Advocacy Update October 2022

Washington D.C. Update

The primary season ended in mid-September, and Congress has now departed Washington until after the midterm elections. Congress was able to avert a government shutdown by passing a continuing resolution (CR) late last week that was signed by President Biden. Not only does the CR extend current FY2022 funding levels until December 16, but it also included $12 billion in aid for Ukraine and relief funds for communities hit by Hurricane Ian. 

Despite the Senate’s initial plans to return for a two-week session, Majority Leader Schumer (D-NY) announced that the Senate will join the House and return on November 14.  From that point forward the busy lame duck session begins; this may be the Democrats’ last opportunity to advance their policy priorities if Republicans can win one or both in November.  

FY2023 Defense Spending Teed Up for Lame Duck Session 

Among the first items on Congress’s agenda will be FY2023 defense policy, otherwise known as the National Defense Authorization Act (NDAA). As a reminder, the House’s version of the NDAA included several potentially problematic provisions for NCBA members, and NCBA and ABA are advocating for their exclusion from any final package. 

Legislative Update

In September, NCBA attended several political events and meetings including for Ranking Member Patrick McHenry (R-NC), Congresswoman Madeleine Dean (D-PA), Congressman Hakeem Jeffries (D-NY), Congressman French Hill (R-AR), Senator Ben Cardin (D-MD), Senator Chris Van Hollen (D-MD), Congressman David Trone (D-MD), and Congressman Dutch Ruppersberger (D-MD).  

• NCBA co-hosted events for HFS members, ranking Republican Rep. McHenry, and Housing, Community Development and Insurance Subcommittee ranking member, Rep. French Hill. Should Republicans take back the House in November, Rep. McHenry is set to be Chair of this key committee.
• Madeleine Dean (D-PA) is a member of the House Judiciary and Financial Services Committees. NCBA is working to reintroduce legislation that would fall under these two committees' authority during the 117th Congress.
• Congressman Hakeem Jeffries (D-NY) serves on the powerful House Judiciary Committee and is Chairman of the House Democratic Caucus. His event allowed NCBA to meet several members of the Congressional Black Caucus, including Representative Shontel Brown (D-OH).

Given Congress’s absence for the next six weeks, federal political events will resume after the midterm elections.  

Regulatory Update

CFPB Sued Over Discrimination Policy  

On September 28 , the U.S. Chamber of Commerce, along with other trade associations filed a lawsuit against the CFPB.   In addition to the complaint’s request that the court order the CFPB “cease accepting funds in violation of the Appropriations Clause", they also ask the court to block a recent anti-discrimination policy change that states discriminatory conduct would count as “unfair” under the CFPB’s “unfair, deceptive, or abusive acts or practices (UDAAP)” authority granted by Dodd-Frank in 2010. 

The banking industry’s concern is fueled by potential “disparate impact” consequences, that hold businesses accountable for discrimination, even when none was intended. NCBA and the rest of the creditors rights industry will undoubtedly be tracking this litigation and outcome.

Judicial Update

Our Amicus Committee Chairs are watching Johnson v. NPAS Sols., LLC. All indications point to the filing of a petition for cert. The Court of Appeals denied en banc review of its panel decision that found incentive awards to class representatives are prohibited. A contrary result occurred in Hyland v. Navient Corp among others, creating a widening circuit split. We will continue to watch this case to determine if this is an opportunity for a NCBA Amicus filing.