The Senator, the Lobbyist, and the Debit Card Interchange Rule

DISCLAIMER: As always, this brief policy article represents my own research and opinions and does not purport to represent the opinions of nor was it funded by any third party organization.

"The only way that has ever been discovered to have a lot of people cooperate together voluntarily is through the free market. And that's why it's so essential to preserving individual freedom."  --Milton Friedman

"In general, if any branch of trade, or any division of labour, be advantageous to the public, the freer and more general the competition, it will always be the more so."  --Adam Smith


Q: What do you get when a United States Senator and a seasoned Washington Lobbyist meet at the Drive-Thru Window of Opportunity?

A: The Durbin Amendment, better known as the Debit Card Interchange Rule

As I had undertaken my research these past several weeks into the unconstitutionally confiscatory nature of the proposed rule, I began to more thoroughly question the impetus for the very inclusion of such an amendment to a financial reform measure largely spawned by the challenges posed by the mortgage market. What did debit card interchange fees have to do with protecting consumers from a few unscrupulous and irresponsible former mortgage lenders? And what motivated Illinois Senator Dick Durbin to bring his amendment to the Senate Floor be included in the Restoring American Financial Stability Act of 2010 when he did?


Initially it would appear that Senator Durbin, as a member of the Senate Leadership, simply recognized that the Congressional mood for financial reform legislation could easily absorb another "consumer protection" measure. Yet I couldn't help but question who/what had motivated this particular measure, since the public had not been clamoring for it and no definitive study of the debit interchange topic had concluded that it harmed either the consumer public or the sophisticated commercial enterprises that freely contracted to provide or benefit from debit card interchange services.

When a diverse array well-respected public responsibility groups, including the NAACP, the Hispanic Chamber of Commerce, the Black Chamber of Commerce, and the Conference of State Bank Supervisors, join together to urge Congress to revisit the well-funded and erroneous legislation, consumers immediately recognize that something is amiss in Washington.

The debit card interchange rule doesn't actually have anything to do with legitimate consumer protection. Financial services professionals have always supported the common-sense market-driven consumer protection measures and licensing requirements that protect the public from the few unscrupulous charlatans who engage in predatory practices. Since financial services professionals are simply honest, hard-working consumers with families themselves, they clearly recognize that protecting the integrity and public trust within the financial services industry has always provided a win-win outcome. The majority of potential misdeeds are squelched before any damage can be wrought due to internal control policies, ethics training, licensing requirements, and the self-policing nature of the industry.

The debit card interchange rule was a pro-business creation born upon a conference room table within Suite 1100 at 325 7th Street N.W. in Washington, D.C., home of the National Retail Federation, the National Restaurant Association, the National Council of Chain Restaurants, and the Merchant Payments Coalition. These trade associations represent corporate retail and restaurant conglomerates that have long sought to unilaterally renegotiate the debit card interchange fees to which they had contractually agreed. Apparently dissatisfied with their own business leaders' efforts employing commercial negotiation in the free market, these organizations turned to trade association lobbyists to continue the effort using Federal Government confiscatory action.

Enter Rob Green, Executive Director of the National Council of Chain Restaurants (NCCR), who succeeded Jack Whipple last month to manage all NCCR government relations advocacy. Preceding his move within the confines of Suite 1100, Green was Vice President, Government and Political Affairs at the National Retail Federation (NRF), where he served as a senior lobbyist for the world’s largest retail trade association during the influential time leading up to Senator Durbin's introduction of the debit card interchange "consumer protection" rule.

Lobbyist Green immediately recognized that a perfect storm would briefly open the display window of opportunity for the NRF during which time he would propose a government price-fixing rule that would amount to a  72.7% reduction in interchange revenue for the financial services industry that had built the networks and provided the fraud reduction technology that facilitated cost-savings for consumers and businesses. Imagine if the NRF had found themselves on the receiving end of proposed legislation that would have mandated reducing their retail prices by 72.7% to those very same consumers? Would the NRF have simply "embraced" that legislation? We think not.

I am certainly not accusing Senator Durbin or Rob Green of any violations of federal law, but FEC records detail that more than just burgers and fries were in the bag when the honorable Senator and his colleagues met the former-NRF lobbyist and current NCCR Executive Director at the drive-thru window of opportunity. You yourself may follow the money transfers disclosed in publicly-available documents. While some of the world's largest big box retailers represented by Green poured money into organizations associated with Durbin and his former aides lobbying for the rule, the good Senator wove the rule into the larger legislative framework intended to curb the egregious mortgage-related abuses perpetrated by the few.

From a corporate executive viewpoint framed to maximize shareholder returns, one can certainly understand why the investment into lobbying appeared (and continues) to be a prudent investment. But given the certain unfavorable financial impact that the debit card interchange rule would impose upon American families struggling to emerge from the recent financial downturn, I would urge Senator Durbin to assume a new ethical stance and join his colleague Representative Barney Frank to support further objective study of the issue in the light of day and allow the results of such studies to be fully disclosed to non-lobbyists to allow for a proper analysis of the real impact upon the American family's budget.


For leading this effort on behalf of our American families, I applaud the consistent and untiring effort being put forth by Frank Keating (ABA) and Fred Becker (NAFCU) nationally, as well as John Llewellyn (Michigan Bankers Association) and Jordan Kingdon (Michigan Credit Union League) to educate the public about the very real household economic effect that implementation of this dubious rule would wreak. Ultimately, our collective efforts to preserve consumer choice and to protect business from government unconstitutional price-fixing will prevail in the bright light of day.