The CFPB is now accepting petitions for agency action submitted directly by members of the American public, according to a press release and a new portal that was opened on February 16, 2022. In support of this change, the Bureau cited to the U.S. Constitution's guarantee of the public's right to petition the government. This initiative represents the latest step by the CFPB in pursuit of its agenda to increase consumer input into its decisions and the transparency of its decision-making.
This announcement, however, acts as a double-edged sword in the pursuit of greater consumer input and transparency. While the reform increases consumers' ability to be heard by the agency, it is also intended by the CFPB to impact the ability of former government employees, lawyers, and lobbyists—as well as the organizations that hire them—to influence the agency.
Members of the public have always been able to submit comments on agency rulemaking initiatives through the Administrative Procedure Act's (APA) notice and comment process. And the APA provides that "[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." (5 U.S.C. § 553(e)). Under the new process, members of the public can submit a petition to request "that the agency pursue a new rule, amend an existing one, or repeal a rule" without hiring expensive help. These petitions will then be posted to the CFPB website's petitions for rulemaking page, where the public can inspect the petition itself and the CFPB's response.
Thus, this reform provides a new tool that consumers can use to get the CFPB's attention. They now have an ability to influence the Bureau's rulemaking decisions that is roughly on par with their ability to influence it's enforcement decisions. As previously mentioned, the APA has always given consumers the opportunity to comment on CFPB rules, but consumers have long been able to influence the Bureau's enforcement decisions through its Whistleblower Complaint Hotline and Complaint Portal. Rulemaking petitions, however, allow consumers to address the agency from a different angle.
The other innovation of this double-edged reform lies in the transparency it creates. In the announcement, the CFPB expressly called out "former government officials, lawyers, [and] lobbyists" as the indirect targets of this reform. "Former government employees and other individuals who are paid to influence the agency's rulemaking agenda behind the scenes will be asked to submit their petition for public inspection instead." Taken in conjunction with the CFPB's November guidance to its employees on ethical violations by alumni of the CFPB and other government departments, discussed by Venable here, it is clear that CFPB Director Rohit Chopra intends to make good on his promise to address what he sees as the problem of the "revolving door."
* The author would like to thank Connor Webb, a law clerk in Venable's Washington, DC office, for his assistance in writing this article.
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