“Ongoing Regulatory Reform in the Global Capital Markets
by Commissioner Daniel M. Gallagher
U.S. Securities and Exchange Commission
Annual Conference of the Institute of International Bankers
Washington, D.C.
March 5, 2012
Thank you for that very nice introduction. I am very pleased to be here today.
Before I continue, I need to provide the standard disclaimer that my comments today are my own, and do not necessarily represent the positions of the Commission or my fellow Commissioners.
My topic today is “Ongoing Regulatory Reform in the Global Capital Markets.” I’d like to discuss the SEC’s role in that process, with a special emphasis on the Volcker Rule. After all, the IIB, writing jointly with the European Banking Federation, shared 51 pages worth of thoughts on the Rule in a February 13th comment letter, so it seems only fair that I share a few of mine with you this afternoon.
The IIB’s comment letter went to all of the agencies involved in the joint rulemaking process for implementing the Volcker Rule: Treasury, the Fed, the FDIC, the OCC, the CFTC, and the SEC. The leaders of all of these agencies, as well as those of the Consumer Financial Protection Bureau, the Federal Housing Finance Agency, and the National Credit Union Administration, along with an independent member “having insurance expertise,” all serve as voting members of the Financial Stability Oversight Council, or FSOC. Before moving on to the Volcker Rule, I’d like to take a moment to say a few words about that unique regulatory body.
Those of you hanging on my every word — the vast majority of the audience, I’m sure — may have noted my emphasis on the word “leaders.” The membership of FSOC, as set forth explicitly in the Dodd-Frank Act,1consists not of the regulatory agencies themselves, but of the heads of agencies, ex officio. This is an almost unprecedented arrangement for a formal inter-agency group charged with matters of such great import to the country.
As such, while the Chairman of the Securities and Exchange Commission is a member of FSOC, the Commission itself is not. This distinction is especially important given the structure and composition of the SEC — indeed, of almost all of the agencies whose leaders sit on FSOC. While the Secretary of the Treasury and the Director of the FHFA can speak in a single voice on behalf of their agencies, the Chairman of the SEC is only one of a five member, bipartisan commission, with each Commissioner having a single vote on all matters that come before the Commission. The heads of the CFTC, the FDIC, the NCUA, and Fed are similarly situated, each leading an agency that has multiple voting members, each with an equal vote. What’s more, with the exception of the Fed, the board or commission of each of those agencies is statutorily mandated to be comprised of members with differing political affiliations. Although the leader of each of these agencies is generally from the President’s party, his or her vote counts no more than that of any other member of the commission or board.
In addition, while all of the agencies whose leaders sit on FSOC are constitutionally part of the executive branch, only Treasury is a federal executive department led by a Cabinet secretary who serves at the pleasure of the President. All of the other agencies are either independent agencies or government corporations, and their governing boards or commissions are comprised of appointees with fixed terms designed to guarantee a measure of independence for the agencies. The Chair of FSOC, however, is the Secretary of the Treasury — the only member of the group who may be removed by the President at will.
So to sum up, the membership of FSOC is comprised primarily of theindividual leaders of independent agencies, who will usually almost exclusively be drawn from the same party. What’s more, this group of leaders of agencies that were deliberately designed, and are statutorily required, to be bipartisan is led by the individual in the most partisan position of all, a Cabinet appointee that the President can dismiss at will. One would hope that these agency chiefs would always be sure to represent the views of their colleagues — from both parties — and the interests of their agencies. The statute, however, is silent on that point.
Not surprisingly for a body comprised primarily of banking regulators, FSOC is tasked with a “safety and soundness” mandate. The purposes of FSOC, as set forth in the establishing provisions of Dodd-Frank, are:
…to identify risks to the financial stability of the United States that could arise from the material financial distress or failure, or ongoing activities, of large, interconnected bank holding companies or nonbank financial companies, or that could arise outside the financial services marketplace; to promote market discipline, by eliminating expectations on the part of shareholders, creditors, and counterparties of such companies that the Government will shield them from losses in the event of failure; and to respond to emerging threats to the stability of the United States financial system.
This mandate has some overlap with the SEC’s; specifically, the goal of promoting market discipline would seem to be in accordance with the SEC’s mission to “maintain fair, orderly, and efficient markets.” Absent from the FSOC mandate, however, are references to the goals of protecting investors and facilitating capital formation that are also at the core of the SEC’s mission.
Were FSOC simply an advisory body, this omission might not be cause for concern. FSOC, however, is vested with unprecedented authority with respect to the agencies from which its members are drawn. Perhaps the most important of these authorities is to “provide for more stringent regulation of a financial activity by issuing recommendations to the primary financial regulatory agencies to apply new or heightened standards and safeguards” in critical areas of regulation, including capital, leverage, and disclosure requirements as well as leverage limits, concentration limits, and overall risk management. Pursuant to the statute, FSOC may provide such recommendations if it “determines that the conduct, scope, nature, size, scale, concentration, or interconnectedness of such activity or practice could create or increase the risk of significant liquidity, credit, or other problems spreading among bank holding companies and nonbank financial companies, financial markets of the United States, or low-income, minority, or underserved communities.”
In addition to this “recommendation” authority, Title VIII of the Dodd-Frank Act vests FSOC with even greater power with respect to certain financial market utilities and, even more broadly, certain payment, clearing, or settlement activities conducted by “financial institutions.” Specifically, upon FSOC’s designation, by a two-thirds vote, of a financial market utility or a payment, clearing, or settlement activity as “systemically important,” it may direct the Fed, in consultation with the relevant supervisory agencies and FSOC itself, to prescribe risk management standards. With respect to “designated” utilities or to “designated” activities conducted by financial institutions for which the SEC or CFTC is the primary regulator, Title VIII sets forth “special procedures” pursuant to which the Fed may, if it determines that the risk management standards set by the SEC or the CFTC are “insufficient,” impose its own standards. If the SEC or CFTC object within 60 days, FSOC decides, again by a two-thirds vote of its ten voting members, which standards apply.
In other words, FSOC has the power to make “recommendations” to the primary regulators of any “financial companies” regarding their core areas of regulation, and can even allow the Fed to supplant the primary regulators. The decisions made by this group of presidential appointees, which will almost always be comprised exclusively or almost exclusively by members of the same party led by a member of the President’s Cabinet, can take place behind closed doors.
This is not a political or partisan concern. Although the work being performed by the present membership of FSOC may be some of the most important work the council ever does, with consequences to financial markets that could last for decades, Presidents from both parties will have the authority to appoint the agency heads that will serve on FSOC, and as administrations change, so will the political affiliations of FSOC’s members. Instead, this is a concern over the concentration of power in a group made up of leaders of agencies with different goals and missions, including leaders of bipartisan, multi-member agencies who have no statutory requirement to consult with their agency colleagues.
Now, let me stress that FSOC’s mandate, broadly speaking, to preserve the financial stability of the U.S., is of crucial importance — indeed, those of us who were in the trenches during the financial crisis would have been surprised if Congress had not created a systemic risk regulator. But FSOC’s mandate is not the SEC’s mandate. The core of bank regulation is safety and soundness, both on an individual scale, by, for example, guaranteeing bank customers’ deposits, and on a national — indeed, global — scale by managing systemic risk. The SEC, on the other hand, regulates markets that are inherently risky. Indeed, the risks taken by investors are absolutely critical to capital allocation, which in turn is critical to economic growth. The SEC works to protect investors willing to accept the risk of securities markets in the hopes of greater returns by ensuring that those markets are fair and efficient, not risk-free, and does so with the benefit of nearly eight decades of experience in regulating those markets. Were FSOC to interpret its bank-oriented mandate as a license to impose a bank-oriented model of regulation on the SEC and the markets it regulates, the results could have a devastating effect on markets.
Which brings me to the Volcker Rule and the SEC’s role in its implementation. The Volcker Rule, which may have a more dramatic impact on world markets and U.S. competitiveness than perhaps any other rule regulators are promulgating under Dodd-Frank, addresses, at its heart, a topic about which the SEC traditionally has — among all the regulators writing rules in this space — the most experience and expertise in regulating. For those reasons — because it is potentially so significant and because it implicates areas of the SEC’s core competence — it is a perfect case study for how to think about approaching Dodd-Frank rulemaking and the SEC’s role in that rulemaking.
I want to begin by talking a bit about the statute and the proposed rules. Section 619 of the Dodd-Frank Act, commonly known as the “Volcker Rule” even though it is a statutory provision, imposes two significant prohibitions on banking entities and their affiliates. First, the Rule generally prohibits banking entities that benefit from federal insurance on customer deposits or access to the discount window, as well as their affiliates, from engaging in proprietary trading. Second, the Rule prohibits those entities from sponsoring or investing in hedge funds or private equity funds. The Rule identifies certain specified “permitted activities,” including underwriting, market making, and trading in certain government obligations, that are excepted from these prohibitions but also establishes limitations on those excepted activities. The Volcker Rule defines — in expansive terms — key terms such as “proprietary trading” and “trading account” and grants the Federal Reserve Board, the FDIC, the OCC, the SEC, and the CFTC the rulemaking authority to further add to those definitions.
The statute also charges the three Federal banking agencies, the SEC, and the CFTC with adopting rules to carry out the provisions of the Volcker Rule. It requires the Federal banking agencies to issue their rules with respect to insured depositary institutions jointly and mandates that all of the affected agencies, including the Commission, “consult and coordinate” with each other in the rulemaking process. In doing so, the agencies are required to ensure that the regulations are “comparable,” that they “provide for consistent application and implementation” in order to avoid providing advantages or imposing disadvantages to affected companies, and that they protect the “safety and soundness” of banking entities and nonbank financial companies supervised by the Fed.
In October of last year, the Commission jointly proposed with the Federal banking agencies a set of implementing regulations for the Volcker Rule,2with the CFTC issuing a substantively identical set of proposals in January. The proposing release includes extensive commentary designed to assist entities in distinguishing permitted trading activities from prohibited proprietary trading activities as well as in identifying permitted activities with respect to hedge funds and private equity funds.
In her Opening Statement introducing the joint rule proposals at an SEC Open Meeting last October, Chairman Schapiro praised the collaborative effort among the five agencies involved in the drafting process, noting that it involved “more than a year of weekly, if not more frequent, interagency staff conference calls, interagency meetings, and shared drafting.”3 It is telling, however, that in his recent testimony before a House Financial Services Subcommittee, CFTC Chairman Gensler, noting his agency’s role as a “supporting member” in the rulemaking process, stated, “The bank regulators have the lead role.”4
I think, however, that both the statute and our expertise compel the SEC to play a strong and vigorous role in the rulemaking. The Volcker Rule applies to “banking entities” and their affiliates, affecting a wide range of financial institutions regulated by the five different agencies. Regardless of the nature of the regulated entities, however, the Rule addresses a set of activities — the trading and investment practices of those entities — that fall within the core competencies of the SEC. Indeed, the Rule expressly envisions that quintessential market-making activity continue within these firms.
As such, if we at the SEC play our role properly, we can and should ensure that the Volcker Rule meets the aims of Congress without destroying critically important market activity explicitly contemplated by the statute. The issues addressed in the proposed rules — prohibited activities with exceptions to those prohibitions — and limitations to those exceptions — that make complex issues exponentially more so — are the bread and butter of the SEC. For almost eighty years, the SEC has addressed these and similar issues with commensurate levels of complexity. For example, many of you are familiar with the SEC’s extensive array of rulemaking and interpretive releases concerning exceptions for bona fide hedging or market making in the context of short sales. These exceptions, which date back to the early 1980s, built upon the bona fide hedging exceptions to the Commission’s proprietary trading rules for members of national securities exchanges set forth in a 1979 rulemaking.5 The SEC has been dealing with these issues for a long, long time.
By taking a leadership role, the SEC can also ensure that the final rule is consistent with our core mission of protecting investors, maintaining fair and efficient markets and promoting capital formation. These considerations, coupled with the expertise that the SEC brings to the table, should ensure that the bank regulators’ focus on safety and soundness and Dodd-Frank’s overarching focus on managing systemic risk (although many have argued whether the statute will in the end reduce such risk) are balanced by legitimate considerations of investor protection and the maintenance of robust markets.
The Volcker Rule comment period — during which commenters were asked to share their thoughts on over 1,300 questions on nearly 400 topics — ended last month, and although it would of course be premature to share my thoughts on the proposed rules today, even a quick review of the many substantial comment letters the Commission received reveals widespread fears regarding the effect of the proposed rules on the proper functioning of global markets and the competitiveness of the U.S. financial industry might — fears that I share with the commenters.
Our foreign regulatory counterparts have also expressed serious concerns with the proposed rules. The Japanese FSA and the Bank of Japan filed a comment letter to express their concerns over “the potentially serious negative impact on the Japanese markets and associated significant rise in the cost of related transactions for Japanese banks” that they believe would arise from the extraterritorial application of the Volcker Rule.6 British Chancellor of the Exchequer George Osborne wrote recently to Fed Chairman Bernanke to express his fear that the proposed rules’ effect on market making services for non-U.S. debt would make it “more difficult and costlier” for banks to trade non-U.S. sovereign bonds on behalf of clients.7 Bank of Canada Governor Mark Carney — who was recently named Chairman of the G-20’s Financial Stability Board — has stated that he and other Canadian officials have “obvious concerns” about the proposed rules. He cited the lack of clarity in the proposed rules’ definitions of “market making” versus “proprietary trade,” the effect the rules would have on non-U.S. government bond markets, and what he viewed as the Rule’s inappropriate “presumption” that trades are proprietary.8 Lastly, Michel Barnier, the European Commissioner for Internal Markets and Services, has written to Fed Chairman Bernanke and Treasury Secretary Geithner that “[t]here is a real risk that banks impacted by the rule would also significantly reduce their market-making activities, reducing liquidity in many markets both within and outside the United States.”
The aggregate impact of the rulemakings we and our fellow regulators are promulgating is massive, the costs are enormous, and we are introducing these massive and costly rule proposals at a time when our economy is still — hopefully — limping towards recovery. These factors all argue for an approach that is careful, systematic, but most importantly regulatorily incremental. It is important to remember that regulators’ authority and oversight responsibilities do not end when final rules are promulgated, and that continued oversight will ensure that regulators can refine and improve the rules as markets organize and develop in response to the rules we write. Importantly, we can and should recalibrate the rules as markets develop and regulators learn more and gather and analyze relevant data. We must avoid regulatory hubris and should not regulate — particularly where the changes are so novel or comprehensive — with the belief that we completely understand the consequences of the regulations we may impose. In many of these areas, including Volcker, missing the mark could have dire and perhaps irreversibly negative consequences. As such, I believe that this approach - careful, systematic, and regulatorily incremental — should serve as an appropriate guiding principle as we undertake not only our consideration of the Volcker Rule but also other significant rulemaking mandated under Dodd-Frank.
Consistent with this approach, especially in light of the voluminous comments received, regulators must be willing to re-examine our initial efforts and, if necessary, go back to the drawing board to make sure we regulate wisely, rather than just quickly. In a recent speech, my colleague and friend Commissioner Troy Paredes stated that if the proposed implementing regulations for the Volcker Rule need to change as much as it looked to him like they do, the responsible course for the Commission to follow would be to issue a reproposal.10 I couldn’t agree with him more, both regarding the potential need for extensive changes to the proposed rule and the wisdom of reproposing the amended rule to garner the benefit of another round of comment. The comments we’ve received so far, including those I've cited today, provide invaluable insights as to the potential impact of the Volcker Rule. These comments provide powerful evidence that the benefits the proposed rule was designed to provide may come at an unacceptably high cost. It would be a dereliction of our duty as regulators to ignore them.
As Commissioner Paredes stated in his recent speech, the virtue of a reproposal is the benefit of another round of comment. We owe it to investors and all market participants to review each and every comment letter with the goal of learning more about the potential real-world impact of the rules, and given the extensive revisions that I believe the proposed rule requires, we owe it to them to provide another opportunity to comment on a set of reproposed rules.
Thank you for your attention and for inviting me here today. I would be happy to answer any questions you may have.”
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