SBA Fraud Enforcement Extension Act

— 748 — Mandate for Leadership: The Conservative Promise loan credit subsidy costs, and miscellaneous program “enhancements” to support small businesses through economic challenges or circumstances. As noted by the Congressional Research Service: Overall, the SBA’s appropriations have ranged from a high of over $761.9 billion in FY2020 to a low of $571.8 million in FY2007. Much of this volatility is due to significant variation in supplemental appropriations for disaster assistance to address economic damages caused by major hurricanes and for SBA lending program enhancements to help small businesses access capital during and immediately following recessions. For example, in FY2020, the SBA received over $760.9 billion in supplemental appropriations to assist small businesses adversely affected by the novel coronavirus (COVID- 19) pandemic.18 The CRS further notes that “[o]verall, since FY2000, appropriations for SBA’s other programs, excluding supplemental appropriations, have increased at a pace that exceeds inflation.”19 In terms of current loan volume, the SBA “reached nearly $43 billion in fund- ing to small businesses, providing more than 62,000 traditional loans through its 7(a), 504, and Microloan lending partners and over 1,200 investments through SBA licensed Small Business Investment Companies (SBICs) for Fiscal Year (FY) 2022.”20 The agency’s total budgetary resources for FY 2022 amount to $44.25 billion, which represents 0.4 percent of the FY 2022 U.S. federal budget.21 HISTORY OF MISMANAGEMENT Throughout its history, various SBA programs and practices have generated negative news headlines and scathing Government Accountability Office (GAO) and Inspector General (IG) reports that have centered on mismanagement, lack of competent personnel and/or systems, and waste, fraud and abuse.22 From the 8a program23 to Hurricane Katrina24 to the more current COVID-19 (EIDL) program and PPP lending program,25 the SBA has managed to maintain its lending role even when repeated system failures have affected its distribution of funds. Congress has been somewhat responsive, pressuring the SBA to clean up fraud-related matters within its COVID-19 lending and grant programs.26 Repub- licans in the U.S. House of Representatives have gone farther, specifying that the SBA needs to improve transparency and accountability and deal with mission creep, the expansion of unauthorized programs, and structural and reporting deficiencies that have allowed mismanagement and fraud to reoccur, largely through massive supplemental appropriations.27 The SBA is led by an Administrator (currently a member of the President’s Cabinet) and a Deputy Administrator. Senate-confirmed appointees include — 749 — Small Business Administration the Administrator, Deputy Administrator, Chief Counsel for Advocacy, and Inspector General. Entrepreneurs and small businesses require limited-government policies that do not impede their risk-taking and growth. A future Administration can leverage and strengthen core SBA functions that have been fairly effective at reining in and calling attention to costly regulations and policies that are harmful to small businesses. This core advocacy function is aided both by statutory authority and by a network of small-business organizations and allies that support limited-gov- ernment policies.28 Moreover, an effective SBA Administrator and leadership team can work and advocate across the federal government to ensure that extreme regulatory poli- cies—or anticompetitive rules and actions that may favor big businesses over small businesses or international competitors over American small businesses—are dismantled or do not progress when proposed. MISSION CREEP AND ENLARGEMENT As noted, Republicans in the U.S. House of Representatives have evidenced con- cern about SBA mission creep and the need to make a sprawling, unaccountable agency more focused and operationally sound. Moreover, there is unease that the agency has moved from being open to any eligible small business searching for sup- port to being hyperfocused on “disproportionately impacted,” politically favored, or geographically situated small businesses and entrepreneurs. Today, initiatives aimed at “inclusivity” are in fact creating exclusivity and stringent selectivity in deciding what types of small businesses and entities can use SBA programs. For example, even though the SBA under President Donald Trump proposed a rule to remove all of the unconstitutional religious exclusions from its regulations29 to conform with Supreme Court decisions that have made their unconstitutionality clear, the SBA has not acted on the proposed rule and still uses religious exclusions in determining eligibility for business loans. Several other specific concerns include but are not limited to: l The SBA’s request to become a “designated voter agency” in response to President Biden’s executive order on “Promoting Access to Voting.”30 l The creation of duplicative channels and “pilot programs” for the delivery of business training rather than working through existing counseling partners. The programs are largely duplicative of private, state and local government, and educational system offerings.31 l A push to expand direct government lending.32

— 760 — Mandate for Leadership: The Conservative Promise ENDNOTES 1. H.R. 7953, Small Business Act, Public Law 85-536, 85th Congress, July 18, 1958, § 2, https://uscode.ecfr.io/ statutes/pl/85/536.pdf (accessed February 17, 2023), amended by H.R. 4877, One Stop Shop for Small Business Compliance Act of 2021, Public Law 117-188, 117th Congress, October 20, 2022, https://www.congress. gov/117/plaws/publ188/PLAW-117publ188.pdf (accessed February 17, 2023). 2. U.S. Small Business Administration, “About SBA: Organization: Mission,” https://www.sba.gov/about-sba/ organization (accessed February 19, 2023). 3. Michael Faulkender, Robert Jackman, and Stephen I. Miran, “The Job-Preservation Effects of Paycheck Protection Program Loans,” U.S. Department of the Treasury, Office of Economic Policy, Working Paper No. 2020-01, December 2020, p. 9, https://home.treasury.gov/system/files/226/Job-Preservation-Effects- Paycheck-Protection-Program-Loans.pdf (accessed February 16, 2023). 4. Kate Rogers, Scott Zamost, Karina Hernandez, and Jennifer Schlesinger, “As Pandemic Aid Was Rushed to Main Street, Criminals Seized on Covid Relief Programs,” CNBC, April 15, 2021, https://www.cnbc. com/2021/04/15/as-pandemic-aid-was-rushed-to-main-street-criminals-seized-on-ppp-eidl-.html (accessed February 16, 2023). 5. Kevin Brewer, “Bills Extend Statute of Limitation for Prosecuting PPP, EIDL Fraud,” Journal of Accountancy, August 10, 2022, https://www.journalofaccountancy.com/news/2022/aug/bills-extend-statute-limitation- prosecuting-ppp-eidl-fraud.html (accessed February 16, 2023). 6. Sacha Pfeiffer, “Virtually All PPP Loans Have Been Forgiven with Limited Scrutiny,” NPR, October 12, 2022, https://www.npr.org/2022/10/12/1128207464/ppp-loans-loan-forgiveness-small-business#:~:text=As%20 COVID-19%20shutdowns%20threatened,early%20days%20of%20the%20pandemic (accessed February 16, 2023). 7. U.S. Small Business Administration, “About SBA: Organization: SBA History,” https://www.sba.gov/about-sba/ organization (accessed February 19, 2023). 8. President Richard Nixon, Executive Order 11518, “Providing for the Increased Representation of the Interests of Small Business Concerns Before Departments and Agencies of the United States Government,” March 20, 1970, in Federal Register, Vol. 35, No. 56 (March 21, 1970), pp. 4939–4940, https://tile.loc.gov/storage-services/ service/ll/fedreg/fr035/fr035056/fr035056.pdf (accessed February 18, 2023). 9. S. 3331, Small Business Amendments of 1974, Public Law 93-386, 93rd Congress, August 23, 1974, https://www. congress.gov/93/statute/STATUTE-88/STATUTE-88-Pg742.pdf (accessed February 19, 2023). 10. S. 299, Regulatory Flexibility Act, Public Law No. 96-354, 96th Congress, September 19, 1980, https://www. congress.gov/96/statute/STATUTE-94/STATUTE-94-Pg1164.pdf (accessed February 19, 2023). 11. Maeve P. Carey, “The Regulatory Flex Act: An Overview,” Congressional Research Service In Focus No. IF11900, August 16, 2021, https://crsreports.congress.gov/product/pdf/IF/IF11900 (accessed February 18, 2023). 12. U.S. Small Business Administration, Office of Advocacy, “The Regulatory Flexibility Act,” https://advocacy.sba. gov/resources/the-regulatory-flexibility-act/ (accessed February 18, 2023). 13. H.R. 644, Trade Facilitation and Trade Enforcement Act of 2015, Public Law No. 114-125, 114th Congress, February 24, 2026, https://www.congress.gov/114/statute/STATUTE-130/STATUTE-130-Pg122.pdf (accessed March 21, 2023). 14. U.S. Small Business Administration, Office of Advocacy, “Advocacy Releases Trade Report,” December 21, 2018, https://advocacy.sba.gov/2018/12/21/advocacy-releases-trade-report/ (accessed March 21, 2023). 15. Associated Press, “Reagan Offers $994-Billion ‘Hard-Choices’ 1987 Budget,” Los Angeles Times, February 5, 1986, http://www.latimes.com/archives/la-xpm-1986-02-05-mn-4369-story.html (accessed February 18, 2023). 16. Testimony of Hon. Hector V. Barreto, Administrator, Small Business Administration, in hearing, The President’s FY 2006 Budget Request for the Small Business Administration, Committee on Small Business and Entrepreneurship, U.S. Senate, 109th Congress, 1st Session, February 17, 2005, p. 8, https://books.google.com/ books?id=UwD-2ICa8k8C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false (accessed February 18, 2023). See also Report No. 109-49, Summary of Legislative and Oversight Activities During the 108th Congress, Committee on Small Business and Entrepreneurship, U.S. Senate, 109th Congress, 1st Session, March 30, 2005, p. 21, https://www.congress.gov/109/crpt/srpt49/CRPT-109srpt49.pdf (accessed February 18, 2023). — 761 — Small Business Administration 17. Editorial, “The Small Business Administration Needs Reforming,” The Washington Post, December 18, 2016, https://www.washingtonpost.com/opinions/the-sba-needs-reforming/2016/12/18/b639fc4c-c159-11e6-8422- eac61c0ef74d_story.html (accessed February 18, 2023). 18. Robert Jay Dilger, Anthony A. Cilluffo, and R. Corinne Blackford, “Small Business Administration Funding: Overview and Recent Trends,” Congressional Research Service Report for Members and Committees of Congress No. R43486, updated July 14, 2022, Summary, https://sgp.fas.org/crs/misc/R43846.pdf (accessed November 18, 2022). 19. Ibid., p. 2. Emphasis added. 20. Press release, “SBA Announces End-of-Year Capital Benchmarks Showing Historic Support for Small Businesses Under Administrator Guzman,” U.S. Small Business Administration, December 13, 2022, https:// www.sba.gov/article/2022/dec/13/sba-announces-end-year-capital-benchmarks-showing-historic-support- small-businesses-under?utm_medium=email&utm_source=govdelivery (accessed February 18, 2023). 21. USASpending,gov, “Agency Profile: Small Business Administration (SBA),” data through September 29, 2022, https://www.usaspending.gov/agency/small-business-administration?fy=2022 (accessed February 18, 2023). 22. Testimony and prepared statement of Tad DeHaven, Budget Analyst, Cato Institute, in hearing, An Examination of SBA Programs: Eliminating Inefficiencies, Duplications, Fraud, and Abuse, Committee on Small Business and Entrepreneurship, U.S. Senate, 112th Congress, 1st Session, June 16, 2011, pp. 80–90, https://www. govinfo.gov/content/pkg/CHRG-112shrg88373/pdf/CHRG-112shrg88373.pdf (accessed February 18, 2023). 23. Sarah Westwood, “Feds Gave $400 Million in Contracts to Ineligible Firms,” Washington Examiner, September 28, 2014, https://www.washingtonexaminer.com/feds-gave-400-million-in-contracts-to-ineligible-firms (accessed February 18, 2023). 24. Keith Girard, “Inside the SBA’s Monumental Katrina Loan Scandal,” AllBusiness.com, https://www.allbusiness. com/inside-the-sbas-monumental-katrina-loan-scandal-11793824-1.html (accessed February 18, 2023). 25. Arnold & Porter, “CARES Act Fraud Tracker,” last updated January 2, 2023, https://www.arnoldporter.com/en/ general/cares-act-fraud-tracker (accessed February 18, 2023). 26. Jay Edwards, “Bipartisan Call to Crack Down on COVID-19 PPP/EIDL Fraud, Prosecute Fraudsters to the Fullest Extent of the Law,” WRNJ Radio (Hackettstown, New Jersey), October 21, 2022, https://wrnjradio.com/ bipartisan-call-to-crack-down-on-covid-19-ppp-eidl-fraud-prosecute-fraudsters-to-the-fullest-extent-of-the- law/ (accessed March 21, 2023). 27. See, for example, H.R. 7628, IMPROVE the SBA Act, 117th Congress, introduced April 28, 2022, https://www. congress.gov/117/bills/hr7628/BILLS-117hr7628ih.pdf (accessed February 18, 2023). 28. In varying degrees, almost every small-business advocacy organization and trade association engages with the SBA. During periods of hyper-regulatory activity fueled by an activist Administration, the small- business community engages more frequently with the Office of Advocacy through its roundtables and other mechanisms in the hope of warding off costly and intrusive rulemakings. A future conservative Administration can look to the following groups, among others, for support in advancing both SBA and broader policy reform: American Hotel and Lodging Association; Asian American Hotel Owners Association; Association of Builders and Contractors; Associated Equipment Distributors; Ceramic Tile Distributors Association; Consumer Technology Association; Family Business Coalition; Foodservice Equipment Distributors Association; Heating, Air-conditioning, and Refrigeration Distributors International; Independent Bakers Association; Independent Community Bankers Association; Independent Electrical Contractors’ International Association of Plastics Distributors; International Franchise Association; Metals Service Center Institute; National Association of Electrical Distributors; National Association of Manufacturers; National Association of Wholesaler-Distributors; National Fastener Distributors Association; National Marine Distributors Association; National Federation of Independent Business; National Ready Mix Concrete Association; National Small Business Association; Small Business and Entrepreneurship Council; and U.S. Hispanic Chamber of Commerce. Additionally, the small-business community is diverse and broad, and several key groups strongly support SBA lending but vigorously oppose tax, regulatory, and spending policies that are intrusiveness or costly to business. Conservative think tanks and taxpayer organizations like The Heritage Foundation, the Cato Institute, the National Taxpayers Union, Citizens Against Government Waste, the Taxpayers Protection Alliance, and Americans for Tax Reform (among others) also have a stake in an improved and cost-effective SBA.

— 753 — Small Business Administration COVID-19 Lending Program Accountability and Cleanup. A major immediate priority for the next Administration should be a final accounting and accelerated cleanup of fraudulent COVID-19 loan and grant activity. As noted by the SBA IG, “managing COVID-19 stimulus lending is the greatest overall challenge facing SBA, and it may likely continue to be for many years as the agency grapples with fraud in the programs….”40 The next Administration should: l Consider bringing in private-sector support and expertise to close out these programs. Forgiveness and fraud must be dealt with as swiftly as possible, and law enforcement officials must pursue fraud vigorously. Entities receiving PPP loans that did not meet eligibility for forgiveness must be required to pay back the money. For example, under the CARES Act,41 PPP loan applicants generally were eligible only if, together with all their affiliates, they had no more than 500 employees. Numerous Planned Parenthood affiliates self-certified eligibility for PPP loans during the initial wave of loans that were governed by the CARES Act’s size requirement. Many Senators and Representatives asserted that these Planned Parenthood organizations were ineligible because— considered together with their affiliates—they exceeded the maximum eligible size.42 The Trump Administration SBA notified several Planned Parenthood PPP recipients of its preliminary determination of their ineligibility and of SBA’s authority to take various actions against applicants that falsely certified their eligibility.43 To date, despite continued oversight attempts by Members of Congress,44 the SBA has taken no action on the Planned Parenthood loans other than to forgive them, and in 2021, it approved new PPP loans to Planned Parenthood affiliates.45 l Cooperate with ongoing congressional oversight efforts and determine whether SBA has authority to reverse the forgiveness decisions. If it does have that authority, the SBA should reverse the forgiveness decisions for the subject loans, reiterate its preliminary determinations of ineligibility, investigate the matter more thoroughly, and take all appropriate action when its investigation concludes. Regardless of whether it reverses its forgiveness, if its investigation uncovers evidence that Planned Parenthood affiliates or any other loan recipients knowingly misrepresented their eligibility in their applications, the SBA should make appropriate referrals to the Department of Justice. — 754 — Mandate for Leadership: The Conservative Promise Disaster Loan Program and Direct Lending. The SBA’s disaster loan pro- gram provides low-interest loans to personal, business, and nonprofit borrowers following a federally declared disaster. The program suffers from problems of coordination with Federal Emergency Management Administration (FEMA) disas- ter assistance. For example, disaster relief applicants have an incentive to avoid being approved for SBA disaster loans in order to increase the amount of FEMA assistance for which they are eligible. Moreover, the availability of disaster loans reduces individuals’ incentives to purchase disaster-related insurance. More than 90 percent of SBA disaster loans are loans to individuals such as homeowners, not to small businesses. In view of the challenges the SBA has experienced in its administration of this program, as well as the fraud and abuse in the EIDL COVID-19–related program and the IG’s concern that the systemic problems within this lending program undermine the SBA’s work, the next Administration should: l Work with Congress to assess the extent to which disaster loans should be offered by another agency rather than the SBA and explore private-sector channels for administering the loans. l Specify clearly that no new direct lending programs will be developed at the SBA. Eligibility of Religious Entities for SBA Loans. Current SBA regulations46 and SBA Form 197147 make certain religious entities ineligible to participate in several SBA loan programs. The Trump Administration proposed a rule that would remove the provisions on the ground that they violate the First Amendment.48 Subsequent Supreme Court decisions have made their unconstitutionality clearer.49 In an April 3, 2020, letter to Congress pursuant to 28 U.S. Code § 530D,50 the Trump Administration SBA advised that two such provisions violate the Free Exer- cise Clause of the First Amendment and that it therefore would not enforce them. On January 19, 2021, the Trump Administration SBA proposed a rule to remove all of the unconstitutional religious exclusions from its regulations.51 The SBA has not acted on the proposed rule. A similar religious exclusion once appeared in the regulation governing eligibil- ity for SBA Business Loan Programs,52 but it was removed in a June 2022 final rule that noted tension with the First Amendment and Supreme Court precedent.53 That final rule announced that the SBA would nonetheless continue to make religious eligibility determinations for business loan applicants to comply with putative Establishment Clause requirements,54 but Supreme Court precedent and Office of Legal Counsel memoranda refute the notion that large government-backed loan programs raise any Establishment Clause concerns.55