How Wall Street Killed Financial Reform
It’s bad enough that the banks strangled the Dodd-Frank law. Even worse is the way they did it – with a big assist from Congress and the White House.
By Matt Taibbi/ Rolling Stone/ May 10, 2012
Two years ago, when he signed the Dodd-Frank Wall Street Reform and Consumer Protection Act, President Barack Obama bragged that he’d dealt a crushing blow to the extravagant financial corruption that had caused the global economic crash in 2008. “These reforms represent the strongest consumer financial protections in history,” the president told an adoring crowd in downtown D.C. on July 21st, 2010. “In history.”
This was supposed to be the big one. At 2,300 pages, the new law ostensibly rewrote the rules for Wall Street. It was going to put an end to predatory lending in the mortgage markets, crack down on hidden fees and penalties in credit contracts, and create a powerful new Consumer Financial Protection Bureau to safeguard ordinary consumers. Big banks would be banned from gambling with taxpayer money, and a new set of rules would limit speculators from making the kind of crazy-ass bets that cause wild spikes in the price of food and energy. There would be no more AIGs, and the world would never again face a financial apocalypse when a bank like Lehman Brothers went bankrupt.
Most importantly, even if any of that fiendish crap ever did happen again, Dodd-Frank guaranteed we wouldn’t be expected to pay for it. “The American people will never again be asked to foot the bill for Wall Street’s mistakes,” Obama promised. “There will be no more taxpayer-funded bailouts. Period.”
President Barack Obama signs the Dodd-Frank Wall Street Reform and Consumer Protection Act alongside members of Congress in 2010.
Two years later, Dodd-Frank is groaning on its deathbed. The giant reform bill turned out to be like the fish reeled in by Hemingway’s Old Man – no sooner caught than set upon by sharks that strip it to nothing long before it ever reaches the shore. In a furious below-the-radar effort at gutting the law – roundly despised by Washington’s Wall Street paymasters – a troop of water-carrying Eric Cantor Republicans are speeding nine separate bills through the House, all designed to roll back the few genuinely toothy portions left in Dodd-Frank. With the Quislingian covert assistance of Democrats, both in Congress and in the White House, those bills could pass through the House and the Senate with little or no debate, with simple floor votes – by a process usually reserved for things like the renaming of post offices or a nonbinding resolution celebrating Amelia Earhart’s birthday.
The fate of Dodd-Frank over the past two years is an object lesson in the government’s inability to institute even the simplest and most obvious reforms, especially if those reforms happen to clash with powerful financial interests. From the moment it was signed into law, lobbyists and lawyers have fought regulators over every line in the rulemaking process. Congressmen and presidents may be able to get a law passed once in a while – but they can no longer make sure it stays passed. You win the modern financial-regulation game by filing the most motions, attending the most hearings, giving the most money to the most politicians and, above all, by keeping at it, day after day, year after fiscal year, until stealing is legal again. “It’s like a scorched-earth policy,” says Michael Greenberger, a former regulator who was heavily involved with the drafting of Dodd-Frank. “It requires constant combat. And it never, ever ends.”
That the banks have just about succeeded in strangling Dodd-Frank is probably not news to most Americans – it’s how they succeeded that’s the scary part. The banks followed a five-point strategy that offers a dependable blueprint for defeating any regulation – and for guaranteeing that when it comes to the economy, might will always equal right.
STEP 1: STRANGLE IT IN THE WOMB
The first advantage the banks had lay in the fact that for all Obama’s bluster, Dodd-Frank was never such a badass law to begin with. In fact, Obama’s initial response to the devastating financial events of 2008 represented a major departure from the historical precedent his own party had set during the 1930s, when President Franklin D. Roosevelt launched an audacious rewrite of the rules governing the American economy following the Great Crash of 1929.
Upon entering office, FDR was in exactly the same position Obama found himself in after his inauguration in 2009. Then, as now, the American economy was in tatters after the bursting of a massive financial bubble, brought on when speculators borrowed huge sums and gambled on unregistered securities in largely unregulated exchanges. This mania for instant riches led to an explosion of Wall Street fraud and manipulation, creating a mountain of illusory growth divorced from the real-world economy: Of the $50 billion in securities sold in America in the 1920s, half turned out to be worthless.
Roosevelt’s response to all of this was to pass a number of sweeping new laws that focused on a single theme: protecting consumers by forcing the business of Wall Street into the light. The Securities Act of 1933 required all publicly traded companies to register themselves and offer prospectuses to investors; the Securities Exchange Act of 1934 forced publicly traded companies to make regular financial disclosures; and the Commodity Exchange Act of 1936 required all commodities and futures to be traded on organized exchanges. FDR also created the FDIC to protect bank depositors (through an insurance fund paid for by the banks themselves) and passed the Glass-Steagall Act to separate insurance companies, investment banks and commercial banks. Post-New Deal, if you put money in a bank, you knew it was safe, and if you bought stock, you knew what you were buying.
This reform strategy worked for more than half a century – and it offered Obama a clear outline of how to respond to the crash he faced. What made 2008 possible was that Wall Street had moved its speculative frenzy away from the regulated exchange system created by FDR, and into darker, less-regulated markets that had coalesced around brand-new financial innovations like credit default swaps and collateralized-debt obligations. It wasn’t that the old system had broken down; Wall Street had just moved the playground.
All Obama needed to do to rescue the economy and protect consumers was to make sure that the new playground had some rules. That meant moving swaps and other derivatives onto open exchanges, making sure that federally insured banks that dabbled in those dangerous markets retained more capital, and coming up with some kind of plan to prevent the next AIG or Lehman Brothers disaster – i.e., a plan for unwinding failing companies that wouldn’t require federal bailouts.
The initial proposal for Dodd-Frank addressed most of those concerns. As drafted, it would have created a system for shutting down failing megafirms, required swaps to be traded and cleared on regulated exchanges, and restored the spirit of Glass-Steagall through the so-called Volcker Rule, which would have prevented federally insured banks from engaging in dangerous speculation. It envisioned a powerful new Consumer Financial Protection Bureau to represent the interests of consumers against Wall Street, a bureau headed not by some banker stooge but by an actual consumer advocate and financial expert like Elizabeth Warren, the Harvard professor who came up with the idea. And it would have cleaned up the mortgage markets by ending predatory home-lending and forcing everyone in the market, from homeowners to banks to investors buying mortgage securities, to post real cash and keep “skin in the game” when buying or selling a mortgage.
Then, behind the closed doors of Congress, Wall Street lobbyists and their allies got to work. Though many of the new regulatory concepts survived in the final bill, most of them wound up whittled down to such an extreme degree that they were barely recognizable in the end. Over the course of a ferocious year of negotiations in the House and the Senate, the rules on swaps were riddled with loopholes: One initially promising rule preventing federally insured banks from trading in risky derivatives ultimately ended up exempting a huge chunk of the swaps market from the new law. The Volcker Rule banning proprietary gambling survived, but not before getting its brains beaten out in last-minute conference negotiations; Wall Street first won broad exemptions for mutual funds, insurers and trusts, and then, with the aid of both Treasury Secretary Tim Geithner and Sen. Chuck Schumer of New York, managed to secure a lunatic and arbitrary numerical exemption that allows banks to gamble up to three percent of their “Tier 1” capital, a number that for big banks stretches to the billions.
Then there was the Consumer Financial Protection Bureau, which went from being a powerful, independent agency run by Elizabeth Warren to a smaller bureau within the Federal Reserve System run by – well, anyone but Elizabeth Warren. With Geithner and Republicans in Congress blocking her once-inevitable appointment, we no longer had Warren playing watchdog to Federal Reserve chief Ben Bernanke – instead we had new CFPB head Richard Cordray, a former Ohio attorney general who enjoys far less of a popular mandate than Warren, forced to operate within the bureaucracy of Bernanke’s Fed.
But the best example of how the watering-down process helped make Dodd-Frank ripe for a later killing was the question of Too Big to Fail. Obama, Geithner and the Democratic leadership in Congress never seriously entertained enacting the most obvious and necessary reform at all – breaking up the so-called “systemically important financial institutions” (the congressional term for “banks so huge we’ll have to bail them out if they collapse”). Rather than simply stopping these firms from getting so big that they’d blow up the universe in a collapse, the Democrats opted for a half-clever semantic trick, claiming they had solved the future bailout question with Title II of the Dodd-Frank Act, known as the “Orderly Liquidation Authority” or “OLA” section of the bill.
In a nod to FDR, Title II would have forced major financial companies to pay $19 billion into an FDIC-style fund that would cover the cost of any future bailouts. But then the balance of power in the Senate was upset by the election of Republican Scott Brown to Ted Kennedy’s seat in Massachusetts. As the clock wound down toward the bill’s passage, Brown insisted on a change: Instead of making ginormous companies pay $19 billion in advance, the FDIC would first use taxpayer money to pay for any bailouts, and then spend years trying to recover that money from Wall Street by means of an assessment process so convoluted that you could grow a four-foot beard in the time it would take to understand it. Republicans managed to wrangle support, in conference, for the “bailout now, pay later” idea, and it made its way into the final bill.
Fast-forward to 2012. Rep. Paul Ryan, the self-styled Edward Scissorhands of Republican budget slashing, gathers the GOP leadership together and tells the chairman of each committee that he wants them, collectively, to come up with $261 billion in cuts. Ryan demands $35 billion of the cuts come from the Financial Services Committee, which oversees much of the regulatory apparatus that would enforce Dodd-Frank. The committee is now chaired not by the reform bill’s namesake, Rep. Barney Frank, but by median-intellected Spencer Bachus of Alabama, who last year voted to delay Dodd-Frank reforms designed to prevent swaps disasters like the one that drove his home turf of Jefferson County into bankruptcy. (READ ENTIRE ARTICLE HERE)
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