Should Congress Create a New Federal Charter for Non-Bank Payments Companies?

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In this podcast show, we explore with our repeat guest, Professor Dan Awrey of Cornell University Law School, his working paper “Money and Federalism” in which he advocates for the enactment of Federal legislation creating a Federal charter for non-banks engaged in the payments business, like PayPal and Venmo. The article may be accessed online at SSRN and will likely be published in a law review at some time in the future. The abstract of Professor Awrey’s article describes in general terms what we discussed:

The United States is the only country in the world in which both federal and state governments possess independent and yet overlapping authority for bank chartering, regulation and supervision. The roots of this unique dual banking system can be traced back to the Constitution, written almost a century before banks rose to the apex of the financial system and became the dominant source of money. Beginning with the landmark Supreme Court decision in Maryland v. McCulloch, the system has been a wellspring of jurisdictional conflict. Yet over time, this highly contested and highly fragmented system has also produced strong federal oversight and a financial safety net that protects bank depositors, prevents destabilizing runs, and promotes monetary stability.

This system is now under stress. The source of the stress is a new breed of technology-driven financial institutions licensed and regulated almost entirely at the state level that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them and the nature of the threats they may one day pose to monetary stability.

It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models, one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in our monetary system.

Professor Awrey explains why existing state money transmitter statutes under which non-bank payments firms are generally licensed provide insufficient protection for consumers who use these firms. State money transfer statutes were created many years ago to protect consumers that were using Western Union. These laws were not designed to protect consumers that deploy non-bank Fintech companies using new technologies to transfer funds. These companies don’t have access to the Federal Reserve’s central payments system that banks have access to. These non-bank companies, unlike banks, are subject to federal bankruptcy law.  That increases the likelihood that consumers can lose their funds deposited in one of these non-bank companies in the event of its failure.

Professor Awrey concludes that the answer to this problem is the enactment of federal legislation which would create a federal charter for non-bank companies engaged in transmitting payments. A company that is granted such a charter would have access to the Fed’s payment rails and would be exempt from the federal Bankruptcy Code. Such a company would be very restricted in the types of investments it may hold. The federal charter would ideally preempt many state laws, including state money transmitter laws.

For a contrary opinion, please see the recent publication of the Conference of State Bank Supervisors extolling the virtues of state money transmitter laws.

We also spend some time at the beginning of the show discussing the status of FedNow, the instant payments system launched by the Federal Reserve System in July 2023. Professor Awrey was previously a guest on our podcast show on September 14, 2023 entitled “What is FedNow and its Role in the U.S. Payments System.” At that time, Professor Awrey predicted that FedNow was too little, too late and too expensive for small banks. Professor Awrey’s opinion is unchanged. He noted that the Fed has so far refused to share any data about FedNow usage.

Alan Kaplinsky, Senior Counsel and former practice group leader for 25 years of the Consumer Financial Services Group, hosts the podcast show.

A transcript of the recording will be available soon.

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