The Volokh Conspiracy

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Volokh Conspiracy

New column at US News and World Report


Chad Reese and I have a new column at U.S. News and World Report: "Redundant Today, Essential Tomorrow: Congress is Taking Necessary Steps to Keep the Consumer Financial Protection Bureau in Line."

An excerpt:

So if the bureau is already doing voluntarily what Duffy and Pittenger are asking them to, why is legislation necessary?

The answer has to do with the combination of the uniquely unaccountable nature of the Consumer Protection Bureau and its vast, vaguely defined powers. In short, lacking most of the standard tools of congressional oversight, such as budgetary appropriations and the power to confirm most senior officials, Congress' only power to control the bureau is by substantive mandates that constrain the agency's discretion.


With respect to most agencies, this level of Congressional oversight is not necessary, because ordinary tools of checks and balances operate. Other agencies, like the Federal Trade Commission or the Commodity Futures Trading Commission, have a bipartisan, multi-member panel running the organization. If the Consumer Financial Protection Bureau operated in the same manner, Congress would know that even if the commission's chair suddenly decided to do an about-face on one of its long-standing practices, other members of the commission could easily voice concerns, or even join together to vote against the shift.

Likewise, if the bureau were part of the normal appropriations process instead of automatically receiving its budget each year, Congress could exercise its spending authority to encourage the bureau to maintain practices appropriate to advancing its mission of protecting consumers.

Lacking these traditional checks and balances, however, Congress is left with the only tool at its disposal: legislating specific mandates on an otherwise unaccountable agency to ensure continued transparency. It would be far better to restructure the agency to impose on it ordinary checks and balances rather than resorting to the cumbersome means of legislating accountability.