Obama-Dodd-Frank FinReg Monstrosity Delays Derivatives Curbs until 2022!

Webster G. Tarpley

TARPLEY.net

July 15, 2010

The Obama-Dodd-Frank financial regulation bill, a miserable excuse for real Wall Street reform, is now about to gain final approval in the Senate. This wretched bill is now supported by the New England liberal (meaning Wall Street) Republican clique including Olympia Snow, Susan Collins, and Scott Brown, who are joined by the notoriously corrupt reactionary Democrat, Ben Nelson of Nebraska. This bill will create a multitude of new regulations and a number of large new bureaucracies, but it is utterly devoid of any bright-line prohibitions against the causes of the financial panic which struck the United States in 2008, and which continues to the present day in the form of a world economic depression.

The cause of the 2008 banking panic was that zombie banks and hedge fund hyenas were speculating with toxic and highly leveraged derivatives. The new bill does virtually nothing to attack the causes of this ongoing financial disintegration. It is a total defeat for the interests of the American people, and an historic victory for the Wall Street financier oligarchy which owns both the Democratic and Republican parties.

Stockbrokers and investment bankers have battled mightily to avoid any legal compulsion to act in the best interests of their clients, who are often the retail investors which both parties claim to care so much about. The new bill will not prevent unscrupulous used-car dealers from ripping off their customers through inflated financing costs. There is nothing in the bill to stop the plague of foreclosures, which last year turned almost 4 million American families into displaced persons on the home front. There is no ban on the disastrous use of Adjustable Rate Mortgages (ARMs), the financial equivalent of time bombs, which are ruining the lives of so many millions of Americans. There is no cap on leverage banks can use in financial transactions. Despite widespread complaining about the Federal Reserve, this bill gives the Fed more regulatory power rather than less. It represents the complete triumph of the Wall Street derivatives lobby, so much so that even hardened cynics are astounded by the impudence and insolence of Obama and both parties in the Congress.

The graveyard of Hope and Change

Senator Dorgan proposed an amendment to abolish the concept of banks that were too big to fail. His amendment was rejected. Senator Kaufman tried to limit the size of banks, but his amendment was deleted. Senator Whitehouse tried to limit interest rates on credit cards and predatory payday loans, or at least to allow states to regain their regulatory role in this area, but he was defeated. Granted, many of these amendments were mere public relations exercises that were always virtually doomed to failure.

Senators McCain and Cantwell tried to restore the firewall, contained in the landmark Glass-Steagall Act of 1933-1999, which rigorously separated commercial banks with FDIC insured deposits on the one hand from investment banking and stock-jobbing on the other. Glass-Steagall was one of the signature legislative achievements of the New Deal, and there are few better illustrations of the deep hostility of the modern Democratic Party and of Obama in particular to the heritage of Franklin D. Roosevelt than the stubborn refusal of the degenerate Democrats of today to force through the necessary restoration of the Glass-Steagall protections – even in the wake of a breakdown crisis of the entire Anglo-American banking system.

Senator Blanche Lincoln of Arkansas, who is fighting for her own political survival because of her record of subservience to Wall Street, tried to redeem herself with paragraph 716 of title VII of the bill, an attempt to ban trading in credit default swaps (derivatives) by FDIC banks. Notice that by this point there was no effort whatsoever to prevent these banks from dealing in collateralized debt obligations (CDOs), which were the toxic derivatives which destroyed Bear Stearns, Lehman Brothers, Merrill Lynch, and Citibank. Nor was there any effort to curb the use of structured investment vehicles (SIVs), toxic instruments which are often used as the final packaging of a mass of CDOs and other kited derivatives. Still, since credit default swaps had been the main culprits in the bankruptcy of AIG, costing the American taxpayer $182 billion and counting, it would have been a meritorious project to keep commercial banks away from these diabolical instruments.

But it was not to be. In a dirty deal negotiated far away from the C-SPAN cameras, Dodd, Frank, and Rahm Emanuel completely gutted any effort to get commercial banks out of the business of placing side bets using credit default swaps. At a certain point in the televised reconciliation hearings, Congressman Peterson of Minnesota, the chairman of the House Agriculture Committee, came forward with a compromise which made paragraph 716 into a macabre joke. The infamous Peterson demanded that banks be allowed to trade credit default swaps in the form of foreign exchange swaps ( thought to be the largest category of swaps), interest-rate swaps, and credit derivatives – provided that the underlying securities were investment-grade. Since these categories represent the vast majority of swaps, and since it is not hard to procure an investment grade rating on junk paper from corrupt agencies like Standard & Poor’s, Fitch, and Moody’s, this alleged compromise meant that nothing was left of Senator Lincoln’s attempt. Treasury Secretary Tiny Tim Geithner had vehemently proclaimed the irreducible hostility of the Obama regime to any interference with this type of derivative. Interestingly, the German government had already explicitly banned naked credit default swaps issued as bets on government securities denominated in euros.

Since the restoration of the real Glass-Steagall firewall had been defeated early in the process, Senator Cantwell attempted to provide a weak face-saving substitute in the form of the so-called Volcker rule, which posited that commercial banks were not allowed to engage in speculation and other proprietary trading for their own account. This Volcker rule was already vitiated by the obvious gray area between speculation and so-called market-making, which entities like Goldman Sachs and Morgan Stanley were sure to exploit to circumvent any new legislation. However, zombie banks like State Street Bank and Bank of New York-Mellon (the latter the back-office of the TARP program. i.e. the October 2008 Wall Street bailout) found even the weak Volcker rule to be too onerous.

Demagogue Scott Brown Drives His Truck Through the Volcker Rule

Senator Scott Brown of Massachusetts won election last January by duping gullible voters with a cultural populist prop in the form of a pickup truck. At this point in the haggling, Senator Brown documented his subservience to Wall Street by driving his truck through what remained of the Volcker role. He forced through a provision allowing commercial banks to use 3% of their capital for speculation through hedge funds. It might seem that 3% is a minute fraction of a bank’s Tier I capital, and that Brown’s amendment might not be so dangerous after all. But this is not the case.

If you buy stocks and their price falls to zero, you can lose 100% of your investment, but no more. But when you are dealing with derivatives, your losses can be geometrically pyramided into interplanetary space. This proposition is not a matter of theory, but has been documented through a decade and a half of bankruptcies by hedge funds which had been speculating with derivatives, all the way back to Long-Term Capital Management of Connecticut in 1998.

Cantwell Recants

In the case of two Bear Stearns hedge funds which imploded in 2007-8, losses of about 50 times the original capital were attained. Under Scott Brown’s loophole, losses of 50:1 would already be enough to bankrupt the bank. But the 2008 crisis offers cases in which derivatives losses might attain or exceed 100:1 on the capital being wagered. These cases occur when debt instruments are wrapped into a mortgage-backed security or other asset-backed security. These latter are then included in a collateralized debt obligation, which together with other collateralized debt obligations can be made into a super CDO or CDO². Credit default swaps can be attached to these super CDOs. A number of super CDOs thus equipped can then be wrapped up in a structured investment vehicle (SIV). At every level of this cancerous mass of kited derivatives, leverage comes into play geometrically. The investment of 3% of capital in such a poisonous concoction can easily bankrupt any financial institution many times over. This phenomenon is one of the basic reasons why losses were so great in 2008, despite the fact that subprime mortgages are a relatively marginal area of the financial world. The losses became so monstrous because derivatives are the most effective tools yet devised for magnifying and multiplying financial destruction. As for Senator Cantwell, she capitulated and announced that she would support the resulting phony bill anyway.

Perhaps the members of the Massachusetts Tea Party would like now to contemplate their own roles as dupes and useful idiots for the Mitt Romney faction of Wall Street asset strippers and hedge fund hyenas, who are the people who put Scott Brown into office. From now on, Brown should be referred to on Capitol Hill as the senator from Bank of New York-Mellon, since he has no regard for the welfare of the people of Massachusetts.

But even this 3% loop hole, big enough to drive a truck through, was still too restrictive for Wall Street. The army of Gucci-clad lobbyists decided that even these nominal restrictions had to be postponed for more than a decade, quite possibly in the hopes that they may be overturned by some future reactionary majority likely to emerge amid the shipwreck of the feckless and treacherous Obama regime.

Plenty of Time for More Financial Catastrophes Before 2022

At the time of the reconciliation hearings, the remaining Volcker rule provisions were apparently supposed to take effect after seven years, allegedly to give the swaps-jobbers time to unwind their positions. But after the C-SPAN televised reconciliation proceedings were over, dark forces loyal to Wall Street revisited the conference report and introduced even longer delays in implementing even the meager restraints on credit derivatives. This crime appears to have occurred on June 28-29. On the Bloomberg Business Week website we read a report dated June 29:

Goldman Sachs Group and Citigroup Inc. are among U.S. banks that may have as long as a dozen years to cut stakes in in-house hedge funds and private- equity units under a regulatory revamp agreed to last week. Rules curbing banks’ investments in their own funds would take effect 15 months to two years after a law is passed, according to the bill. Banks would have two years to comply, with the potential for three one-year extensions after that. They could seek another five years for ‘illiquid’ funds such as private equity or real estate, said Lawrence Kaplan, an attorney at Paul, Hastings, Janofsky & Walker LLP in Washington. Giving banks until 2022 to fully implement the so-called Volcker rule is an accommodation for Wall Street in what President Barack Obama called the toughest financial reforms since the 1930s…. Partly as a result of last-minute changes to the wording of the bill, analysts, lawyers and congressional staffers say it’s unclear whether the extension period for illiquid funds would run concurrently with the other transition periods. That could mandate full compliance in less than 12 years. 1

The London Guardian also detailed the ingenious dilatory tricks for stalling, dodging, and postponing which the Wall Street lobbyists had built into the bill:

Language in the act …allows for a six-month study and a further nine months of rule-making. The measure is supposed to become effective 12 months after the final rule is laid, then banks have two years to conform. But if they need to, they can apply for a three-year extension. On top of that, a five-year moratorium is available for ‘illiquid’ funds that are hard to unwind. 2

The Revenge of The SIVs

Encoded in the 12-year delay are most emphatically those structured investment vehicles which cause so much damage in the second half of 2008. As Business Week pointed out:

The Volcker rule forbids banks from stepping in with capital infusions or other forms of support when their own funds fail. In December 2007, Citigroup agreed to assume $59 billion of assets bought by ‘structured investment vehicles’ sponsored by the bank. During the following two years, Citigroup lost more than $3 billion on the SIVs, which were a kind of hedge fund that invested in mortgage bonds, credit-card securities and other assets that soured amid the financial crisis. 3

No account of these tragic events would be complete without some attention to the systematic betrayal of the national interest by the reactionary Republicans. The Republicans are in practice more fanatically committed to derivatives than even the Democrats, and they wear their love of derivatives on their sleeves. At one point in the reconciliation process, Senator Shelby of Alabama proposed an amendment which would have removed any and all destructions on the use of derivatives by anyone whatsoever, period. The Republican method is to pretend that derivatives are used exclusively for the traditional hedging which has been carried out from time immemorial by the users of certain commodities, specifically to protect themselves from price fluctuations during the time these raw materials are being turned into finished commodities. The GOP simply ignores that 99% plus of the notional value of today’s $1.5 quadrillion derivatives bubble has nothing to do with the end users of any commodities. If the Republicans were acting in good faith, it would be easy to craft a narrowly defined exemption for the end-users of raw materials and other commodities, but this is not their real purpose. The GOP serves the derivatives-mongers and the swap-jobbers cynically and blatantly, while the Democrats do this under a veil of deception and anti-Wall Street rhetoric.

As Senator Harkin pointed out, Shelby was really arguing that a hedge fund of the first magnitude was really a mom-and-pop Main Street business. Shelby’s goal of opening the barn door wide to any derivatives to be issued by anybody at any time was not successful, but the Peterson amendment and similar Democratic betrayals substantially accomplished the same goals under a cloak of deception. Intervening along the same lines in defense of Wall Street come out hedge funds, and derivatives were hardened reactionary Republicans like Senators Corker, Gregg, and Chambliss. Caught between these Republicans and their own venal Dodd-Frank leadership, the small positive initiatives of figures like Blanche Lincoln, Cantwell, Harkin, and Kanjorski were surrounded and crushed.

The last Democrat in the Senate: Feingold

The one principled no vote of a Democratic senator is now likely to come from Feingold of Wisconsin, who is fighting for political survival against a reactionary Republican opponent. Feingold says that his litmus test for the bill is simply the question of whether this measure can stop the next financial meltdown. Since the answer is so obviously no, and since the fingerprints of Wall Street are all over the bill, he promises to oppose it. Feingold has voted in the past against the Iraq war powers resolution of 2002, against the Patriot Act of 2001, and against the Wall Street bailout of October 2008. He points with pride to his opposition to the Interstate Banking Act of 1994, which would have prevented the emergence of “too big to fail” by maintaining the sensible New Deal ban on commercial banks operating in more than one state. He also voted against the catastrophic Graham-Leach-Bliley Act of 1999, which opened the door to the derivatives bubble by completely deregulating these toxic instruments.

The utter failure of Wall Street reform means that the door is now wide open for the second wave of the current world economic depression to continue, as the world descends still further into the financial maelstrom. As for the Obama regime, they are preparing an austerity program of unprecedented savagery which they intend to impose on the American people with the help of large numbers of defeated Congressmen during the lame duck session of November-December of this year. You were warned: Obama is a Wall Street puppet, and the events of this year are a first installment of the tragic consequences of such an administration.

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1Bradley Keoun, “Volcker Rule May Give Goldman, Citigroup Until 2022 to Comply,” Business Week, June 29, 2010, at http://bx.businessweek.com/financial-regulation/view?url=http%3A%2F%2Fnoir.bloomberg.com%2Fapps%2Fnews%3Fpid%3D20601208%26sid%3DaVhQ7orntLzk

2Andrew Clark, “US banks off the hook until 2022,” Guardian, June 29, 2010, http://www.guardian.co.uk/business/2010/jun/29/us-banks-off-the-hook-until-2022.

3Bradley Keoun, “Volcker Rule May Give Goldman, Citigroup Until 2022 to Comply,” Business Week, June 29, 2010.