De-Risking Threatens Religious Access to Banking Services

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For the past year, banks have been cutting ties with businesses that regulators view as "high risk" in order to protect themselves from regulatory scrutiny and potential fines and penalties. Now America's religious organizations appear to be caught in the de-risking vortex.

The Justice Department investigation known as Operation Choke Point was ostensibly launched in order to root out consumer fraud and money laundering. But critics argue that the probe has prompted banks to close the accounts of legal but politically unpopular businesses such as payday lenders and check-cashing services as well as arms dealers and tobacco sellers. Regulatory crackdowns on money laundering have also led banks to sever relationships with a range of cash-based businesses that could expose lenders to heightened scrutiny.

A spate of recent account closings at churches and religiously affiliated charities suggests that de-risking directives are causing collateral damage to faith-based organizations. A disturbing pattern is emerging in which banks close the large deposit accounts of these organizations and cancel their transactions without warning or explanation, giving the affected businesses no opportunity to appeal the decision. This could have potentially devastating consequences for the constitutionally protected right of churches and their faithful to freely exercise their religion.

These organizations are scrambling to find banks that will serve them. Their ability to function on a national level has been disrupted, jeopardizing their members' individual and collective freedom to practice their religion.

Take the example of one of my clients, a large Christian church with hundreds of brick and mortar locations operating in the U.S. The church recently received a notice of account closure from its primary banker.

Approximately half the church's annual revenue comes from cash donations. But it engages in few cross-border transactions, conducts annual external audits and has written, independently tested cash-handling policies and procedures.  A package of information detailing those safeguards, together with a request for an opportunity to present its compliance programs, was forwarded to the bank in response to the closure notice.

The bank denied the request without explanation, save a boilerplate statement that, while the bank had no reason to believe the church was involved in any problematic activity or transactions, it "just didn’t fit with the model of the kind of entity" that the bank wanted to do business with. The church's subsequent attempts to develop banking relationships with other institutions met with little success.

Title II of the Civil Rights Act of 1964 prohibits discrimination based on religion in places of "public accommodation" that affect interstate commerce. In many state statutes, banks are considered places of public accommodation.

By compelling banks to close the accounts of allegedly high-risk clients, regulators are inadvertently denying churches and other cash-based religious organizations full and equal access to banking services. They simultaneously avoid the proper review and checks to which such government policies would otherwise be subject.  The discriminatory effect of the new policies can be directly linked to the push to create desirable "client profiles" by closing the accounts of cash-dependent clients.

This effect is likely unintentional, but nonetheless real. Its origins may lie in a July 2014 letter released by the Federal Deposit Insurance Corp. that attempted to clarify its approach to supervising banking relationships with third-party payment processors. The FDIC had previously instructed banks to be on alert when banking for certain "high-risk" categories of merchants and included a list of the businesses it deemed risky. In its July 2014 letter, the FDIC removed the list in order to avoid misunderstandings. However, this left banks in a position in which they effectively had to guess about which clients might be perceived as posing reputational risk.

In the era of enhanced regulatory scrutiny, banks would rather play it safe and cut off blameless organizations than spend enormous amounts of time, money and energy attempting to predict which businesses will raise red flags. Therefore regulators are inadvertently encouraging the nationwide denial of banking services to legitimate organizations dedicated to faith and community service and protected by the freedom of religion guaranteed in the First Amendment of the Constitution.

Reasonable minds may differ about the desirability of using market-inhibiting regulatory practices to stymie legal but politically unpopular businesses. But surely all Americans can agree that a regulatory framework that threatens the viability of religious practice in a country founded on the notion of freedom of religion is, at the very least, in need of reform.

Sheila Tendy, an attorney and former bank regulator and prosecutor now in private practice, represents one or more clients that have been adversely affected by Operation Choke Point. Follow her on Twitter @SheilaTendy.

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