CFPB Report
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On October 15, The Wall Street Journal published an op-ed piece by Congressmen Kyrsten Sinema (D-AZ) and Randy Neugebauer (R-TX) entitled “Depoliticizing Elizabeth Warren’s Pet Project,” about, of course, the CFPB. The article criticizes the CFPB’s single director structure, explaining that was not always the intention of policymakers. In 2007, they explain, then-Professor Warren proposed a Financial Product Safety Commission governed by five bipartisan commissioners. The June 2009 Obama Administration white paper that led to enactment of Dodd-Frank, they note, advocated a consumer financial protection agency led by a five-person bipartisan commission and that both Senator Dodd and Congressman Frank supported that concept. However, they say, as the Senate version of the bill proceeded, a political decision was made to centralize the agency’s power in a single individual, solidifying the policy positions of the political party that controls the White House. The piece then argues for a commission structure at the CFPB. Of course, a new conservative pro-business President could appoint a CFPB Director who would rescind many of the actions of Director Cordray. On November 17, the American Banker published a piece by Brian Knight, the Associate Director for Financial Policy at the Milken Institute’s Center for Financial Markets, explaining why a commission structure may be in the CFPB’s best interest. Mr. Knight suggests that a commission structure would bring broader expertise (e.g. in technology) than the current Director’s limited expertise in enforcement. It also would bring continuity and stability, avoiding the whipsaw effect of a new Director changing direction and rolling back regulations written under Director Cordray. Senator Elizabeth Warren (D-MA) has suggested that such a roll-back would not be upheld by courts as it would be deemed arbitrary and capricious because it would be without factual basis, but Mr. Knight suggests that facts can be garnered to support a roll-back, particularly facts regarding the effect of regulations on limiting access and harming innovation. Finally, he suggests that a commission structure would be more consistent with democratic representation and would better reflect the political diversity of the country, which may be particularly important in the case of an agency that has such a broad delegation of authority from Congress. Speakers with diverse voices should have a seat at the table, he suggests.
Partner, Baker Hostetler LLP
David Rivkin is a member of the firm's litigation, international and environmental teams and is co-leader of the firm's national appellate practice. He has extensive experience in constitutional, administrative and international law litigation and has been involved in numerous high-profile cases. With his prior experience in the government sector, David draws on a wealth of knowledge when providing compliance advice to companies and handling enforcement proceedings before government agencies on issues arising out of multilateral and unilateral sanctions, the Foreign Corrupt Practices Act (FCPA), anti-boycott issues, bankruptcy and financial fraud matters, and environmental and energy issues.
David has developed and implemented legislative, regulatory and litigation initiatives for two presidential administrations. Over the years, he has published hundreds of articles, op-eds, book reviews and book chapters on a variety of international, legal, constitutional, defense, arms control, foreign policy, environmental and energy issues for various newspapers and magazines, including The Wall Street Journal, The Washington Post, The New York Times, USA Today and The Los Angeles Times, and has been a frequent commentator and guest on TV and radio shows including ABC, CBS, NBC, CNN, Fox News, NPR and PBS.
Retired, Winston & Strawn LLP
Jerry Loeser is of counsel in the Chicago office of Winston & Strawn, and his practice focuses on banking regulation. He has extensive experience in counseling financial services clients on, among other things, bank acquisitions, privacy, financial modernization, the USA PATRIOT Act, Basel II and III, lending limits, capital, trust, affiliate transactions, and Federal Reserve, OCC, FDIC, and CFPB regulations.
Prior to working at large corporate law firms, Jerry was chief regulatory and compliance counsel for Comerica Bank, where he also served as senior vice president and deputy general counsel and as general counsel of its retail bank division. Before that, he served as chief regulatory in-house counsel at Wells Fargo & Co. Jerry began his legal career advising the Board of Governors of the Federal Reserve System in Washington, D.C.