The Consumer Financial Protection Bureau (the Bureau) regulates banks and other financial services. The Dodd-Frank Act gave the Bureau the power to demand documents and other evidence from anyone using subpoenas called civil investigative demands (CIDs). The Bureau has used this power with little justification far too often. Small businesses have paid tens of thousands of dollars to comply, sometimes laying off workers or closing branches. Legislators should protect Americans from these unfair fishing expeditions.
Before World War II, the Supreme Court recognized poorly justified administrative subpoenas like CIDs as a violation of Fourth Amendment privacy rights. The Court ruled that federal agencies like the Interstate Commerce Commission ought to issue subpoenas only to investigate a specific breach of the law. The Fourth Amendment did not allow agencies to “direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime… Some ground must be shown for supposing that the documents called for do contain [such evidence].”
But after World War II, the Court abandoned meaningful restraints on agencies’ subpoena powers. The Court said that agencies shared the grand juries’ power to “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”
But agencies are not like grand juries. Grand juries are convened under the neutral authority of a judge and are comprised of ordinary Americans with ordinary ideas of fairness. They are not comprised of political actors. Grand juries safeguard liberty, but no one expects administrative agencies to serve this role.
Progressives have long hoped that agencies would be apolitical and objective, but humans with authority over others rarely remain objective, especially those in unaccountable federal agencies. Federal agencies are subject to influence from many stakeholders, and public-sector employees are as self-interested as anyone else. These observations apply with particular force to the Consumer Financial Protection Bureau, headed by a powerful director appointed by the president and intentionally funded by the Fed to limit its accountability to Congress. The Bureau is the penultimate experiment in misplaced trust.
The consequences of power without accountability have been predictable. The targets of the Bureau’s CIDs may struggle for months or years to understand why they are being investigated. The production of documents and testimony may cost the target tens of thousands of dollars or over a million dollars. The Bureau may use its subpoena powers to conduct research rather than to investigate a violation of the law. The Bureau and other agencies are believed to use subpoenas to punish firms they disfavor or to chill free speech.
While we wait for the Supreme Court to restore our Fourth Amendment rights, legislators should curb the Bureau’s overreach. Bills like the Civil Investigative Demand Reform Act of 2025 (CIDRA) would advance this goal. CIDRA requires the Bureau to set out the particular facts that justify the issuance of a subpoena. And it would give subpoena targets the right to object to especially burdensome or duplicative subpoenas. The Trump administration has cut the Bureau’s staff and budget, but only Congress can make lasting changes to the Bureau’s subpoena powers.
One of the central premises of our republic is that power without checks and balances will be abused. The post-World War II Supreme Court forgot this. This error should be corrected.
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