Perhaps no federal agency has more on the line in the election than the Consumer Financial Protection Bureau. Barely a year old, the agency has been denounced from its inception by the business community and Republicans in Congress, who complain that it is too powerful, too aggressive and lacks accountability.
If Mitt Romney is elected president, lawyers who follow the agency closely agree it will change, though they disagree about how drastic the makeover may be. On the other hand, if Barack Obama is re-elected, lawyers and their clients are bracing for even more vigorous enforcement actions.
Then there’s the wildcard — what if Republicans win a 60-vote supermajority in the Senate (though pundits say it’s unlikely)? If that happens, “I think the agency could be in trouble,” said Alan Kaplinsky, who heads Ballard Spahr’s consumer financial services practice. “I don’t think they would wipe it out, but they might pass pending reform bills that haven’t gone anywhere,” including replacing the director with a five-member commission and making the bureau subject to the congressional appropriations process rather than funded independently by the Federal Reserve.
Foley & Lardner partner Martin Bishop, who is co-chairman of the firm’s consumer financial services practice, noted that Romney has called for a repeal and replacement of the Dodd-Frank Act that created the bureau, but he also doubted a Republican supermajority would abolish the CFPB.
“The bureau has done a very good job building a base of consumers that cuts across party lines,” he said. Dismantling it would “not be a politically smart move.”
Still, the CFPB under Romney would be a different place — though perhaps not right away. Director Richard Cordray’s recess appointment runs through the end of 2013, and the next president does not have the power to fire him before that.
Republicans have argued the appointment is not legitimate because the Senate was not technically in recess. A suit challenging two other recess appointments made at the same time to the National Labor Relations Board is set for oral argument before the U.S. Court of Appeals for the D.C. Circuit on December 5.
While Cordray’s appointment isn’t directly challenged in the suit, the decision is likely to shed light on whether it was made under legal circumstances.
Lawyers believe Cordray will remain at the helm of the agency until his appointment expires in December 2013, though some predict he’ll step down a few months early to run for governor of Ohio. As a result, the CFPB — at least initially — is likely to hold course. That means more enforcement actions and a heightened focus on the mortgage industry, including mortgage servicing, settlement procedures and disclosures.
Once Cordray’s term is up and if Romney chooses his replacement, the effect on the agency could be dramatic, said Richard Gottlieb, who is the head of Dykema Gossett’s financial industry group. “The shortsightedness of the Democrats is the extraordinary power they placed in the director,” he said. “The immense power of Richard Cordray means a Republican Richard Cordray would be just as effective, but in the opposite way.”
A director who is more sympathetic to industry concerns could essentially “babysit” the agency during Romney’s term, said Patricia Trendacosta, the managing partner of Frandzel Robins Bloom & Csato. The potential result: fewer enforcement actions, milder penalties and regulations that give more weight to industry concerns. A new director could also put the brakes on plans to hire another 450 people and grow the agency to more than 1,350 employees.
But lawyers caution that none of this means current investigations will just go away. “Once an investigation is opened, it begins to develop a life of its own,” Kaplinsky said. As for clients asking wistfully whether they might ignore a CFPB civil investigative demand in the hopes of an election reprieve — the unanimous answer is no.
Lawyers predict that even a Romney-appointed director won’t fundamentally transform the CFPB. Almost all of the agency’s current employees are civil servants, entitled to remain on the job regardless of who is in the White House. “The CFPB views itself as a zealous consumer advocate,” said Gottlieb, who compared it to the Federal Trade Commission, which remained an aggressive enforcer during the George W. Bush administration.
If Obama is re-elected, lawyers do not expect to see a change in the agency’s direction. If anything, Trendacosta fears it will be even more aggressive. “Obama will be a lame duck,” she said, concerned about his legacy, not re-election. “I think we’ll see the CFPB become even more activist.”
Jenna Greene can be contacted at firstname.lastname@example.org.