E tome regulação!

Rodrigo Constantino

Não preciso repetir aqui que o inferno está cheio de boas intenções. Talvez a melhor ilustração para isso seja o excessivo grau de regulação a que chegamos. A mentalidade predominante é a de que as empresas querem ferrar seus consumidores, e que os burocratas das agências poderosas de regulação vão nos proteger, cuidar de nossos interesses, enfiar goela abaixo desses gananciosos empresários que só pensam em lucro normas e regras que nos beneficiam. Será?

Penso nisso quando leio sobre o grau crescente de ingerência da Anac no serviço das empresas aéreas. O que falta regular? O formato da fechadura do banheiro? O conteúdo da televisão a bordo? A roupa das aeromoças? A cor do estofado (talvez tudo vermelho)? Enfim, a intenção parece nobre - garantir mais comodidade para os usuários - mas o resultado costuma ser terrível: mais custos, repassados para nós, usuários.

Esse já é um setor complicado no mundo todo. Poucas empresas conseguem operar no azul por muito tempo. Elevados custos fixos, competição, leasing das aeronaves, combustível caro, processos judiciais, são muitos os riscos operacionais das empresas. Muitas pecam pela má qualidade dos serviços, não resta dúvida. E até acredito que haja uma função reguladora para pontos básicos. Deixe-me repetir isso, pois é importante: para pontos básicos.

Isso nada tem a ver com o governo, por meio da Anaz, fazer caridade com o chapéu alheio. Um elevador para os viajantes? Quantos atendimentos específicos para deficientes forem demandados? E quem paga por isso? Eis a pergunta que ninguém faz no Brasil: quem paga a conta? A turma que aplaude tais medidas "nobres" parece acreditar que recursos nascem em árvores ou brotam do chão, ou então que o pecaminoso lucro seja uma fonte inesgotável de recursos, bastando distribuir melhor. No limite, por que a empresa precisa de lucro, não é mesmo?

É preciso sempre ter em mente que esse tipo de regulação impõe pesados custos, que serão transferidos, normalmente para quem gostaria de ter a liberdade de escolha entre pagar ou não por eles. A melhor forma de testar a aceitação das comodidades com seus respectivos custos é o mercado, o plebiscito ininterrupto dos clientes. Se uma empresa quer oferecer amendoim e água, e a outra quer oferecer tapete vermelho de veludo com babá disponível para cada criança a bordo, que o voto final seja de quem efetivamente paga a conta. 

So Much for the Volcker Rule

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.

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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.

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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.

The Economy Needs a Regulation Time-Out

By SUSAN COLLINS, WSJ

Last year, the Food and Drug Administration issued a warning to a company that sells packaged walnuts. Believe it or not, the federal government claimed the walnuts were being marketed as a drug. So Washington ordered the company to stop telling consumers about the health benefits of walnuts.

Meanwhile, the Environmental Protection Agency proposed a new rule on fossil-fuel emissions from boilers that—by the EPA's own admission—would cost the private sector billions of dollars and thousands of jobs. The owner of a small business in Maine told me the proposed rule would require him to scrap a new, $300,000 wood waste boiler he recently installed.

No wonder America's employers dread what is coming next out of Washington. Our country cannot afford regulations run amok at a time when no net new jobs are created and unemployment remains above 9%. But at least we're safe from health claims about walnuts.

America's overregulation problem is only getting worse. Right now, federal agencies are at work on more than 4,200 rules, 845 of which affect small businesses, the engine of job creation in our country. More than 100 are major rules, with an economic impact of more than $100 million each.

No business owner I know questions the legitimate role of limited government in protecting our health and safety. Too often, however, our small businesses are buried under a mountain of paperwork that drives up costs, prevents the hiring of workers, and impedes economic growth.

Business owners are reluctant to create jobs today when they're going to need to pay more tomorrow to comply with onerous new regulations. That's what employers mean when they say that uncertainty generated by Washington is a big wet blanket on our economy.

I have asked employers in my state what it would take to help them add jobs. No matter their business or the size of their work force, they tell me that Washington must stop imposing crushing new regulations.

America needs a "time-out" from the regulations that discourage job creation and hurt our economy. I have introduced legislation to impose a one-year moratorium on any "significant" new rules that would have an adverse impact on jobs, the economy, or America's international competitiveness. A one-year moratorium on such regulations is a common-sense solution that would help create jobs.

Under my bill, certain rules would be exempt from the moratorium: those that are needed in emergencies, such as to respond to imminent threats to public health or safety, and those affecting crime, the military and foreign affairs. My bill also excludes rules that would reduce the regulatory burden on the private sector. Unfortunately, those rules that actually reduce regulatory burdens and promote jobs are few and far between.

That EPA rule on boilers is a good example of why we need a regulatory time-out. According to a recent study by the American Forest & Paper Association, if the rule went into effect as written it could, along with other pending regulations, cause 36 American pulp and paper mills to close. That would put more than 20,000 Americans out of work—18% of that industry's work force.

Once those mills close, the businesses that supply them also would be forced to lay off workers. Estimates are that nearly 90,000 Americans would lose their jobs, and wages would drop by $4 billion—just because of over-regulation.

But even that is not the end of the story. People and businesses would still need paper. Where do you think we would get it? We'd be strengthening the economies of other countries like China, India and Brazil, while weakening our own.

American businesses need pro-growth economic policies that will end the uncertainty and kick-start hiring and investment. American workers need policies that will get them off the sidelines and back on the job.

In sports, time-outs are called to give athletes a chance to catch their breaths and make better decisions about the next play. American workers and businesses are the athletes in a global competition that we must win. They need a time-out from excessive regulation so that America can get back to work.

Ms. Collins is a Republican senator from Maine.