WASHINGTON — The biggest obstacle to confirming a director of the Consumer Financial Protection Bureau may not be Republicans or banking industry opposition but rather a ticking clock.
Even if President Obama were to nominate a director Tuesday, it would leave only 10 legislative weeks for the Senate to confirm the selection before the bureau officially assumes its rulemaking and enforcement authorities.
Such a tight window leaves the president with two options: Nominate a candidate who sparks little debate, a tough achievement given the anxiety surrounding the CFPB's powers and mandate, or make a controversial recess appointment, a move that will further infuriate GOP opponents.
If President Obama does not act by the July 21 deadline, the CFPB will begin its existence under a cloud, operating under ambiguous legal authority that may limit the scope of its actions.
"I think whether they have enough time will depend partly on how much of a lightning rod the nominee is," said Jo Ann Barefoot, co-chair of Treliant Risk Advisors and a former deputy comptroller at the Office of the Comptroller of the Currency. "If they choose someone who will trigger a strong negative reaction, it could get fought out and they could miss the deadline."
Even under normal circumstances, the confirmation process takes time. After the president sends his nomination to the Senate, the Banking Committee would need a few weeks to research the candidate in preparation for confirmation hearings, which could last a week.
The committee may take another week or two to vote on the nomination, after which the Senate must find time for floor debate. If Republicans seek to block or filibuster the nomination — Sen. Richard Shelby, the ranking member on the Banking Committee, is one of the chamber's most notorious nomination blockers — they could hold up the final vote for another week.
And that's an optimistic time line. A chamber not known for its expediency, the Senate often delays or pushes back its schedule. Although the calendar shows 12 weeks until the bureau's July 21 start date, the Senate is in recess for two of them to celebrate Memorial Day and Independence Day.
"Even having 60 votes isn't enough if you don't have time to debate a nomination," said Wayne Abernathy, an executive director at the American Bankers Association, and a former Treasury Department assistant secretary during the Bush administration. "If the Senate gets all involved in the budget, which it looks like they're going to … it may be tough to go to [Senate Majority Leader] Harry Reid and say, 'We'd like to have a week to debate the nomination.' "
That may force the president to pick someone more palatable to both sides, observers said.
L. Richard Fischer, a partner with the law firm Morrison & Foerster, said one such name has already been floated: Sarah Bloom Raskin. As a new governor of the Federal Reserve Board, Raskin has already navigated the nomination process, and the Senate has reviewed her credentials.
"She's a known quantity, she's got real banking experience as the superintendent of banks of Maryland, at the Federal Reserve Board," Fischer said. "She's articulate, she's intelligent and I think that could be done relatively quickly."
Such a candidate would have another distinct advantage: She is not Elizabeth Warren.
"That alone could speed the process," Fischer said.
But recent reports have indicated that Warren, the architect of the new bureau and its de facto head for the past seven months, is still a top contender for the post.
No one is ruling out a recess appointment, but it seems only one person — Warren — is worth the political capital that such a move would cost the president.
"I understand he's been told by many that it would be a very bad idea to do that, if that individual is Elizabeth Warren," Fischer said. "And I can't imagine he'd do a recess appointment for anyone else, so is it possible? Anything is possible, but I would put that as unlikely."
Republicans were already angry last year when Obama appointed Warren as an assistant to the president and special adviser to Treasury Secretary Tim Geithner in charge of setting up the CFPB. They saw the move as an end run around the Senate nomination process and emphasized that the CFPB had only limited powers until an official director is in place.
Appointing Warren during a recess would further inflame Republican opposition, Barefoot said. "I know there are members of the Senate who are supportive of the president and of Elizabeth Warren as well, but who didn't like the bypassing of the statutory mandate and Senate prerogative regarding the advice and consent law," Barefoot said. "So if it was bypassed again I think there would be some people who would be concerned about it on a process basis, but I certainly wouldn't rule it out."
Some Republicans are already questioning whether a recess appointment would pass muster if the position is with a brand new agency.
Rep. Randy Neugebauer, R-Texas, pointed out that the wording of the law suggests that recess appointments are intended to fill vacancies that occur when Congress is in recess. "So does the recess appointment actually apply to a situation where … an initial office has never been filled?" he asked. "I think that's an interesting question, and I'm not sure."
Several industry observers did not think that was much of a problem, however. Robert Dove, a former Senate parliamentarian and public policy specialist at Patton Boggs LLP in Washington, said case precedence has determined the president may appoint a candidate during a recess whether or not the vacancy occurred during the recess. He said there are no special rules related to new agencies.
"I don't think there's any constitutional impediment to Elizabeth Warren being given a recess appointment," Dove said.
Most industry observers are flabbergasted at the way the Obama administration has handled the CFPB nomination. If Obama wanted to nominate Warren, the time to do so was last year, shortly after the Dodd-Frank Act creating the agency was passed, they said. Some wondered if the administration appointed her as de facto head of the CFPB in an effort to ease concerns over her nomination.
But if so, that appears to have backfired, Abernathy said.
"My assumption, if he was going to nominate Warren, he would have done so already," Abernathy said.
Fischer speculated that Obama may have wanted to nominate Warren all along, but his advisers have struggled to convince him that it would be a bad move.
"It's still hard for me to believe that he's just going to let it kind of dangle out there," Fischer said. "If his advisers coalesce around a candidate and that candidate appears to be someone who can be confirmed, I think you'll see it happen very quickly."
The issue is critical as policymakers continue to debate how much authority would be conveyed to the new agency without a director in place.
The most optimistic take is that the staff could enforce any existing statutes that are transferred from the other bank regulators, but would be barred from enforcing any new provisions relating to nonbanks.
But operations would not grind to a halt, industry observers said.
In response to a request from House Financial Services Committee Chairman Spencer Bachus, the inspectors general of the Treasury Department and Federal Reserve said in a report issued in January that the Treasury's interim authority to perform the functions of the bureau would continue until a permanent director is in place.
Under that authority, the Treasury could exercise the bureau's authority to "prescribe rules, issue orders and produce guidance" related to federal consumer financial laws that have been transferred from other regulators, and it would have authority to begin examining large banks. It could also enforce any orders or agreements that have been made before the transfer date, and could replace any of the other regulators in a lawsuit or proceeding that began before July 21.
But not everyone is satisfied with that report.
Abernathy said the authority is "unclear and at best fuzzy," and predicted that some institutions will file lawsuits challenging the bureau's powers without a director.
"Our own view is that very little can be done," Abernathy said. "The only authority the Treasury really has, it seems to us when you read the statute — is to set up the organization, not to make any policy decisions. The fact that the authority transfers over doesn't mean that there's anyone there to create authority over it."
Moreover, if the agency cannot regulate nonbank institutions, it would "have one arm tied behind its back," said Richard Hunt, the president of the Consumer Bankers Association.
Enforcing only part of its authority would create an unlevel playing field for banks, he said.
"If you don't have an executive director nominated by the president, confirmed by the Senate, you do not have the core mission of the CFPB," he said. "There would not be full consumer protection. If you cannot regulate the nonbanking entities … you might as well not have one at all."
The absence of a director also creates uncertainty for the institutions that are subject to its authority, said Cam Fine, the president of the Independent Community Bankers of America.
"I think the longer the president waits, the more uncertainty is created, and that's never good in any sector, let alone the banking sector," Fine said. "I'm hopeful that the president will name a nominee for the consumer bureau as soon as possible."
Lots of agencies run with acting heads, said Lynne Barr, a partner at Goodwin Procter, but the CFPB is different.
"It's much more critical because you have this brand new agency about which people have a huge amount of anxiety, and which also has this enormous mandate to help protect consumers and their financial dealings," Barr said. "Without a clear vision of what the agency is going to do as expressed by a permanent director, I think … it will be rudderless for a while."
It is also unclear how much damage the process will ultimately do to the fledgling CFPB.
"It's going to be resolved at some point, whether it's this month, next month, October, it's going to get resolved," Abernathy said. "The problem is that it has really started the agency off on a very sloppy footing at best, and they're squandering a lot of time that I think everyone had hoped could have been used to get the agency started in a very clear way, so that things are done with due process, so that you have a lot more transparency with how the entity operates."