Community Bank Representation Act

— 839 — Financial Regulatory Agencies On February 27, 2023, the Supreme Court granted the petition for a writ of certiorari.51 The Court should issue its final decision by 2024. The CFPB is a highly politicized, damaging, and utterly unaccountable federal agency.52 It is unconstitutional. Congress should abolish the CFPB and reverse Dodd–Frank Section 1061, thus returning the consumer protection function of the CFPB to banking regulators53 and the Federal Trade Commission. Provided the Supreme Court affirms the Fifth Circuit holding in Community Financial Ser- vices Association of America, the next conservative President should order the immediate dissolution of the agency—pull down its prior rules, regulations and guidance, return its staff to their prior agencies and its building to the General Services Administration. Until this can be accomplished, however, Congress should: l Ensure that any civil penalty funds not used to recompense wronged consumers go to the Department of the Treasury. The funds should not be retained by the Bureau to be dispensed at the pleasure of the Director— potentially to political actors. Moreover, the CFPB should not have a financial incentive to impose penalties. l Repeal Dodd–Frank Section 1071. This section, which relates to small- business data collection, imposes requirements on financial institutions’ lending to small firms, raises costs, and limits small businesses’ access to capital.54 l Require that no CFPB funds are spent on enforcement actions that are not based on a rulemaking that complies with the Administrative Procedure Act.55 l Require that respondents in administrative actions be allowed to elect whether an adjudication occurs in an administrative law court or an ordinary Article III federal court.56 l Specify the nature of “deceptive, unfair, and abusive” practices to define the scope of the CFPB mission more precisely. — 840 — Mandate for Leadership: The Conservative Promise ENDNOTES 1. H.R. 5480, Securities Act of 1933, Public Law No. 73-22, 73rd Congress, May 27, 1933, https://govtrackus. s3.amazonaws.com/legislink/pdf/stat/48/STATUTE-48-Pg74.pdf (accessed February 20, 2023). 2. H.R. 9323, Securities Exchange Act of 1934, Public Law No. 73-291, 73rd Congress, June 6, 1934, https:// govtrackus.s3.amazonaws.com/legislink/pdf/stat/48/STATUTE-48-Pg881a.pdf (accessed February 20, 2023). 3. Mark T. Uyeda, Commissioner, U.S. Securities and Exchange Commission, “Remarks at the 2022 Cato Summit on Financial Regulation,” November 17, 2022, https://www.sec.gov/news/speech/uyeda-remarks- cato-summit-financial-regulation-111722 (accessed February 20, 2023); Hester M. Peirce, Commissioner, U.S. Securities and Exchange Commission, “It’s Not Just Scope 3: Remarks at the American Enterprise Institute,” December 7, 2022, https://www.sec.gov/news/speech/peirce-remarks-american-enterprise-institute-120722 (accessed February 20, 2023); comment letter from David R. Burton to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, “Re: The Enhancement and Standardization of Climate-Related Disclosures for Investors [File No. S7-10-2; Release No. 33-11042; RIN 3235-AM87],” June 17, 2022, https://www. sec.gov/comments/s7-10-22/s71022-20131980-302443.pdf (accessed February 20, 2023). 4. Size would probably be measured best by public float or the number of beneficial owners. 5. See David R. Burton, “Securities Disclosure Reform,” Heritage Foundation Backgrounder No. 3178, February 13, 2017, https://www.heritage.org/sites/default/files/2017-02/BG3178.pdf; David R. Burton, “Offering and Disclosure Reform,” Chapter 11 in Reframing Financial Regulation: Enhancing Stability and Protecting Consumers, ed. Hester Peirce and Benjamin Klutsey (Arlington, VA: Mercatus Center at George Mason University, 2016), pp. 277–315, https://www.mercatus.org/research/books/reframing-financial-regulation (accessed February 20, 2023); Andrew N. Vollmer, “Investor-Friendly Securities Reform to Increase Economic Growth,” Securities Regulation & Law Report, Bloomberg BNA, Vol. 49, June 5, 2017. 6. See, for example, David R. Burton, “Reforming the Securities and Exchange Commission,” Heritage Foundation Backgrounder No. 3378, January 30, 2019, https://www.heritage.org/sites/default/files/2019-01/ BG3378.pdf; Andrew N. Vollmer, “Testimony on Workforce Management Disclosures and Other SEC Issues,” submitted to the Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets, Committee on Financial Services, U.S. House of Representatives, December 6, 2022, https://www.congress.gov/117/ meeting/house/115227/witnesses/HHRG-117-BA16-Wstate-VollmerA-20221208.pdf (accessed February 20, 2023); David R. Burton, “Reforming FINRA,” Heritage Foundation Backgrounder No. 3181, February 1, 2017, https://www.heritage.org/sites/default/files/2017-02/BG3181.pdf; Hester Peirce, “The Financial Industry Regulatory Authority: Not Self-Regulation After All,” Mercatus Center at George Mason University Working Paper, January 2015, https://www.mercatus.org/research/working-papers/financial-industry-regulatory- authority-not-self-regulation-after-all (accessed February 20, 2023); Thaya Brook Knight, “Transparency and Accountability at the SEC and at FINRA,” Chapter 11 in Prosperity Unleashed: Smarter Financial Regulation, ed. Norbert J. Michel, (Washington: The Heritage Foundation, 2017) https://www.heritage.org/sites/default/ files/2017-02/11_ProsperityUnleashed_Chapter11.pdf. 7. Reorganization Plan No. 10 of 1950, U.S. Code Title 5—Appendix, Reorganization Plans, http://uscode.house. gov/view.xhtml?req=granuleid:USC-prelim-title5a-node84-leaf114&num=0&edition=prelim (accessed February 20, 2023). 8. The board or commission should evaluate the regulatory functions of the National Securities Exchanges, Registered Securities Future Product Exchanges, Registered Clearing Agencies (such as the Depository Trust Company (DTC), the National Securities Clearing Corporation (NSCC) and the Options Clearing Corporation (OCC)), the Municipal Securities Rulemaking Board (MSRB) and the National Futures Association (NFA). This board or commission should have a broad composition and permit minority reports. 9. Boyden Gray & Associates, Comments Submitted on Behalf of Alliance for Fair Board Recruitment Concerning the Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change to Adopt Listing Rules Related to Board Diversity, Amendment No. 1, File No. SR-NASDAQ-2020-081, April 6, 2021 https://www.sec.gov/ comments/sr-nasdaq-2020-081/srnasdaq2020081-8639478-230941.pdf (accessed February 20, 2023); David R. Burton, “Nasdaq’s Proposed Board-Diversity Rule Is Immoral and Has No Basis in Economics,” Heritage Foundation Backgrounder No. 3591, March 9, 2021, https://www.heritage.org/sites/default/ files/2021-03/BG3591_0.pdf. The SEC is contemplating at least two rules that can be expected to require differential treatment based on race, sex, ethnicity, and so on. See Executive Office of the President, Office

— 741 — Federal Reserve l Appoint a commission to explore the mission of the Federal Reserve, alternatives to the Federal Reserve system, and the nation’s financial regulatory apparatus. l Prevent the institution of a central bank digital currency (CBDC). A CBDC would provide unprecedented surveillance and potential control of financial transactions without providing added benefits available through existing technologies.34 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 Alexander Salter, Judy Shelton, and Peter St Onge, deserve special mention. The chapter reflects input from all the contributors, however, no views expressed herein should be attributed to any specific individual. — 742 — Mandate for Leadership: The Conservative Promise ENDNOTES 1. U.S. Constitution, Article 1, Section 8, https://www.law.cornell.edu/constitution (accessed January 23, 2023). 2. For example, Alexander Salter and Daniel Smith (2019) show that Federal Reserve Chairs become more favorable toward monetary discretion once they are confirmed compared to previous stances. Alexander William Salter and Daniel J. Smith, “Political Economists or Political Economists? The Role of Political Environments in the Formation of Fed Policy Under Burns, Greenspan, and Bernanke,” Quarterly Review of Economics and Finance, Vol. 71 (February 2019), pp. 1–13. 3. Sarah Binder, “The Federal Reserve as a ‘Political’ Institution,” American Academy of Arts and Sciences Bulletin, Vol. LXIX, No. 3 (Spring 2016), pp. 47–49, https://www.amacad.org/sites/default/files/bulletin/ downloads/bulletin_Spring2016.pdf (accessed January 23, 2023). See also Charles L. Weise, “Political Pressures on Monetary Policy During the US Great Inflation,” American Economic Journal: Macroeconomics, Vol. 4, No. 2 (April 2012), pp. 33–64, https://www.haverford.edu/sites/default/files/Department/Economics/ Weise_Political_Pressures_on%20Monetary_Policy.pdf (accessed January 23, 2023). 4. The Federal Reserve’s financial stability mandate is poorly defined. The Fed has taken advantage of the statutory vagueness and proceeded as if it has the authority to engage in these activities, although it is highly questionable whether this is permissible. 5. 12 U.S.C. § 225a, https://www.law.cornell.edu/uscode/text/12/225a (accessed January 23, 2023). 6. See Peter J. Boettke, Alexander William Salter, and Daniel J. Smith, Money and the Rule of Law: Generality and Predictability in Monetary Institutions (Cambridge, UK: Cambridge University Press, 2021). 7. George Selgin, William D. Lastrapes, and Lawrence H. White, “Has the Fed Been a Failure?” Journal of Macroeconomics, Vol. 34, No. 3 (September 2012), pp. 569–596, https://www.sciencedirect.com/science/ article/abs/pii/S0164070412000304 (accessed January 24, 2023). 8. This includes federal programs that automatically provide for adjustments as the economy contracts (for example, unemployment insurance or the Supplemental Nutrition Assistance Program). 9. Mark Segal, “Fed to Launch Climate Risk Resilience Tests with Big Banks,” ESG Today, September 30, 2022, https://www.esgtoday.com/fed-to-launch-climate-risk-resilience-tests-with-big-banks/ (accessed January 23, 2023). 10. Kenneth J. Robinson, “Savings and Loan Crisis 1980–1989,” Federal Reserve Bank of St. Louis, Federal Reserve History, November 22, 2013, https://www.federalreservehistory.org/essays/savings-and-loan-crisis (accessed January 23, 2023). 11. Russell Roberts, “Gambling with Other People’s Money: How Perverted Incentives Caused the Financial Crisis,” Mercatus Center at George Mason University, May 2010, https://www.mercatus.org/system/files/RUSS-final. pdf (accessed January 24, 2023). 12. Board of Governors of the Federal Reserve System, Credit and Liquidity Programs Balance Sheet Data Series, 2007–2022, https://www.federalreserve.gov/monetarypolicy/bst_recenttrends.htm (accessed January 24, 2023). 13. Board of Governors of the Federal Reserve System, U.S. Treasury Securities Data Series (TREAST), 2004–2022, https://fred.stlouisfed.org/series/TREAST (accessed January 24, 2023). 14. Board of Governors of the Federal Reserve System, Mortgage-Backed Securities Data Series (WSHOMCB), 2004–2022, https://fred.stlouisfed.org/series/WSHOMCB (accessed January 24, 2023). 15. Board of Governors of the Federal Reserve System, Total Assets (Less Eliminations from Consolidation) Data Series (WALCL), 2004–2022, https://fred.stlouisfed.org/series/WALCL (accessed January 24, 2023). 16. Federal Reserve Bank of St. Louis, “S&P Dow Jones Indices LLC, S&P/Case–Shiller U.S. National Home Price Index (CSUSHPINSA),” https://fred.stlouisfed.org/series/CSUSHPINSA (accessed January 24, 2023). The Case–Shiller Home Price Index tracks home prices given a constant level of quality. See S&P Dow Jones Indices, “Real Estate: S&P CoreLogic Case–Shiller Home Price Indices,” https://www.spglobal.com/spdji/en/index-family/indicators/sp- corelogic-case-shiller/sp-corelogic-case-shiller-composite/#overview (accessed January 24, 2023). 17. Federal Reserve Bank of St. Louis, “Real Residential Property Prices for United States (QUSR628BIS),” https:// fred.stlouisfed.org/series/QUSR368BIS (accessed January 24, 2023). 18. Longterm Trends, “Home Price to Income Ratio (US & UK): Home Price to Median Household Income Ratio (US),” https://www.longtermtrends.net/home-price-median-annual-income-ratio/ (accessed January 24, 2023).

— 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