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The New Consumer Protection Agency and Bureaucratic Reality

Now that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law.

The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress believe that Professor Elizabeth Warren, who came up with the idea for a consumer protection agency for the financial sector and has been an aggressive consumer advocate during the entire financial crisis, should be the President’s choice. The banking industry’s position is “anyone but Warren.”

Elizabeth Warren (who was my colleague at the University of Texas for many years) is the most qualified candidate. Although she would inevitably have to make compromises in launching the new agency, she is a charismatic leader who would remain a strong consumer advocate and will not be bullied or hoodwinked by the banking industry.

As importantly, the appointment will make a strong symbolic statement about the President’s priorities. The appointment offers a unique opportunity for the President to demonstrate to the American public that he is on the side of consumers and not Wall Street.

We should bear in mind, however, that the future of this important agency also depends on other decisions that are being made in the Administration over the next few months. The bureaucratic realities facing a new agency may have as great an impact on its future as the credentials and personality of its first leader.

First, partisan gridlock in the Senate will ensure that the confirmation hearings for the head of this new agency will be lengthy and controversial. The Republican minority in the Senate has successfully delayed confirmation of many far less consequential appointees during the first 18 months of the Obama Administration. Given the upcoming Senate recess and the realities of the fall political campaign season, it could take more than six months to get the president’s nominee confirmed.

In the meantime, since Congress placed the agency within the Treasury Department, all of the important decisions will be made by Secretary Timothy Geithner or one his subordinates. Those who are interested in the future of this agency should keep a close eye on the upper levels of the Treasury Department, where decisions are being made right now that are likely to bind the hands of whoever officially heads the agency at the end of the confirmation battle. Pressing issues that probably cannot await the conclusion of a lengthy confirmation process include how the agency is organized, how its budget will be allocated among its various functions, and whether decisions will be made from the bottom up through working groups or hierarchically from the top down. Given that the new agency must meet statutory deadlines, some regulatory initiatives will probably be underway when the new agency head arrives. Once many of these implementing decisions are made, it will be difficult to undo them.

Second, the new agency will need a highly qualified staff if it is to take on the sophisticated Wall Street bankers and lawyers who are at this moment searching for every conceivable loophole and permutation of the corporate form capable of minimizing the impact of the new law’s protections on the banking industry.

Unfortunately, the new agency head will not get to choose the staff from scratch. Most of the lower level officials who write the implementing regulations, draft the interpretative guidelines and bring the enforcement actions will come from existing federal agencies, most likely in the Treasury Department.

In the past, old-line federal agencies have used the creation of a new agency as an opportunity to unload unwanted staff. It is therefore not surprising that new agencies often get off to slow starts. While the new Consumer Financial Protection Bureau leader is awaiting confirmation, someone needs to be looking out for the interests of the new agency in the bureaucratic maneuvering that is probably going on right now.

At the end of the day, what is happening behind the imposing façade of the Treasury Building may affect consumers of financial services as much as what is happening in the West Wing of the White House.

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Thomas McGarity | July 28, 2010

The New Consumer Protection Agency and Bureaucratic Reality

Now that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law. The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress […]

Lena Pons | July 27, 2010

Auto Safety Bill Takes Some Bruises in the Senate; Automakers Try for More

The Motor Vehicle Safety Act of 2010 (H.R. 5381/S. 3302), the primary legislation on the table in response to the Toyota unintended acceleration fiasco, went through the committee process in the House and Senate earlier this summer. The bills, as introduced, included some tough provisions to respond to gaps exposed by the Toyota episode. Among […]

Catherine O'Neill | July 27, 2010

EPA’s New Guidance on Considering Environmental Justice in Rulemaking a Welcome First Step

The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental […]

Daniel Farber | July 26, 2010

Using Disclosure as a Smokescreen: How Behavioral Economics Can Deflect Regulation

Cross-posted from Legal Planet. A key figure in behavioral economics recently issued a warning about over-reliance on its findings.  In a NY Times op. ed, Dr. George Lowenstein raised questions about some uses of behavioral economics by government policymakers: As policymakers use it to devise programs, it’s becoming clear that behavioral economics is being asked […]

Yee Huang | July 23, 2010

At Thirty Five, Endangered Species Treaty Has Mixed Record

July 1 marked the 35th anniversary of the effective date entry-into-force of the Convention on International Trade in Endangered Species (CITES). While CITES is among the stronger international conventions, its strength is diminished by a lack of an enforcement mechanism and political maneuverings. The arrests and cargo seizures may not make headlines often, but international […]

Alice Kaswan | July 23, 2010

Climate Change: The Ball’s Bounced Back to the States, EPA, and DOE

After endless negotiations and draft bills, the Senate has given up on climate legislation that would place any sort of cap on the nation’s emissions, and will likely settle for a few select energy initiatives. Congress’ failure to act is galling. Hand wringing is fully justified. But what now? State and local governments have become accustomed to federal paralysis, […]

Shana Campbell Jones | July 22, 2010

Big Chicken Loses Round One in Groundbreaking Water Pollution Case

Thanks to a strong ruling from a federal judge in Baltimore Wednesday, large poultry companies are one step closer to being held accountable for the pollution (manure) the small farms that grow chickens for them generate. Responsibility: it’s not just for the little guys anymore. In March, several environmental groups in Maryland sued Perdue Farms, […]

Matt Shudtz | July 21, 2010

Miner Safety and Health Act Faces Committee Vote Today

Just before the July 4 recess, Representative George Miller, Chairman of the House Education and Labor Committee, introduced the Miner Safety and Health Act of 2010. Recent explosions at Massey Energy’s Upper Big Branch Mine, Tesoro’s Anacortes (WA) refinery, BP’s Deepwater Horizon drilling platform, and U.S. Steel’s coke oven in Clairton (PA), highlight the life-threatening hazards […]

Holly Doremus | July 21, 2010

Finally, a National Ocean Policy

Cross-posted from Legal Planet. Last year, I noted that the interim report of the Interagency Ocean Task Force appointed by President Obama marked a promising step toward a national ocean policy. Now the Task Force has issued its final recommendations, which the President promptly began implementing. A national ocean policy has been a long time […]