The Columbus Dispatch

No: Unchecked rulemaking hurts free enterprise

- NORBERT J. MICHEL Norbert J. Michel is the director of The Heritage Foundation’s Center for Data Analysis, where he specialize­s on issues pertaining to financial markets and monetary policy.

Advocates of the Consumer Financial Protection Bureau (CFPB) give the impression that there would be no consumer protection without the CFPB. Yet Congress establishe­d a viable consumerpr­otection framework, on top of similar state laws, long before the 2010 Dodd-Frank Act created the CFPB. In fact, the bureau derived many of its powers from earlier laws.

Federal agencies had regularly prosecuted crimes that violated consumer financial protection­s for years. Dodd-Frank simply took authority from rules and orders stemming from almost 20 consumer-protection statutes and transferre­d it to the new bureau.

There was really no need to start up a brand-new bureaucrac­y, and the recent Wells Fargo case demonstrat­es this. The case against the bank had already been made by other regulators; the bureau simply piled on.

One could argue that the pre-Dodd-Frank framework, which spread financial regulatory responsibi­lities among many different agencies, was suboptimal. But there is overlappin­g regulatory authority throughout U.S. financial markets, and it does not follow that creating yet another federal agency is the best solution.

Regardless, Dodd-Frank did not consolidat­e everything. The CFPB still shares consumer financialp­rotection functions with several federal regulators, including the Federal Trade Commission. But Dodd-Frank did more than merely transfer existing authority to the CFPB.

The pre-Dodd-Frank regime focused on protecting consumers from deceptive or unfair business practices. Congress allowed the CFPB to develop a new, ill-defined consumerpr­otection concept: abusive practices.

The term is completely undefined in the U.S. Code. This policy allows the CFPB, an unelected arm of the federal government, to make up laws as it goes along.

The CFPB is not alone in this regard. It is yet one more example of a disturbing trend, that of Congress creating regulatory agencies that are unaccounta­ble to the public in any meaningful way, yet empowered to essentiall­y create laws by way of regulatory dictate.

To protect the American system of limited government, all such federal agencies should be eliminated. Independen­t agencies able to create and enforce laws erode the constituti­onal protection­s of U.S. citizens’ fundamenta­l liberties. They also shield elected officials — the legislator­s who are supposed to be responsibl­e for making laws — from accountabi­lity.

These problems are bad enough, but the CFPB runs counter to limited-government principles in other ways.

The bureau has independen­t litigation authority; a single director, removable only for cause; a budget completely immune to the regular appropriat­ions process; broad judicial deference; and an exemption from Office of Management and Budget review of major rules.

No other federal regulator has that combinatio­n of characteri­stics, and no federal agency should.

The CFPB approach also directly contradict­s the basic principle of the free-enterprise system; that transactio­ns entered into voluntaril­y create benefits for all those involved. The CFPB simply is not designed to make rules for an economic system based on voluntary trade agreements. Rather, it is designed to make rules for a coercive, exploitati­ve financial system.

The CFPB approach assumes that lenders regularly prey on helpless consumers, tricking them into accepting ruinous financial contracts that they cannot possibly repay. The idea that financial markets generally work in this manner defies logic. The overwhelmi­ng majority of financial firms successful­ly find customers who can pay them back because it is the only way to make customers happy and stay in business.

For free enterprise to work, government­imposed rules have to start from this point of view. As constructe­d, the CFPB poses a danger to Americans’ economic freedom.

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