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The FDIC, OCC and Federal Reserve all plan to testify Tuesday that banks, not their regulators, are ultimately responsible for deciding who is an appropriate customer.
July 15 -
Banks would get protection from the Justice Department's investigation of mass-market consumer fraud under legislation sponsored by Rep. Blaine Luetkemeyer, R-Mo.
June 27 -
Internal memos and emails show that the controversial probe was not exclusively focused on payday lending. At the same time, Justice officials did not think it was their problem if lawfully operating payday lenders lost their banking relationships as a result of the investigation.
May 30
If you listen to House Republicans, Operation Choke Point is either a politically motivated witch hunt, an overly broad law-enforcement initiative damaging legitimate businesses, or perhaps a stealth method for the Department of Justice to obtain funding.
Meanwhile, their Democratic counterparts describe the DOJ's investigation as a commonsense approach to fighting consumer fraud, as well as a continuation of policies that have been around for decades.
The two political parties' competing realities were on display Tuesday as members of a House financial services subcommittee questioned witnesses from the Justice Department and three federal banking agencies.
The hearing, chaired by Rep. Patrick McHenry, R-N.C., was the latest in a series of broadsides by congressional Republicans against Operation Choke Point. The Justice Department says it is merely trying to crack down on mass-market consumer fraud, but Choke Point's critics argue that one effect has been to cut off lawful businesses' access to the U.S. payment system.
In May, the House Oversight Committee concluded that the probe was an effort to
During Tuesday's hearing, the politicians and regulators spent two hours reciting well-rehearsed arguments.
Rep. Ann Wagner, R-Mo., called attention to a memo in which the Justice Department acknowledged that
"I guess you have to break a few eggs in order to make an omelet," Wagner said sarcastically.
McHenry grilled Richard Osterman, acting general counsel at the Federal Deposit Insurance Corp., about a list of business sectors that the FDIC has deemed high-risk for banks.
"Why did the FDIC pick out these particular industries?" McHenry asked.
"It's really drawing from situations where certain things may be legal in some states and not legal in others," Osterman responded. He added that the list also includes industries that have high incidences of chargebacks.
McHenry shot back: "You've put out this list and it says, 'Don't do business.' That's what the banks have heard."
"It's certainly been misinterpreted," Osterman replied. "We're not saying to banks, 'You can't do business with any entity.' It's up to you to do business with whoever you want."
Rep. Michael Fitzpatrick, R-Pa., trained his fire on Assistant Attorney General Stuart Delery, who was testifying for the Justice Department at the hearing.
Fitzpatrick asked whether money collected in Operation Choke Point settlements - only one such case has been settled so far - is going into a fund that can be used by the Justice Department. Delery said that he wasn't sure, but promised to provide an answer later in writing.
"Let's follow the money here," Fitzpatrick said.
Democrats on the subcommittee accused their GOP colleagues of trying to pressure the DOJ and banking regulators into backing down from efforts that are entirely appropriate.
"I don't want you to be intimidated by this hearing today," Rep. Maxine Waters, D-Calif., told the witnesses.
Rep. Emanuel Cleaver, D-Mo., suggested that the bank regulators' approach has not changed much, despite all the recent criticism of Operation Choke Point. The OCC's principles regarding risk management for payment processors dates back to the 1990s.
"I guess I'm trying to figure out why all of a sudden something that began in the 1990s," Cleaver said, "is now worthy of congressional hearings."
At one point, Rep. Stephen Fincher, R-Tenn., asked Delery about the origins of the "Operation Choke Point" nickname, stating that the moniker implies that prosecutors have political motives.
"Where does this come from, and why not call it Operation Sunshine?" Fincher asked.
Delery responded that "Operation Choke Point" was coined by career DOJ lawyers. He said it refers to the fact that fraudulent merchants need access to the payment system in order to take money from consumers' bank accounts. That means financial institutions can offer a
Later on, Democratic Rep. Dan Kildee mocked his Republican colleague's line of questioning.
"I think somebody suggested 'Operation Sunshine," Kildee, D-Mich., told the witnesses. "Next time you do this, maybe you should do 'Operation Powder Puff,' and it might not be so offensive to some. Frankly it's an offensive question, and I regret that you had to answer it."
