Topic: Finance, Banking & Monetary Policy

CFPB’s Theory of Consumer Protection: Less Choice, More Cost

Signaling its intent to proceed with business as usual, despite ongoing controversy over its leadership and structure, the Consumer Financial Protection Bureau (CFPB) recently finalized a rule restricting the ability of financial services companies to use arbitration clauses in their contracts. 

An arbitration clause requires the parties to the contract to take any dispute to arbitration, a privately operated hearing procedure that typically has a legally binding effect. Arbitration is often attractive because it can be quicker and less expensive than a case brought in court. It also typically means that the plaintiff cannot join together with other plaintiffs to bring a class action suit. This is the crux of the issue. 

Supporters of the new rule claim that these clauses, buried in fine print and ubiquitous in almost all parts of American legal life, allow banks and credit card companies to get away with abuses that would otherwise be checked by class action litigation. An unlawful practice that costs every customer $5 is almost assuredly not worth the cost or hassle of going to court over. However, bring together a class of one million customers (most of whom will never realize they’re part of the class at all), and there’s real money at stake. Enough money to entice a lawyer to litigate and, let’s be honest, control the entire process for a chance at the typical fee of 33 percent of whatever is recovered. 

Is this true? Were companies able to get away with practices that netted them cash while harming consumers because the harms were so diffuse? Maybe.  Probably. Without speculating about what kinds of practices companies may have engaged in or how wide-spread any were (I have no intention of impugning an entire industry, but every industry has its bad eggs), to the extent litigation was required to check any particular misconduct, if the harm per customer was marginal, it is unlikely anyone would bother with litigation. 

A Legal Setback for the Fed

Twice here, yours truly has reported on The Fourth Corner Credit Union’s attempts to get the Kansas City Fed to grant it a master account, so that it could gain access to the Federal Reserve operated interbank payment and settlement system, and thereby supply ordinary banking services to Colorado’s legal marijuana-related businesses.

Although the 1980 Depository Institutions Deregulation and Monetary Control Act (DIDMCA) requires that “All Federal Reserve bank services…shall be available to nonmember depository institutions and such services shall be priced at the same schedule applicable to member banks,” the Kansas City Fed, after dragging its feet for months, summarily turned down TFCCU’s request in July 2015, on the dubious grounds that the National Credit Union Authority had earlier (and almost certainly at the Fed’s behest) denied TFCCU’s request to take part in its Share Insurance Fund — the credit-union counterpart of FDIC deposit insurance. I say “dubious” in part because TFCCU was planning to secure private insurance coverage, but mainly because insurance coverage had never been considered a requirement for having a Fed master account.

Until now, things have worked out badly for TFCCU. Although it sued the Kansas City Fed, the Fed’s lawyers replied with a motion to dismiss the suit, to which TFCCU’s lawyers responded with a counter motion, along with a request for summary judgement. Alas, TFCCU’s efforts came to naught when U.S. District Judge R. Brooke Jackson sided with the Fed. In his nine-page opinion, Jackson insisted that despite TFCCU’s “attempts to give me comfort that, notwithstanding the oath I took to uphold the laws of the United States, I can grant the relief it seeks,” despite federal justice guidelines issued in February 2014, granting banks in states where marijuana-related businesses were legal a green light to do business with them, subject to specific reporting requirements, and despite TFCCU’s stated intent to obey federal law, his hands were tied by the Controlled Substances Act.

Well, recently TFCCU got some good news at last. In a message he sent me last week, Mark Mason, the credit union’s attorney, wrote

I wanted to share the big win with you — we got Judge Jackson’s order vacated by the 10th Circuit Court of Appeals. Judge Bacharach’s opinion agreed 100 percent with our position [that the F]ed must provide all depository institutions access to the payments system and that it has no discretion in that regard.

Judge Bacharach’s well-argued opinion, which is well-worth reading in full, allows TFCCU to proceed with its suit after all. Though not yet a complete victory for the beleaguered credit union, it’s at least a giant step in that direction.

[Cross-posted from]

What the FOMC Minutes Reveal about Normalization

The Federal Reserve released the minutes from its June policy-setting meeting yesterday afternoon.  The Federal Open Market Committee (FOMC) minutes reflect an economic outlook consistent with recent public comments made by Fed officials: an improving labor market, confidence that the current path of monetary policy will achieve 2% inflation in the long run, and an expectation that economic growth will continue to rise from the disappointing Q1 figures.

Balance Sheet Reduction

The minutes note that all FOMC participants agreed to the balance sheet reduction program, which was described in more detail in an update to the Fed’s Policy Normalization Principles and Plans following the June policy meeting. In sum, the program suggests that the Fed will limit the reinvestment of the principal of maturing assets on its balance sheet through a series of monthly caps. Initially, the Fed will allow up to $6 billion in Treasuries and $4 billion in agency debt and MBS to roll off each month. Whatever matures above those limits in a given month will continue to be reinvested. Every three months the caps will increase by $6 billion for Treasuries and $4 billion for agency debt and MBS over 12 months until $30 billion of Treasuries and $20 billion of agency debt and MBS are rolling off each month. The Committee anticipates these to be the monthly caps until the balance sheet returns to a new normal that is considerably lower than the present $4.5 trillion level but appreciably higher than its pre-crisis level of around $800 billion.

One new detail revealed in the minutes is that the FOMC seems to be split on when the balance sheet wind down should be announced. Some members want to announce the start date within a couple months while others prefer to wait until late this year. Noticeably absent from the minutes is a discussion about the actual start date for the reduction plan.

Lucia v. SEC: The D.C. Circuit Divided Against Itself

Earlier this week, the D.C. Circuit court issued a surprising decision in Lucia v. SEC. The case addresses whether administrative law judges (ALJs) are “inferior officers” and are therefore subject to the appointments clause. But the heart of the case is far less wonky than it seems. The question is really this: what makes a judge a judge? If a person has the power to ruin a company, bankrupt a person, force the person to give up a lifelong profession, and bar the individual from interacting with friends and former colleagues, and if the person does this wearing a black robe and sitting amidst the trappings of court of law, is that person an officer? Because ALJs do all of this and more. Their decisions about whether evidence is admissible and their determinations about whether a witness is lying have a profound effect not only on the hearings over which they preside, but over any subsequent appeal. If this much authority and discretion are not enough, what on earth is?

It seems the judges, who sat en banc to hear the case (a rare occurrence, signaling a case of particular import), could not agree. They split right down the middle and deadlocked. The earlier decision will stand…for now. The case is almost assuredly bound for the Supreme Court. But until the High Court takes it up (and while it seems this is the sort of case they would take, there are no guarantees on that front), the D.C. Circuit’s earlier ruling, finding that ALJs are not inferior officers but “mere employees” will stand.

Aside from the absurdity of stating that individuals with so much authority are “mere employees,” the earlier ruling is problematic for the simple reason that it relies on a poorly reasoned ruling in an earlier case by the same court. In Landry v. FDIC, the D.C. Circuit considered the role of ALJs at the FDIC and found they were simply employees because their decisions were not final; they were final only when issued by the FDIC itself. Similarly, ALJs at the SEC issue “initial,” not “final” decisions. 

It seems odd that an individual could perform almost all the same tasks a federal judge does, and yet because there is the possibility that the full commission could review and overturn the “initial” decision, that individual lacks the discretion of even an inferior officer. It also seems I am not alone in my opinion. The D.C. Circuit expressly stated its interest in revisiting Landry when it agreed to hear Lucia en banc. Unfortunately, my opinion seems to be shared with only an even half of the sitting judges in this Circuit. We will simply have to wait to see what the Justices up the way make of it. 

The Impetus for GSE Reform

In an environment of heightened partisanship there is at least one policy issue that people across the political spectrum agree on: The current status quo for Fannie Mae and Freddie Mac–the government-sponsored enterprises dedicated to creating and buttressing the market for mortgage-backed securities–needs to be fixed soon.

There is an arithmetic exigency underlying this sentiment: under the terms of the third Amendment to HERA in 2012, the two GSEs will be utterly bereft of capital next year, and will thereafter need Treasury to provide them with such if they are to continue buying, packaging, and reselling mortgages. Such an arrangement is politically untenable and would exacerbate their current problems even if it were.

The larger imperative is that the current mortgage market is broken and dragging the economy down: home building in 2016 was roughly 60% of its pre-financial-crisis levels: To put that number in perspective, new housing starts last year were lower than every other non-recession year prior to the Great Recession since 1966, when there were ⅔ as many households as today.

There are myriad reasons why we’re not building nearly as many houses these days: for instance, new regulations the last eight years have increased the cost of building a new home by roughly 30%–a datum that’s true both for single family homes and multi-unit dwellings.

Financial Alphabet Soup

On Monday, the Treasury Department released the first of four planned reports on the U.S. financial system. While the 150-page report, focusing on banks and credit unions, includes a number of observations and recommendations worth discussing, there is one page I’d like to highlight here. It’s a single chart. And yet it speaks volumes about the current state of regulation in the financial sector. Here’s the chart:

Those in Washington often talk about the “alphabet soup” of federal agencies. We do love our acronyms here. But this chart shows that the financial sector has a complete soup all of its own. There are nine federal regulators who oversee the financial sector. Additionally, each state has its own regulators, typically one each for securities, insurance, and banking. Plus, there are the self-regulatory organizations—quasi-private bodies whose decisions can have the effect of law on the companies and individuals they oversee. A single organization can be subject to as many as six regulators. An organization that does business in multiple states can potentially be subject to regulation in each of them, in addition to regulation at the federal level.

Experts and the Gold Standard

Many mainstream economists, perhaps a majority of those who have an opinion, are opposed to tying a central bank’s hands with any explicit monetary rule. A clear majority oppose the gold standard, at least according to an often-cited survey. Why is that?

First some preliminaries. By a “gold standard” I mean a monetary system in which gold is the basic money. So many grains of gold define the unit of account (e.g. the dollar) and gold coins or bullion serve as the medium of redemption for paper currency and deposits. By an “automatic” or “classical” gold standard I mean one in which there is no significant central-bank interference with the functioning of the market production and arbitrage mechanisms that equilibrate the stock of monetary gold with the demand to hold monetary gold. The United States was part of an international classical gold standard between 1879 (the year that the dollar’s redeemability in gold finally resumed following its suspension during the Civil War) and 1914 (the First World War).

Why isn’t the gold standard more popular with current-day economists? Milton Friedman once hypothesized that monetary economists are loath to criticize central banks because central banks are by far their largest employer. Providing some evidence for the hypothesis, I have elsewhere suggested that career incentives give monetary economists a status-quo bias. Most understandably focus their expertise on serving the current regime and disregard alternative regimes that would dispense with their services. They face negative payoffs to considering whether the current regime is the best monetary regime.

Here I want to propose an alternative hypothesis, which complements rather than replaces the employment-incentive hypothesis. I propose that many mainstream economists today instinctively oppose the idea of the self-regulating gold standard because they have been trained as social engineers. They consider the aim of scientific economics, as of engineering, to be prediction and control of phenomena (not just explanation). They are experts, and an automatically self-governing gold standard does not make use of their expertise. They prefer a regime that values them. They avert their eyes from the possibility that they are trying to optimize a Ptolemaic system, and so prefer not to study its alternatives.