CFPB Political Battles Will Reignite in June When Mulvaney’s Term Is Up

If a nominee is rejected, Mulvaney will serve an additional 210 days

Mick Mulvaney

Mick Mulvaney / Getty Images

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Because Mick Mulvaney was only appointed to the "acting director" position within the Consumer Financial Protection Bureau last fall, he is term-limited by law in that role to 210 days, a deadline which will come June 22.

Mulvaney, who also heads the Office of Management and Budget, could wind up staying in the position for much longer because of lesser known provisions of the same law, setting off new political battles with Senate democrats over the bureau, and offering up high-risk high-reward gambles for President Trump on the November elections.

With the "acting director" position expiring, President Trump needs to nominate someone for the actual director's position, a nomination that would need Senate confirmation.

"As soon as a nominee is put up from the Trump administration, it triggers other parts of the Federal Vacancies Reform Act, and will basically allow Mulvaney to serve until the Senate actually confirms somebody. And if they reject that nominee, then he gets an additional 210 days of service," said Dan Press, a consumer finance policy analyst at the free-market think tank the Competitive Enterprise Institute.

"So really, I think it sets up a massive conundrum for Democrats," Press added.

"They've got somebody in as acting director who they really dislike, and the Trump administration is probably going to put up someone else that they really dislike, so they're going to have to choose between lesser evils from their perspective, really."

Press said the upshot of these provisions of the Federal Vacancies Reform Act means Mulvaney will likely still be acting director towards the end of this year, and theoretically could be there for much longer.

The most talked about name in the rumor mill for a likely nomination to lead the bureau is Mark McWatters, currently the chairman of the National Credit Union Administration.

Mulvaney's appointment to the acting director position at the CFPB set off one of the more memorable political battles of 2017. When then-Director Richard Cordray resigned to run for governor of Ohio, he tried to handpick his own successor, appointing Deputy Director Leandra English on his way out the door.

Had Cordray been successful in that maneuver, it would have kept Obama-era loyalists in the bureau's leadership for sometime.

President Trump instead appointed Mulvaney to the acting director's position, setting off court battles. Two decisions have upheld the Mulvaney appointment, but English is appealing one of those rulings with her own set of lawyers.

The CFPB's own general counsel declined to take up the case English is making. And her appeal is, by her lawyer's own admission, being paid for by an unnamed third party. Additionally, the conservative watchdog group Foundation for Accountability and Civic Trust (FACT) filed complaints against English asking for an investigation as to whether she was even showing up for work for her six-figure paycheck. Another part of the FACT complaint argued that the anonymous funding of her appeal could be considered a gift that might run afoul of ethical guidelines.

Adding even more complexity to the calculus of the CFPB nomination are the upcoming midterm elections and the resulting balance of power in the Senate.

"That's sort of a roll of the dice, really, for both Republicans and Democrats," Press said.

"If Republicans pick up more Senate seats like they're expecting, then really they're going to have an even better shot at being able to confirm someone that they want post-November. But if for some reason the Senate swings more Democratic, then that's going to be an even tougher issue."

"I think that will be really interesting to see if the administration will try to get someone confirmed before November, or roll the dice and see if they can't pick up a few more Senate seats and keep Mulvaney in there."

Additionally, the delays could add up to rob the Democrats of having their own leadership in the bureau for years, because the permanent directors of the CFPB serve five-year terms.

"If someone is confirmed in 2019, and a Democrat wins in 2020, the next president would likely be stuck with a Trump director," Press noted. "That's the insanity of the bureau's structure in a nutshell."

A potential McWatters nomination became more heated when the Washington Post recently published an exposé showing that McWatters had essentially been telecommuting from Dallas to his job at the National Credit Union Administration, based in Alexandria, Virginia.

"Still, while the optics of the report are politically troublesome, there are signs the revelations may not be a deal-breaker for the administration," noted a report at AmericanBanker.com.

"At the least, the report complicates what has already been a challenging search process to fill the director's seat, given how sharply divided Democrats and Republicans remain regarding the CFPB's very existence," the report also said.

Todd Shepherd

Todd Shepherd   Email | Full Bio | RSS
Todd Shepherd is a staff writer at the Washington Free Beacon. He began his reporting career in radio, working as an anchor and reporter for KOMA in Oklahoma City and KOA in Denver. He spent eight years as the investigative reporter for the Independence Institute in Colorado, a free-market-based think tank. Campaigns and Elections magazine named him a "Top Colorado Influencer" for his reporting and news blog. He’s a graduate of the media studies program from Oklahoma Baptist University. His Twitter handle is @shepherdreports.

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