Consistent with efforts in recent years to apply banking laws to the art market, the prospects of passage of a bill in Congress that would apply those rules to a broad category of advisors and attorneys have recently increased. The “ENABLERS Act,” a gimmick of nomenclature apparent from the moment it was proposed, was briefly attached to the annual National Defense Authorization Act, which in keeping with longstanding tradition easily passed the U.S. House of Representatives on July 14, 2022. This tactic, which was also used to extend the reach of the Bank Secrecy Act to antiquities dealers in 2021, greatly enhances the odds that what seemed initially like an unserious publicity stunt might become law. Readers of the Art Law Report will not be surprised at a critical view here of the effort to place a square peg—the art market—into a round hole—bank oversight. This bill is considerably worse, however. Compounding the confusion is that despite widespread coverage about its attachment to the NDAA, the ENABLERS Act as originally proposed is not in the version of the NDAA that passed the House of Representatives last week (it was added then revised, notwithstanding at least one report to the contrary). What was approved for the moment omits the worst parts of the ENABLERS Act. But the perception that it is a done deal ironically may have the effect of lowering vigilance about its prospects. Even if this bill never becomes law, it has come much closer than it should have.
Topics: Congress, Supreme Court, House of Representatives, AML, Money laundering, FinCEN, Financial Crimes Enforcement Network, Illicit Art and Antiquities Trafficking Protection, suspicious activity reports, Bank Secrecy Act, 31 U.S.C. § 5312(a), National Defense Authorization Act, Treasury Department, ENABLERS Act, NDAA, art market regulation, Tom Malinowski, dealers in antiquities, JOHN HENRY WIGMORE, Berd v. Lovelace, Federal Rules of Evidence, Panama Papers, International Consortium Investigative Journalists, Offshore Leaks database, English Chancery Court, Blackburn v. Crawfords Lessee, Pandora Papers