Of the Dodd-Frank Act and Preparing for the Next Crisis

Last year Congress passed and President Obama signed into law the Dodd-Frank Act. As advertised, the Dodd-Frank Act was to restructure the entire financial system of the nation to ensure that we do not have another melt down of the economy, at least not one related to the financial system. With that promise, the Dodd-Frank Act set in motion an extensive program of federal government control of the banking and investment industries. Ever after, financial firms would be more responsible to bureaucracies in Washington than they would be to their own customers, but everything financial would be “safer.”

The Dodd-Frank Act is failing. In fact, judged by the most demanding measures possible, those set out by its framers in the Administration, it is an abject failure. And it is getting worse, not better, and it is making financial things worse, not better. A repeat of the troubles of 2007 through 2009 is becoming more likely rather than more remote.

A few days following enactment of Dodd-Frank, Treasury Secretary Timothy Geithner gave a speech at New York University’s Stern School of business in which he outlined six principles that would guide implementation of the new law. It is altogether fitting and proper that we should judge the success of the implementation by those six principles. Secretary Geithner challenged us to do so. He said, “You should hold us accountable for honoring them.” In a few days it will be ten months since President Obama signed the law in a formal White House ceremony. Let us examine progress of the last ten months by the standard of the six principles.

Principle One: Speed, moving as quickly as possible to bring clarity to the new rules of finance. The Dodd-Frank Act mandated an unprecedented program of new regulations that are so numerous and complex that describing them defies hyperbole. Estimates range between 250 and 500 new regulations to be promulgated. One of Washington’s prestigious financial law firms, Davis-Polk, noted by way of illustration that one of the agencies tasked with writing new regulations, the Commodity Futures Trading Commission (CFTC), normally has at most four regulations that it is working on at a time. At the end of December the CFTC had 31 regulations under work.

But starting regulations is not completing them. The Davis-Polk study noted that the law required 26 regulations to be completed in April 2011, but not a single deadline was met. Some 40 Dodd-Frank regulations are now behind schedule. That is not to criticize the regulators, who are cutting as many corners as possible to meet the deadlines. It illustrates how impossible it is to implement Dodd-Frank as mandated.

Principle Two: Full transparency and disclosure, with the regulatory agencies consulting broadly as they write new rules. Compliance with this principle is even worse than the speed test. In fact, in a vain effort to meet the unrealistic deadlines of the Dodd-Frank Act, regulators are shortening comment periods, consulting with each other as little as possible, and in general trusting to their own hasty judgment far too much. One agency head remarked to a banker group that the agency leadership did not need to have long discussions with the public; they have been thinking about the issues and already know what they want to do.

Principle Three: Avoid layering of new rules on top of old, outdated ones, eliminating rules that do not work, and wherever possible streamlining and simplifying. Barbara Rehm, a financial reporter with the independent trade newspaper American Banker, recently observed, “None of the numerous people interviewed could name a single rule that has been repealed or simplified.”

Principle Four: Avoid risking killing freedom of innovation, striving to achieve a careful balance, safeguarding freedom and competition. Since enactment of the Dodd-Frank Act there has been no innovation in the financial services industry, as businessmen do not know what they will be allowed to do and what will be banned once the Act is implemented. Actually, it is worse. The best minds in financial firms have been focused on how to meet the needs of the regulators rather than on how to meet the needs of their customers, and the only competition is among the regulators over who can be “tougher” on the financial industry.

Principle Five: Make sure that we have a more level playing field, both between banks and non-banks as well as with regard to America’s foreign competitors. In this category the talk and promises are extensive and good. So far there are no results. In fact, foreign regulators are quietly backing away from copying the regulatory excesses of the Dodd-Frank Act, positioning American firms to surrender the global financial leadership that they have built up over the last 100 years.

Principle Six: Actually, Secretary Geithner provided a bonus, squeezing two parts into this last standard. Part One: Have more order and coordination in the regulatory process so that regulatory agencies are working together, not against each other. Coordination among the regulators is haphazard at best, with plenty of agency competition in evidence. The new Orwellian Bureau of Consumer Financial Protection has not even been set up, and the other regulators are already competing with it to show who can be more punitive on financial firms in the name of helping their customers. Even the States are joining in, with various state attorneys general pressuring banks to cough up $20 billion to some kind of fund to be used by officers of the Obama Administration to help the fortunate troubled homeowners of their choice.

Principle Six, Part Two: Conduct a careful assessment of costs and benefits of the burdens involved with the regulations. Cost/benefit analyses have been cursory at best but more often non-existent. The inspector general of the CFTC recently chastised his agency for ignoring meaningful inquiry into the cost of its proposed regulations. Ten Republican legislators, troubled by this neglect, sent a letter to all the financial regulators asking for their cost/benefit analyses. There has been no reply.

Ten months into the implementation process, how must we judge the Dodd-Frank Act? Holding Secretary Geithner and the Obama Administration to their own standards, it is hard to avoid a conclusion of complete failure. This is no surprise to those of us who criticized the whole premise of the Dodd-Frank Act, that the government failures that brought on the financial crisis could be resolved by increasing the role of government. So far government is failing in the regulatory implementation crisis created by the Dodd-Frank Act. Do not look to government to be ready to respond to the next financial crisis when that arrives, especially if the confusion of the Dodd-Frank Act helps to hasten that day.