Financial reform is now being … reformed, and consumers could feel some of the proposed changes almost immediately. So what do the changes mean for your money? Let’s take a closer look, but first, a quick history lesson.
In 2008, in the wake of the economic collapse, Congress passed the most extensive financial reform package since the Great Depression. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 was designed to give consumers more power and to keep banks from making the kinds of risky decisions that helped lead to the housing bubble.
Last week, House Republicans voted to undo many of the reforms put in place by Democrats in 2010. On a party-line vote, House Republicans passed the Financial Creating Hope and Opportunity for Investors, Consumers and Entrepreneurs Act, or the Financial Choice Act.
The Choice Act faces an uncertain future in the Senate. But Republicans have another path to enact much of what’s in the Choice Act.
The Senate Doesn’t Have to Act for Changes to Be Implemented
This week, the Treasury Department is releasing its own report on reforming financial reform, mandated by an executive order signed in the first few days of Donald Trump’s presidency. Many Choice Act provisions can be accomplished via administrative orders from Treasury, so it’s worth understanding the main tenets of the bill.
In general, Republicans have argued that Dodd-Frank rules have hurt banks, particularly smaller banks, which has reduced competition, ultimately hurting consumers.
“We will make sure there is needed regulatory relief for our small banks and credit unions, because it’s our small banks and credit unions that lend to our small businesses that are the jobs engine of our economy and make sure the American dream is not a pipe dream,” Rep. Jeb Hensarling, (R-Texas), the driving force behind the bill, said in a statement.
Critics say the bill would recreate the pre-bubble atmosphere that led to widespread abuse and economic collapse.
“This legislation releases every bloodthirsty, greedy Wall Street super-predator back onto the American people to feast on our misery, like they did pre-Dodd-Frank,” said Rep. Gwen Moore (D-Wisconsin) during floor debate.
The bill repealing Dodd-Frank is more than 600 pages long. Many are devoted to back-end bank rules, such as how often institutions must pass “stress tests” to prove they aren’t at risk. But the bill also includes measures consumers would feel pretty immediately.
Consumer Financial Protection Bureau Weakened
Should the Dodd-Frank repeal efforts succeed, consumers would feel the impact most immediately via changes to the Consumer Financial Protection Bureau.
The law would essentially dismantle the CFPB and reconstitute it with far less power as the Consumer Law Enforcement Agency. Instead of having a single leader, it would have a commission — similar to how the Federal Trade Commission operates. Critically, it would not have a dedicated source of funding. Both steps would make the agency more subject to political whims.
The law also prevents the consumer agency from taking enforcement actions against unfair, deceptive or abusive acts and practices — a catch-all category that generally forbids fraudulent activity — significantly narrowing the agency’s ability to file lawsuits on behalf of consumers.
Public Complaint Database Targeted
The CFPB’s consumer complaint center is perhaps the most public manifestation of financial reform. As of March, 1.1 million complaints had been filed, each one requiring an answer from industry. The database is public, so it serves as a kind of search engine for consumers who want to learn about the background of the financial companies with which they do business. It’s a tool that CFPB employees and other regulators use to find potential patterns of abuse. Banks have complained that responding to every complaint — some are indeed frivolous — is a costly burden. More generally, critics say it’s unfair to publish unverified complaints against companies.
“Is the purpose of the database just to name and shame companies? Or should they have a disclaimer on there that says it’s a fact-free zone, or this is fake news? That’s really what I see happening here,’’ said Rep. Barry Loudermilk (R-Georgia) during hearings on reform that made clear elimination of the database would be a priority.
Single-Agency Regulation Changed
Prior to Dodd-Frank, consumer protection was split among 10 banking regulators. Many, like the Office of the Comptroller of the Currency, were unfamiliar to consumers. In some cases, such as with private student loan issuers or payday lenders, it wasn’t clear if any banking regulator had jurisdiction. The CFPB’s one-stop shopping to get redress — often through the complaint database — made obtaining answers easier. Through its various enforcement efforts, the bureau has returned $12 billion to 29 million consumers. Under the Choice Act, many enforcement responsibilities would be returned to their original regulators.
Payday, Arbitration, Auto Lending Rules Rolled Back
A host of CFPB consumer protection efforts would be dialed back or shut down by the Choice Act.
After years of study, the agency published rules last year to regulate the payday and title loan industries. Those rules would be eliminated. The Choice Act contains a provision that prevents any federal agency from “any rulemaking, enforcement or other authority with respect to payday loans, vehicle title loans or other similar loans.” (See how loans affect your finances by viewing a free credit report snapshot on Credit.com.)
The CFPB also has spent six years working to eliminate binding arbitration agreements that prevent consumers from filing lawsuits against corporations, requiring them to use arbitration for complaints instead. The Choice Act prevents the agency from making rules about arbitration.
The Choice Act also nullifies a 2013 rule that requires third-party auto lenders — sometimes called indirect lenders — to comply with the Equal Credit Opportunity Act. The rule was put in place because CFPB research alleged that some indirect lenders were charging high loan markups to minority groups.
Fiduciary Rule Eliminated
Efforts to undo reform would reach beyond CFBP rules, however. Another provision in the Choice Act would essentially eliminate the fiduciary rule requiring certain financial advisers to act in the interests of their clients. After a decade-long debate, the Labor Department is set to institute the rule this summer. It will take effect in January, and many financial firms are already abiding by it. The Republican legislation would remove the requirement.
“The final rule of the Department of Labor titled ‘Definition of the Term ‘Fiduciary’; Conflict of Interest Rule—Retirement Investment Advice’ and related prohibited transaction exemptions published April 8, 2016 … shall have no force or effect,” the legislation says.
Risky Mortgages Made Easier
The Choice Act also makes a wide series of changes to rules governing the way banks issue mortgages. The most obvious would be an easing of “qualified mortgage” rules designed to make sure lenders make good-faith efforts to ensure borrowers have the ability to repay home loans. Qualified mortgages don’t have risky elements such as balloon payments or negative amortization. Banks that offer qualified mortgages are exempt from more stringent ability-to-repay requirements. The Choice Act expands the definition of qualified mortgages, making it easier for banks to issue some mortgages.
Enforcement, So Long as the Industry Isn’t Harmed
Finally, and perhaps most importantly, the Choice Act requires the CFPB replacement to consider the impact of any potential enforcement actions on the financial industry when deciding to pursue action against a misbehaving company.
The new agency must “carry out a cost-benefit analysis of any proposed administrative enforcement action, civil lawsuit or consent order of the Agency; and … assess the impact of such complaint, lawsuit or order on consumer choice, price and access to credit products,” according to the legislation.
This dual role — enforcing consumer protections while also ensuring the safety and soundness of the industry — puts regulators in a tough spot. Suing a bank for mistreating customers can hurt the fortunes of that bank, and other banks that might be employing consumer-unfriendly tactics. That can make siding with consumers a serious challenge.
The CFPB was set up specifically to avoid this dynamic, and set up so that fighting for consumer rights was its main task. The Choice Act eliminates this “on-your-side” structure.