Repealing CFPB's Prepaid Card Rule

February 10, 2017

Millions of Americans, mostly young, poor, and minority, either do not have a bank account or are “under banked” – meaning they do not have access to a full range of basic financial services. Life without a bank account can be very difficult in America today. You can’t cash checks, order products online, or get credit for emergencies.

Fortunately, recent advances in technology have enabled some entrepreneurs to help address this problem by creating prepaid cards that allow many unbanked and under banked Americans to participate in the economy.

According to one source, while consumers put less than $1 billion on prepaid cards in 2003, by 2012 that number had risen to $65 billion and is expected to reach $121 billion by 2018.

There is obviously a need for prepaid cards and the market is meeting it.

Unfortunately, the Consumer Financial Protection Bureau (CFPB), created under President Obama, believes that regulation and paternalism, not voluntary cooperation and free-enterprise ingenuity, are the best tools to address the problems of the unbanked.

In November of last year, the CFPB released a finalized rule that imposes new and onerous standards on the burgeoning market that will affect not only pre-paid cards, but a laundry list of other pre-paid products. In the document, CFPB’s bureaucrats establish new rules and regulations for this vast range of pre-paid consumer options and declare their intent to “close loopholes and protect prepaid consumers when they swipe their card, shop online, or scan their smartphone.”

Proponents of the rule, including the regulators at CFPB, argue that these standards protect unsuspecting pre-paid customers from becoming victims to overdraft fees and other abuses that result from predatory lenders.

Despite these good intentions, the CFPB’s pre-paid card rule misses the mark – and the basic point of pre-paid cards. Arguably, one of the reasons pre-paid products are so popular, especially among millennials, is that they function like a simplified version of a bank account, without all the bells and whistles. The overdraft feature is an option, fueled by consumer choice, which users are free to utilize for a number of reasons – the most popular of which seems to be in cases of emergency. Furthermore, only 10 to 15 percent of prepaid products include this feature, giving most consumers the option to choose what kind of pre-paid product best suits their needs.

The underlying assumption behind this rule seems to be that American consumers are uninformed, uneducated, and unable to make their own choices – unwitting simpletons who are, at any given moment, vulnerable to the predatory behavior of villainous financial institutions. But this implicit condescension doesn’t conform with reality. In fact, the prepaid-product market has proven to be incredibly competitive and functional that responds well to consumer preferences. It is clear that many pre-paid users actually like the overdraft feature, which means the CFPB rule would limit consumer choice by killing a feature preferred by a significant portion of the market.

That is why I cosponsored a resolution this week that would use the power of the Congressional Review Act (CRA) to undo this regulation. This CFPB prepaid rule is one of just many midnight regulations that the Senate and House will hopefully repeal in the coming weeks.

Reining in the Regulatory State

February 3, 2017

The federal regulatory state is out of control and the American economy is suffering as a result. Every year, the flurry of rules and regulations emanating from the web of administrative agencies, departments, and bureaus cost the American people between $1 trillion and $2 trillion. Regulations not only inflate the price of goods and services, squeezing the household budgets of middle-class Americans, but they also drive up the cost of doing business, so that only the biggest firms and their armies of lawyers, accountants, and compliance officers can thrive.

But help is on the way. On Monday, January 30, President Trump signed an executive order, “Reducing Regulation and Controlling Regulatory Costs,” that will finally impose some commonsense discipline on the rule-writing agencies of the Executive Branch. The first part of the executive order proposes an elegant solution to a complicated problem. Call it the “one in, two out” rule: for every new regulation that an executive agency issues, at least two old regulations must be identified for elimination. Given that many decades-old laws are still spawning new regulations today, there will be no shortage of outdated rules that are ripe for repeal.

The second part of President Trump’s executive order creates an annual regulatory budgeting process that will require executive agencies to keep the compliance costs of their regulations below a predetermined limit. This is similar to a bill that I introduced last year as part of the Article I Project that would, for the first time, require Congress to vote on the total regulatory burden each federal agency may impose on the American people each year – a budget for federal regulatory costs to mirror Congress’s annual budget for taxes and spending. Whereas the president’s executive order puts the director of the Office of Management and Budget in charge of the regulatory budget, our bill, The Article I Regulatory Budget Act, makes Congress directly responsible for the size and scope of the regulatory state.

Executive agencies could still issue and enforce their rules, but only so long as their impact fits within the regulatory-cost limits established by Congress. This would give regulatory agencies – really for the first time – an incentive to make their regulations cost-effective. Regulators would be made to work for the American people instead of the other way around. And the American people, for their part, would be empowered to make informed judgments at the ballot box about economic regulations.

Ultimately, the only way to put the American people back in charge of Washington is to put the Legislative Branch back in charge of federal policymaking. But President Trump’s executive order is an important first step in this process, and one that I proudly support.

The Short on Competition Act

January 27, 2017

“Our drug industry has been disastrous,” then-President-elect Trump said in his first post-election news conference earlier this month. “They’re getting away with murder.”

Okay, murder may be an exaggeration, but pharmaceutical companies are getting away with charging far more for their products in this country than they do in others. But as is often the case, the real problem here is not too little government intervention in the marketplace, but too much.

First, some background. One of the primary causes of rising health-care costs in the United States, both before and after Obamacare, is the skyrocketing prices of prescription drugs. And while pharmaceutical companies do need strong patent protections of the medications they discover, so they can recoup their research and development costs, far too often excessive red tape at the Food and Drug Administration extends the monopoly pricing that results from intellectual property protection for years after a drug’s patent has expired.

Generic versions of name brand drugs are what eventually drive down brand-name drug prices, but those generics still must get approval for sale from the FDA, and the FDA has admitted that they currently have a four-year backlog for approving generic drug applications.

Without generic drug competition, drug prices in the United States are far higher than they should be. Mylan’s EpiPen, for example, can sell for up to $600 a dose in the United States, while an equivalent Jext pen sells for between $34 and $67 throughout Europe.

We can begin to bring these high drug prices down for American consumers and patients by lifting some of the bureaucratic red tape that strangles competition. That is why I helped introduce the Short on Competition Act with Sen. Amy Klobuchar (D-MN) this week.

The Short on Competition Act would empower the Secretary of Health and Human Services (HHS) to temporally allow importation of drugs in markets where there are fewer than five competitors and the FDA has approved a drug’s sale for more than ten years. Eligible countries from which the United States could start importing affordable prescription medications under this bill include Canada, Australia, Japan and members of the European Union.

On its own, this bill is not a comprehensive solution for rising health-care costs, but it is a good first step that will demonstrate how lower government regulation and increased competition can help American patients.

The Global Trade Accountability Act

January 20, 2017

Barack Obama’s presidency was unprecedented in many ways, but the most distinctive – and damaging – feature of his tenure in the White House was his casual disregard for the constitutional limits on the office of the president. By the end of two terms in office, Former-President Obama had grown perfectly comfortable boasting about violating the boundaries on the Executive Branch in order to enact policies that had been rejected by Congress.

From education (forcing Common Core on states through No Child Left Behind waivers), to immigration (granting de facto amnesty to illegal immigrants through DACA and DAPA), our 44th president took unilateral lawmaking to never seen before heights.

But as damaging as all of these executive actions were, the real scandal is the vast lawmaking powers that the Executive Branch wields today by law. For decades Congress has largely avoided the difficult and politically inconvenient trade-offs inherent in legislating, choosing instead to delegate sweeping regulatory powers to federal bureaucratic agencies.

As a result, unelected bureaucrats—not elected representatives in Congress—end up making the vast majority of the federal laws Americans must obey on a day-to-day basis. In 2016, for instance, Congress passed and the president signed 2,966 pages of new laws, while federal agencies issued 97,110 pages of new regulations—about 32 times as much.

As a new president is sworn in today, many Democrats are coming to regret their acquiescence to the centralization of policymaking authority in the Executive Branch, particularly when it comes to trade policy, an area where the president has been granted immense discretion to unilaterally raise trade barriers.

For example, Section 122 of the Trade Act of 1974 authorizes the president to deal with “large and serious United States balance-of-payments” deficits by imposing temporary import surcharges on any goods, not exceeding 15 percent.

While Section 122 confines the president’s authority to act within 150 days, Section 338(a) of the Tariff Act of 1930 contains no such time restriction. Under Sec. 338(a),the president “when he finds that the public interest will be served shall by proclamation specify and declare new or additional duties... upon articles wholly or in part or product of...any foreign country whenever he shall find as fact such country… discriminates in fact against the commerce of the United States.”

These are just two examples of the vast discretionary authority to raise trade barriers that the Executive Branch will have at its disposal. While some Americans may wish to see higher trade barriers in the United States, there’s reason to believe that such a move would wreak havoc on many small and midsize manufacturers that rely on imports and globally connected supply chains.

That is why Congress must reassert its Art. I Sec. 8 power “to regulate commerce with foreign nations” by passing the Global Trade Accountability Act.

This bill would create a new Sec. 155 in the Trade Act of 1974 that would require congressional approval for any “unilateral trade action” undertaken by the Executive Branch. Before raising any trade barriers, the president would be required to submit a report to Congress outlining the proposed unilateral action, the costs and benefits of the action, and the effective period of the action.

Both chambers of Congress would then have to pass a joint resolution approving the proposed action before it could go into force. The law does allow for a “national emergency” exception, but even that declaration would apply for only 90 days. After that, the aforementioned joint resolution would be required for the policy to continue.
There are still many other areas of federal law in desperate need of congressional accountability. The Regulations from the Executive in Need of Scrutiny (REINS) Act, would set up a similar process for all new federal regulations that impose $100 million or more in compliance costs on the U.S. economy. But this is one step Congress can take now to start making the Executive Branch accountable again.

Elections Have Consequences for Housing Policy

January 13, 2017

“Elections have consequences, and at the end of the day, I won.” These were the infamous words President Obama used to scold congressional Republicans just three days after his inauguration in 2009, foreshadowing how he would approach policymaking for the next eight years.

Rather than listening to and trying to work with Republicans, President Obama governed through brute force – with his “pen and phone” more often than with the consent of Congress – guided by the dictates of his progressive ideology rather than the interests of the American people. In virtually every policy area – from health care and immigration to the deployment of American troops and the accession to new international treaties – President Obama ignored those who dared to dissent from his agenda and used whatever means necessary to accomplish his goals.

The result is a precarious legacy burdened by a host of deeply unpopular and highly controversial policies, many of which can be repealed, replaced, rolled back, and otherwise reformed by the new Republican majorities in Congress. But Republicans should take care to avoid adopting the same high-handed, condescending governing style exhibited by President Obama and his Democratic allies in Congress.

Instead of ignoring the concerns and preferences of the American people – and their elected officials at the state and local level– we should listen to and learn from them. Rather than forcing diverse communities to abide by inflexible, burdensome rules and regulations devised by federal bureaucrats in Washington, we should empower local decision-makers to find solutions that address the unique needs of their families, neighborhoods, and businesses.

One of the areas of federal policy most in need of local empowerment is housing.

For instance, in 2015 the Department of Housing and Urban Development (HUD) issued the Affirmatively Furthering Fair Housing (AFFH) rule, which requires cities and towns across the country to audit their local housing policies. If any aspect of a community’s housing and demographic patterns fails to meet HUD’s expansive definition of “fair housing” under AFFH, the local government must submit a plan to reorganize the community’s housing practices according to the preferences and priorities of HUD’s bureaucrats. Failure to comply will result in HUD withholding Community Development Block Grants, federal grant money that local officials have traditionally been free to use as they see fit.

Proponents of AFFH claim the rule establishes a collaborative process, with local government officials in the driver’s seat while the bureaucrats at HUD merely provide “support” and “guidance.” But the track record of AFFH proves the opposite.

Many local housing officials from across the country, including in Utah, have told the same story: the costs of complying with AFFH stretch their already-thin resources, add hundreds of hours of bureaucratic paperwork to their workloads, and eliminate their autonomy to determine the best ways to provide adequate low-cost housing to their community.

To provide some measure of relief to local Public Housing Authorities, a group of Republicans in Congress has supported legislation to restrict HUD from using federal funds to implement the AFFH rule. The Local Zoning Decisions Protection Act is the latest iteration of this legislation, which I joined Rep. Paul Gosar (R-AZ) to introduce this week.

For the past 18 months, with President Obama holding the executive veto pen and unwilling to believe that his policies are unpopular, there was very little chance this bill would be signed into law. But on January 20, when President-elect Trump is sworn into office, that will change, and I will do everything in my power to ensure its swift passage. After all, elections have consequences.

Use Term Limits to Drain the Swamp

January 6, 2017

Our first and perhaps greatest Republican president, Abraham Lincoln, ended his Gettysburg Address by calling on his fellow Americans to rededicate themselves to the “great task” of preserving our “government of the people, by the people, [and] for the people.” I share that commitment, which is why I have always supported term limits for our elected federal officials.

Too often today our representatives and senators seek reelection not by making an argument to their constituents, but by issuing an ultimatum. It usually goes something like this: “I know we’re all citizens in a free republic and that means you can vote for whomever you want, but given the amount of seniority and authority that I’ve built up during my long career in Washington, if you don’t vote for me, our district or state will lose money, power, and influence.”

But this is not a choice – it’s a ploy to increase the power of Washington elites at the expense of everyone else.

Instead of intimidating voters into supporting the candidate with a proven record of maximizing their share of government spoils, Americans should be empowered to choose the candidate they think is best suited to help preserve our government of, by, and for the people.

That is why I have always supported a constitutional amendment imposing term limits on members of Congress, and it’s why I recently co-sponsored Sen. Ted Cruz’s (R-TX) plan to limit senators to two six-year terms and representatives to three two-year terms.

I may introduce my own amendment that would equalize the total number of years that members of the two chambers of Congress are allowed to serve (so that senators could serve two six-year terms and representatives could serve six two-year terms), but the final numbers are not as important as the principle: a government of, by, and for the people requires elected representatives who are more interested in securing the common good rather than maximizing their own power and prestige.

I’m often asked whether my support for mandatory term limits means that I will voluntarily impose a term limit on myself. My answer: no, because I don’t want the term-limit movement to suffer the same fate as the Shakers.

Who are the Shakers? They were an 18th century Christian sect that believed in celibacy. Now, celibacy is a fine choice for an individual to make, but it’s not exactly a wise policy for an entire group of people that is interested in self-preservation.

So, when we do succeed, and term limits are finally in the Constitution, I will happily abide by them. But until that time, I will continue the fight to make that possibility a reality.

The AT&T – Time Warner Merger

December 9, 2016

We are living in a golden age of television. One TV writer recently wrote that for “the first time I’ve beg[un] to feel like there may, in fact, be too much good TV.”

The creativity, however, is not limited to content creators. Networks and distributors are also innovating to allow consumers new and unprecedented access to their content of choice. No longer are consumers limited to whatever bundle their local cable operator has negotiated. Dish, Sony, and DirecTV all offer cable bundles allowing consumers to stream live television over the Internet. Netflix, Amazon, HBO, and CBS, among others, allow consumers to purchase programming directly. And more innovation is on the horizon, as many industry participants expect 5G wireless technology to provide more competition to broadband and landline cable, opening up even more possibilities to content creators and distributors.

This brings us to AT&T’s proposed $85 billion acquisition of Time Warner.

AT&T is the second-largest wireless carrier in the United States and, through its DirecTV and U-verse subsidiaries, the largest U.S. cable and satellite provider. Time Warner is currently the world’s third-largest television network and filmed TV entertainment company, including CNN, TNT, HBO, and Warner Brothers’ film and TV studio.

The companies claim that this acquisition will result in significant benefits for consumers, including a “stronger competitive alternative to cable and other video providers” and a significant competitor to the digital advertising giants Google and Facebook.

Some critics claim the merger could stifle the development of new content delivery systems like Sling and PlayStation Vue, which allow customers to watch a live stream of cable channels via their Internet connection. The worry being that the new AT&T-Time Warner entity would withhold HBO or CNN from these new firms.

Other critics worry that AT&T will unduly favor Time Warner content by not counting that content against the wireless customers’ data caps. More commonly known as “zero-rating” the FCC recently found that the practice “may obstruct competition and harm consumers by constraining their ability to access existing and future mobile video services not affiliated with AT&T.”

The issues raised by this deal are complicated and, like most antitrust analysis, very fact intensive, which is why the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights held a hearing on the proposed merger earlier this week.

The Antitrust Subcommittee, which I chair, does not render any final judgment on the proposed merger, that responsibility lies with the Department of Justice’s Antitrust Division and the Federal Trade Commission.

But we will continue to monitor the issue and make sure the next administration enforces our nation’s antitrust laws properly.

Cures for Fiscal Maladies

December 2, 2016

The U.S. national debt is just a few months away from exceeding $20 trillion – an astronomical sum of such epic proportions that it’s difficult to fathom. Trying to understand the scale of even a fraction of it can boggle the mind. For example, if you were to spend $1 million every day since Jesus was born, you’d still be about $2.5 billion short of spending $1 trillion, and another $19 trillion short of our national debt today. And if contemplating the sheer size of the debt isn’t overwhelming – and terrifying – enough, consider the meteoric speed at which it is increasing: every second of every day, the federal governments spends roughly $27,500 more than it takes in.

How is this possible?

Politicians like to pin the blame on the federal policies and programs that they dislike the most. Those who believe the U.S. military should be leaner and less aggressive abroad say that an inflated defense budget is the cause of our ballooning debt. Those who think that our social safety net programs are counterproductive and wasteful blame our fiscal woes on the welfare state. And so forth.

But this argument misses the forest for the trees. Yes, the budget of virtually every federal department needs to be overhauled. And yes, the spending for countless federal programs needs to be curtailed – if not eliminated altogether. But the real source of our out-of-control national debt isn’t one agency or program or political party – it’s a self-serving political culture in Washington that has been built by politicians of both parties, over the course of decades, who habitually place their short-term career prospects over the long-term interests of the nation.

A case in point is the 21st Century Cures Act, which the House recently passed and the Senate will consider next week.

Those who support the bill proudly claim that it reduces government spending by $6 billion, which is, at best, only a half-truth. The Cures Act does save $6 billion, but it also paves the way for those so-called “savings” to be spent in upcoming years through an appropriations process – and here’s the kicker – that is not subject to the budget caps established in the Budget Control Act.

Proponents of the Cures Act might ask what good just $6 billion in savings would do when the national debt is about to reach $20 trillion, but of course that’s exactly the kind of question that got us into this mess in first place.

The Poverty Measurement Improvement Act

November 18, 2016

Since President Lyndon Johnson launched the War on Poverty in 1964, the federal government has spent over $22 trillion on means-tested welfare programs.

And what do we have to show for it?

When the official poverty rate was introduced in 1969, an estimated 12.8 percent of Americans were in poverty. Today that number has risen to 14.3 percent.

Progressives, of course, see these numbers and push for more programs and more spending. But there are some very good reasons to believe that today’s official poverty rate is artificially inflated.

The main problem is that the tool the federal government uses to compile the official poverty rate (the Census Bureau’s Current Population Survey) does not include the total value of federal benefits when measuring an individual’s or a household’s income. This leads to a dramatically distorted picture of poverty in America today, and it obscures the true cost and scope of the federal welfare state.

For instance, a 2015 study of New York residents found that today’s official poverty rate “missed over one-third of housing assistance recipients, forty percent of Supplemental Nutrition Assistance Program recipients, and sixty percent of Temporary Assistance for Needy Families benefits.”

If all of these federal benefits were included in the government’s measurement of the official poverty rate, we would have a much clearer picture of the extent to which our federal antipoverty programs help our most vulnerable citizens. But we won’t know exactly how much help our welfare programs provide until we have more accurate data. That’s why I introduced the Poverty Measurement Improvement Act this week.

This bill would improve the data available to lawmakers by authorizing a new Census Bureau survey that would more accurately calculate income by including wages and federal means-tested benefits. This information would then be linked with individual records from the IRS and other federal agencies that administer means-tested benefit programs.

The core problem with our welfare system today isn’t just its bloated annual budget, but its tendency to undermine the two most dependable routes out of poverty: marriage and work.

But we can’t improve these programs until we have better data on how they are affecting working families. The Poverty Measurement Improvement Act will do just that.

Stopping Another Obamacare Bailout

September 30, 2016

When President Obama made his case to the American people for Obamacare, he promised that it would both lower health insurance premiums and not add to the national debt.

Neither has been true.

One way Obamacare has been adding to the deficit is through illegal bailouts of insurance companies operating Obamacare plans through the Department of Health and Human Services.

The Government Accountability Office highlighted one bailout scheme yesterday when it released a report finding that since 2014, HHS has been illegally sending billions of “reinsurance” fees to insurance companies instead of sending those dollars to the United States Treasury where they belong.

But that isn’t the only way the Obama administration is plotting to illegally funnel your money to insurance companies.

A separate “risk corridor” program also promised Obamacare insurance companies a safety net if their customers used an unexpectedly high amount of health care. The way it was supposed to work was that those plans with low medical costs would pay into a fund and plans with high medical costs would take out of the fund. In theory, the fund was supposed to be deficit neutral.

But in reality far more plans experienced higher costs than they anticipated leaving HHS with billions in claims from insurance companies but no way to pay them. The Obama administration has asked Congress to appropriate money to bail out these insurance companies, but Congress has rightly refused.

So now HHS is getting creative. On September 9, 2016 HHS issued a memorandum addressing suits filed by insurance companies in federal court demanding risk corridor payments. HHS wrote that, “as in all cases where there is litigation risk, we are open to discussing resolution of those claims,” and that “we are willing to begin such discussions at any time.”

This language appears to suggest that HHS may be trying to illegally funnel money to Obamacare insurers through the Department of Justice’s Judgment Fund. In other words, since Congress has not appropriated money for non-budget neutral risk corridor payments, HHS will just invite insurance companies to sue, and then the DOJ can pay the bill instead.

This week, Sens. Marco Rubio (R-UT), Ben Sasse (R-NE), John Barrasso (R-WY), and I wrote a letter to DOJ and HHS this week to make sure that doesn’t happen. Our letter notes that the Congressional Research Service has already found that the Judgment Fund may not be used to settle risk corridor claims and asks HHS to identify how they plan to pay the risk corridor settlements mentioned in their September 9th letter.