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Nearly Three Years After Dodd-Frank, Reforms Happen Slowly
Originally published on Wed May 8, 2013 12:06 pm
On July 21, 2010, President Obama signed into law the Wall Street Reform and Consumer Protection Act, commonly known as the Dodd-Frank bill. Reporter Gary Rivlin says "the passage of Dodd-Frank was something of a miracle." But to the chief lobbyist for the Financial Services Roundtable, a lobbying group that represents 100 of the country's largest financial institutions, it was just "halftime."
Rivlin is an investigative reporting fellow at The Nation Institute. In his article "How Wall Street Defanged Dodd-Frank," he tells the story of what he calls the fight that has taken place "in the back rooms of the bureaucracy." He tells Fresh Air's Dave Davies, "You've got regulatory lawyers and lobbyists doing hand-to-hand combat over every comma, every clause in the rule-making process. And then finally if a rule makes it, if in fact it's put into law, then you've got the legal challenge." Rivlin reports that the financial industry has spent more than $1 billion on hundreds of lobbyists who have been working to chip away at Dodd-Frank in the three years since its passage.
"It's a long and arduous process that just adds months and months," Rivlin says, "and so even though we're nearly three years out from Dodd-Frank, of those 398 rules requiring action by a regulator, only about 148 of them ... have been finalized, in large part because we've created a process in Washington that has openness and fairness. But if you have mighty forces that have these battalions, they're able to really choke the process and slow it down."
So, as Davies asks Rivlin, "Is the financial system any less vulnerable to a crash than it was in 2008?"
Rivlin's answer is "No."
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. In July 2010, Congress passed the Wall Street Reform and Consumer Protection Act, known more commonly as the Dodd-Frank Bill for its sponsors Senator Christopher Dodd and Representative Barney Frank. The 800-page bill was the product of nearly two years of intense lobbying and debate and was intended to curb practices in the financial system that led to the crisis of 2008.
President Obama praised the measure as the toughest financial reform since the changes made after the Great Depression. But nearly three years after the passage of Dodd-Frank, most of the reforms in the bill have not been implement. Our guest, investigative journalist Gary Rivlin, writes that since the passage of Dodd-Frank, banks and other financial institutions have employed an army of lobbyists and lawyers to contest, weaken, delay and litigate rules that federal regulators are crafting to put the law into effect.
Gary Rivlin is an investigative reporting fellow at The Nation Institute. His article, "How Wall Street Defanged Dodd-Frank," appears in the May 20th issue of The Nation. He spoke with FRESH AIR contributor Dave Davies.
DAVE DAVIES, HOST:
Well Gary Rivlin, welcome back to FRESH AIR. Now you've looked into all the lobbying that's gone into the implementation of the Dodd-Frank Bill. But let's begin with something simpler than that. We're used to thinking of lobbying as focusing on the passage of legislation. Why such a huge effort after the bill has passed, two years after the bill passed?
GARY RIVLIN: Almost three years. It's - you know, there's kind of the Schoolhouse Rock version of how a bill becomes a law, and we all know that's largely a fiction. It's a much more complicated process than that. But there's the other half o the story, which is what I really wanted to tell, which I call the unmaking of Dodd-Frank.
I mean the passage of Dodd-Frank was something of a miracle. Despite 3,000 lobbyists, that's six, nearly six lobbyists for every miracle of Congress, the bill passed, and it was actually a pretty strong bill. But it turns out that that was only part of the fight, that it's no longer good enough just to have Congress pass a law and a president sign into law, that, you know, suddenly there's a second half to the fight.
DAVIES: And what's the second half?
RIVLIN: It's multi-pronged. You return to Congress and see if you can pick off little pieces of the bill by introducing legislation and getting that passed. A lot of the responsibility for Dodd-Frank and in fact the enforcement of Dodd-Frank, stands with the various regulatory bodies in D.C. And so there's another fight to defund, to underfund those regulatory bodies so they can't do their work.
A lot of this fight takes place in the backrooms of the bureaucracy. Dodd-Frank isn't really a set of rules so much as a commandment to these regulatory bodies to write regulations that implement the wishes of Congress. And so what you're seeing happening all over Washington, D.C., it's been happening since the day Dodd-Frank passed at the SEC, at the Commodity Futures Trading Commission, at the FDIC.
You've got regulatory lawyers and lobbyists doing hand-to-hand combat over every comma, every clause in the rulemaking process. And then finally if a rule makes it, if it's in fact put into law, then you've got the legal challenge. And there's been at least seven legal challenges, eight legal challenges that I know of to Dodd-Frank. So like we saw with Obamacare, OK, the bill passed, OK it's being implemented, but then will it actually even become a law given the vagaries of the courts?
DAVIES: Now you've looked into how many lobbyists are at work and how much they're spending on various sides of the implementation battle over Dodd-Frank. What have you found?
RIVLIN: Well, I added up all the lobbyists on the payroll for the top five consumer advocacy organizations in Washington, so the Center for Responsible Lending, the Consumer Federation of America, Americans for Financial Reform, et cetera. And that's 18. There are 18 lobbyists working for those top five consumer groups.
Goldman Sachs alone has 51 lobbyists. JP Morgan alone has 60 lobbyists. The American Bankers Association has 91 lobbyists. The U.S. Chamber of Commerce, which is looking at Dodd-Frank and of course other issues, they have 183 lobbyists. And, you know, in a way, as one of the consumer advocates who feels like he's fighting a very lonely fight says, that's only the tip of the spear.
Then there's the battalions of regulatory lawyers, you know, that are $1,000, $1,200 an hour that the banks and the big trade associations for the various financial institutions, that they've hired. You know, there's the researchers.
DAVIES: And they aren't lobbyists per se, but in effect what they're doing is influencing these regulations?
RIVLIN: Exactly. They're the ones who are sitting in the offices of the SEC, et cetera, battling over the language. And, you know, some of them are registered lobbyists. Most of them are not registered lobbyists. So they don't even - most of them don't even count in those numbers I just read off.
DAVIES: Let's take an issue and see how this works: regulating exotic derivatives like credit-default swaps, which played such an important role in the financial crash. You had companies like AIG writing hundreds, maybe thousands, of these financial contracts in which they promised, you know, to pay the buyer, the other party, huge sums if a particular mortgage-backed security defaulted.
And that built enormous risk for AIG and its trading partners, which when the mortgage-backed securities collapsed led to a near collapse of the financial system, clearly a problem for these exotic financial instruments that built a huge amount of systemic risk into them. How did Dodd-Frank propose to deal with that problem?
RIVLIN: Well, the basic solution was to sell derivatives on open exchanges like you do with stocks and bonds. A lot of the problem with derivatives is they were traded in the dark. It was one-on-one negotiations between a big bank and a customer, and the regulators weren't involved at all, and so all this risk was being built up.
The irony of derivatives, it's meant to hedge risk. But the big banks, Bear Stearns and Lehman Brothers went under, but all the big banks had too much derivatives on their book, and it almost did them in. So in other words this product that's meant to mitigate risk almost caused so much risk that it took down the U.S. economy.
And so the idea here was to regulate them but more importantly just bring them into the sunlight. And so if you're selling oil futures or a credit-default swap or interest-rate swaps, what you would - you would now do it on an open market. So there would be pricing, and it would be transparent, the pricing would be published, and the regulators would have enforcement capabilities just in case they saw abuses occurring.
Now you write about a guy named Gary Gensler. He heads the Commodity Futures Trading Commission. He has an interesting history in the regulation of derivatives. Do you want to talk a little bit about him?
Well, you know, consumer advocates initially balked when President Obama named Gary Gensler the head of the Commodity Futures Trading Commission. He had worked for Goldman Sachs for 18 years. Goldman Sachs is one of the top sellers of derivatives. But worse, he was in the Bill Clinton White House when the disastrous decision to exempt this new class of complex derivatives from financial reform was made. And...
DAVIES: This was in 2000, right? There was a law passed by Congress, right, which essentially allowed these folks to - these things to operate in the shadows?
RIVLIN: Exactly. Under a Democratic administration, and, you know, Gary Gensler, who was part of that fight, acknowledged the big mistake that he made. And, you know, he fought with the White House, he fought with some fellow Democrats to make sure during the writing of Dodd-Frank to make sure that the derivatives piece was strong enough.
And I was particularly interested in following him because I wanted to find somebody in the bureaucracy who really wanted to see financial reform implemented. And talking to the various consumer advocates, it's like Gary Gensler's mission in life was to see meaningful derivatives reform, maybe for it to be his legacy. There are some who put him on the couch and say it's redemption for, you know, the mistake he made back in 2000.
But one way or another, here was somebody who was trying really, really hard to be true to the spirit of what Congress asked him to do, and what's so fascinating is nearly three years later, despite that Herculean effort, despite his motivation, there's still a lot of work to be done.
I think it really underscores how hard true financial reform is and underscores what he is up against going against the big financial institutions.
DAVIES: Right, so he's supposed to - his agency, the Commodity Futures Trading Commission, is supposed to develop the specific rules and regulations which will control derivatives, make them regulated, make them transparent. One of the things you write about is how many of his former fellow commissioners are now lobbyists. What did you find?
RIVLIN: So Mr. Gensler was a really interesting guy, and you really - I really got the impression, I spent like a half a day with him, and I really got the impression there was so much more he wanted to say about the frustrations of, you know, what he was up against. But, you know, he's a political appointee; there's only so much he could say. But there's this corridor near his office that's lined with the framed pictures of commissioners, past commissioners.
And we're walking past it, and he suddenly stops, and he goes: You know, I see these people all the time. And I said: What do you mean? And he goes: Well - and he points to the first picture, Michael Dunn, the immediate past chairman of the Commodity Futures Trading Commission. He's now a lobbyist with Patton Boggs, which might be the leading lobbying firm in Washington, D.C.
Next picture, Walter Lukken, another past chair under the second President Bush. He's now a CEO for one of the main derivatives trade associations. The next picture, George W. Bush's first CFTC commissioner James Newsome. He founded his own lobbying firm. And so on.
And, you know, he counts back, going about a dozen years, and three out of every four people on that wall are in his office regularly, he told me, lobbying to water down Dodd-Frank; put, perhaps, loopholes into it, somehow make it so it's more to the liking of their paying clients.
DAVIES: Right, and there's nothing in federal law that prevents these former regulators from then representing special - representing interest, lobbying those very regulators.
RIVLIN: There's a one-year cooling-off period. So for that first 12months after you leave office, you can't lobby. But, you know, after that there is no rule. And, you know, I give Gensler credit. His decision early on is to say I'm going to have an open office. Anyone who wants to meet with me to talk about derivatives reform can get a meeting, if not with me with one of my top people.
But I'm also going to publish the name of every person who meets with me and what the topic was. And, you know, I mean, the consumer groups were - had the same invitation. The problem is a lot of these consumer advocacy groups are armies of one. And so, you know, they can't write up, you know, long briefs about why this element or that element of derivatives reform is right or wrong.
Yet on the other side, you've got virtual armies of regulators and researchers and lobbyists and people who can write this stuff. But it was really just such an interesting window into how the fight is taking place. So what I did was I counted up the number of meetings the various players had with top officials inside the CFTC.
And Goldman Sachs had 31 meetings in the first five months. Morgan Stanley had 20 meetings within the first five months. But then you look at the consumer advocacy groups, you know, you add them all up, they didn't have 10 meetings. And so again there's just this imbalance of power. It's - he's trying to make it a fair process, but he himself acknowledges that there's an inequity in the process given the inequity in people on either side of the fight.
DAVIES: Right. Let's just look at how this works. When Mr. Gensler and his staff decides on a proposed regulation on derivatives, and they publish it, right, this is a proposed regulation. What happens then?
RIVLIN: Well, so that's - that's the next step in the process because then anyone's invited to write a comments letter. And, you know, it makes sense. OK, the federal bureaucracy is about to create a rule. Let's hear from people just in case they didn't consider some unintended consequences.
But here he wasn't very diplomatic. He just stated right out that it provides another opportunity for industry to really gum up the works. So he has gotten one million pages of comments letters, just about derivatives reform, just about this one piece of Dodd-Frank. He's gotten on million pages, 39,000 comments letters. Some of them run 300 pages.
And, you know, I asked, you know, well how many of these have you read? And he said, well, I've read a lot of them. And I said, well, are they making serious points? And he goes: Every once in a while. But for the most part, he feels like they are being written and published just to slow things down because there's federal laws that say that you can't just treat one of these letters like a comments box, let's empty it out every once in a while and throw it in the trash. You need to document every issue brought up and analyze who's saying what.
And so it's a long, arduous process that just adds months and months. And so even though we're nearly three years out from Dodd-Frank, of those 398 rules requiring action by a regulator, only 148 of them, that's about one-third, have been finalized in large part because we've created a process in Washington that has openness and fairness, but if you have mighty forces that have these battalions, it's just - they're able to really choke the process and slow it down.
We're speaking with investigative reporter Gary Rivlin. He's an investigative fellow at The Nation Institute. His piece, "How Wall Street Defanged Dodd-Frank," appears in the May 20th edition of The Nation. We'll talk some more after a short break. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
DAVIES: If you're just joining us, we're speaking with investigative reporter Gary Rivlin. His piece, "How Wall Street Defanged Dodd-Frank," appears in the May 20th edition of The Nation.
Now if an agency like the Commodity Futures Trading Commission that's trying to develop these regulations gets a million pages of comment, obviously it needs staff, it needs resources to simply cope with that, sort it out and hammer out regulations. Is Congress giving them the resources they need?
RIVLIN: In a word, no. You know, that's part of the fight that's going on here. If it could strangle the regulatory agencies, it won't make a difference if there's a strong Dodd-Frank because they won't have the resources to enforce it. And so let's just us the Commodity Futures Trading Commission as an example.
Under Dodd-Frank, they go from regulating $40 trillion in futures like corn and wheat and other basic commodities to $300 trillion in derivatives. And so, you know, that's a seven-fold increase. And yet the Republicans, when they took over the House following the 2010 midterm elections, their first bill called on Congress, called on the government to cut the CFTC's funding by a third.
The Obama administration said, well, they're going to have a lot more work to do, so they said let's bump their funding from, I don't know, $200 million to $300 million. And they ended up compromising somewhere a little above $200 million.
So here you have this agency, a pretty small agency by Washington's standards, having this seven-fold increase in their mandate while meanwhile they have to write all these rules, and they're doing it with basically the same personnel they had prior to Dodd-Frank.
DAVIES: So where are we on derivatives reform? I mean, I've read that some of the big banks are now having to register as derivatives traders. I mean, some things happened, right? Is there any substantial reform in this area that's effective?
RIVLIN: Well, there's plenty of progress. I mean, Gensler's agency has implemented 40 of the 60 rules that they were told to create. So there's been huge steps. As you say, the big banks are registering to sell derivatives. They're starting to share the pricing. But until they finish writing the rules, there's no market. There's no equivalent of a stock market to trade them on.
And so there's something of an all-or-nothing element to this, and they're well on their way, but the big worry that consumer advocates have, those who believe in derivatives reform have, is that there's the potential still for these huge loopholes to be written into Dodd-Frank. Just to choose one huge one, cross-border regulation. You know, what do you do with the foreign subsidiaries of a U.S.-based bank.
So if Citigroup is selling derivatives out of its New York office, obviously that would fall under Dodd-Frank. Well, what if they're selling - what if they transfer it to Tokyo or London? Well, you know, the Japanese are doing derivatives reform. The EU, the European Union, is well on its way towards derivative reform.
What if they sell it out of the Cayman Islands, which is exactly what the Citigroup is doing in 2008, part of their derivatives book was being sold out of the Cayman Islands? There won't be regulation there. That's the whole idea of going to the Cayman Islands. So what Gary Gensler says is we have to regulate those derivatives.
If it's part of a U.S. - if it's a subsidiary of a U.S.-based bank, we have to monitor that. We have to regulate that because if that causes a U.S.-based bank, a huge bank to blow up, we the taxpayers are going to be on the hook for that problem. Well, the - but it's not only up to Gary Gensler. He's one vote on a five-person commission.
There's the courts, which could rule, like, hey, I'm sorry, Dodd-Frank didn't specify that enough, so we're not going to let you do that. And there's Congress. You know, as I said earlier, one piece of the fight is you go to Congress and see if you could pick off pieces of Dodd-Frank, and, you know, lo and behold, there is a bill making its way through the House of Representatives right now that would exclude the foreign subsidiaries of U.S.-based banks from derivatives reform.
GROSS: Dave Davies will continue his interview with journalist Gary Rivlin in the second half of the show. Rivlin's article, "How Wall Street Defanged Dodd-Frank," is published in the May 20th edition of The Nation. I'm Terry Gross, and this is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the article FRESH AIR contributor - to the interview FRESH AIR contributor Dave Davies recorded with journalist Gary Rivlin about his article, "How Wall Street Defanged Dodd-Frank," which is published in the May 20 issue of The Nation. It's about how financial institutions have employed an army of lobbyists and lawyers to contest, weaken, delay and litigate the rules that federal regulators are creating to put the law into effect. The law, which is officially called the Wall Street Reform and Consumer Protection Act, was intended to curb practices that led to the financial collapse of 2008.
DAVIES: You know, you write that there are big battles among the regulatory agencies over specific rules and regulations that are supposed to be developed in Dodd-Frank, but that once they are done, litigation occurs. Tell us about this. Who's suing to stop these regulations?
RIVLIN: Well, the big industry groups, the big financial institutions are hiring lawyers to sue. And mainly they're hiring Eugene Scalia, the son of Supreme Court Justice Antonin Scalia. We spent an hour together in his office but he wouldn't let me quote him, and he's a really interesting guy. I mean he kind of even looks like his father, he's whip smart, he's a bulldog of a litigator - by the impressions of those who have watched him, and he really enjoys the fight. It's like he's this secret weapon on behalf of the financial institutions. He's already filed a half dozen suits to pick off pieces of Dodd-Frank, and he's also won some of those battles. So, you know, even if a rule is published that is true to the spirit of Dodd-Frank, that doesn't mean it's actually going to be enforced - because while Dodd-Frank might say OK, bureaucracy, you'd need to create this rule, there are other laws that are on the books that Mr. Scalia and other attorneys are using to say, hey, wait a second, have they done the proper procedures, have they accurately documented every single comment letter?
One thing that the law requires the bureaucracy to do is cost-benefit analysis. It's not good enough that Congress says we need you, we want you to do this thing; you need to do cost-benefit analysis showing, demonstrating that it's necessary, and that's pretty much been the heart of every one of his legal challenges to Dodd-Frank. And again, he's won some of them.
DAVIES: Can you give us an example of a lawsuit, a rule or a provision that was overturned by a lawsuit?
RIVLIN: Well, so position limits. That's part of the derivatives reform. It's caps on the portion of a market that a speculator can own. And you know, we all saw what happened in 2008 when a barrel of crude oil rose from $145 a barrel before plummeting back to $37 a barrel in early 2009. The culprit, folks said, was speculators. We saw a spike in the price of wheat and other basic grains that caused rioting around the world. So Congress said, hey, we really need to put a check on the speculation in these markets. So CFTC, the Commodity Futures Trading Commission, went through the process of writing these rules and published them and immediately Mr. Scalia sued, saying that, hey, I'm sorry, you didn't do the proper cost-benefit analysis demonstrating that there was a need for position limits. I mean it's really hard to prove why exactly a spike in oil happened. It's really hard to demonstrate why there's necessarily a cost-benefit analysis other than we're all angry that the price of a gallon of gas went up...
DAVIES: And to clarify, when you say position limits, you're talking about how much of the market a single player can control in oil futures or wheat futures.
RIVLIN: How much a single player can control, but also how much speculators as a group can own.
RIVLIN: And so, you know, should be 25 percent, should it be 40 percent of a market? So the Commodity Futures Trading Commission went through that whole process and, you know, they came up with where they thought the right law should be. Consumer advocacy groups were a little disappointed that it was watered down a little by their standards. But, you know, a strong rule was written and Eugene Scalia filed suit and a judge - a Barack Obama appointees, by the way - ruled in Mr. Scalia's favor. And so it's not that the rule was wiped out, it's now under appeal. The Commodity Futures Trading Commission is officially appealing that ruling. It's just up in the air - which is kind of the theme for much of Dodd-Frank. I mean again, we're nearly three years out from its passage. Congress put a one-year cap on most of these rules and yet here we are, nearly three years later, and barely one-third of the rules have been finalized. You've got the bank regulators, they haven't finalized 30 percent of the rules. They haven't even written draft proposals of one-third of their rules.
DAVIES: Now, just returning to the litigation for a moment, I mean there was one decision that you wrote about that the consumer groups were particularly troubled by, in which a judge agreed with the plaintiffs - the challengers of the rule - that the regulatory agency had not considered every single cost-benefit analysis submitted by industry representatives - or had not explained and not, had not adequately considered it. Again, the point being there's a tremendous burden on the regulators to take into account every single argument that is, you know, that's offered as they consider these rules. Has the litigation and the threat of more affected the way regulators are drafting the rules?
RIVLIN: Right. So early on is actually Eugene Scalia's first big victory. It was over proxy access. In English that means that corporations, publicly traded companies, must put on the ballot information they send out to shareholders the name of any nominees for the board of directors that get at least a three percent share of the shareholder vote. And so it seemed pretty straightforward, seemed actually pretty minor, but a couple of the big trade associations - including the U.S. Chamber of Commerce - sued, with Eugene Scalia as lawyer, and they won. And it was just a shot across the bow for the bureaucracy.
So I spoke to the head economist for the Commodity Futures Trading Commission, and he said prior to that ruling they would write a page, two pages of cost-benefit analysis. There's some studies they would take seriously because they respected the studies, and there are others that they dismissed as industry funded or they didn't think it held water. Well, after that ruling, well, that ruling said you, SEC, made a mistake by not considering every study. In fact, you didn't consider this study - which, by the way, just happened to have been funded by one of the industry trade groups that was bringing suit - you didn't consider all the studies, so you didn't do a good enough job of cost-benefit analysis. So now every one of these rules, there's an element of it that looks like a Master's thesis. There's 80 pages of cost-benefit analysis on average in the Commodity Futures Trading Commission rules where they have to take on every single study and acknowledge that it exists and disagree with their arguments. And they have to spell it all out, which again, is another way of really slowing down the process. I mean it was felt particularly acutely within the SEC, whereas one consumer advocate told me, you know, for the first few months the SEC seemed really almost a conveyor belt. They were really trying to implement, write the rules for as many of these as they could. But after that ruling, it just froze. Because they had spent, according to Mary Schapiro, who used to be the head of the SEC, they had spent 21,000 man hours on that one small rule, on the proxy access rule, and yet it was overturned by the Court of Appeals in D.C. as having an adequate cost-benefit analysis.
DAVIES: We're speaking with investigative reporter Gary Rivlin. He has written about efforts to slow down the implementation of the Dodd-Frank bill in the May 20 edition of The Nation.
We'll talk more after a break. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
DAVIES: This is FRESH AIR and our guest is investigative reporter Gary Rivlin. He's an investigative fellow at The Nation Institute. His piece, "How Wall Street Defanged Dodd-Frank," appears in the May 20 edition of The Nation.
Let's look at another specific area of Dodd-Frank, and that is the creation of the Consumer Financial Protection Bureau. First of all, what was this agency supposed to do?
RIVLIN: Well, the idea was to have a single agency in Washington that's looking out for nothing but the financial protection of ordinary citizens. What was happening prior to Dodd-Frank was that you had the Federal Reserve responsible for consumer protections, but that wasn't their main purpose. You had - the FDIC also had some responsibilities for monitoring the fairness of the financial markets - but again, that's not why the FDIC exists. It exists to protect the financial soundness - to watch out for the financial soundness of the banks. And so the idea was let's have one centralized agency that's looking over everything from mortgages to credit cards to debt collectors to fringe lenders selling things like payday loans that have an APR of 400 percent on a two-week loan. Let's have one place in Washington that this is their mandate, this is what they're doing.
DAVIES: And it exists, right? Has it been effective?
RIVLIN: Right. It met its deadline. It went into existence at the one-year mark. And you know, it's too early to render a verdict, but you know, nearly two years into its existence, consumer advocates in Washington are very pleased with the Consumer Financial Protection Bureau. They've made some rulings that have made folks happy around credit cards and mortgages. They are starting to take actions, or at least they're indicating that they're going to take action on some other abusive products. So, so far so good.
DAVIES: But there are questions about its leadership, right? Richard Cordray is the director, but he was a recess appointment, right? I mean not a full of appointment because that requires approval of the Senate. How has that played out?
RIVLIN: Right. So the bigger issue here is that the banks, the financial institutions, the Republicans, more moderate Democrats, all lost in the fight over the Consumer Financial Protection Bureau. It's a freestanding agency. It's not answerable to Congress for its funding. It has a single director - rather than a five-person commission, which is a lot of power, right? You don't have to win three to two votes, you just - you could just decide. And so the House and Senate, the Republican side are trying to re-legislate essentially. They're trying to say like, OK, we'll give you the director of the Consumer Financial Protection Bureau, so long as you give us a five-person commission, and so long as you give us, Congress, more power over the funding. And so for a while there was an impasse. I mean the president had hoped to appoint Elizabeth Warren to head the agency. That was obviously not going to pass muster. So he turned to Richard Cordray, former attorney general in Ohio, but the Senate, which is responsible for confirmation, said no, we're not going to consider anyone. We don't care who you appoint, we're not going to consider anyone unless you meet our demands. There had to be a compromise because, you know, even though it's a Democratic-controlled Senate, you know, these days you need 60 votes to get anything done - 50 votes, 51 votes isn't good enough anymore. So what the president did is name Mr. Cordray as a recess appointment, you know, when Senate was on recess, and his term expires at the end of this year. So among the question marks is: What's going to happen next? The Republicans in the Senate are threatening to say, OK, well, we'll never recess, so they'll be no director. And another issue is they're saying that President Obama's recess appointment in the first place was improper. So there's legal challenges on the horizon, there's talk of legal challenges saying we're going to wipe out every rule you've created, Mr. Cordray, because you were improperly named as the director.
DAVIES: Right. So there are legal battles about that. But in essence, they'd like to make this agency something like the Federal Election Commission, where you have a bipartisan board that has to approve every rule and often is subject to gridlock.
RIVLIN: Exactly. And perhaps even more importantly, the Consumer Financial Protection Bureau has independent funding. They get money straight from the Fed and it's written to law that they could get up, I think it's up to 10 percent of Fed funding. And Congress has no control over their purse strings. That's a lot of power, as we were talking earlier, with the Commodity Futures Trading Commission. That could be a weapon to reign in a regulatory body - like OK, if you keep on acting in an aggressive way, we're going to slash your funding. They don't have any of that kind of power. They don't have any of that kind of say-so over the Consumer Financial Protection Bureau as it exists right now.
DAVIES: Let's talk about the Volcker Rule. This was - if I have this right - the idea here was that Dodd-Frank was to put an end to the practice of banks that have federally insured deposits - your money and mine - in them, using that money, I guess they call it proprietary trades, using that money to take risky bets on things like derivatives. Is that about right?
RIVLIN: Well, it wasn't to stop it. It was to greatly limit it.
RIVLIN: It puts a cap. You can only, you know, gamble essentially a few percentage points of your overall assets. And so we all saw it playing out with JP Morgan and then the London Whale and a $6 billion loss. I mean, you know, this prop trading, this gambling essentially, could cost a bank dearly. And in fact...
DAVIES: That's proprietary trading, prop trading, right? Yeah.
RIVLIN: Yes. Exactly.
DAVIES: Their own stuff. Their own depositor's funds, right?
RIVLIN: They're gambling their own money, essentially. And, you know, the only reason we have to care about this is because it's federally insured depositor money. So, anyway, this was just a huge, huge fight. This is one of those areas where a lot of people on the consumer's side were pretty disappointed that the Volcker Rule wasn't nearly as strong as they hoped that it would be, but there was, in fact, a Volcker Rule that was implemented.
Well, this is another one of these areas that there's just a huge question mark. You know, the Federal Reserve, which was primarily responsible for implementing the Volcker Rule has announced that there will be no Volcker Rule before mid-2014 at the earliest, and there's some question whether there will ever be an effective Volcker Rule.
DAVIES: You know, it's interesting. When lobbyists make their case, I'm sure they don't walk in and say I represent people who like to make a lot of money and they want to keep making money. And I don't care about consumers. I mean, there's usually a public policy argument for what they are saying. I mean, what's their argument, for example, that derivatives don't need to be traded in open exchanges and can continue to operate in a less regulated way?
RIVLIN: You implement derivatives reform and the jobs are going to go overseas. You'll see the European-based banks, the Japanese-based banks take our derivatives business. So it'll cost jobs and it's going to cost competitive advantage that the Americans have. Now, one could argue what they're really saying is, like, you're going to cost us billions of dollars but, as you say, that's not really going to fly.
In fact, Mr. Gensler himself, it's pretty funny, when we sat down and spoke about this. Because he said every meeting pretty much starts exactly the same way with industry, with their lawyers, with their lobbyists. Well, of course we're all in favor of reform. We have some concerns. And as he defined it, you know, concerns mean like, well, we might like reform but we don't like this one that affects us.
You know, there's talk of, well, I don't think you see the consequences of this act. We understand it better than you because this is our industry. And you don't understand by giving this small rule how much problems you cause. And what's really gummy about that, what's really kind of complex, is there's some truth to it. And, you know, Gensler has worked derivatives at Goldman Sachs.
I mean, he understands this stuff. And there has been some legitimate give and take. Like, OK, this small rule about how many seconds you have to publish the prices or, you know, other things, OK, sure. There's some give and take here, but the question is, is it give and take just to make it a little simpler on the banks? I mean, it's a huge headache.
They all of a sudden have to implement a whole new system. Or are they trying to put in loopholes that, you know, Mr. Scalia and other lawyers down the line are going to use to blow a hole in derivatives reform?
DAVIES: So a lot of Dodd-Frank is not yet implemented and there are big fights ahead over the rules. Let me ask you the bottom line question. Is the financial system any less vulnerable to a crash than it was in 2008?
RIVLIN: No. I mean, you know, we're getting closer to a system that's less vulnerable but, you know, the U.S. is still threatened by many of the same dangers that practically blew up the globally economy in 2008. And it seems that there will be legitimate derivatives reform, but, you know, that's not 100 percent clear yet. So we're heading in the right direction but we're certainly not there yet.
DAVIES: Well, Gary Rivlin, I want to thank you so much for speaking with us.
RIVLIN: Thank you so much.
GROSS: Gary Rivlin spoke with FRESH AIR contributor Dave Davies. Rivlin's article "How Wall Street Defanged Dodd-Frank," is published in the May 20th edition of The Nation. You'll find a link to the article on our website freshair.npr.org. Coming up, Ken Tucker reviews the first solo album by Natalie Maines, the lead singers of the Dixie Chicks. This is FRESH AIR. Transcript provided by NPR, Copyright NPR.