Tuesday marks five years since President Obama signed the Dodd-Frank financial reforms into law. While the financial sector remains, at the end of the day, too large and too lightly regulated, Dodd-Frank did accomplish a lot of critical goals for reformers, as Mike Konczal details here.
There are other areas where financial reformers should look next, but the more immediate task is making sure Dodd-Frank is fully implemented. In several critical ways, the law remains an unfinished piece of work.
Here are three basic areas that need to be completed for Dodd-Frank to meet its original intent. They are drawn from two very helpful reports issued on Tuesday by Public Citizen and Democrats on the House Financial Services Committee.
Curbing Banker Pay
Excessive “short-termism” on Wall Street—the widespread compulsion to prioritize immediate financial windfalls over the longer-range health of the company and of broader financial markets—has widely been blamed for leading to the corporate culture that brought about the 2008 financial collapse. It’s critical to correct this, because technicians on Wall Street will always be able to design new financial instruments and methods to create profit, and without reforming that culture, regulators will likely stay a step behind those innovations.
Hillary Clinton and Bernie Sanders both have some intriguing ideas on how to temper short-termism, but one avenue already exists in the Dodd-Frank bill: section 956, which gave federal regulators broad ability to rein in executive pay on Wall Street if it sees “inappropriate risk.”
There is no question executive pay presents just that; by many indicators it’s already higher than pre-crash levels. Employees of the securities industry in New York City took home $28.5 billion in end-of-year payouts last year, which is more than they reaped during the pre-crash aughts.
Section 956 was supposed to be finalized nine months after Dodd-Frank became law, and we’re way beyond that now. Part of the problem is the way the rule was written: Five different agencies are responsible for implementing it. Senator Elizabeth Warren has singled out the Securities and Exchange Commission and its chair Mary Jo White as one of the main culprits. The SEC’s portion of the rule has been delayed once again until April 2016, which Warren says conflicts with promises White made during congressional testimony. “I cannot understand how and why this rule has been delayed for so long, and I am perplexed as to why you told me personally that the rule would be completed by the fall of 2015 when it appears that you were or should have been aware of additional delays,” Warren wrote in a recent letter to White.
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The Volcker Rule
One of the bolder ideas in Dodd-Frank was to prohibit big banks from using federally backed consumer deposits to do risky gambling in speculative markets—a section known colloquially as the Volcker Rule (Section 619 in the legislation) for its chief proponent, former chairman of the Fed Paul Volcker.
There has been some good progress in actually getting the rule finalized, despite tooth-and-nail battles with the banking industry that seeks to preserve a major profit machine. But there’s some haziness in the law that regulators will have to watch—it bans banks from engaging in proprietary trading, which rapidly circulates securities, but does not ban more hedging investments nor market-making moves designed to protect clients. Those latter activities are theoretically fine and appropriate, but there’s already evidence that banks are simply reclassifying risky proprietary trades as simple hedges.
Regulators are also giving banks a lot of time to separate or get rid of their hedge funds, which engage in risky investments as a regular course of business; the latest extension reaches into 2022. Volcker himself criticized the delay recently, noting “It is striking that the world’s leading investment bankers, noted for their cleverness and agility in advising clients on how to restructure companies and even industries however complicated, apparently can’t manage the orderly reorganization of their own activities in more than five years.”
In the meantime, the Volcker Rule will face significant challenges via international trade agreements and tribunals. It could be a target for negotiators of the looming TTIP deal with Europe, and Canada has also challenged the rule under existing trade structures.
Finishing Up ‘Living Wills’
A central criticism of Dodd-Frank is that it didn’t end too-big-to-fail financial institutions, which not only exist today but are, in many cases, much larger than they were before the crash. This is already playing out in the Democratic presidential primary, with Bernie Sanders and Martin O’Malley calling for the institutions to be broken up and trying to pressure Hillary Clinton to agree.
But Dodd-Frank did implement several useful tools for at least making sure that, when a big bank or financial institution does go under again, there is a much more orderly process for dismantling it. Big Wall Street firms are supposed to draw up “living wills” detailing how their company can be unwound in the event of catastrophe. They’ve only submitted first drafts so far, but the FDIC declared they are uniformly “not credible and do not facilitate an orderly resolution under the U.S. Bankruptcy Code.” JPMorgan Chase’s plan is 20,000 pages long, and interpreting it in real time during a crisis would be akin to reading a textbook on flammability as a fire rages.
