Typo or Torpedo? Sen. Kirsten Gillibrand Proposes a Bill to Legalize Insider Trading

With the Senate Homeland Security and Governmental Affairs Committee set to begin congressional insider trading hearings today, Sen. Kirsten Gillibrand, whose husband trades stock options, has proposed a bill that would legalize, not ban, insider trading by members of Congress.

“This is just nuts,” says UCLA Law Professor Stephen Bainbridge.

The controversy surrounding Sen. Gillibrand’s version of the STOCK (Stop Trading on Congressional Knowledge) Act involves a curious omission of a conjunction that CNBC.com editor John Carney calls “shocking” and a “scandal” because it would “gut the law” entirely.

In Sen. Scott Brown’s version of the bill, the law reads:

Not later than 270 days after the date of enactment of this Act, the Commission shall, by rule, prohibit any person from buying or selling the securities or security-based swaps of any issuer while such person is in possession of material nonpublic information relating to any pending or prospective legislative action relating to such issuer, if–

(A) such information was obtained by reason of such person being a Member or employee of Congress; or

(B) such information was obtained from a Member or employee of Congress, and such person knows that the information was so obtained.

Sen. Gillibrand’s version, however, contains a critical difference:

Not later than 270 days after the date of enactment of this Act, the Commission shall, by rule, prohibit any person from buying or selling the securities or security-based swaps of any issuer while such person is in possession of material nonpublic information relating to any pending or prospective legislative action relating to such issuer, if–

(A)(i) such information was obtained by reason of such person being a Member or employee of Congress; or

(ii) such information was obtained from a Member or employee of Congress, and such person knows that the information was so obtained;

(B) the person acted with the intent to assist another person, directly or indirectly, to use the information to enter into, or offer to buy or sell the securities of such publicly traded company based on such information.

As UCLA Law Professor Stephen Bainbridge notes, while the omission of the conjunction “And” between clause A and B appears to be a typo, Sen. Gillibrand’s insertion of clause B would mean that a member of Congress would be free to make stock trades using material, nonpublic information so long as they didn’t also help another person make a similar stock purchase.

“That would completely torpedo the bill’s purpose and intent,” says Peter Schweizer, author of the book that prompted the reform effort.

Is Sen. Gillibrand’s bill a stealth attempt to keep insider trading by members of Congress legal?

Or is Gillibrand’s version of the STOCK Act simply a shoddily constructed piece of legislation?

With Washington watchers keyed in on today’s hearings, all eyes will be on Sen. Kirstin Gillibrand for answers.

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