Disapproving the rule submitted by the Bureau of Consumer Financial Protection relating to "Overdraft Lending: Very Large Financial Institutions".

— 837 — Financial Regulatory Agencies l Require the SEC and the CFTC to publish a detailed annual report on SRO supervision. AUTHOR’S NOTE: The preparation of this chapter was a collective enterprise of individuals involved in the 2025 Presidential Transition Project. All contributors to this chapter are listed at the front of this volume, but Paul Atkins, C. Wallace DeWitt, Christopher Iacovella, Brian Knight, Chelsea Pizzola, and Andrew Vollmer deserve special mention. The author alone assumes responsibility for the content of this chapter, and no views expressed herein should be attributed to any other individual. CONSUMER FINANCIAL PROTECTION BUREAU Robert Bowes The Consumer Financial Protection Bureau (CFPB) was authorized in 2010 by the Dodd–Frank Act.32 Since the Bureau’s inception, its status as an “inde- pendent” agency with no congressional oversight has been questioned in multiple court cases, and the agency has been assailed by critics33 as a shakedown mecha- nism to provide unaccountable funding to leftist nonprofits politically aligned with those who spearheaded its creation. In 2015, for example, Investor’s Business Daily accused the CFPB of “diverting potentially millions of dollars in settlement payments for alleged victims of lending bias to a slush fund for poverty groups tied to the Democratic Party” and plan- ning “to create a so-called Civil Penalty Fund from its own shakedown operations targeting financial institutions” that would use “ramped-up (and trumped-up) anti-discrimination lawsuits and investigations” to “bankroll some 60 liberal non- profits, many of whom are radical Acorn-style pressure groups.”34 The CFPB has a fiscal year (FY) 2023 budget of $653.2 million35 and 1,635 full- time equivalent (FTE) employees.36 From FY 2012 through FY 2020, it imposed approximately $1.25 billion in civil money penalties;37 in FY 2022, it imposed approximately $172.5 million in civil money penalties.38 These penalties are imposed by the CFPB Civil Penalty Fund, described as “a victims relief fund, into which the CFPB deposits civil penalties it collects in judicial and administrative actions under Federal consumer financial laws.”39 The CFPB is headed by a single Director who is appointed by the President to a five-year term.40 Its organizational structure includes five divisions: Operations; Consumer Education and External Affairs; Legal; Supervision, Enforcement and Fair Lending; and Research, Monitoring and Regulations.41 Each of these divisions reports to the Office of the Director, except for the Operations Division, which reports to the Deputy Director. Passage of Title X of Dodd–Frank was a bid to placate concern over a series of regulatory failures identified in the wake of the 2008 financial crisis. The law imported a new superstructure of federal regulation over consumer finance and — 838 — Mandate for Leadership: The Conservative Promise mortgage lending and servicing industries traditionally regulated by state bank- ing regulators. Consumer protection responsibilities previously handled by the Office of the Comptroller of the Currency, Office of Thrift Supervision, Federal Deposit Insurance Corporation, Federal Reserve, National Credit Union Admin- istration, and Federal Trade Commission were transferred to and consolidated in the CFPB, which issues rules, orders, and guidance to implement federal consumer financial law. The CFPB collects fines from the private sector that are put into the Civil Pen- alty Fund.42 The fund serves two ostensible purposes: to compensate the victims whom the CFPB perceives to be harmed and to underwrite “consumer education” and “financial literacy” programs.43 How the Civil Penalty Fund is spent is at the discretion of the CFPB Director. The CFPB has been unclear as to how it decides what “consumer education” or “financial literacy programs” to fund.44 As noted, critics have charged that money from the Civil Penalty Fund has ended up in the pockets of leftist activist organizations. In Seila Law LLC v. Consumer Financial Protection Bureau,45 the Supreme Court of the United States held that the CFPB’s leadership by a single individual remov- able only for inefficiency, neglect, or malfeasance violated constitutional separation of powers requirements because “[t]he Constitution requires that such officials remain dependent on the President, who in turn is accountable to the people.”46 The CFPB Director is thus subject to removal by the President. The CFPB is not subject to congressional oversight, and its funding is not determined by elected lawmakers in Congress as part of the typical congressional appropriations process. It receives its funding from the Federal Reserve, which is itself funded outside the appropriations process through bank assessments. CFPB funding represents 12 percent of the total operating expenses of the Fed- eral Reserve and is disbursed by the unelected Board of Governors of the Federal Reserve System.47 This is not the case with respect to any other federal agency. On October 19, 2022, in Community Financial Services Association of America v. Consumer Financial Protection Bureau, the U.S. Court of Appeals for the Fifth Circuit held that the CFPB’s “perpetual insulation from Congress’s appropriations power, including the express exemption from congressional review of its funding, renders the Bureau ‘no longer dependent and, as a result, no longer accountable’ to Congress and, ultimately, to the people”48 and that “[b]y abandoning its ‘most complete and effectual’ check on ‘the overgrown prerogatives of the other branches of the government’—indeed, by enabling them in the Bureau’s case—Congress ran afoul of the separation of powers embodied in the Appropriations Clause.”49 The Court further remarked that the CFPB’s “capacious portfolio of authority acts ‘as a mini legislature, prosecutor, and court, responsible for creating substantive rules for a wide swath of industries, prosecuting violations, and levying knee-buckling penalties against private citizens.’”50

— 843 — Financial Regulatory Agencies 37. Table 7, “Civil Penalty Fund Significant Activity,” in Consumer Financial Protection Bureau, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2022, November 15, 2022, p. 21, https://files. consumerfinance.gov/f/documents/cfpb_financial-report_fy2022.pdf (accessed March 23, 2023). 38. Ibid. 39. Consumer Financial Protection Bureau, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2022, p. 20. 40. 12 U.S. Code § 5491, https://www.law.cornell.edu/uscode/text/12/5491 (accessed March 23, 2023). 41. Consumer Financial Protection Bureau, “Bureau Structure,” last updated March 15, 2023, https://www. consumerfinance.gov/about-us/the-bureau/bureau-structure/ (accessed March 23, 2023). 42. See Consumer Financial Protection Bureau, “Consumer Financial Civil Penalty Fund Rule,” https://www. consumerfinance.gov/rules-policy/final-rules/consumer-financial-civil-penalty-fund-rule/ (accessed March 23, 2023). 43. Consumer Financial Protection Bureau, “Civil Penalty Fund: Consumer Education and Financial Literacy,” https://www.consumerfinance.gov/enforcement/payments-harmed-consumers/civil-penalty-fund/consumer- education-financial-literacy/ (accessed March 23, 2023). 44. U.S. Government Accountability Office, Consumer Financial Protection Bureau: Opportunity Exists to Improve Transparency of Civil Penalty Fund Activities, GAO-14-551, June 2014, https://www.gao.gov/assets/gao-14-551. pdf (accessed March 23, 2023). 45. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020), https://www.supremecourt.gov/ opinions/19pdf/19-7_n6io.pdf (accessed March 23, 2023). 46. Ibid., p. 37. 47. See 12 U.S. Code § 5497(a)(1), https://www.law.cornell.edu/uscode/text/12/5497 (accessed March 23, 2023). Congress specified that the amount transferred to the CFPB “shall not exceed” 12 percent “of the total operating expenses of the Federal Reserve System…in fiscal year 2013, and in each year thereafter.” Ibid., § 5497(2)(A)(iii). 48. Community Financial Services Association of America v. Consumer Financial Protection Bureau (5th Cir. 2022), pp. 31–32, https://www.ca5.uscourts.gov/opinions/pub/21/21-50826-CV0.pdf (accessed March 23, 2023). 49. Ibid., p. 32. 50. Ibid. (quoting Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2202 n. 8 (2020)). 51. U.S. Supreme Court, “Order List: 598 U.S.,” February 27, 2023, Docket No. 22–448, CFPB et al. v. Com. Fin. Services Assn., et al., https://www.supremecourt.gov/orders/courtorders/022723zor_6537.pdf (accessed March 23, 2023). 52. Devin Watkins, Competitive Enterprise Institute, “Consumer Financial Protection Bureau: Ripe for Reform,” testimony before the Subcommittee on Financial Institutions and Monetary Policy, Committee on Financial Services, U.S. House of Representatives, March 9, 2023, https://docs.house.gov/meetings/BA/ BA20/20230309/115384/HHRG-118-BA20-Wstate-WatkinsD-20230309.pdf (accessed March 23, 2023); Norbert J. Michel, “7 Steps Next Director Can Take to Make the Consumer Financial Protection Bureau Less Awful,” Heritage Foundation Commentary, July 28, 2018, https://www.heritage.org/markets-and-finance/ commentary/7-steps-next-director-can-take-make-the-consumer-financial. 53. The Office of the Comptroller of the Currency (OCC), Federal Deposit Insurance Corporation, Federal Reserve, and National Credit Union Administration. Those functions performed by the Office of Thrift Supervision (OTS) prior to Dodd–Frank should be transferred to the OCC since OTS has merged with OCC. 54. See “Section 1071 of the Dodd–Frank Act” in David R. Burton, “Improving Small Business Access to Capital,” Consumer Financial Protection Bureau Symposium on Section 1071 of the Dodd–Frank Act, Small Business Lending Panel, November 6, 2019, https://files.consumerfinance.gov/f/documents/cfpb_burton-written- statement_symposium-section-1071.pdf (accessed March 23, 2023). 55. 5 U.S. Code Chapter 5, https://www.law.cornell.edu/uscode/text/5/part-I/chapter-5 (accessed March 23, 2023). 56. Consumer Financial Protection Bureau, “Administrative Adjudication Proceedings,” https://www. consumerfinance.gov/administrative-adjudication-proceedings/ (accessed March 23, 2023), and 12 Code of Federal Regulations Part 1081—Rules of Practice for Adjudication Proceedings, https://www.law.cornell.edu/ cfr/text/12/part-1081 (accessed March 23, 2023). — 845 — 28 FEDERAL COMMUNICATIONS COMMISSION Brendan Carr MISSION STATEMENT The FCC should promote freedom of speech, unleash economic opportunity, ensure that every American has a fair shot at next-generation connectivity, and enable the private sector to create good-paying jobs through pro-growth reforms that support a diversity of viewpoints, ensure secure and competitive communi- cations networks, modernize outdated infrastructure rules, and represent good stewardship of taxpayer dollars. OVERVIEW AND BACKGROUND The FCC is an independent regulatory agency that has jurisdiction over inter- state and international communications by radio, television, wire, satellite, and cable.1 Five Commissioners are appointed by the President and confirmed by the Senate for fixed five-year terms.2 The FCC does not have any other presidentially appointed, Senate-confirmed officials. Ordinarily, the five-member FCC is divided politically three to two with a majority of Commissioners from the same political party as the President. The Commissioners’ terms are staggered so that every year at the end of June, one Commissioner’s term expires.3 However, a Commissioner can continue to serve until the end of the next session of Congress (or up to 1.5 years beyond the expiration of the term) if no replacement is confirmed after his or her term ends.4 By law, only a bare majority of Commissioners can be from the same politi- cal party (no more than three when there are five members).5 By tradition, the Chairperson resigns when a new President of a different political party is sworn

— 842 — Mandate for Leadership: The Conservative Promise 19. Burton, “Improving Entrepreneurs’ Access to Capital: Vital for Economic Growth”; Campbell, “The Case for Federal Pre-Emption of State Blue Sky Laws.” 20. David R. Burton, “Why the SEC’s Consolidated Audit Trail Is a Bad Idea,” Heritage Foundation Commentary, December 5, 2019, https://www.heritage.org/monetary-policy/commentary/why-the-secs-consolidated- audit-trail-bad-idea; Hester M. Peirce, Commissioner, U.S. Securities and Exchange Commission, “Statement on the Order Granting Temporary Conditional Exemptive Relief from Certain Requirements of the National Market System Plan Governing the Consolidated Audit Trail,” July 8, 2022, https://www.sec.gov/news/ statement/peirce-statement-consolidated-audit-trail-070822 (accessed February 20, 2023). 21. Peirce, “It’s Not Just Scope 3: Remarks at the American Enterprise Institute”; Uyeda, “Remarks at the 2022 Cato Summit on Financial Regulation.” 22. David R. Burton, “How Dodd–Frank Mandated Disclosures Harm, Rather than Protect, Investors,” Heritage Foundation Issue Brief No. 4526, March 10, 2016, http://thf-reports.s3.amazonaws.com/2016/IB4526.pdf. 23. For a detailed discussion of SEC administration, see Burton, “Reforming the Securities and Exchange Commission.” 24. See, for example, Andrew N. Vollmer, “Accusers as Adjudicators in Agency Enforcement Proceedings,” University of Michigan Journal of Law Reform, Vol. 52, No. 1 (Fall 2018), pp. 103–155, https://repository.law. umich.edu/cgi/viewcontent.cgi?article=1602&context=mjlr (accessed February 20, 2023). 25. 7 U.S.C. § 1a(9), https://www.law.cornell.edu/uscode/text/7/1a (accessed February 20, 2023). 26. Or the CFTC can undertake a rulemaking. 27. 7 U.S.C. § 2(i), https://www.law.cornell.edu/uscode/text/7/2 (accessed February 20, 2023). 28. 7 U.S.C. § 7b–3, https://www.law.cornell.edu/uscode/text/7/7b-3 (accessed February 20, 2923). 29. Commodity Futures Trading Commission, “Cross-Border Application of the Registration Thresholds and Certain Requirements Applicable to Swap Dealers and Major Swap Participants,” Final Rule, Federal Register, Vol. 85, No. 178 (September 14, 2020), pp. 56924–57016, https://www.govinfo.gov/content/pkg/FR-2020-09- 14/pdf/2020-16489.pdf (accessed February 21, 2023). 30. Commodity Futures Trading Commission, “Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations,” Federal Register, Vol. 78, No. 144 (July 26, 2013), pp. 45292–45374, https:// www.cftc.gov/sites/default/files/idc/groups/public/@lrfederalregister/documents/file/2013-17958a.pdf (accessed February 21, 2023). 31. Commodity Futures Trading Commission, “Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants—Cross-Border Application of the Margin Requirements,” Final Rule, Federal Register, Vol. 81, No. 104 (May 31, 2016), pp. 34818–34854, https://www.govinfo.gov/content/pkg/FR-2016-05-31/ pdf/2016-12612.pdf (accessed February 21, 2023). 32. H.R. 4173, Dodd–Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 111th Congress, July 21, 2010, Title X, https://www.congress.gov/111/plaws/publ203/PLAW-111publ203.pdf (accessed March 23, 2023). See also Consumer Financial Protection Bureau, “About Us,” https://www.consumerfinance.gov/about- us/ (accessed March 23, 2023). 33. See, for example, Paul Sperry, “Trump Is Finally Fixing This Economy-Killing Agency,” New York Post, December 2, 2017, https://nypost.com/2017/12/02/trump-is-finally-fixing-this-economy-killing-agency/ (accessed March 23, 2023). See also Jeb Hensarling “How We’ll Stop a Rogue Federal Agency,” The Wall Street Journal, February 8, 2017, https://www.wsj.com/articles/how-well-stop-a-rogue-federal- agency-1486597413 (accessed March 23, 2023), and H.R. 3389, CFPB Slush Fund Elimination Act of 2013, 113th Congress, introduced October 30, 2013, https://www.congress.gov/113/bills/hr3389/BILLS-113hr3389ih.pdf (accessed March 23, 2023). 34. Editorial, “CFPB Joins Justice in Shaking Down Banks for Democrat Activist Groups,” Investor’s Business Daily, June 17, 2015, https://www.investors.com/politics/editorials/cfpb-diverts-civil-penalty-funds-to-democrat- activist-groups/ (accessed March 23, 2023). 35. Table, “Budget by Program,” in Consumer Financial Protection Bureau, Annual Performance Plan and Report, and Budget Overview, February 2023, p. 15, https://files.consumerfinance.gov/f/documents/cfpb_ performance-plan-and-report_fy23.pdf (accessed March 23, 2023). 36. Table, “FTE by Program,” in ibid., p. 16. — 843 — Financial Regulatory Agencies 37. Table 7, “Civil Penalty Fund Significant Activity,” in Consumer Financial Protection Bureau, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2022, November 15, 2022, p. 21, https://files. consumerfinance.gov/f/documents/cfpb_financial-report_fy2022.pdf (accessed March 23, 2023). 38. Ibid. 39. Consumer Financial Protection Bureau, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2022, p. 20. 40. 12 U.S. Code § 5491, https://www.law.cornell.edu/uscode/text/12/5491 (accessed March 23, 2023). 41. Consumer Financial Protection Bureau, “Bureau Structure,” last updated March 15, 2023, https://www. consumerfinance.gov/about-us/the-bureau/bureau-structure/ (accessed March 23, 2023). 42. See Consumer Financial Protection Bureau, “Consumer Financial Civil Penalty Fund Rule,” https://www. consumerfinance.gov/rules-policy/final-rules/consumer-financial-civil-penalty-fund-rule/ (accessed March 23, 2023). 43. Consumer Financial Protection Bureau, “Civil Penalty Fund: Consumer Education and Financial Literacy,” https://www.consumerfinance.gov/enforcement/payments-harmed-consumers/civil-penalty-fund/consumer- education-financial-literacy/ (accessed March 23, 2023). 44. U.S. Government Accountability Office, Consumer Financial Protection Bureau: Opportunity Exists to Improve Transparency of Civil Penalty Fund Activities, GAO-14-551, June 2014, https://www.gao.gov/assets/gao-14-551. pdf (accessed March 23, 2023). 45. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020), https://www.supremecourt.gov/ opinions/19pdf/19-7_n6io.pdf (accessed March 23, 2023). 46. Ibid., p. 37. 47. See 12 U.S. Code § 5497(a)(1), https://www.law.cornell.edu/uscode/text/12/5497 (accessed March 23, 2023). Congress specified that the amount transferred to the CFPB “shall not exceed” 12 percent “of the total operating expenses of the Federal Reserve System…in fiscal year 2013, and in each year thereafter.” Ibid., § 5497(2)(A)(iii). 48. Community Financial Services Association of America v. Consumer Financial Protection Bureau (5th Cir. 2022), pp. 31–32, https://www.ca5.uscourts.gov/opinions/pub/21/21-50826-CV0.pdf (accessed March 23, 2023). 49. Ibid., p. 32. 50. Ibid. (quoting Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2202 n. 8 (2020)). 51. U.S. Supreme Court, “Order List: 598 U.S.,” February 27, 2023, Docket No. 22–448, CFPB et al. v. Com. Fin. Services Assn., et al., https://www.supremecourt.gov/orders/courtorders/022723zor_6537.pdf (accessed March 23, 2023). 52. Devin Watkins, Competitive Enterprise Institute, “Consumer Financial Protection Bureau: Ripe for Reform,” testimony before the Subcommittee on Financial Institutions and Monetary Policy, Committee on Financial Services, U.S. House of Representatives, March 9, 2023, https://docs.house.gov/meetings/BA/ BA20/20230309/115384/HHRG-118-BA20-Wstate-WatkinsD-20230309.pdf (accessed March 23, 2023); Norbert J. Michel, “7 Steps Next Director Can Take to Make the Consumer Financial Protection Bureau Less Awful,” Heritage Foundation Commentary, July 28, 2018, https://www.heritage.org/markets-and-finance/ commentary/7-steps-next-director-can-take-make-the-consumer-financial. 53. The Office of the Comptroller of the Currency (OCC), Federal Deposit Insurance Corporation, Federal Reserve, and National Credit Union Administration. Those functions performed by the Office of Thrift Supervision (OTS) prior to Dodd–Frank should be transferred to the OCC since OTS has merged with OCC. 54. See “Section 1071 of the Dodd–Frank Act” in David R. Burton, “Improving Small Business Access to Capital,” Consumer Financial Protection Bureau Symposium on Section 1071 of the Dodd–Frank Act, Small Business Lending Panel, November 6, 2019, https://files.consumerfinance.gov/f/documents/cfpb_burton-written- statement_symposium-section-1071.pdf (accessed March 23, 2023). 55. 5 U.S. Code Chapter 5, https://www.law.cornell.edu/uscode/text/5/part-I/chapter-5 (accessed March 23, 2023). 56. Consumer Financial Protection Bureau, “Administrative Adjudication Proceedings,” https://www. consumerfinance.gov/administrative-adjudication-proceedings/ (accessed March 23, 2023), and 12 Code of Federal Regulations Part 1081—Rules of Practice for Adjudication Proceedings, https://www.law.cornell.edu/ cfr/text/12/part-1081 (accessed March 23, 2023).