A Question I Would Like to Ask PHH’s Lawyer, Ted Olson

by Jeff Sovern

We've blogged several times about the House Financial Service Subcommittee hearing on the constitutionality of the CFPB, at which PHH's lawyer Ted Olson, among others, testified.  Now that I have listened to the hearing, I have a few reactions. Personally, I found the questioning by the Democratic members disappointing. For the most part, they did not engage on the constitutional issues.  Instead, they largely focused on the good work of the CFPB, and argued that Mr. Olson, as counsel for a party in the PHH case, had a conflict of interest in testifying on the matter before Congress.  I agree that the representatives should have spent some time pointing out that the CFPB does important work because members of the public who might have been listening might not be aware of that work.  Indeed, one of the witnesses seemed not to know of at least some of it.  But I don't share the view that Mr. Olson's testifying at the hearing was a problem. His representation was disclosed.  Not surprisingly, the views that he expressed (which he said were his own and I believe him) were consistent with his client's views, but so what?  That doesn't mean they aren't worth hearing. I did not find them persuasive, but I wanted to hear what they were and I don't see anything improper about his expressing them at the hearing.  Mr. Olson was an effective advocate for the argument that the Bureau is unconstitutional and surely Congress should hear from effective advocates.

I was disappointed by the failure of the Democrats to push the witnesses more on the constitutional questions. By failing to do so, they might have created the impression that they are unable to defend the Bureau as a constitutional matter, and that is simply wrong. Yes, the Democrats had one witness who made the case that the Bureau is constitutional, Brianne Gorod, Chief Counsel, Constitution Accountability Center, but in my view, the Democrats could have questioned the other witnesses more forcefully on their constitutional arguments. In particular, I wish someone had asked Mr. Olson if the Bureau would pass constitutional muster if it consisted of a commission.  If he said no, then I would follow up by asking why Humphrey's Exec. doesn't resolve that question.  If he said yes, then I would ask Mr. Olson also to explain why a single director structure doesn't enable the president to take care that the laws shall be executed but a commission does, as Humphrey's ruled.  Maybe we will see how he answers those questions during the D.C. Circuit rehearing.

And just to be clear, I wouldn't mind discussing some other matters with Mr. Olson that have nothing to do with the PHH case. He has led an extraordinary life.

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