LEGAL EAGLE SPOTLIGHT The Debanking Minefield Navigating Fair Access in 2026 By Yana Rusovski and Kirstin Kanski, Spencer Fane LLP Few regulatory shifts move this fast. What started as a Fair Banking Executive Order in August culminated in a final rule that eliminated reputational risk from bank supervision, which took effect on June 9, 2026. And in between, the Office of the Comptroller of the Currency (OCC) released preliminary findings of its investigation into nine of the largest U.S. banks; the Federal Trade Commission (FTC) issued warning letters to major payment networks; the Small Business Administration issued a mandate to cease debanking, conduct reviews, report findings and reinstate customers; and a growing body of fair access state laws is being proposed despite industry calls for federal preemption. The executive order targeted the prudential regulators, requiring the removal of reputational risk and any other language in supervisory documents that could lead to “politicized or unlawful debanking,” defined as any restriction on access to services based on political or religious beliefs or on disfavored lawful business activities. The order underscored that all banking decisions must be made “on the basis of individualized objective and risk-based analyses.” The banking industry publicly welcomed the call for removal of reputational risk, noting it is in all “banks’ best interests to take deposits, lend to and support as many customers as possible” in a news release from the American Bankers Association in August 2025. Given a recent wave of U.S. Department of Justice (DOJ) subpoenas to banks, it remains important to understand the landscape shift, risks and impacts. Congress Responds with Proposed Fair Access Legislation Congress has neither prioritized nor had the need to codify standards governing access to the banking system. A bank’s relationship with customers is primarily one of contract and choice. The supervisory concept of reputational risk is nothing new. It originated in the 1990s as part of the OCC’s introduction of risk-based supervision, and was not publicly reported to be used to influence access to financial services until what later became Operation Choke Point. The concept of “fair access” is not new either, having first appeared as part of the Dodd-Frank Act, when Congress added to the OCC’s oversight responsibilities “fair access to financial services.” Despite prior efforts — including the OCC’s 2021 proposed fair access rule — the OCC never published a final rule implementing its “fair access” mandate until now. Now, however, in the wake of Operation Choke Point 2.0, Congress appears to be moving more quickly toward a permanent solution. Legislatively, two bills would codify the principles of fair access: the Financial Integrity and Regulation Management (FIRM) Act, which would eliminate reputation risk, and the Fair Access to Banking Act, which would require impartial, individualized, risk-based analysis in decision-making. Of the two, only the FIRM Act has been reported out of committee in both chambers; the Fair Access to Banking Act remains in committee. The industry has published its own Federal Fair Access Principles for Congress to consider as part of any legislative solutions, emphasizing the need for banks to maintain autonomy in pricing, products, risk and business decisions to remain competitive. Agency Rulemakings Remove Reputational Risk and Drive BSA/AML Reform The OCC and FDIC’s joint final rule wholesale eliminates “reputational risk” from bank supervision. The rule defines reputation risk as any risk to public perception “not clearly and directly related to the financial or operational condition of the institution” and prohibits both agencies from using it as a basis for any adverse supervisory action. This includes MRAs, examination criticism or pressure to close accounts. The Federal Reserve removed reputational risk from its examination programs in June 2025 and issued a parallel proposed rule in February 2026. 16 | The Show-Me Banker Magazine
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