The Financial Regulation Congress Is Quietly Trying to Destroy in the Budget

By Mike Konczal |

There are concerns that the budget bill under debate in Congress will eliminate Section 716 of Dodd-Frank, using language previously drafted by Citigroup. So what is this all about?

Section 716 of Dodd-Frank says that institutions that receive federal insurance through FDIC and the Federal Reserve can’t be dealers in the specialized derivatives market. Banks must instead “push out” these dealers into separate subsidiaries with their own capital that don’t benefit from the government backstop. They can still trade in many standardized derivatives and hedge their own risks, however. This was done because having banks act as exotic swap dealers put taxpayers at risk in the event of a sudden collapse. That’s it.

Why would you want a regulation like this? The first is that it acts as a complement to the Volcker Rule. As Americans for Financial Reform notes, the Volcker Rule allows banks to make markets in derivatives. What 716 does is regulate the most exotic and custom derivatives, like the custom credit default swaps that generated the financial crisis of 2008. These derivatives are the most difficult part for the Volcker Rule to manage, so 716 adds a crucial second layer of protection.

A second reason is 716 will also prevent exotic derivatives from being subsidized by the government’s safety net. As the Roosevelt Institute’s Rob Johnson notes, removing this language would “extend guarantees to complex derivatives within banks, which in turn will subsidize and encourage their overuse.” We should be finding a balance for the derivatives market, not expanding it.

The third reason is for the sake of financial stability. The major banks have been unable to produce credible living wills describing how they can go through bankruptcy without tearing down the system. There is no world in which these banks will be closer to achieving this crucial goal by cramming themselves full of even more exotic types of derivatives.

Pushing out these risky derivatives enables the financial sector to focus more on its core job. As Roosevelt’s Chief Economist Joseph Stiglitz wrote in favor of 716, “[b]y quarantining highly risky swaps trading from banking altogether, federally insured deposits (and our basic payments mechanism) will not be put at risk by toxic swaps transactions. Moreover, banks will be forced to behave like banks, focusing on extending credit in a manner that builds economic strength as opposed to fostering worldwide economic instability.”

Stiglitz reiterated this point today, saying “Section 716 facilitates the ability of markets to provide the kind of discipline without which a market economy cannot effectively function. I was concerned in 2010 that Congress would weaken 716, but what is proposed now is worse than anything contemplated back then.”

Now many on Wall Street would argue that this rule is unnecessary. However, their arguments are not persuasive.

They might argue that many people opposed this bill at the time it was proposed, and indeed it was the source of great controversy. But what they overlook is that there was already a wave of compromise on this provision during the drafting Dodd-Frank. 716 focuses mainly on a subset of risky and exotic derivatives. Under the final law, banks can still hold most types of standardized and common derivatives, like ones for interest rates. This is the vast majority of the market. Banks can also hold derivatives that they use to mitigate their own risk. There was significant debate in 2010 over how this regulation should play out, and the final language reflects this compromise.

They might also argue that the financial sector is taking care of this issue on its own. But instead of being moved out, derivatives are being moved into backstopped banks. As the former FDIC chairperson Sheila Bair notes, the “trend has been to move this activity from the investment banking affiliates, which do not use insured deposits, into the banks where the activity can be funded with cheap, FDIC backed deposits. Section 716 would at least keep certain credit default swaps outside of insured banks.”

The question of how we should regulate derivatives and the financial markets more broadly has not been settled. There’s still an ongoing debate over how derivatives will be regulated across borders. And as noted, banks are still unable to produce credible living wills to survive a bankruptcy court. It’s for reasons like this that a wide variety of people who didn’t support the initial language of 716 now oppose removing 716: Timothy GeithnerJack LewSheila BairBarney Frank, and more.

We should be strengthening, not weakening, financial reform. And removing this piece of the law will not benefit this project.

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Mike Konczal is a Fellow with the Roosevelt Institute, where he works on financial reform, unemployment, inequality, and a progressive vision of the economy. His blog, Rortybomb, was named one of the 25 Best Financial Blogs by Time magazine. Follow him on Twitter @rortybomb.