Watching Congress at work is a little like watching a couple of 7-year-olds hang out together all summer long.
By the time the dog days of August arrive, afternoons in the back yard usually end with, "Oh yeah?" "Yeah." "Well, take that!" Which is about where one kid's mom steps in, grabs him by the ear and marches him indoors for a nap, while the other kid wanders home for a Bomb Pop.
In the U.S. Senate, the "Yeah" was when the banking committee pushed an unpopular CFPB provision into a popular EFTA bill. The "Take that!" was when one senator pushed back, putting a hold on the bill to prevent it from going to the floor for a vote. And with that, everyone went home.
Technically speaking, the hold on S. 3394 is "secret" or "anonymous" (which just means that a senator places the hold privately through the party leader rather than publicly on the Senate floor), but it's universally known that it was brought by Sen. Jim DeMint, R-S.C., who opposes the Dodd-Frank legislation in general and the Consumer Financial Protection Bureau in particular.
DeMint, founder of the Senate's Tea Party Caucus, is not alone: All but three Republican senators voted against Dodd-Frank (as did one Democratic senator, Russ Feingold of Wisconsin). And many outside of government are challenging the act, as well. A small Texas bank and a pair of advocacy groups have filed a lawsuit alleging that both the CFPB and President Obama's recess appointment of its director, Richard Cordray, are unconstitutional.
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"It's not that he doesn't support the original Senate bill [S. 3204], which was the Senate version of the one that passed in the House [H.R. 4367]," said David Tente, executive director of the ATM Industry Association's U.S. chapter. "He's saying that he's not supporting the combined bill … which includes the privacy protections from the CFPB, because that's a separate bill in the House. [The Senate] figured, since they support [the CFPB legislation] in the House, they'd just combine it in the Senate and it would be an easy thing to get done."
It seems that DeMint is using the hold on S. 3394 to try to force a symbolic vote in the Senate on the repeal of Dodd-Frank in its entirety. But his actions have caused dismay among many Republicans who are backing fee placard reform, which even DeMint himself supports.
Tente recently attended a conference where he talked to a financial industry member closely involved with the fee placard legislation. "He basically said, 'Yeah, DeMint's just trying to tweak some of the people there.' It's all politics," Tente said.
While it is possible that DeMint's heel-digging over the CFPB could prevent fee placard reform from passing, Tente said it didn't seem likely. "There's so much support there and the feeling is that he's going to come around eventually anyway," he said. "And DeMint's going to have a lot of people mad at him on his own side if he doesn't step out of the way."
One possibility is that the CFPB language could simply be stripped from the bill, returning it to its fee placard-focused origins. Such an action would virtually ensure the bill's passage in the Senate, where it has broad bipartisan support, Tente said. And it's questionable whether CFPB privacy legislation is needed at all, since Cordray has already said that privacy of information is inherent in the CFPB's charter, even if it's not explicitly stated.
But even if elimination of CFPB language is the outcome, it can't happen in the next few weeks. On August 4, Congress adjourned for summer recess, or "district work period," and won't be back in session until Sept. 10, following both parties' presidential conventions.
Further, the House is scheduled to re-adjourn on Sept. 21 and will not meet again until November 13, after national elections. And assuming that: 1) the Senate finally votes on fee placard legislation; and 2) it passes, House assistance will be required to reconcile language between its version of the bill and the Senate's before it can go to the president for a signature.
It's possible that a lame duck Congress could pass popular legislation during the four weeks before Christmas break when both houses are in session. It's certain that "Legislators Playing Nicely" will top the ATM industry's wish list.
For more on this topic, visit the regulatory issues research center.