House Financial Services Chairman Jeb Hensarling's proposal to expand the NCUA from three to five members won't become law this year, because Congress is unlikely to enact any major legislation during the remaining days of its current session.
The proposal — part of the Texas Republican's ambitious Dodd-Frank overhaul — could rear its head next year, when Congress will have time to debate such ambitious plans.
In addition, the GAO is investigating the issue of regulatory capture among financial regulators, including the NCUA. Supporters of expanding the NCUA in the past have cited board independence as a reason for converting the board from three members to five members. The number of board members could be raised in the context of ensuring a broad spectrum of representation.
However, even though it won't become law this year, the plan already is sharply dividing the credit union community.
NASCUS lined up supporting such a plan, while NAFCU opposed it. Even formers members of the NCUA board were divided over whether the expansion of the board might result in better oversight.
The proposal to expand the NCUA board isn't new. As far back as 1991, the GAO suggested the board be expanded to five people, saying that it would achieve a broader perspective on financial market regulatory and insurance issues.
And the GAO, in a 2006 letter to then-House Ways and Means Chairman William Thomas (R-Calif.) said industry and academic sources have suggested a minimum of five members is needed on a board to ensure independence, retain needed expertise and enable continuity of leadership.
The GAO also said some members of the board reported that communicating among members is difficult because of the Government in the Sunshine Act, which limits non-public meetings of a board majority. In the NCUA's case, that meant that two members of the board could not have a substantive conversation in private.
Hensarling did not cite those issues in including the five-member proposal in his legislation. In fact, in an otherwise detailed explanation of the bill, he did not explain his rationale. His office did not respond to a request for comment.
In his bill, Hensarling proposed to require the NCUA to have annual budget hearings that are open to the public and to include in its budget a report detailing its overhead transfer rate.
The proposal also would establish a Credit Union Advisory Council to advise the NCUA on the breadth of regulatory impact.
The bill went on to expand the board to five members, with board members prohibited from succeeding themselves. However, board members would be permitted to continue to serve until a successor is nominated and confirmed by the Senate.
Congress has been receptive to proposals to expand other boards from three to five members. Last year, when Congress reauthorized the Surface Transportation Board, which regulates the nation's railroads, it expanded the board from three to five members.
In a report to accompany the legislation, the Senate Commerce Committee cited the quorum issue in expanding the board.
However, former members of the NCUA board said there are ways to navigate that issue without expansion.
"The argument that board members cannot speak to each other is a fallacy," former NCUA Chairman Michael Fryzel said. "There are numerous ways to have a conversation."
He said meetings of senior policy advisers or with the general counsel and a member are permitted with a three-member board.
"And does anyone really believe that at some point in time, two or three board members standing together at a credit union function, awards presentation or having a picture taken, that one of them does not say something like, 'Do you think we should have a budget hearing?'" he asked.
Other former board members agreed. Former Chairman Dennis Dollar said the Sunshine Act restrictions were not a problem for the board.
"That is why we as NCUA board members had staffs that could communicate our positions to the staffs of other board members and bring about a consensus," he said.
"There are ways that we worked around that," former Board Member Geoff Bacino said. He said the key was to ensure board members empowered their policy advisers to allow them to have substantive conversations with other policy advisers or board members.
Dollar said he is more open to the suggestion that the board be expanded to five members due to problems the Senate has had with the confirmation process, leaving the NCUA board with only two members or even just one.
The board currently has two members, but Board Member J. Mark McWatters has been nominated for a position on the Export Import Bank. His nomination is stalled, with Senate Banking Committee Chairman Richard Shelby (R-Ala.) saying his committee will not consider it. But if that logjam is broken and McWatters is confirmed, the NCUA would be left with one board member.
"This does make one question of whether there might perhaps be more stability and likely less a potential policy stalemate on important issues with a five-member board," Dollar said.
The former board members and some in the credit union community said they are concerned with how much adding two new board members might cost.
"With staff and other administrative costs, a five-member board is going to be about 66% more costly than a three-member board for the credit unions that pay the bills at [the] NCUA," Dollar said.
Bacino said the NCUA offices are currently designed to accommodate three board members and staff. Adding two members would require reconfiguring those offices — adding to the cost of the expansion.
For its part, NAFCU said it is opposed to the board expansion, citing the cost to credit unions that fund the NCUA's operating expenses.
However, NASCUS President/CEO Lucy Ito said the board expansion could help expand the board's expertise. She called on Hensarling to add language ensuring that at least one member of the five-member board has some state credit union supervisory experience.
The NCUA has not taken a position on the proposed change, according to NCUA Public Affairs Specialist John Fairbanks.
"Those decisions are for Congress to make," he said.
However, in the past, the agency opposed such an expansion, citing the cost as well as the possibility that the decision making process could be more complex and take longer if the board had five members. In 2006, the agency estimated that expanding the board to five members would cost at least $1.1 million for salaries, benefits and other expenses.
Fryzel said if there are perceived changes need to be made at the board level, they should be made within the existing structure. He said, for instance, that allowing each board member, and not just the chairman, to add items to the monthly meeting agenda could allow the discussion of more thorny political issues.
He said in addition to the cost, expanding the board could cause another unintended problem.
"Aside from the additional cost, adding more people will just increase what at times is considered meaningless rhetoric," he said.
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