Do you know who owns the corner store in your neighborhood? How about the local plumber or woodworking business? Almost certainly, the answer is that the founders of these small businesses are the owners, and they receive the money that they make in revenue. In a lot of cases, though, it’s not nearly that obvious or transparent—and the U.S. Chamber of Commerce would like to keep it that way.
Presently, companies are not required by federal law to disclose their “beneficial owner”— the real person who exercises control over the operations of the company or who ultimately receives the substantial economic benefits of the company. Right now, most states require more information to check out a library book than to start a corporation. And states allow corporate formation agents to fill out paperwork on behalf of secret clients, and even let shell companies form additional secret corporations like Russian nesting dolls of anonymity. The Panama Papers and Paradise Papers showed how secret companies are a global problem, but the problem is not exclusive to tropical getaways– the U.S. is a major enabler of corporate secrecy.
This lack of corporate transparency has some troubling implications. For one, nondisclosure of beneficial ownership can be a key enabler of money laundering as well as other secretive funding of criminal activities including terrorism, drug trafficking, and human trafficking. In short, the more difficult it is for authorities to track where and to whom money is flowing, and who owns particular assets, the easier it is for global and domestic bad actors to get away with criminal activity. In the United States, these anonymous shell companies have been used by criminals to carry out Medicare fraud, arms trafficking, and cheating people out of their savings using fraudulent investment schemes, all shielded from the prying eyes of law enforcement officials. So why does the Chamber oppose efforts to change federal laws mandating disclosure of beneficial ownership? According to the Chamber’s own testimony, “The Chamber and its members are committed to fighting criminals, terrorists, foreign powers, money launderers and any others who would misuse the U.S. financial system to carry out illicit schemes that harm our nation.”
But the testimony proceeded to argue that mandated disclosure of beneficial ownership is supposedly a misguided, flawed way to do that. This disclosure policy, the Chamber argues, would be “overly broad” and “unworkable” and would supposedly cause too much harm to law abiding small and medium-sized businesses.
This runs directly counter to polling of small businesses that shows strong support in favor of disclosure of beneficial ownership. And, the Chamber is putting forward flawed arguments. For one, the Chamber’s concerns that law abiding business owners would have their privacy invaded by disclosure mandates is dishonest; information the Chamber mentions, such as driver’s license numbers, would not be public domain. This information would not be released for everyone’s access, it would simply be disclosed to authorities. Second, the Chamber raises the possibility that good faith mistakes in filing the required paperwork would lead to innocent business owners being punished—but existing proposals for mandated beneficial ownership disclosure make clear that errors will only be punished if they are done “knowingly” and “willfully” (i.e. fraudulently). These proposals would hardly place an unbearable burden on legitimate businesses.
Besides, the kinds of businesses the Chamber worries would be collateral are not the kinds of companies that proposals for mandated beneficial ownership disclosure target. “Real” companies with lots of employees, shareholders, and profits are exempt from, for instance, the TITLE Act, as are companies that are registered with the U.S. Securities and Exchange Commission.
These spurious arguments on behalf of the Chamber raise serious questions about why the trade association wants to keep this information out of the hands of law enforcement officials. Certainly, very wealthy CEOs like the executives of the Chamber’s member companies may be exactly the sort of people using shell companies to hide assets to avoid having to pay taxes on assets the federal government does not know about. The classic image we have of “tax evasion” is of money stashed in a bank in the Cayman Islands or Switzerland, but the reality is that current beneficial ownership laws make it shockingly easy for the wealthy to create anonymous shell companies to hide their assets wherever they want to.
Furthermore, the right-wing organization American Legislative Exchange Council (ALEC) has openly stated that its own opposition to beneficial ownership disclosure proposals is to protect the ability for extremely wealthy donors to influence elections and policymaking with secret money. ALEC claims that such proposals would “mak[e] it easier to attack supporters of viewpoints that are not politically correct or popular with the mainstream media”—in other words, the right-wing viewpoints of ALEC’s membership. The Chamber has extensive ties to ALEC, having sat on many of ALEC’s task forces and having pursued much of the same policy agenda. It’s likely that the similarly right-wing Chamber holds views on beneficial ownership disclosure laws as it relates to secret influence of elections similar to its friends at ALEC.
The Chamber claims to support efforts to stop human trafficking, drug trafficking, terrorism, money laundering and other crimes. But by opposing corporate beneficial ownership disclosure proposals, it ultimately stands in the way of those efforts. The Chamber may publicly claim that it’s just acting out of concern for law-abiding small businesses, but closer scrutiny reveals that their true rationale might be slightly less innocent than that.