Yesterday was a singularly unimpressive day at the Wall Street reform conference committee, with concessions and industry giveaways galore.
It was not completely devoid of success. Despite being housed inside the Federal Reserve rather than as an independent agency, the Consumer Financial Protection Bureau retained its independent budget and somewhat independent rulemaking authority (the Office of the Comptroller of the Currency can pre-empt state consumer protection laws, and other regulators could still pre-empt some CFPB regulations if they find them to threaten “financial stability,”). It even picked up a couple extra areas of oversight; in particular, the CFPB will get to regulate payday lenders and “reverse mortgages,” which are often used by older Americans to get equity out of their homes (they are often abusive and predatory). Several other decent provisions on mortgage brokers, including banning yield spread premiums (steering customers into more expensive loans for a commission) and “liar loans” (no-documentation mortages), survived. As an anti-predatory lending bill, this is a pretty good one.
But the CFPB will not be allowed to oversee auto dealers. Despite supposed strong opposition from the White House, the House inserted their auto dealer exemption into the legislation and the Senate failed to take it out. Luis Gutierrez (D-IL) tried to at least get the FTC as the main regulator of auto dealers (which is I believe currently the case), with the CFPB as a backup regulator, but that effort failed 10-9, with Democrats Dennis Moore (KS), Gary Peters (MI) and Mary Jo Kilroy (OH) voting with the Republicans to keep the loophole. The Senate tried to insert the FTC authority as well as subjecting auto dealers to the Truth In Lending Act, but the final outcome has not yet been decided.
Tom Harkin’s ominously bad annuities amendment, setting the precedent of exempting insurance industry products from oversight (not like AIG ever did anything to cause a financial collapse), passed despite not being in the House or Senate bills.
Chris Dodd personally killed a House offer that mortgage lenders carry 5% risk from mortgage-backed securities they package and send away, putting skin into the game of securitization.
Tim Johnson took the legs out from the “fiduciary duty” measure.
The amendment, offered by Sen. Tim Johnson (D-S.D.), undercuts a move to compel brokers — middlemen between buyers and sellers of securities — to act in the best interests of their clients, in accordance with what is known as their fiduciary duty.
Investment advisers are bound by this legal obligation, yet brokers who perform the same function in the employ of big Wall Street firms like Goldman Sachs are not. Forcing broker-dealers to act in the best interests of retail investors would not only protect them from Wall Street’s worst impulses; it would level the playing field [...]
But Johnson’s amendment, passed on a voice vote, goes beyond the original simple study the Senate called for last month.
Instead, his provision mandates that the SEC can only extend this protection to average investors if its study finds that previously-identified “gaps, shortcomings, or overlap [in the legal or regulatory standards in the protection of retail customers] cannot be addressed through disclosure, anti-fraud, conflicts of interest, or other standards of conduct for brokers, dealers, investment advisers, persons associated with brokers or dealers, and persons associated with investment advisers that may be promulgated by the [SEC] or adopted by national securities associations.”
Put another way, the SEC’s study has to conclude that essentially every other imaginable method cannot protect investors before it can mandate that Wall Street broker-dealers act in their clients’ best interests.
So far, the amendment regulating debit-card interchange fees is intact, but Chuck Schumer, who I think is only on the conference committee to deal with this single issue, keeps trying to get Republicans to offer an amendment weakening it and give him a hands-free way to gut the reform.
On other major issues still awaiting resolution, the trends are all bad, except for the fact that Gary Ackerman’s ridiculous “New York Democrats, form a human shield around the bankers” initiative looks doomed. The Volcker rule will probably face scrutiny today, and while Chris Dodd claims to be working to “stiffen” it, but it’s likely that the rule will end up giving an exemption to banks’ asset-management arms to make investments in private equity and hedge funds, in a nod to Scott Brown (R-MA). The Lincoln derivatives title and Section 716 remain up in the air, probably to be decided Thursday. And Susan Collins’ capital requirements amendment may get in the bill just to keep her aboard for cloture, but Dodd wants to phase it in over five years. Phase-ins and studies have been the means to delay and divert anything substantive in the bill.
For some unexplained reason, the conference committee has to finish this week. All the better to weaken dozens of proposals in the blink of an eye.