The initial proposal for Dodd-Frank addressed most of those concerns. As drafted, it would have created a system for shutting down failing megafirms, required swaps to be traded and cleared on regulated exchanges, and restored the spirit of Glass-Steagall through the so-called Volcker Rule, which would have prevented federally insured banks from engaging in dangerous speculation. It envisioned a powerful new Consumer Financial Protection Bureau to represent the interests of consumers against Wall Street, a bureau headed not by some banker stooge but by an actual consumer advocate and financial expert like Elizabeth Warren, the Harvard professor who came up with the idea. And it would have cleaned up the mortgage markets by ending predatory home-lending and forcing everyone in the market, from homeowners to banks to investors buying mortgage securities, to post real cash and keep "skin in the game" when buying or selling a mortgage.
Then, behind the closed doors of Congress, Wall Street lobbyists and their allies got to work. Though many of the new regulatory concepts survived in the final bill, most of them wound up whittled down to such an extreme degree that they were barely recognizable in the end. Over the course of a ferocious year of negotiations in the House and the Senate, the rules on swaps were riddled with loopholes: One initially promising rule preventing federally insured banks from trading in risky derivatives ultimately ended up exempting a huge chunk of the swaps market from the new law. The Volcker Rule banning proprietary gambling survived, but not before getting its brains beaten out in last-minute conference negotiations; Wall Street first won broad exemptions for mutual funds, insurers and trusts, and then, with the aid of both Treasury Secretary Tim Geithner and Sen. Chuck Schumer of New York, managed to secure a lunatic and arbitrary numerical exemption that allows banks to gamble up to three percent of their "Tier 1" capital, a number that for big banks stretches to the billions.
Then there was the Consumer Financial Protection Bureau, which went from being a powerful, independent agency run by Elizabeth Warren to a smaller bureau within the Federal Reserve System run by - well, anyone but Elizabeth Warren. With Geithner and Republicans in Congress blocking her once-inevitable appointment, we no longer had Warren playing watchdog to Federal Reserve chief Ben Bernanke - instead we had new CFPB head Richard Cordray, a former Ohio attorney general who enjoys far less of a popular mandate than Warren, forced to operate within the bureaucracy of Bernanke's Fed.
But the best example of how the watering-down process helped make Dodd-Frank ripe for a later killing was the question of Too Big to Fail. Obama, Geithner and the Democratic leadership in Congress never seriously entertained enacting the most obvious and necessary reform at all – breaking up the so-called "systemically important financial institutions" (the congressional term for "banks so huge we'll have to bail them out if they collapse"). Rather than simply stopping these firms from getting so big that they'd blow up the universe in a collapse, the Democrats opted for a half-clever semantic trick, claiming they had solved the future bailout question with Title II of the Dodd-Frank Act, known as the "Orderly Liquidation Authority" or "OLA" section of the bill.
In a nod to FDR, Title II would have forced major financial companies to pay $19 billion into an FDIC-style fund that would cover the cost of any future bailouts. But then the balance of power in the Senate was upset by the election of Republican Scott Brown to Ted Kennedy's seat in Massachusetts. As the clock wound down toward the bill's passage, Brown insisted on a change: Instead of making ginormous companies pay $19 billion in advance, the FDIC would first use taxpayer money to pay for any bailouts, and then spend years trying to recover that money from Wall Street by means of an assessment process so convoluted that you could grow a four-foot beard in the time it would take to understand it. Republicans managed to wrangle support, in conference, for the "bailout now, pay later" idea, and it made its way into the final bill.
Fast-forward to 2012. Rep. Paul Ryan, the self-styled Edward Scissorhands of Republican budget slashing, gathers the GOP leadership together and tells the chairman of each committee that he wants them, collectively, to come up with $261 billion in cuts. Ryan demands $35 billion of the cuts come from the Financial Services Committee, which oversees much of the regulatory apparatus that would enforce Dodd-Frank. The committee is now chaired not by the reform bill's namesake, Rep. Barney Frank, but by median-intellected Spencer Bachus of Alabama, who last year voted to delay Dodd-Frank reforms designed to prevent swaps disasters like the one that drove his home turf of Jefferson County into bankruptcy.
Bachus' solution to coming up with massive budget cuts? Eliminate the entire Title II section of Dodd-Frank. If another bank failed, Bachus argued, it would take way too long to recoup the bailout money from Wall Street through that crazy assessment process that Republicans themselves had insisted on only two years earlier. In the end, the logic went, taxpayers would wind up footing the bill anyway, so better just to scrap the entire plan to have the FDIC pay for the bailouts upfront – thus "saving" taxpayers some $22 billion.
The logic, of course, is complete nonsense. Without Title II, we'd be right back where we started – rushing to implement an expensive bailout in the midst of a crisis, without any way to make Wall Street repay the money. But because Democrats had preemptively surrendered on the original idea of forcing Wall Street to pay into an FDIC-style kitty ahead of time, Republicans were now in a position to push the whole bailout plan off the pier via a simple budget resolution.
To make up the rest of the $35 billion in budget cuts ordered by Paul Ryan, Bachus also proposed slashing Obama's mortgage-aid program and making the Consumer Financial Protection Bureau subordinate to a congressional appropriations process – meaning that its budget could be subjected to never-ending attacks by the GOP. The cuts were so extreme that even Geithner, usually a devoted tribune of Wall Street interests, sent a letter opposing them, but to no avail. The budget-slashing resolution passed the House this April.
The problem with attacking laws in Congress, of course, is that you need to control both chambers to make it stick. The Bachus-budget gambit may not have much of a chance of passing in the Senate, which is still controlled by the Democrats, but that won't faze opponents of Dodd-Frank, who have found an even more dependable arena for gutting the new law:
STEP 2: SUE, SUE, SUE
While death and taxes may be only relative certainties in today's economy – failing megabanks neither die nor pay taxes anymore – one thing that was always absolutely certain from the start was that Wall Street was going to sue the living hell out of Washington before the ink was even dry on Dodd-Frank. It took a little while, but the banks very quickly found a tried-and-true method of tying up the reforms in court.
Wall Street's first big win involved a small-but-important change known as the "proxy access" rule, which made it easier for people who own stakes in a company to remove directors from the board – giving shareholders more power to rein in corrupt or overpaid company executives. More democracy in business sounded like a good idea to almost everyone. But Wall Street has a dependable playbook for getting rid of any reform, no matter how small, that leads to greater accountability. "First, they hire a shit-ton of lobbyists to go to the regulators," says Jim Collura, spokesman for the Commodity Markets Oversight Coalition. "Then, they beat the crap out of them during the rulemaking process. And then, when that's over, they litigate the hell out of them."
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