One thing to keep in mind about the recent Thomas Perez–Keith Ellison race for Democratic National Committee chair is that it was pretty much an only-in-America sort of thing. Were we in any kind of parliamentary system – like most countries have – the two sides would probably be in different parties – the Bernie Sanders core of the Ellison
In September 2016, in the run-up to the 2016 U.S. election, in which Hillary Clinton was expected to become the first woman U.S. president, the media announced that progress on a signature campaign of women’s rights advocates—closing the gender wage gap–had sputtered, if not actually stalled, in the U.S. as well as in many other countries. The annual earnings ratio between women and men in the U.S. was 79.6 percent in 2015, only marginally higher than it was 2007, when it hit 77.8 percent. At this rate, one study concluded, it will take 45 years, until 2059, for men and women to reach parity. Globally it was even worse. The U.N. 2015 Millennium Development Goal Gender Chart estimates that globally women earn 24 percent less than men and perform two and a half times more unpaid care and domestic work than men.
Since at least the early 1970s, women’s rights organizations have campaigned to improve the terms and conditions of women’s paid work, of which the wage gap is the most visible symbol. By the middle of the 1990s, this effort was embraced by trade unions in many countries and by 2005, working together or separately, they had secured the passage of laws forbidding discrimination against women in the workplace in most countries. The proportion of countries with equal pay legislation rose from around 33 percent in 1975 to 86 percent in 2005. The vast majority of firms no longer use different pay scales for women and men, and globally the gender wage gap narrowed by about half from 1991 to 2014, largely due to gains in women’s education. But progress has slowed steadily over this period, and in high income countries it has largely stalled. In Organisation for Economic Co-operation and Development (OECD) countries, after narrowing somewhat in the period 2000-2008, the average gap between the wages of men working full time and women working full time has remained at around 16 percent since 2009, meaning that women’s wages have remained on average around 86 percent of men’s.
One of the key reasons for stalled progress on the wage gap is that women continue to have greater responsibility than men for unpaid care and domestic work in families and communities, looking after people, providing for their daily needs, caring for children, frail elderly people, people who are ill, or living with disabilities. In all regions of the world, mothers with dependent children on average earn less than women without dependent children and less than fathers with similar household and employment characteristics. The gender pay gap is much larger among parents than between women and men who have no children. In the U.S. childless women (including married and unmarried) earn 93 cents on a childless man’s dollar, but among full-time workers, married mothers with at least one child under age 18 earn 76 cents on a married father’s dollar.
Unpaid work responsibilities also result in a gender gap in participation in paid work: Many women have to withdraw from paid work for long periods to care for family members. As a result the gender gap in lifetime earnings is even bigger than the pay gap between employed women and men, as many women have no earnings at all for substantial periods of time. Globally women’s labor force participation has stagnated, although there are important regional variations, with rises in Latin America but declines in Central and Eastern Europe and Central Asia.
Socialist feminists have always argued that to achieve equality in paid work, women also need to achieve equality in unpaid work. The strategies that can help to achieve this can be summarized as: recognize, reduce, and redistribute women’s unpaid work. These strategies have been strongest in high-income countries with extensive welfare states and have begun to be adopted in a growing number of developing countries that have introduced some of the social protection policies advocated by the International Labour Organization (ILO). But political and economic changes emerging in 2016 put in question how far these strategies can be sustained, let alone extended to countries like the U.S., where they have been weak.
Recognizing Unpaid Care and Domestic Work
Recognizing unpaid care and domestic work means understanding how this work underpins all economies and valuing it accordingly. Right-wing commentators see these activities as a private matter, reducible to individual private choices, rather than shaped by social and economic structures, and having implications for wider society, not just the people providing and receiving care. If no one had children, and took care of families and friends, economies would come to a halt for lack of a labor force.
It is possible to calculate the economic value of unpaid care and domestic work, by finding out how much time is spent on this work, using a time-use survey, and then putting a price on the output produced or a wage on the time spent. Between 1966 and 2015 at least 85 countries in all regions of the world have conducted time-use surveys to find out how people spend their time over the twenty –four hours of a day or the seven days of a week. In the U.S .a time-use survey is conducted annually with a representative sample of people over the age of 15, under the auspices of the Bureau of Labor Statistics and the Census Bureau. In 2014 it showed that the average time per day spent in paid work was 4.28 hours for men, and 2.93 hours for women, while the average time spent in unpaid work was 2.33 hours for men and 3.72 hours for women.
It is possible to put a monetary value on unpaid work by asking what it would cost to hire someone to do the work instead. Using this method, estimates were made of the monetary value of unpaid work for 27 OECD countries in 2008, and this was compared with the value of Gross Domestic Product (GDP). For the U.S., it was found that the monetary value of unpaid work was 18 percent of U.S. GDP, while for Denmark it was 31percent of Danish GDP and for Sweden 25 percent of Swedish GDP. Differences reflect differences between countries in the amount of unpaid work done, and in the wages used to value this. If wages for paid domestic and care workers are particularly low, as they are in the U.S., then the monetary value of unpaid work will be low. The monetary value is, of course, not the same as the social value of the work, but calculating it highlights what the monetary costs would be if the work were not done for free.
The UK Office of National Statistics released data in November 2016 showing on average UK men do 16 hours unpaid work a week, while women do 26 hours weekly (60 percent more than men). People who have lower incomes do more unpaid work than those with higher incomes. Valuing the work at replacement cost (i.e., what you would have to pay someone to do the same work), men’s weekly unpaid work amounted to 166.63 pounds, while women’s amounted to 259.63 pounds.
Some feminists have argued that women should actually be paid a wage for the domestic and care work they do for their families and friends. The International Wages for Housework Campaign was launched in Italy in 1972 and spread to the UK. Committees calling for Wages for Housework were founded in several cities in U.S, including New York. Today one of the originators of the International Wages for Housework Campaign, London-based Selma James, coordinates Global Women’s Strike, an international network for recognition and payment for all household and care work. However, the demand for Wages for Housework has not become central to women’s struggles for equality, largely because it is perceived as likely to perpetuate the current division of labor, in which housework is seen as women’s work and which is a persistent obstacle to equality in paid work. Also, the proposal would be impossible to implement, as there would be no way to verify hours of work performed, and so in effect would amount to a kind of welfare benefit for housewives rather than a wage. In addition, it does not focus on the questions of how to reduce and redistribute unpaid care and domestic work, and so lacks transformative potential.
Instead, more women’s organizations have struggled for recognition of unpaid work in official national statistics (as in the examples above); and in publicly funded welfare state and social protection systems, such as through tax-funded paid maternity leave, and arrangements that ensure women do not face additional penalties in public pensions because of time spent out of the labor market caring for children.
However, even when statistics on the extent and monetary value of unpaid care and domestic work are produced, they are not used in the design of economic policies. For instance, despite the availability of time use data in the majority of European countries, the design of austerity policies these countries have adopted since 2010 have paid no attention to their impact on unpaid work. Research in a number of countries suggests that cuts to public expenditures have increased women’s unpaid work, especially for low income women, as these women produce caregiving services formerly provided by the public sector, particularly for the elderly and disabled.
Women’s unpaid work has been recognized and supported through cash payments linked to raising children in many countries with a welfare state or social protection system. For instance, in most high-income countries, women employees are entitled to paid maternity leave funded from tax revenue—the U.S. is an exception. However, leave benefits vary greatly across countries. The ILO Maternity Protection Convention, 2000 (No. 183),ratified by 32 countries as of August 2016, calls for at least 14 weeks of paid maternity leave, which most developed economies generally exceed. The average duration of paid parental leave in developed economies is 26 weeks.
Some feminists have expressed concern that long-term paid maternity leave, such as the three years available to mothers in Finland, encourages women to leave paid employment for too long, making it difficult for them to return to jobs comparable in terms of pay and conditions to the ones they have left. A more transformative option is paid parental leave, equally shared between both parents, which is discussed here as one of the strategies to redistribute unpaid work.
Women who take time out of paid employment to care for children and other family members also lose out in pension entitlements. In many countries that have a state- organized public pension based on payroll taxes paid by employers and employees, women have successfully campaigned for the government to reduce their loss by paying some contributions on their behalf when they are out of the labor market taking care of family members. Such payments, known as pension credits, are widely used in developed countries and have recently been introduced in some developing countries, primarily in Latin America, such as in Uruguay and Bolivia. They can be provided in relation to care of children, frail elderly people, and people who are ill or disabled, but in practice they are mainly awarded for care of children. Again there is an issue of whether pension credits are paid only for mothers (as is the case in Latin America) or to whomever is the main caregiver, independent of their sex (as is more the case in Europe). Pension credits for the main care-giver does more to promote the redistribution of unpaid care.
Of course, if there is a universal, non-contributory pension, funded from general tax revenue and available to all, pension credits may not be necessary. Such universal social pensions are available in a growing number of countries, including Bolivia, Botswana, Mauritius, Namibia, Thailand, and rural Brazil. While these have obvious advantages over work-related contributory pension schemes, which are found in OECD countries, the benefit levels are almost always considerably lower than those in contributory pension schemes.
Reducing Unpaid Care and Domestic Work
Women’s organizations and trade unions in many countries have advocated for reduction of unpaid care and domestic work through public investment in physical infrastructure, such as the provision of clean water and sanitation, clean energy and public transport; and in social infrastructure, such as care services and health services. Provision of such services is part of the social protection system advocated by the ILO.
In many developing countries, access to clean water and sanitation and clean energy cannot be taken for granted, especially in rural areas; and women and girls spend a lot of time collecting water and fuel. For instance, estimates for 25 countries in sub-Saharan Africa indicate that women spend a combined total of 16 million hours per day collecting water. This unpaid work could be eliminated by investment in water and sanitation infrastructure, provided access is affordable. In South Africa each household is entitled to 6000 liters of free, safe water per month. Similarly, women and girls in rural areas spend a lot of time collecting wood and other fuels and grinding and pounding food grains by hand. Rural electrification in South Africa reduced the time women spent on such tasks, boosting their participation in paid work by 9 percent.
In high-income countries, clean water and electricity is widely available, but women spend many hours of unpaid time caring for their children and frail elderly relatives. This can be reduced by transferring production of care to paid workers. In OECD countries on average , only 33 percent of 0-2 year olds are enrolled in early childhood education and care services. This increases to more than 70 percent of 3-5 year olds , but in some countries , such as UK, this is because compulsory enrolment in school begins at age five. In the U.S. early childhood education and care services are not publically provided until age five in most places . Services for children under three, whether publically or privately provided, are only free of charge to the poorest children in any country, and costs vary widely, with fees in the U.S. among the highest in the OECD. Moreover, services are frequently not designed with the needs of working parents in mind, and may operate for only half the day. In the U.S., contributions to the child care costs of some low-income families are made through cash transfers of some kind, such as the low-income tax credit, and there is no comprehensive public provision of such services. By contrast in Denmark, child care provision is the responsibility of local government, and all children, from 26 weeks to 6 years, are entitled to a full-time place. Fees are related to the earnings of parents.
In countries with aging populations, a growing amount of unpaid care work is devoted by women to looking after frail elderly relatives. Public investment in non-medical services for frail elderly people is low, and in some countries, such as the UK, has gone to finance out-sourced services whose staff are badly paid, poorly trained and lack employment rights. In the U.S., there is some limited funding for non-medical care for frail elderly people through Medicaid, providing they first have exhausted all of their own savings. By contrast, in Denmark services are financed through taxation and provided by local councils to all legal residents, and for permanent long-term care needs, are free of charge.
The publically provided care for children and old people that is available in Denmark, as well as benefiting those who need care, also frees more of the time of working-age women to undertake full-time paid work and reduces gaps in their labor force participation. The gender wage gap in Denmark in 2012 was around seven percent, and had been falling since 2009, whereas in U.S. it was almost double this and stalled.
Awareness of the economic benefits of public investment in child care and elder care services is growing. The International Trade Union Confederation (ITUC) has called for such investment to provide not only needed services but also millions of good quality new jobs, citing analysis by feminist economists at the UK Women’s Budget Group of the impact of investing two percent of GDP in public provision of child care and elder care services in seven OECD countries. In the U.S., according to this analysis, such investment would create nearly 13 million new jobs, much more than investing two percent of GDP in the construction sector, which would create around 7.5 million jobs. Some 67 percent of the new jobs created by investment in the care sector would go to women, compared to 35 percent of new jobs created by investment in the construction sector. Investment in the care sector would reduce the gender employment gap, while investment in the construction sector would increase the gender employment gap. It is vital to have investment in social infrastructure, such as care services, and not just in physical infrastructure, such as roads and bridges, if women are to benefit equally with men from such investment.
Redistributing Unpaid Care and Domestic Work
Neither feminists nor trade unionists are campaigning to eliminate unpaid care and domestic work altogether. Women—and in some countries at least, increasingly men—want both time free from caregiving responsibilities, and also time to care for loved ones. Gender equality requires that we redistribute the unpaid domestic and care work that remains after comprehensive investment in household-related infrastructure and public services, so that men and boys share this equally with women and girls. This can be encouraged by provision of tax-funded paid parental leave for fathers as well as mothers. In 1994, statutory paternity leave provisions existed in 40 of the 141 countries for which the ILO had data. By 2015, leave entitlements for fathers were provided in at least 94 countries of 170 with ILO data. But paid paternity leave has an average length of seven days against an average length of 106 days for mothers. Fathers’ use of parental leave seems to be highest when leave is not just paid but well paid—at least half of previous earnings, as in the four OECD countries with the most gender-equal distributions of parental leave—Iceland, Norway, Portugal, and Sweden . Also effective are requirements that fathers cannot transfer their entitlement to mothers. In Iceland and Sweden, which offer a non-transferable “use-it-or-lose-it” fathers’ quota of leave days, men’s uptake is much higher (90 percent) than in Denmark (24 percent) and Slovenia (6 percent), which do not.
Men are beginning to take some responsibility for trying to change social norms about men’s participation in unpaid care and domestic work. MenCare is a global fatherhood campaign in more than 40 countries in five continents. Largely funded by U.S. and European foundations and U.N. agencies, its mission is “to promote men’s involvement as equitable, nonviolent fathers and caregivers in order to achieve family well-being, gender equality, and better health for mothers, fathers, and children.” Activities vary by country, ranging from small social media initiatives to radio shows, to comprehensive programs of education and training, and campaigns for paid leave for fathers. For instance, in Brazil, Promundo, a MenCare partner, works alongside the government’s ‘bolsa familia’ cash transfer program (which is targeted to low-income mothers) to train staff administering the program to work with fathers as well as mothers. The aim is to encourage fathers, as well as mothers, to take responsibility for children’s education and health. In 2016 MenCare produced a report on fatherhood in the U.S., which in addition to calling for paid parental leave, calls for workplace policies that value what parents do as caregivers as much as they value their professional achievements. Such policies should include, in addition to parental leave: flexible work hours, sick leave, a living wage, and creation of workplace cultures that respect the caregiving responsibilities of all genders.
Changes in the way that paid work is organized are essential if unpaid domestic and care work are to be equally distributed between women and men. It is particularly important that such arrangements should not only focus on women: for instance, creating a ‘mommy track’ of part-time work just for women. It is often overlooked that the hourly gender wage gap tends to be greatest between women working part-time and men working full-time. For instance, as pointed out by women’s rights campaigners in Scotland, in 2014, the gap in Scotland between the hourly earnings of all men and women was 17.5 percent; in full-time work the gap was almost half this, at 9 percent; but the gap between the hourly earnings of men working full-time and women working part-time was 34.5 percent. A study with low-income mothers in heterosexual couples in England found strong support for a shorter full-time working week for both women and men, so that mothers and fathers could share equally in paid and unpaid work.
The gender wage gap will never be closed by measures that aim to make women’s working lives more like men’s. Now we need more radical measures, those that will transform men’s working lives to make them more like those of women, such as equalizing ‘normal’ hours of paid work at about 30 hours a week for both men and women, raising wages where necessary to ensure this brings in a living income.
Closing the Gap
The gender wage gap will persist, and women’s rights will not be fulfilled, unless the gender gap in unpaid care and domestic work is recognized and closed. Public investment is vital to reduce the amount of unpaid work that needs to be done, but we also need measures to redistribute the remaining work, so that it is equally shared by men and women. As well as raising the rate of women’s participation in paid work, we need to raise the rate of men’s participation in unpaid care and domestic work. This requires action from governments, businesses, trade unions, and women’s organizations to mobilize resources and change cultures. To date, the most effective action has been in developed countries with extensive welfare states and in developing countries that are creating social protection systems. But these achievements are jeopardized by austerity policies and the rise of populist politics that reinforce gender stereotypes and call only for public investment in construction projects not in public services. It will be important for labor organizations and women’s organizations to work together to address inequalities not only in paid work but also in unpaid work.
- Institute for Women’s Policy Research, The Gender Wage Gap: 2015, IWPR #446, Washington, D.C., September 2016.
- United Nations, MDG Gender Chart 2015, New York, 2015, p. 3; http://www.unwomen.org/en/digital-library/publications/2016/2/gender-chart-2015
- UN Women, Progress of the World’s Women 2015-2016 (New York: UN Women, 2015) 32-33.
- UN Secretary General’s High Level Panel on Women’s Economic Empowerment, Leave No One Behind: A Call to Action For Gender Equality and Women’s Economic Empowerment (New York: UN Secretariat, 2016), 33-35.
- UN Secretary General’s High Level Panel on Women’s Economic Empowerment, 2016:34.
- Michelle Budig, The Fatherhood Bonus and the Motherhood Penalty: Parenthood and the Gender Gap in Pay,2014. http://www.thirdway.org/report/the-fatherhood-bonus-and-the-motherhood-penalty-parenthood-and-the-gender-gap-in-pay
- UN Women 2015, 75-76.
- For instance, Jean Gardiner, Gender, Care and Economics (Basingstoke: Macmillan, 1997) shows how feminist in the UK-based Conference of Socialist Economists argued in the 1970s that unpaid domestic labour underpinned both the capitalist economy and the gender inequality women experienced in the public sphere and yet had been largely ignored by economists of the left and the right.
- I first suggested the three Rs framework for analyzing unpaid work in seminar organized by the United Nations Development Programme in New York in 2009. This framework was subsequently used by UNDP (see for instance Anna Falth and Mark Blackden, ‘Unpaid Care Work’, Gender Equality and Poverty Reduction Policy Brief No.1(New York: UNDP 2009). It has since then been used, albeit with some variations, by a wide range of international organizations – see for instance UN Women 2015 and UN Secretary General’s High Level Panel on Women’s Economic Empowerment (2016).
- ILO (International Labour Organization) World Social Protection Report 2014-15: Building Economic Recovery, Inclusive Development and Social Justice (Geneva 2014). Social protection encompasses provision of basic income security through minimum wages and cash transfers, and provision of basic social services such as education, care and health services.
- As eloquently explained by Nancy Folbre, Who Pays for the Kids: Gender and Structures of Constraint (London: Routledge, 1994) and Antonella Picchio, Social Reproduction ( Cambridge: Cambridge University Press, 1992).
- United Nations Statistics Division Time Use data portal. (unstats.un.org/unsd/gender/timeuse/
- Ibid. The time is averaged over the population over 15 years old, including some who do no paid work and some who do no unpaid work.
- Ahmad, N., and S. H. Koh. “Incorporating Estimates of Household Production of Non-Market Services into International Comparisons of Material Well-Being.” OECD Statistics Directorate Working Paper No. 42, 2011.
- For a discussion of the conceptual issues, see Nancy Folbre, Valuing Non-Market Work (New York:UNDP Human Development Report Office, 2015).
- Report in The Guardian,11 November 2016.
- See http://www.globalwomenstrike.net/content/global-womens-strike-demands
- There are also other problems, such as who pays the wages; how it is decided how big a wage a particular woman should get, given that there are no set hours of work; and whether married women with no children and well-off husbands should be paid for the housework they do.
- Hannah Bargawi, Giovanni Cozzi and Susan Himmelweit (eds.), Economics and Austerity in Europe: Gendered Impacts and Sustainable Alternatives (London, Routledge, 2016).
- Sharon Lerner, The Real War on Families: Why the US Need Paid Leave Now, In These Times, August 18, 2015 http://inthesetimes.com/article/18151/the-real-war-on-families
- UN Secretary General’s High Level Panel on Women’s Economic Empowerment (2016) 68.
- UN Women (2015) 155. An ILO costing study of basic social protection provision in seven low-income countries in Africa and five in Asia estimated that the annual cost of universal basic old age and disability pensions would cost between 0.6 and 1.5% of annual GDP; K Hagemejer and C. Behrendt, “ Can Low-Income Countries Afford Basic Social Security?” Geneva, ILO, 2008; https://www.ilo.org/gimi/gess/RessourcePDF.action;jsessionid=v1LfY11PCGvGW4N9dqsKKrcxyWszDNnBNTtcqr2TQqzLfvhBD9gB!79209976?ressource.ressourceId=5951
- Ibid. 181.
- Ibid. 182.
- Ferrant, G., L. M. Pesando and K. Nowacka, .Unpaid Care Work: The Missing Link In The Analysis Of Gender Gaps In Labour Outcomes.(Paris: OECD, 2014) . https://www.oecd.org/dev/development-gender/Unpaid_care_work.pdf.
- Some US cities, such as New York City, have recently introduced publically funded education for 4 year olds.
- Although wages are generally low, these services are very labor intensive, in both for profit and non-profit facilities. Women’s Budget Group, Investing in the Care Economy: A gender analysis of employment stimulus in seven OECD countries (ITUC,2016,42). https://www.ituc-csi.org/CareJobs
- Ibid. 37,42. https://www.ituc-csi.org/CareJobs
- Ibid. 41. https://www.ituc-csi.org/CareJobs. There is also some limited funding through Medicare, but limited to three weeks, based on the assumption, which must be certified through a doctor, that the person is likely to improve during that time.
- Women’s Budget Group (2016)37. https://www.ituc-csi.org/CareJobs
- Women’s Budget Group (2016). https://www.ituc-csi.org/CareJobs
- Women’s Budget Group (2016, Tables 13,14 and 15). https://www.ituc-csi.org/CareJobs. While it can be argued that investment in the care sector would simply create additional low-wage jobs, it is likely that wages would increase with sufficient investment.
- OECD. Backgrounder on Father’s Leave and Its Use. Paris: OECD ,2016). https://www.oecd.org/els/
family/Backgrounder-fathers-use-of-leave.pdf. These gender differences in how much parental leave is taken reflect the fact that the loss of earnings for men is much greater than the loss of earnings for women, who generally are paid less.
- MenCare, The MenCare Parental Leave Platform. (Washington, DC, 2016. http://men-care.org/wp-content/uploads/sites/3/2016/03/Parental-Leave-Platform-web.pdf. MenCare is coordinated by Promundo and Sonke Gender Justice in collaboration with the MenEngage Alliance, Save the Children, and Rutgers University and is funded by the Bernard Van Leer Foundation, MacArthur Foundation, Sida (Swiss Development Agency), Oak Foundation, Summit Foundation, United Nations Population Fund, and UN Women.
- MenCare, State of America’s Fathers, www.men-care.org/soaf/
- Close the Gap Working Paper No. 14, 2015. https://www.closethegap.org.uk
- Tracey Warren, Gillian Pascall, and Elizabeth Fox, ‘Gender Equality in Time: Low Paid Mothers’ Paid and Unpaid Work in the UK. Feminist Economics 16(3)193-220, 2010.
You know things have gotten bad for the banking industry when even the bankers themselves are beating up on their own. After the Consumer Financial Protection Bureau (CFPB) announced back in early September that it was fining Wells Fargo nearly $200 million—the largest fine ever levied by the Bureau—for the “widespread illegal practice” of opening dummy accounts, filling them with depositors’ funds without their knowledge or authorization, and then cashing in on the accounts by assessing consumers’ fees and other charges, you could almost hear the bankers of the world collectively throwing up their hands. “Not that Senator Elizabeth Warren needed more ammunition to protect the CFPB,” grumbled Jaret Seiberg of the Cowen Group, a leading financial services company, “but she has it now.” Camden Fine, president of the Independent Community Bankers of America (ICBA), put it even more bluntly. “Wells’ greed has made it much more difficult for ICBA to get much needed regulatory relief,” Fine groused.
An invention of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB was created to rein in the bottom-feeders of the financial community. But the revelation that the largest bank in the world by market capitalization had just been caught with its hand in the cookie jar was not what really bothered Fine and Seiberg. Rather, it was the extraordinarily poor timing of the news that rankled them most of all. On the very same day the CFPB issued its consent order against Wells Fargo, the House Financial Services Committee announced that it would begin hearings on a new piece of legislation, the Financial Choice Act, introduced by Republican Committee Chairman Jeb Hensarling of Texas. Hensarling, one of Wall Street’s most contentedly kept men on Capitol Hill (to the tune of $1.2 million in campaign contributions during the 2016 election cycle alone), drafted the Financial Choice Act in effect to gut or destroy the regulatory provisions put in place by Dodd-Frank, and especially Elizabeth Warren’s brainchild, the CFPB (no wonder, then, that Warren has called the bill “Congressman Hensarling’s wet-kiss to the Wall Street banks”). So when Wells Fargo CEO John Stumpf found himself hauled before the public to confess sheepishly that “we make mistakes,” just as Hensarling was beginning the campaign to bring the Financial Choice Act to a floor vote, the ICBA’s Fine grimly rued the inopportune coincidence: “Much-needed CFPB reform is basically DOA,” he acknowledged by way of a postmortem. A little more than a month later, Stumpf himself was DOA—victim of an unceremonious early retirement package that included a “claw back” of nearly $41 million in previously awarded stock bonuses.
If that turns out to be the fate of the Financial Choice Act as well—which, among other things, would replace the CFPB’s existing “consumer watchdog” executive structure with a bipartisan commission subject to the unpredictable currents of congressional appropriations, while repealing its ability to ban financial products deemed to be abusive—it will not have been the first attempt to curtail the Bureau’s regulatory effectiveness. Nor is it likely to be the last. Ever since the 2010 passage of Dodd-Frank, the CFPB has been a perennial target for the banks and financing companies that fall under its umbrella. And with the ready assistance of hired guns like Hensarling, a proliferating array of industries that manufacture increasingly novel (and frequently quite predatory) financial products, which often remain just outside of that umbrella, have been fighting toothand-nail to keep the CFPB out of its turf.
Take, for instance, the world of for-profit educational companies. A state-subsidized boondoggle of alarming proportions, the degree-mill industry has raked in as much as $32 billion annually in taxpayer dollars in recent years, even as the Department of Education reports that 72 percent of for-profit colleges produce graduates who earn less on average than the typical high school dropout in the overall population. For that dubious honor, another study concluded, the typical University of Phoenix or DeVry graduate leaves school “ripped off, unemployed, and deep in debt,” and six times more likely to default on her student loan than a graduate of a non-profit or public college.
This kind of track record of consumer abuse is exactly what the CFPB was created to address, so it was a salutary development when the Bureau secured a $530 million judgment against Corinthian Colleges, one of the industry’s worst offenders, in the fall of 2015, while forcing Corinthian out of business in the process. A similar outcome resulted when the CFPB went after the ITT Technical Institute, which announced it was closing its doors in September 2016. But when the CFPB attempted to push its regulatory authority still further into the workings of the for-profit education industry, the industry pushed back. Noting that forprofit institutions become eligible to participate in massively lucrative federal financial aid programs by being accredited by a recognized agency, the Bureau issued a civil investigative demand— effectively a comprehensive subpoena preliminary to a full investigation—to the century-old Accrediting Council for Independent Colleges and Schools (ACICS), requesting information on how the process had worked for low-performers like Corinthian.
The ACICS responded by refusing to turn over the requested information, while appealing the CFPB’s demand on the legal grounds that the Bureau was “delving into accreditation oversight, not consumer financing, and is overstepping its bounds into an area that is exclusively under the control of the Department of Education.” Meanwhile, the for-profit educational industry’s political allies swung into action as well. Two powerful Congressional Republicans—Tennessee’s Lamar Alexander, chair of the Senate’s Committee on Health, Education, Labor & Pensions; and Minnesota’s John Kline, chair of the House Committee on Education and the Workforce—sent a scathing letter to CFPB Director Richard Cordray, attacking the Bureau’s “unprecedented overreach” and insisting that it “immediately rescind” the information request.
Alexander and Kline explained their opposition to the CFPB’s move by arguing that “determining the role of accreditors for federal purposes is a congressional responsibility, not yours.” But their unacknowledged connections to the worst offenders in the for-profit college industry surely mattered. Eight of the leading for-profit education corporations, including Corinthian and ITT Tech, have been the subject of state- or federal-level investigations in recent years; Lamar Alexander has received substantial campaign contributions from all eight of them. During the last complete campaign cycle, in 2014, John Kline was among the top three congressional recipients of campaign dollars from five of the eight colleges (or from their ownership groups, if privately held). From three of them, Kline received more campaign contributions than any other individual member of Congress.
The political pressure had its intended effect. In April 2016, a conservative federal judge appointed by George W. Bush denied the CFPB’s civil investigative demand, throwing a significant obstacle in the way of the Bureau’s attempts to extend its watchdog duties into the accreditation process.
The for-profit education racket is not the only place where predatory financial companies and their lackeys on the Hill have been working to impede the Bureau’s more expansive ambitions. In recent months, the CFPB has also been trying to shine a light into the shadowy world of structured settlement purchasing—and with remarkably similar results.
Structured settlement purchasing is one of those ubiquitous industries you have probably never heard of. Recognizable for their familiar “get cash now!” television and radio ads, structured settlement purchasers are companies that give consumers immediate lump sum cash payments at discounted rates, in exchange for future streams of payments usually associated with a settlement in a lawsuit. For instance, Freddie Gray—the Baltimore man whose death while in police custody led to weeks of unrest and trials for six Baltimore police officers— had been the beneficiary of a lead-poisoning settlement when he was a child; by the time he was twenty-three, the Washington Post reported, Gray had sold a Maryland-based financial company called Access Funding $146,000 in future payments, in exchange for just $18,300 in lump sum payouts. And Freddie Gray is far from alone—according to the National Structured Settlements Trade Association, between $8 and $10 billion worth of settlement payments are purchased by companies like Access Funding every year, often at deeply discounted prices that leave desperate consumers like Gray with just pennies on the dollar for what their original settlements would have been worth. After the Post story broke, most of Maryland’s judiciary and the state’s attorney general joined Congressman Elijah Cummings in demanding a deeper investigation into “how private companies make profits buying and selling settlements that are meant to ensure victims have reliable incomes, and how we can best protect vulnerable individuals from predatory and abusive practices.”
The largest player in the structured settlement market, by far, is J. G. Wentworth, a Pennsylvania company that does business across the country under a few different brand names. In September 2015, the CFPB issued a civil investigative demand to J. G. Wentworth, which the company refused to comply with on the dubious grounds that, because the company does not lend money to consumers (i.e., provide them with credit) but rather purchases outright their future payment streams, structured settlement payouts are “not a consumer financial product” and, therefore, outside of the CFPB’s purview. The CFPB rejected J. G. Wentworth’s petition to set aside the information request, but the company still refused to comply, throwing the decision to the courts once again and hoping for a favorable ruling like the one that spared the ACICS.
At this writing, the outcome of the CFPB’s efforts to extend its regulatory oversight into the market for structured settlement purchasing also remains up in the air. And that is exactly why so much of the financial community was so frustrated with the poor timing of the Wells Fargo fiasco. By cutting the CFPB off at the knees, the Financial Choice Act is the banking lobby’s most significant effort yet to roll back the regulatory reforms that emerged from the financial crisis of 2008—a crisis that began, remember, because of the lawless and predatory behavior of an industry selling a particularly ubiquitous consumer product. No wonder, then, that JLL Partners, the private equity firm that has owned a majority stake in J. G. Wentworth since 2006, has given more money to Jeb Hensarling than any other member of Congress in each of the last two election cycles.
Assuming Wells Fargo and their ilk can avoid tripping over their own feet, Hensarling, Alexander, Kline, and the rest of their cronies on the Hill know exactly what they need to do to keep the money flowing.
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