STEP 5: PASS A GAZILLION LOOPHOLES
By the beginning of this year, as a result of all of these threats, delays and lawsuits, Americans could barely see Dodd-Frank's footprint in their everyday economic life. Yet Wall Street was still insufficiently convinced that key portions of Dodd-Frank were really dead. So it went over the heads of regulators and impelled Republicans in the House to create an avalanche of new laws designed to undercut the rules the CFTC and SEC were already heroically failing to write.
You might wonder how a bunch of lunkhead Republican congressmen would even know how to write a coordinated series of "technical fixes" to derivatives regulation, a universe so complicated that it has become hard to find anyone on the Hill who truly understands the subject. (One congressman who sits on the Financial Services Committee laughingly admitted that when the crash of 2008 happened, he had to look up "credit default swaps" on Wikipedia.) It turns out, they had help from the inside. Scott O'Malia, a Republican commissioner on the CFTC who formerly served as an aide to Senate Minority Leader Mitch McConnell, apparently sent a member of his staff over to the House to help the Republicans write bills to undercut the CFTC's authority. Originally a Bush appointee, O'Malia ignited a controversy when he was renominated to the CFTC by Obama because he had once been a lobbyist for Mirant, an energy company that was caught withholding power from California during blackouts. One of Mirant's subsidiaries was even fined $12.5 million for attempting to manipulate natural gas prices.
Now, Obama's own appointee is reportedly leading the charge against finance reform. "O'Malia has assigned a staffer to quarterback all of these bills," says Greenberger. "He's orchestrating a sort of under-cover-of-darkness approach to driving holes in Dodd-Frank."
The nine bills being contemplated by Congress take a variety of approaches to gutting Dodd-Frank. Two bills, H.R. 1840 and H.R. 2308, are essentially stalling tactics, requiring regulators to undertake more of those sweeping cost-benefit analyses that result in lengthy delays. Another bill, H.R. 3283, is more substantive: Sponsored by Connecticut Democrat and hedge-fund industry BFF Jim Himes, it exempts foreign affiliates of U.S. swaps dealers from all Dodd-Frank oversight. The rule, if implemented, would make the next AIG possible, given that AIG was undone by half a trillion dollars in derivative bets produced by such a foreign affiliate – its London-based financial products outfit, AIGFP. If passed, says Rep. Brad Miller, a Democrat from North Carolina, H.R. 3283 would leave a "massive, gaping hole" in Dodd-Frank. "It would be very easy to move those trades to whatever the most indulgent country would be," Miller explains.
The bill also exempts from oversight any swaps deals between company affiliates – meaning that Goldman Hong Kong can sell swaps to Goldman New York without having to deal with Dodd-Frank. That sounds harmless, but when you combine it with the AIG-style exemption, a bank would basically be able to get around Dodd-Frank entirely by creating its swaps products at an overseas branch, or moving them back and forth between affiliates.
An even more distressing bill, which recently raced through the committee process with a simple voice vote, is H.R. 3336, granting broad exemptions from swaps regulations to any company that offers "extensions of credit" to customers. There are some who are convinced that once the financial industry's lawyers get hold of this "extensions of credit" line, they will use it to win exemptions for banks engaged in almost any kind of lending activity – including those involved with municipal-bond offerings, one of the most dependably corrupt businesses in the American economy.
"If all of these bills pass," says Stanley, "I don't know why we wouldn't just invite the industry lobbyists in to rewrite the rules."
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