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FinReg Passes Conference: Details on Volcker Rule, Section 716 Provisions

Lawmakers worked into the night and came up with an oddly unsatisfying compromise on the two most contentious issues left in financial reform, with the final package voted upon at 5:30 this morning (ET). But hey, that was on C-SPAN, so eight people did probably get to see it. Transparency!

This bill has officially been renamed Dodd-Frank. So let’s see what they’ve done:

• Volcker rule: the contours of the Dodd counteroffer survived, with both a crisper Volcker rule that regulators will have little discretion but to implement, and also a carve-out created basically for Scott Brown, which allows banks to continue to invest up to 3 percent of common capital in hedge funds or private equity funds. While speculative trading on the bank’s account will be prohibited, depositor money could flow through that loophole into those investments. McClatchy has more.

• Section 716: This is a classic Washington compromise. Reformers wanted the mega-banks to have to spin off their entire swaps trading desks into separately capitalized subsidiaries. Banks argued that it would be too costly and would drive that trading into the shadows. So what have they done? Put half of the trades, the riskiest ones including credit default swaps, onto the separate subsidiaries, while allowing the bank to still trade interest rate and currency swaps as before. This makes almost no sense to me. It bifurcates the market in derivatives and allows plenty of risky trading to still accrue in the bank. Or does it:

Under the agreement banks would only spin off their riskiest derivatives trades. Banks get to keep some of their lucrative business based on trades in derivatives related to interest rates, foreign changes, gold and silver. They could even arrange credit default swaps, the notorious instruments blamed for the meltdown, as long as they were traded through clearing houses. Banks also would be allowed to trade in derivatives with their own money to hedge against market fluctuations.

So basically, Blanche Lincoln lost most of the measure. She rode in on her white horse and just gave up at the end. I’m sure this will position her well for re-election.

• Bank fee: I did talk about a bank fee yesterday, and it came to pass. Lawmakers had a money problem at the tail end of the bill: it didn’t meet paygo rules, because the resolution authority pre-fund was eliminated. So instead, the bill now just levies $19 billion on the largest banks and hedge funds. Banks with more than $50 billion in assets and hedge funds with more than $10 billion are eligible for the levy, which will be collected over five years.

We don’t have the full text of Frank-Dodd, or a summary quite yet – in fact, little is known about the REST of the derivatives package outside of Section 716. Barney Frank promised that the legislation’s text would be up for at least 72 hours before it goes back to the House and Senate for final passage. Some liberals threatened to bolt on a bill that gets “weaker by the day,” in the words of Byron Dorgan (D-ND), but in the end I suspect they’ll fall in line.

UPDATE: A bit more from CQ.

Under the derivatives compromise, banks will be able to keep their business in derivatives tied to interest rate swaps, which represent a huge swath of the market. Banks would also be permitted to continue to trade in derivatives related to foreign exchange swaps, credit, gold and silver, investment-grade credit default swaps and any transaction used to hedge risk.

Financial institutions will need to divert derivatives related to commodities, energy, metals, agriculture, equities and below-investment-grade credit default swaps into a separately capitalized entity walled off from federally insured deposits.

Any credit default swaps — a type of derivative linked to the meltdown of insurance giant AIG — remaining in the bank would go through a central clearinghouse. A clearinghouse acts as a neutral third-party that guarantees a derivatives trade.

Given that you can say practically anything is “used to hedge risk” if you’re creative about it, this represents virtually no change. And note how the rating agencies are crucial here. Only below-investment-grade CDS goes off to the separately capitalized entity.

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David Dayen

David Dayen