Senate repeals auto-loan guidance in precedent-shattering vote

The Senate on Wednesday repealed a controversial Consumer Financial Protection Bureau (CFPB) decree on auto-loan financing in a vote that could set a precedent for Republicans to repeal a broad range of regulations.

Senators generally fell along party lines in the 51-47 vote to repeal 2013 guidance from the CFPB on "dealer markups" — the interest a dealer adds to a customer's third-party loan as extra compensation. 

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Assuming the House passes the measure, the CFPB auto-lending guidance will likely be the first informal regulation to be repealed by Congress through the Congressional Review Act.

While Congress has used the Congressional Review Act more than a dozen times since 2017 to repeal formal rules issued under former President Obama, it has never before used the law to repeal guidance. Republicans are now looking to do so, and could go after a range of regulatory actions that had been considered off-limits. 

Efforts to repeal rules under the Congressional Review Act cannot be filibustered, giving Republicans a powerful tool to slash regulations with only a majority vote in each chamber. The act also bans agencies from issuing rules similar to those overturned under the law. 

Sen. Joe ManchinJoseph (Joe) ManchinThe Hill's 12:30 Report — Presented by USAA — Ex-Ukraine ambassador testifies Trump pushed for her ouster GOP requests update on criminal referrals prompted by 2018 Kavanaugh probe Fallout from Kavanaugh confirmation felt in Washington one year later MORE (W.Va.) was the only Democrat to vote in favor of repealing the CFPB guidance, while Sens. John McCainJohn Sidney McCainMeghan McCain: It's 'breaking my heart' Warren is leading Biden in the polls The Hill's 12:30 Report: Video depicting Trump killing media, critics draws backlash Backlash erupts at video depicting Trump killing media, critics MORE (R-Ariz.) and Tammy DuckworthLadda (Tammy) Tammy DuckworthMissouri Republican wins annual craft brewing competition for lawmakers Democrats ignore Asian American and Pacific Islander voters at their peril Republicans grumble over Trump shifting military funds to wall MORE (D-Ill.) missed the vote.

The resolution is expected to easily pass the House, and the White House announced Tuesday that aides to President TrumpDonald John TrumpWarren defends, Buttigieg attacks in debate that shrank the field Five takeaways from the Democratic debate in Ohio Democrats debate in Ohio: Who came out on top? MORE would recommend that he sign it.

“The goal here is simple: We want to protect consumers and job creators from needless interference by the federal bureaucracy,” said Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump-GOP tensions over Syria show signs of easing Trump again vetoes resolution blocking national emergency for border wall Trump invites congressional leaders to meeting on Turkey MORE (R-Ky.).

“We can nullify a particularly egregious overstep by [the CFPB] and notch another victory in this Congress’s record of rolling back overregulation.” 

It did not initially appear that the Congressional Review Act could be used to cover informal policies like the CFPB auto-lending guidance. 

That changed in December, when the Government Accountability Office ruled that unofficial regulations were covered under the law. Sen. Pat ToomeyPatrick (Pat) Joseph ToomeyNSA improperly collected US phone records in October, new documents show Overnight Defense: Pick for South Korean envoy splits with Trump on nuclear threat | McCain blasts move to suspend Korean military exercises | White House defends Trump salute of North Korean general WH backpedals on Trump's 'due process' remark on guns MORE (R-Pa.), who requested the analysis, and Sen. Jerry MoranGerald (Jerry) MoranMcConnell signaling Trump trial to be quick, if it happens Overnight Defense — Presented by Huntington Ingalls Industries — Furor over White House readout of Ukraine call | Dems seize on memo in impeachment push | Senate votes to end Trump emergency | Congress gets briefing on Iran Senate again votes to end Trump emergency declaration on border wall MORE (R-Kan.) introduced the resolution repealing the guidance. 

The CFPB had sought to eliminate dealer markups over concerns that black and Latino customers were often charged higher rates than whites with identical credit profiles, citing several analyses — including their own — of auto loan data. 

The bureau in March 2013 released regulatory guidance warning auto dealers about the legal risks of dealer markups and how the CFPB would crack down under the Equal Credit Opportunity Act on sellers who offer discriminatory rates.

“Lender policies that provide dealers with this type of discretion increase the risk of pricing disparities among consumers based on race, national origin, and potentially other prohibited bases,” the CFPB said in a statement announcing the policy. 

The auto-lending policy was not issued as a formal rule, but served as the legal justification for a slew of CFPB lawsuits against car dealers.

The CFPB and Justice Department sued Ally Financial in December 2013 for close to $100 million in fines and damages for minority customers. They alleged that black, Hispanic, Asian and Pacific Islander borrowers paid higher interest rates for their auto loans between April 2011 and December 2013. 

The CFPB also sued Honda and Toyota for ten of millions of dollars over similar charges

Car dealers, their Republican allies in Congress and business groups defended the dealer markups as a standard financing practice and said concerns of discrimination were unfounded. 

Critics of the CFPB guidance said the bureau rushed ahead with overbearing policy based on flimsy evidence without going through the proper administrative checks, seeking to exploit a loophole.

The National Automobile Dealers Association (NADA), which supports the repeal of the 2013 guidance, said car-sellers are still subject to strict federal oversight to prevent racial disparities.

NADA called the repeal “a measured response to the CFPB’s attempt to regulate the $1.1 trillion auto financing market, avoid congressional scrutiny by issuing ‘guidance,’ and impose a new policy without necessary procedural safeguards.”

The successful Senate repeal vote alarmed a slew of progressive and consumer advocacy groups who had praised the CFPB’s action on auto loans. 

Lauren Saunders, associate director of the nonprofit watchdog National Consumer Law Center, said the Senate set “a horrible precedent to use this really crude, fast track procedure to undo guidances.”

“Guidances are used to help fill in the gaps and help people understand regulations and laws,” Saunders said. “Using this crude process to not only repeal guidance but chill agencies through the ban on substantially similar rules makes it harder for agencies to serve the public.”

Others tied the Senate vote to the broader GOP effort to weaken the CFPB and undo its rules. 

Karl Frisch, executive director of liberal nonprofit Allied Progress, blasted “D.C. politicians from both parties … who have their sights set on reversing much of the important work the CFPB has accomplished over the years.”

“Today's vote to gut consumer protections from discriminatory auto lending practices did not happen in a vacuum,” Frisch said.

Updated at 7:20 p.m.