Let’s start with a thank you to New York Attorney General Eric Schneiderman, for keeping the 2008 financial crisis alive. Just as the problems that led to the Dodd-Frank Act were starting to fade from memory, last week Schneiderman lobbed in a reminder from the deep left field of memory, reaching a $10 million settlement with EY for its role in auditing the financial statements of Lehman Bros.—the bank that went bankrupt in September 2008 and caused so much of the crisis that followed.
We will hear lots of discussion in coming months about regulatory burdens of the Dodd-Frank Act, for two reasons. First, the five-year anniversary of the law arrives on July 21, 2015, which means plenty of commentary on how well the law may or may not have achieved its objectives since 2010. Second, our Republican-dominated Congress is in session, which means plenty of that commentary will be variations on the theme “no.”
So as we endure all that chatter to come, let’s pause for a moment to remember the actual financial crisis that happened, and what everyone wanted the Dodd-Frank Act to achieve at that time. Unchecked lending in the mortgage market led to a huge increase in mortgage assets; which led to a huge increase in mortgage-backed derivatives trading without proper oversight; which led to a freeze in the commercial paper market; which led to the collapse of Lehman and other supposed Wall Street giants that really were houses of cards.
Also remember that when the financial crisis struck, we didn’t respond with the Dodd-Frank Act right away. We responded with the Troubled Asset Relief Program, pumping $700 billion into the banking sector to keep those troubled assets alive until banks could unwind their risky holdings. The Dodd-Frank Act came nearly two years later, with a simple premise: prevent taxpayer bailouts of the banking sector from ever being necessary again.
This is probably where compliance officers are thinking, “If that was the premise, then how did I ever end up spending so much of my time worrying about conflict minerals and CEO pay ratios?”
That’s a fair question. Somehow, between the dark days of the Lehman collapse and where we are today, the Dodd-Frank Act drifted far, far away from what the public intended it to achieve.
To my thinking, three recent articles capture the drift of Dodd-Frank. First we have Compliance Week’s own coverage of pending diversity disclosure requirements, one of the sleeper compliance issues likely to catch companies off-guard this year. Second is another Compliance Week article looking at the second year of conflict minerals compliance, and how unprepared many companies are to start auditing their conflict mineral risk. Both evoke the fundamental criticism many people have about so much of Dodd-Frank: what on earth do they have to do with preventing another financial crisis?
The truth is, they don’t. Liberal Democrats in Congress squeezed those provisions into the law because Democratic leadership needed their votes to get the law passed. Nothing is morally wrong with either clause in principle. Lots of people embrace the idea of cutting off African warlords from the money that conflict minerals provide; I’m one of them. Lots of people want to see more women and minorities achieve positions of influence in Corporate America; I’m one of them too.
But neither one has much to do with preserving the financial system, and never should have been in the Dodd-Frank Act in the first place. So when Republicans complain about the bloated piece of legislation that Dodd-Frank is—yes, they say that because so many of them are the paid shills of Wall Street banks pouring money into their campaign coffers. And they still have a point.
Before any of us get carried away, however, with Republican legislation this spring to “reform” Dodd-Frank, we would all do well to read the third article that caught my eye lately: a New York Times column exploring Dodd-Frank reforms proposed by Thomas Hoenig, vice-chairman of the Federal Deposit Insurance Corp. Hoenig has outlined a plan for regulatory relief that makes sense: give relief only to the low-risk banks, that never had much responsibility for our predicament in the first place.
Hoenig’s plan would bring relief to roughly 6,100 of the 6,500 commercial banks in the United States, most of them smaller institutions that don’t dabble in derivatives. He would bring relief to banks with a capital level of 10 percent or more, again helping smaller banks with simpler businesses models more than anyone else. Which banks would his plan not help? Citigroup, Bank of America, JP Morgan, Goldman Sachs, and the like. Well, let’s be honest: other than politicians taking Wall Street money, those banks don’t have much political support anyway.
I have no illusions that the most vexing parts of the Dodd-Frank Act for compliance officers—conflict minerals, CEO pay ratios, diversity disclosures, and more—will ever be rescinded. For better or worse, those burdens are here to stay. But before our springtime of discontent in Congress, with all manner of ideas to reform Dodd-Frank, most of them bad, we cannot forget how the financial crisis happened and what the law’s fundamental goal was.
This was a problem of the banking sector taking too many risks. Hoenig proposes to reform the burden on banks that took fewer risks. If we’re going to do reform anywhere, let’s keep our eye on the ball and start there.
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