Today, the Senate passed, by a 60-39 vote, new financial reform legislation that includes a number of new criminal provisions that impact the derivatives market, secondary swaps and commodity swaps, ratings agencies, municipal advisors, margin lenders, lenders in general, and traders in general. In some instances, the bill creates brand new criminal provisions or makes activities involving those subject to it applicable to existing criminal laws. Furthermore, this bill allows unelected officials to enact new, broad regulations for the financial sector, many of which will be directly tied to criminal enforcement provisions, and thus will be criminally punishable. Perhaps most troubling, the overwhelming majority of the criminal offenses contained in this bill lack adequate mens rea, or criminal intent, requirements and, consequently, will fail to protect innocent or inadvertent actors from being criminally prosecuted or punished.
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