By: Drake Bennett & Carter Dougherty
July 7, 2011
Elizabeth Warren's admirers often refer to her as a grandmother from Oklahoma. This is technically true. It's also what you might call posturing.
Warren, 62, is a Harvard professor and perhaps the country's top expert on bankruptcy law. Over the past four years she has managed to stoke a fervent debate over the government's role in protecting American consumers from what she sees as the predatory practices of financial institutions, and she has positioned herself as the person to oversee a new federal agency to rewrite the rules of lending, Bloomberg Businessweek reports in its July 11 issue.
Warren is a grandma from Oklahoma in roughly the same way Ralph Nader is a pensioner with a thing about cars.
If the grandmother perception is plausible, it's largely because Warren has a gift for parables and for placing herself in the middle of them as the embodiment of moral force. Thus, her account of the precise moment she realized that changing the way banks lend was going to require a new federal bureaucracy -- -and that it was up to her to create it.
Warren begins her tale in the spring of 2007, before the housing crash and the financial crisis. She was on a plane back to Boston after a series of discouraging meetings with credit- card company executives. She had tried to sell them on an idea called the "clean card" that grew out of her academic work and her side gig as a guest on such shows as Dr. Phil, where she dispensed empathy and advice to audience members who were one bad check away from losing everything.
The concept was simple: Offer the equivalent of a Good Housekeeping Seal of Approval to any credit-card company that disclosed all of its costs and fees up front, no fine print.
After a few meetings in which she was politely rebuffed, one executive walked Warren to the door and, with his arm around her, let her in on a trade secret: If he admitted that his card's actual rate was 17 percent, while his competitors were still claiming theirs was only 2.9 percent, his customers would desert him for the seemingly cheaper option, seal of approval or not.
No credit-card company would ever go along with a clean card unless all of them did. And the only way to get all of them to do it was to require it by law.
At this point, Warren says, the banker made a confession. "We recognize that we have an unsustainable model, and it cannot work forever," she says he told her. "If we told people how much these things cost, they wouldn't use them."
Here she pauses for effect, and to take a sip of herbal tea. Warren is slight and kinetic, with wide, pale blue eyes behind rimless glasses.
She punctuates her sentences with exclamations like "Holy guacamole!" It's difficult to tell whether these are spontaneous or deliberately deployed to soften her imposing professorial mien.
Warren, who grew up poor and went to college on a debate scholarship, understands the power of expression. When she wants to underline a point, she leans in to conspire with her listener; then her voice goes quiet, as it does when she says she knew instantly the condescending executive was right. Her clean card was a flop.
And so, on the flight home, Warren turned to the problem of how to push those credit-card companies into doing the right thing. By landing time, she says, she had her answer: a powerful new federal agency whose sole mission would be to protect consumers, not only from confusing credit cards but from what she calls the "tricks and traps" of all dangerous financial products. The same way the Consumer Product Safety Commission guards against dangerous household products or the Food and Drug Administration watches out for contaminated produce and quack medications.
The way Warren tells it, she pulled a piece of paper out of her backpack and got to work right there on the plane: "I started sketching out the problem and what the agency should look like."
It's a good story, even if the timeline is a little off. Warren's aides say she first pitched the idea of a consumer financial protection agency to then-Senator Barack Obama's office months before her fateful meeting with the executive.
Whatever the idea's provenance, there's no doubting its influence. In a summer 2007 article in the journal Democracy, Warren outlined what her guardian agency would look like.
"It is impossible to buy a toaster that has a one-in-five chance of bursting into flames and burning down your house," she wrote. "But it is possible to refinance an existing home with a mortgage that has the same one-in-five chance of putting the family out on the street--and the mortgage won't even carry a disclosure of that fact to the homeowner." One was effectively regulated. The other was not.
The annals of academia are stuffed with provocative proposals. Most die in the library. A little over four years after she first dreamed it up, Warren's has become a reality. Last summer, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act, a package of financial reforms meant to prevent another economic meltdown. One of the bill's pillars is Warren's watchdog agency, now called the Consumer Financial Protection Bureau.
On July 21, exactly a year after Dodd-Frank became law, the CFPB is scheduled to open for business with a broad mandate to root out "unfair, deceptive, or abusive" lending practices. Consolidating functions previously scattered across seven different agencies, the bureau will have the power to dictate the terms of every consumer lending product on the market, from mortgages and credit cards to student, overdraft, and car loans.
It will supervise not only banks and credit unions but credit-card companies, mortgage servicers, credit bureaus, debt collectors, payday lenders, and check-cashing shops. Dozens of researchers will track trends in the lending market and keep an eye on new products. Teams of examiners will prowl the halls of financial institutions to ensure compliance.
The bureau is already at work on its first major initiative: simplifying the bewildering bank forms you sign when you buy a house.
Warren's life is a blur of building and promoting the agency she dreamed up--and that she may never get to lead. On leave from Harvard, she has spent hundreds of hours on Capitol Hill visiting with members of Congress, Democrat and Republican, and flown across the country meeting with the heads of the nation's major banks and many smaller ones.
If most financial firms have yet to embrace the bureau, she's made some headway, at least, among the community banks.
'From the Heart'
"Some of my colleagues have not gotten there yet because they are convinced she's close to the antichrist," says Roger Beverage, the head of the Oklahoma Bankers Association. "I don't think she's doing anything but speaking from the heart on community banks."
One other person she has not yet won over: Barack Obama. The President has not nominated her to head the bureau. Instead, last fall he gave her the title of special assistant to the President and special adviser to the Treasury and tasked her with getting the place up and running. For now, she is the non- head of a non-agency.
The White House refuses to say whether Obama will eventually put her up for the job, allowing only that he is considering several candidates. In the coded language of appointment politics, it is a signal that they are seriously considering passing Warren over for someone else. A White House official says the Administration would like to have a nominee in place before Congress leaves for its August recess.
There's a reason for their wariness. The White House is reluctant to antagonize congressional Republicans in the middle of contentious negotiations over the federal debt ceiling.
Warren's position requires Senate approval, and Republicans, many of whom regard the CFPB as more clumsy government meddling in the free market, are vehemently opposed to allowing its creator to be installed at its helm.
Republicans have used a parliamentary maneuver to keep the Senate from officially adjourning for its traditional summer break, thus depriving Obama of the opportunity to sidestep their objections and make Warren a recess appointment.
"She's probably a nice person, as far as I know," says Senator Richard Shelby of Alabama, the senior Republican on the Banking Committee, which will hold hearings on the eventual nominee for the post.
Shelby has said Warren is too ideological to lead the agency, a judgment shared by many of his Republican colleagues.
"She's a professor and all this," he says in a tone that makes it clear he is not paying her a compliment.
"To think up something, to create something of this magnitude, and then look to be the head of it, I wouldn't do that," Shelby says. "It looks like you created yourself a good job, a good power thing."
Warren is not waiting for permission to do the job she may never get. She and her small team have hired hundreds of people, at a recent clip of more than 80 per month. The agency has already outgrown its office space and is divided between two buildings in downtown Washington--with branches to be opened across the country.
A fledgling staff of researchers is cranking out the CFPB's first reports, and its first bank examiners are being trained. Meanwhile, the office softball team has compiled a 2-3 record. Above all, an institutional culture is emerging, and it is largely loyal to Warren and her idea of what the agency should be.
She has attracted several top hires from outside the federal government. The bureau's chief operating officer, Catherine West, was previously president of Capital One; its head of research, Sendhil Mullainathan, is a behavioral economist and star Harvard professor; the chief of enforcement, Richard Cordray, is the former attorney general of Ohio; Raj Date, her deputy and head of the bureau's Research, Markets and Regulation Div., is a former banker at Capital One and Deutsche Bank.
Warren, whose reputation as a scholar rests on her pioneering use of bankruptcy data, has imbued the place with her faith in quantitative analysis. Researchers she recruited and hired have begun to build the bureau's database of financial information, with a broad mandate to keep track of lending markets and find ways to make financial information more easily digestible.
While Washington bickers, Warren has built the CFPB largely to her specs and almost entirely free of interference from Congress and the Administration, which devotes most of its attention to fixing the economy. Few Cabinet secretaries can claim to have left as indelible a mark on the departments they lead as Elizabeth Warren has already left on the one she doesn't.
The CFPB's main offices are on two floors of a russet- colored office building a few blocks northwest of the White House. The government-gray cubicles and hallways spill over with new hires --- many of them young --- working 12- and 14-hour days elbow to elbow, pale and exuding a dogged cheerfulness that suggests that, no, they do not miss the sun. By the elevator bank is a calendar counting down the days until July 21.
Ten years ago, before she became a liberal icon, Warren was a popular Harvard professor known for taking a maternal interest in the students she chose as research assistants. She was famous, but only in the small corner of academia that cared about bankruptcy.
"In my opinion she is the best bankruptcy scholar in the country," says Samuel Bufford, a law professor at Penn State who got to know Warren decades ago as a bankruptcy judge in California's Central District.
Work Warren did with Jay Westbrook, a law professor at the University of Texas at Austin, and Teresa Sullivan, a sociologist who is now president of the University of Virginia, reshaped the scholarly understanding of bankruptcy.
Analyzing thousands of filings and interviewing many of the debtors themselves, they found that those who go bankrupt weren't, as commonly assumed, primarily poor or financially reckless. A great many of them were solidly middle class and had been driven to bankruptcy by circumstances they did not choose or could not control: the loss of a job, a medical disaster, or a divorce. The explosion in consumer credit in recent decades had only exacerbated the situation--almost without realizing it, households could now slide faster and further into debt than ever before.
Warren, Westbrook, and Sullivan all saw their bankruptcy findings as a window into the broader travails of the financially fragile middle class. More than her co-authors, though, Warren sought a larger audience for the message.
In 2003, along with her daughter, Amelia Warren Tyagi, she wrote The Two-Income Trap: Why Middle-Class Mothers & Fathers Are Going Broke, a book that combined arguments about the political and economic forces eroding middle-class financial stability with practical advice about how households could fight them.
The language was sharper than in her academic work: "Subprime lending, payday loans, and the host of predatory, high-interest loan products that target minority neighborhoods should be called by their true names: legally sanctioned corporate plans to steal from minorities," Warren and Tyagi wrote.
The book got attention and Warren became a frequent TV guest. She was invited to give speeches and sit on panels on bankruptcy and debt. She was a regular on comedian Al Franken's radio show on the now defunct Air America network. "She's quite brilliant. She was always just an excellent guest," recalls Franken, now a Democratic U.S. Senator from Minnesota. "She has a very good sense of humor."
In 2003, Warren attended a fundraiser in Cambridge for Barack Obama, then running for U.S. Senate. When she walked up to shake his hand, he greeted her with two words: "predatory lending." As a senator, Obama would occasionally call Warren for her thoughts, though the two never became close.
It was the financial crisis that made Warren a star. In November 2008, in a nod to her growing reputation as a consumer advocate, Senate Majority Leader Harry Reid chose Warren to chair the congressional panel overseeing the TARP financial rescue program.
The reports she helped produce over the next two and a half years and the hearings she helped lead gave the panel a higher profile than even its creators had predicted, as she articulated concerns that many Americans had about the wisdom of a massive Wall Street bailout. In perhaps her most famous moment, Warren grilled Treasury Secretary Timothy Geithner on AIG's share of the aid money and how it was that so much of it had ended up simply reimbursing the investment banks the insurer owed money.
Pushing the Agency
Warren used her role on the panel, and the newfound visibility it gave her, to push for her agency. She worked the idea into a special report the committee released in January 2009, among a list of recommendations to head off future financial crises.
She wrote op-ed pieces, was on TV constantly, and met with at least 80 members of Congress. She also brought the idea to the Administration. Over a long lunch at an Indian restaurant in Washington, she pitched the concept to White House economic adviser Lawrence Summers, whom she knew from his tenure as Harvard's president.
Inside Treasury, the idea was taken up by Michael Barr, a key architect of Dodd-Frank and a lawyer Warren had known for years. At least within the White House, Barr recalls, it wasn't hard to build support.
"I think there was a general consensus that built pretty quickly that this was a good option," he says. "I didn't get any significant pushback on the idea."
Barr's inside advocacy, combined with Warren's PR blitz, paid off. In June 2009, Obama released a "white paper" laying out his own financial regulatory proposals, and Warren's agency was in it. By that fall, she was living in Washington, running the bureau.
Among the CFPB staff there is a strongly held belief that they have the opportunity not only to reshape an industry but reinvent what a government agency can be, to rescue the idea of bureaucracy from its association with sclerosis and timidity. People there emphasize that they are creating a 21st century agency.
Still, there's a throwback Great Society feel to the place, with its faith in the abilities of very smart unelected administrators, armed with data, to iron out the inefficiencies and injustices of the world. "Nobody looks at consumer finance regulation as it existed over the past decade and says, 'Yeah, that seemed to work all right, let's do more of that,' " says Raj Date, a square-jawed 40-year-old who speaks in the confident, numbers-heavy parlance of Wall Street.
Regardless of whether the CFPB has a director by its July 21 "transfer date," there are certain things it will immediately begin to do. One is to send teams of examiners into banks and credit unions to make sure they are complying with existing consumer finance regulations.
When the bureau is fully staffed up--initially, it will have some 500 employees and an annual budget of around $500 million --- a majority of the people who work there will be examiners. The bureau has only supervisory power over banks with assets of more than $10 billion, though the rules it writes will still apply to smaller banks. Banks on the low end of the scale will see a team of examiners for a few weeks every two years, unless there are specific complaints to investigate. Most of the biggest banks, those with assets of $100 billion and up, will have CFPB examiners in residence year-round.
Evidence of Harm
The examiners will go to work parsing the terms of mortgages and other loans, searching for evidence of consumer harm. They'll look at how the products are marketed and sold to make sure it's done transparently, that costs and fees are disclosed up front.
What the bureau will not be able to do without a director is send its examiners into nonbank financial institutions. Dodd- Frank gives the CFPB jurisdiction over payday lenders, check cashers, mortgage brokers, student loan companies, and the like. Because this is an expansion of regulatory powers, it will not take effect until a permanent director is in place.
The bureau is less willing to discuss the specifics of what will happen when it finds evidence of wrongdoing. The press office refused to make the head of enforcement, Richard Cordray, available for an interview.
Like other enforcement agencies, the CFPB will have a variety of measures at its fingertips: It will be able to give firms a talking-to, or issue so-called "supervisory guidance" papers on problematic financial products. It will be able to send cease-and-desist orders. And if all else fails, the bureau will be able to take offenders to court.
The CFPB will also have broad rule-making powers over everything from credit-card marketing campaigns to car loan terms to the size of bank overdraft fees. For now, it has confined itself to initiatives less likely to arouse wide opposition among financial firms.
The major one at the moment is developing a clear, simple, two-page mortgage form that merges the two confusing ones borrowers now confront. Bureau staff met with consumer advocates and mortgage brokers last fall, then put up two versions of a possible new form on the bureau's website, where consumers were invited to leave critiques. About 14,000 people weighed in. The forms are now being shown to focus groups around the country. A new version is due out in August.
This lengthy process is meant to demonstrate the bureau's commitment to a sort of radical openness to counter accusations that it's a body of unaccountable bureaucrats. In another gesture, Warren's calendar is posted on the website so that anyone can see who has a claim on her time. The undeniable sense among bureau staffers that they are political targets tempers that commitment to transparency a bit.
The press office is jittery about allowing reporters to talk to staff on the record, and Warren agreed to two interviews on the condition that Bloomberg Businessweek allow her to approve quotes before publication.
If the supervision and enforcement division is the long arm of the bureau, its eyes and brain will be Research, Markets and Regulations, headed by Raj Date. Teams of analysts will follow various markets--credit cards, mortgages, or student loans--to spot trends and examine new products. Economists and other social scientists on staff will help write financial disclosure forms that make intuitive sense.
The benefits of this sort of work, Date argues, will extend beyond just protecting consumers. It will help spot signs of more systemic risks. If the bureau and its market research teams had been in place five years ago, he says, they would have spotted evidence of the coming mortgage meltdown and could have coordinated with the bureau's enforcement division to head it off.
"If it was someone's job to be in touch with the marketplace and monitor what was going on," Date says, "it would have been very difficult not to notice that three different kinds of mortgages had gone from nothing to a very surprising share of the overall marketplace in the span of, honestly, like three years."
Were it not for a head of prematurely gray hair, Patrick McHenry could still pass for the college Republican he once was. Elected to Congress from North Carolina seven years ago at age 29, he speaks through an assiduous smile and arches his eyebrows as he listens--furrowing them quizzically at arguments he disagrees with.
In late May, McHenry assumed the role of Warren's chief antagonist in Congress. At an oversight hearing he was chairing, McHenry accused Warren of misleading Congress about whether she had given advice to Treasury and Justice Dept. officials who were investigating companies for mortgage fraud. McHenry said she had concealed her conversations. Warren insisted she had disclosed them.
The hearing then took a bizarre turn. McHenry called for a recess so members of the committee could go to the House floor for a vote. Warren replied that she had agreed to testify for an hour and could not stay any longer.
"Congressman, you are causing problems," she said. "We had an agreement." Offended, McHenry shot back: "You're making this up, Ms. Warren. This is not the case." Warren's response, an outraged gasp, was played on cable news.
In a conversation a month later in his Capitol Hill office, McHenry is eager to emphasize that his problem is not with Warren, but with the bureau itself. That's not to say he feels he has anything to apologize for.
"I've asked questions of a litany of Administration officials from Democrat and Republican Administrations, and I've never seen an action by any witness like I saw that day," he says.
Like most congressional Republicans --- and a broad array of business groups, including the Chamber of Commerce, the Financial Services Round¬table, and the National Association of Federal Credit Unions ---McHenry opposed the creation of the CFPB and voted against Dodd-Frank.
At the time, the bureau's opponents argued that its seemingly noble goals would not only hurt financial firms --- depriving them of the ability to compensate for risky borrowers by charging higher interest rates --- they would also hurt borrowers. The prospect of limits on the sort of rates and fees they could charge would cause banks and payday lenders alike to lend less and to not lend at all to marginal borrowers at a time when the economy needed as much credit as it could get.
Where it's not actively harmful, McHenry argues, the bureau will be redundant. If there's fraud or deceptive marketing in the consumer lending market, the federal government can prosecute it through the Federal Trade Commission. Clearer mortgage forms are all well and good, but Congress can take care of that, he says, noting that he introduced legislation for a simpler mortgage form three years ago. In response to arguments like these, Warren simply points to the record of those existing regulators: the Fed and the Housing & Urban Development Dept. have haggled over a simpler mortgage form for years. As for fears that the bureau will cap the interest rates companies can charge, she notes that Dodd-Frank explicitly prevents it from doing that.
Warren has been uncharacteristically tightlipped about her own ambitions. She refuses to say whether she even wants the job and has never publicly expressed a desire for it.
In a way, the White House may do her a favor by not nominating her. If the President decides to go with a compromise candidate to appease Republicans, she will be spared the indignity of being tossed aside. She can't be said to have lost a job she was never offered.
Yet Warren gives the distinct impression that she will not suffer long if the President passes her over. Harvard has more than its share of celebrity professors who have gone to Washington and returned.
The experience could also lead to a different kind of life in politics: Democrats in Massachusetts have been urging her to come home to run for Senate against Republican Scott Brown.
There would be books to write, television appearances to make, and, who knows, maybe a show of her own. And whatever happens, she will get to tell the second half of the story of how she started a government agency. Whether the story ends with her confirmation or being driven from town, it's almost certain that the character of Elizabeth Warren will come out looking just fine.
To contact the reporters on this story:
Drake Bennett in New York at firstname.lastname@example.org; Carter Dougherty in Washington at email@example.com.
To contact the editor responsible for this story: Lawrence Roberts at firstname.lastname@example.org.