The FDIC is also sweating the CFPB’s Supreme Court case

Feb 28, 2023

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The Supreme Court’s announcement that it will hear the Consumer Financial Protection Bureau’s challenge to a Fifth Circuit ruling that could strip the agency of its funding has at least one other regulator also paying close attention.

The Federal Deposit Insurance Corp. — a New Deal-era banking regulator whose jurisdiction extends from bank capital requirements to the advertising specs on deposit insurance signage — raised a flag earlier this month in a report warning that the lower court’s decision could hinder its own rulemaking authority.

“The Court explained that [the CFPB’s] funding structure is not subject to the Congressional appropriations process and therefore violated the Appropriations Clause,” according to the agency’s Office of Inspector General. “There is a risk that the Fifth Circuit’s ruling could also be applied to the FDIC.”

The FDIC declined comment.

The OIG’s warning, which is buried in the back of a 49-page report on management and performance issues, highlights just how much is at stake with the Supreme Court’s decision next term.

The Fifth Circuit found that the CFPB’s funding mechanism — Congress gave the bureau its own funding stream from the Federal Reserve in the 2010 Dodd-Frank law — is unique even among banking regulators that aren’t funded through appropriations. The decision also struck down a 2017 rule targeting small-dollar loans that was opposed by payday lending companies.

The Fifth Circuit’s three-judge panel relied on some legal “sleight of hand” that could create big problems for other independent federal agencies that are funded outside of Congress’s appropriations process, said Joe Lynyak, a partner at the law firm Dorsey & Whitney.

“I can see grounds for the Supreme Court in a practically oriented opinion saying: ‘We are stepping on a landmine if we decide to go down this route,’” Lynyak — a frequent critic of the bureau — told MM. “Can you really distinguish [how these regulators are funded]? I frankly don't think you can.”

Even so, as Katy O’Donnell notes, the court’s conservative majority has been more than willing to carve up regulators that drift outside their traditional jurisdictions — a criticism that industry groups and conservatives have frequently lobbed at CFPB Director Rohit Chopra. And while top Republicans like House Financial Services Chair Patrick McHenry (R-N.C.) and pro-business organizations like the U.S. Chamber of Commerce cheered the possibility of the CFPB being brought to heel, others cautioned that the Supreme Court could sow chaos.

Invalidating a decade’s worth of rules and guidelines would come at significant cost to businesses, said Jenny Lee, a former CFPB attorney who’s now a partner at the law firm Reed Smith.

“It would have the practical effect of increasing the compliance burden for many regulated entities,” she told MM. “Whether you like the bureau or not, you're still building all your compliance systems around their rules.”

IT’S TUESDAY — And it is a packed agenda on the Hill. Have tips, gossip or scoops? Let Sam know at ssutton@politico.com and Zachary at zwarmbrodt@politico.com.

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Driving The Day

House Financial Services votes on a data privacy revamp and other bills at 10 a.m. … Senate Banking holds a hearing on sanctions and export controls at 10 a.m. … CFTC’s Energy and Environmental Markets Advisory Committee will meet in Nashville at 10:30 a.m. … The House Select Strategic Competition Between the United States and the Chinese Communist Party Committee holds a hearing at 7 p.m.

BIDEN IN THE 757 — President Joe Biden’s remarks in Virginia Beach later today will hit Republicans for trying to force cuts to Affordable Care Act subsidies and Medicaid as part of the battle over the debt ceiling. While House GOP leaders have yet to identify where they’d like to see cuts in exchange for a vote on the debt limit — and Biden is more than a week away from releasing his own budget – the president’s speech will highlight how program cuts would drive up health care costs and reduce access to care.

“The best guide to what's going to be on the chopping block is what has been on the chopping block in virtually every single Republican budget and fiscal plan over the last decade,” said Deputy Director of the National Economic Council Aviva Aron-Dine during a briefing with reporters on Monday evening. “None of what we're talking about was on the fringes.”

STUDENT LOAN DEBT — The Supreme Court will hear oral arguments in two cases starting at 10 a.m. today that will determine if Biden can move forward with plans to cancel roughly $400 billion of student loan debt. Setting aside the legal arguments over the proposal, certain economists — including some Biden administration allies — blasted the plan for being inflationary shortly after it was announced last year.

Of course, the benefit to borrowers could also be considerable. Student loans had higher delinquency rates than credit cards in the years leading up to the pandemic. Those rates plummeted when student loan payments and interest were paused at the height of Covid-19, according to the New York Fed’s Consumer Credit Panel.

MOST OF OUTBOUND IS OUT — Our Gavin Bade: “Despite fraying relations with Beijing, President Joe Biden is expected to forego expansive new restrictions on American investment in China, denying a push by some hawks in his administration and in Congress.”

ESG HOT SEAT — Nancy Vu reports that the House will take a procedural vote later today on Rep. Andy Barr's (R-Ky.) resolution to roll back a Labor Department rule that allows fiduciaries to take ESG factors into consideration when choosing retirement investments. While the final vote is still TBD, the resolution is expected to pass with Republicans’ slim majority.

Across the Capitol: The Senate aims to vote on Sen.Mike Braun’s identical resolution on Wednesday, the Indiana Republican told reporters yesterday. Even if the House doesn’t have a final vote on the measure Tuesday, the Senate could fast track Braun’s resolution to speed up committee and floor consideration under the Congressional Review Act.

Possible attendance issues: Sen. John Fetterman (D-Pa.) is out to continue inpatient treatment for depression. His absence ― combined with Sen. Joe Manchin’s (D-W.Va.) support for the resolution ― gives the measure a real shot of passing the Senate. But Braun mentioned that there could be a Republican missing for Wednesday’s vote, which would neutralize Fetterman’s absence. However, Braun further hinted that there could be “two or three votes that won’t reveal themselves until they get on the floor.”

Who to look out for: Keep your eyes on moderate Democrats and Independents on the 2024 ballot vote. That includes Sens. Jon Tester (D-Mont.) and Kyrsten Sinema (I-Ariz.) ― who both face tough reelection bids ― along with Sen. Angus King (I-Maine).

Reality check: Eleanor Mueller reports that the White House said Monday that President Joe Biden will veto the Republican-led repeal of the rule if it makes it to his desk.

ROBINHOOD — Our Declan Harty: “Robinhood Markets received an investigative subpoena from the SEC in December about its cryptocurrency business, according to a new filing from the California-based brokerage.”

SURPRISE — Our Victoria Guida: “Treasury Secretary Janet Yellen made an unannounced visit to Kyiv on Monday where she told Ukrainian President Volodymyr Zelenskyy that the U.S. would stand with his country ‘for as long as it takes.’”

STEP INSIDE THE WEST WING: What's really happening in West Wing offices? Find out who's up, who's down, and who really has the president’s ear in our West Wing Playbook newsletter, the insider's guide to the Biden White House and Cabinet. For buzzy nuggets and details that you won't find anywhere else, subscribe today.

In the markets

THE TROUBLE WITH MARCUS — Goldman Sachs’s investor day kicks off at 8:30 a.m. CNBC’s Hugh Son reports on how the megabank’s CEO David Solomon “faces pressure from an unlikely source — disaffected partners of his own company, whose leaks to the press in the past year accelerated the bank’s strategy pivot and revealed simmering disdain for his high-profile DJ hobby.”

BUYBACKS CONTINUE — WSJ’s Hannah Miao: “U.S. stocks have received support from a key source during 2023’s shaky market environment: companies repurchasing their own shares.”

DISNEY’S WORLD NO MORE — Reuters: “Florida Governor Ron DeSantis on Monday signed a bill that takes control of a special tax district surrounding Walt Disney World that for half a century allowed Walt Disney Co (DIS.N) to operate with a high degree of autonomy.”

HE’S BACK — Bloomberg’s Amanda Albright: “Elon Musk has regained his spot as the world’s richest person, after briefly losing the title to France’s Bernard Arnault. Musk’s wealth has been buoyed by a nearly 70% surge in Tesla Inc.’s stock price this year.”

— NYT’s Kate Conger, Ryan Mac and Mike Isaac: “Twitter l aid off at least 200 of its employees on Saturday night, three people familiar with the matter said, or about 10 percent of the roughly 2,000 who were still working for the company.”

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Fed File

ANYTHING HIGHER IS WHOLE MILK — Federal Reserve Gov. Philip Jefferson defended the central bank’s 2 percent inflation target in a speech at Harvard University on Monday. Adjusting the target would call “into question the FOMC's commitment to stabilizing inflation at any level because it might lead people to suspect that the target could be changed opportunistically in the future,” he said, adding that it would “undermine the key benefits of well-anchored longer-run inflation expectations.”

IGNORE THE NOISE — Bloomberg’s Emily Graffeo: “The Fed doesn’t seem to worry about what happens on Wall Street as much as Wall Street thinks it does.” While the central bank used to closely track market-focused indices, particularly those championed by former New York Fed President William Dudley, those indicators now “seem to have been relegated to second or third-tier status.”

JOIN POLITICO ON 3/1 TO DISCUSS AMERICAN PRIVACY LAWS: Americans have fewer privacy rights than Europeans, and companies continue to face a minefield of competing state and foreign legislation. There is strong bipartisan support for a federal privacy bill, but it has yet to materialize. Join POLITICO on 3/1 to discuss what it will take to get a federal privacy law on the books, potential designs for how this type of legislation could protect consumers and innovators, and more. REGISTER HERE.

Regulatory Corner

BLACK KNIGHT — Our Josh Sisco: “The Federal Trade Commission is expected to challenge the $13 billion takeover of mortgage data company Black Knight by financial services giant Intercontinental Exchange, according to three people with direct knowledge of the matter.”

LOVE IS BLIND. FRAUD IS NOT, CFTC WARNS — Declan reports that Wall Street’s top derivatives regulator wants some help in the dating pool. The CFTC, in a new whistleblower alert, is specifically calling for information about fraudsters who are using romance to con victims into investing in cryptocurrency, precious metal and foreign currency exchange frauds that fall under the agency’s remit.

Jobs Report

SHAKE UP AT CARLYLE — The Carlyle Group’s Chairman of the Americas Peter Clare is retiring after more than 30 years at the private equity firm, effective April 30. He’ll be replaced by Sandra Horbach and Brian Bernasek, who currently lead the firm’s U.S. buyout and growth investment platform.

John Cox is now a partner at business advisory firm Newport LLC. He is a former managing director and partner at Boston Consulting Group and is a Bush HUD alum. — Daniel Lippman

Steffanie Brady is now SVP and CIO at the Federal Reserve Bank of Boston. She most recently was CFO at the bank. — Lippman

Fly Around

The U.K. and the EU reached a deal after months of talks over contentious post-Brexit trade rules for Northern Ireland. — Our Matt Honeycombe-Foster, Andrew McDonald and Shawn Pogatchnik

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