After health care, what will happen to Dodd-Frank?


While the U.S. Supreme Court has now upheld the health care reform law as constitutional, conservative groups still are on a legal attack on the constitutionality of one of the other signature achievements of President Barack Obama’s term in office: the Dodd-Frank financial reform law.

Last week, C. Boyden Gray, an eminence grise of conservative Washington, along with the Competitiveness Enterprise Institute and the 60 Plus Association, filed a lawsuit in U.S. District Court to challenge the constitutionality of Dodd-Frank, joining the Texas-based community bank, State National Bank of Big Spring. While the Dodd-Frank has been under legal attack on other grounds, this appears to be the first major case calling into question the underlying constitutionality of the law, similar to those launched against the health care reform bill.

Gray has ties to a group that is actively working to oppose Obama’s bid for a second term in office. He serves as board co-chair of Freedomworks, chaired by former House Majority Leader Dick Armey, R-Texas, whose super PAC has reported spending $173,000 on independent expenditures opposing Barack Obama so far this election cycle, according to the Sunlight Foundation’s “Follow the Unlimited Money” tracker. He’s also a board member of the American Action Network, which reported  sending out a direct mailing this election cycle in the Utah Senate race critical of “Obamacare.”

While the 60 Plus Association has not reported much spending on independent expenditures this election cycle so far, in 2010 the group shelled out nearly $7 million to oppose Democratic congressional candidates, according to the Center for Responsive Politics. The group, which describes itself as the "conservative alternative to the American Association for Retired Persons," has been active in criticizing the health care law.  As an organization formed under 501(c)4 of the tax code, the group is not required to reveal its donors. Last year, director Jim Martin posted a piece on the organization's website denying that the group received money from insurance or pharmaceutical companies. "Those industries made their bed with the Obama/Pelosi/Reid crowd," he charged.

The Competitive Enterprise Institute, also a 501(c)4 organization, does not report its donors either; however, the organization recently thanked sponsors of its 2011 fundraising gala, which included Gray himself along with a variety of trade associations and companies, such as the U.S. Chamber of Commerce and the Credit Union National Association. It was among the many groups that signed on to amici briefs challenging the health care reform law.

Gray began questioning the constitutionality of the Dodd-Frank law as soon as it passed, participating in a forum sponsored by the libertarian Cato Institute, penning this piece for the Federalist Society and testifying on the issue in Congress. His deregulatory bona fides go back to the Reagan Administration, when he served as counsel to the president’s Taskforce on Regulatory Relief.

The lawsuit contends that Dodd-Frank violates the Constitution by creating two agencies, the Consumer Financial Protection Bureau (CFPB) and the Financial Security Oversight Council (FSOC) that are not subject to sufficient checks and balances from other branches of the government. For example, the CFPB, says the suit, is not dependent on the congressional appropriations process for funding, instead getting its money from the Federal Reserve, and courts are limited in their power to review its legal determinations. The FSOC, which is charged with identifying financial threats to the United States, says the suit, also operates with limited judicial review.

Many of these arguments have already been made in Congress, where Republicans have mounted attacks on the CFPB, most recently pushing to change the CFPB's funding source from the Federal Reserve to Congressional appropriations process. Legislation is also pending in the Senate that would repeal the CFPB's funding.

This is also not the first legal challenge to the Dodd-Frank reform law. In July 2011, Eugene Scalia, the son of Supreme Court Justice Antonin Scalia, won a case in federal appeals court  on behalf of the Chamber of Commerce and the Business Roundtable that reversed a Dodd-Frank rule issued by the Securities and Exchange Commission (SEC) requiring corporations to provide stockholders with access to proxy materials on shareholder-nominated board nominees. Two financial trade associations–the International Swaps and Derivatives Association and the Securities Industry and Financial Markets Association–later hired Scalia to represent them in a case against the Commodity Futures Trading Commission (CFTC) to challenge a rule limiting speculation on commodities. However, at the core of both these lawsuits are claims that agencies have not conducted sufficient cost benefit analysis for their rules, not a constitutional challenge.

Sam Kazman, general counsel for the Competitive Enterprise Institute (CEI), declined to comment about the timing of the lawsuit, saying simply it was "something we've been trying to do for a while." Requests for comment from the office of C. Boyden Gray and the 60 Plus Association were not returned at the time of this posting.