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FinReg’s Last Day

(Please see the update. The derivatives offer is a lot worse than I thought.)

An odyssey that started back in December in the House could finally culminate today, with the finishing touches put on the Wall Street reform bill as the conference committee winds up its work. With so many consequential issues still yet to be fully decided, it’s hard to know how to judge that finished product. But I’ll briefly go over some of the highlights of what has been decided (this is by no means comprehensive; it’s a huge bill):

• Housing. The bill has become a fairly decent anti-predatory lending bill, with restrictions on no-doc “liar loans,” steering by brokers into high-risk mortgage products, abusive “reverse mortgages,” and a multitude of other unscrupulous activities. While this does nothing for the current foreclosure crisis, it does protect borrowers in the future. Fannie Mae and Freddie Mac, the large GSEs which have backstopped the housing market at enormous taxpayer cost, have not yet come under scrutiny for reform in this bill. They didn’t even get their Inspector General reinstated.

• Consumer protection. In addition to the mortgage provisions, the Consumer Financial Protection Bureau, though housed at the Federal Reserve, will have an independent budget and mostly independent rulemaking authority. By mostly, I mean that the systemic risk council can overrule CFPB regulators with a 2/3 vote, if they believe any regulation impacts the safety and soundness of banks. Also distasteful is the carve-out for auto dealers, which in all likelihood will make its way into the bill (CFPB may be given the authority to have auto dealers comply with truth in lending rules). The brainchild of the consumer protection agency, Elizabeth Warren, basically supports it in this incarnation.

• Resolution authority. It won’t be pre-funded with bank money, it won’t have the global outreach needed to wind down banks with international exposure, and it basically won’t do what it’s intended to do. You’ll notice I don’t talk much about it. Same with the ballyhooed “systemic risk council.”

• Credit rating agencies. They’ll now be liable for their negligence like any other trader. A study (one of over 30 in the bill) would have to come up with a way to end the issuer-pays model for rating agencies, and would give priority to Al Franken’s solution of an SEC office assigning the products for initial ratings. Most of the statutory language around mandating top-rated NRSRO products will get excised from the regulatory code.

Now, here are a few things that will get figured out today.

• Interchange fees. This is basically done, but House conferees may take another crack at it, weakening the provision of limiting debit-card fees to merchants on behalf of credit unions. Dennis Moore (D-KS) and Gary Peters (D-MI), a retiring Congressman and a freshman, are leading the effort. If they have this much power with that profile, something’s wrong.

• Capital requirements. Jackie Speier’s 15:1 hard leverage cap still exists, but it got watered down by the Senate last night, with the Federal Reserve and the systemic risk council allowed to apply it only to “risky” firms. Smaller banks get away with still getting to classify their trust-preferred securities as capital to satisfy other capital requirements, and yes, Blanche Lincoln got her carve-out for the Walton family bank on this. The House still has to concur on this front.

• The Volcker rule. It looks as if lawmakers will force less discretion from regulators on implementing the Volcker rule, but the carve-outs sought by Scott Brown for the benefit of State Street Bank and some other Massachusetts concerns look like they’ll make it in. Specifically, banks would be allowed to invest up to 2% of core capital in private equity or hedge funds, undermining the spirit of the Volcker rule. And mutual funds may be exempt from the provision, along with even some derivatives.

TPM needs to change their narrative, by the way. Russ Feingold never said word one about voting for the bill if the Volcker rule wasn’t weakened. He wanted a bill that would actually work on day one, which would require a number of provisions that simply aren’t going to make the finished product. The balancing act Chris Dodd is trying to pull off is to simultaneously strengthen and weaken the provision, and I’m certain Feingold would buy that.

• Derivatives. This has been the looming nightmare for Democratic conferees; how to come up with a set of rules on derivatives that would satisfy the corporacrats in the caucus, while also allowing Blanche Lincoln, the newfound hero of the common man, to save face. The House offer on derivatives doesn’t look too bad. Section 716 is fully intact (that’s the provision forcing mega-banks to spin off their swaps trading desks), and the exemptions on what trades get cleared and what capital requirements need to be raised are relatively minimal, though still worth fighting. We’ll hear a lot today about Section 754:

However, one analyst identified an end-run the House may be attempting. Section 754 of the offer says that “the Bank Holding Company Act of 1956 is amended by striking ‘commodities activities’ each place it appears and inserting ‘commodities and swap activities,’ which would make the swaps desks a ‘functionally regulated subsidiary.'”

That would mean that a bank getting taxpayer assistance through the Federal Reserve window would still be required to spin off its swaps desk, but it could maintain it within a separate section of the bank holding company that isn’t getting government assistance. “This is not as strong as a complete spinoff, but it still will have positive implications for the derivatives markets in the medium to long term,” Adam White, director of research at White Knight Research & Trading, told HuffPost. White is a backer of Lincoln’s original language.

There are over 100 proposals in the House offer, and the maddening complexity has even made some experts throw up their hands. In general, however, this is a pretty decent start, though obviously, that could change.

All these rules and regulations have a half-life; the banks spend good money to figure out ways around them. The exemptions and carve-outs will create new markets and new products where none before existed. The big, dumb, simple regulations, like on bank size or Glass-Steagall separation, would have sustained themselves for much longer. Still, a good bit of what’s left matters, and could make the financial sector at least a bit more sane and possibly even more boring.

I’ll be monitoring throughout the day.

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David Dayen

David Dayen