WASHINGTON, July 18 (Reuters) - On the surface, it looks
like the Dodd-Frank financial oversight law is in trouble.
U.S. regulators are months behind schedule in rulemaking,
Republicans have succeeded in holding agency funding hostage,
and odds are good that the business community will win its
first court challenge to an important provision.
On top of that, Republicans and Wall Street titans are
selling a doomsday scenario of Dodd-Frank killing the
struggling economic recovery. Behind the scenes, though, a sort
of acceptance is setting in.
"There are people who are... using budget conversations and
other delay-type of activities to water down or substantively
change Dodd-Frank. But I'd say the majority of people are
saying, 'It is what it is,'" said Todd Groome, the chairman of
the Alternative Investment Management Association, a global
hedge fund industry group.
"Let's try to make it work," Groome said.
Democrats, led by Senator Christopher Dodd and
Representative Barney Frank, triumphed a year ago in forcing
through broad market reforms in response to the worst financial
crisis in generations and a severe recession.
The legislation reins in banks' risky trading, cuts into
Wall Street bonuses, calls for stricter oversight of hedge
funds, and sheds light on the roughly $600 trillion global
derivatives market that played a role in bringing the global
financial system to its knees.
There have been persistent cries for repeal of the
Dodd-Frank law or significant revisions.
But with Democrats in control of the upper chamber of
Congress and President Barack Obama able to defend Dodd-Frank
with his veto pen, efforts by Republicans to substantially
scale back the law seem unlikely to succeed.
"It requires bicameral action and agreement between the
Congress and the President to change the law. It is therefore
unlikely, even with passions running high, that a dramatic
overhaul could be whisked through the system," said Chris Cox,
the Republican chairman of the Securities and Exchange
Commission during the height of the financial crisis. He is now
a partner at law firm Bingham McCutchen.
That is not to say the new regulations are entirely safe.
Industry watchers and lawmakers have pointed to three avenues
that could be used to alter the bill's shape and scope:
legislative and budgetary changes, legal challenges, and direct
lobbying to the regulators.
SHOW ME THE MONEY
Most proponents of Dodd-Frank say the biggest threat to
carrying out the legislation is starving it of funding.
Despite a pledge in the law to bolster funding for
regulators, efforts by Republicans to slash government-wide
spending are poised to leave the SEC and Commodity Futures
Trading Commission without the resources needed to police the
very rules they are now scrambling to write.
"On the funding issue, this is a problem of major
proportions," said Barbara Roper, director of investor
protection for the Consumer Federation of America. "It's a
problem for the SEC. It's a crisis for the CFTC."
Frank, the ranking Democrat on the House Financial
Services Committee, said his No. 1 concern is getting funding
to implement the law. "If they don't fund the SEC and CFTC,
they will get slowed down," Frank said.
SEC Chairman Mary Schapiro said her agency is in "very
good shape" for writing dozens of new rules. But without more
people, including examiners to conduct exams of hedge fund
managers, those rules will be tough to enforce.
"We're going to have to make some very hard choices about
how we utilize the resources that are available to us,"
Schapiro said in an interview with Reuters.
THROW DOWN THE GAVEL
Regulators are already bracing for legal challenges to
particularly controversial provisions in the Dodd-Frank law,
such as the CFTC's speculative position limit rules, the SEC's
conflict minerals disclosure provision, and the
constitutionally of the Financial Stability Oversight Council.
"We'll be challenged," Bart Chilton, a Democratic CFTC
commissioner told Reuters. "We think about litigation risk all
the time, as we're preparing the rules we think about it."
Already the U.S. Chamber of Commerce and the Business
Roundtable are testing the waters with a legal challenge to the
SEC's new rule that would make it easier for shareholders to
nominate directors to corporate boards. They are accusing the
SEC of failing to follow federal rulemaking procedures by
inadequately weighing the rule's economic benefits and costs.
Flaws in cost-benefit analyses have seen SEC rules voided
in the past, and challenges on this basis could become a tool
for the industry to slow rules that hit their profits.
"The court route is going to work in individual cases,"
said Donald Langevoort, a professor at Georgetown University
Law Center who specializes in securities regulation.
He said he expects the SEC's proxy access rule to be struck
down in court soon. But he said legal challenges won't amount
to an all-out assault on Dodd-Frank.
"I suspect that it is a card that individual members of
industry can't play too often," Langevoort said. "I think they
have to pick their spots."
Schapiro said she does not know if more SEC rules will be
challenged. She said the agency is focused on carrying out what
Congress asked them to do. "I can only live in the here and
now," Schapiro said.
SLOWING THE TRAIN
With little shot of getting major changes through the
legislative process, the industry has been working closely with
regulators to steer the direction of the rule-writing process.
Already there has been some signs of success.
The SEC and CFTC, for instance, have granted industry
requests to delay the implementation of numerous derivatives
rules that were slated to go into effect July 16.
They have also extended comment periods and taken actions
to improve their process for weighing the costs and benefits of
the rules to the economy.
U.S. House and Senate Republicans have taken some credit
for pressuring regulators to slow down and embrace a more
measured approach to the rule-writing.
"We've already achieved several changes by the regulators
by pointing out deficiencies with the bill," said House
Financial Services Chairman Spencer Bachus. "The regulatory
process has been more effective."
But Democrats and investor advocacy groups have expressed
concern that regulators are succumbing to pressure by powerful
Wall Street banks to water down the rules.
"They're under a lot of pressure from people who are
finally supposed to be re-regulated," said Democratic Senator
Carl Levin. "Some of the delays sort of instinctively make you
worry... 'Are they really going to be able to stick with the
intent of what we did?'"
(Reporting by Sarah N. Lynch and Christopher Doering)