Congress Should Use Congressional Review Act to Strike Down Ill-Advised Arbitration Rule

By Alden Abbott, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation

On July 10, the Consumer Financial Protection Bureau announced a new rule to ban financial service providers, such as banks or credit card companies, from using mandatory arbitration clauses to deny consumers the opportunity to participate in a class action (“arbitration rule”).

The arbitration rule’s summary explains:

First, the final rule prohibits covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service.

Second, the final rule requires covered providers that are involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau and also to submit specified court records. The Bureau is also adopting official interpretations to the regulation.

The arbitration rule’s effective date is 60 days following its publication in the Federal Register (which is imminent), and it applies to contracts entered into more than 180 days after that.

Cutting through the hyperbole that the arbitration rule protects consumers from “unfairness” that would deny them “their day in court,” this rule is in fact highly anti-consumer and harmful to innovation.

As Competitive Enterprise Institute senior fellow John Berlau put it, in promulgating this rule, “[t]he [Consumer Financial Protection Bureau] has disregarded vast data showing that arbitration more often compensates consumers for damages faster and grants them larger awards than do class-action lawsuits.

This regulation could have particularly harmful effects on FinTech innovations, such as peer-to-peer lending.”

Moreover, in a co-authored paper, professors Jason Johnston of the University of Virginia Law School and Todd Zywicki of the Scalia Law School debunked a study by the Consumer Financial Protection Bureau that sought to justify the agency’s plans to issue the arbitration rule.

They concluded:

The [Consumer Financial Protection Bureau’s] [own] findings show that arbitration is relatively fair and successful at resolving a range of disputes between consumers and providers of consumer financial products, and that regulatory efforts to limit the use of arbitration will likely leave consumers worse off. … Moreover, owing to flaws in the report’s design and a lack of information, the report should not be used as the basis for any legislative or regulatory proposal to limit the use of consumer arbitration.

Unfortunately, the arbitration rule is just the latest of many costly regulatory outrages perpetrated by the Consumer Financial Protection Bureau, an unaccountable bureaucracy that offends the Constitution’s separation of powers and should be eliminated by Congress, as I explained in a 2016 Heritage Foundation report.

Legislative elimination of an agency, however, takes time. Fortunately, in the near term, Congress can apply the Congressional Review Act to prevent the arbitration rule from taking effect, and to block the Consumer Financial Protection Bureau from passing rules similar to it in the future.

As Heritage senior legal fellow Paul Larkin has explained:

[The Congressional Review Act is] Congress’s most recent effort to trim the excesses of the modern administrative state. The act requires the executive branch to report every ‘rule’—a term that includes not only the regulations an agency promulgates, but also its interpretations of the agency’s governing laws—to the Senate and House of Representatives so that each chamber can schedule an up-or-down vote on the rule under the statute’s fast-track procedure.

The act was designed to enable Congress expeditiously to overturn agency regulations by avoiding the delays occasioned by the Senate’s filibuster rules and practices while also satisfying the [Constitution’s] Article I Bicameralism and Presentment requirements, which force the Congress and president to collaborate to enact, revise, or repeal a law. Under the CRA, a joint resolution of disapproval signed into law by the president invalidates the rule and bars an agency from thereafter adopting any substantially similar rule absent a new act of Congress.

Although the Congressional Review Act was almost never invoked before 2017, in recent months it has been used extensively as a tool by Congress and the Trump administration to roll back specific manifestations of regulatory overreach by the Obama administration (for example, see here and here).

Application of the Congressional Review Act to expunge the arbitration rule (and any future variations on it) would benefit consumers, financial services innovation, and the overall economy.

Sen. Tom Cotton, R-Ark., has already gotten the ball rolling to repeal that rule. Let us hope that Congress follows his lead and acts promptly.

*Originally published in The Daily Signal, click here.

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