Outgoing U.S. President Donald Trump has nominated Acting Comptroller of the Currency Brian Brookshttps://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-appoint-following-individuals-key-administration-posts-111720/, an advocate for crypto-friendly reforms, to lead the national bank regulator on a more official basis.
Brooks, a former bank executive who joined the Office of the Comptroller of the Currency in March after a stint as general counsel at Coinbase, has headed the federal agency on an acting basis since May. One of his first actions at the agency was to propose a federal licensing regime for fintech startups, which would spare them from obtaining state-by-state money transmitter licenses that all crypto exchanges currently need to do business.
Since being named Acting Comptroller by Treasury Secretary Steven Mnuchin, Brooks has made a number of moves to integrate crypto with the historically gun-shy banking sector. In July, his office published a letter telling nationally regulated banks they could offer crypto custody services, while announcing in September that these same banks can provide services to stablecoin issuers.
Brooks has been serving as Acting Comptroller after his predecessor, Joseph Otting, announced his decision to step down in early May. The U.S. Senate Banking Committee oversees the OCC and will likely hold a confirmation hearing before the entire Senate votes to confirm or reject Brooks’ nomination.
This means that timing could be a deciding factor. Trump lost November’s election to Democratic challenger Joe Biden, meaning Biden can nominate someone else to the position if Brooks isn’t confirmed before Jan. 20, 2021.
It’s unclear whether the Democratic senators on the committee would vote for Brooks. He has been criticized by some congressional Democrats for his focus on crypto, with several members of the House Financial Services Committee asking him a series of questions about his work on crypto and arguing he should spend more time addressing financial inclusion and minority banking issues, especially given the ongoing coronavirus pandemic.
In addition, the Democrats in the Senate may wish to let President-elect Biden name his own choice to the OCC to serve a five-year term, rather than let Trump confirm another regulator.
Brooks’ nomination comes on the same day a vote to confirm Federal Reserve Board of Governors nominee Judy Shelton failed. The former Trump adviser was a controversial pick, with three Republican senators saying they would vote against her, citing concerns about her views on the gold standard and the independence of the Fed board. A new vote is expected to occur at a later date.
In a statement, Brooks said it was "a great honor" to be nominated, adding:
A tall order
The hurdles to confirmation appear to be high for Brooks.
For starters, the Senate is in a lame-duck session, the Banking Committee would need to schedule a hearing and hold a vote, and Congress is about to go on its Thanksgiving break and won't return until December.
While the confirmation of Supreme Court Justice Amy Coney Barrett showed the Senate majority can push something through if it is committed, "Republicans have to really want it," said a longtime analyst of financial policymaking, noting that Shelton's nomination failed to advance.
Further, even if Brooks were to be confirmed, incoming President Biden could take the unusual but statutorily permitted step of firing the comptroller, which members of his party would likely encourage if not insist upon. All he would be required to do is notify the Senate of the rationale for the firing.
Brooks' nomination "is a last-minute move to install someone at the OCC for five years," said the Washington analyst, who requested anonymity because his employer does not want to be caught up in controversy. "The Democrats are likely to view it as a shady trick."
UPDATE (Nov. 17, 23:20): Added background on hurdles facing nomination.
CORRECTION (Nov. 17, 23:40): A previous version of this article stated Sen.-elect Mark Kelly of Arizona would replace Martha McSally on the Senate Banking Committee. While McSally is losing her seat, it's unclear whether Kelly would take her committee spot when he is sworn in next month.
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