ACTION

H.R. 766, the Financial Institution Customer Protection Act of 2015, is expected to pass this week.  This is a bill to stop Operation Choke Point from discriminating against legal business owners in access to financial services.  Rep. Blaine Luetkemeyer (R-MO) should be commended for his fight on this important legislation.

On May 29, 2014, the House Oversight Committee found last year the following in a report titled "DOJ's Operation Choke Point Secretly Pressured Banks to Cut Ties with Legal Business."

The Chairman of the Committee at the time was Rep. Darrell Issa (R-CA) and he put together an excellent oversight report on the issue. 

• Operation Choke Point was created by the Justice Department to “choke out” companies the Administration considers a “high risk” or otherwise objectionable, despite the fact that they are legal businesses.  The goal of the initiative is to deny these merchants access to the banking and payments networks that every business needs to survive.
• Operation Choke Point has forced banks to terminate relationships with a wide variety of entirely lawful and legitimate merchants.  The initiative is predicated on the claim that providing normal banking services to certain merchants creates a “reputational risk” sufficient to trigger a federal investigation.  Acting in coordination with Operation Choke Point, bank regulators labeled a wide range of lawful merchants as “high-risk” – including coin dealers, firearms and ammunition sales, and short-term lending.  Operation Choke Point effectively transformed this guidance into an implicit threat of a federal investigation.
• The Department is aware of these impacts, and has dismissed them.  Internal memoranda on Operation Choke Point acknowledge the program’s impact on legitimate merchants.  Senior officials informed Attorney General Eric Holder that as a consequence of Operation Choke Point, banks are exiting entire lines of business deemed “high risk” by the government.
• The Department lacks adequate legal authority for the initiative.  Operation Choke Point is being executed through subpoenas issued under Section 951 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.  The intent of Section 951 was to give the Department the tools to pursue civil penalties against entities that commit fraud against banks, not private companies doing legal business.  Documents produced to the Committee demonstrate the Department has radically and unjustifiably expanded its Section 951 authority.
• Contrary to the Department’s public statements, Operation Choke Point was primarily focused on the payday lending industry.  Internal memoranda and communications demonstrate that Operation Choke Point was focused on short-term lending, and online lending in particular.  Senior officials expressed their belief that its elimination would be a “significant accomplishment” for consumers.

The Luetkemeyer bill is a great first step to stem the discrimination against legal businesses coming from the Obama Administration and his appointees at the Department of Justice.

Eric Holder's Justice Department worked directly with the Federal Deposit Insurance Corporation (FDIC) to deny legal businesses banking and lending services according to a new new House Oversight and Government Reform Committee. The report,“Federal Deposit Insurance Corporation’s (FDIC) Involvement in ‘Operation Choke Point’,” details the agency's close relationship with the Department of Justice (DOJ) to deny banking services to gun stores, porn stars and even short-term lenders. 

The investigation by the Committee found documents revealing that the DOJ actively partnered with the FDIC in the prosecution of the infamous "Operation Choke Point." FDIC’s participation in Operation Choke Point included requests for information about the investigation, discussions of legal theories and the application of banking laws, and the review of documents involving FDIC-supervised institutions obtained by DOJ in the course of its investigation. FDIC also originated the list of “high risk” industries included in the DOJ subpoenas. Documents provided to the Committee also show that senior leadership at the FDIC opposed certain industries on purely moral and political grounds.

The Chairman of the House Government Oversight Committee issued a scathing statement denouncing the FDIC and DOJ:  “It’s appalling that our government is working around the law to vindictively attack businesses they find objectionable,” said Rep. Darrell Issa.  “Internal FDIC documents confirm that Operation Choke Point is an extraordinary abuse of government power. In the most egregious cases, federal bureaucrats injected personal moral judgments into the regulatory process. Such practices are totally inconsistent with basic principles of good government, transparency, and the rule of law.”

Key findings by the Committee include: 

1)  The Federal Deposit Insurance Corporation, the primary federal regulator of over 4,500 banks, targeted legal industries. FDIC’s explicitly intended its list of “high-risk merchants” to influence banks’ business decisions. FDIC policymakers debated ways to ensure that bank officials saw the list and “get the message.”

2)  Documents produced to the Committee reveal that senior FDIC policymakers oppose payday lending on personal grounds, and attempted to use FDIC’s supervisory authority to prohibit the practice.  Personal animus towards payday lending is apparent throughout the documents produced to the Committee.  Emails reveal that FDIC’s senior-most bank examiners “literally cannot stand payday,” and effectively ordered banks to terminate all relationships with the industry. 

3) In a particularly egregious example, a senior official in the Division of Depositor and Consumer Protection insisted that FDIC Chairman Martin Gruenberg’s letters to Congress and talking points always mention pornography when discussing payday lenders and other industries, in an effort to convey a “good picture regarding the unsavory nature of the businesses at issue.”

4) FDIC equated legitimate and regulated activities such as coin dealers and firearms and ammunition sales with inherently pernicious or patently illegal activities such as Ponzi schemes, debt consolidation scams, and drug paraphernalia.

Most Second Amendment advocates noted that Operation Choke Point was nothing more than a backdoor effort to put gun stores out of business.