Holes are being filled in the story of the controversial appointment of Rich Cordray as director of the new Consumer Financial Protection Bureau (CFPB)
The new director himself has wasted no
time getting to work after waiting nearly six months for the opportunity. He immediately released a post on the CFPB
website in which he summarized the work the headless agency has accomplished
over the past six months and an explanation of why the absence of a director
was handicapping it. "In particular," he
said, "we lacked the ability to supervise financial institutions other than big
banks - like nonbank mortgage lenders and servicers, and payday lenders. Many
of these institutions had no regular federal oversight in the run up to the
financial crisis. They led a race to the bottom that pushed aside responsible
businesses, including community banks and credit unions, and greatly harmed
consumers. We can now exercise the full
authorities granted to us under the law and begin to supervise these nonbanks."
This morning the Bureau, along with a
rather unassuming little video in which Cordray invites consumers to tell the
agency their stories and ask for help where needed, CFPB announced the formal
launch of the non-bank supervision program Cordray alluded to on Wednesday. Oversight has, until now, been under state and
local supervision which ranges from rigorous to non-existent which means that
the most egregious practitioners of consumer abuse flock to the states on the
low end of that scale.
CFPB will begin this supervision in
phases with certain markets, i.e. mortgage companies (originators, brokers,
servicers, loan modification and foreclosure relief servicers) payday lenders
and private education lenders falling under the regulations immediately. For other businesses such as debt collection,
credit reporting, auto financing and money services, CFPB may opt to supervise
only "larger participants" once that term is defined. This has already been the subject of public
comment and the Bureau has received thousands from trade and consumer groups
and various other regulators.
The Dodd-Frank Act also gives CFPB authority to supervise any nonbank that
it has a reason to determine is engaging or has engaged in conduct that poses
risks to consumers with regard to consumer financial products or services. The
CFPB will be publishing rules setting out procedural guidelines for
implementation of this provision.
In the meantime the controversy over Cordray's appointment itself is roiling
Washington. President Obama first
nominated Cordray, former Attorney General of Ohio and CFPB's
director of enforcement on July 17. He
was chosen after Senate Republicans made it clear that they would not confirm the
appointment of Elizabeth Warren who had conceived the idea of the Bureau and
might not confirm anyone at all based on their objection to the existence of
the CFPB itself despite its authorization by the Dodd-Frank Wall Street Reform
Act.
Cordray's name has never been brought to an up or down vote but in the
current Senate, where a 60 vote majority is now required to bring any bill to
the floor, he did receive a simple majority in the "cloture" vote. Tapes are now endlessly running on television
with Republicans explaining at that time that, while Cordray was more than
qualified, no one would be acceptable for the position.
A recess appointment is set out in the Constitution for periods when
Congress is not in session and it has been widely used throughout history. Obama has used it 31 times in three years
(four of these occasions occurred yesterday as he appointed three people to the
National Labor Relations Board who had also been waiting for months, leaving
the Board without a quorum). Reagan used
the device 243 times, George H.W. Bush 77, Clinton 171, and George W. Bush 171.
Republicans however, charge that this was a grab for power. Even though the Senate sort of recessed on
December 22, as they have over the last few vacations they have continued to
hold sessions every few days in which a Senate member gavels an empty chamber
to attention, declares Congress open for business and adjourns seconds
later. The sole reason for this is to
deter presidential recess appointments.
It may well be that this somewhat minor appointment may be headed for a
major court battle - and the intriguing part is that almost any citizen can
start it. According to some legal
authorities, anyone who can claim injury from any action taken by CFPB after
this appointment can challenge the legality of the Bureau's action on the basis
that its Director is an illegal appointment.
More fun and games for election year.