[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]





 
                  LICENSE TO BANK: EXAMINING THE LEGAL

                  FRAMEWORK GOVERNING WHO CAN LEND AND

                  PROCESS PAYMENTS IN THE FINTECH AGE

=======================================================================

                            VIRTUAL HEARING

                               BEFORE THE

                   TASK FORCE ON FINANCIAL TECHNOLOGY

                                 OF THE

                    COMMITTEE ON FINANCIAL SERVICES

                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 29, 2020

                               __________

       Printed for the use of the Committee on Financial Services

                           Serial No. 116-112
                           
                           
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 
 
 
 
 
                           ______                       


             U.S. GOVERNMENT PUBLISHING OFFICE 
43-526 PDF            WASHINGTON : 2021  
                           

                 HOUSE COMMITTEE ON FINANCIAL SERVICES

                 MAXINE WATERS, California, Chairwoman

CAROLYN B. MALONEY, New York         PATRICK McHENRY, North Carolina, 
NYDIA M. VELAZQUEZ, New York             Ranking Member
BRAD SHERMAN, California             ANN WAGNER, Missouri
GREGORY W. MEEKS, New York           FRANK D. LUCAS, Oklahoma
WM. LACY CLAY, Missouri              BILL POSEY, Florida
DAVID SCOTT, Georgia                 BLAINE LUETKEMEYER, Missouri
AL GREEN, Texas                      BILL HUIZENGA, Michigan
EMANUEL CLEAVER, Missouri            STEVE STIVERS, Ohio
ED PERLMUTTER, Colorado              ANDY BARR, Kentucky
JIM A. HIMES, Connecticut            SCOTT TIPTON, Colorado
BILL FOSTER, Illinois                ROGER WILLIAMS, Texas
JOYCE BEATTY, Ohio                   FRENCH HILL, Arkansas
DENNY HECK, Washington               TOM EMMER, Minnesota
JUAN VARGAS, California              LEE M. ZELDIN, New York
JOSH GOTTHEIMER, New Jersey          BARRY LOUDERMILK, Georgia
VICENTE GONZALEZ, Texas              ALEXANDER X. MOONEY, West Virginia
AL LAWSON, Florida                   WARREN DAVIDSON, Ohio
MICHAEL SAN NICOLAS, Guam            TED BUDD, North Carolina
RASHIDA TLAIB, Michigan              DAVID KUSTOFF, Tennessee
KATIE PORTER, California             TREY HOLLINGSWORTH, Indiana
CINDY AXNE, Iowa                     ANTHONY GONZALEZ, Ohio
SEAN CASTEN, Illinois                JOHN ROSE, Tennessee
AYANNA PRESSLEY, Massachusetts       BRYAN STEIL, Wisconsin
BEN McADAMS, Utah                    LANCE GOODEN, Texas
ALEXANDRIA OCASIO-CORTEZ, New York   DENVER RIGGLEMAN, Virginia
JENNIFER WEXTON, Virginia            WILLIAM TIMMONS, South Carolina
STEPHEN F. LYNCH, Massachusetts      VAN TAYLOR, Texas
TULSI GABBARD, Hawaii
ALMA ADAMS, North Carolina
MADELEINE DEAN, Pennsylvania
JESUS ``CHUY'' GARCIA, Illinois
SYLVIA GARCIA, Texas
DEAN PHILLIPS, Minnesota

                   Charla Ouertatani, Staff Director
                   TASK FORCE ON FINANCIAL TECHNOLOGY

               STEPHEN F. LYNCH, Massachusetts, Chairman

DAVID SCOTT, Georgia                 TOM EMMER, Minnesota, Ranking 
JOSH GOTTHEIMER, New Jersey              Member
AL LAWSON, Florida                   BLAINE LUETKEMEYER, Missouri
CINDY AXNE, Iowa                     FRENCH HILL, Arkansas
BEN McADAMS, Utah                    WARREN DAVIDSON, Ohio
JENNIFER WEXTON, Virginia            BRYAN STEIL, Wisconsin
RASHIDA TLAIB, Michigan

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
    September 29, 2020...........................................     1
Appendix:
    September 29, 2020...........................................    25

                               WITNESSES
                      Tuesday, September 29, 2020

Carrillo, Raul, Policy Counsel, Demand Progress Education Fund; 
  and Fellow, Americans for Financial Reform Education Fund......     5
Knight, Brian, Director, Innovation and Governance Program, 
  Mercatus Center................................................    11
Sands, Everett K., Chief Executive Officer, Lendistry............     7
Wilmarth, Arthur E., Jr., Professor Emeritus of Law, George 
  Washington University Law School...............................     9

                                APPENDIX

Prepared statements:
    McHenry, Hon. Patrick........................................    26
    Carrillo, Raul,..............................................    28
    Knight, Brian,...............................................    54
    Sands, Everett K.............................................   150
    Wilmarth, Arthur E., Jr......................................   159

              Additional Material Submitted for the Record

Lynch, Hon. Steven:
    Written statement of the American Bankers Association (ABA)..   210
    Joint written statement of ABA, BPI, and ICBA................   217
    Written statement of the Center for Responsible Lending (CRL)   220
    Written statement of the Conference of State Banking 
      Supervisors (CSBS).........................................   272
    Written statement of the Credit Union National Association 
      (CUNA).....................................................   282
    Written statement of the Department of Financial Institutions 
      of the State of Utah.......................................   284
    Written statement of the Electronic Transactions Association 
      (ETA)......................................................   291
    Written statement of the Independent Community Bankers of 
      America (ICBA).............................................   294
    Written statement of the National Association of Federally-
      Insured Credit Unions (NAFCU)..............................   298
    Joint written statement of the National Association of 
      Industrial Bankers and the Utah Bankers Association........   302
    Written statement of Varo Money, Inc.........................   306


                       LICENSE TO BANK: EXAMINING

                     THE LEGAL FRAMEWORK GOVERNING

                        WHO CAN LEND AND PROCESS

                      PAYMENTS IN THE FINTECH AGE

                              ----------                              


                      Tuesday, September 29, 2020

             U.S. House of Representatives,
                Task Force on Financial Technology,
                           Committee on Financial Services,
                                                   Washington, D.C.
    The task force met, pursuant to notice, at 12:15 p.m., via 
Webex, Hon. Stephen F. Lynch [chairman of the task force] 
presiding.
    Members present: Representatives Lynch, Gottheimer, Axne, 
Tlaib; Emmer, Hill, Davidson, and Steil.
    Chairman Lynch. Welcome, everyone. It's great to have our 
witnesses with us, and also the Members. And thank you to our 
staff, Petrina and Clement and the rest of the staff, for 
setting this up. We really do appreciate it.
    We have just a few housekeeping measures that I have to go 
through here for a minute before we get to the actual hearing.
    The Task Force on Financial Technology will come to order.
    Without objection, the Chair is authorized to declare a 
recess of the task force at any time.
    Also, without objection, members of the full Financial 
Services Committee who are not members of this task force are 
authorized to participate in today's hearing.
    Members are reminded to keep their video function on at all 
times, even when they are not being recognized by the Chair. 
Members are also reminded that they are responsible for muting 
and unmuting themselves, and to mute themselves after they have 
finished speaking.
    Consistent with the regulations accompanying House 
Resolution 965, staff will only mute Members and witnesses as 
appropriate, when not being recognized by the Chair, to avoid 
inadvertent background noise.
    Members are also reminded that all House rules relating to 
order and decorum apply to this remote hearing.
    Today's hearing is entitled, ``License to Bank: Examining 
the Legal Framework Governing Who Can Lend and Process Payments 
in the Fintech Age.''
    I now recognize myself for 5 minutes to give an opening 
statement.
    In the past year-and-a-half, this task force has witnessed 
the many ways in which banking is changing. With just my cell 
phone, I can deposit a check, apply for a loan, send money to a 
friend, and buy cryptocurrency. The financial services world, 
once dominated by brick-and-mortar institutions, is now filled 
with so-called disruptors who are responding to evolving 
consumer preference and revolutionizing the way that we 
interact with our own money.
    The implications of these changes are clear. Banking is 
becoming less centralized. Consumers have access to a wider 
array of services than they once did. Technology and tech 
companies are playing an ever-increasing role in our finances, 
and our laws and regulations are struggling, to be kind, to 
keep the peace.
    In an attempt to address these facts, regulators have been 
proposing new charters and reviving and re-imagining existing 
ones. In 2016, the Office of the Comptroller of the Currency 
(OCC) proposed a special purpose national bank charter for 
nondepository Fintech firms.
    Earlier this year, Acting Comptroller Brian Brooks 
announced plans for another special purpose charter, this time 
for payment companies, amounting to what he has described as a 
national version of a State money transmitter license.
    Additionally, in March of this year, the FDIC approved 
Nelnet and Square for FDIC deposit insurance, the first time 
they have approved a new industrial loan charter (ILC) 
applicant since 2008. These actions have been met with 
significant controversy. The OCC's Fintech Charter is the 
subject of litigation right now over their authority to grant 
banking charters to nondepository institutions.
    The Southern District of New York has sided with the New 
York Department of Financial Services in that case. Meanwhile, 
the planned payment charter is expected to face similar legal 
challenges. And both banking industry associations and consumer 
groups have signed a letter to the FDIC in opposition to the 
approval of the new ILC applications.
    Supporters of these new charters argue that they promote 
financial innovation and access to capital while eliminating 
redundant licensing requirements across the States. Opponents, 
however, worry about firms using these charters as a way to 
skirt important consumer protection laws and to avoid 
additional regulatory oversight at both the State and Federal 
level.
    Both the charters and the ILC approval raise questions 
about the traditional separation of banking and commerce and 
the entry of technology firms with their move-fast-and-break-
things approach into the financial services arena, which has 
become rule-bound as a result of congressional responses to a 
series of major national financial crises over the past 
century.
    The current legal questions and regulatory conflicts should 
be addressed by Congress. Our regulators and the courts 
mediating these disputes have been forced to resort to 19th 
Century books to interpret the intentions of Congress from a 
time when these issues were far less apparent.
    Banking has changed. We can't afford to allow outdated laws 
to create opportunities for regulatory arbitrage and additional 
consumer harm.
    We need to update our regulatory framework to provide 
clarity, opportunity for innovation, and, most importantly, 
safeguard the consumer and the American taxpayer.
    Chartering authority is the cornerstone of this system. Our 
charters determine which firms can engage in banking and which 
regulators will ensure their safety and soundness. This 
conversation is as important as any in financial services could 
be right now, and this discussion could not be more timely.
    This morning, we will hear from a distinguished panel of 
experts on what these proposed changes might mean for 
regulating the business of banking and the implications of 
changing the process for granting special purpose national bank 
charters. I look forward to today's discussion.
    The Chair now recognizes the ranking member of the task 
force, my friend from Minnesota, Mr. Emmer, for 4 minutes for 
an opening statement.
    Mr. Emmer. Thank you, Mr. Chairman.
    Thank you for convening this important hearing today.
    Before I go into the content of the hearing, I want to 
acknowledge what is likely our last Fintech Task Force hearing 
of this Congress.
    I would like to thank the Chair, and the past leadership of 
former Ranking Member French Hill on this task force, for 
producing thoughtful, nonpartisan conversations about the 
emerging technologies with which regulators and Congress are 
grappling.
    No matter the outcome of November's election, I hope it has 
become apparent on both sides, the multitude of policy 
questions and topics in the area of Fintech. The growth of 
these technologies and the considerations for Congress and 
regulators will only continue to grow. That is why next 
Congress, this committee should create a financial technology 
subcommittee in order to provide proper attention to this 
expanding and exciting area. A subcommittee would allow for 
greater focus on the details of many of the topics we discussed 
as a task force.
    The consequences of Congress' action or inaction on these 
topics stand to greatly influence the economy as well as the 
location of the next great technological innovation like the 
internet.
    As a body, we have already fallen behind on our knowledge 
and understanding of technology issues. If we don't catch up on 
Fintech, these innovations will pass us by.
    Today, we close out our hearings with our attention toward 
the regulator that has likely been the most forward-leaning and 
supportive of new technologies that could build a more open and 
free financial system and equip millions of Americans 
previously excluded with the tools to build a credit and 
prosperous financial future: the Office of the Comptroller of 
the Currency.
    The OCC, under the leadership of Acting Comptroller Brian 
Brooks, has undertaken tremendous efforts to clearly spell out 
the regulatory environment for emerging technologies and ensure 
their domestic development rather than allowing for more 
departures to countries that have provided more clear rules of 
the road. Many have weighed in after the prospect of a payments 
charter became news.
    As Congress and regulators tackle issues with our changing 
financial system, it is important and prudent to consider the 
implications involved and to make sure consumers are protected 
and our financial institutions remain strong and secure.
    At the same time, a charter under the OCC is by no means a 
license to operate free from regulation. It is not even 
regulation, as some of the testimony today will portray. It, in 
fact, imposes many responsibilities and duties to adhere to 
safe business practices and disclose information in an effort 
to ensure market stability.
    The OCC has long held and will continue to ensure that 
their regulated institutions operate in a safe and sound 
manner, provide fair access to financial services, and treat 
customers fairly.
    I am certain that as details begin to emerge and payment 
charters are granted, the OCC will continue to fulfill their 
mission. In addition, regulatory certainty is a goal that 
Acting Comptroller Brooks and I share. That is why, last week, 
I introduced the Securities Clarity Act, which will clarify 
securities law in a technologically agnostic way and allow for 
the distribution of an underlying asset that is, in fact, a 
commodity.
    With regard to blockchain technologies, the Securities 
Clarity Act would allow for the distribution of a token 
following the registered securities offer. So long as actors 
play by the rules of the road, they deserve assurances that 
regulators will not continue to cause uncertainty and will, in 
fact, support innovation in America.
    I am grateful for the support of Darren Soto, a co-Chair of 
the Blockchain Caucus like myself, and Ro Khanna, a member of 
the Caucus, as well as a Member of Congress from the State of 
California, whose district has directly seen the benefits of 
these new technologies.
    It is through practical, nonpartisan solutions like this 
that this task force could be most effective during this 
Congress, and continuing into the next Congress.
    Again, I would like to thank Chairman Lynch for convening 
this hearing and leading the task force, and I hope we will 
continue to work together to better understand financial 
technologies and the ways Congress can support and foster 
innovation in America.
    I yield back.
    Chairman Lynch. The gentleman yields back. Thank you, Mr. 
Emmer.
    I understood that Mr. McHenry was going to be afforded an 
opportunity for an opening statement. Is he on board, because I 
did not see him in the grid?
    Okay. We don't see Mr. McHenry. Mr. Emmer, would you like 
to reassign that minute remaining on the Minority side to any 
of your Members or consume it yourself?
    Mr. Emmer. No. At this point, Mr. Lynch, I will yield back.
    Chairman Lynch. Okay. I thank the gentleman.
    At this point, I would like to welcome our witnesses. 
Today, we will hear from several distinguished witnesses who 
are great authorities in this area.
    First, Raul Carrillo is the Policy Counsel for the Demand 
Progress Education Fund, and also a Fellow for the Americans 
for Financial Reform Education Fund, where he helped develop a 
regulatory response to the Facebook Libra project and other 
emerging financial technologies.
    Raul has also served as Special Counsel to the Enforcement 
Director of the Consumer Financial Protection Bureau, and 
worked in the executive office of then-California Attorney 
General Kamala Harris. Welcome.
    Second, Everett K. Sands is the Chief Executive Officer at 
Lendistry, a Fintech community development financial 
institution (CDFI), and small business and commercial real 
estate lender. Mr. Sands has more than 20 years of experience 
in lending at national and community banks.
    He is also a board member of the Penn Institute for Urban 
Research, which informs urban decision-making and public policy 
on issues of sustainable urban growth and development.
    Thank you, also, for being here.
    Third, Arthur E. Wilmarth, Jr., is Professor Emeritus of 
Law at George Washington University Law School. Professor 
Wilmarth is the author of the forthcoming book, ``Taming the 
Megabanks: Why We Need a New Glass-Steagall Act,'' and co-
editor of, ``The Panic of 2008: Causes, Consequences, and 
Implications for Reform.''
    In 2010, he was a consultant to the Financial Crisis 
Inquiry Commission and is a member of the International 
Advisory Board of General Banking.
    Welcome, Professor Wilmarth.
    And finally, Brian Knight is director of the Innovation and 
Governance Program at the Mercatus Center. Mr. Knight's 
research focuses on financial regulation, including the role of 
federalism in Fintech regulation and the use of digital assets 
for financial transactions.
    Prior to joining Mercatus, Mr. Knight worked for the Milken 
Institute, where he was in charge of the Fintech and capital 
access programs. Thank you as well for being here.
    Our witnesses are reminded that your oral testimony will be 
limited to 5 minutes. A chime will go off at the end of your 
time, and I would ask that you respect the Members' and other 
witnesses' time by wrapping up your oral testimony at that 
point.
    And, without objection, your written statements will be 
made a part of the record.
    Mr. Carrillo, you are now recognized for 5 minutes to give 
an oral presentation of your testimony.

  STATEMENT OF RAUL CARRILLO, POLICY COUNSEL, DEMAND PROGRESS 
  EDUCATION FUND; AND FELLOW, AMERICANS FOR FINANCIAL REFORM 
                         EDUCATION FUND

    Mr. Carrillo. Thank you, Chairman Lynch, Ranking Member 
Emmer, and distinguished members of the task force for inviting 
me to testify today. My name is Raul Carrillo, and I am policy 
counsel to Demand Progress Education Fund, and a fellow at the 
Americans for Financial Reform (AFR) Education Fund.
    Demand Progress is more than 2 million affiliated activists 
fighting to keep the democratic character of the internet, 
contest concentrated corporate power, and hold government 
accountable. AFR is a coalition of more than 200 consumer, 
civil rights, investor, retiree, labor, business, and faith-
based groups.
    While assessing new bank-like technologies, policymakers 
should look at possible benefits to individual users but also 
to risk to the integrity of the financial system, consumer 
protections, and our civil rights. They should also guard 
against developments that will entrench the power of Big Tech 
and further erode our democracy. We urge Congress to adopt a 
bright-line precautionary approach to digital bank-like 
activities.
    What industry calls ``innovation'' is often easily mapped 
onto an existing product or service. In some cases, there is 
something new. In those cases, policymakers should ask why a 
technological development is being proposed. Treating 
innovation as an unqualified good not only leads us to ignore 
equity but sustainable innovation. Precaution should be the 
norm, just as it is, and just as it should be, in food and drug 
regulation.
    The OCC and FDIC's current approach encourages rent-a-bank 
predatory lending. In Madden, the court followed a tradition 
dating back to the American Revolution, that States may limit 
the interest rates charged by non-bank companies as well as the 
general rule that consumer protections are not preempted unless 
they significantly interfere with the banks partnering on the 
loan.
    Together, the so-called, ``Madden fixed rules'', and OCC's 
so-called, ``true lender rule'' would allow non-bank companies 
to charge rates as high as they would like even if their bank 
partners would merely put their name on the paperwork.
    Similarly, special charters would allow non-bank companies 
to exercise special privileges without special regulation. 
During the pandemic and depression, we should be moving in 
exactly the opposite direction, including by instituting a 36-
percent rate cap, and functionally expanding the Military 
Lending Act, to cover us all.
    Although Fintech firms make many promises with respect to 
financial inclusion, we advise healthy skepticism. Too often, 
new tech yields predatory inclusion. Companies offer needed 
services to certain classes of users only for those benefits to 
evaporate or become eliminated in the long term.
    The use of alt data, AI, predictive analytics, has already 
enabled price discrimination. Complex algorithms also make it 
difficult to know what factors an algorithm has used and how it 
has used them. This can lead to steering and additional 
redlining and generally shields violators of the Equal Credit 
Opportunity Act or Fair Housing Act from claims of disparate 
impact.
    We strongly agree with Professor Wilmarth that Wall Street 
and Silicon Valley are irresponsibly integrating banking and 
commerce. Congress should close the ILC loophole and generally 
separate the ownership of financial institutions from large 
tech companies.
    We are especially concerned by dominant tech platforms' 
recent encroachment into payments, most notably, the proposed 
Facebook Libra project. Payments data allows platforms to more 
easily engage in predatory pricing, to self deal, sparring 
rivals in next adjacent markets, and to generally accumulate 
political power.
    Mobile payment platforms also avoid most banking 
regulation. Constitutional law professors Dan Awrey and Kristin 
van Zwieten call them, ``shadow payment platforms.'' Big Tech 
should not be storing funds without appropriate protections, 
but the U.S. currently lacks a general law of deposit that 
would facilitate sufficient oversight. Congress must step up.
    We also urge Congress to shift the burden of privacy 
protection away from consumers who cannot meaningfully consent 
to surveillance and toward Big Tech. Congress should establish 
a list of permissible purposes for data collection and ban all 
others.
    We also urge Congress to protect cash as an option. We 
shouldn't supplant money that doesn't track us with money that 
necessarily creates a more detailed picture of our intimate 
political, religious, familial, and romantic lives. As Justice 
Thurgood Marshall warned in the 1970s, evolved banking also 
leads to easier access to data which corporations and law 
enforcement agencies may use inappropriately.
    This task force should more deeply consider the social and 
political consequences of Fintech. We strongly support 
innovation in the public interest, and for that reason, call 
for privacy-respecting public options for real-time payments, 
safe deposits, remittances, and other basic services provided 
by the Federal Reserve, Treasury, and USPS, institutions we can 
more readily hold accountable compared to Big Finance and Big 
Tech.
    Thank you.
    [The prepared statement of Mr. Carrillo can be found on 
page 28 of the appendix.]
    Chairman Lynch. Thank you.
    Mr. Sands, you are now recognized for a 5-minute 
presentation of your written testimony. Thank you.

    STATEMENT OF EVERETT K. SANDS, CHIEF EXECUTIVE OFFICER, 
                           LENDISTRY

    Mr. Sands. Thank you very much. I appreciate that.
    Chairman Lynch. Thank you, sir.
    Mr. Sands. Task Force Chair Lynch, Task Force Ranking 
Member Emmer, Chairwoman Waters, Ranking Member McHenry, and 
distinguished members of the task force, it is an honor for me 
to appear before you today. My name is Everett K. Sands, and I 
appreciate the committee's interest in financial technology and 
this opportunity to provide insights and information.
    My testimony will address several of the task force's areas 
of interest, and will focus on lending generally and on small 
business lending, so many of my comments are also applicable to 
other areas of lending, as they are closely tied in terms of 
credit parameters from a consumer perspective and origination 
activity from Fintech lenders.
    The single, unified perspective that ties together my 
testimony is this: In lending, there are good and responsible 
actors, and there are bad and unscrupulous actors. And it is my 
belief and experience that the best protection against bad 
actors is to take action designed to incentivize more good 
actors to come into the field, making their offerings more 
available and crowding out bad actors.
    Fintechs can have a constructive role in lending if their 
rates and product offerings are responsible. Today, small 
businesses, and consequently, the United States, are in crisis. 
The stakes for expanding responsible lending are enormous, and 
urgent need for action in this regard cannot be overstated.
    I have more than 20 years of experience in the banking and 
lending field. Prior to starting Lendistry, I was part of both 
national and community banking. I have served as a board member 
and as an executive, and I have led high-growth business units 
and closed more than $3 billion in transactions.
    Businesses I have led have been regulated by the CDFI Fund, 
FDIC, FHA, FHSA, FHLB, OCC, OTS, SBA, VA, and several State 
regulators.
    Today, I am the CEO of Lendistry. Lendistry is a minority-
owned and technology-enabled CDFI. We are dedicated to 
providing economic opportunities to underserved urban and rural 
small business borrowers and their communities. Lendistry is 
also a signatory to the Small Business Borrowers' Bill of 
Rights, which are guidelines set by the Responsible Business 
Lending Coalition.
    As a hybrid of a Fintech lender and a community bank, 
Lendistry combines the best of Fintech--efficiency, 
scalability, and seamless user experience--with the best of 
traditional lending--low cost of acquisition, low cost of 
funds, and strong risk management.
    Currently, Lendistry is playing a very active role in the 
COVID-19 small business recovery effort. To briefly summarize, 
Lendistry has originated, processed, and approved more than 
$180 million in Paycheck Protection Program (PPP) loans to more 
than 3,500 businesses in the 12 States where the Small Business 
Administration (SBA) gave us temporary authorization to lend.
    We have also utilized our technology platform to process 
more than 50,000 small business Coronavirus Aid, Relief, and 
Economic Security (CARES) Act-related grant applications for 
the State of Pennsylvania, and we will fund approximately 
10,000 of those grants, totalling $190 million, and up to an 
additional $50 million for several other counties, all in 
partnership with the PA CDFI network.
    I will focus the remainder of my remarks on responsible 
lending in the context of the areas the committee is exploring. 
It is my view that incentivizing and expanding responsible 
lending is the best protection against predatory lending. 
Importantly, the Federal Government should empower and harness 
systems and authorities it already has. Congress should use 
these systems to create compelling incentives for Fintechs to 
choose to operate within a regulated framework and conduct 
lending activities in a responsible manner.
    I would like to introduce one such incentives-oriented 
solution today, and it begins with making more effective use of 
the CDFI Fund. The solution has three components. First, create 
compelling incentives to be a CDFI, and include automatic 
approval for all of SBA's products, membership to the Federal 
Reserve, and the ability to lend nationally, as well as easier 
access to capital from banks.
    Second, raise the bar for qualifying to be a CDFI, for 
example, an interest rate ceiling of 36 percent APR, 
standardized payment cycles including no more than two payments 
a month, and additional disclosures and accountabilities.
    Third, empower the CDFI Fund to monitor compliance with 
additional requirements.
    The membership asked about OCC special charters. Though we 
believe in an enhanced role for the CDFI Fund as the preferred 
solution, it should be adopted for the OCC. But payment and 
lending each require significant adjustments to regulation, and 
we suggest the OCC focus on payments first as new technology 
like Bitcoin, blockchain, and cryptocurrency gain traction.
    The task force asked about industrial loan charters (ILCs). 
Despite theoretical risks of ILCs to the banking system, 
historically, the mixing of banking and commerce has not had a 
negative impact on the consumer and the deposit insurance fund. 
We think ILCs are a viable solution. However, the parent 
company must be subject to the Bank Holding Act.
    Finally, I would like to emphasize the importance of annual 
oversight. Whatever path is taken moving forward, the evolution 
and speed of the Fintech industry demands that the regulatory 
authorities be empowered and mandated to conduct annual reviews 
of the requirements in order to ensure accountability and 
transparency.
    I thank you for opportunity to be here today.
    [The prepared statement of Mr. Sands can be found on page 
150 of the appendix.]
    Chairman Lynch. Thank you, Mr. Sands.
    Next up, Professor Wilmarth. You are now recognized for 5 
minutes for a presentation of your written testimony.

  STATEMENT OF ARTHUR E. WILMARTH, JR., PROFESSOR EMERITUS OF 
          LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Wilmarth. Thank you, Chairman Lynch, Ranking Member 
Emmer, and distinguished members of the committee and the task 
force.
    My testimony today criticizes recent attempts by the OCC 
and the FDIC to confer banking powers and privileges on 
nonbanks and commercial firms without requiring those companies 
to comply with the regulations that govern banks and bank 
holding companies.
    The OCC's and FDIC's initiatives are unlawful and contrary 
to the public interest. They represent a dangerous form of 
regulatory arbitrage that allows nonbanks and commercial firms 
to evade fundamental policies embodied in our Federal statutory 
framework for banking institutions.
    I urge Congress to use its legislative and oversight powers 
to block these initiatives or persuade the agencies to withdraw 
them.
    I am going to focus my oral testimony on the OCC's 
nondepository Fintech Charter and the FDIC's proposed ILC rule. 
The National Bank Act, the Federal Reserve Act, and the Federal 
Deposit Insurance Act prohibit the OCC from granting national 
bank charters to financial firms that do not accept deposits, 
and I point the committee to 12 U.S.C. Sec. 222 in particular. 
The only national banks that are permitted to operate without 
deposit insurance are nondepository, special purpose trust 
companies, and those companies were specifically authorized by 
a special amendment, a very narrow amendment, adopted by 
Congress in 1978. The OCC has no other authority to charter 
institutions that don't accept deposits.
    Bank deposits play a very vital role in our monetary 
system, and as Gerald Corrigan observed 20 years ago, 
depository institutions serve as a transmission belt for the 
nation's monetary policy. Depository institutions have a very 
privileged relationship with the Federal Reserve, and they 
receive very beneficial services from the Fed, including 
discount window loans, Fed payment services, and Fed settlement 
and custody services. Fedwire, for example, guarantees 
immediate final payment among financial institutions. No 
nondepositories can get access to these services.
    The OCC's nondepository Fintech Charter would create 
massive conflicts with the Fed's design. Those firms, if they 
got charters, could claim that they have the automatic right to 
become Fed members and to get all of the benefits that 
depository institutions get from the Fed.
    For example, nondepository Fintech banks could get discount 
window loans. That is completely contrary to Section 13-3 of 
the Federal Reserve Act which puts very, very strict 
restrictions on the ability of the Fed to give any loans to 
nondepository firms.
    Also, Big Tech firms could get very significant influence 
on our monetary and economic policies. They would have the 
right, if they were admitted as Fed members, to vote for 
Federal Reserve Regional Reserve Bank Presidents, who 
participate on the Federal Open Market Committee (FOMC), so 
they would be able to directly influence monetary policy 
decisions.
    Now, let's turn for a moment to the FDIC's ILC proposed 
rule. This would allow any type of commercial company to 
acquire FDIC-insured depository institutions, known as ILCs, 
who basically can conduct very close to a full service banking 
business. This would be an even greater threat to the current 
policy, which has been long established of separating banking 
and commerce. It would give them direct access to all of the 
Fed services, and, of course, to the very important Federal 
deposit insurance part of the safety net.
    So, we can see that these OCC Fintech Charters and the 
FDIC's proposed ILC rule would essentially allow commercial 
firms, and especially Big Tech firms, to get the advantages of 
all that the Federal safety net offers.
    This would give them huge competitive advantages over 
smaller commercial firms that could not afford to acquire 
Fintech Charters or ILCs. This is certainly completely contrary 
to the Bank Holding Company Act, and our long history of 
separating banking and commerce, and it would, in my view, pose 
great systemic dangers.
    The Federal Government bailed out several very large 
corporate owners of ILCs during the financial crisis, as I 
explained in my statement. We can anticipate that the same 
problem would occur again if Big Tech firms are allowed to 
acquire banking institutions with direct access to the safety 
net but without complying with the Bank Holding Company Act and 
many other statutes.
    I would be happy to discuss this further in response to 
questions. Thank you very much.
    [The prepared statement of Mr. Wilmarth can be found on 
page 159 of the appendix.]
    Chairman Lynch. Thank you, Professor.
    Mr. Knight, you are now recognized for 5 minutes for an 
oral presentation of your written testimony.

STATEMENT OF BRIAN KNIGHT, DIRECTOR, INNOVATION AND GOVERNANCE 
                    PROGRAM, MERCATUS CENTER

    Mr. Knight. Hello, Chairman Lynch, Ranking Member Emmer, 
and members of the FinTech Task Force. I congratulate you all 
on your leadership and thank you for the opportunity to 
testimony today.
    My name is Brian Knight. I am the Director of the Program 
of Innovation and Governance, and Senior Research Fellow at the 
Mercatus Center. Any opinions I express today are my own and do 
not necessarily reflect those of my employer.
    The goal of this hearing is to examine the rules governing 
which firms are allowed to lend and process payments in the age 
of Fintech. That is an excellent question and is both timely 
and relevant. I submit for your consideration four key points.
    First, the technological and economic reality has overtaken 
existing law, leading to an overly burdensome regulatory 
environment that harms Americans.
    Second, both the OCC and the States have shown an admirable 
willingness to attempt reform, but their ability to get it 
right is limited under existing law.
    Third, Congress can and should reform the law to allow 
nondepository lenders and money transmitters, subject to 
appropriate requirements, to operate on a nationwide scale.
    Finally, this does not mean, however, that a Federal 
license or charter should be the only option. Rather, Congress 
should enable State-licensed or chartered nondepository 
entities to compete nationally.
    Nonbanks and tech firms have become significant competitors 
in the financial services market, and Americans have embraced 
these services due to a variety of factors including cost, 
convenience, speed, and availability.
    While these firms may take advantage of cutting-edge 
technology, they are still subject to a regulatory system that 
did not contemplate them.
    Contrary to some assertions, Fintech firms are not 
unregulated or even necessarily less regulated than traditional 
banks on a line-of-business basis. In fact, these firms 
frequently find themselves subject to cumbersome State-by-State 
regulation that places them at a disadvantage.
    For example, under Federal law, a nationally chartered bank 
or an FDIC-insured State-chartered bank can lend nationwide on 
the basis of its home State law governing interest. Conversely, 
Fintech firms must obtain lending licenses in every State they 
operate in and are subject to the laws of each State regarding 
the definition and control of interest. Likewise, national 
banks are not required to obtain a State money transmitter 
license, and State money transmitter licenses generally exempt 
State-chartered banks. Conversely, non-bank money transmitters 
have to get licenses in every State.
    And, finally, while banks can generally access the Federal 
Reserve's payment system to help transmit payments, non-bank 
Fintech money transmitters cannot. It is cumbersome and uneven 
regulation, it is frequently unjustified, and it can result in 
higher costs, reduced service, and competitive inequality.
    Recognizing this mismatch between the regulatory 
environment and the economic and technological reality, both 
Federal and State regulators have shown an admirable 
willingness to innovate, but the efficacy of those efforts is 
questionable due to legal constraints.
    At the beginning of the Obama Administration, the Office of 
the Comptroller of the Currency announced a plan to offer 
special purpose national bank charters to nondepository lenders 
and money transmitters.
    In response, State regulators announced a host of 
regulatory reforms aimed at lowering the burden of State 
regulation, as well as suing the OCC. The OCC plan isn't 
perfect. It does, arguably, represent the best regulatory 
option currently available. However, it is not at all clear 
that the legal powers and burdens that come with being a 
national bank are needed or appropriate for nondepository 
entities.
    Likewise, while the States are resorting to litigation to 
stop the OCC charter for Federal, it is also understandable. 
Under current law, a State cannot offer a charter or license 
comparable to the OCC Fintech Charter even if it wanted to, 
because of the lack of Federal enabling legislation like that 
enjoyed by State-chartered depositories.
    So, what should Congress do? Congress should encourage 
competition by aligning regulation with technological and 
economic reality. Nondepository institutions that offer credit 
or money transmission services nationwide should be able to do 
so without being placed under undue regulatory disadvantage.
    This could include Congress making clear that both States 
and the Federal Government can authorize firms, whether through 
a special purpose charter or a license, to lend or facilitate 
payments with relevant authority comparable to their banking 
competitors.
    Critically, any requirements or limitations should be 
properly calibrated to the risks created by the actual 
products, services, and business models rather than applied 
simply because they apply to depository institutions.
    The exact contours of what these rules should look like 
remain to be determined, and there are important questions that 
need to be answered. But first, we should acknowledge that the 
current regulatory regime is outdated and should be modernized. 
Congress should take advantage of its unique ability to create 
an environment conducive to innovation and competition that 
benefits the American people.
    Thank you again for the opportunity to testify, and I look 
forward to your questions.
    [The prepared statement of Mr. Knight can be found on page 
54 of the appendix.]
    Chairman Lynch. Thank you very much, Mr. Knight.
    I now recognize myself for 5 minutes for questions. I 
think, taken together, the testimony of all of the witnesses 
really lays out what the problem is. And when we look at the 
traditional barrier between banking and commerce, it has served 
us well in the past.
    When you think about the special privileges we give to 
banks--I know the professor mentioned the discount window, and 
we have taken to bailing out banks because we see them as so 
important to our economy. I think that also with FDIC 
insurance, we actually have an interest on behalf the American 
taxpayer to preserve the stability of banks.
    Now, we have the suggestion, and I understand that Fintech 
is responding to consumer preferences. I have 2 girls who are 
college age, and I don't believe either one of them has ever 
stepped foot in a bank. Everything is remote; everything is 
mobile banking.
    So I get that the model is changing, and the regulations 
are, indeed, outdated, but the question is, what do we do to 
fix that problem in a way that preserves the protections for 
consumers, for the American taxpayers?
    I think, Professor Wilmarth and Mr. Carrillo, you both 
spoke to that issue regarding the separation of commerce from 
traditional banking. Could you talk a little bit about, not 
just the dangers of commingling those two activities, but could 
you also suggest what a solution might look like?
    Mr. Carrillo, you mentioned privacy and the size of some 
of--if you look at tech, if you look at these massive firms, I 
see too-big-to-fail Fintechs in the future in a big, big way. 
And I am just very, very nervous about seeing that 
concentration of power that we see in the tech world 
transmitted into the banking world. That is a very real concern 
that I have. So, could you take a crack at that? Thank you.
    Mr. Carrillo. Thank you very much for your question, 
Chairman Lynch.
    I also share your concerns about eventually needing to bail 
out a Facebook or an Amazon or facing public pressure to do so 
if we continue to go down this road. And Professor Wilmarth's 
research has very much highlighted that financial institutions 
that are owned by commercial companies tend to make risky bets 
or engage in imprudent activities on behalf of their parent 
company.
    I would also say that the added dimension here involves 
economic and political power in our society. I am somewhat 
disappointed that none of the other panelists addressed Big 
Data or mass surveillance. We have to consider that in this new 
age of banking, it is not just about extracting money. It is 
about extracting information about people.
    And my response, in addition to suggesting that there 
should be further barriers provided by Congress and regulators 
between Big Tech and high finance, is to create public options 
which would introduce competitive pressure into the space and 
help keep Big Tech and high finance honest in terms of building 
out this understandably necessary infrastructure. Thank you.
    Chairman Lynch. Thank you.
    Professor Wilmarth?
    Mr. Wilmarth. Thank you, Mr. Chairman. I think that you are 
exactly right, that if we allow Big Tech to acquire banks, and 
we can expect that if that happens, they will be very large 
banks, the pressure would be unavoidable, and it's inevitable 
that if any problem came, the Federal Government would bail out 
the entire institution. That is exactly what happened to the 
so-called shadow banks financial conglomerates during the 
financial crisis.
    I would point the task force's attention to the Wirecard 
debacle that has just occurred in Germany. Wirecard actually 
controlled a bank, and what was also very interesting is they 
were trying to acquire Deutsche Bank shortly before they 
collapsed. Imagine if Wirecard had controlled Deutsche Bank 
before its accounting scandal was revealed?
    Again, there was no regulation at the holding company 
level. I think the lesson of history is that you need 
consolidated, effective supervision at the holding company 
level, and I very much question whether that is possible for a 
major tech bank conglomerate.
    If I could just make one suggestion, nobody has shown, in 
my opinion, that all of these services cannot be obtained by 
banks through proper contracts with proper supervision by the 
Federal regulators.
    I think the proper approach is to make sure that banks 
enter into contracts when needed to get the technology they 
need to serve their customers, but those contracts should be 
carefully supervised by the regulators.
    I do not see that putting the banks into the hands of Big 
Tech would cause anything but major problems, and I think the 
resulting conglomerates would be completely uncontrollable by 
both regulators, and I am afraid even perhaps by Congress.
    Chairman Lynch. Thank you very much. I see that my time has 
expired.
    The Chair now recognizes the ranking member of the task 
force, Mr. Emmer, for 5 minutes for questions.
    Mr. Emmer. Thank you, Mr. Chairman. Again, thank you for 
holding this hearing.
    Mr. Knight, under this Administration, you have seen a lot 
of forward progress in terms of regulators understanding 
technology and fostering innovation. What areas do you think 
regulators should be doing more work in, to understand and to 
ensure clear and consistent regulation?
    Mr. Knight. Thank you, Representative Emmer. I believe that 
the areas that regulators should be focusing more on are, one, 
and I am surprised, given the topic of this hearing, the 
implications of technology. Because while the application of 
technology to financial services is not new, we are in a period 
of very high technological innovation, and therefore, be it 
within the traditional banking system, non-banking financial 
firms or emerging startups and new competitors, the application 
of a host of technologies, AI and Big Data was mentioned 
earlier.
    Cryptocurrencies and that sort of ledger system are all 
emerging and really need to be well-understood by the 
regulators so that they can do their job appropriately and 
neither fall asleep at the wheel nor unduly panic.
    Mr. Emmer. Thanks. Have you been following the litigation, 
the SEC litigation, including the Kik and the Telegram cases? 
And what do you make of Commissioner Peirce's proposed safe 
harbor and express concerns regarding the Telegram enforcement 
action?
    Mr. Knight. Sir, I will confess that I have not followed 
that as closely as I should have. I will say that--
    Mr. Emmer. Let me do this, Mr. Knight. Hester Peirce said, 
``Enforcement actions can be instructive to people other than 
the wrongdoer but are not an appropriate mechanism to create 
new law. Our regulatory integrity demands that enforcement 
actions be premised on a violation of a clearly articulated 
statue or rule.''
    Hopefully, that helps.
    Mr. Knight. Sir, Hester is, per usual, absolutely right. We 
do not want regulation by enforcement. The concept of justice 
and, frankly, efficiency and effectiveness indicate that we 
should have clearly laid down rules before we are going to 
bring an enforcement action and punish someone for a violation. 
That is, I think, a core component of our concept of justice.
    Mr. Emmer. Thank you.
    What do you recommend, Mr. Knight? What do you recommend 
Congress do, following the task force's work? Should a stronger 
focus be placed on these technologies? And are there any short-
term, say, 1- or 2-year priorities that you can identify?
    Mr. Knight. Thank you, sir. I absolutely believe that 
Congress should continue to monitor and, in fact, increase its 
interest in these topics because they are not going away, and 
they cut to an essential component of a functioning life, which 
is the ability to access financial services. That is a key 
component.
    In terms of short-term goals, as I mentioned earlier, I 
think that we really should consider how we can modernize the 
ability for firms to operate on an interstate basis, either 
within the banking system with the caveat that there is a 
debate about just whether or not banking is inherently 
involving depositories, or outside of the banking system where 
Congress can give the necessary powers but not be bound by the 
interlocking laws that have developed over time with regard to 
banks to allow nonbanks to compete.
    That competition will benefit customers. It will help keep 
all of the participants honest because it will give consumers 
more options so that they can walk away from a service provider 
who is not treating them well.
    It may also help lower moral hazard to the extent that we 
are not forced to engage in a federally-insured depository 
environment for all transactions.
    Mr. Emmer. This is focusing in on one particular area, but 
would you agree that to resolve uncertainty and, quite frankly, 
a patchwork of different regulations and laws, for instance, 
the OCC suggesting there should be some type of national 
license for money transmitters, and we have actually had a bill 
along these lines, would you agree that is one of those things 
that could bring certainty and clarity to the marketplace?
    Mr. Knight. Absolutely. And in addition to the OCC 
providing a license or special purpose charter, you could also 
enable, like you would do with banks, State license 
transmitters to more effectively compete interstate to maintain 
a dual financial and market-preserving federalist system.
    Mr. Emmer. Excellent.
    Thank you, Mr. Chairman. I see my time has expired, so I 
yield back.
    Chairman Lynch. The gentleman yields back.
    Petrina, would you handle the order of the questions? I am 
not sure who is next.
    Ms. Thomas. Yes, sir. Mr. Hill should be next.
    Mr. Hill. Thank you, Mr. Chairman. I must say I want to 
echo the comments of my good friend, Tom Emmer, that one of the 
real highlights of this Congress was the decision by Chairwoman 
Maxine Waters and Ranking Patrick McHenry to form our two task 
forces on FinTech and Artificial Intelligence, particularly 
this year in the pandemic, where legislative work has become 
much more modest.
    The work here will lay the groundwork for tremendous 
efforts, I think, for our State regulators, our Federal 
regulators, and our congressional policymakers working with 
this Administration and the incoming Administration, be it 
Trump or Biden, to continue to prepare America to be a leader 
in Fintech.
    And I appreciate the Treasury's 2017 survey and analysis on 
all of these issues that we are talking about today, and it 
really made for a more educated group of Members of Congress on 
both sides of the aisle to work on these important topics, so 
thanks for having this hearing.
    I am a little shocked that you didn't schedule the hearing 
for 9:00 tonight, because I think people would really be 
fascinated by Fintech and the future of their country, and you 
would be the star, so I am sorry about that.
    Let me start and say that I introduced bipartisan 
legislation, H.R. 6306, the Immediate Funds Availability Act, 
which would increase the amount of funds bank customers are 
able to receive, and would require them to be made available 
immediately during the pandemic, and it would sunset over 3 
years. My friend, Mr. Foster of Illinois, introduced that bill 
with me.
    And I hear from constituents pretty frequently, wondering 
why it takes so long for even a U.S. check to be credited to 
their account.
    Mr. Knight, what are some of the current obstacles that 
cause banks to not be able to provide more immediate credit to 
consumers?
    Mr. Knight. Thank you, Representative Hill, for that 
question.
    One of the existing issues is that the underlying 
infrastructure, and that doesn't mean the automatic 
clearinghouse system, is not a real-time system and, instead, 
is a batch system that has, I believe, gone to 3 windows, 5 
days a week. And so, they batch up all the payments and 
transmit them during those periods.
    So if your payment doesn't fall within one of those 
periods, it will have to move to the next day, or sometimes it 
can move--if it comes in late on a Friday, it may take until 
Monday or Tuesday to get there.
    That system made sense when it was created, and that is a 
very efficient way to do it. It is a cheap way to do it, which 
is important in a payment system, but technology has moved on 
to the point where we can move to real-time payments. Other 
countries have moved to real-time payments. There is a funding 
system that provides real-time payments, and the Fed has 
announced a move to real-time payments. So, all of those things 
should allow for more expedient payment.
    Mr. Hill. Thank you very much.
    Mr. Sands, I really enjoyed your testimony, and I want to 
congratulate you on the success of your business. I was on the 
CDFI Advisory Board during the George W. Bush Administration as 
the community bank representative, and I want to congratulate 
you on all the good work you are doing, and thanks for 
participating so vigorously for our minority community, but 
also in the PPP program. I enjoyed looking at your testimony.
    You mention the importance of partnerships. I assume in the 
loan origination arena, that this idea of providing liquidity 
to Fintech lenders through the use of a bank for balance sheet 
strength, you think is a good idea if it is done right, I take 
it, from your testimony?
    Mr. Sands. That would be correct, sir. One of the things I 
think we look at is that the U.S., right now, is effectively 
losing a war at home, and let me just give you an example.
    Let's take a look at the Citi report that came out last 
week, entitled, ``Closing the Racial Inequality Gaps: The 
Economic Cost of Black Inequality in the U.S.'', which found 
that over the last 2 decades, $16 trillion in GDP could have 
been created if we had closed the wealth gap. If the gaps are 
closed going forward, GDP will be increased by $5 trillion over 
5 years, or $1 trillion a year.
    Let's just be clear about that. There are 195 countries in 
the world. This will be better than 178 countries' GDP, or 2\1/
2\ times what we are doing with Chinese tariffs right now.
    So I think it is very, very important that we solve some of 
these things, and we figure out a constructive measure on how 
we move forward.
    Mr. Hill. I appreciate that, and I also took note of your 
exam frequency suggestions on the CDFI loan funds. I look 
forward to following up with you on that.
    And let me just conclude by your constructive comment also 
on cryptocurrency. Bill Foster and I really are working with 
the Fed on a digital dollar and have encouraged that work, and 
I am pleased to see it advancing. And we need a cryptocurrency 
payment rail as a part of our payment system reforms.
    I thank my friend, the chairman, and I yield back.
    Chairman Lynch. The gentleman yields back.
    The Chair now recognizes Mr. Davidson for 5 minutes for 
questions.
    Mr. Davidson. I appreciate the chairman, and I really just 
want to say thanks so much to the committee for having this 
hearing.
    Frankly, between last week's roundtable and this week's 
hearing, these are topics that I have sought to address since 
joining the committee in 2017. My sincere hope is that Speaker 
Boehner's saying about how Congress works which is, to sum it 
up, ``very slowly until it is very fast,'' I hope that holds 
true for this long-overdue area of responsibility for the House 
Financial Services Committee.
    To adequately regulate this area, we also need to address a 
foundational principle, which is privacy--frankly, consumer 
privacy. Wrongly applying existing Bank Secrecy Act provisions, 
for example, to a true distributed ledger blockchain 
architecture would undermine privacy, undermine the security 
inherent to that technology, and undermine the efficiency that 
Fintech offers our consumers, innovators, and investors, 
whether it is any number of unfathomable use cases, but in 
particular, as we talk about payments facilitated in bank 
charters.
    Mr. Carrillo laid out the challenges and opportunities 
nicely. While I don't agree with his conclusion that all of 
this needs to be centrally managed, particularly by the Postal 
Service, his exposition on the stakes for privacy merits 
primary attention for the regulatory framework and civil 
liberties protections America needs.
    America needs a strong law protecting consumer privacy, and 
holding every company, website, app, OEM, et cetera, 
accountable not just for complying with whatever they want to 
put in their terms of service, but with meaningful legal 
protections for an individual's personal data.
    Concurrent with the development of that privacy law, we 
need a more unified, not more fragmented, approach to 
regulation--one prudential bank regulator rather than a bigger, 
broader patchwork.
    In the absence of action by Congress, some States have 
already moved ahead, some with poor results like New York's bit 
licensed approach, and have scared capital and innovation 
offshore. And others have been much better, but no State has 
worked with more precision and clarity than Wyoming.
    Mr. Knight, as you look at the approach in Wyoming that 
resulted in Kraken's bank charter, what are you seeing as being 
the most important features for the Federal level in ensuring 
that this kind of innovation takes place across the United 
States?
    Mr. Knight. Thank you, Representative Davidson.
    When I look at that and the broader innovation picture, I 
think what we need is a system that allows for interstate 
competition that can involve a federally-licensed or chartered 
entity, but it should also allow State-licensed and chartered 
entities to have the essential powers they need to compete 
interstate, and allow consumers to choose which system they 
want and what laws they want to take advantage of.
    And then to your point about privacy, I think you are 
absolutely right, and this is something we need to think very 
hard on. And, yet, as Mr. Carrillo mentioned, first of all, I 
think getting rid of cash is a bad idea.
    But, second, we do need to be thinking about privacy 
protections balanced with the legitimate needs of law 
enforcement, and that applies to private sector actors, and it 
applies to public sector actors as well.
    I think those are some of the essential things Congress 
needs to be looking at.
    Mr. Davidson. Yes. So, we are blending things here, but 
when we look at the architecture of distributed ledger 
technology, it goes about it in a different way.
    Probably, many of the members of the committee and some of 
our witnesses saw the Buzzfeed article that highlighted the 
suspicious activity reports (SARs) approach that, frankly, 
hasn't resulted in a real stop to money laundering. There is 
still a big problem.
    The Financial Crimes Enforcement Network (FinCEN) 
highlights that. But, frankly, the approach is essentially the 
concern I have with Mr. Carrillo. We are concerned about what 
was surveillance, so why would we give the people who are doing 
the most warrantless surveillance more power to do more?
    Why would we go double down on Bank Secrecy Act anti-money-
laundering provisions that create a bigger black market, 
frankly, that underserves the underbanked already? And that is 
where I think the encouraging work in Fintech companies like 
Bank U, which are banking the unbanked and creating a 
transaction history, really helps build an identity for people.
    They are doing that outside the United States, but are an 
Austin-based company. And when you look at these kinds of 
companies, before they can be regulated as a bank, they have to 
raise the capital. That is why getting the certainty into the 
regulatory framework as to what is a security and what is not a 
security is so vital.
    So, I hope our committee will take that up and notice some 
of the bills in this space. As you can tell, I have more to 
cover in that space than we can in this hearing, but thanks 
again to the committee for the work to put this together.
    Thanks, Mr. Foster and Mr. Emmer, for getting it here, and 
I appreciate our witnesses.
    Thanks again, and I yield back.
    Chairman Lynch. The gentleman yields back. Much 
appreciated.
    The Chair now recognizes my friend from Michigan, Ms. 
Tlaib, for 5 minutes for questions.
    Ms. Tlaib. Thank you so much, Mr. Chairman.
    As we all know, the pandemic and COVID-19 has exposed a 
number of broken systems, not only in our healthcare system but 
also the economic divide in our country. And this includes the 
barriers that exist due to lack of bank branches in many low- 
and moderate-income neighborhoods, and most notably, in Black 
neighborhoods, like those in my district.
    To me, there is no doubt, and I truly believe this, that 
companies like Amazon, Facebook, JPMorgan Chase, and Venmo will 
take advantage of the financial gap in the market that will 
lead to exploitation of the unbanked and underbanked 
communities.
    I know the OCC has proceeded to move forward and really, I 
believe, overstepped its authority by determining what a bank 
is or removing that authority from Congress to determine 
ultimately, again, what is in the best interest of the American 
people.
    Mr. Carrillo, do you think that the consumers should be 
treated differently or be offered less protection by Fintech 
companies than they are with traditional banks?
    Mr. Carrillo. Thank you, Representative Tlaib. The short 
answer to your question is no, I don't think that consumers 
should have fewer protections, mainly because they are using a 
Big Tech platform, for instance, that portends to store funds 
for long periods of time but not offer corollary protections.
    And to your point, I think that Congress needs to step up 
here, define what a deposit is, define what banking is, and 
make sure when funds are exposed and used in this manner, that 
consumers have specific protections. This is especially 
important when mobile payment platforms and other Fintech 
technologies are being advertised to communities of color as a 
way up, as a path towards upward mobility in our society.
    Privacy protections are also extremely important here. 
Consumer protections cannot be voided in that realm either. We 
cannot ask communities of color to fundamentally sacrifice 
their privacy, especially given the way the data is used for 
corporations for targeted ads, et cetera, but also the way that 
law enforcement agencies may intend to misuse the data that is 
collected, especially from Black folks, Muslim folks, Latino 
folks, indigenous folks, and people who have political dissent 
with the existing government.
    Thank you.
    Ms. Tlaib. Given our recent negative experience with 
unregulated shadow banks, which is a huge issue, regarding the 
safety and soundness of privately issued mobile money, it is 
really risky to allow unregulated Fintech companies to offer 
critical payment services provided to moderate-income 
communities. And so one of the things I want--when I am trying 
to explain this to my mom, what is the worst-case scenario here 
for many of our residents at home?
    Mr. Carrillo. We are talking about fundamentally moving 
payments towards a system that is not appropriately protected. 
I agree with Mr. Knight and the other panelists that things are 
changing via the pandemic, but I have actually not seen any 
hard evidence that these private Fintech companies are, 
``saving the day.'' In fact, I am worried about the 
transactions occurring without proper protections. And if 
anything, as I mentioned in my testimony, it is even more 
important to make sure that we are establishing a framework in 
the public interest.
    Ms. Tlaib. Yes. And actually, during the pandemic, I see 
them expanding their services, which seems to be more in the 
vein of traditional banks right now. Do you believe that the 
OCC is the best suited to have regulatory authority over 
Fintech companies offering stable coin deposits, or is there an 
agency more suited to deal with the coin resulting payment 
system like the FDIC or the Fed?
    Mr. Carrillo. Another excellent question. Thank you, 
Representative Tlaib. I think that the banking regulators and 
Congress need to have a discussion about extending protections. 
But to your point, there is fundamentally a gap in the law 
right now that allows shadow banking generally, as Professor 
Wilmarth's research has shown, and as Vanderbilt Law Professor 
Morgan Ricks' research has shown, and this has to be addressed 
or we are not going to have coherent banking law and we are not 
going to have it before Silicon Valley enters the fray and 
makes it all the more necessary.
    Ms. Tlaib. Yes. I am really pleased. Thank you, Mr. 
Chairman, for allowing me to be part of this last task force 
hearing. All of those Fintech companies may be offering new 
benefits, but this type of product offered goes beyond the 
reach of fair lending laws and regulations, which is what we 
should be worried about the most right now. So, I hope that we 
move forward in trying to create, again, some sort of way to 
make sure that our residents are protected as these Fintech 
companies move in towards traditional banking in our 
communities.
    Thank you so much, and I yield back.
    Mr. Sands. Representative Tlaib, may I ask you a quick 
question?
    Ms. Tlaib. Sure. I have 18 seconds. Go ahead.
    Mr. Sands. I think we need to be careful about defining 
``underserved'' versus ``poorly served.'' One of the things I 
would like to recommend this committee to do is--we constantly 
are talking about the ``stick,'' but we have not talked about 
the ``carrot.'' And if we can incentivize good practitioners to 
come in, then States like your own and others could properly 
serve. There are good institutions that are trying to do these 
things.
    Thank you.
    Ms. Tlaib. No, I agree, and I have worked with many of the 
local institutions to do that. We are just not doing enough of 
it.
    Chairman Lynch. At this point, I am just going to go with 
one follow-up question, and, of course, I will afford Mr. Emmer 
a follow-up question on the Republican side.
    Mr. Sands, one of the great promises of Fintech was the 
idea that it might help us to bank the unbanked, and the 
evidence is really mixed. We have seen examples where the use 
of certain algorithms has blocked out people; they have been an 
obstacle to financial access. And I have seen areas in Nigeria 
and other parts of Africa where it is the only game in town, 
there has been no legacy banking system there, so it has 
actually worked wonders in some of those countries. Somalia is 
a particular problem, and I think the answer has to be Fintech 
in some fashion or mobile banking.
    How do we maximize that promise of banking the unbanked, 
especially where we are looking at this shift where Fintech--
arguably, large tech firms come in, and they are the driving 
force in this. How do we make sure that we fulfill that promise 
of banking the unbanked in whatever the final version of our 
solution might look like? You have a great perspective, in your 
position, and I would love to hear your thoughts on that.
    Mr. Sands. Thank you, Chairman Lynch, for the opportunity. 
This is one of the things I would like to ask all of us to 
consider, is that we have to be very careful about the stick 
and not think about the carrot, as I mentioned before. The 
modernization of laws would be very important if we enabled the 
good guys to be able to do what they do in a high-quality way.
    I will give you an example, Chairman Lynch. I wanted, and 
Lendistry wanted, to provide PPP loans in your State, but we 
were not allowed to because of the current rules. Again, the 
current rules, under SBA and others, have been made to be a 
form of risk management. While we respect them, there needs to 
be some type of review so that the good guys aren't fighting 
the fight with one hand behind their back.
    Representative Tlaib just mentioned that we are not doing 
things in a scaleable fashion. Part of the reason why we are 
not doing them in a scaleable fashion is because we are not 
allowed to.
    Another example will be, we are not allowed to participate 
in the Main Street Program. We are not allowed to become 
members of the Federal Reserve System. I really think that if 
we look and we give the good guys an opportunity to participate 
in a high-quality way, you are going to see massive change, and 
you are going to see massive things happen. And then, I think 
the good guys will overshadow and, quite frankly, beat, from a 
competitive perspective, many of the unscrupulous players.
    Thank you, again, Chairman Lynch.
    Mr. Emmer. Mr. Lynch, this is Tom Emmer. I let your staff 
know that I had no objection to an additional question, and I 
don't have one right at this moment.
    Chairman Lynch. Okay. Mr. Carrillo, could you follow up on 
that question? I know I have about a minute and 45 seconds 
left. I thought you might have an interesting perspective as 
well.
    Mr. Carrillo. Just to clarify, Chairman Lynch, you would 
like me to comment on how we best approach the problem of 
serving the unbanked and the underbanked?
    Chairman Lynch. Right. That is the big promise, that we can 
bank the unbanked, and the results so far have been mixed, and 
I would like to figure out, if you can just elaborate, on how 
we can do better.
    Mr. Carrillo. Yes, sir. I think that if providing payments 
infrastructure and banking services is as important as 
everybody on this panel says it is today, then we need to 
establish a public option. We need to start treating this sort 
of infrastructure like it is integral to the economy, as it 
very much is. And I think that fundamentally, firms, no matter 
how noble or altruistic they may be in their outlook, tend to 
gain customers based on whether those customers are going to be 
profitable to them. There is no public service mandate for 
these companies, and I doubt that folks who run the companies 
would welcome such a mandate.
    If we do think that it is important as everybody needing to 
have basic digital financial services in the 21st Century, then 
we need to treat this like railroads, like canals, like telecom 
infrastructure is in other countries, and provide it to 
everybody as a matter of course.
    Chairman Lynch. Thank you very much.
    Mr. Wilmarth. If I may comment, Chairman Lynch?
    Chairman Lynch. Please, go right ahead.
    Mr. Wilmarth. I think that as we go forward, it is critical 
not to allow nonbanks to do what banks are doing without the 
same type of regulatory and public interest safeguards that we 
have established for banks. And Mr. Carrillo focused on the 
issue of deposits, that payments providers are essentially 
holding deposits without any deposit insurance or any of the 
other requirements that we impose on depository institutions. 
What if one of those payment providers fail? The customers are 
going to demand their money back and there is going to be no 
deposit insurance.
    The one other thing I would say is, I think there is good 
space for partnerships between banks and Fintechs if it is done 
in a legal and responsible way. And I would point the committee 
task force to the recent Marlette Funding, and Avant 
settlements in Colorado, where the bank that partners with a 
nonbank lender has to maintain control over the lending, and 
they have to comply with the 36 percent cap on interest rates. 
They can't simply claim preemptive immunity and try to make 100 
percent loans.
    So, I think there is room for good partnerships, but we 
have to maintain the integrity of banking regulation and the 
public interest safeguards with which we expect banks to 
comply.
    Chairman Lynch. I appreciate that, and I agree. Thank you.
    Mr. Emmer. Mr. Chairman, I will change my approach. I would 
like to follow up, if you don't mind.
    Chairman Lynch. Please, go right ahead, Mr. Emmer.
    Mr. Emmer. Thank you. I appreciate it.
    Mr. Carrillo, this struck me when you were speaking 
earlier: Beware of the promise of helping out the unbanked. 
With an open distributive ledger-type technology, I think the 
promise is enormous, and I think government, quite frankly, is 
putting up obstacles, and the uncertainty is getting in the way 
of the idea that we have to have intermediaries in all of these 
things, which is, I think, where all of you are coming from, 
and that is not exactly the way all cryptocurrency works.
    Mr. Knight, do you have another side of this coin where we 
should be looking at the real promise that this would afford? 
Not just to innovation and the ability to access capital, but 
for the unbanked, the folks who just haven't been included in 
the system, where there is someone on the other side of the 
world because of cultural reasons, maybe it is a young woman 
who isn't allowed to do this sort of thing, or hasn't been, 
this would give them a lot of hope. I would appreciate your 
perspective.
    Mr. Knight. Thank you, Representative Emmer. Yes, I do 
believe that you are perhaps giving short shrift to the value 
of competition and innovation in helping to serve people. And 
that is not to say that there aren't rules of the road that 
should be followed, though those rules really need to be tied 
to the actual risks created and not just applied holistically 
across all competitors regardless of differences in business 
models.
    And I do think that we have seen that changes in business 
models, changes in technology, more efficiencies gained, can 
help make providing services to some groups, where it used to 
previously not be cost-effective or feasible--it helps improve 
that.
    Now, the changes are often marginal, right? We don't go 
from 10 percent lack of access to zero lack of access. But 
marginal improvements do matter. And I think we need to be very 
cautious and always bear in mind that the costs of regulation, 
the costs of the foregone service, in addition to the potential 
risks from a lack of regulation, it is two sides of the balance 
and they both need to be considered.
    Mr. Emmer. Amen.
    Mr. Chairman, at this point, I would respectfully yield the 
balance of my time to my colleague from Ohio, Mr. Davidson.
    Mr. Davidson. I thank the ranking member. Thanks for this 
extra question here.
    Mr. Sands, as you spoke, I thought of so many companies 
that I have met with and so many innovators I have met with who 
have been frustrated by the lack of regulatory clarity or the 
stigma that, frankly, bad actors have put on this innovative 
space. And their plea hasn't been for no regulation. Frankly, 
they have pled for some regulatory clarity. In fact, a lot of 
companies have left the United States, not to avoid our laws, 
but to find regulatory clarity so they can do the very things 
they have promised here in the United States but, frankly, for 
others.
    And so, as we think about the charter that we are talking 
about, or as we think about even raising capital, have you 
heard about this phenomenon? And then, when you think about the 
architecture that some, whether it is your firm or others in 
the space, have, what are the challenges of having this 
technology that maybe has a similar objective--faster payments, 
for example--but a different architecture?
    It seems to me that the regulatory framework has to allow 
for both in States, as consumer protection, for example, to 
happen, but maybe compliance is done in a different way. You 
deliver the protection in the firm, but you may be able to 
comply differently than somebody who maybe gets really good at 
printing off some more SARs and providing surveillance services 
for Federal agencies.
    Mr. Sands, could you address that?
    Mr. Sands. Absolutely. Thank you, Representative Davidson. 
I think one of the keys to success that we are--we haven't 
quite focused on, but it can't be underscored, is that, as I 
mentioned, I have been regulated by eight different regulators 
at a time. Even here at Lendistry, we have five different 
regulators. The convergence of multiple regulators at the same 
time is part of the secret to success of regulation. So I want 
us to always keep that in the forefront and think about that as 
we move into the future decisions.
    One of the things that we do need to make sure we think 
about with the OCC is that they kind of crawl, walk, run. 
Because if they step out by themselves without some, what I 
will call peers, it could change things. That being said, we do 
need to definitely think about how do we modernize and how do 
we think about the future. There is an amazing opportunity to 
grow GDP, grow tax revenue, and I think it is important, if we 
can do this correctly.
    Thank you, sir.
    Mr. Davidson. Thank you so much.
    Mr. Emmer, I yield your time back that I have fully 
consumed.
    Chairman Lynch. Okay. That concludes our witness testimony. 
I want to thank Mr. Carrillo, Mr. Sands, Professor Wilmarth, 
and Mr. Knight for your contributions, and your very thoughtful 
commentary.
    Just in conclusion, I do want to note that, without 
objection, the following letters will be placed into today's 
record: the Conference of State Banking Supervisors; the 
American Bankers Association; the Utah Department of Financial 
Institutions; the Center for Responsible Lending; the 
Electronic Transactions Association; and the National 
Association of Federal Credit Unions.
    The Chair notes that some Members may have additional 
questions for this panel, which they may wish to submit in 
writing. Without objection, the hearing record will remain open 
for 5 legislative days for Members to submit written questions 
to these witnesses and to place their responses in the record. 
Also, without objection, Members will have 5 legislative days 
to submit extraneous materials to the Chair for inclusion in 
the record.
Hearing is now adjourned. Thank you, and please safe.
[Whereupon, at 1:32 p.m., the hearing was adjourned.]


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