Advocacy Update November 2022

2022 Midterm Elections - Key Takeaways

Tuesday’s elections saw a combination of both surprising and expected outcomes and set the stage for a productive lame duck session and interesting 118th Congress. Republicans are anticipated to take back the House while the Senate is still up for grabs and could potentially come down to the December 6th runoff election in Georgia.

Lame Duck Session

As Congress begins its lame duck session, the first item of business will be passing the FY2023 National Defense Authorization Act (NDAA) and addressing government spending before the Dec. 16th deadline. NCBA has been monitoring several of the House’s troubling NDAA amendments, though it is unlikely for non-defense related items to ultimately be included.

Election Impact on Creditors Rights Industry

NCBA is assessing the elections’ results and the potential impacts to our members and industry more broadly.

• House Republican Agenda: With Republicans expected to control the House, congress will focus on oversight and aggressive rulemakings, including at the CFPB, FTC and SEC.
• Financial Services Committee: Under a Republican led House, Rep. Patrick McHenry (R-NC) will Chair this key Committee and will prioritize oversight of financial regulators, data privacy, and capital markets issues. NCBA is proud of its close working relationship with McHenry.
• CFPB Structure: In addition to general oversight, Republicans will likely debate the constitutionality of the CFPB’s funding structure and question the validity of its recent actions following the Fifth Circuit’s decision to invalidate the Bureau’s payday lending rule.
• Restoring Court Authority Over Litigation Act: Despite legislative limitations due to a divided Congress, there will be pathways for bipartisan measures. NCBA and ABA continue work to identify bipartisan lawmakers to reintroduce and support this important bill ahead of the next Congress.

Legislative Update

NCBA had October Hill meetings with Rep. Veronica Escobar (TX-D-16th) and Rep. Mike Flood (NE-R-1st) ‘s offices to discuss the "Restoring Court Authority Over Litigation Act" legislation. NCBA used the opportunity with Escobar’s office to highlight our ABA relationship, explain the need for the legislative fix, and to seek Rep. Escobar’s approval to co-sponsor the bill. There is still a strong push to introduce the bill in a bipartisan manner this Congress.

Regulatory Update

Despite Tuesday’s outcomes, action at the regulatory level will continue. With either a split or Republican-controlled Congress, the ability to pursue the President’s agenda legislatively will be stifled. As a result, CFPB Director Chopra will likely be more aggressive and will pursue greater use of “guidance” instead of traditional rulemaking.

NCBA was pleased to have the CFPB as part of a panel presentation at our recent conference. We continue our regular CFPB interaction and monitor actions that may impact the industry.

Judicial Update

An Amicus request was received in the Texas case of Pharus v. Garcis/Sanchez. After a thorough review our Amicus Committee voted not to participate in this case. Reasons given included the Texas specific nature of the matter and lack of a unique NCBA argument. The underlying issue in these cases is the introduction of a new judgment revival process that includes a request to issue a writ of “scire facias” (show cause) identical in form to a citation.