A bill (HR 2706) intended to address concerns about federal bank regulators pressuring banks to limit or drop customers passed the House Financial Services Committee on Oct. 12, 2107 on a 59-1 vote. Arising from a dispute over the controversial “Operation Choke Point” during the Obama administration, the bill would require regulators to have a “valid” reason to tell banks to drop a customer or class of customers, and require customers be given notice of the reasons. If passed, the bill could impact nonprofit organizations (NPOs) that need financial services for international programs by allowing derisking without notice or the requirement of a “valid” reason when based on vaguely worded “national security” considerations.
Updated August 23, 2017
In an August 16, 2017 letter to Congress, the U.S. Department of Justice (DOJ) announced that its controversial program dubbed "Operation Choke Point" has officially ended. In the letter, DOJ also repudiated the program, which it described as a "misguided initiative." Significantly, the letter states that DOJ "will not discourage the provision of financial services to lawful industries."
Operation Choke Point was established during the Obama administration to "choke" payday lenders, gun dealers and other business sectors by forcing banks to end relationships with clients deemed "high-risk," a term also used to describe charities in the Bank Examiners Manual. According to the letter to Congress, under the program, a series of subpoenas were issued in 2013, accompanied by a Federal Deposit Insurance Corporation guidance document that listed a number of "elevated risk" merchants. An October 19, 2015, article in American Banker documented the impact on money service businesses and correspondent banks, thereby contributing to the global "de-risking" crisis.
Two Senate committee hearings in early May highlighted the importance of philanthropy and international aid, as well as the challenges faced by nonprofits in accessing banking services to finance that aid.
On May 3, the Senate Foreign Relations Subcommittee on Multilateral, International Development, Multilateral Institutions, and International Economic, Energy and Environmental Policy held a hearing on "Global Philanthropy and Remittances and International Development." Speakers included InterAction CEO Sam Worthington and leaders in global philanthropy. Worthington described ways the U.S. government could improve partnerships with nongovernmental organizations (NGOs), including recognizing NGOs as donors, and leveraging private actors to give NGOs a diplomatic space in which to operate. He noted that 70 percent of international development response in Nigeria, Yemen, Somalia and South Sudan is performed by NGOs.
Is it any wonder that the U.S. Treasury Department refuses to come to the aid of “de-risked” charities? It appears that they were driving this train all along.
A December 2014 report by the U.S. House of Representatives Committee on Oversight and Government Reform indicates that DOJ and Treasury in fact had a hand in the current de-risking crisis that’s shutting humanitarian aid groups out of the financial system.
Efforts to curb money laundering and illicit terrorist financing have had unintended negative consequences internationally, in particular for people and organizations in poor countries via remittances, correspondent banking and humanitarian aid. More transparency, greater data and a stronger risk-based approach (RBA) are needed, according to a new report from The Center for Global Development, Unintended Consequences of Anti-Money Laundering Policies for Poor Countries.
Anti-money laundering and combating of the financing of terror policies (AML/CFT) have created pressure for institutions to be uniformly risk-averse. As a result of mixed messages and imprecise guidelines from the Financial Action Task Force (FATF), along with a chilling effect from enforcement actions and fines on large financial institutions, banks are engaging in “de-risking” by ceasing to engage in any activity with organizations or individuals that a seen to be higher risk.
Nonprofits around the world are having difficulty accessing banking services. U.S. and other countries’ financial regulations, rooted in a comprehensive counter-terror finance regime, and the ever-shifting political landscape set the stage for financial institutions around the globe to continually re-evaluate their risk profiles. As a result, accounts are closed or never opened, wire transfers are delayed and correspondent banking relationships are severed. This, in turn, impacts vital humanitarian aid, development, peacebuilding, human rights, and other programming.
Two recent reports examine the scope and impacts of this problem. Financial Access for U.S. Nonprofits, by the Charity & Security Network, provides the first empirical data on the issue and sets out a series of recommendations. Tightening the Purse Strings, by the Women Peacemakers Program and Duke Law International Human Rights Clinic, looks at the effects of counter-terrorism finance measures on gender equality and security.
Like their American counterparts, British NGOs working in or near areas where non-state armed groups are active increasingly face restrictions on their access to the financial system, according to a 2017 report from Chatham House, Humanitarian Action and Non-state Armed Groups: The Impact of Banking Restrictions on UK NGOs. This may include delayed transfers, the freezing of funds, and closure of bank accounts.
The report, like many before it, tie the perception of NGOs as high-risk to the Financial Action Task Force's Recommendation 8. In addition, the global financial crisis has made banks subject to tougher regulatory and enforcement regimes, decreasing their appetite for risk. It notes, "Humanitarian NGOs generally accept the need for regulation and due diligence, but the current weight of compliance demands by their banking partners is often seen as disproportionate, resulting in a need to spend donor money on additional staff and due diligence tools, increased administration costs, aid delivery and financial transfer delays, and in some circumstances the closure of programmes to which funding cannot be delivered."
Prior to its revision in 2016, the Financial Action Task Force's Recommendation 8 referred to nonprofit organizations as "particularly vulnerable" to terrorist abuse. As a result, many countries implemented laws and policies designed to curb this perceived risk. As a result, NPOs have faced increased scrutiny and legal constraints, shrinking the space for charitable work.
A report from Spaces for Change in Nigeria, Closing Spaces for Civil Society and Democratic Engagement in Nigeria, examines the impact of Recommendation 8 on civil society in that country. The first part, Beyond FATF: Trends, Risks and Restrictive Regulation of Non-profit Organisations in Nigeria, is the product of systematic review of that country's legal framework for combating money laundering and the financing of terrorism to understand the connection between Nigeria's implementation of Recommendation 8 and shrinking space for civil society there. The second part, Closing Spaces for Civic Engagement and Civil Society in Nigeria, assesses the effectiveness of these policies and created a database of closed spaces, highlighting 100 incidents of overbroad application of these laws.
August 19 is World Humanitarian Day, another reminder of the need to alleviate suffering. This year, more than ever, we look to four countries on the brink of famine - Nigeria, Somalia, Sudan and Yemen. Unfortunately, for a significant number of U.S. humanitarian aid and development organizations working abroad, the closure of their U.S. bank accounts and the inability to send wire transfers in a timely manner have a significant impact on their ability to fund critical programs in these and other countries in need.
As described in our February 2017 report on Financial Access for U.S. Nonprofits, "the human costs of NPOs' financial access difficulties and continued inaction must be recognized. When programs are delayed or cancelled because of the inability to transfer funds, peace is not brokered, children are not schooled, staff is not paid, hospitals lose power, the needs of refugees are not met and in the worst cases, people die."
An international sanctions bill primarily focused on Russia contains language devoted to countering the financing of terrorism (CFT) and supporting remittances to Somalia as well as wire transfers by legitimate entities.
Countering America's Adversaries Through Sanctions Act (HR 3364), signed into law by President Trump on August 2, incorporates two bills that passed in the U.S. House of Representatives in late December, in the final hours of the 114th Congress, HR 5594 (National Strategy for Combating Terrorist, Underground, and Other Illicit Financing Act) and HR 5607 (Enhancing Treasury's Anti-Terror Tools Act), with some modifications, in Subtitle C of the bill.