The Regulators And Guidance: Thou Doth Protest Too Much

In our recent article in The Banking Law Journal, we discussed bank regulatory "guidance" that the U.S. Government Accountability Office ("GAO") determined should have been reported to Congress and subject to review under the Congressional Review Act ("CRA").¹ We discussed how such GAO determinations brought into question the validity of the banking agencies' approach to guidance. We noted that Congress might use the CRA as a tool to invalidate guidance. This prediction came true in May 2018 when Congress first used the CRA to invalidate the Consumer Financial Protection Bureau ("CFPB") Bulletin on Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act.² We also predicted that such GAO determinations were likely to have a chilling effect on the issuance of new guidance. While the accuracy of that prediction is still unknown, it is safe to say that the regulators have taken notice.