Kicking Dodd-Frank In The Teeth
January 11, 2015 by Gretchen Morgenson
The 114th Congress has been at work for less than a week, but a goal for many of its members is already evident: a further rollback of regulations put in place to keep markets and Main Street safe from reckless Wall Street practices.
The attack began with a bill that narrowly failed in a fast-track voteon Wednesdayin the House of Representatives. It is scheduled to come up again in the House this week.
The bill, introduced by Representative Michael Fitzpatrick, a Pennsylvania Republican who is a member of the House Financial Services Committee, has three troublesome elements. First, it would let large banks hold on to certain risky securities until 2019, two years longer than currently allowed. It would also prevent the Securities and Exchange Commission from regulating private equity firms that conduct some securities transactions. And, finally, the bill would make derivatives trading less transparent, allowing unseen risks to build up in the system.
Of course, you wouldn’t know any of this from the name of the bill: the Promoting Job Creation and Reducing Small Business Burdens Act. Or from the mild claim that the bill was intended only “to make technical corrections” to the Dodd-Frank legislation of 2010.
Here’s the game plan for lawmakers eager to relax the nation’s already accommodating financial regulations: First, seize on complex and esoteric financial activities that few understand. Then, make supposedly minor tweaks to their governing regulations that actually wind up gutting them.
“We’re going to see repeated attempts to go in with seemingly technical changes that intimidate regulators and keep them from putting teeth in regulations,” predicted Marcus Stanley, policy director at Americans for Financial Reform, a nonpartisan, nonprofit coalition of more than 200 consumer and civic groups across the country. “If we return to the precrisis business as usual, where it’s routine for people to accommodate Wall Street on these technical changes, they’re just going to unravel the postcrisis regulation piece by piece. Then, we’ll be right back where we started.”
The bill was put forward on the second day of the new Congress, in an expedited process, which didn’t allow for debate among members. This process is supposed to be reserved for noncontroversial bills and requires support from a two-thirds majority to prevail. It fell just short of achieving that level, with a vote of 276 to 146, overwhelmingly backed by Republicans and opposed by most Democrats.
A central element of the bill chipped away at part of the Volcker Rule, the regulation intended to reduce speculative trading activities among federally insured banks. The bill would give the institutions holding collateralized loan obligations — bundles of debt — two additional years to sell those stakes.
The sales were required under the Volcker Rule, which bars banks from ownership in or relationships with hedge funds or private equity firms, many of which issue and oversee these instruments. Like the mortgage pools that wreaked such havoc with United States banks in the most recent crisis, C.L.O.s can pose high risks for banks.
The creation of such securities has been torrid recently; $124.1 billion was issued last year, compared with $82.61 billion in 2013, according to S&P Capital IQ. Among the banks with the largest C.L.O. exposures are JPMorgan Chase and Wells Fargo; according to SNL Financial, a research firm, JPMorgan Chase held $30 billion and Wells Fargo$22.5 billion in the third quarter of 2014, the most recent figures available. The next-largest stake — $4.7 billion — was held by the State Street Corporation.
Given the size of these positions, it’s not surprising the institutions want more time to jettison them. But the new legislation represents Wall Street’s second reprieve on these instruments. After banks objected to the sale of their holdings last spring, the Federal Reserve gave them two years beyond the initial 2015 deadline to get rid of them.
Now they want another two years.
Although the top three banks had unrealized gains in their C.L.O. holdings in the third quarter, SNL said some banks were facing losses. And that was before the collapse in the price of oil, which has undoubtedly pummeled some of these securities.
A second deregulatory aspect in the Fitzpatrick bill relates to the lucrative private equity industry, which remains loosely regulated. The bill would exempt some private equity firms from registering as brokerage firms with the S.E.C. Under securities law, such registration is required of firms that receive fees for investment banking activities, like providing merger advice or selling debt securities.
Private equity firms are typically registered only as investment advisers, so submitting to broker-dealer regulation would result in more frequent examinations and more rules.
These firms don’t like that. But their investors could benefit from closer regulatory scrutiny of costly conflicts of interest in these operations. For example, a private equity firm providing merger advice to a company its investors own in a fund portfolio — not an arm’s-length transaction — could easily charge more for those services than an unaffiliated firm would.
Finally, the bill’s changes in derivatives would reduce transparency and increase risks in this arena by allowing Wall Street firms with commercial businesses — like oil and gas or other commodities operations — to trade derivatives privately and not on clearinghouses.
Trading on clearinghouses generates accurate price data that help both banks and regulators value these instruments. Because these clearinghouses perform risk management, problematic positions are easier to spot.
If this change goes through, it will be the second recent victory on derivatives for big banks. Last month, Congress reversed a part of the Dodd-Frank law barring derivatives from being traded in federally insured units of banks. Taxpayers may be on the hook for bailouts, therefore, if losses occur in the banks’ derivatives books.
The Dodd-Frank law, as written back in 2010, was by no means a comprehensive fix for a risky banking system. And it is more vulnerable to attack, in part, because of its complexity and design. Dodd-Frank delegated so much rule-making to regulators that it essentially invited the institutions they oversee to fight them every inch of the way.
And when Congress backs the industry in these battles, it’s no contest.
Still, it is remarkable to watch the same financial institutions that almost wrecked our nation’s economy work to heighten risks in the system.
“The truth about Dodd-Frank is it’s pretty moderate and pretty compromised already,” Mr. Stanley of Americans for Financial Reform said. “Any further compromise and it tends to collapse into nothingness.”
Which is exactly what Wall Street seems to be hoping for.
Copyright: Copyright 2015 The New York Times Company
Source: New York Times Digital
