In President Obama's second term, financial regulation would finally appear to have the leverage.
Wall Street spent zillions on Mitt Romney, who had promised to roll back financial reform, and lost. Elizabeth Warren now sits in the world's greatest deliberative body. With the election behind us, regulators are likely to be less intimidated by the specter of being hauled in front of Congress and yelled at, especially by House Republicans.
Already, the Obama administration has been moving to install tougher regulators than it had in the early part of its tenure. The early first-term financial regulatory heads were either conciliators or place holders. Mary L. Schapiro had to reinvigorate a Securities and Exchange Commission that was demoralized from its failures to catch Bernard L. Madoff and to foresee the financial crisis. Treasury Secretary Timothy F. Geithner had to deal with the 2008 crisis and its aftermath, and sidelined banking accountability. Others — like John G. Walsh, who was the acting comptroller of the currency, and Edward DeMarco, who is the acting director of the Federal Housing Finance Agency — have been perceived by reformers as active roadblocks.
The second-generation appointees, like the Consumer Financial Protection Bureau's Richard Cordray and the new comptroller of the currency, Thomas J. Curry, actually evince a desire to regulate.
What's more, the pace of regulation should accelerate. Regulators have been slow-walking the Dodd-Frank overhaul. Only a third of the rules have been finalized — and worse, a third haven't even been proposed, according to the law firm Davis Polk & Wardwell. And it got only worse as we approached the election, because nothing is more abominable to Washington regulators than to become an election issue. If a decision could be ducked or a rule delayed, they did it. At that pace, financial reform would have been completed sometime in the second term of the Sasha Obama administration.
Surely, reformers can now ride in and save the day, right?
Alas, no. While the rule making will speed up, the core problems with the financial system and its regulators are deeper than personnel and sadly impervious to which party occupies the White House. They are bipartisan and structural.
The examples of bipartisan cowardice and ineptitude are legion, but one of the most telling involves a particularly dispiriting disappointment of Ms. Schapiro's tenure at the S.E.C.: the failure to figure out a solution for money market funds, which are able to mask their risk under the current rules. It was a shared fumble, with a Democratic commissioner joining Republicans in proposing more study of the topic in order to issue a report calling for more study.
The structural issues go deeper. The Commodity Futures Trading Commission and the Securities and Exchange Commission still exist as two separate agencies, a huge missed opportunity for Dodd-Frank and one borne of politics. The C.F.T.C. is protected (and bashed) by the Senate Agriculture Committee, the S.E.C. by the Senate Banking Committee. Merging the agencies would mean that one of those committees would lose power, so forget about that. Gary Gensler, the head of the commodities commission, has been tough, but has been limited by his agency's paltry resources. And, anyway, these agencies are still run by commissions, not single heads, and they rely on Congress for their financing. It's little surprise that such a structure creates plodding impotence.
"One of the biggest weaknesses of Dodd Frank is that we failed to look long and hard at true independence of regulators," a frustrated and regretful Senate staff member, who worked on the legislation, told me the other day.
This failure plays out in almost comical ways. The market for credit default swaps, a common derivative, is unified in the business world, but its regulation is split between the C.F.T.C. and the S.E.C. The solution was to let the C.F.T.C. oversee swap indexes of 10 or more components, with the S.E.C. regulating trades in single company swaps and — get this — indexes with up to nine components. In the real world, traders go long (or short) indexes of credit default swaps and hedge with the individual names or vice versa. So, how's that supposed to be overseen? When one agency looks over one half of the trade, the other regulators are mandated to close their eyes, put their hands over their ears and say, "La la la la la la la"? Don't worry: The regulators are hard at work jury-rigging a fix as I write this.
Or take the Volcker Rule, one of the most prominent symbols of the financial overhaul. The rule, which was intended to prevent banks from speculating with money backed by taxpayers, still has not been finalized almost two and a half years after Dodd Frank passed. It's the subject of multiple-agency negotiations, which are going about as well as that phrase would suggest. Representative Barney Frank, Democrat of Massachusetts, had called on the regulators to finish up by Labor Day. That came and went. Senators Carl Levin, Democrat of Michigan, and Jeff Merkley, Democrat of Oregon, the authors of the provision, fired off a letter a few weeks ago, urging the regulators to finish their work.
Now, it would be good if regulators were assiduously working to radically simplify the rule, which is a bloated monstrosity filled with loopholes and exemptions. But they aren't. Instead, they're squabbling over petty turf issues.
In "Bleak House," Dickens wrote of a legal case: "This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means." Today, he would set the novel in Congress. Dodd Frank is so sweeping in scope yet so picayune in application that it will be close to impossible for the public to tell whether it's making a difference.
No second term can alter that.
