than the
estimated value of the compensation obligations that would
face the estate or debtor-in-possession if the TARP funds had
not been granted and the entity had filed for bankruptcy
protection.
(c) Certification to Adjustment Panel.--The Advocate shall
certify the findings of the Office under this section to the
Panel.

SEC. 6007. AUTHORITY OF THE SECRETARY.

Until the Advocate is appointed, the Secretary, in the
negotiation of assistance under the TARP, is authorized and
directed to assure that executive compensation is fair and
reasonable. In the event of a dispute as to whether such
compensation is fair and reasonable, the Secretary is
authorized to negotiate assistance with its executive
compensation recommendations subject to the ruling of the
Panel. If the Secretary recommends adjustments to the
existing obligations (such as deferred compensation or
retirement plan obligations), such recommendations shall be
subject to the approval of the Panel, with any affected
individuals having a right to intervene and be heard. The
determination of what is fair and reasonable shall be made in
light of the taxpayers' assistance to the company, the risk
of bankruptcy and loss of such benefits and obligations, and
the need for adequate compensation to attract competent
management.

SEC. 6008. TEMPORARY ECONOMIC RECOVERY OVERSIGHT PANEL.

(a) Establishment.--There is established the Temporary
Economic Recovery Oversight Panel.
(b) Makeup of Panel.--The Panel shall be comprised of 5
members, appointed by the President for such purpose from
among United States bankruptcy court judges. The Secretary
shall provide for appropriate space and staff to support the
functioning of the Panel.
(c) Duties.--The Panel shall--
(1) promptly evaluate each proposed settlement reached
under section 6;
(2) approve or deny such proposed settlement; and
(3) if no settlement is reached under section 6, upon
petition of the Advocate or any individual subject to the
actions of the Advocate under section 6, issue an order
establishing an executive compensation program for such
individuals in accordance with this section.
(d) Notice and Hearing Required.--The Advocate shall
provide adequate notice to all affected persons of its
intention to seek an order from the Panel in accordance with
this section, and the Panel shall hold an evidentiary hearing
on any proposed settlement or petition of the Advocate.
(e) Standing.--Under any proceeding before the Panel, any
individual whose compensation might be adversely affected by
Panel action shall be a party in interest, having full
procedural rights, including the right to challenge a
settlement between the assisted entity and the Advocate, to
challenge the certified findings of the Advocate, or to
appeal any order of the Panel.
(f) Appeals.--The Advocate and any party having standing
before the Panel shall have the right to appeal an order
under this title directly to the United States Court of
Appeals for the District of Columbia Circuit.
(g) Effective Period.--Any order of the Panel setting forth
a reduction in compensation shall be effective 6 months after
confirmation, and shall remain in effect while any obligation
arising from assistance provided under the TARP remains
outstanding.
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