President Barack Obama has established that he’s done with Congress for the rest of his term. Feeling chumped after Republicans wouldn’t reach agreement with him on a broad deficit-reduction agreement, Obama has decided it’s time to campaign against GOP leadership of the House and Senate.
Thus the dubious move to ignore the law and appoint a head of the new Consumer Financial Protection Bureau without the consent of the Senate.
We can’t really blame Obama. Republicans have been playing gotcha with this appointment, one more example of the long, dreary game of Washington obstructionism that has the public ― outside of the fiercest partisans ― so angry at everybody who’s an incumbent.
Obama tried to play nice. The obvious choice to run the CFPB was Elizabeth Warren, the consumer advocate who largely conceived the agency. But she would have run into confirmation problems, so Obama nominated former Ohio Attorney General Richard Cordray.
Republicans don’t have a huge problem with Cordray. But they’ve blocked his appointment nonetheless. They have done this by stalling a Senate confirmation vote and gaming the rules of Congress so Obama can’t do what his Republican and Democratic predecessors did hundreds of times ― make an appointment while Congress was in recess.
Presidents have the power to fill vacant government posts whenever Congress breaks for more than three days. Republicans have thwarted this White House by keeping Congress in pro forma sessions, so technically there has been no recess even when lawmakers are long gone from D.C.
All those Republicans who are whining that Obama is flouting the rules, cry us a river. You’ve been gaming the rules. As a result, Obama has been able to make fewer recess appointments than Republican George W. Bush or Democrat Bill Clinton did.
The White House has now decided, recess-shmecess. Obama appointed Cordray, Republican tactics be damned. Republicans may eventually prevail if they pursue a legal challenge, but that’ll take months.
Our concern isn’t with Obama’s decision to install Cordray. We get his frustration with gridlock.
No, our problem is with the agency that Cordray is going to run.
The agency, borne of the Dodd-Frank financial reform law, has vast, unchecked power that could easily be abused.
Its mission is to protect consumers from deception and abuses by banks, savings associations, credit unions and the “shadow” banking system of check cashers and payday lenders. But its mandate is so broad ― making financial companies “work” for American consumers ― that Cordray can pretty much fire at will.
By design, the agency lacks accountability. It operates within the Federal Reserve, but the Federal Reserve Board doesn’t control it. The agency’s budget and operations are shielded from congressional scrutiny. Whoever runs it has broad power to act unilaterally ― even, potentially, to shut down an entire industry deemed a threat to consumer pocketbooks.
The director should report to a bipartisan executive board. That’s how it works for the Securities and Exchange Commission, Federal Deposit Insurance Corp. and other federal authorities responsible for financial oversight. Congress vastly overreached, giving the new consumer czar unprecedented authority to bring down the force of government on whatever target strikes his fancy.
That’s what Republicans have been saying: Congress should restructure the agency’s governance. But Republicans don’t have the votes to achieve that, so they have relied on the rules trick to hold the agency hostage.
Big banks are an inviting political target. But they’re subject now to regulations on their mortgages, credit cards, debit cards and checking accounts that didn’t exist during the free-for-all of the mid-2000s.
Financial regulation can produce unintended consequences, as Cordray has experienced. In Ohio, he supported a crackdown on the payday loan industry several years ago. The state approved restrictions on the interest rates that payday lenders could charge. The lenders responded by jacking up their fees for cashing the loan checks they were issuing, making up the profits they lost on the lower interest rates.
Cordray has a short time to make his mark. His recess appointment lasts less than two years ― and a court challenge may cut that short.
We expect that if he overreaches, the public will let him know it, much like we saw when the National Labor Relations Board tried to block Boeing Co. from opening a factory and putting people to work in South Carolina. The NLRB relented because the raw power move was so patently wrong.
