Courthouse Ethics and Transparency Act

Mr. Speaker, I move to suspend the rules and pass the bill (S. 3059) to amend the Ethics in Government Act of 1978 to provide for a periodic transaction reporting requirement for Federal judicial officers and the online publication of financial disclosure reports of Federal judicial officers, and for other purposes.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to

revise and extend their remarks and include extraneous material on S. 3059.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, S. 3059, the Courthouse Ethics and Transparency Act of 2021, embodies an important bipartisan effort to address an alarming lack of transparency in the personal financial holdings of Article III Federal judges and the conflicts, or appearance of conflicts, those holdings can create in the cases these judges are asked to preside over and decide.

This legislation makes incremental but necessary progress toward accountability by building on Federal statutes that already prohibit judges from deciding cases in which they have a personal financial stake in the outcome.

It has been the law in this country since the 1970s that judges must recuse themselves from any case in which they hold a legal or equitable interest of any size in any party or property under consideration.

To help ensure that recusals occur as required, Federal law often mandates that judges file annual reports disclosing their personal financial interests so that the litigants, press, and the general public can monitor and check these responsibilities.

Unfortunately, recent reporting by a Pulitzer Prize-winning investigative reporter and a hearing by the Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet have shown that the law is not working as intended. The infrequency of judges' financial disclosures and the inaccessibility of the reports have made actual transparency practically impossible.

When the House first passed this version of the legislation last year, an investigation revealed that, between 2010 and 2018, over 130 Federal judges had decided cases in which they are part owners of the parties before them. Over 60 judges have actively traded shares in entities involved in their courthouse deliberations while their cases were still ongoing and, in some cases, profited from these trades.

At the time, this investigation also discovered approximately 685 cases where judges should have, according to the law, recused themselves. That number has continued to climb and now stands north of a thousand cases. So far, judges in 836 cases have notified the parties that the case can be reopened because the judge unlawfully failed to recuse.

While these numbers are incredibly alarming on their own, they may simply be the tip of the iceberg. I am sorry to say that we can expect these numbers may continue to grow as more data becomes available and investigations continue.

The consequences of these actions are both acute and widespread. Failure to recuse can cause real harm to parties seeking fair and impartial justice and leave a cloud of doubt over any decision that is made once the conflicts are subsequently uncovered.

S. 3059 addresses these problems by requiring Federal judges to abide by the same periodic transaction reporting laws already applicable to Members of Congress and senior executive branch officials.

The bill also requires the Administrative Office of the U.S. Courts to create an online database of judicial financial disclosure reports and to timely update that database with searchable, sortable, and downloadable copies of disclosure reports as they become available so that litigants, the press, and the public can analyze and access this information in real time.

The two versions of this legislation, including the original version passed by the House and the bill currently before us, S. 3059, make two notable changes.

First, it makes it crystal clear that these reforms also cover bankruptcy and magistrate court judges. This is a welcome change.

Second, in response to concerns raised by the courts, it allows the Director of the Administrative Office of the Courts to take more than 180 days to develop the public website and database containing judicial financial disclosure reports so long as the Director provides the Congress with a date certain when the website will launch. We expect that the Administrative Office of the Courts will request no more time than a few more months and will not use this authority to delay disclosure.

These simple solutions are long overdue and the product of bicameral and bipartisan collaboration.

I thank Congresswoman Ross for her leadership in this area and Congressman Issa for championing this legislation. I also thank my friend from Georgia (Mr. Johnson), chairman of the Subcommittee on the Courts, Intellectual Property, and the Internet, as well as Senator Cornyn and the other Senators who worked on this bipartisan bill.

Mr. Speaker, I urge my colleagues to support the legislation, and I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the Framers, in their infinite wisdom, created a system of government with three separate and coequal branches: Article I, legislative branch; Article II, executive branch; and Article III, judicial branch, three separate but coequal branches of government.

Justice Brandeis once said: In a democracy, sunlight is the best of disinfectants. There are standards of transparency and disclosure that already exist as relates to the Article I legislative branch and senior officials within the Article II executive branch. Those same standards of transparency and disclosure allowing for accountability should exist across the three branches of government. This legislation takes a meaningful step in that direction.

Mr. Speaker, I thank Congresswoman Ross for her leadership. I thank Congressman Issa for his leadership. I thank Chairman Johnson, as well as Senator Cornyn, and those who have worked on this important legislation in a bipartisan, bicameral way.

Mr. Speaker, I urge my colleagues to support this bill, and I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume. I join with the chairman in support of all of the changes that were added in the Senate, they were thoughtful, and I believe not just appropriate but necessary.

I don't want to pile on the same statements made already because they were accurate and I agree with them. Rather, because there has been fairly public pushback from some members of the Article III court that we are meddling in their business, I have given it a lot of thought and discussed it with a number of scholars.

I think the American people need to understand that the executive branch does not have the authority to pass laws, and the judicial branch does not have the ability to pass laws. When it comes to establishing laws for transparency reporting and the American people's right to know, there is, in fact, only one body that can initiate and send for the President's signature statutes of transparency and accountability.

So even though this is a 1978 law being modified, the fact that there is pushback from a branch saying that under separation of powers we are somehow meddling by substantially harmonizing what the executive branch and this branch do to make sure the American people have confidence in what we own that might, in fact, be influencing what we do. It seems to be one of those areas in which I believe the American people, properly explained, would fully support.

For that reason, I would hope that as this bill becomes law that the members of the court would recognize we had no choice. Faced with clear examples--even one being too much--of a judge who had holdings and simultaneously affected the value of those holdings while either owning them or trading them or both, we had no choice but to recognize that that absence of transparency was critical.

I want to simply close by saying that this is likely not to lead to a lot more recusals. This is certainly going to lead to the kind of information that attorneys need to have on behalf of their clients when they are working through a case.

If you know that a judge or his spouse or her spouse owns something, why wouldn't you be aware of that when you have a case involving that company? If you know that they own a substantial amount of a sister company, one that is not involved in the litigation, but in fact, could benefit by an adverse decision, the attorneys for both sides should know that.

We are just not dealing in the failure to recuse here. Reporting transparency, in fact, empowers both sides to know the lay of the land that might be very meaningful in a case. Yes, there will be some that see that and ask for recusals. I trust that judges who, after the fact when these 130 cases were reported, some of the judges said they didn't know about it, they didn't know they had it, or they didn't know their spouse had these holdings. That may very well be true. Some of them said they didn't know they were supposed to report. That may be true.

But when this is implemented we will be in a position to say, of course the public knew, and empowering the public on this not private information because ultimately we are public officials. I am a public official, the chairman is a public official, the Speaker is a public official, and so are those honored to serve as magistrates, bankruptcy judges, and Article III judges.

I hope that this minor change will represent a major step for us in bringing back the confidence of the American people that they do not have to blindly go into a case not knowing whether the heavy hand of the law might be weighing against them without their knowledge.

Mr. Speaker, it seems like only yesterday I was speaking on this subject.

This is an important step. I know that we will have broad bipartisan support on it. I hope that we will have not just acceptance but an embracement by the judges who now will be reporting and providing more information to the public that the public has--and particularly litigants--have every right to know before they go before that judge.

Mr. Speaker, I thank the chair for his help in shepherding this bill, and I yield back the balance of my time.

Madam President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be discharged from further consideration of S. 3059 and the Senate proceed to its immediate consideration.

I ask unanimous consent that the Cornyn substitute amendment at the desk be considered and agreed to; and that the bill, as amended, be considered read a third time.

I know of no further debate on the bill.

I ask unanimous consent that the motion to reconsider be considered made and laid upon the table.