Arguments

Don’t Mourn Regulatory Independence

By Seth Frotman Jeremy Kress

Tagged Donald TrumpGovernanceRegulation

Amid the recent flurry of radical executive orders, one in particular has flown under the radar: President Trump has seized control over regulators like the Federal Deposit Insurance Corporation and the Securities and Exchange Commission, ending a century-old tradition that kept these financial watchdogs “independent” from White House control.

As former financial regulators, we are deeply concerned about what Trump’s control of these agencies will mean for consumer protection and financial stability, let alone the potential for even more corrupt self-dealing. But the fundamental problem is not that Trump controls these agencies—it is what he plans to do with that control. So as progressives start planning for when Trump eventually leaves office, we should not reflexively rush to restore the old system, where regulators were insulated from the White House.

Why? Because that system was broken long before Trump shattered it.

For over a century, America’s financial regulators operated with “independence” from the White House. The theory was simple: shielding these agencies from political pressure would let them use their technical expertise to keep bank deposits safe and fight financial fraud.

That system ended with President Trump’s recent executive order bringing the agencies under direct White House control. Now Trump—not Senate-confirmed regulators—can decide who gets a bank charter, how much banks can charge in junk fees, and whether Big Tech companies may continue their unchecked expansion into finance. While the executive order sensibly exempts the Fed’s interest rate-setting decisions, it purports to hand Trump personal control over virtually every other lever of financial power.

Strangely, the finance industry has remained quiet about this dramatic power shift. Perhaps they fear retribution in an era when individual law firms face illegal executive orders. Maybe they believe Trump’s deregulatory agenda will benefit them. Or perhaps they’re gambling that a future administration will restore the old “norms.”

They shouldn’t bet on it.

Those fighting for consumers, workers, and small businesses need to face a hard truth: Many independent regulators have consistently stymied efforts to ensure that banks fulfill their public mission rather than just pad Wall Street bonuses. We should not forget that the Comptroller of the Currency helped trigger the 2008 financial crisis by blocking state consumer protection laws—and continues this anti-consumer agenda today. Or that the Federal Reserve and other bank regulators spent years delaying updates to anti-redlining laws, then produced regulations too weak to prevent banks from abandoning entire communities. Regulators have allowed our personal information to be harvested, sold, and exploited while our phones are bombarded with spam.

The fact is, while these regulators may have been independent from the White House, they weren’t from Wall Street and Silicon Valley. For decades, “independent” financial regulators have repeatedly sided with powerful interests over ordinary Americans, even when Democrats controlled the White House. In the absence of presidential accountability, regulators came to view financial institutions—not the American public—as their clients.

Now the metaphorical toothpaste is out of the tube, and progressives should finally put these powerful agencies to work building an economy that serves everyone—not just the bankers and billionaires who enriched themselves under the old system. Instead of reflexively restoring a flawed system, we need a coordinated, whole-of-government approach to regulation with clear accountability. One that deploys every lever of government to function on behalf of working people from day one, and every day thereafter.

Effective financial regulation often requires multiple agencies to act in lockstep. Without strong coordination, K Street lobbyists easily divide and conquer regulators, killing reforms before they start. Case in point: Fifteen years after Congress demanded limits on bankers’ “heads I win, tails you lose” bonuses following the 2008 crash, five separate agencies still have not adopted a final rule—while Wall Street compensation continues to soar.

The formidable challenges ahead demand a unified approach: confronting too-big-to-fail banks that receive massive public subsidies with minimal public benefit; overseeing Big Tech companies that have poisoned market after market they’ve entered; addressing a banking system that has abandoned rural communities, small farmers, and local business owners; and taming a digital economy built on ever-expanding surveillance and privacy intrusions.

None of this happens by going back to a system where “independence” was Washington, D.C. code for regulatory capture and special interest influence. That status quo let K Street lobbyists and revolving-door lawyers repeatedly derail presidents’ pro-worker agendas. We cannot return to a system where regulators rush to fall in line with Republican presidents while claiming “independence” when Democrats are in charge.

The truth is that financial regulation often is not some technocratic science where experts can objectively find the “right” answer. These decisions involve fundamentally political tradeoffs. Should we limit bank dividends and bonuses, or should we let executives cash out while families lose their homes? The answer depends entirely on whether you are a bank executive collecting a massive payday or a working family worried about foreclosure. When regulators claim to be making “independent” technical decisions, they are really just hiding whose interests they have chosen to prioritize.

To be clear, we support maintaining Fed independence over interest rates decisions, which benefit from insulation from political pressure. And we oppose key parts of Trump’s order, like subjecting rules to quantitative cost-benefit analysis, which corporations routinely exploit to delay essential protections by inflating costs while downplaying benefits to the public.

We also condemn Trump’s firing of minority-party board members from these agencies. If the Supreme Court green-lights such purges by overturning decades of precedent—as appears likely—Congress will need to redesign the agencies to ensure they have the tools and authorities needed to meet the significant challenges facing consumers, workers, and small businesses. But that’s a fight for another day.

When progressives are returned to power, they will face a choice: fight to restore a broken system that never worked for working people, or learn to use the centralized power Trump created. We believe they should maintain control over financial regulators and redirect these agencies toward consumer protection, fair markets, and financial stability. The alternative—returning to a fragmented regulatory landscape where powerful interests easily block reform—would be a grave mistake.

The game has changed. It’s time our strategy did too.

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Seth Frotman is a visiting senior fellow at the Center for Consumer Law and Economic Justice at the University of California Berkeley School of Law and the former general counsel of the Consumer Financial Protection Bureau.

Jeremy Kress is an associate professor of business law at the University of Michigan Ross School of Business. He was previously an attorney at the Federal Reserve Board of Governors.

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