UNDERNEWS

Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of one quarter of America's presidencies and edited alternative journals since 1964. The Review has been on the web since 1995. See main page for full contents

June 18, 2009

THE GOOD & THE BAD IN OBAMA'S FINANCIAL REGULATORY PLAN

Robert Weissman, Counterpunch - There are major gaps and shortcomings in the Obama administration's financial regulatory proposals and the proposals alone leave the financial sector vulnerable to future crisis. Still, it's nice to be able to say that the proposal does contain meaningful reforms.

Whether those meaningful reform proposals become law is no sure thing, and will depend on the administration's willingness to stare down Wall Street -- which still retains immense political power, despite its partial self-immolation -- and on whether a mobilized public demands Congress act for consumers, not contributors. . .

Here are only some key elements -- first, the good, then the bad.

The Good

1. The administration supports creation of a strong Consumer Financial Regulatory Agency. It proposes to give this new agency very strong powers, and jurisdiction over consumer protection rules -- taking away authority from existing regulators (like the Federal Reserve) that have failed utterly to protect consumers. It favors simplicity and gives the new agency the authority to mandate financial firms offer "plain vanilla" loans along with the more complicated packages they prefer. It gives the agency authority to ban mandatory arbitration provisions that strip consumers' right to go to court for redress of scams and rip-offs. And it establishes that the new agency's rules will be a regulatory floor, with states permitted to adopt stronger protections.

2. The administration proposes to reduce speculative betting, through new standards on leverage. One reason the financial crisis spun out of control was financial firms' excessive use of leverage -- borrowed money. Heavily leveraged, the top commercial banks and investment banks overreached with very risky loans and investments. The administration proposes that all systemically important financial firms be subjected to higher capital reserve standards (meaning they can rely less on borrowed money). The administration properly says these rules should apply to any systemically important firm, whether or not it is a bank. It defines systemically important as a firm "whose combination of size, leverage and interconnectedness could pose a threat to financial stability if it failed." There are still important details to be worked out here, including how much capital such firms must maintain. And there is the very worrisome element that it is the Federal Reserve that is given primary responsibility for overseeing these systemically important firms.

3. Through "skin-in-the-game" rules, the administration aims to prevent predatory and reckless lending. One reason lenders were willing to make so many predatory and bad-quality mortgages -- including but not limited to the class of subprime loans -- was that mortgage originators did not hold on to the loans. Mortgage brokers cut deals on behalf of banks and non-bank originators, which in turn sold the resulting mortgages to other banks. These banks, in turn, sliced and diced the mortgages, combined them into packages of pieces of thousands of other mortgages, and sold them to all kinds of investors. Because the initial lender did not maintain an ongoing interest in the mortgage, they did not have any incentive to ensure they were making a quality loan. The administration proposes that loan originators be required to keep, at minimum, a 5 percent exposure in loans.

4. The administration seeks power to take over failing, systemically important financial firms. The government already has such "resolution" power for commercial banks. The Federal Deposit Insurance Corporation regularly takes control over failing banks and "resolves" them outside of the bankruptcy process. This typically means selling off the failing bank to another bank, often after separating its good assets from bad. FDIC is expert at this process, moves very quickly, and averts the harmful consequences from extended bankruptcy processes. The government does not have the legal authority to undertake comparable measures for important non-bank firms. This includes investment banks (think Lehman Brothers) and insurance companies (think AIG). Giving the government resolution power for non-banks should help control financial panic.

The Bad

1. The administration does not propose to do anything serious about executive pay and top-level compensation for financial firms. The administration does support "say-on-pay" proposals, which give shareholders the right to a *non-binding* vote on executive compensation. But a non-binding vote isn't worth too much; and, more importantly, shareholders are often willing to support excessive compensation while risky bets are paying off. . .

Besides financial stability, there are important questions of economic justice and taxpayer rights related to executive compensation. The Wall Street hotshots -- including the major hedge fund players -- have paid themselves unfathomable amounts of money over the last decade. . . No one in finance can say they made their money just by working hard or being clever -- their system was saved by the government.

2. The administration does not propose structural reform of the financial sector. Although it proposes some meaningful regulatory reform, and modest alteration of the structure of regulatory agencies, the administration does not propose to alter the structure of the financial sector itself.

There is no discussion of returning to Glass-Steagall principles, to separate commercial banking from other financial activities including the speculative world of investment banking. Glass-Steagall was adopted during the Great Depression, as a response to financial abuses that closely parallel those of the previous decade. Repeal of Glass Steagall -- following a decades-long erosion -- came in 1999, and helped pave the way for the present crisis.

Nor is there any discussion of shrinking the size of goliath financial firms. Everyone now recognizes the problem of too-big-to-fail and too-interconnected-to-fail financial firms. The administration proposes to deal with the problem through regulation alone; a more fundamental approach would break up giant firms (or at least commit to prevent further consolidation going forward). . .

3. The administration's approach to regulating financial derivatives is too timid. To its credit, the administration proposes to repeal recent deregulatory statutes and establish regulation of financial derivatives. But its plan does not go far enough. It creates a regulatory exemption for customized derivatives -- a loophole that will create lots of business for corporate lawyers ready to change terms in derivative contracts so that they differ somewhat from standardized terms.

Nor does the administration propose to ban classes of dangerous financial instruments that cannot be justified. A clear example of a product that should be banned is a credit default swap -- a kind of insurance against a certain outcome, like the inability of a bondholder to make required payments -- in which neither party has a stake in the underlying transaction. Such credit default swaps have no insurance component, and are nothing more than bets -- but they are bets that can vastly exceed the value of the transaction being bet on, and can spread financial contagion, as AIG demonstrated. George Soros argues that all credit default swaps basically share this feature, and should be banned altogether.

The administration proposal also fails to require that exotic financial instruments be subjected to pre-approval requirements. Under such an approach, financial firms would be required to show that new instruments offer some social benefit, and do not pose excessive risk.

4. The administration does not propose to empower consumers. There is enormous merit to the proposal for a Consumer Financial Products Agency. But it is not a substitute for giving consumers the power to organize themselves to advance their own interests. Simply mandating that financial firms include in bills and statements (whether mailed or e-mailed) an invitation to join an independent consumer organization would facilitate tens of thousands of consumers -- and likely many more -- banding together to make sure the regulators do their job, and to prevent Wall Street from "innovating" the next trick to scam borrowers and investors.

And then the ugly. . .

To this list we would add the failure to do a thing about the unconscionable usury in which America's financial institutions routinely engage.

1 Comments:

Anonymous trading as it should be said...

Barack Obama's regulatory plan is considered to be one of the most innovative and mature plan. In the UK for example they are trying to patch the old system whereas Obama want to redo the whole financial system. Especiall the way the banks and brokers leverage and capital requirements.

June 19, 2009 9:22 AM  

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