You can tell that financial reform will be the next heavy lift in Washington because everyone’s chattering about it today, and proposing a variety of solutions. But they actually come down to something a lot simpler than what’s being proposed: regulators need a few clear rules, and they need to do their jobs. Mike Konczal elaborates:
People talk a lot about the “unregulated” shadow banking market, but it is important to remember that they were (poorly) regulated by the SEC. And the SEC gave an exemption to 5 firms – Goldman, Merrill, Lehman, Bear Stearns, and Morgan Stanley – to leverage up further in the 20-40 to 1 range, while commercial banks were still leveraged in the 8-12 to 1 range. The more leverage means the bigger the returns, but the harder the falls. This increased the regulatory arbitrage of the shadow banks, because these five firms could act as if they were commercial banks but could be significantly more leveraged, offering better deals and crowding out the market.
There is nothing in the Dodd Bill that would have stopped this other than the hope that regulators at the Federal Reserve are smarter, more resistant to lobbying, and will let their actions be more transparently monitored, critiqued and subject to democratic review by the public and the general community of investors than the SEC. Maybe this is true today, and maybe this is even true on a medium term time frame. By why take the chance, when we can simply put in a hard line of 15-to-1 like in the Frank Bill?
Exactly. Dodd’s draft leaves the rulemaking process largely up to regulators who proved themselves incapable of making those decisions to the good of the consumer and the taxpayer rather than the Wall Street titan.
It’s possible that capital requirements like that mentioned above from the Frank bill are insufficient for the current problem, and that size and not leverage must be attacked. But this is particularly true if the setting of those requirements are discretionary and put in the hands of regulators and officials who are susceptible to lobbying from the big banks.
What should concern everyone who thinks that laws can be written to successfully constrain size and risk is what Robert Reich argued today, that regulators have the ability today to enforce the laws on the books in such a way that would make the financial sector far less dangerous.
Before you wallow in hopeless cynicism, though, it’s worth noting that we already have a law against this. It’s called the Sarbanes Oxley Act of 2002. It just needs to be enforced [...]
It requires CEOs and other senior executives to take personal responsibility for the accuracy and completeness of their companies’ financial reports and to set up internal controls to assure the accuracy and completeness of the reports. If they don’t, they’re subject to fines and criminal penalties.
Sarbox is directly relevant to the off-the-balance-sheet derivative games Wall Street has been playing. No bank CEO can faithfully attest to the accuracy and completeness of its financial reports when derivatives guarantee that the reports are incomplete and deceptive.
I’m not entirely hopeful that regulators will use whatever new tools they may be given any more effectively than they are using the tools from the last crisis.




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David, I don’t agree with Robert Reich on this one. Enforcing the rules of disclosing derivatives correctly is important, but it does nothing to stop them from engaging in these off balance sheet transactions.
The whole regulatory system is flawed, it is based on psuedo private market regulators. The regulators Robert Reich is referring to when he talks about Sarban Oxly, is actually large accounting firms. These Accounting firms are the auditors who are hired by either the Board of Directors or the Audit committee. These Accounting firms are required to report some criminal actions to the SEC or other authorities, if they find such during an audit. The problems becomes why would an auditor turn in one of their largest clients? They would never get hired for next years audit. It is a complete conflict of interest.
Financial institutions and other companies also engage in what’s called “audit shopping”. This is the practice of seeking out an auditor that will give them the cheapest and cleanest audit opinion.
Many of the accounting firms such as Deloitte, Price Waterhouse, Ernst and Young, bave been providing services to these financial institutions, by helping them get around specific accounting rules and reporting requirments and then we are supposed to rely on them to also be the regulators in the system?
We actually need Government auditing firms and not private companies depending on fees from the actual companies they are supposed to be regulating. Their is actually little or no enforcement of the accouting firms that preform these audits.
“What should concern everyone who thinks that laws can be written to successfully constrain size and risk is what Robert Reich argued today, that regulators have the ability today to enforce the laws on the books in such a way that would make the financial sector far less dangerous.”; yeah, but that is Congress’ way; pass new laws even while the old ones are not being enforced.
Reinstatement of Glass-Steagall Act which will lead to end of bail-out era and reduce risk to the financial sector of the whole world not just USA.
Reading some of the articles in different posts so far to summarize we have a wild west scenario with the public money in the banks used as collateral and treasury as a back stop for risky bets wall street can dream up.
After this Health Care Fiasco I came to the conclusion and I hope I am wrong on this that all these reform packages in current congress and senate are simply a way to remove responsibility of enforcement which will obviously be hugely unpopular with heavy campaign contributors and have the added benefit of raising campaign cash while weakening existing laws in the guise of reforming the existing structure. That is the sad state of affairs right now and I am hoping only some third party reps in congress and one or two third party senators in senate will force these two parties to clean up the mess.
You can’t become a regulator in D.C. these days unless you promise not to do your job.
IMHO, the buzz about new regulations is simply a “shiny object” to distract from three essential facts:
* The meltdown was a lack of regulation, not a lack of regulations.
* The regulators who failed are now Obama’s top financial advisers.
* Laws were broken, but there have been no prosecutions.
I just knew you’d have the best comment! Regulations mean nothing if nobody is enforcing them and that is exactly what will happen with yet another reform from the Corporate Dems. Perhaps this time they’ll mandate all to have mortgages, even those that rent, and in one big mandate, solve the homeless problem!
yeah, it’s like in the job description
My eyes were opened to that when I watched the commission hearings. I believe it was the afternoon of the second day, when the state regulators were testifying. It was the woman from TX (can’t remember her name) who pointed out that OCC kept taking powers away from the states, who would have enforced some regs and knew the situations well, for the express purpose of not enforcing regs.
But really, it’s kind of astonishing that people would actually think that they enforce any regulations. After all, most of these people are just extensions of corporations anyway and are either trying to get a job at Corporation X, or had a job there and will go back. And those poor unsuspecting elected politicians, just can’t figure out why these foxes don’t guard the henhouse better!! Why, they are enraged, disgusted, or __________ (insert BS invectives here)
This would be an appropriate link.
Regulations, Schmegulations. Only a Communist would suggest interfering with the “free market.”
The capture theory of regulation has been around since the 1960s, but it took decades for the regulated to fully figure out how to exploit it, and also took Ds until Clinton to figure out how to get the regulated to pay for their campaigns.
Those magical powers are all over DC. Why they’ve SAVED millions of jobs (no explanations or proof needed) and Health Insurance Reform just gave millions healthcare (no explanations or proof needed). It’s like they are the new improved psychic superstars!!
The TX woman is Denise Crawford, Securities Commissioner.
This should clarify things…
This is the classic book on magical thinking. Only in Fraiberg’s days, it was confined to todlers.
While Reich suggests that Sarbanes Oxley just needs to be enforced he seems to skip over the fact that FASB, with it’s supposedly temporary mark-to-myth exclusions, as well as a host of other regulator derived exceptions, has make enforcement open to interpretation and filled with grey areas. When complex, he-said, she-said, arguments come before the court the government often losses. As also previously noted, the real problem is that neither Congress nor the Administration are willing to allow enforcement that would harm corporate interests. When Obama green lights TBTF, in speech after speech, that determines policy and enforcement actions. Blaming regulators, who may or may not actually wish to do their jobs but probably don’t want to be fired, for following policy misses the mark.
Also, contrary to Reich, there are a large number of problems including allowing TBTF and the unregulated CDS market that do not have laws on the books that regulators could use, if the occasion to do their jobs were to present itself. The negation of the Gramm-Leach-Bliley Act of 1999 would be a good place to start.
Did it take them decades to figure out how to exploit it, or that long to figure out how much cash is needed to exploit it? To me sometimes the entire government process is like some wild theater production of “How Many Can We Brainwash”. Corporate minions, supposedly elected to positions in government, that conveniently changes the government completely to being pro-corporate and anti-population. At times it makes one wonder just how democratic any nation on Earth truly is. I mean, what are the odds of elections having these consequences, all at once, globally? Boggles the mind to think it’s all just one giant reality show.
I learn more on FDL, than on any other site ever. Now I have to buy more pertinent reading!
eCAHN: Favorite book on the crash so far?
Best news program around. That one’s a keeper.
I haven’t read any books on it yet. Got my info from blogs so far. I’m sure there’s some good books out, though.
Off to read. BBL. Have fun!
We need to quit referring to these loathsome losers as ‘titan’, ‘masters of the universe’ and so forth. We need to refer to them for what they are:
Ponzi artists, thieves, con artists, criminals, confidence men/women.
Quit stroking the egos of people who fleece every penny out of the economy they can get their wool mitts on.
It’s like congratulating your rapist for their sexual prowress.
Harry Markopolos outlined the essential first step to meaningful reform in ultra-clear fashion before Congress a year ago.
Fire more or less everyone in the SEC. I’d add prosecute them to the list.
Harry knows what he’s talking about. Harry was right all along. He still is right today. He may come over as slightly whacky and mildly paranoid, but then, working in finance, you are better off being so, because pretty much everyone you deal with is a potential, major criminal looking to steal the shirt off your back, and then send you the bill for having it dry cleaned.
good point
We have this. It’s called the IRS.