Merkley Joins Amicus Brief in Fight to Protect Consumer Bureau’s Independence

WASHINGTON, D.C. – Oregon’s Senator Jeff Merkley joined an amicus brief of 20 current and former Members of Congress supporting the Consumer Financial Protection Bureau’s (CFPB) appeal of a judicial decision that threatens its independent structure. The brief was filed this week in the D.C. Circuit Court of Appeals.

The brief was led by Representative Maxine Waters (D-CA) and Senator Sherrod Brown (D-OH), the top Democrats on the House Financial Services Committee and the Senate Banking Committee, respectively. In addition to Merkley, they were joined by Rep. Michael E. Capuano (D-MA), Rep. John Conyers, Jr. (D-MI), Rep. Elijah Cummings (D-MD), Sen. Dick Durbin (D-IL), Rep. Keith Ellison (D-MN), former Rep. Barney Frank (D-MA), Rep. Alan Grayson (D-FL), Rep. Al Green (D-TX), Rep. Stephen F. Lynch (D-MA), Rep. Carolyn B. Maloney (D-NY), Sen. Bob Menendez (D-NJ), former Rep. Brad Miller (D-NC), Rep. Gwen Moore (D-WI), Rep. Nancy Pelosi (D-CA), Sen. Jack Reed (D-RI), Sen. Harry Reid (D-NV), Rep. Brad Sherman (D-CA) and Sen. Elizabeth Warren (D-MA).

As a member of the Senate Banking Committee, Merkley worked closely with his colleagues to craft the CFPB’s structure as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Merkley and his colleagues deliberately structured the CFPB as an independent agency headed by a Director, so that the agency would have the power, independence and efficiency to combat Wall Street abuses and not succumb to political sway of the day. Furthermore, under its current structure, the CFPB has returned more than $12 billion to consumers in just five years of existence.

In an earlier decision by a three-member panel of the D.C. Circuit Court of Appeals, the Court struck down the Bureau’s independent structure by throwing out the provision that allows Presidents to only fire the Bureau’s Director for cause. This decision directly threatens the ability of the Bureau to stand up for consumers’ rights independent of the political goals of the President of the United States. The amicus brief supports the CFPB’s request for a new hearing en banc, or before the full D.C. Circuit Court. 

“By severing the for-cause removal provision, the panel decision fundamentally altered the CFPB’s structure in a way that is at odds with Congress’s design and will undermine the CFPB’s ability to fulfill its important role under Dodd-Frank,” the Members wrote in the brief.

The brief also details the reasons that the October decision by a conservative panel of three judges is at odds with the text of the Constitution and Supreme Court precedent. 

“The panel’s conclusion that the CFPB’s structure is unconstitutional flatly contradicts all of these decisions, and it does so principally because it views multi-member commissions as superior to agencies led by a single director. The panel improperly elevated that policy judgment—one properly made by Congress—into a holding of constitutional law. That was plainly wrong, and consideration by the en banc court is thus warranted.”