Republicans’ Paths to Unraveling the Dodd-Frank Act

http://www.nytimes.com/2017/01/30/business/dealbook/republicans-unravel-dodd-frank-act.html

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President Trump took aim at financial regulations and other federal rules on Monday, signing an executive order to trim back the federal regulatory thicket and promising to do “a big number” on Obama-era Wall Street restrictions.

At the same time, congressional Republicans opened their own front against the Dodd-Frank Act, the law that overhauled financial regulation after the 2008 financial crisis. And with Mr. Trump in the White House, Republicans who previously challenged Dodd-Frank now see success in their sights after years of futility.

“Dodd-Frank is a disaster,” the president declared during a 10-minute session with reporters as he signed an unrelated executive order that could reduce other types of government regulations.

“We’re going to be doing a big number on Dodd-Frank,” Mr. Trump added. “The American dream is back.”

In reality, the president cannot unravel Dodd-Frank with a stroke of a pen, and congressional Republicans will find it easier to chip away at the law than to repeal it altogether.

Defanging Dodd-Frank, a sweeping law that created a consumer protection agency and reined in mortgage practices and derivatives trading, would also seem to contradict Mr. Trump’s anti-Wall Street language from the campaign trail. His closing campaign ad, which lamented a “global power structure” and a “corrupt machine,” flashed an image of Lloyd C. Blankfein, the chairman and chief executive of Goldman Sachs.

But the president has spoken out against Dodd-Frank, claiming that eliminating it would benefit working people, even as he stocks his administration with former Goldman executives and billionaires.

His allies in Congress began their legislative assault on Dodd-Frank on Monday, introducing a measure to repeal a Securities and Exchange Commission regulation that requires oil companies to publicly disclose payments they make to governments when developing resources around the world. The regulation was tangential to Dodd-Frank’s mission of reforming Wall Street but was included as a bipartisan effort intended to shine a light on potential bribes.

Republicans argue that the rule puts American companies at a disadvantage; the House Financial Services Committee has called it a “politically motivated mandate.” And the rule has some powerful opponents in the industry, including Exxon Mobil and, according to one account, its former top executive, Rex W. Tillerson, Mr. Trump’s pick for secretary of state.

The legislation to repeal the rule, introduced by Representative Bill Huizenga of Michigan and advanced to the House floor by the rules committee on Monday, has a good shot of becoming law thanks to an obscure parliamentary procedure. Under the Congressional Review Act, passed in 1996, Congress has a limited window to undo newly finalized regulations using only 51 Senate votes, rather than the normal 60 needed to overcome a filibuster. Republicans hold a majority in both chambers, all but guaranteeing them success.

This effort is just the beginning. House Republicans are also moving bolder legislation that would repeal crucial provisions of Dodd-Frank, including the so-called Volcker rule, which prevents banks from making risky bets with their own money. And they are exploring ways to use the budget process to potentially defund some of the law’s most contentious provisions.

Still, each strategy has its limits. The House legislation to repeal Dodd-Frank could stall in the Senate, where it needs 60 votes. And even though the Congressional Review Act requires only a majority of lawmakers to repeal a rule, only 10 or so Dodd-Frank rules are vulnerable to this process.

“It is the height of hypocrisy for Republicans to now be wasting time attacking rules signed by the former president, which went through a rigorous vetting process,” said Representative Louise M. Slaughter of New York, the top Democrat on the rules committee.

Even the president’s latest executive order could have a minor impact.

The order says each new rule must be offset by regulatory cuts that save at least twice as much money. It also instructs the Office of Management and Budget to set annual limits on the total cost of rules issued by each department. For the current year, the limit is set at zero.

“This will be the largest cut ever, by far, in terms of regulation,” Mr. Trump said hyperbolically.

But the order does not apply to independent agencies like the Federal Reserve and the Consumer Financial Protection Bureau, limiting its effect on financial regulation. Independent agencies could choose to comply but are unlikely to do so while under the leadership of people appointed by President Obama.

In addition, the order includes a broad exemption for “emergencies and other circumstances.”

Despite the obstacles, there are a number of different tactics that Republicans can use to try to dismantle Dodd-Frank.

Dodd-Frank opponents owe Newt Gingrich a debt of gratitude.

The Congressional Review Act, passed some 20 years ago as part of his Contract With America, provides lawmakers at least 60 days to introduce legislation disapproving major new regulations. The lawmakers can ultimately repeal the regulations with support from just a majority of lawmakers and the president. The Congressional Research Service has determined that rules sent to Congress on or after June 13 of last year are vulnerable to repeal.

Until now, the Congressional Review Act was not much of a weapon. It has led to a repeal measure being signed into law only once, in 2001, when Republicans and President George W. Bush wiped out workplace safety regulations adopted near the end of President Bill Clinton’s administration.

But Republicans have identified dozens of potential rules to override, some of which arose from Dodd-Frank, according to congressional documents reviewed by The New York Times.

Republicans can target a derivatives rule adopted last year by the Commodity Futures Trading Commission, a Consumer Financial Protection Bureau rule for prepaid debit cards and a rule approved by banking regulators that imposed capital requirements for banks that trade derivatives. The threat also applies to any unfinished rules that the consumer bureau completes, including its looming crackdown on payday lending.

The S.E.C. oil-payment rule is the first of five Obama administration rules scheduled to be challenged this week. The House rules committee advanced the legislation to repeal that rule on Monday over the objections of the panel’s Democrats, who argued that Republicans were misusing the Congressional Review Act to undermine Dodd-Frank.

The oil-disclosure policy has already had a tortured history. The S.E.C. completed the rule in 2012, with the support of antipoverty groups like Oxfam and the One Campaign, but the American Petroleum Institute, the trade group representing Exxon Mobil and other oil companies, sued the agency and won.

In 2013, a federal judge in the District of Columbia vacated the rule. It took the S.E.C. another three years to redo the rule, which it finally did in June of last year, opening it to Republican attack under the Congressional Review Act.

“What they’re doing is responding to a narrow interest within the industry that is trying to be secretive,” said Senator Benjamin L. Cardin of Maryland, the top Democrat on the Senate Foreign Relations Committee, who sponsored the amendment in Dodd-Frank along with former Senator Richard Lugar, a Republican.

If the Congressional Review Act is a scalpel, then the Financial Choice Act is a sledgehammer.

The legislation, introduced last summer by Representative Jeb Hensarling, the chairman of the House Financial Services Committee, represents the most comprehensive response to Dodd-Frank yet.

The bill would repeal the Volcker rule as well as the so-called Durbin amendment, which set a limit on fees retailers are charged for debit card transactions. It would replace Dodd-Frank with a more flexible regulatory structure.

After a false start under President Obama, Mr. Hensarling’s plan to repeal and replace Dodd-Frank could gain new life from Mr. Trump.

“Republicans on the Financial Services Committee are eager to work with the president and his administration to unclog the arteries of our financial system so the lifeblood of capital can flow more freely and create jobs,” Mr. Hensarling said in a statement.

He hopes to pass the bill this year — with his committee expected to take it up in the coming weeks — but that is no sure thing.

For one thing, the deep-pocketed banking lobby is not unanimous in its support of Mr. Hensarling, a Texan with a populist streak whose plan is arguably more geared toward small banks than big ones. Many of the biggest banks, creatures of habit that have already adjusted to much of Dodd-Frank, would prefer specific accommodations, rather than wholesale repeal of the law.

Mr. Hensarling’s plan would also need to merge with legislation offered by Senate Republicans. And even then, they would need some Democrats to reach 60 votes.

House Democrats have vowed to fight Mr. Hensarling.

“This bill is so bad that it simply cannot be fixed,” Representative Maxine Waters of California, the top Democrat on Mr. Hensarling’s committee, said of his bill last year.

If his straightforward legislation stalls, Mr. Hensarling may find comfort in the minutiae of the budget reconciliation process.

In the next six weeks or so, his committee is required to submit its “budget views” for 2018 to the House Budget Committee. In this document, Mr. Hensarling is expected to recommend a number of measures that could rein in some core aspects of Dodd-Frank.

For example, he will most likely recommend replacing regulators’ authority to wind down troubled banks with a new chapter of the bankruptcy code. He also could tinker with the funding for two bodies that Republicans love to hate: the Consumer Financial Protection Bureau and the Financial Stability Oversight Council, a collective of regulators who monitor threats to the financial system.

By subjecting these bodies to the congressional appropriations process, rather than a dedicated funding mechanism, Congress may be able to cut their funding.

It is unclear whether this plan will gain traction with congressional leaders.

While Congress is busy fighting Dodd-Frank, the Trump administration’s financial regulators may prove that less is more.

Wall Street is hoping that with new leaders at the S.E.C. and the Commodity Futures Trading Commission, regulators may allow some leeway for violations of the Volcker rule and other regulations.

And while most of Dodd-Frank has been completed, there are rules left to set, including restrictions on executive compensation. Under the Trump administration, those rules may remain unfinished business.