September 27, 2019 Articles

Has the Debt Collection Industry Captured the CFPB?

The CFPB’s proposed new rule implementing the Fair Debt Collection Practices Act indicates that the CFPB has been captured by the debt collection industry it regulates.

By Michael D. Donovan

In 2010, as part of the Dodd-Frank Act, Congress created the Consumer Financial Protection Bureau (CFPB), which has the stated purpose of “protect[ing] consumers from unfair, deceptive, or abusive practices and tak[ing] action against companies that break the law.” See About the Bureau (a section of the CFBP’s website). Around the time the CFPB was created, thoughtful commentators wondered whether its unique institutional design would be sufficient to insulate it from industry capture, which is when an agency acts to further the interests of the industry it regulates instead of the public interest. See, e.g., Rachel E. Barkow, “Insulating Agencies: Avoiding Capture Through Institutional Design,” 89 Tex. L. Rev. 15 (2010). Professor Barkow, among others, expressed hope that a single director insulated from at-will firing who was independent of the annual appropriations process would be able to marshal regulatory expertise while avoiding subservience to the industry or groups being regulated. The CFPB’s structure, she and others noted, took lessons from at least two sources: multi-member commissions (like the Consumer Product Safety Commission) that had been captured and bank supervisory offices that had self-contradictory missions to promote the “safety and soundness” of financial institutions even at the expense of consumer protection. “To achieve either expert or nonpartisan decision making, one must avoid undue industry influence, or ‘capture,’” Barkow observed. See id. at 21.

Departing from the diffuse and contradictory agency designs of the past—which many believed were contributors to the Great Recession—the CFPB was designed for one mission, and one mission only: consumer financial protection. It is against this single-minded mission statement that we can measure whether the CFPB has been captured by one or more participants in the consumer finance industry.

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