July 21, 2011
Dodd-Frank @1: Screwing Joe The “Plummer”
Posted by Kim Krawiec

In my last post, I was discussing the public comments on the Volcker Rule, specifically Table 3, included again in this post, which shows the breakdown of comments by word count, and Chart 1, which displays this information graphically, showing the distribution of word count by: private individual not using the PC form (in red), private individuals using the form (in blue), and all others (in green). 

Chart 1-1

As noted, the spike at comments of less than 50 words are all (with one exception) letters from private individuals.  As you might expect in a comment of less than 50 words, these are short, non-substantive, and provide no meaningful guidance or relevant information to regulators, beyond the fact that members of the public continue to be angry about the financial institution bailouts.

Table 3 To illustrate, the shortest comment received by FSOC, from a member of the general public, is only a single word: “regulate!” In contrast, the longest comment, received from SIFMA (the Securities Industry and Financial Markets Association) measures 19,500 words and advises FSOC that:

the key definitions in this [the hedge and private equity] portion[s] of the Volcker Rule are generally overbroad: they sweep in entities and vehicles that Congress never intended to be treated as hedge funds or private equity funds and which Congress expected the implementing agencies to exclude from the general definition through the exercise of their regulatory discretion.

In between these two extremes lie the comments to the right end of Chart 1, nearly all of them from industry (or the occasional public interest group, think tank, or academic).  These industry and trade group comments are lengthy, contain cogent arguments on behalf of a generally narrow interpretation of the Volcker Rule’s scope of prohibited activity, advance detailed legal arguments relying on numerous statutes and cases, reference the Dodd-Frank legislative history, and often contain detailed empirical data. 

In contrast, comments from the general public tend to be short (the average word count, excluding the PC form letters, is 86), lack specific suggestions or recommendations for interpreting and implementing the Volcker Rule, generally urge that the rule be “enforced” or “adopted,” and express anger over bank risk-taking and the resulting bailouts that followed.  One letter, stating “Reinstate the Volcker Rule!” is typical.  Others are amusing. 

Said one:

in regards to the Volker Rule, just how stupid do you think the working class is? we just passed the two bills of financial reform and here, not even 3 months later, you big banks are at it again to screw joe the plummer.

Said another: “Being the crooks you are you will ignore this.” And finally, one of my favorites:

I support the Volker Rule. I also support a Barney Frank rule which states that congressmen and senators should make no law or rule or provision what states that every citizen the United States has a right to have a home.  . . .  PS - I still cannot believe that he won re-election. Cannot believe people are that stupid. Regards, Frank

To put all of this into context, the Volcker rule comment process was, in many ways, an astonishing campaign victory for public interest groups generally and Public Citizen, particularly.  This display of private individual interest in the Volcker Rule – a rather arcane and technical piece of legislation – is somewhat astonishing.  Unlike consumer protection or executive compensation, proprietary trading and hedge fund investments by banks are not sexy topics, even post-crisis.  The average consumer likely has no idea what proprietary trading is, much less what sorts of risks it might pose to the financial system. 

At the same time, however, this series of posts aims to illustrate how, even under these favorable circumstances, it is optimistic to think that such public-interested efforts can counterbalance the extraordinary influence and lobbying power that affected financial institutions are bringing to bear on important issues of financial reform, such as those embodied in the Volcker Rule.  There’s too much at stake for industry, and they have the money, the information, and power. 

In my next post, I’ll discuss the next phase in the Volcker Rule gap-filling game: the agency meeting logs. 

Related Posts:

Dodd-Frank @ 1: Volcker Rule By The Numbers

Dodd-Frank @1: The Volcker Public Comments


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Dodd-Frank @1: The Volcker Public Comments
Posted by Kim Krawiec

Table 1 As I mentioned in my prior post, I’ll be using the Volcker Rule as a case study to demonstrate that an important critique of Dodd-Frank – the extent to which it leaves core substantive definitional work to regulatory agencies -- is a legitimate worry of the statute’s critics.  This analysis paints a picture of robust industry representation in the rulemaking process and progressively less public involvement in and attention to the Volcker Rule as the action moved from the legislature, to the initial call for public comments, to the more in-depth face time with regulators. 

Let’s begin with the public comment letters. The newly formed Financial Stability Oversight Counsel’s first action was a request for public comments on the Volcker Rule, after which it received over 8000 comments – at first blush, an extraordinary display of public interest in a fairly technical piece of financial reform legislation. 

Table 2 But, “wait!” you might say.  “I thought you just said that the public didn’t care about Volcker implementation and that’s why Congress may have left the legislation vague to begin with!  This is exactly the type of academic double talk I can’t stand!” 

Let me explain.  The FSOC concluded that, of these 8000 comment letters, roughly 6,550 “were substantially the same letter arguing for strong implementation of the Volcker Rule.” The FSOC gave no further information about these letters and did not make them publicly available. But, based on our analysis of the remaining comment letters (which I’ll get to in just a moment) we believe that the 6,550 identical letters are the result of a Public Citizen (PC) action campaign, which provided a form letter urging the prompt implementation of the Volcker Rule and the closing of any loopholes.

Table 3 We analyzed and hand coded the remaining roughly 1,450 comment letters.  The FSOC concluded that these “remaining 1,450 comments each set forth individual perspectives from financial services market participants, Congress, and the public.”  Nothing could be further from the truth.  Tables 1-3 provide some very preliminary summary statistics on these comments. Click on any image to enlarge. [Caveat: We crunched to get these out for the Dodd-Frank anniversary, so they’ll need some clean-up and correction. But the general pattern should hold.]

First, we excluded duplicate postings by FSOC, leaving us with a total of 1374 comments.  Of these, as detailed in Table 1, 1281, or 93%, were submitted by private individuals.  The remainder was submitted primarily by industry members and trade groups, along with a small number of submissions from public interest groups, think tanks, academics, and congressional members. Again, at first blush, these numbers seem to confirm an extraordinary public interest in the Volcker Rule – the raw number of private individual comments dwarfs the comments submitted by all other categories of actors combined, including industry actors.

Yet, let us break down further these 1281 letters submitted by private individuals, as shown in Table 2.  Of these, 766 use the same PC form letter, with some slight variations, as the other 6,550 identical letters that the FSOC did not post.  Because many of these letters include some opening anecdote or concluding thoughts – such as a personal travail arising from the financial crisis –or, in some instances, use only a portion of the form (typically, the demands), these comments were not all identical.  Therefore, they escaped whatever recognition software or rough exclusion methods FSOC used. Yet, they are the same – nearly identical -- substantive letter.  Thus, of the 8000 letters received by FSOC on Volcker, 7316 (or 91%) are an identical form letter.


Let us now examine the remaining 515 comments submitted by private individuals that were not traceable to the PC form letter and compare them to letters from other groups.  Table 3 shows the breakdown of comments from some of these groups by word count and evidences several patterns of interest.  Chart 1 displays this information graphically, showing the distribution of word count by: private individual not using the PC form, private individuals using the form, and all others. 

There are three spikes in the data, at less than 50 words, at 200-249 words, and at 250-299 words (note the larger bin size in the far right bar, representing comments with 800 words or more).  The spikes at 200-249 words and 250-299 words represent the PC form letter and its slight variations, discussed above (in it’s original form that letter is 244 words.) 

The spike at comments of less than 50 words are all (with one exception) letters from private individuals, represented in red on Chart 1.  As you might expect in a comment of less than 50 words, these are typically short, non-substantive, and provide no meaningful guidance or relevant information to regulators, beyond the fact that members of the public continue to be angry about the financial institution bailouts.

In my next post, I’ll briefly compare the content of some these comments.


Related Posts:

Dodd-Frank @ 1: Volcker Rule By The Numbers


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Dodd-Frank @ 1: The CFPB Fight
Posted by Brett McDonnell

An invevitable part of financial regulation during a crisis is the backlash.  At some point once things return to normal, normal politics re-assert themselves, and the financial industry fights to cut back on crisis regulation.  We all knew it would happen.  What I didn't quite expect was how quick and ferocious the backlash would be.  A key struggle has been the Consumer Financial Protection Bureau (CFPB).  Republican senators have pledged to oppose all CFPB Director nominees unless three changes are made to the law.  This is yet one more example of the dubious use of procedure, in this case the power to filibuster nominations (a dubious power--the Senate should eliminate it), to gum up the process of governing until the minority gets what it wants.  Some significant power to minorities is a critical protection, but too much leads to gridlock, and we passed the too much point some time ago.  Giving in to hostage-taking is dangerous, and I don't like to encourage it.  But when I went to look more closely at the three conditions the Republican Senators are demanding, I found to my surprise that I could live with at least some of them.

The first and probably biggest demand is that the CFPB be headed by a five-person Commission rather than a single Director.  Consumer activists are unhappy with this.  They have visions of Elizabeth Warren imposing her compelling vision at the head of a powerful agency.  Heady stuff, but it is time to set those visions aside.  A commission is more clumsy and subject to political infighting, but it also yields useful diversity of viewpoints and can provide a counterweight to over (or under) regulation.  It may also diffuse the attention being focused on the nomination of one Director.  And consumer activists should start thinking about the CFPB after a Republican President and Senate are in power--it may well happen as soon as Jan. 20, 2013.  Two minority Democratic commissioners would look pretty attractive in those circumstances.  This is on balance a useful change, and at any rate one consumer activists should be willing to live with as a condition for getting the CFPB up and running.

The second condition is to remove the CFPB's independent funding and subject it to the Congressional appropriations process.  I'm much more skeptical about this.  Yes, accountability is a value, but there are other accountability mechanisms already in place, and agency independence is a major value too, especially for an agency that's meant to advance the interests of consumers.  The politics of regulatory capture make that a hard task; independent funding reduces somewhat the pressures favoring industry capture.  I think the President should fight this proposal.  But, should that prove impossible, and given the genuine value of accountability, perhaps some compromise would be possible without undermining independence too much.  Consider, for instance, an arrangement like this:  if the Fed Board disapproves strongly enough of the CFPB's budget request (currently the CFPB gets to set its funding up to a certain percentage of the Fed's budget), the Fed could submit a proposal for a lower amount.  If both branches of Congress and the President approved, that's what the CFPB would get; otherwise, it would receive the amount it requested.  Thus, the CFPB's level could be lowered only if all four of the Fed, House, Senate, and President agreed it was too high--a pretty stringent requirement, maintaining a real degree of independence while increasing accountability somewhat.

The third condition would strengthen the ability of other regulators to block CFPB rules.  Dodd-Frank already allows the Financial Stability Oversight Council (FSOC) to veto a new CFPB rule on a 2/3 vote if the FSOC determines that the rule "would put the safety and soundness of the United States banking system or the stability of the financial system of the United States at risk."  A Republican bill, H.R. 1315, would reduce the vote for a veto to a simple majority, and would lessen the standard to a determination that the rule "is inconsistent with the safe and sound operations of United States financial institutions."  The existing rules probably already go too far in giving financial regulators, too often dominated by the industry, power to limit the CFPB.  The Republican proposal increases that power, so I'm not happy with it.  Then again, I'm not sure the difference between 1/2 and 2/3 or between the two vague statutory standards is worth fighting over.

So although I hate to suggest it, I do think there's the basis for a compromise here, assuming of course that Democrats could get a firm commitment to approval of a slate of commissioners to get the CFPB up and running.  I'm actually somewhat ambivalent about the CPFB--as I discuss in my Don't Panic overview of Dodd-Frank, I do think there's a real risk it may over-regulate.  But I think benefits from having a strong pro-consumer voice at the regulatory table outweigh those risks.  It's looking like that pro-consumer voice will be a lot less strong than I had hoped.  Still, even if a compromise version of some of the proposed changes comes to pass, better a weak voice than no voice at all.

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Dodd-Frank@1: What to Say about Say on Pay?
Posted by Lisa Fairfax

Last year Dodd-Frank's say on pay rules sparked considerable debate.  At least one poll revealed that 85% of shareholders supported say on pay, while 95% of directors opposed it.  Investors hoped such rules would finally give them a chance to curb excessive compensation awards and better align pay with performance.  Criticswere not only skeptical about the rules' ability to influence pay packages, but also feared that the rules would have distinctly negative repercussions such as forcing companies to adopt ill-conceived pay practices or otherwise sparking costly litigation.   So what have we learned about say on pay thus far?   

It has only been since January of this year that most public companies have been subject to the SEC's say on pay rules, adopted pursuant to Dodd-Frank.  As a result, there is not a lot of data out there from which we can draw conclusions.  However, there have been a few interesting developments--though it is not clear what they tell us about the impact of say on pay.

First, empirical evidence indicates that shareholders have rejected pay packages at less than 2% of companies at which votes were taken.  Indeed, more than two-thirds of companies received a favorable vote of 90% or more.  At least one commentator characterized shareholders' rate of rejection as a "bust," presumably because it suggest that shareholders arenot using their votes to challenge company's compensation practices.  On the other hand, to the extent at least one goal of the say on pay rules was to prompt dialogue around compensation practices and thus avoid negative votes, perhaps that rate suggest enhanced dialogue between shareholders and directors.  Of course it is too soon to tell the more important question--whether the rules or the negative votes have any impact on compensation.

Second, shareholders have been more willing to reject say on frequency recommendations.  Existing data shows that early on in the proxy season it became clear that while 60% of boards favored triennial say on pay votes, most shareholders favored annual pay votes and were not shy in rejecting recommendations for triennial votes.  As a result of this trend, more companies began recommending annual say on pay votes.  As this data reveals, for better or worse, shareholders clearly want to be able to have a voice in compensation decisions every year.  The data also reveals that corporations are watching the voting trends in this area and adjusting their policies accordingly.

Third, while companies are not required to disclose whether and to what extent they have factored vote results into their compensation decisions until next year's proxy statement, there are some that already have indicated their intent to alter their practices to address shareholder concerns, and engage in greater dialogue with shareholders,suggesting that companies are not simply ignoring the vote (or at least they are not saying that they are ignoring the vote).

Fourth, as some predicted, negative say on pay votes have triggered litigation.  There are at least seven lawsuits that have been filed after a negative say on pay vote.  The lawsuits have similar allegations against directors and officers of breach of the duty of loyalty, waste, and unjust enrichment.  They also include aiding and abetting claims against the company's executive compensation consultants.  While one should never predict what courts will do, it is hard to imagine that these suits will have any traction, particularly given (a) the relative deference courts give to compensation decisions, and (b) that Dodd-Frank specifically states that the say on pay rules are not intended to create or imply any changes or additions to directors' fiduciary duties.  Interestingly, shareholders have sought to use the negative say on pay vote as evidence that the board failed to act in the best interests of the company, thereby rebutting the presumption of the business judgment rule and excusing demand.  If a negative say on pay vote could be interpreted as enabling shareholders to avoid a pre-suit demand, such a vote would have important procedural ramifications for derviative suits--at the very least prolonging them.  Of course, the court in the KeyCorp litigation appears to have rejected this pre-suit demand argument, thus forcing shareholders to make demand on the board.  Nevertheless, that suit ended in a settlement where the corporation agreed to changes in its compensation practices.  Hence, in the end, such a suit does appear to have ramifications for the board's pay practices.

Alas, as I noted at the outset, it is really too soon to tell what this all means.  Perhaps in year two we will be able to draw some (albeit tentative) assessments regarding the say on pay rules, but it is still an interesting trend to watch.

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Dodd-Frank @ 1: Volcker Rule By The Numbers
Posted by Kim Krawiec

A year ago, during the first Conglomerate Masters Forum on Dodd-Frank, many of the commenters, including me, were critical of the legislation.  I was not alone in my complaints that Dodd-Frank left too many important details of the legislation to be filled in over the coming years by regulators. In fact, the media and commentators had already invoked public choice critiques of Dodd-Frank.  Many were particularly worried that the filling in of important details left open by the legislation would take place outside of the public glare that accompanied the congressional deliberations on the statute and provided the large Wall Street firms with another opportunity to shape the final law in their favor.  This potential was heightened as memories of the financial crisis faded and the general public -- temporarily galvanized by massive financial institution bailouts into an interest in the normally-arcane topics of credit derivatives, systemic risk, and moral hazard -- turned their attention to other political issues. 

An examination of theory and evidence confirms that these fears were not misplaced.  Over the next few posts, I’ll use section 619 of the Dodd-Frank Act, popularly known as the “Volcker Rule,” as a case study to illustrate these points.  I had hoped to be able to post a paper to SSRN detailing this data by now, but alas, I am too slow.  But I’ll include in these posts a first cut of the data I’ve collected on this, with the assistance of three excellent Duke law students, Nilesh Khatri, Daniel Luna, and Robert Blaney, who have spent all summer reading public comment letters and federal agency meeting logs, rather than hanging out at the beach.  Special kudos to Nilesh for his creation of spreadsheets that even I can’t mess up.

Subject to important exceptions, the Volcker Rule prohibits “banking entities” from engaging in proprietary trading and from “acquiring or retaining any equity, partnership, or other ownership interest in or sponsor[ing] a hedge fund or a private equity fund.” Both parts of the rule – the ban on proprietary trading and the restrictions on fund investment and sponsorship – are subject to substantial ambiguities that will require agency definition and rulemaking.

On the public choice critique, let me start with the theory.  The political conditions surrounding the passage of Dodd-Frank were ripe for what might be termed a “responsibility-shifting delegation.” Due to negative public sentiment surrounding the financial crisis and the pubic anger over the bank bailouts that accompanied it, bank risk taking – an issue of traditionally low public salience – was temporarily transformed into an issue about which the public cared deeply, yet had little expertise or knowledge by which to judge the success of legislative outcomes. There was thus substantial public interest in the legislative process surrounding the Volcker Rule, including the various accommodations and concessions necessary to gain the votes for Dodd-Frank passage.  Both the public and the press followed these developments closely, and expressed frequent concern, even outrage, at signs that the financial industry might escape the consequences of its role in precipitating the financial crisis.

Yet, these same facts suggest that lawmakers may have found it politically advantageous to delegate to agencies the authority to fill statutory gaps and ambiguities in the Volcker rule, rather than legislating with specificity these highly complex and contested provisions. The Volcker rule thus promised Congress the possibility of claiming credit for meaningful financial reform through public-interest rhetoric about preventing banks from gambling with public money, while providing the banking industry a second chance at escaping the most onerous restrictions of the Rule through successful lobbying during the rule-making process. 

My remaining posts will focus on the evidence. As feared by many Dodd-Frank critics, that evidence suggests that the powerful interest groups most affected by the Volcker Rule did not waste the additional opportunities provided by the provision’s important gaps and ambiguities. Instead, as evidenced by both pubic comment letters and meeting logs, they actively lobbied agencies to adopt favorable definitions, interpretations, and exemptions.

This evidence also demonstrates a corresponding waning of public attention to and interest in the Volcker rule once the action moved to the regulatory agencies. Despite initial indications that the public interest in bank risk-taking survived into the crucial regulatory rule-making phase, a closer look reveals that these signs are misleading. Contrary to first impressions, the Volcker rule did not galvanize the public into an involvement in the gap-filling process, despite notable efforts from some public interest groups. 

In my next post, I’ll be back with much more, starting with a detailed analysis of the nearly 8000 public comment letters received by the FSOC on Volcker.


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Dodd-Frank@1: A cast of law professors weighs in at the first anniversary
Posted by Erik Gerding

The Dodd-Frank Act turns one today.  To mark the first anniversary of the Dodd-Frank Act, we will be hosting an online forum today and tomorrow on the statute and the regulatory projects it required. We have invited a large cast of law professors both from the current line-up of Masters, as well as the Masters from last year who participated in a forum at this blog one year ago when the Act was passed.

To mangle an Ed Koch quote: "How's it doing?"  

The first anniversary triggers a raft of statutory provisions going into effect.  For example, the Consumer Financial Protection Bureau today receives authority to enforce numerous consumer financial protection statutes.  The anniversary also marks the deadline for various rulemakings required by the Act.  It is fair to say that many rulemakings have suffered delays - minor and severe.  The delays can be attributed to multiple causes: the logjam as federal agencies struggle to churn out the sheer volume of regulations and studies that the statute requires, a desire to get tricky rules right and to mesh with one another, and resistance from some quarters of the financial industry, Congress and the federal bureaucracy itself.

The anniversary provides an opportunity to take stock of financial reform.  How have the myriad individual regulatory inititative fared?  It is high time for legal scholars to delve into the granular details of specific rules as opposed to pure "big picture."  What has worked well?  What has not? 

Aside from the substance of these rules, what does the course of rulemaking suggest about the administrative process, the legislative process, and the interactions of the two.  Taking a step back, what problems has the statute failed to address?  How should we assess efforts at Basel and elsewhere to coordinate regulation across borders?  What can we learn from European reform efforts?  The metastasizing sovereign crisis in Europe suggests that the financial crisis may not be over.  What new threats loom on the horizon in both the short and long run?  Most bluntly, what keeps our panelists up at night?

We academics also have a primal urge to advocate tearing down and starting over again.  That is, to be understated, not likely.  Where are the key pivot points that could dramatically improve or detract from reform?

Let's get going. 

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