Editorial do WSJ
Even in 298 pages, regulators can't decide what to regulate
If you tried to write a parody of the uncertainty and confusion triggered by federal rule-making, it would be hard to top the latest proposal from Washington's financial regulators. So here's an ironic hat tip to the bureaucrats who wrote the draft Volcker Rule, which will allegedly limit risk-taking at financial firms backed by taxpayers.
In 298 pages, rather than sketching out simple, clear rules for banks to follow, regulators essentially wonder out loud how they can possibly write this rule. Officially there are 383 questions posed in the document, but many of these questions have multiple parts. Our colleagues at the Deal Journal blog counted 1,347 queries, covering everything from how "trading accounts" should be defined to what a "loan" is.
The regulators admit that "the delineation of what constitutes a prohibited or permitted activity . . . involves subtle distinctions that are difficult both to describe comprehensively within regulation and to evaluate in practice." Think of this as a cry for help from bureaucrats seeking an understanding of the markets they are nonetheless going to restructure come what may.
Bank lobbyists are certainly eager to provide some hand-holding. We wouldn't be surprised to see thousands of pages of suggestions roll in between now and January 13, when the public comment period ends. Many of these comments will no doubt offer compelling reasons why a particular type of transaction should be exempt from the principle that nobody should be gambling with a taxpayer backstop. The regulators will then have about six months to consider all of these suggestions, ponder the thousands of answers to their 1,347 questions, and then write a final rule. At least that's what the 2010 fiasco known as Dodd-Frank demands.
Dodd-Frank demands all this from regulators because for the life of them former Senator Chris Dodd and Representative Barney Frank couldn't figure out how to write a Volcker Rule themselves. Like nearly every other tough call in financial regulation, Messrs. Dodd and Frank punted this one to the executive branch, invested federal agencies with new authority, and expected the same regulators who failed to prevent the last crisis to somehow avert the next one.
We supported former Federal Reserve Chairman Paul Volcker's concept of a ban on proprietary trading as a good-faith effort to protect taxpayers from having to rescue too-big-to-fail banks again. Democrats in Congress weren't going to prevent future bailouts, so whenever an institution is playing with taxpayer money (via insured deposits or access to the Fed's discount window) it should be allowed to serve clients but should not be permitted to make trades for its own proprietary account. But drafting such a law isn't easy and the details are crucial.
When America's esteemed legislators couldn't figure out how to write a Volcker Rule, they forwarded it to the bureaucracy as a kind of Volcker Suggestion. But before the lawmakers enacted this remarkable delegation of authority, they gutted even the Volcker Suggestion by exempting certain instruments from consideration.
Lawmakers made clear that whatever the shape of the final rule, it would not interfere with the liquidity of the U.S. Treasury market or debt issued by Fannie Mae and Freddie Mac. So even if bureaucrats spend most of the next year crafting the perfect rule, it will still allow Wall Street giants to make enormous bets on the direction of U.S. government bonds and debt issued by government-sponsored enterprises. There are also built-in exemptions in the commodities market. There will likely be limits on trading derivatives of commodities, but if traders are buying actual physical assets they can still swing for the fences.
Even outside of these exempted zones of politically favored speculation, the recent proposal suggests that we're not going to get anything close to perfection. And some of the regulators may already have figured this out. Readers will recall that Dodd-Frank created the Financial Stability Oversight Council so that the chiefs of the various regulatory agencies could coordinate their actions to identify and attack risks to the financial system. But one of the knights of this regulatory round table was missing when they decided to saddle up on this quest to tilt at Goldman's risk book.
The draft rule carries the names of various Beltway departments but not the Commodity Futures Trading Commission. Since the CFTC now oversees much of the derivatives market, which in Beltway lore is the principal cause of systemic risk, it's an odd omission. A cynic might even wonder if CFTC Chairman Gary Gensler is checking the political winds before endorsing this turkey. A source at the commission says that the agency is backed up fulfilling other Dodd-Frank mandates but will get to Volcker eventually.
They shouldn't bother. Reasonable people have seen enough to say that Washington is incapable of drawing bright lines and applying clear rules fairly across all securities markets. The result is all but certain to be a final rule that different people will interpret different ways, leading to loopholes for traders and arbitrary enforcement. Under this Beltway rendering of Volcker, trading will continue but with a much higher bureaucratic cost and with the illusion of safety that only regulation can create.
Until the government is willing to create a durable financial system that allows failure, the best policy response is to make the rules so simple that even Washington can enforce them. That means higher, even very high, bank capital standards and margin requirements on risky trades between banks. Those aren't panaceas, but they offer more hope for taxpayers than the bureaucratic and bank-lobbyist jump ball that is now the Volcker Rule.