This is a two-part essay about the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act, a 2,300-page piece of legislation now making its way through the federal rulemaking mill in 21 different federal agencies, via nearly 250 rulemaking initiatives and 70 special reports. The Dodd-Frank legislative process was both hurried and complicated, and as one examines the resulting proposed rules, it is clear that the rulemaking stage has done little to clarify matters. Many issues remain definitionally murky and the rule makers in many cases are left with no alternative but to punt interpretation of these matters to enforcers at specific agencies post-implementation.
In Part One of this essay, we parse the politics surrounding the implementation of this complicated and tentacular piece of legislation. We start with politics – the interests that influence electoral, legislative, and regulatory outcomes – because that is where our minds naturally locate a zone of comfort. The politics is what seems real.
Part Two of the essay, however, will explode the idea that the politics actually matter, and focus our attention on the deeper dynamics of complexity theory as it applies to financial reform. We will descend into the rabbit hole of barking dogs, fat tails, and the conclusion that implementation of Dodd-Frank will in no way reduce the risk of catastrophic failure built into our financial markets.
The Politics of Financial Regulation
Dodd-Frank receives bland praise for its earnest efforts to reach some low common denominator of consensus about how to manage financial risk without tearing apart banking institutions. A political process watered down the legislation so it could sufficiently clear partisan hurdles to pass Congress. However, the real question is whether the forthcoming rules do anything more than kick the can further down the road.
It is generally tempting to continue to focus on the politics of financial reform, and to wonder about the meaning for financial reform of such events as the return of the House of Representatives to Republican control. In reality, the dynamics of legislative process are predictable bargaining games. And shifts in power are akin to changes in the weather, outputs of the bi-annual election cycle that grip the media imagination but that fail to do more than scratch the surface of the relationship between finance and regulation.
With the shift to Republican control in the House of Representatives, the ubiquitous and garrulous Barney Frank, co-author of the Dodd-Frank legislation, is now irrelevant. Spencer Bachus, Republican from a wealthy district surrounding Birmingham, Alabama, now presides over the House Committee on Financial Services, and he is determined to bring Dodd-Frank to its knees.
Bachus is a wily and pragmatic politician, who benefits in a conservative state from the absence of any serious opposition to his seat. Bachus is no moderate, however. When it comes to financial matters, Bachus worships both God and Mammon. It is an article of faith for him that the purpose of government is to serve and protect banking interests. Bachus also has gained notoriety for rapid-fire market trades – rare for elected federal officials – that netted him more than $160,000 in 2007.
Bachus does not pull his punches on the new HCFS website. As redesigned by the Republican majority, the website is no longer merely an information resource for policy wonks. The HCFS website is now closer to a Predator drone taking deadly aim at all “job-killing” Democratic financial reform measures associated with Dodd-Frank.
Enter the Volcker Rule
Demolition of Freddie Mac and Fannie Mae remains the top priority for Chairman Bachus. However, Bachus and the HCFS also don’t mince words about their distaste for the Volcker Rule and their determination to obstruct its implementation.
The Volcker Rule prohibits banking entities from engaging in proprietary trading and from sponsoring or investing in private equity or hedge funds. This prohibition matters because many investment banks became bank holding companies in 2008 to gain shelter from the financial storm under the TARP of the federal government.
The Volcker Rule promotes the quaint idea, associated with the Glass-Steagall Banking Act of 1933, that the government should protect banks that responsibly provide credit to consumers and businesses, but that banks receiving such protection should not engage in risky or speculative behavior associated with proprietary trading and the sponsorship of hedge funds.
Bachus has opposed the Volcker Rule, arguing that proprietary trading was unrelated to the financial crisis and that the prohibition on proprietary trading would limit banking profits, eliminate an important source of income diversification, undermine the global competitiveness of U.S. banks, and harm the ability of non-financial companies to engage in legitimate hedging of commodities for business purposes.
In Part Two of this essay, we will explore interesting ideas about fat tails and barking dogs, and consider the hard choices we need to make to avoid succumbing to the pitfalls of complexity as they apply to financial reform.
In Part One of this essay, we mapped the tactile, political surface of financial reform – focusing on the ideas and behaviors of individual political actors – notably Representatives Spencer Bachus and Barney Frank – in relation to passage and implementation of the Volcker Rule, a central provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act. In Part Two, we suggest that none of this matters.
Barking Dogs and Fat Tails
While Spencer Bachus is perhaps more annoying than Barney Frank, and certainly less amusing than Barney Frank, the differences between him and Barney Frank do not alter a simple reality – politicians are mostly interchangeable. It doesn’t matter if one is dealing with Barney Frank or Spencer Bachus. By definition, both are barking dogs. They are elected officials who vocalize in order to get attention and to be fed. The problem with paying too much attention to barking dogs is that we may ignore the vigor with which they are wagged by fat tails over which they have no control.
In The Black Swan, Nassim Taleb discourses on the fat tail, nonlinear probabilistic environments that lead to increasingly unpredictable and extreme outcomes. We typically encounter fat tails within institutions and markets characterized by complexity, with circuitous feedback loops possessing multiple nodes, intersections, and choice points.
Modern financial markets have fat tails. We have significant evidence for this – deductio ad absurdum – in the emergence of exotic and synthetic securities, traded by hedge funds and investment banks, using enormous data sets and complex mathematical models, fed into program trading systems that take the decision-making out of the hands of individuals.
These trading systems are black boxes. They display impressive spit and polish, and reassure us with references to risk management, arbitrage, and hedging. However, these systems are incredibly fragile precisely because the range of outcomes and the risk spectrums they model are so complicated. The collapse of John Meriwether’s Long-Term Capital Management hedge fund in 1998 provide evidence to complexity theorists of the futility of black box trading systems that claim to model complexity and manage risk mathematically when these systems themselves are adding volatility and dynamism into the systems they model.
The Return to Glass-Steagall
The spirit of the Volcker Rule is that commercial banks that depend on the protection of the federal government to support their lending operations should not expose taxpayers to the risks associated with this financial complexity. The Volcker Rule in its purest form is an elegant and simple way to restore the firewall between commercial and investment banking created by the passage of the Glass-Steagall Banking Act of 1933.
Glass-Steagall was not a complicated piece of legislation. All of 37 pages in length, the law simply stated to any bank dependent upon the Federal Reserve for access to funds for lending: Thou shalt not speculate. The broadened scope of federal lawmaking and rulemaking in the past 75 years has guaranteed the impossibility of any return to the golden age of Glass-Steagall, however. Compromises necessary to keep the prohibition on proprietary trading in the Dodd-Frank legislation added layers of complexity and nuance that instantly hollowed out the impact of the Volcker Rule.
The Volcker Rule Succumbs to Complexity
As the Dodd-Frank legislation was finalized, changes were made to allow banks to invest up to three percent of their capital in hedge funds or private equity funds, with no dollar limit on the total. The substitution in the bill of “Tier 1 capital” for “tangible common equity” created a technical loophole that boosted by 40 percent the funds banks could legally transfer to hedge funds or private equity funds. And this was only the evisceration of the Volcker Rule that occurred during the legislative process.Subscribe to the Politics email.How will Trump’s administration impact you?
On January 18, the Financial Stability Oversight Council released its long-awaited report on Prohibitions on Proprietary Trading & Certain Relationships with Hedge Funds & Private Equity Funds. In its introduction, the Council summarizes the ban in terms that lucidly echo Glass.
The Volcker Rule prohibits banking entities, which benefit from federal insurance on customer deposits or access to the discount window, from engaging in proprietary trading and from investing in or sponsoring hedge funds and private equity funds, subject to certain exceptions.
The devil is in the “exceptions”. While still on Page 1, the Council introduces an impressive amount of bureaucratic noise about exceptions to the rule needed to account for legitimate market making, hedging, and underwriting transactions. The Council also admits to difficulties in differentiating legitimate from illegitimate trading and acknowledges that agencies will have a devil of a time figuring it all out.
As Dodd-Frank, and the Volcker Rule, find their way into the concrete details of agency regulation, financial institutions will navigate or evade the spirit and the intent of the legislation wherever they need to. With unlimited funds for lobbying, litigating, bargaining, and glad-handing – they will overwhelm the regulators. And as the economy settles down, the sense of urgency that led to the drafting of Dodd-Frank will dissipate.
The Hard Choice
The risk will not disappear, however. There may be something about human nature that makes it difficult to focus for long on fat tail risk – the unlikely, but catastrophic, failures that accompany complexity. Rather than address fat tail risk, which is inconvenient, we create new layers of complexity that serve to mask, but not eliminate, fat tail risk. The compromises associated with Dodd-Frank inevitably result in further complexity and confusion which will be left at the doorstep a myriad of regulatory agencies. We will leave the details of term definition, proper models of risk compliance, and interpretation of legislative intention to federal bureaucracies staffed by humans no more prepared to manage or comprehend this complexity than the financial institutions.
If we are serious about addressing fat tail financial risk, we face a hard choice. How do we return to simplicity, to the clarity of purpose that made Glass-Steagall such an effective piece of legislation? We must be honest. We cannot manage financial risk without tearing apart our financial institutions. This does not mean destroying them. It does mean forcing them to choose. Do they want the protection of the U.S. government? Or do they want to risk their own money? At the end of the day, simplification – even as only a kind of management of complexity – requires these kinds of meaningful choices, in every part of our lives, both public and private.