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Wall Street's lawfare strategy against regulation Wall Street's lawfare strategy against regulation
(4 months later)
Last week, in a Washington, DC courtroom, a whole bunch of powerful people gathered with a common purpose: to try to kill the Dodd-Frank financial reform act.Last week, in a Washington, DC courtroom, a whole bunch of powerful people gathered with a common purpose: to try to kill the Dodd-Frank financial reform act.
That quest may seem a bit overdone, given the already weakened state of the attempt at financial regulation – like taking a hammer to a housefly.That quest may seem a bit overdone, given the already weakened state of the attempt at financial regulation – like taking a hammer to a housefly.
Still, a phalanx of injured parties – 11 states, two groups dedicated to conservative economic agendas and one Texas state bank – argued that Dodd-Frank is unconstitutional.Still, a phalanx of injured parties – 11 states, two groups dedicated to conservative economic agendas and one Texas state bank – argued that Dodd-Frank is unconstitutional.
Their complaints all center around the part of Dodd-Frank that wants to solve the problem of "too big to fail" by allowing regulators to manage the bankruptcy of big banks. The idea of this affront to capitalism makes the people behind the lawsuit sputter – in a way that, strangely, they never do at the prospect of the government having to step in and save banks with multibillion-dollar bailouts. Among their complaints is that: the law forces banks to bow to the authority of the US Treasury; it interferes with state securities regulators; and it imposes high costs of complying with the law on small banks, as well as the larger ones that can afford it.Their complaints all center around the part of Dodd-Frank that wants to solve the problem of "too big to fail" by allowing regulators to manage the bankruptcy of big banks. The idea of this affront to capitalism makes the people behind the lawsuit sputter – in a way that, strangely, they never do at the prospect of the government having to step in and save banks with multibillion-dollar bailouts. Among their complaints is that: the law forces banks to bow to the authority of the US Treasury; it interferes with state securities regulators; and it imposes high costs of complying with the law on small banks, as well as the larger ones that can afford it.
The lawsuit also argued that banks should, in effect, be allowed to remain too big to fail because it is unconstitutional to give the US Treasury the power to wind them down: it argues that Dodd-Frank "empowers the Treasury Secretary to order the liquidation of a financial company with little or no advance warning, under cover of mandatory secrecy, and without either useful statutory guidance or meaningful legislative, executive or judicial oversight."The lawsuit also argued that banks should, in effect, be allowed to remain too big to fail because it is unconstitutional to give the US Treasury the power to wind them down: it argues that Dodd-Frank "empowers the Treasury Secretary to order the liquidation of a financial company with little or no advance warning, under cover of mandatory secrecy, and without either useful statutory guidance or meaningful legislative, executive or judicial oversight."
The depth of the outrage from Wall Street and its legislative nursemaids is amusing sometimes, in that it is entirely out of scale with the weakness and uselessness of the law they're attacking.The depth of the outrage from Wall Street and its legislative nursemaids is amusing sometimes, in that it is entirely out of scale with the weakness and uselessness of the law they're attacking.
In joining the lawsuit, the state of Georgia exaggeratedly denounced the law – as mortifying a stab at regulation as ever existed – as "the federal takeover of the financial industry". Or consider this:In joining the lawsuit, the state of Georgia exaggeratedly denounced the law – as mortifying a stab at regulation as ever existed – as "the federal takeover of the financial industry". Or consider this:
"The law's Title II gives the Treasury secretary and the Federal Deposit Insurance Corp unprecedented authority to 'liquidate' financial companies. This grants immense power to a handful of unelected federal bureaucrats, empowering them to pick winners and losers among a liquidated company's investors.""The law's Title II gives the Treasury secretary and the Federal Deposit Insurance Corp unprecedented authority to 'liquidate' financial companies. This grants immense power to a handful of unelected federal bureaucrats, empowering them to pick winners and losers among a liquidated company's investors."
It's not really clear why elections matter here, when deciding how to save the financial system from destruction. It's entirely perplexing why "unelected federal bureaucrats" at the Treasury and FDIC – who, by the way, helped save the financial industry from itself in 2009 – are any worse than unelected traders or unelected bank executives. Maybe, it's related to the fact that federal bureaucrats who aren't elected also don't need to take campaign donations to get elected, and thus are beyond the reach of the financial industry's greenback seductions.It's not really clear why elections matter here, when deciding how to save the financial system from destruction. It's entirely perplexing why "unelected federal bureaucrats" at the Treasury and FDIC – who, by the way, helped save the financial industry from itself in 2009 – are any worse than unelected traders or unelected bank executives. Maybe, it's related to the fact that federal bureaucrats who aren't elected also don't need to take campaign donations to get elected, and thus are beyond the reach of the financial industry's greenback seductions.
It was the government's job to defend Dodd-Frank against this initial assault. According to the Washington Free Beacon, the government's response was to argue that the lawsuit shouldn't exist because it is "speculative" to claim that Dodd-Frank caused anyone any harm.It was the government's job to defend Dodd-Frank against this initial assault. According to the Washington Free Beacon, the government's response was to argue that the lawsuit shouldn't exist because it is "speculative" to claim that Dodd-Frank caused anyone any harm.
In other words, the same government that authored the sweeping regulations four years ago was forced to argue – all too correctly – "what financial reform?"In other words, the same government that authored the sweeping regulations four years ago was forced to argue – all too correctly – "what financial reform?"
In the end, the only surprising thing about the lawsuit against Dodd-Frank was that anyone had even bothered. Who are they fighting against? Almost everyone who supported aggressive financial reform has either been shouted down or left the field. Both Chris Dodd and Barney Frank have moved on to other things. Occupy Wall Street focused a magnifying glass on better financial regulation for what, in retrospect, was only a brief moment of emotional clarity and action. Paul Volcker – the brilliant author of the eponymous and likely doomed rule that will keep banks from investing for their own accounts – started an institute that will, in part, seek to teach Congress how to legislate on finance. Good luck with that, Mr Volcker.In the end, the only surprising thing about the lawsuit against Dodd-Frank was that anyone had even bothered. Who are they fighting against? Almost everyone who supported aggressive financial reform has either been shouted down or left the field. Both Chris Dodd and Barney Frank have moved on to other things. Occupy Wall Street focused a magnifying glass on better financial regulation for what, in retrospect, was only a brief moment of emotional clarity and action. Paul Volcker – the brilliant author of the eponymous and likely doomed rule that will keep banks from investing for their own accounts – started an institute that will, in part, seek to teach Congress how to legislate on finance. Good luck with that, Mr Volcker.
Subsequently, legislation has gone the way it always has: in favor of those with the money to influence it to their advantage.Subsequently, legislation has gone the way it always has: in favor of those with the money to influence it to their advantage.
Unlike the general populace, which has let any outrage go to seed, Wall Street has focused its anger. No one in finance is taking any chances. For years, Wall Street has been punching into financial reform using any tool at hand, whether it's public rhetoric, lobbying or the courts.Unlike the general populace, which has let any outrage go to seed, Wall Street has focused its anger. No one in finance is taking any chances. For years, Wall Street has been punching into financial reform using any tool at hand, whether it's public rhetoric, lobbying or the courts.
Lobbying has already weakened any attempt at regulating derivatives. For no apparent reason, the administration is rumored to have plans to oust a powerful, smart regulator at the Commodity Futures Trading Commission, which oversees complex Wall Street products including derivatives like the ones that contributed to the near-destruction of many banks in 2008. Not surprisingly, Wall Street has thrown several lawsuits at the CFTC in an attempt to weaken it.Lobbying has already weakened any attempt at regulating derivatives. For no apparent reason, the administration is rumored to have plans to oust a powerful, smart regulator at the Commodity Futures Trading Commission, which oversees complex Wall Street products including derivatives like the ones that contributed to the near-destruction of many banks in 2008. Not surprisingly, Wall Street has thrown several lawsuits at the CFTC in an attempt to weaken it.
The courts are, indeed, an increasingly popular option for Wall Street, perhaps because a litigation strategy forces their high-priced battalions of lawyers to do something to earn their exorbitant fees. Besides the "too big to fail" lawsuit, there has been a throng of what are essentially nuisance lawsuits against regulation. One – thankfully dismissed – opposed an anti-bribery rule. Another took umbrage at the fact that Dodd-Frank requires them to turn over too much trading information. One hard-fought suit concerned the ability of two powerful exchanges to charge more for their data about the markets. Yet another lawsuit prevented shareholders – owners of a company – from removing members of the board of directors.The courts are, indeed, an increasingly popular option for Wall Street, perhaps because a litigation strategy forces their high-priced battalions of lawyers to do something to earn their exorbitant fees. Besides the "too big to fail" lawsuit, there has been a throng of what are essentially nuisance lawsuits against regulation. One – thankfully dismissed – opposed an anti-bribery rule. Another took umbrage at the fact that Dodd-Frank requires them to turn over too much trading information. One hard-fought suit concerned the ability of two powerful exchanges to charge more for their data about the markets. Yet another lawsuit prevented shareholders – owners of a company – from removing members of the board of directors.
The path of these lawsuits is fairly predictable, for the most part. As the New York Times pointed out last year:The path of these lawsuits is fairly predictable, for the most part. As the New York Times pointed out last year:
"The court has tossed out [Securities and Exchange Commission] rules six times in seven years.""The court has tossed out [Securities and Exchange Commission] rules six times in seven years."
A Gallup poll recently found that 26% of people who answered its poll have "a great deal or quite a lot of confidence in banks". Their confidence is likely in the ability of banks to survive economic busts – but really, it should be in the industry's ability to avoid the consequences of its worst behavior.A Gallup poll recently found that 26% of people who answered its poll have "a great deal or quite a lot of confidence in banks". Their confidence is likely in the ability of banks to survive economic busts – but really, it should be in the industry's ability to avoid the consequences of its worst behavior.
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