As August rapidly makes way for the fall midterm election campaign season, conditions are ripe for an expansion of the administration's damaging Operation Choke Point program.
The once-secretive program has already affected thousands of businesses throughout the country. The Department of Justice and Federal Deposit Insurance Corp. use a combination of regulatory scrutiny and administrative subpoenas to make it very difficult for financial institutions to maintain longstanding relationships with lawfully operating businesses.
This intimidation of banks and payment processors has already led to the termination of relationships between financial service providers and the industries the FDIC considers "high-risk," including pawnshops, gun dealers and manufacturers, auto dealers and short-term lenders.
Banking regulators may be getting skittish over the rise in press reports about the program and the number of law-abiding businesses coming forward to confirm they had been cut off from their payment and banking relationships due to the program. In late July, the FDIC announced that it would remove the now-infamous list of high-risk merchants from the agency's website. The regulator has also attempted to distance itself in congressional testimony by claiming the program was primarily being run by the Department of Justice.
The schism within the executive branch, perhaps pitting career federal employees against more politicized Justice Department appointees, demonstrates the enormous impact congressional, grassroots and industry campaigns against the program have had in recent months. Unfortunately, it is unlikely that it's a signal the administration is going to lay low. In fact, the next five months will likely see a much more aggressive and complex campaign by DOJ and the FDIC to fundamentally change the way commerce is conducted in America through Operation Choke Point.
The administration has invested significant resources and political capital into Operation Choke Point since at least 2011, if not before. There is little doubt the program, which some believe is a violation of due process and an illegal use of government power, has thus far accomplished what it was designed to do. It is shutting down businesses that are ideologically at odds with the administration. It is increasing the liability and thus the compliance requirements of financial institutions that do business with those targeted industries. It is perhaps most shockingly creating an environment where the administration alone is defining and controlling which industries should be allowed to operate. It has accomplished all this without Congress being consulted, and certainly never approving the program.
The next five months provide a unique opportunity for Eric Holder and the Department of Justice to ramp up their Operation Choke Point efforts. Congress is in recess, immigration is topping the minds of Americans, and major foreign policy challenges dominate the news. All of those factors, including a hotly contested election in which control of the U.S. Senate hangs in the balance, mean congressional action to push back against DOJ will be significantly limited.
Limited oversight means Eric Holder's Justice Department has little reason for restraint, and the rest of the year provides a significant opportunity to double down on Operation Choke Point.
Financial institutions and industries targeted by Operation Choke Point should expect to see a dramatic increase in the issuance of administrative subpoenas, or civil investigative demands during this time. These subpoenas, which may not be made public for several months, or longer, threaten to heighten pressure on banks and payment processors to speed their audits of existing clients and more quickly discharge clients.
This type of aggressive uptick in scrutiny will also begin to affect industries that have so far apparently avoided the crosshairs of the program, but are industries we know remain key targets of this administration. Casinos, for-profit education companies, tobacco sellers and multilevel marketing companies are already being targeting by other agencies like the Consumer Financial Protection Bureau, the Federal Trade Commission and the Food and Drug Administration. Banks can be expected to increasingly buckle to the pressure of federal officials and commence aggressive audits for subjectively defined "reputation risk" among their account holders.
Combined with administrative subpoenas from the DOJ, this will have a tremendous impact on e-commerce businesses and those listed on the high-risk merchants list from FDIC at a time when they can least afford to lose access to the financial system: the holiday shopping season.
E-commerce retailers, financial institutions, and targeted industries must join together now to make it politically untenable for the administration to continue this assault on free-market, lawfully operating businesses. A unified coalition will help keep pressure on the administration while Congress focuses on the politics of the moment. Supporters of Operation Choke Point are counting on the common territorial battles within industry associations and grassroots groups to ensure their victory in this fight and the protection of the attorney general's ability to expand the program. While every stakeholder threatened by the program must protect their interests, division within these industries is counterproductive and leads to the distribution of misinformation at a time when the administration is primed to take advantage of an already favorable environment for this dangerous program.
Without a unified, grassroots effort to combat this threat to such a wide range of industries, the Administration will likely succeed in fundamentally changing the way commerce is conducted in America to the detriment of America's consumers and the innovative businesses that serve them.
Brian J. Wise is a senior adviser to the U.S. Consumer Coalition, a national organization that advocates for consumers' rights to access free-market goods and services.