Why the Republican CFPB Arguments Are Wrong

It’s been almost two years, and the GOP still refuses to approve a Consumer Financial Protection Bureau (CFPB) director without a significant overhaul of the agency. Check out Adam Serwer at Mother Jones as well as Jennifer Bendery at Huffington Post for more on this story. Forty-three Republican Senators signed a letter last week, one that is almost exactly the same as the one they signed in July 2011, blocking Cordray’s nomination because they want major legislative changes to Dodd-Frank and the CFPB.

As congressional scholar Thomas Mann told Jonathan Cohn, this should be viewed as a form of modern day nullification. Dodd-Frank is the law of the land. Congress legitimately passed this law containing a CFPB designed to have certain features. Even though the GOP doesn’t like it doesn’t mean they can sabotage it or prevent it from working. And the CFPB needs a director to work.

The letter features a high-level complaint along with three specific changes they want. Beyond the letter, these three points are so common on the right that it is probably useful to point out that they are wrong. This is drawn from Adam Levitin’s Congressional testimony on the matter as well as other CFPB analysis over the years. Bold is from the letter.

“…we have serious concerns about the lack of congressional oversight of the agency and the lack of normal, democratic checks on its sole director, who would wield nearly unprecedented powers.”

The CFPB must regularly make reports and appear before Congress. The CFPB is subject to a veto of its actions by other financial regulators as represented by the Financial Stability Oversight Council (FSOC), a completely unique accountability feature that does not apply to any other regulators. The CFPB is subject to an annual audit by the GAO, which is then turned over to Congress, another unique form of accountability. It is also subject to the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), a feature of OIRA that doesn’t apply to other financial regulators.

The CFPB is also limited in its actions by the text of Dodd-Frank itself. It can’t mandate the offering of any financial product, force the extension of credit, regulate non-financial businesses, require businesses to offer products or credit, impose usury caps, or force consumers to take products. See, among other places, Section 1027 of Dodd-Frank for further restrictions. If you’d like to go further, you can see a list of 19 ways the CFPB is accountable here. Rather than having unprecedented powers, this agency is as accountable and has more checks than any other federal financial regulator.

“We again urge the adoption of the following [three] reforms:

1. Establish a bipartisan board of directors to oversee the Consumer Financial Protection Bureau.”

The Office of the Comptroller of the Currency (OCC) and the former Office of Thrift Supervision (OTS), both federal financial regulators, both have single directors, so this is neither odd nor unprecedented. Some other agencies have boards, like the FDIC. There are some reasons to use one model over the other, but the GOP is not making a clear case for why a board of directors is superior to a sole director, much less a case sufficient to justify nullifying parts of Dodd-Frank. A single director encourages direct action, streamlined agency, and more accountability. Given what we’ve seen in the past 10 years with subprime, action is better than inaction.

Five directors can blame each other when things go wrong. Given the concern over accountability in the GOP’s letter, a single director strikes me as the right way to go. There’s more on oversight here.

“2. Subject the Bureau to the annual appropriation process, similar to other federal regulators.”

Other federal banking regulators have their own independent budgets and are not subject to the appropriations process. The OCC, the FDIC, and the former OTS get their budgets from assessments from the financial institutions they regulate. The CFPB gets its budget from the Federal Reserve in order to avoid the capture that comes with being dependent on industry assessments. However, unlike those institutions, the CFPB has a statutory budgetary cap of 12 percent of the Federal Reserve’s budget.

Congress consciously decided to fund the CFPB this way to prevent them from subjecting the important work that needs to be done to the annual appropriations process. This is normal in financial regulation and appropriate for the CFPB. You can read more about how this funding is designed to take the political economy of regulation into account here.

“3. Establish a safety-and-soundness check for the prudential regulators.”

There is already a safety-and-soundness check at the OCC, which, through the FSOC, can vote on vetoing CFPB actions. Beyond that, safety-and-soundness is often synonymous with profit-making. The broken servicing model at the largest banks, for instance, is an abuse-ridden disaster for borrowers and lenders, but they are profitable activities that, de facto, boost the banks’ safety-and-soundness via profits. The CFPB is meant to be a balance against this regulatory impulse. This was debated at length during the Dodd-Frank process, and Congress still decided to mandate the CFPB with its current mission.

Immediately after Obamacare passed, conservative David Frum argued, in a now famous piece called “Waterloo,” that the GOP could have turned the bill into one far more favorable for conservatives with just a few GOP votes. But they didn’t, and now they are stuck with a law they hate. The same dynamic is true for Dodd-Frank. If a dozen Senators and House GOP members decided to make a bipartisan bill in 2009, they could have likely gotten a CFPB that they would like better. But they didn’t. And now they want to retroactively try and get that bill they chose not to enact.