CFPB Turns Two with a Bang – What Now?

The Consumer Financial Protection Bureau (CFPB or the Bureau) hit its second birthday this week in grand style. Has it really been just two years? I don’t believe I would be in minority in feeling CFPB has been around much longer given all the Dodd-Frank rules it has cranked out and all the press it has received over the controversial recess appointment of Rich Cordray in January 2012. But, who’s counting, right?

Speaking of Rich Cordray, his recent formal Senate confirmation was perhaps the biggest birthday present of all to the Bureau. Majority Leader Harry Reid (D-NV) had to threaten the Senate with the “nuclear option” (a change of Senate rules to allow “majority” rule) over several stalled Obama nominees to key administration positions.  The Senate was close to DEFCON 1 before a handful of Republicans told Harry to take his finger off the button because they would allow votes on the nominees. Cordray was the first nominee to get confirmed. House and Senate republicans have been pressing for structural changes to CFPB pretty much after the ink was dry on the Dodd-Frank Act. Senate Republicans were united in 2012 and 2013 that no CFPB Director nominee would be confirmed unless the CFPB became a commission (like the FTC or FCC) and received its appropriations from Congress and not the Federal Reserve. Two federal courts even called into the question the “recess” appointment of Cordray as they ruled that President Obama’s recess appointments to the National Labor Relations Board were unconstitutional. The Supreme Court even agreed to hear the case in October. All this legal uncertainty is fairly moot given the Senate’s confirmation (and the Supreme Court’s recent proclivity to threading the needle on touchy constitutional issues).

But, enough about history. What does the future hold for the Bureau? I don’t buy quite into the hype by some that the Bureau is coming out swinging against banks now that Cordray has lost his “recess” tag. I expect the Bureau will be sensitive and responsive to the concerns from Capitol Hill. It will certainly be responsive to the Government Accountability Office (GAO) as it begins to examine its data collection practices. As requested by Sen. Mike Crapo (R-ID), ranking Republican on the Senate Banking Committee, GAO will review identity, account and transaction data the Bureau collects during its supervision of banks or through other direct request. The Bureau claims that the transaction data is de-linked with any personally-identifiable information. We’ll see what GAO comes up with (presumably in 2014).

The Bureau also released its updated regulatory agenda through the end of the year. Expect to see a notice of proposed rule-making on extending Reg E protections to general-reloadable prepaid cards in addition to new proposed rules on debt collection and payday loans. I suspect CFPB will continue to tinker with the Dodd-Frank mortgage rules to take effect in January 2014. It certainly doesn’t want to be tagged with tanking the housing market if no one can get a loan. If you really want to peer into CFPB’s future, follow its consumer complaint portal progress reports. CFPB has stated that the trends it sees through the complaint portals will drive its enforcement and regulatory agenda.

Industry and CFPB need to work together more than ever to ensure balance is struck between consumer protection and a healthy financial services industry. Consumers are hurt if the pendulum swings too hard one way. Keep checking with this blog for progress reports. 

Handicapping the CFPB in 2013

2013 began with a bang for the Consumer Financial Protection Bureau. In January, the Bureau released several mortgage-related final rules as mandated by the Dodd-Frank Act. The mortgage industry has been in a mad rush to put together webinars to detail ability-to-repay, appraisal reform and high-cost mortgage requirements. It is not an exaggeration to note these mortgage rules consumed much of the Bureau’s bandwidth in its brief existence.

So, just as the Bureau comes up for air, it gets rocked by an somewhat related court case concerning another federal agency, the National Labor Relations Board. How are the two agencies connected by this court case? Let’s hit the rewind button.

It’s no deep Washington secret that current presidents are having a more difficult time getting various federal nominees through the US Senate. It’s also no secret that modern presidents have utilized “recess” appointments more and more (as permitted by the U.S. Constitution). Enter the controversial CFPB and the quest to have the Senate confirm a Director as required by Dodd-Frank. The Bureau existed for almost 18 months without a confirmed Director. Elizabeth Warren ran the CFPB during its incubation period as a special advisor to the President. Having a director in place was important to the Bureau because it would assume certain authority (such as the authority to supervise non-bank entities like debt collectors and credit bureaus) only with a confirmed Director.

It became very apparent to President Obama and others the Senate would not have 60 votes necessary to bring the nomination of Elizabeth Warren to the Floor for a vote. In 2011, President Obama nominated former Ohio Attorney General Rich Cordray to be the CFPB Director. The Senate Banking Committee approved Cordray’s nomination out of committee, but many Republican senators wanted to consider structural changes to the CFPB before moving on Cordray’s nomination. For example, altering the Bureau from control by a single Director to a five-member commission. And making the Bureau subject to annual Congressional appropriations versus receiving its funding from the Federal Reserve. Senate Democrats believe the Bureau is just fine as Dodd-Frank created it, so Cordray’s nomination was at a stalemate in the late stages of 2011.

On January 4, 2012, President Obama rolled the dice. Believing the Senate was in “recess,” the President appointed Cordray as the director of the CFPB. At the same time he made recess appointments of three nominees to the NLRB. The legal community hit an uproar shortly thereafter on both sides of the issue. In April 2012, a Washington state-based company, Noel Canning, was the lead plaintiff in the case against the Administration’s NLRB recess appointments. In January of this year the U.S. Circuit Court of Appeals (DC) unanimously ruled against President’s Obama recess appointments to the NLRB.

The three-judge panel declared the Senate remained in “pro forma” sessions when the appointments occurred and was not technically in recess. The Obama Administration announced its intention to appeal the ruling to the U.S. Supreme Court. The NLRB decision called into question the validity of Richard Cordray’s recess appointment to be the CFPB Director. The Cordray question is being addressed in a separate lawsuit still pending before another court. On January 24, 2013, President Obama announced his decision to re-nominate Cordray as CFPB Director subject to Senate confirmation. Congress will consider legislation again in 2013 to alter the Bureau’s structure (five-member commission as opposed to a single director) and subject the Bureau to annual Congressional appropriations.

So, where does this leave the CFPB in 2013? I doubt the Bureau will be affected much at all in the short term. It will continue on with its examination of banks and non-banks. It will take some high-profile enforcement actions. It will put forth some challenging proposed rules on overdraft protection and general purpose prepaid cards. Even if the district court decides Cordray’s appointment was unconstitutional sometime in 2013, the appeals process could take years. Will the court strike down all the Bureau actions and rules taken while Cordray served as Director? And, what of the fate of Cordray? This is the biggest unknown. Will the Senate confirm him without any changes to the Bureau itself? Does he leave at the end of 2013 as his recess appointment expires and Obama puts forth another nominee?

If you have answers to these questions, go buy a lottery ticket quickly.

CFPB Update

The 112^th Congress may be winding down, but the Consumer Financial Protection Bureau (CFPB) keeps chugging. Before Congress scurried off home for electioneering in September, CFPB Director Richard Cordray paid a visit to both the Senate Banking Committee and House Financial Services Committee for a biannual update on the Bureau’s activities. House Financial Services Committee Chairman Spencer Bachus (R-AL) even quipped that Director Cordray “made some news” during his appearance on September 20. Yes, it’s news when an Administration official appears before Congress and says something of interest.

The Consumer Financial Protection Bureau is poised to
issue two important proposed rules on overdraft
protection and prepaid cards.

What did Cordray say of interest? At issue is the 2009 CARD Act’s “ability to pay” rule. The Federal Reserve Board had responsibility for the implementing this provision of the CARD Act (the CFPB had not existed at this time). The Board created a uniform standard requiring all consumers to demonstrate “an independent ability to repay.” The Board’s rule took effect October 1, 2011 and almost immediately Congress began asking questions on the rule’s impact on stay-at-home spouses and their ability to obtain credit. Dodd-Frank gave the CFPB rule-making authority over Regulation Z (Truth in Lending). At another House Financial Services Committee hearing during the summer, Gail Hillebrand of the CFPB did not appear very sympathetic to opening up the rule again. But Cordray believe enough evidence had been produced to warrant a new rule that would disadvantage stay-at-home spouses who may ample “household income” to secure credit. CFPB will likely issue the revised rule for public comment later this year or early 2013.

Senate and House leaders also expressed concerns with CFPB’s final rule on international remittance transfers (Sec. 1073 of Dodd-Frank). Several House members wrote Cordray in August asking for a delay in the effective date (February 2013) while the CFPB studies its impact on consumers. The CFPB’s rule on international remittance transfers required several disclosures to be made to consumers including exchange rates and fees charged by other entities and taxes to be charged by foreign governments. The only relief CFPB has given to exempt those financial institutions providing less than 100 remittances annually from the new disclosure rules. I do not expect this will be the last we hear of this issue. How far will consumer choice be limited as institutions exit the business because compliance requirements are not financially viable? Stay tuned.

Looking ahead to 2013, the CFPB is poised to issue two important proposed rules on overdraft protection and prepaid cards. EFTA has provided comment to the Bureau on both subjects in 2012 as part of an Advanced Notice of Proposed Rule-Making. Gov. Mitt Romney also called out the Bureau for slow progress on issuing rules on qualified mortgages. Expect some busy beavers in the hallways and offices of the CFPB in the weeks and months ahead.

Director Cordray's Coming-out Party

Late last month I attended the Consumer Bankers Association conference where Consumer Financial Protection Bureau Director Richard Cordray gave his first speech before a large industry group.  Unlike his pseudo-predecessor Elizabeth Warren, both he and his remarks came across as reasonable and measured.

Mr. Cordray stated that the overarching goal of the Bureau is to make sure that the consumer is protected no matter what kind of financial product or service is being offered. He focused on the need for clear and concise disclosure and told his audience of mostly bankers that the Bureau will seek to level the playing field between banks and non banks. This will be accomplished by among other things, requiring simple and clear communication and disclosure to the consumer.

His most encouraging remark came in response to a question about bank profitability when he answered,  "Banks not only have a right to profit, but the market won't work without it".  Would that other members of this Administration believe, or at least say something similar.

To those involved in the financial services industry Director Cordray's presentation was more Mom and apple pie than anything. Which in itself is a nice break from Professor Warren. Time will tell if his actions ( or should I say enforcement actions) match his words.

Given the political genesis of the Bureau, there are likely to be big headlines and high profile CFPB enforcement actions in advance of the November elections. The timing on this will be purely coincidental.

Dueling Piano Players

Anyone who has been to New Orlean's French Quarter, San Antonio's Riverwalk, or any of a number of other tourist traps, er, destinations, is familiar with the dueling piano players. These are musicians who took Billy Joel's Piano Man way too seriously. They set up shop with a couple of grand pianos in bars and play a series of pop songs, show tunes, naughty nursery rhymes and other ditties that well liquored tourists sing along to. It's a non-techno version of karaoke.

So we had dueling piano players this week in the Senate Banking Committee following the Democrat's unsuccessful vote to break the Republican's filibuster over the nomination of Richard Cordray to head the new Consumer Financial Products Bureau.

First up was the ever intemperate Dick Durbin (D, IL) who chairs the Banking Committee. Sen. Durbin decried the Republican's successful filibuster of Mr. Cordray's confirmation. In full throat and a belligerent baritone Sen. Durbin rounded up the usual suspects on which to pin the blame: "...the big banks and their backers in Congress have done all they can to hamstring [the CFPB] and prevent it from having the tools and leadership necessary to be an effective consumer watchdog."

Not so! Not so! mellifluously sang Alabama's Richard Shelby, the ranking Republican on the Committee chaired by Sen Durbin. On the Senate floor he sang a woeful tale of a Bureau with nearly unlimited power, funding that amounts to a virtual unchallenged blank check, and a Titan director to whom lesser gods would answer.

"It should be common sense that the more power an agency has the more accountable it needs to be," sang out Sen. Shelby.

But in a second verse, Sen. Durbin accused his opposite number and the Republican conference of voting "to protect the status quo rather than...putting consumers interests first."

Not to be outdone Sen. Shelby's baleful rejoinder told of the need to broaden the governance of the Bureau by replacing the sole Director with a Board of Directors and to make the funding of the agency more transparent and less CIA-like. " In light of the reasonableness of the reforms we have requested, the question remains: why are the Administration and the [Democrats] so insistent that the Bureau be unaccountable?" he crooned. 

I think I can answer that. The Administration and the Senate Majority have little faith that the American people know what's in their best interest. They believe that consumers need a deus ex machina, on standby 24/7, to swoop down and save us from ourselves.

I'll go even further. I think the CFPB shows how little respect some in Congress have for the American people and, frankly, for the institution of the Congress itself. By their design of the agency and by their attempt to jam Richard Cordray through the confirmation process, they are telling American financial consumers and their elected representatives, we're going to put a bunch of smart people in a room and they're going to figure all this out. Don't bother your pretty little heads about it.

Well, we don't need more regulation and we don't necessarily need less regulation. We need the right regulation. And a bunch of smart people unanswerable to the institution of the Congress and led by a Director answerable to no one ain't it.

And the boys and girls gathered round Sen. Shelby's keyboard don't get a pass here. Granted, there's nothing more limiting than being the minority party in the House or Senate, but they're in the minority right now for a reason. They were sent to Washington to govern, not to tickle their keys.  This he sang-she sang, dueling piano routine gets old fast.

So pardon me if I don't stick around. I'll do my drinking elsewhere. Maybe a little dive where there's an old guy with 12 teeth and a beat up Gibson belting out the blues from somewhere between his gut and his heart.

That's my opinion. What's yours?