Dodd's Financial Reform Still Leaves Questions About Payday Lenders, Credit Raters

Senate Banking Committee Chairman Christopher Dodd (D-Conn.) finally unveiled his plan for financial system reform today. But when it comes to the issues the Investigative Fund has been tracking for the past few months, much remains unclear or open to interpretation.

Take the payday lending industry, which Investigative Fund reporter Keith Epstein has been tracking.

Dodd’s bill does not actually mention the word “payday.” Yet Dodd’s 11-page summary of the bill does. The summary says a new consumer protection bureau housed within the Fed will have the authority to examine and enforce regulations for “large payday lenders.”

How do you define ‘large’? We have no idea. And neither does the payday lending industry.

"It's not clear what 'large' means," states the "Payday Pundit," a blog of the industry trade group, the Community Financial Services Association. "I will try to seek clarification over the next few days."

Payday lenders were not explicitly mentioned in the approved House version of financial reform either. Amid uncertainty, the bill's author, financial services committee chair Barney Frank (D-Mass), quickly dispatched a letter to his colleagues saying the new consumer agency would have authority over them.

Payday lenders are not the only ones who are confused about their future under the consumer bureau. Much of the legislation addresses what the consumer bureau can’t do—and which businesses it can’t touch—rather than the ones that will come under its microscope. The bureau will also have to consult with the Federal Trade Commission before imposing any regulations.

It’s also not clear what financial products and lending practices the bureau can regulate. For instance, under Dodd’s bill, the bureau cannot declare lending practices “unlawful” simply because they’re unfair. To be illegal, the practices must be “likely to cause substantial injury to consumers, which is not reasonably avoidable by consumers.”

Dodd's bill also targets the nation's top credit rating companies, such as Standard & Poor's and Moody's.

As we reported in a three-part series last year, the raters have long dodged regulation using the First Amendment as a shield. But now, the raters are at the center of the financial crisis. They awarded inflated grades to investments—including ones they helped create--that ultimately unraveled the economy.

In turn, Dodd's bill calls for a new credit rating overseer within the Securities and Exchange Commission, which will have the authority to fine--or even de-register--the companies for repeated mistakes. The bill also would require ratings analysts to pass "qualifying exams" and receive continuing education.

But in certain ways, Dodd doesn't appear to have been as forceful with the raters as Frank was last year. Whereas Frank would remove most, if not all, requirements that investors and banks rely on credit ratings, Dodd called for a Government Accountability Office study of this step. Meanwhile, his bill would direct regulators to remove whatever statutory references to credit ratings that they see as unnecessary. Again, however, it's unclear exactly what that wording means.

Dodd, like Frank, provided investors the first explicit right to sue the rating companies. But Frank's bill set forth a seemingly easier standard for suing the raters.

Ultimately, Dodd's measures, clear and ambiguous alike, face an uncertain future.

They are subject to change as the full banking committee takes up amendments to the bill next week.  In all likelihood, there will be some notable changes once Dodd hears from the committee’s liberal members, who oppose the Federal Reserve’s increased role, and Republicans, who are skeptical of a new consumer protection bureau.