Dodd-Frank One Year Later: Slow Progress On Rules Amid Industry And GOP Onslaught
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NEW YORK -- When President Obama signed the most sweeping financial regulatory overhaul since the Great Depression into law last July, he warned that for these new rules to be effective "regulators will have to be vigilant" and "we may need to make adjustments along the way as our financial system adapts to these new changes."
Though Democrats and consumer advocates have applauded the Dodd-Frank Act, Wall Street lobbyists condemned it and warned that it would hurt bank profits. Republican lawmakers have vowed to delay or destroy some of the bill's major provisions. "This is the first round of a heavyweight fight," one financial industry trade group executive told The Huffington Post the night after the signing ceremony. "When they get through writing all the rules to put this into action, it will end up looking a lot different."
A year later, much of the act remains unimplemented; the agencies who will enforce the new rules are facing budget cuts; and Republican lawmakers have introduced at least two dozen bills aiming to undo the act's major provisions. Despite Wall Street's warnings about the impact of the law, the financial services industry is thriving -- some banks just recorded billions of dollars in profits, with mega-bank Wells Fargo posting record second-quarter earnings of almost $4 billion. JPMorgan Chase's revenue and profit for the first half of the year was higher than in the six months before Dodd-Frank was signed into law.
"I think it has been an extremely tough year for Dodd-Frank implementation," former Sen. Ted Kaufman (D-Del.), who was a big supporter of the law, told The Huffington Post in an email. "It is very discouraging that after so many Americans have gone through so much pain and agony in lost jobs, homes, and self-respect, that we cannot institute the kinds of regulations to avoid another financial meltdown."
Check out this slideshow that charts the status of Dodd-Frank's major provisions:
A main justification cited for the widely-debated bailouts was that regulators lacked the legal tools to effectively wind down large, complex firms like AIG. So in Dodd-Frank, they were given this ability. The FDIC and Federal Reserve have a joint proposal that requires such large firms to submit "living wills," which is expected to be finalized in August. Regulators are also divided over whether to include non-banks, such as certain hedge funds and private equity firms. And the FDIC is still in the process of reaching agreements with other countries to help wind down multinational firms.
Debit Card Fees
One of the most hotly-debated provisions -- setting limits on the charges that banks could charge merchants for the use of debit cards -- pitted giant retailers like Walmart and Home Depot against Mastercard and Visa. Though the financial services industry failed to get legislation passed in the Senate to delay the new requirements, it helped convince the Federal Reserve to raise the fees from 12 to 21 cents that merchants have to pay banks.
One looming battle is over which firms are labeled "systemically important" and therefore subject to increased government oversight. Though banks with more than $50 billion in assets automatically qualify, they are furiously lobbying to even out the damage by getting the feds to include some private-equity firms, insurers and hedge funds in that designation.
The overhaul of the massive market in derivatives -- complex financial instruments widely blamed for exacerbating the financial crisis -- has been delayed until at least October 2012. At that point, a new Congress or new administration might be less interested in taming the sector. House Republicans have also tried another tack, starving regulatory agencies of the funds they need to implement and enforce the upcoming rules.
Consumer Financial Protection Bureau
The Consumer Financial Protection Bureau is also one of the most polarizing elements of the law, with liberals championing its creation and conservatives condemning it as another unaccountable bureaucracy. Much of the drama centered around Elizabeth Warren, the Harvard Law professor who first proposed the CFPB, with Republicans vehemently opposed to her heading the new agency. After months of anticipation, the Obama administration didn't pick Warren, but chose one of her allies, former Ohio Attorney General Richard Cordray, whose nomination did nothing to please the CFPB's GOP opponents. Otherwise, the bureau is on track, with some high-level hires and more than 200 staffers (and 1,000 expected by the end of the year.) Tomorrow, it takes over some powers including making rules for existing consumer financial laws. Yet without a director, it remains hobbled and unable to perform some of its essential duties.
Though Wall Street has vigorously fought new capital requirements -- requiring banks to hold enough capital, so as to survive times of crisis -- arguing that they would restrict lending and growth, most of the rules have been implemented. Earlier this year, regulators finalized a rule which establishes a capital floor for banks.
The Volcker Rule
The Volcker Rule, named after former Fed chairman Paul Volcker, prohibits banks from trading for their own benefit. But it has yet to be implemented, and regulators have still not released proposed rules, thought they face an October deadline. Lobbyists and regulators have been debating the definition of so-called proprietary trading.
'Skin In The Game'
Out of concern that the mortgage crisis was exacerbated since mortgage originators don't have skin in the game, the law required them to retain some of the credit risk of borrowers. But a 20 percent requirement has been opposed by the industry, which claims that it will increase the cost of borrowing. Regulators are seeking comments through August 1, and the final rule won't be ready for at least a few months.
Office of Financial Research
With experts saying that regulators' lack of information and industry data helped prevent them from anticipating the mortgage and credit crisis in 2008, Dodd-Frank authorized the creation of the Office of Financial Research. But the new office, backed by subpoena power, still lacks a director, limiting its effectiveness.
Regulators have completed less than 20 percent of the 163 required rules that had statutory deadlines during the first year and only about 12 percent of all 400 rulemaking requirements in Dodd-Frank, according to projections by law firm Davis Polk & Wardwell. Regulators are likely to miss over a hundred rulemaking deadlines on July 16 and July 21, according to those projections. Regulators have been picking up the pace this week -- the Commodities Futures Trading Commission finalized four rules on Tuesday.
But industry pressure has helped delay some of the most significant reforms for up to a year. Earlier this month, the CFTC proposed delaying rules for the $601 trillion derivatives market that were set to go into effect on July 16 until as late as the end of the year. Last month the Securities and Exchange Commission decided to delay some measures designed to improve transparency and reduce risk in the over-the-counter swaps market.
Asked about the pace of implementation, Dean Baker, co-director of the Center for Economic and Policy Research, said it is certainly too slow.
"As this process drags on, we get further removed from the public sentiment behind reform," Baker said. "This means that the only people in the room will be the people from the financial industry. This will allow them to write the rules in a way that minimizes the impact of the regulation."
Others are cautiously optimistic, explaining that Dodd-Frank is one of the most complex legislative packages in recent history and that it's more important to get it done right than to get it done quickly. "I know to someone looking from the outside in, who isn't experienced with rulemaking, that it appears to be moving too slowly," said Michael Greenberger, professor at the University of Maryland School of Law and a former Director of Trading and Markets at the CFTC. "Contrast that with Wall Street, which is crying that it's moving too fast."
Greenberger pointed to the CFTC, where a small staff of 700 has to implement over 50 complicated new regulations. "They've done an effective job," he said. "It's a lot of work and they just started adopting final rules. On balance, they've worked very hard, very effectively and very competently."
Greenberger noted implementation of a rule on price manipulation, saying he was pleasantly surprised that the bipartisan commission passed it unanimously. He predicted that the rule will affect commodity prices and prompt enforcement actions against manipulators, while also helping prevent speculation in food, energy and metals trading.
"Of course, speed and time isn't of the essence, it's getting it correct," said former Rep. Paul Kanjorski (D-Pa.), a strong proponent of the Volcker Rule, an unimplemented rule that restricts banks from trading for their own benefit.
"Quite frankly, we did our job -- we passed legislation," said Kanjorski, who now does consulting work for financial industry firms. "But it was just a skeleton, and we authorized rulemakers to put the flesh on the skeleton and that implementation determines whether we create a Frankenstein or a human being. It will take years before the full impact of Dodd-Frank is implemented."
Industry lobbyists have swarmed the agencies in recent months. Among the almost 500 companies seeking to influence regulators on the implementation of the act this year, big Wall Street players have been the most active. Goldman Sachs representatives met with officials at the top financial regulatory agencies at least 83 times over the last year, including four separate meetings with CFTC officials in one day last month.
In addition to banks, multinationals like GE have also been busy lobbying to avoid tougher oversight as a "systematically important" institution. Even Standard & Poor's, the credit rating agency blamed for giving good ratings to high-risk mortgage securities during the housing bubble, is spending millions to avoid new rules that seek to limit conflicts of interest. Though the industry paid lobbyists $50 million so far this year, it's considered a good investment since firms claim they could lose billions of dollars in profits if Dodd-Frank is fully implemented.
As an example of the industry's influence on one small sliver of Dodd-Frank, lobbyists have worked intensely to slow down the SEC's implementation of a single fiduciary standard of care for securities brokers and dealers, as well as investment advisers. Regulators wanted the provision to force these firms to be held accountable for providing self-interested financial advice -- like recommending products that generated high-commissions. Pension and employee-benefit funds supported the universal standard as a way to prevent investor abuse.
After several December meetings with two powerful industry groups, the National Association of Insurance and Financial Advisors and the Securities Industry and Financial Markets Association, the SEC's two Republican members opposed the proposal last winter. They recommended that the SEC do an extensive cost-benefit analysis of the measure, and by March, GOP lawmakers were urging the agency to do just that before proceeding with the rule, which isn't expected to be ready until the end of the year, according to Investment News. A few months later, after a letter-writing campaign by industry groups urged lawmakers to demand more cost-benefit analysis of new rules, Senate Republicans asked inspectors general at five financial regulatory agencies to make sure that the agencies were properly assessing the costs of new regulations compared to their benefits, which is likely to further delay new rules.
Similarly, the SEC's proposal to register municipal bond advisers prompted a furious response, with more than 1,000 comment letters opposing the new requirement sent to the agency and lawmakers. The commission is reviewing the letters, may make some adjustments and is expected to enact a final rule this fall.
"It has been a very uneven fight with bank lobbyists fighting against regulations and spending $251 million last year and $51 million more in the first quarter, with very little being spent on the other side," says former Sen. Kaufman.
Industry lobbyists insist that they just want to improve a reform package that was long-overdue. Last week, SIFMA president Tim Ryan told the audience at a Dodd-Frank summit that he supports many of the changes proposed in the law. But he wants "increased coordination and comprehensive cost benefit analysis to ensure the new rules as proposed actually help make our financial system safer and more secure and provide the infrastructure to move our still fragile economy forward."
Noting that SIFMA has submitted over 100 comment letters on proposed rules, Ryan noted that some rules will tighten bank lending, which could hamper the recovery. He highlighted international capital and liquidity requirements and a possible capital surcharge for "systemically important" banks, warning that those proposals will hurt American competitiveness in a global market.
Despite the overheated rhetoric in Congress, where some lawmakers have expressed their desire to repeal the law, many in the business community say that Dodd-Frank is not going away. Last January, Steve Bartlett, the president of the Financial Services Roundtable, gave a speech in which he said: "It is not a proposal. It is not even a sound bite. It is the law of the land enforced by a sheriff with a posse, rope and gun. There are clear changes that the industry needs to implement. Ready or not, Dodd-Frank's 2,300 pages of 300 plus rules and studies are here to stay."
In addition to lobbying, some industry groups have gone to court to derail some of Dodd-Frank's provisions. After the Chamber of Commerce and the Business Roundtable sued the SEC over its proposed rule that enables shareholders to nominate directors to corporate boards, claiming that the agency didn't conduct a proper cost-benefit analysis, the agency suspended the rule, but the litigation continues. The Chamber and the Business Roundtable did not return calls for comment.
Even if the rules are eventually finalized, the agencies may not have the resources to effectively implement and enforce them. The SEC's budget was recently frozen at $1.2 billion and the CFTC's budget was cut 15 percent in two separate bills approved by two House committees, despite the fact that the agencies have more responsibilities under Dodd-Frank. CFTC chairman Gary Gensler warned in his testimony before the Senate Agriculture Committee last month that such a reduction "would hamper our ability to seek out fraud, manipulation and other abuses at a time when commodity prices are rising and volatile."
SEC chairman Mary Schapiro has said that without more funds, it will be more difficult for her agency to enforce many of the new rules. "We're going to have to make some very hard choices about how we utilize the resources that are available to us," she told Reuters earlier this week.
The Consumer Financial Protection Bureau, which the law created, could also be underfunded. Lawmakers introduced a bill that mandates that no more than $200 million can be transferred to the bureau, despite its request for $500 million in funding. The pace of such legislation has accelerated in recent weeks and has become a top priority of the Republican leadership, with Senate Minority Leader Mitch McConnell vowing, "The less we fund those agencies, the better America will be."
On Tuesday, Rep. Frank Lucas (R- Okla.) promised that more bills are forthcoming which are likely to delay certain Dodd-Frank provisions.
All of this Congressional sabre-rattling worries the act's proponents. While industry groups may acknowledge that Dodd-Frank is here to stay, some conservative lawmakers seem determined to destroy it.
"If you end up poisoning the regulators, you end up with a wimp," says former Rep. Kanjorski, who even goes so far as to claim that the numerous bills to defang the law could have a fatal effect. "If they persist in that, they will probably succeed in blocking the implementation of Dodd-Frank."
Rep. Barney Frank (D-Mass.), whose name is on the act, agrees. He has repeatedly said that the bill is "facing a death through a thousand cuts."
Check out the slideshow of Dodd-Frank's major players and observers offering their views:
The former chairman of the House Financial Services Committee, Frank (D-Mass.), whose name is on the bill, is concerned that the law is experiencing "death by a thousand cuts."<br><br>Frank <a href="http://www.investmentnews.com/article/20110711/FREE/110719991" target="_hplink">blames</a> Republicans rather than industry lobbyists for impeding the implementation of the bill. "They have had an impact by having the SEC and CFTC underfunded. That's a serious problem. I do not see this coming from the financial institutions. I see this coming from the ideology of the Republican Party."<br><br>He compares the onslaught to the battle over health care reform in 2009. "They recognize that the financial reform is more popular," he told <a href="http://www.npr.org/2011/05/10/136057308/republicans-propose-tweaks-to-new-financial-rules " target="_hplink">NPR</a>. "So with health care, they just did a flat-out repeal, and they also offered budget amendments. With the financial reform, they're trying to nibble it to death ... They are able to do it -- they think; I don't think they'll get away with it -- because attention is focused on the debt limit and on health care. They are trying to do this ... beneath the radar screen."
The former Connecticut senator (D-Conn.), who now run Hollywood's main lobbying group, defends the bill but doesn't seem very proud of it. At a conference in Las Vegas, he <a href="http://nakedphiladelphian.blogspot.com/2011/07/dodd-backs-away-from-namesake-bill.html" target="_hplink">joked</a> that he did not want the bill named after him, quipping, "my children are going to have to change their name." <br><br>But he called the Dodd-Frank Act "our best effort. The markets needed certainty. At first, people complained that the provisions were going to take too long to take effect. Now they are saying we are moving too quickly. "We didn't want to strangle innovation and needed to balance it with good regulation and offer harmonization of rules." When we were working on the bill, we were faced with time constraints and high emotion," Dodd said.
Former Delaware Senator Ted Kaufman was a big proponent of stronger regulation of the financial sector. He replied via email to HuffPost's questions about Dodd-Frank. <blockquote>I think it has been an extremely tough year for Dodd Frank implementation. To hit the highlights - <br><br>It has been a very uneven fight with bank lobbyists fighting against regulations and spending $251 million last year and $51 million more in the first quarter, with very little being spent on the other side. Chairman Bachus pretty much summed up the congressional Republican position when he said, "My view is that Washington and the regulators are there to serve the banks". They are trying to intimidate the regulators, and cut their budgets. The Senate Republicans say they will block the CFPB director's confirmation until there are major structural changes in the agency. ...<br><br> A year later I find very few who believe that the major financial institutions are too big to fail. Standard and Poor's in their July 12, 2011 statement said "we believe that under certain circumstances and with selected systemically important financial institutions (SIFI), future extraordinary government support is still possible". In addition the megabanks still borrow more cheaply than the smaller banks, giving them a "too big to fail subsidy". Not many believe that "Resolution authority" can be applied to a complex mega banks with so many foreign relationships and businesses.<br><br>It is very discouraging that after so many Americans have gone through so much pain and agony in lost jobs, homes, and self-respect, that we cannot institute the kinds of regulations to avoid another financial meltdown.</blockquote>
Former Rep. Paul Kanjorski (D-PA) was a sponsor of the Dodd-Frank Act. He talked to HuffPost about the status of the law.<br><br> <blockquote>Of course, speed and time isn't of the essence, it's getting it correct. Quite frankly, we did our job, we passed legislation but it was just a skeleton and we authorized rule makers to put the flesh on the skeleton and that implementation determines whether we create a Frankenstein or a human being. It will take years before the full impact of Dodd-Frank is implemented. ... <br><br>If you starve the SEC, you can frustrate its ability to carry out the rules. ... Now Congress is frustrating the appointment of regulators, to put up stumbling blocks to the legislation. ... <br><br>[On the Consumer Financial Protection Bureau] I was never the strongest proponent of the concept and I don't know if I would have supported Elizabeth Warren. ... <br><br>There is one section, ratings agencies, that still fails to do the job. I'm not sure what the answer is because we looked at all the past models. I'm not sure if we should have for-profit ratings agencies. ... <br><br>I worked very closely with Paul Volcker on the Volcker Rule, we had a discussion one afternoon where I was saying, 'Can't we give discretion to the regulator?' And he said, 'Look I was a regulator. Unless you make it mandatory, it won't work." You can bet your life the reason we were able to win the Volcker rule and my amendment on TBTF, it came down to [Charlie] Rangel being under ethics investigation. Charlie had always been a true friend and protector to Wall Street and they were immensely opposed to Volcker rule and my amendment. If they had Charlie in a healthy condition, they probably would have brought more weight. He was distracted by his other problems.</blockquote>
A University of Maryland law professor, Michael Greenberger worked as the director of the CFTC's Division of Trading and Markets in the late 1990s. <blockquote>I know to someone looking from the outside in, who isn't experienced with rulemaking, that it appears to be moving too slowly. Contrast that with Wall Street, which is crying that it's moving too fast. <br><br>The CFTC has acted very effectively. With over 50 new regulations, for a small agency with 700 employees, that is an awful lot of work to do. ... As someone who was in Clinton administration for four years and prior to that spend 26 years litigating rulemaking, they've done an effective job. It's a lot of work, they just started adopting final rules. On balance they've worked very hard, very effectively and very competently.<br><br>They're moving from regulating swaps with $50 trillion of notional value to $300 trillion to off-exchange swaps, building the infrastructure, the clearing facilities, the alternative swaps execution facilities - it's very intricate complicated stuff. The delay on position limits has the most immediate adverse effect. That has turned out to be the most controversial of all these controversial rules. ... I think the chairman and the commissioners have done an admirable job amid intense opposition from House Republicans. ... <br><br>Two regulations that came out that I commented on, agricultural swaps and manipulation, I agree with those rules. The new manipulation regulations, especially in food and energy sector, will see series of new manipulation cases, will have an effect on commodity prices. By the fall, you'll see enforcement actions, a series of manipulation cases dealing with alleged malpractices in food, energy and metals. Crude oil is a prime candidate [for such an action], also basic food staples where you're seeing run-ups and copper. The canary in the mine for this is that they brought crude oil case using the more difficult standard that didn't go into effect until these new rules were in place in which they can prove intent through circumstantial evidence. There is no division in commission over that rule, even hardline anti-regulation types agree that if there is an intent to manipulate prices, that should be gone after by CFTC. There was industry opposition but this is an unassailable. ... <br><br>They're much more split over position limit rules. ... And there are very controversial ownerships rules for clearing facilities. The proposal had two alternative tests, one was very favorable to Wall St, to keeping control of these groups in the hands of Wall Street. Those are all pending.</blockquote>
The whistleblower who repeatedly brought evidence of Bernie Madoff's Ponzi scheme to the SEC to no avail, Markopolos replied to HuffPost's questions about Dodd-Frank via email. <br><br><blockquote>The only thing I can figure out is that the agencies don't have enough staff on hand for rule-writing within the time period that Congress gave them. And that makes sense, since the main job of these agencies is supposed to be oversight and enforcement not rule writing. Rule writing to the extent we have under Dodd-Frank you get to do only after major crises, so no agency is staffed up for this.<br><br>Far better that they get it right than on time. Other than that I have no thoughts, only opinions.<br><br>I'm glad the CFTC is finally going to bring Forex under a regulatory umbrella. I'm eager to see what they do on that, ditto for OTC derivatives.<br><br>As for the SEC, I'm eager to see if two dark areas of corruption are addressed - municipal bond financing/disclosures/accounting and bond trading.</blockquote>
A professor at the University of Missouri - Kansas City, Bill Black worked as a counsel at the Office of Thrift Supervision during the savings and loan crisis. This comment on Dodd-Frank is excerpted from a column he wrote earlier this year for <a href="http://dollarsandsense.org/archives/2011/0111black.html" target="_hplink"><em>Dollars and Sense</em> magazine</a>. <blockquote>What about the long-awaited bank reform law, which Congress finally delivered in July 2010 in the form of the Dodd-Frank Act? The law does not address the fundamental factors that have caused recurrent, intensifying financial crises: fraud, accounting, executive and professional compensation, and regulatory failure. The law does create a regulatory council that is supposed to identify systemic risks. The council, however, will be dominated by economists of the same theoclassical stripe who not only failed to identify the systemic risks that produced the recent financial crises, but actually praised the criminogenic incentives that caused those crises. </blockquote>
The powerful chairman of the House Financial Services committee, Spencer Bachus (R-Ala.) recently wrote an op-ed for <em><a href="http://www.politico.com/news/stories/0711/58596.html#ixzz1Sf7mc6Ip" target="_hplink">Politico</a></em>, excerpted below, to describe his critique of Dodd-Frank. <blockquote>The Dodd-Frank Act has been described by supporters and opponents alike as the most sweeping reform of the financial services industry since the Great Depression. It can also be described as a story of the "good, the bad and the ugly."<br><br>A few of its provisions represent useful reforms to a financial system that came close to the brink of collapse in the fall of 2008, but the "bad and the ugly" parts far outweigh those. And their impact on our economy will be staggering.<br><br>The two primary factors that drive our economy, capital and workforce, will both be harmed by Dodd-Frank. Tucked into the law's 2,300 pages are 400 regulatory mandates that will be imposed on the private sector. Both financial and nonfinancial businesses will be forced to shift capital from hiring, investments in new equipment and other productive uses to comply with these new rules. Likewise, these businesses will have to redirect their workers' time and energy to compliance rather than productive work. </blockquote>
Sen. Richard Shelby, the ranking member of the Senate Banking committee, recently expressed his thoughts on Dodd-Frank during a hearing in Congress.<br><br> <blockquote>It is now one year since the passage of Dodd-Frank and we can see more clearly the consequences of its special interest agenda. The Act has not helped investors, but has saddled Main Street and providers of capital -- the engines of economic growth -- with a long list of new regulatory requirements. At a time when the unemployment rate is at 9.2 percent, this hardly seems like a wise course.</blockquote>
Baker, the co-director of the Center for Economic and Policy Research, replied to HuffPost via email to express his thoughts on the pace of Dodd-Frank implementation.<br><br><blockquote>I would certainly say too slow, because as this process drags on we get further removed from the public sentiment behind reform. <br><br>This means that the only people in the room will be the people from the financial industry. This will allow them to write the rules in a way that minimizes the impact of the regulation. This is why it was important to get everything nailed down in the bill itself. It is also why the industry lobbyists pushed to include all these delays and allow so much discretion in writing the rules. They know the game and at the end of the day, they are likely to make a joke of much of the bill. </blockquote>
Tim Ryan, the president and CEO of the Securities Industry and Financial Markets Association, recently gave a speech (partially excerpted below) at a summit held by the industry group to discuss the impact of Dodd-Frank.<br><br><blockquote>You've heard how big the Dodd-Frank mandate is: 235 rulemakings, already generating 41 reports, 71 studies authored by 11 different federal agencies and bureaus. Much work has been already done - as of July 1, we have finalized 38 new rules. But, we still have a long road ahead of us. 26 deadlines have been missed. 215 rules have yet to be proposed. 122 rulemaking deadlines come due in the third quarter of 2011 alone. That's more than a quarter of all required rulemakings, all taking place in the midst of an unstable economic environment. <br><br>Regulators are faced with a daunting task of implementing Dodd-Frank. There are a lot of balls in the air and we're not as targeted as we should be. To complicate matters, multiple regulators have joint jurisdiction over the same markets and products. We are concerned coordination across regulators, jurisdictions and geographical borders is just not happening at the level it should. <br><br>What will happen if we lack the coordination and the time to assess the totality of regulatory burdens? <br><br>We will greatly decrease the odds that when each rule is completed, they will fit with other rules to effectively regulate the markets in the efficient, cohesive manner intended by Congress. <br><br>What is the danger of rules not working together? <br><br>We risk impeding the flow of capital and credit, which in turn would undermine both economic growth and job creation.<br><br>This would impact not just the financial markets, not just global corporations; but would have a profound impact on the lives of ordinary Americans. </blockquote>