Congressional stock trading law has unintended, but profitable consequence

Public polling shows most Americans don't think much of Congress. But some investors think lawmakers are doing one thing right — picking stocks — and this has prompted a whole new class of products to copy their trades.

Traders and market watchers are using publicly available data to track which lawmakers are reporting big stock market gains. They believe that information provides an edge on the market, and companies are selling access to tools that track those profitable lawmaker trades.

This dynamic demonstrates that the STOCK Act, the law enacted more than a decade ago to tamp down on congressional trading, may be boosting it. Funds marketed by financial services companies model what "political traders" in Congress are doing. Reports by industry analysts in the last few years show that these investment strategies are beating the market. The public disclosures required by the law, for all transactions over $1,000, generated an unintended class of products.

These funds are all legal. But the products underscore that the problem that the law was designed to fix — to eliminate the impression that lawmakers are profiting from information they learn in their official capacities — is still an issue.

The CEO of Unusual Whales, a financial startup that offers investors tools to track market activity, noticed his posts flagging notable stock trades by members of Congress were going viral on social media. "I was just posting what the disclosures were telling me," he told NPR.

He started crunching these numbers about five years ago and said the academic literature largely concluded that Congress had no edge in trading. But his anonymous reports — published under the name Unusual Whales, which is how he refers to himself — tracked notable gains by lawmakers happening around big policy changes or global events.

"Those reports started really, really taking off during 2020, 2021 — when COVID trading happened."

He saw trades by lawmakers in both parties spiking at the start of the COVID-19 pandemic — and found roughly 15 senators making trades from February into April 2020.

"That's around like $100 million of stock being traded in that time," he said. "And around 40 members of the House made like 1,500 trades, almost $100 million."

The data he uses comes from disclosure forms lawmakers are required to file. The STOCK Act — passed in 2012 after news reports of lawmakers making sizable profits around the 2008 financial crisis — requires these public forms to be filed in 30 to 45 days. The fine for failing to file a form is $200, a figure that advocates of reforms say is insufficient to motivate full compliance.

Unusual Whales saw value in this data beyond the public accountability that the law was intended to provide.

"When you're a trader or an investor, you're looking for some sort of edge, and people believe this is a sort of edge," he said.

Cottage industry sprung up from STOCK Act

Unusual Whales' data is the basis for two ETFs (exchange-traded funds). One is called NANC, named after former House Speaker Nancy Pelosi, and it tracks how Democrats invest. The other, called KRUZ, tracks how Republicans invest. The data on their performance shows they do have an edge.

"I think KRUZ has outperformed the market over the last three months, both on an average and a risk-return basis, as NANC has done it since inception," he said.

Pelosi doesn't trade stocks, but like a lot of other members of Congress, her husband is an active investor. Pelosi’s disclosures show those trades and attract a lot of attention because of large gains.

Financial services companies noticed the gains too, and a cottage industry of firms selling these products sprung up — based on what they call political trading.

Kedric Payne, a lawyer with the Campaign Legal Center, said the growth of this industry in the last few years is an unintended consequence of the STOCK Act. The law was designed to tamp down on trading by lawmakers, but "instead, you have investors profiting off the trades, which also incentivizes the members of Congress to continue to make the trades because they, in fact, profit when other people invest," he said.

Payne worked at the Office of Congressional Ethics when some lawmakers' financial activities triggered ethics investigations and when public pressure built to pass reforms.

He said there's nothing illegal about the growth of ETFs, and both sides appear to benefit. "The investors who are following their trades end up giving the member of Congress almost this Midas touch where any stock pick they have turns to gold."

Payne blames fundamental flaws in how the law was written.

"The STOCK Act never was going to completely get at the problem because it was more like an X-ray that would show where the issue is, with the disclosure," Payne told NPR. "But there was no treatment to actually get at the stock trades that the public does not like to see because it just appears to be a conflict of interest."

Bipartisan push to ban lawmakers from trading individual stocks

There was momentum for bipartisan reforms to the STOCK Act around the 2022 midterm elections. But those efforts stalled. Lawmakers from both parties say banning stock trading could be a disincentive for people to want to serve in Congress and for staffers to build careers on Capitol Hill.

RepresentUS, a nonprofit focused on anti-corruption and democracy issues, saw the social media attention that Unusual Whales was getting as it zeroed in on notable trades.

"We keep a close eye on the internet because making government work for the people is something that needs a lot more attention than it currently gets," said Joshua Graham Lynn, the CEO of RepresentUS. The nonprofit decided to team up with the financial platform to make another push to overhaul the STOCK Act.

Members of Congress have information that most investors don't have, and they write laws that could impact the companies they are invested in.

"It would be like a member of an NBA team rewriting the rules of the game to favor their team and then the fans getting upset," Lynn told NPR. "Like, there's a reason that we don't allow players to bet on their own teams, because it creates a huge conflict of interest."

Public opinion polls show support from across the political spectrum and the issue deserves broader scrutiny, he said. "I think this actually should be a much bigger scandal than it is."

His group is advocating for Congress to pass a new ethics reform. The TRUST Act would ban lawmakers, their spouses and their dependent children from trading individual stocks.

Lynn said the ETFs themselves aren’t a problem — they just underline the flaws in the current system.

"The problem is that Congress, members of Congress are able to make these trades," he said. "I don't think the problem is people calling attention to it and coming up with creative products to bring attention to it."

Public attention on lawmakers' stock activity heightened in 2020. Sen. Richard Burr, R-N.C., was investigated then by the Justice Department and the Securities and Exchange Commission. He chaired the Senate Intelligence Committee. He sold off a majority of his equity holdings in February 2020 — after a classified briefing on the COVID-19 outbreak but before the public knew about the threat to the economy.

Burr wasn’t charged.

Reforms could build trust but curb profits

Unusual Whales said a trading ban — or even a new requirement saying lawmakers must disclose their trades just one day following their activity — would bring more trust into Congress. "It may take another scandal, but I actually do think it's going to be suggested by, you know, some member who will have enough people to kind of co-sponsor it onto the floor and it'll have to be voted on."

He added that reforms have a broader benefit across government and the private sector. "These institutions are hopefully there to benefit the populace because if you, if one can't trust their institution, how can they trust larger institutions — for example, the U.S. markets or their state legislation? Or the judges that determine the rules?"

Payne warns that "if Congress doesn't do anything about this issue, you're going to see even more unintended consequences."

Lynn agrees that the political coalition is there, but it just needs more public pressure to be activated.

"We bring conservatives and progressives together, because while Congress has divided, the American people are not," Lynn said. "And so it's always a tall order to ask Congress to pass a law that puts shackles on themselves. But with enough voices out there and with enough momentum in the states, I think we have a chance."

House Speaker Mike Johnson, R-La., has not taken a position on the issue yet. And Senate Majority Leader Chuck Schumer, D-NY, has not included any mention of action on this issue in his list of bipartisan bills to move this year.

Any ban on congressional trading would wipe out the data used to market ETFs modeled on lawmakers' trading — so investors might lose an edge.

But there is a bipartisan belief that reforming lawmakers' stock trading could help rebuild some confidence in Congress as an institution.