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The Republican Effort to Stop All Regulators

Rep. Brad Miller (D-NC) had an opinion piece in Politico last Friday about the GOP’s strategy to deregulate the financial sector by simply ensuring that nobody does the regulation. During the day on Friday, he told me that the NYT’s Binyamin Applebaum approached him, telling him that he was about to write the same story. That story appeared today.

Senate Republicans are blocking a wide range of presidential nominees as a means of reshaping and restraining the Obama administration’s economic policies on prominent issues like housing, finance, foreign trade and offshore drilling.

The list of vacancies in senior economic and regulatory positions has lengthened to roughly a dozen since last November, when Republicans won enough Senate seats to prevent confirmations. The White House has not tried to fill several of the positions. Some of the people it has named have been stuck in legislative limbo, while others have given up, including the Nobel laureate Peter A. Diamond, who withdrew his nomination for a seat on the Federal Reserve’s Board of Governors.

Applebaum impressively gets a former GOP aide to admit that they aren’t blocking particular nominees because of differences over their character or beliefs; the plan is to block ANY nominee for any position. “This isn’t about any particular appointee — Ben Franklin could come back to life and they would oppose him,” according to Joseph Engelhard. An aide to Richard Shelby intimated that Republicans ALWAYS did these kinds of blanket oppositional stances, it’s just public now.

But the goal here is clear, as Miller puts in his op-ed. “Laws don’t enforce themselves,” he writes. “No regulators, no regulation.”

This is really a savage attack on government itself. During the Bush era, the regulators willingly looked the other way. Things have barely improved in the Obama era, but the Senate seeks to derail any improvement on that front by stopping the regulators from taking their posts. As a result, the agencies are defanged.

In many cases, as a precondition for confirming a regulator, Republicans are seeking specific policy items. They want to gut the Consumer Financial Protection Bureau or target its funding, and they won’t confirm a director until they do. They want corporate written trade deals and they won’t confirm a Commerce Secretary until they get them. David Vitter wants offshore drilling permits, and he’s holding up the Fish and Wildlife Service until he gets that.

Remember that secret holds were “banned” under a new set of rules that came into the Senate this year. But this actually maintains that practice, in a way. If the hold is blanket and over a policy demand, it’s not exactly open and transparent. It comes as no surprise that the companion legislation to this Senate rules deal, to reduce the amount of confirmable positions in the government, is facing a filibuster itself.

So what are the options for governance when faced with such a predicament? First, the President needs to use the recess appointment power. The Senate Republicans did not “block” recess back around Memorial Day. An adjournment motion cannot be filibustered. Senate Democrats made the decision not to waste time getting an adjournment if the Administration gave them no signal that anyone would be recess appointed. The House can block adjournment, but they have said publicly that they would probably not, since the Senate would then move to block their adjournments and an arms race would ensue.

But there are other options. For example, when a regulator position goes open, often the deputy or chief of staff gets to hold the job in a placeholder capacity. The Administration actually has some say here. “There is no excuse for (John) Walsh being in charge of OCC,” said Rep. Miller to me at Netroots Nation, referring to the Office of Comptroller of the Currency, a bank-friendly agency. Walsh was bank lobbyist John Dugan’s former chief of staff when he ran the agency under George W. Bush. Treasury Secretary Geithner made that call. It didn’t need to be made. You could pluck a more dedicated regulator from the depths of the civil service to be the interim replacement. Instead, we have the bank lobbyist’s best friends, and as a result, “OCC has been singularly useless,” according to Miller.

Finally, the Administration could get creative. They could empower the CFPB if it stays in Treasury on July 21, for example.

Contrary to popular opinion (and bank lobbyist fond hopes) the CFPB is not stymied if a director has not been installed. What would happen is:

1. The CFPB does not get moved to the Fed. It stays in the Treasury under Geithner.

2. The CFPB cannot act on new regulatory powers created by Dodd Frank, but it can act in one of its planned and still large roles, that of the overseer of existing consumer financial regulation which is now scattered among many agencies. Those powers are transferred to the CFPB as of July 21 […]

The CNN story outlines some of the things that the CFPB can do as of July 21:

* Send bank examiners in to inspect the books of the largest banks with more than $10 billion in assets, which account for 65% of all mortgages.

* Ensure that the biggest banks are abiding by credit card laws that require more disclosure and crack down on fees. They can also craft new rules aimed at stopping banks that try to get around the credit card laws.

* Ensure that consumers denied bank loans based on a bad credit scores, get to see a copy of their credit scores for free.

* Finish crafting rules that ban banks and other lenders from making mortgages without verifying income, an effort end the practice of liar loans.

* Create new rules under existing consumer laws. For example, the bureau would have the power to crack down on the kinds of fees banks charge customers who overdraw their checking accounts, although that’s not top of the list right now.

In other words, you could keep Warren at CFPB and have her just attack the financial sector with rulemaking and investigations and enforcement of existing laws. Even if the White House was uncomfortable with that, why wouldn’t they threaten it to get the deal they seek? Indeed, Warren would have a lot of latitude to impose this without much input.

So there are a lot of options to deal with this problem. It’s just a matter of the will to deal with it.

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David Dayen

David Dayen

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