United States Financial Industry: Why Nothing Has Changed

Following is a noteworthy op-ed piece published in The Wall Street Journal yesterday with additional commentary from attorney Scott Weitz.

Next Sunday marks the fifth anniversary of the fateful day that investment bank Lehman Brothers filed for bankruptcy, signaling the start of a frightening financial meltdown. It’s a good time to ponder how the U.S. economy was nearly brought to ruin. But will we? Or are we already forgetting?

Consider the stark historical contrast between the 1930s and this decade:

Years of financial shenanigans in the 1920s, some illegal but many just immoral, conspired with a variety of other villains to bring on the Great Depression. Congress and President Roosevelt reacted strongly, virtually remaking the dysfunctional U.S. financial system, including establishing the Securities and Exchange Commission to protect investors, the Federal Deposit Insurance Corp. to protect bank depositors, and much else. The financial beast was comparatively tamed for almost 75 years.

Years of disgraceful financial shenanigans in the 2000s, some illegal but many just immoral, brought on the Great Recession with virtually no help from any co-conspirators. Congress and President Obama reacted comparatively weakly with the Dodd-Frank Act of 2010, which certainly did not seek to remake the U.S. financial system. I am a big supporter of Dodd-Frank, despite its timidity, because laws must be graded on a curve. Sadly, even this good-though-weak law now seems to be withering on the regulatory vine. Far from being tamed, the financial beast has gotten its mojo back—and is winning. The people have forgotten—and are losing.

Below are four examples (note, there are others).

1. Mortgages and Securitization. Piles of unconscionably bad mortgages—underwritten by irresponsible bankers, permitted by somnolent regulators, and passed on like hot potatoes to investors via securitization—were a major contributor to the financial crisis.

One response in Dodd-Frank was a “risk retention” rule requiring issuers of asset-backed securities to retain at least 5% of the credit risk, rather than pass it all on to investors. The idea was that a little “skin in the game” would make Wall Street firms a bit more cautious about what they securitized.

But there was a catch. The 5% requirement does not apply to “qualified residential mortgages” (QRMs)—a term left to regulators to define, but intended to exempt safe, plain-vanilla mortgages with negligible default risk. Dodd-Frank does not ban mortgages that do not qualify as QRMs, nor even does it prevent such mortgages from being securitized. It only requires that lenders retain a tiny portion of the credit risk.

What is the point? Almost all of the loans securitized are for “residential loans,” making this law virtually mute.

— Scott Weitz

The law mandated that a specific rule be written within 270 days. More than 1,100 days have now passed, and the country is still waiting.  

Just days ago, the regulators issued yet another notice of proposed rulemaking, soliciting comments on (among many other things) two ways to define QRMs. The lighter-touch option would exempt almost 95% of all mortgages from the skin-in-the-game requirement. The “tougher” option would exempt almost 75%. Does anyone doubt which option will be favored by interested commentators? After that, what will be left of the Dodd-Frank requirement?

2. Derivatives. Disgracefully bad mortgages created a problem. But wild and woolly customized derivatives—totally unregulated due to the odious Commodity Futures Modernization Act of 2000—blew the problem up into a catastrophe. Derivatives based on mortgages were a principal source of the reckless leverage that backfired so badly during the crisis, imposing huge losses on investors and many financial firms. Dodd-Frank calls for greater standardization and more exchange-trading, which would create a safer and more transparent trading environment. Wonderful ideas. But the law exempts the vast majority of derivatives. Do you see a pattern here?

It gets worse. Gary Gensler, the chairman of the Commodity Futures Trading Commission, is one of the few real reformers. But he ran into a wall of resistance from the industry, from European regulators, and from some of his American colleagues when he tried to implement even the weak Dodd-Frank provisions for derivatives. And Mr. Gensler’s days leading the CFTC look numbered.

3. Rating agencies. The credit-rating agencies also contributed mightily to the financial mess. These private, for-profit companies were presumed responsible for calling out hazards. Instead, they blessed financial junk with coveted triple-A ratings. Honest mistakes? Perhaps. But many critics have pointed out a flaw that cries out for fixing: The agencies are hired and paid by the very companies whose securities they rate.

Not just paid, but paid extremely well. And arguably, they are entirely dependent on the banks for their survival. It’s a very flawed system.

— Scott Weitz

Unfortunately, Congress could not decide how to fix this flaw. So Dodd-Frank instructed the Government Accountability Office to study “providing incentives to credit rating agencies to improve the credit rating process” and report back within 18 months. The law also instructed the Securities and Exchange Commission to study “strengthening credit rating agency independence” and report back within three years. The GAO issued a report 18 months later, laying out a number of options; it has gathered dust ever since. And the SEC? Well, don’t get me started. Amazingly, the rating agencies are still compensated as they were on the day Lehman Brothers crashed.

4. Proprietary trading. The Volcker rule, part of Dodd-Frank, bans proprietary trading by banks, to prevent them from gambling with FDIC-insured funds. President Obama embraced (and named) the rule very late in the legislative game, over the objections, according to multiple press reports, of his chief economic adviser at the time, Lawrence Summers.

The Volcker rule is not the only way to accomplish Paul Volcker’s worthy objective. The United Kingdom and the European Union, for example, have proposed different means to the same end. But the Volcker rule is the law of the land here.

Sort of. In practice, the rule is hortatory until detailed regulations are written and promulgated. Dodd-Frank was signed into law in July 2010. The Volcker rule has been tied up ever since by internal bureaucratic squabbles and external pressure from the banking industry.

In sum, the Dodd-Frank Act is taking on water fast. What can be done to help Americans remember the horrors that led to its passage?

Here’s one step. Mr. Obama will soon nominate a new chair of the Federal Reserve Board. The Fed chief is not a regulatory czar, but she or he is primus inter pares among the nation’s financial regulators. The Fed’s next chair can set a new, more determined tone going forward—or not. So it is vital that she or he be prepared to move bureaucratic mountains and fend off hordes of lobbyists opposing financial reform, not to bleed sympathy for Wall Street.

Obviously, these are just some of the many ineffective tools used to regulate the banks. The reality is that the “too-big-to-fail” banks are bigger than ever, with more power than ever. I find it repugnant. It is one thing to run a great business and grow to a large size (i.e. Microsoft). If you recall, Microsoft faced incredible challenges from the Department of Justice as a monopoly. The banks, on the other hand, were effectively rewarded for their failures via bailouts and other benefits that are too numerous to mention in this particular blog post.

— Scott Weitz

The original article, authored by The Wall Street Journal contributor Alan S. Blinder, can be found at www.wsj.com. Mr. Blinder serves at Princeton University as the Gordon S. Rentschler Memorial Professor of Economics and Public Affairs in the Economics Department, and Vice Chairman of The Observatory Group.

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