Introducing a Quick Guide to Regulatory Advocacy

Read the Quick Guide

What should advocates consider when developing a regulatory advocacy strategy? How can advocates maximize their impact?  Does it matter where a rule is in its life cycle, from pre-rule to proposed rule to final rule?  Our new quick guide to regulatory advocacy helps you map out your approach and choose the tools best suited to where you are in the process and what your goals are.

CRREA Project Recommendations

No matter what your goals are or where you are in the rulemaking process, we have a few recommendations:

  • Because agencies are required to consider evidence and weigh the costs and benefits of their rules carefully, lead with facts and information, rather than opinions or arguments.
  • While it is not always necessary to reference the law, tying in the agency’s statutory mandate can be very powerful, whether the statute that created the agency (like the Dodd Frank Act and the CFPB) or a statute that delegates legislative authority for a specific rule.
  • Finally, ask questions. You might illuminate what additional information from you an agency would find valuable or use an isolated observation to prompt the agency to conduct further investigation into a potential pattern.

This quick guide to regulatory advocacy follows the lifecycle of a rule to illustrate the full menu of opportunities to engage and work with an agency. Geared to the federal level, it is designed to help advocates map out their goals and intentionally use tools that will best influence regulators at each stage of a rulemaking.

Regulatory Advocacy in the Pre-Rule Stage

The pre-rule stage is a particularly powerful place to engage. By engaging at the pre-rule state, community groups and advocates can help set the agency’s agenda. For example, an agency may put out a request for information (RFI) to gather more information about an issue before issuing a notice of proposed rulemaking (NPRM). Comments on an RFI shape how a rule is eventually drafted and whom it protects. The impact at the RFI stage can be even greater than at the proposed rule stage because the agency can still choose to propose or not propose anything it wants. At the pre-rule stage, the agency is not yet constrained to stick to a “logical outgrowth” of what it has proposed in finalizing the rule.

We can see how significant an RFI can be in terms of setting the agenda with the Consumer Financial Protection Bureau’s current RFI on the Equal Credit Opportunity Act (ECOA). In ten short questions, the CFPB is raising fundamental questions about the future of fair lending. The CFPB asks about the treatment of disparate impact under ECOA, for example, as well as the relevance of the Supreme Court’s Bostock decision to the fair lending protections afforded LGBTQ people. These are questions of wide-reaching importance and are wide open for comment. What we tell the CFPB now will help determine whether and what rulemaking the agency proposes in the future. Our comments now help determine what we get to comment on in the future. The comments may also shape the agency’s approach to supervision and enforcement. (If you want to comment, the deadline is December 1. We have a How to Comment checklist you can use.)

Even before an agency puts out an RFI, though, advocates can reach out to the agency to discuss issues of importance to the advocate and the community she serves. This could be a statute that has been passed but not yet implemented (like the regulation of Property Assessed Clean Energy lenders under the Truth-in-Lending Act) or a concern about implementation of existing regulations. This could be a question about research the agency is doing. For example, the CFPB noted in a blog that it was looking into the “Black-White gap in student loan defaults.” Advocates working on racial equity or student lending might want to inquire what the agency’s research shows and how it plans to address the gap. Arranging a meeting or submitting a letter can draw the agency’s attention to and help frame its understanding of an issue.  With sustained and coordinated effort, pre-rule stage advocacy can move an issue onto an agency’s regulatory agenda.

Thanks for Feedback

We thank Carla Sanchez-Adams, Linda Jun, Sarah Lamdan, Marissa Jackson-Sow, and Kelly Cochran for their invaluable input and feedback on this guide. We know you will have questions or may want to know more about some of the terms, so we’ve created a  glossary to go along with it. We’ll have more to say on that soon. In the meantime, we hope this framework is useful for your advocacy—please let us know your thoughts!

Sarah and Diane

 

 

How CFPB Develops Policy:  A Fragile Cross-Matrix


This is the second post in a series on how CFPB develops policy: the vision, the reality, and the future.

In creating the CFPB, in what was and is a radical departure from the structure and mandate of other federal agencies, Congress sought to give prominence to the voices and experiences of marginalized, or, in the language of the statute, “traditionally underserved”  communities, through research, consumer complaints, market monitoring, and what are known as the “special populations offices”–Servicemembers, Students, Older Americans, and Fair Lending.   In this blog series, we explore:  

  • How was CFPB uniquely designed to listen to the voices of the “traditionally underserved”?  
  • How have recent reorganizations at the CFPB have undermined this congressional mandate?
  • What could be done to course correct and build a CFPB that can serve consumers and the public well for the next 100-years? 

Current demands for racial and economic justice make this conversation, about how the CFPB can fulfill its charge to listen to the voices and experiences of traditionally underserved communities, more pressing than ever.

Early Organizational Decisions

In our prior post in this series, we reviewed the congressional direction to the CFPB to listen to the voices and experiences of traditionally underserved communities in the CFPB’s policy making.  How did this congressional direction play out?

Let’s start at the beginning.  If you had been a member of the team making early operational decisions about standing up the CFPB in 2011, you would be forgiven if you did not know where to start in sketching out a Bureau organizational chart.  

The Dodd-Frank Act did mandate some specific offices and functional units,  but was mostly silent on how the CFPB’s rulemaking, supervision, and enforcement functions should be structured or where the special populations offices, the consumer complaint function, the Office of Research, or other functions ensuring CFPB accountability to traditionally underserved communities were housed.  The statute provided no guidance about whether the 17 federal consumer financial laws the CFPB inherited should influence its organizational chart.  For example, the Federal Reserve Board had an organizational unit dedicated to administering and enforcing the Home Mortgage Disclosure Act: should the CFPB do the same?  

Early CFPB leaders settled on six “Divisions,” led by “Associate Directors.”  The Supervision, Enforcement and Fair Lending Division spurred efforts to integrate the strategies and operations of its component offices.  This integration sent a powerful message to industry that supervision and enforcement were linked strategies, and that fair lending would be a core focus of the CFPB in exercise of its supervisory and enforcement actions.  The Research, Markets and Regulations Division grouped the statutorily-mandated Office of Research with markets teams and rulewriters in a single division, similarly signaling a commitment to data-driven policy, and integration of diverse expertise, at every stage of the rulemaking process, including the establishment of rulemaking priorities.

Figure 1 CFPB’s Divisions in 2017 and FY 17 Headcount 

 

Under this organizational chart, offices with a specific focus on traditionally underserved communities were, in many cases, placed in Divisions without a primary policymaking mandate.  The complaint function, named “Consumer Response,” reported to the Associate Director for Operations Division.  The Office of Community Affairs was housed in the External Affairs Division, while its statutory functions, providing technical assistance on the needs and assistance of traditionally underserved communities, were given to the Office of Financial Empowerment, housed in the Consumer Education and Engagement Division.  The offices for financial education, older Americans, service members, and students were also housed in the Consumer Education and Engagement Division.  

With the exception of the Office of Consumer Response, these offices mandated by Dodd-Frank to focus on traditionally underserved communities and certain specific populations were quite lightly staffed.  Offices such as Servicemember Affairs, Students, and Older Americans each had fewer than 15 team members.  Altogether the offices focused on traditionally underserved communities constituted a trivial fraction of the CFPB’s budget.

Most critically, under this organizational structure, there were no explicit racial or even consumer-centric inputs formally embedded into the CFPB’s rulemaking process, although certainly the CFPB worked to fulfill its statutory mission to protect consumers.  Instead, the voices of the “traditionally underserved” were funnelled into the Research, Markets, and Regulations Division via “cross-matrix” engagement.

Cross-Matrixed Policy Making in the Obama Era

Under the tenure of Director Cordray, policy making was intentionally, sometimes exasperatingly, cross-matrixed.  Teams on policy initiatives might be led by a manager from one office with staff from other Offices and Divisions.  As described in a 2018 GAO report, policy was developed through a “One Bureau” initiative, which brought together subject matter experts from across the CFPB to set policy priorities and design and develop policy initiatives.   Representatives from every office in the CFPB were expected to attend weekly “Policy Committee” meetings and invited to weigh in on policy matters great and small. Teams would spend weeks preparing for Policy Committee meetings with decks and slides.  Objections raised during a Policy Committee briefing could derail a proposal and require cross-division negotiations before the matter proceeded to the Director for approval.   

In this cross-matrixed environment, offices without formal decision rights in CFPB rulemaking, supervisory, or enforcement actions, such as the Office of Community Affairs or the Office of Older Americans, were able to raise concerns regarding the impact on traditionally underserved communities and other groups of consumers.  Dozens of fair lending supervision activities opened in each fiscal year, even though the Office of Fair Lending staff constituted less than 10% of the total staff of the Supervision, Enforcement, and Fair Lending Division.  The Office of Research built a credit card database of de-identified loan-level data covering over 80% of the credit card marketplace, as well as a mortgage database with a sample of mortgages representative of up to 95% of the market, and began issuing regular reports on a range of consumer credit topics.  This unprecedented research capability was made possible by cross-Bureau support, while the formal resources of the Office of Research remained modest, with a headcount of less than 45 staff.

Structural Changes in a Trump-Controlled CFPB

The ability of the special populations offices to influence policy was dependent on these internal cultural “cross-matrix” norms and practices.  Policy meetings with Director Cordray would often include tens of people, including managers and staff, from across the CFPB.  Acting Director Mulvaney, however, preferred a more streamlined and hierarchical approach.  Meetings shrank.  The One Bureau initiative and Policy Committee meetings were discontinued.  Institutional channels for cross-divisional consultation and collaboration vanished.  A two-year hiring freeze left the smaller special populations offices particularly depleted, further impeding cross-CFPB consultation.   

The first, and perhaps most visible, change to the organizational chart was moving the Office of Fair Lending out of the Supervision, Enforcement and Fair Lending Division.  While the CFPB’s  spokesman proclaimed that the move was not intended to reduce the number of fair lending cases, but only to increase “efficiency and consistency,” it would be more than two years before the CFPB would bring another fair lending enforcement case, other than actions based solely on errors in Home Mortgage Disclosure Act reporting.  This was the longest absence of fair lending referrals in the agency’s history.  

Other, less notorious, changes to the CFPB’s organizational chart also damaged the CFPB’s ability to be responsive to traditionally underserved communities and consumers.  Four offices with a mandate related to traditionally underserved communities and consumers have disappeared from the most recent CFPB organizational chart: the Offices of Community Affairs, Financial Education, Servicemember Affairs, and the Office for Financial Protection of Older Americans.  All are now housed, along with the Office of Students, as  offices within the Office of Consumer Education, itself now partt of a new Division of Consumer Education and External Affairs.  According to the organizational chart, “The Consumer Education Office provides information for American consumers to consider in their financial decision-making process.” Absent is the statutory mandate to twin education with empowerment.  Instead, traditionally underserved communities and consumers become the passive recipients of information, without the visible, formal channels for engagement with the CFPB that their prior prominence on the organizational chart afforded.   

As we can see with the sharp drop-off in fair lending cases, structure both reflects leadership priorities and facilitates certain outcomes.  The decline in visibility of statutory offices designated  to ensure the visibility of special populations and traditionally underserved consumers similarly both reflects leadership de-emphasis on racial and economic justice and further impedes the ability of those offices to do their statutorily-mandated work.

In the next blog post, CRREA Project considers how future CFPB leadership could center traditionally underserved communities and consumers.

Dodd-Frank Act’s Mandate to the CFPB to Center Traditionally Underserved Communities


This is the first post in a series on how CFPB develops policy:  the vision, the reality, and the future.

In creating the CFPB, in what was and is a radical departure from the structure and mandate of other federal agencies, Congress sought to center the voices and experiences of marginalized, or, in the language of the statute, “traditionally underserved”  communities.    In this blog series, we explore:  

  • How was CFPB uniquely designed to center the voices of the “traditionally underserved”?  
  • Have recent reorganizations at the CFPB undermined this congressional mandate?
  • What could be done to build a CFPB that can serve consumers and the public well for the next 100 years? 

Current demands for racial and economic justice make this conversation more pressing than ever.

Why the CFPB Was Created

When the CFPB was created in the wake of the 2008 financial crisis, legislators understood that predatory subprime lending had taken down the U.S. financial system, and the hard-earned wealth of many families, particularly Black and Brown families, along with it. The Senate Report  on the Dodd-Frank Act cited a Federal Reserve Board study, which found that 54% of African-Americans and 47% of Hispanics received high-cost mortgages in 2006, compared to the only 18% of non-Hispanic Whites who had received high-cost mortgages. Borrower-related factors other than race, such as income, accounted for only one-sixth of this disparity.  

To this day, African American families, in particular, have not recovered from the economic fallout of the subprime lending boom and bust. 

Because Congress believed inconsistent application and enforcement of consumer protection and fair lending laws had enabled the crisis, a new agency was created. This agency, the CFPB, was charged with being consumer focused, with special attention to “traditionally underserved consumers.”  A focus on racial and economic equity was embedded in the CFPB’s creation.

The use of the term “traditionally underserved consumers” reflected an understanding that many consumers are not, and have never been, well served by traditional financial service providers.  This understanding crossed the aisle during the years leading up to the CFPB’s creation: President Bush’s Advisory Council on Financial Literacy , for example, used the expansive definition of “credit underserved” to reference the unbanked and underbanked.  In committee hearings following the financial crisis, “underserved” was frequently used to describe low-income communities, communities of color, and, occasionally, older people.

The CFPB’s Structure, as Mandated by the Dodd-Frank Act

Whether in the enforcement authority given the CFPB for fair lending or in the expectation that market monitoring would include the risks of consumer financial products or services to traditionally underserved consumers, Congress charged the CFPB with seeing, hearing, and acknowledging those marginalized and discriminated against communities whose exploitation had led directly to the Great Recession.  This mandated focus on the “traditionally underserved” is woven into the CFPB’s mission, authorities, and statutory organizational structure.  

The Dodd-Frank Act sets forth a radically new vision for how the CFPB, as a government agency,  should orient itself and develop policy.  There are seven offices or functional units the Director of CFPB is required to establish:  The Office of Research is charged with conducting research and reporting on access to “fair and affordable credit” for traditionally underserved communities and, more generally,  “the experiences of traditionally underserved consumers” with credit and other consumer financial products and services.  Next, the Office of Community Affairs is tasked with “providing information, guidance, and technical assistance” on traditionally underserved communities’ experiences with consumer financial products and services.  Then comes the consumer complaint function, itself a radical mandate with a clear purpose of making visible to the agency, and to Congress, consumers’ experiences with credit, in their own voices.   Offices for Fair Lending, Financial Education, Service Member Affairs, and Older Americans all follow. Each of these offices is tasked with “coordinating” with relevant state and federal agencies, and some are tasked with providing reports to Congress.  

Congress added more mechanisms for robust input into the agency’s work.  For example, a private loan ombudsman has duties ranging from receiving and resolving student loan borrower complaints to developing policy recommendations annually for the Department of Education and multiple congressional committees.  Congress also mandated that the Director of CFPB establish a Consumer Advisory Board, whose members are to include “representatives of communities that have been significantly impacted by higher-priced mortgage loans,” as well as members with expertise in fair lending and civil rights.

A Mission of Accountability to Racial and Economic Justice

In short, at the heart of CFPB’s mandated structure is a mission of accountability to racial and economic justice.  The language is broad enough to permit inclusivity and evolution, but pointed enough to be clear.  The CFPB must pay attention to the voices and experiences of Black and Brown communities, of low-income communities, of communities with particular vulnerabilities, such as older Americans or service members.  Congress envisioned fundamental accountability to these specific communities through a specific, mandated structure. 

In the next blog post, CRREA Project will assess how this design played out.  Did Congress fall short in its design? Did the CFPB fall short in its execution?  Or was it just right?