New bill crafts tougher guidelines for foreign investment in US

Key Points
  • Sen. John Cornyn, R-Texas, and Rep. Robert Pittenger, R-N.C., are set to unveil a new bill ratcheting up scrutiny on foreign investments in the United States.
  • The bill seeks to broaden the breadth of investments that would require an official review, according to a draft and talking points obtained by CNBC.
New bill proposes tougher rules on foreign investments
New bill proposes tougher rules on foreign investments

Sen. John Cornyn, R-Texas, and Rep. Robert Pittenger, R-N.C., are set to unveil new legislation ratcheting up scrutiny on Chinese investments in the United States, according to a draft of the text and talking points obtained by CNBC and verified by congressional aides.

Such transactions are currently reviewed by the Committee on Foreign Investment in the United States — known colloquially as CFIUS — when deemed necessary in the interest of national security. The committee is comprised of nine relevant agencies that govern the financial industry.

The heightened scrutiny follows a surge of Chinese acquisitions of US companies, which in 2016 hit a record $65 billion – more than six times the total of the previous year, according to data from Dealogic.

"These are dramatic increases, particularly when you consider many Chinese investments are coordinated, state-driven efforts to target critical American infrastructure and disrupt our defense supply chain requirements," says Rep. Robert Pittenger (R-NC), a sponsor of the bill.

The bill has been in the works for much of 2017, and the figurehead of the inter-agency review committee, assistant secretary of the Treasury Heath Tarbert, was confirmed in late September. It is expected to be unveiled next week with bipartisan support – on the House side, co-sponsored by Pittenger and Rep. Devin Nunes (R-Calif.), with Democrats Rep. Denny Heck (D-Wash.) and Rep. Dave Loebsack (D-Iowa), according to a GOP aide.

"The reforms in the bill are laser-focused on national security concerns and represent a measured approach to the problem," according to talking points circulated by the bill's sponsors. "The bill recognizes the need to preserve as much certainty and predictability for investors as possible."

Yet some of the language appears purposely broad, to expand the transactions that require a review and allow for a modernization of the rules as new and unpredictable scenarios arise.

Among the transactions included in the bill's purview: Joint ventures, minority position investments and passive investments where the investor doesn't exercise control. It would also cover real estate transactions by foreign nationals proximate not only to military bases, but also near "property of the United States Government that is sensitive for reasons relating to national security," a characterization in the bill text that would give its enforcers broad latitude to determine which locations qualify.

For instance, a Chinese or Russian national renting an apartment near a regional Federal Reserve bank might be viewed as a national security concern under the new guidelines.

The bill would also beef up the national security factors the group considers, and add restrictions aimed to help the U.S. maintain a technological advantage over countries seen as posing threats. The Department of Defense would be instructed to consult with various national security and financial agencies, as well as the business community, to assemble a list of technologies that should fall into this category.

In June, Commerce Secretary Wilbur Ross told a gathering of executives that joint ventures and technology were of particular concern to the administration as it sought to modernize the investment review process.

"To me, one of the real dangers is not the giant companies, but two young kids in a garage somewhere that are onto some new technology," Ross said, according to transcripts of the event. "And [CFIUS] isn't set up very well to deal with that."

In addition to Ross, Defense Sec. James Mattis and Attorney General Jeff Sessions — as well as leaders of the intelligence community — have all this year voiced the need to update the CFIUS review process to reflect modern priorities.

From 2005 to 2007, the CFIUS committee reviewed just four transactions, says Mark Plotkin, a partner at Covington & Burling, who estimates the number reviewed in 2017 is approaching 100.

The legislation would not only expand the purview of the regulatory panel, it would also lengthen the window of review and also introduce a "filing fee" of up to $300,000. Those are details that, when combined, could have a chilling effect on inbound investments, says Tony Fratto, a Treasury official in the Bush Administration and founding partner of Hamilton Place Strategies, who recently published an article extolling the benefits of Lenovov's acquisition of IBM's personal computer business.

"Foreign investment is enormously beneficial to the U.S. economy, but it's very easy for some domestic interests to cloak protectionism in the guise of national security," said Fratto. "If that's the outcome, it would be a big mistake. It would weaken our own economy and open a huge hole for other countries to run through."

Earlier this year, a drafting session took place between the bills two lead sponsors — Cornyn and Pittenger — alongside Treasury Secretary Steven Mnuchin and Senate Banking Committee chair Mike Crapo and House Financial Services Chair Rep. Jeb Hensarling of Texas. Treasury staff were said to weigh in on multiple versions of the draft.

"Having been briefed on earlier versions of the proposal, I think that the current draft is substantially improved," Covington's Plotkin tells CNBC. "It clearly reflects careful coordination and discussion among various stakeholders in the Congress and the Administration."

Though the bill does not mention China by name, its timing has the potential to stir tensions with President Xi Jinping ahead of President Trump's visit in November. Past talks between the two countries have seen China ask the US to make the process for foreign direct investment easier, whether through technology purchases or outright acquisitions. The U.S., according to two Obama Administration trade officials, declined.