Back in 2014, during the first season of his hit HBO show “Last Week Tonight,” John Oliver took on the payday loan industry. Boggled by loans that carried up to a 1,900 annual percentage rate (APR), Oliver offered up a revised version of the “Lion King” theme song. “It’s the circle of debt!” he sang. “And it screws us all.” Oliver explained that the outrages of the payday loan industry couldn’t be stopped because “they are incredibly good at avoiding regulation.”
Not anymore. The Consumer Financial Protection Bureau (CFPB), the agency charged with implementing and enforcing federal consumer law, just unveiled a new rule establishing, for the first time, uniform nationwide standards for payday loans and similar forms of credit. Under the rule, lenders will be required to verify a borrower’s ability to repay before making a loan.
Critics of the CFPB rule, such as House Financial Services Committee Chairman Jeb Hensarling (R-Tex.), argue that federal regulation of these loans infringes on state sovereignty. But the current system of state-level regulation, without any federal floor, imposes its burdens on states that seek to protect their residents from payday loans. Lenders often operate across state lines, lending from states where payday loans are permitted to borrowers in states where such loans are illegal. This makes it incredibly difficult for these “restrictive” states to protect their residents from being saddled with unaffordable debts.
If strengthening states’ rights is the goal, federal rules can actually empower states that want to protect their residents from predatory lending by halting the flow of unregulated payday loans from out-of-state lenders and ensuring that any credit extended across state lines meets minimum standards for consumer protection.
Payday loans — short-term loans that grant borrowers access to a few hundred dollars in quick cash — are controversial products because of their high cost per dollar borrowed and potential to trap users in a cycle of debt. A typical two-week loan costs $15 for every $100 borrowed, equivalent to an APR of more than 300 percent.
In practice, many borrowers are unable to repay their initial loan in full within two weeks, and so they pay only the fees owed and roll over the balance into another payday loan, incurring another round of fees.
Payday loans are primarily used by low-to-moderate-income earners with limited access to other sources of credit, often to pay basic living expenses or to cover an unexpected financial emergency. As household financial fragility has spread, so too has consumer demand for payday loans and other forms of short-term, high-cost credit.
In practice, the current system of state-level regulation imposes significant costs on states that seek to control payday lending to their residents. These restrictive states must expend resources to monitor attempts by out-of-state lenders, particularly the growing number of online lenders, to extend loans to their residents in violation of state law. Online lenders have a long reach, straining the law enforcement resources of restrictive states.
This problem is not new. Restrictive states have battled exploitative lending across state lines for over a century. In the early twentieth century, some small-dollar lenders employed what they called “the Portland device,” named after Portland, Maine, to shift the legal locus of the companies’ loans from the borrower’s restrictive home state to a more permissive jurisdiction such as Maine, where high-rate lending was legal. Restrictive states, such as New York, responded with laws that raised new hurdles for lenders when they attempted to collect these debts.
To reduce these legal conflicts between states and stanch the supply of unregulated high-rate loans, reformers tried to establish a common regulatory framework by drafting a uniform law to govern small loans. The first draft of the law, known as the Uniform Small Loan Law, appeared in the late 1910s and allowed licensed lenders to make loans of up to $300 (more than $4,000 in today’s dollars) and to charge fees and interest of no more than 3.5 percent per month. The law, drafted by the Russell Sage Foundation and members of the trade association for small-sum lenders, aimed to legitimize the business by drawing in “honest capital,” meaning lenders who were “reputable men” and would charge no more than the maximum rate.
Rather than pushing for a federal law, reformers campaigned for the uniform law’s adoption on a state-by-state basis. The law never achieved universal acceptance but a growing list of states adopted it over the course of the 1920s, with at least 25 states having a version of the law or a similar measure on their books by 1930. Without a federal rule, however, small-sum lenders have continued to find ways around state-level restrictions.
In the early 2000s, a version of the Portland device reappeared: payday lenders began extending credit to borrowers in restrictive states by partnering with banks, which are generally exempt from compliance with state usury laws. The scheme worked, until federal regulators halted these so-called “rent-a-bank” arrangements.
Now, regulators are trying something new: a nationwide set of minimum protections established by federal law.
While this move marks a new approach in the regulation of small-sum lending, such national floors are common in the governance of other activities that easily cross state borders. The Clean Water Act, for example, set a nationwide floor for pollution standards, while allowing states to impose more stringent requirements on polluters by ratcheting up state standards above the federal floor.
For payday loans, the CFPB rule will likewise set minimum standards for lenders, while allowing states to impose more stringent requirements. Lenders in permissive states may continue to lend to borrowers in restrictive states in violation of state law. But the federal rule will mitigate the worst effects of this practice, ensuring that borrowers in restrictive states receive a minimum level of consumer protection when out-of-state lenders reach across state lines.
Going forward, lenders nationwide will need to determine that a consumer has the ability to repay a payday loan before issuing it and must also provide advance notice to borrowers before trying to withdraw funds from their bank accounts.
The strongest argument against a federal regulatory floor is that it will stifle state-level innovation in regulating small-dollar loans. States have traditionally been innovators in the governance of small loans, devising and testing new rules that other states or federal authorities have later adopted. Preserving this state function is a laudable goal.
But even this argument has serious weaknesses. The federal rules, as proposed, do not prevent state innovation. Rather, they push innovation into the space above the federal floor. Permissive states will remain free to experiment so long as they do not contradict federal standards. Meanwhile, restrictive states may rest easier knowing that out-of-state loans made to their residents will meet minimum standards for borrower protection.
All this debate, though, does little to reckon with the desperation that drives consumers to seek out payday loans. Federal regulation can provide a backstop for states that seek to protect their residents from what they view as predatory loans, setting a nationwide regulatory floor backed by federal enforcement resources. But until the government addresses the causes of household financial fragility that fuel demand for payday loans, the best it can do is to regulate the supply.