All of these derivatives issues are oppressively dull and technical, and it's extremely difficult for most people to imagine how something like Jim Himes' exemption for foreign affiliates can actually affect their daily lives. But having an unregulated market instead of a regulated one might mean you'll pay an extra 50 cents for every gallon of gas (or possibly more, even according to Goldman Sachs). Or you might have to pay hundreds or thousands more in taxes every year because your town or county or country, if you happen to live in Greece, grossly overpaid an investment bank when it borrowed money. An unregulated derivatives market essentially gives Wall Street a way to place hidden taxes on everything in the world.
The best way to explain where those hidden taxes come from is to compare a regulated market to an unregulated one. It's the difference between buying soap and buying drugs. You go into a corner store and there's a price tag on the soap, but you can always go across the street, or on the Internet, to see what soap costs someplace else. But when you go to buy an eight ball of coke, you have to ask your dealer what the price is, and it's not like you can compare prices online. If you're tough and streetwise and you know what coke costs, you might get it for a couple hundred bucks. But if you're some quivering Ivy Leaguer idling in a Lexus, the price might be $400.
That's how the swaps market works. It operates completely in the dark. If you're some Podunk town in Texas or Alabama and you need swaps financing, you've got to ask Goldman Sachs or Morgan Stanley what it costs. There's no exchange where you can compare prices. And modern investment bankers are ethically a notch below your average drug dealer. They will extract from their customer – a town, an airline, a chain of retail stores – whatever they think he'll pay. And that extra cost will be passed on to you by the overcharged customer, in the form of higher taxes, bigger home-heating bills, higher sewer rates or pricier airline tickets. Wall Street will be taking a bite out of you every time you write a check.
Under normal circumstances, seeing the Republicans send a bunch of evil bills like the derivatives exemption to the Democrat-controlled Senate wouldn't scare reform advocates too much. But in March and April, something happened that sent progressives into a veritable panic – the passage of the so-called JOBS Act, a sweeping, bank-fellating deregulatory law that rolled back a smorgasbord of regulations designed to protect investors from fraud in the IPO markets. The White House, eager to greenlight "crowdfunding" investments and a handful of other sensible reforms contained in the bill, leaned on the Senate leadership to send the measure straight to the floor for a vote. That meant this monster deregulatory bill went directly into the books with minimal testimony, no committee hearings and no real debate of any kind.
Now, in the wake of the JOBS Act fiasco, many reform advocates expect the same scenario to repeat itself with the nine bills to roll back Dodd-Frank. In the House, a number of the most dangerous derivatives bills have been passed by "suspension," a simplified voice-voting process usually reserved for uncontroversial items. The truly sinister thing is that, in order for a bill to be put on the suspension calendar, the two parties must agree – meaning that Democrats signed off on this Trojan-horse method of treating complex, economy-altering bills as minor technical "fixes."
The truth is that Dodd-Frank is so huge, and contains so many complicated new rules, that there are, in fact, many areas where small technical fixes are needed. H.R. 4235, one of the nine bills brought before Congress, resolves a real problem with the way swaps data is collected, an issue that was preventing foreign swaps dealers from getting onboard with the reform. But when needed fixes like this are thrown in side by side with a mind-boggling exemption for swaps dealers like H.R. 3336, which hits the floor as the innocuously named "Small Business Credit Availability Act," all those members of Congress who don't sit on the Financial Services Committee will have no way of telling which bill is the minor technical fix and which is the sweeping repeal. Moreover, when those members see that some bills are co-sponsored by Democrats, and that the Democratic leadership agreed to put the bills on the suspension calendar for a simple voice vote, many will take it as a cue that it's OK to vote for the rollbacks.
That's particularly true because most members of Congress know that the public seldom pays any attention to the fiendish complexities of things like derivatives reform. "I've never had someone back in the district say to me, 'I think derivatives need to be traded on an exchange,'" says Miller. "These are the kinds of issues that aren't going to have any pop in a 30-second ad."
The nine bills to gut Dodd-Frank could also receive a JOBS Act-style welcome when they reach the Senate. There are only two Senate committees with the jurisdiction to tackle these bills, and neither appears to be planning to take a whack at any of the new measures. The Agriculture Committee, which oversees the CFTC, has been busy dealing with a huge farm bill. The Banking Committee, which oversees the SEC, is dominated by Democrats who wouldn't mind at all if Dodd-Frank had both its legs broken, including Chuck Schumer of New York and Mark Warner of Virginia. What's more, the committee's understated chairman, Sen. Tim Johnson of South Dakota, seems weirdly willing to let pretty much anything touching the financial world roll straight to a vote without his changing a comma – a sharp contrast to the days when fist-shaking politcal Godhead Chris Dodd ran the committee.
"Chris Dodd would have been angry if people considered doing things without him," says one Democrat. "He'd be like, 'You, out of my sandbox.'"
That means all those thousands of hours of debate and fierce negotiation spent hammering out Dodd-Frank two years ago might now go up in smoke in a matter of a few quiet minutes. Of the big-ticket items that were actually passed two years ago, the derivatives reforms have been completely gutted by loopholes, the Volcker Rule has been delayed for two years, and the Consumer Financial Protection Bureau may be thrust under the budgetary control of Congress, which is determined to destroy it. And much of this is taking place with the assent of Democrats, for a very simple reason: because the name of the game isn't cleaning up Wall Street, it's cleaning out Wall Street – throwing a "yes" vote at a bank-approved bill to get them to pony up in an election year. "All this is aimed at the financial services industry," admits one senior Democratic congressional aide. "It's to let them know, 'Hey, you're OK, we're not going to destroy your business – and give us your money, because we're trying to raise it for an election.'"
That's the underlying problem with cracking down on Wall Street: Our political-economic system has grown too knotted and unmanageable for democratic rule. While it's incredibly difficult to get a regulatory reform passed, it's far easier – and more profitable to politicians – to kill it. Creating legislation is a tough process. But watering down legislation? Strangling it with lawsuits and comment letters and blue-ribbon committees? Not so tough, it turns out.
You can't buy votes in a democracy, at least not directly, but our democracy is run through a bureaucracy. Human beings can cast a vote, or rally together during protests and elections, but real people – even committed professionals – get tired of running through mazes of motions and countermotions, or reading thousands of pages about swaps-execution facilities and NRSROs. They will fight through it for five days, or maybe even six, but on the seventh they will watch a baseball game, or Tanked, instead of diving into that morass of hellish acronyms one more time.
But money never gets tired. It never gets frustrated. And it thinks that drilling holes in Dodd-Frank is every bit as interesting as The Book of Mormon or Kate Upton naked. The system has become too complex for flesh-and-blood people, who make the mistake of thinking that passing a new law means the end of the discussion, when it's really just the beginning of a war.
This story is from the May 24th, 2012 issue of Rolling Stone.
Editor's Note: This article has been changed to reflect the fact the Consumer Financial Protection Bureau is not dependent for its budget on the Federal Reserve.
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