In a Federal Register notice made public in early October, the Treasury Department asked for public comment to assist the agency in its review of the regulatory structure for financial services. The notice set out a series of specific questions and asked for responses. The questions were organized into two broad categories: general issues, dealing with the broadest questions of regulatory policy, and specific issues, covering subjects specific to the regulation of banks, securities firms, insurance companies, and others. This Outlook outlines responses on the general issues; the November issue will address the specific subjects.
In 1981, Treasury Secretary Donald Regan proposed that banks, through their holding companies, be permitted to engage in securities and insurance activities. At that point, the Glass-Steagall Act limited bank affiliations with securities firms and the Bank Holding Company Act prohibited bank affiliations with both securities firms and insurance companies. There was immediate opposition by the securities and insurance industries, and Congress, as usual in such circumstances, was paralyzed. Nothing occurred on the legislative front in the 1980s, but various court decisions gradually opened the way for banking organizations to enter the securities business. Still, affiliations between banks and insurance companies remained forbidden.
In 1991, the George H. W. Bush administration used the 1981 Treasury proposal as the basis for its own bank deregulation plan. Again, opposition by those who would have to compete with banking organizations prevented any action in Congress, even though banks were already establishing a foothold in the securities business through court interpretation of the Glass-Steagall Act. Finally, in the late 1990s, Travelers Insurance Company and Citicorp agreed to merge, a transaction that was still prohibited. The proposal created a formidable challenge for Congress. If it failed to act, the transaction would have to be unwound, with associated losses to investors. The result was the Gramm-Leach-Bliley Act in 1999, which was based on the original Treasury proposal of 1981.
The lesson here is that a proposal from the Treasury Department has a long shelf life. Today's Treasury clearly does not expect any recommendations it might make to be the subject of legislative action during the remainder of the George W. Bush administration. There is not enough time for that. But if these recommendations are well-founded, they will remain in play indefinitely, until circumstances force Congress to address the problems the pro-
posals were intended to resolve.
What is clear is that the United States can no longer afford the luxury of what is a costly, inefficient, and largely dysfunctional regulatory system for financial regulation. For this reason, the Treasury should be bold in its recommendations. There will be loud disagreement from affected agencies and groups, and others will dismiss them as politically infeasible--or, even worse, naïve--but a well-designed set of reform ideas will stand the test of time. They will be available when the changes in the financial services field they were designed to address become too obvious for Congress to ignore. What follows are some thoughts on the general questions (in italics) about regulatory policies that the Treasury put forward in its Federal Register filing.
1.1. What are the key problems or issues that need to be addressed by our review of the current regulatory structure for financial institutions?
The United States can no longer afford the luxury of what is a costly, inefficient, and largely dysfunctional regulatory system for financial regulation.
There are three key problems that the Treasury study should address:
- Although the financial services industry is converging--banks, securities firms, and insurance companies are increasingly competing with one another--each industry is regulated under a different regulatory regime. This is not a sensible structure. Organizations that compete should be similarly or identically regulated. In addition, the existence of hybrid products, with characteristics falling within the jurisdiction of more than one agency, is a phenomenon that has already occurred and is likely to increase in the future.
- Even if separate regulation is to continue, there is no sound reason for the existence of three different bank or holding company regulators at the federal level, as well as regulators of securities, commodities (futures), thrift institutions, and credit unions. The existence of these separate agencies is a prescription for regulatory capture and implies differences between the constituent industries that are quickly disappearing. Absent a true consolidation, a sensible system would consolidate some of these regulators and subject the remaining unconsolidated group to a strong coordinating body, preferably one headed by the Secretary of the Treasury.
- The continued application of the policy of separating banking and commerce has prevented the development of true financial services conglomerates which are able to offer banking, securities, and insurance services. The Gramm-Leach-Bliley Act has permitted banking organizations to expand into insurance and securities activities, but the act's requirement that bank-affiliated organizations engage only in financial activities, as defined by the Federal Reserve Board, has kept insurance companies and securities firms from acquiring banks. They fear being prevented from entering new businesses in the future and having to divest themselves of some they are already in. Thus, the act perpetuates separate regulatory regimes that no longer conform to the realities of the financial services marketplace.
1.2. Over time, there has been an increasing convergence of products across the traditional "functional" regulatory lines of banking, insurance, securities, and futures. What do you view as the significant market developments over the past two decades (e.g. securitization, institutionalization, financial product innovation and globalization) and please describe what opportunities and/or pressures, if any, these developments have created in the regulation of financial institutions?
The most significant market development is not the various products or innovations described in the question, but rather the technological changes--primarily in communications--that have made them possible. The recent turmoil in the credit markets worldwide demonstrates that there is only one worldwide financial services market, one in which the collective actions of the smallest mortgage originators can affect the financial prospects of the largest financial institutions. Thinking in terms of individual products is a mistake; products will continue to evolve as they are demanded by the market.
As a global financial services market develops, competitive across industries, regulators will be faced with hybrid products that either do not fall into any regulator's jurisdiction or fall into the jurisdiction of two or more. This of course has already happened in the overlapping jurisdictions of the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC). The disputes this will engender and the regulatory arbitrage it will permit will create great distractions for the regulators and chaotic regulatory policies for the financial services industry. In addition, with regulators employing disparate policies, the door will be open to regulatory arbitrage--that is, products will be designed to avoid regulation. The changes we can easily foresee today will be multiplied in the future when financial services will be marketed in a virtual world and on a global basis. The Treasury should be designing a structure for that world--a structure broad enough to address the entire financial services industry but flexible enough to deal with the huge changes that are in store.
If we persist in believing that financial risk is reduced by regulation, then we have only one choice: to subject every part of the financial economy to regulation.
If the convergence of financial services firms into asingle business is not enough to produce support for a single consolidated regulator for the financial services industry, serious consideration should be given at Treasury to a much-strengthened coordinating role--based on President's Working Group (PWG) structure--to bring about better coordination of the activities of regulators that are functioning under laws and in a culture that assumes the members of each industry compete only with one another. This would call for a body consisting of the principal regulators of banks, securities firms, and insurance companies (when, as recommended below, a federal chartering and supervisory agency for insurance companies is created). This body would consist of the Secretary of the Treasury as chair, the Comptroller of the Currency, the chairman of the SEC, and the head of the insurance chartering agency. The purpose of this body should be to combine the regulation of the three principal industries, which are themselves converging. If the Office of Thrift Supervision is consolidated with the Office of the Comptroller of the Currency (OCC), and the CFTC is consolidated with the SEC--in each case to create new agencies--this coordinating body would have significant reach.
A consolidated regulator would of course be powerful, as would a body with coordinating powers like the PWG, but the Treasury should avoid creating a commission balanced between the parties. This collegial structure tends to be weak and slow-moving. It is easily manipulated by Congress--which is why these bodies are created in the first place--but now that the United States is facing some real challenges to its financial preeminence, we have to get serious. This does not mean that the agency should be headed by a single administrator, but rather that any multi-headed body should be made up of heads of organizations that are ultimately responsible to the president.
1.2.1. Does the "functional" regulatory framework under which banking, securities, insurance, and futures are primarily regulated by respective functional regulators lead to inefficiencies in the provision of financial services?
Although the current regulatory structure results in "inefficiencies," that term is too broad and vague to describe the most significant problems created by the current system. As noted above, in the new financial services industry, disparately regulated organizations are competing with one another. This creates more than inefficiencies; it creates opportunities for regulatory arbitrage and government-created competitive advantages.
1.2.2. Does the "functional" regulatory framework pose difficulties for considering overall risk to the financial system? If so, to what extent have these difficulties been resolved through regulatory oversight at the holding company level?
If we persist in believing that financial risk is reduced by regulation, then we have only one choice: to subject every part of the financial economy to regulation. This will have to include finance companies, retailers, mortgage brokers, and the thousands of other unregulated organizations--here and abroad--whose actions may be deemed to create risks where they intersect with regulated entities. Attempting to bring all these entities under a regulatory umbrella would not only be politically impossible; it would also be a vain act. There will always be ways to operate outside the regulated system, and companies that see the possibility of gain in doing so will develop these alternative vehicles. Transactions will migrate to where they are not explicitly covered by regulation. The most heavily regulated banks created structured investment vehicles that, as it has turned out, involved substantial risks that appeared nowhere on their balance sheets. The fact that these institutions were regulated no doubt lulled investors into believing that their risks were understood and being addressed by supervisors. The only effective way to address risk is not by regulating but by making it possible for market discipline to operate effectively. Regulation can do that in part by enhancing the disclosure of information by regulated companies.
It is reasonably obvious that holding company regulation does not resolve this problem, and may in fact make it worse. Even if regulation could effectively reduce financial risk, holding company regulation would be ineffective unless all holding companies--of all competing organizations--were regulated in the same way. Absent this, risk would migrate to the place where it is dealt with least effectively. Among other things, holding company regulation creates conflicts between the regulator of the subsidiary and the regulator of the parent, leaving sectors of the business that are not effectively covered. In general, holding company regulation is necessary only because of the outdated and unnecessary policy of separating banking and commerce (after Gramm-Leach-Bliley, this became a policy of separating finance and commerce, which makes even less sense today than separating banking and commerce). If we are to have regulation, it should be concentrated on the financial institution; safety-and-soundness regulation of holding companies should be abolished, with the regulator of the financial institution subsidiary authorized--as they are implicitly anyway-- to review the transactions between the subsidiary and the parent that might be harmful to the subsidiary.
Consolidated regulation is clearly one way of addressing the problem of disparate regulation of a converging industry and should be carefully explored.
1.2.3. Many countries have moved towards creating a single financial market regulator (e.g., United Kingdom's Financial Services Authority; Japan's Financial Services Agency; and Germany's Federal Financial Supervisory Authority [BaFin]). Some countries (e.g., Australia and the Netherlands) have adopted a twin peaks model of regulation, separating prudential safety and soundness regulation and conduct-of-business regulation. What are the strengths and weaknesses of these structural approaches and their applicability in the United States? What ideas can be gleaned from these structures that would improve U.S. capital market competitiveness?
Consolidated regulation is clearly one way of addressing the problem of disparate regulation of a converging industry and should be carefully explored. Banks, securities firms, and insurance companies--as well as other constituents of the financial services industry--have many functions in common. Most of them have retail operations in which they deal directly with consumers, and in one way or another, these companies are regulated for safety and soundness. These are two areas in which a single consolidated regulator could, in theory, perform all necessary supervisory functions for all the financial services firms under its jurisdiction. Such a regulator might have a division that is engaged in consumer protection functions by overseeing marketing and retail sales, while a separate division might supervise the financial soundness of the banks, securities firms, and insurance companies under its jurisdiction. The consolidated supervisor would have access to all the transactions among all commonly controlled regulated entities. This is how the Financial Services Authority (FSA) is structured, and it makes far more sense than attempting to regulate or otherwise control risks through an "umbrella regulator" of a holding company.
The functional--"umbrella"--regulation structure endorsed by the Gramm-Leach-Bliley Act was more an effort to keep the Federal Reserve Board involved in financial regulation than a serious effort to achieve coordination in the regulation of financial services firms. The Fed was given weak authority as an umbrella regulator, with primary regulatory authority remaining with the traditional regulators of each industry.
This is faux umbrella regulation. All the agencies that regulate banks, savings and loans, securities firms, or other institutions that could be included in a financial holding company under the act are jealous of their authority and will not readily share information with the Fed. Indeed, fear of Fed intervention could provide incentives for these regulators to "hide the ball" when problems arise that might fall within the Fed's jurisdiction. The effect of this arrangement, then, could be less public disclosure of regulatory problems rather than more.
1.3. What should be the key objectives of financial institution regulation? How could the framework for the regulation of financial institutions be more closely aligned with the objectives of regulation? Can our current regulatory framework be improved, especially in terms of imparting greater market discipline and providing a more cohesive look at overall financial system risk? If so, how can it be improved to achieve these goals? In regards to this set of questions, more specifically:
1.3.1. How should the regulation of financial institutions with explicit government guarantees differ from financial institutions without explicit guarantees? Is the current system adequate in this regard?
Explicit or implicit government guarantees impair, and in some cases eliminate, market discipline, which makes some form of safety-and-soundness regulation mandatory. But financial institutions without explicit or implicit guarantees should not need such regulation, since market discipline should be fully effective to keep their risk-taking under control. Government bailouts of entities that do not have explicit guarantees weaken market discipline for the future, and thus make regulation and supervision necessary when it would otherwise not be required. Similarly, government regulation of the safety and soundness of financial institutions that do not have government guarantees creates an impression in the market that there is an implicit guarantee and, in a circular process, this impression also makes safety-and-soundness regulation necessary.
Regulation is more likely to create market instability than prevent it. There have been only two industries in U.S. history that have ever had wholesale failures--banks and savings and loans-- both of which were the most heavily regulated institutions in the economy from the standpoint of safety and soundness or market stability.
Given these realities, the existing U.S. regulatory system is not well-designed. Bank holding companies are not government guaranteed, but are never-theless regulated for safety and soundness. The holding companies of U.S. securities firms that operate in the European Union (EU) are also regulated as to safety and soundness by the SEC, although they, too, are not government-guaranteed. These are deficiencies of the U.S. regulatory structure, but apparently cannot be eliminated for those banks and securities firms that operate in the EU, which requires that all financial institutions that offer services in the EU function under the consolidated supervision of a home country regulator. Nevertheless, the Treasury should consider whether the EU's requirements would be met if the primary regulator of the operating subsidiary regulated the holding company solely through its transactions with the subsidiary and not for safety and soundness.
1.3.2. Is there a need for some type of market stability regulation for financial institutions without explicit federal government guarantees? If so, what would such regulation entail?
Apart from meeting the requirements of other jurisdictions such as the EU, there is no need for any safety- and-soundness or market stability regulation for financial institutions that do not have explicit government guarantees. Such regulation is more likely to create market instability than prevent it. It is important to keep in mind that there have been only two industries in U.S. history that have ever had wholesale failures--banks and savings and loans--both of which were the most heavily regulated institutions in the economy from the standpoint of safety and soundness or market stability. The reason for this is clear: when the government steps in and regulates, insures, or both, market discipline is relaxed. At the same time, the regulators really have no magic words to prevent excessive risk-taking.
1.3.3. Does the current system of regulating certain financial institutions at the holding company level allow for sufficient amounts of market discipline? Are there ways to improve holding company regulation to allow for enhanced market discipline?
Holding companies need not be regulated for safety and soundness, and should in general not be regulated at all, except as may be necessary to meet the legal requirements of other jurisdictions and to police their transactions with the regulated subsidiary. As noted above, apart from such regulation as is necessary to meet the requirements of the EU, the Fed exercises regulatory authority over bank holding companies in order to patrol the imaginary line between financial activities and commerce mandated by Gramm-Leach-Bliley. The provision of the act that drew this line should be repealed. The regulation of holding companies should be turned over to the regulator of the largest financial institution in a group--or preferably to the consolidated regulator of all financial services firms. The Fed in particular should focus solely on its role as the nation's monetary authority.
The way to increase market discipline in a holding company structure would be to restrict the regulator of the subsidiary bank, securities firm, or insurance company to the examination of transactions between the subsidiary and the holding company and to abandon the idea--never more than a make-weight for Fed regulation--that the holding company should be a "source of strength" for the underlying bank. The source-of-strength notion enhances the appearance that the parent company is carefully supervised by a regulator and thus impairs market discipline. Whenever possible, holding companies that have been mismanaged should be allowed to fail. If the underlying financial institution has been appropriately separated from the holding company by transaction limitations, the failure of the holding company should have no impact on the regulated financial institution.
To the greatest extent possible, safety-and-soundness regulation of securities firms and insurance companies should also be minimized or eliminated. The financial condition of insurance companies is generally reviewed by the states in which they operate. This has not appeared to reduce market discipline. If insurance companies come to be regulated at the federal level, this may change. The way to address this problem in part is to continue for federally chartered and regulated insurance companies (if a federal system is ultimately established) the current system of private guarantee funds as a backstop for their insurance obligations. This gives other insurance companies an incentive to spot and report poor management and weakening financial conditions. Securities firms have had limited safety-and-soundness regulation. Since the industry has had no wholesale failures, it appears that market discipline is working for this industry. The proper policy, then, would be to avoid changing the market's perception of the government's role in safety-and-soundness regulation.
The current system imposes excessive costs on financial services firms, costs which are largely invisible to consumers and investors but for which they are paying unnecessarily high fees for the services they receive.
1.3.4. In recent years, debate has emerged about "more efficient" regulation and the
possibility of adopting a "principles-based" approach to regulation, rather than a "rules-based" approach. Others suggest that a proper balance between the two is essential. What are the strengths, weaknesses and feasibility of such approaches, and could a more "principles-based" approach improve U.S. competitiveness?
There are two types of principles-based regulation--principles that bind the regulator and principles meant to guide the behavior of the regulated industry. An example of a principle that binds the regulator would be a requirement that all regulations pass a cost-benefit test, while an example of a principle intended to guide the regulated industry would be a requirement to deal fairly and equitably with consumers.
Principles that bind the regulator are sound and ought to be adopted. They could serve as an effective check on regulatory abuse and as a set of standards with which Congress could both oversee the regulatory process and assess whether regulators are carrying out congressional policies. On the other hand, as long as we have private rights of action and government officials such as state attorneys general who can enforce state laws against federally regulated entities, requiring the regulated industry to conform to principles would not work. In these circumstances, it would be much better to have detailed federal rules and regulations that would, if followed, provide a defense against legal attack.
The reason that the FSA can claim that it is engaged in principles-based regulation is that it is the only enforcer of the principles it invokes, and thus can make its policies and interpretations clear in informal ways to achieve compliance. A principles-based regulatory system, such as that which seems to prevail in Britain, is probably superior to the rules-based system we use in the United States. It is far less costly to the regulated industry and gives some latitude for companies to experiment with different ways to achieve the objectives of the principles. The FSA says it is more interested in achieving compliance with its principles than in bringing enforcement actions, and the numbers bear out this claim. If federal regulation and enforcement were deemed to preempt actions by state attorneys general and securities class actions were eliminated, it might be possible to adopt a principles-based system in the United States.
1.3.5. Would the U.S. financial regulatory structure benefit if there was a uniform set of basic principles of regulation that were agreed upon and adopted by each financial services regulator?
This would be of some benefit, but as long as there is no effective coordination among the regulators, the interpretation and application of the principles are bound to diverge. Principles are by their nature general and subject to varying interpretations. The only way that principles can create consistency in regulation is to have a single regulator or a properly authorized coordinating body.
1.4. Does the current regulatory structure adequately address consumer or investor protection issues? If not, how could we improve our current regulatory structure to address these issues?
From the standpoint of consumers and investors, the current structure is adequate, except in one major respect that deserves serious attention: the current system imposes excessive costs on financial services firms, costs which are largely invisible to consumers and investors but for which they are paying unnecessarily high fees for the services they receive. Regulation and enforcement of consumer and investor protection laws at both the federal and state levels is redundant and would not pass any cost-benefit test. Most consumers of banking services, for example, cannot recognize any difference between the protection they receive from the OCC--which largely preempts state regulation--and the protection they receive from the federal and state regulators, acting severally, to enforce both state and federal consumer protection laws with respect to state-chartered banks. Yet, banks recognize a difference in costs, which is likely to be a major cause of the gradual movement of banks to national charters.
The same thing is likely to be true of securities regulation and enforcement. There is a degree of additional protection for investors and consumers of securities services that comes from redundant state enforcement, but the question is whether this additional protection is worth the cost. Leaving the politics aside, if investors and consumers of securities services understood the additional costs they were bearing as a result of state enforcement, they would almost certainly choose to rely entirely on a federal regulatory system that preempts state enforcement.
The effect of regulation on the competitiveness of U.S. financial institutions should be taken into account when designing regulatory structures and the substance of regulation.
This is now a serious matter for consideration by the Treasury Department. The FSA is demonstrating that there can be a reasonable balance between consumer and investor protection on the one hand and the costs imposed on suppliers of financial services on the other. It is the responsibility of government to recognize and act to create this balance. Otherwise, just as banks are gradually drifting to national charters, securities services will gradually drift to places in the world where the cost of providing the services is lower. Because of the worldwide communications system, consumers will gradually move to using these services because of the more favorable cost structures they offer.
Taken as a whole, consumers and investors are willing to pay for reasonable protection, but not more than what is reasonable. The fact that we now see many financial services moving abroad suggests the structure in the United States is too costly for the protection it offers. This balance must be restored.
Finally, it is impossible to discuss this subject without addressing private class actions, especially under the SEC's Rule 10b-5. Several studies have now shown that there is no serious policy support for these actions. They amount to a transfer from the innocent shareholders of a defendant company to the complainants who happened to trade during a critical period. In addition, the transfer of value turns out to be primarily for the benefit of the well-compensated lawyers who act for the defendants as well as the plaintiffs. This system makes no sense, imposes a huge and unnecessary cost on public companies, and is doubly unnecessary when the SEC has the authority both to enforce Rule 10b-5 and to share the results of its enforcement actions with injured parties through the so-called Fair Fund. Private class actions under 10b-5, which are in any event judge-made and not authorized by Congress, should be eliminated.
1.5. What role should the States have in the regulation of financial institutions? Is there a difference in the appropriate role of the States depending on financial system protection or consumer and investor protection aspects of regulation?
The federal regulatory role in financial services should preempt state regulation. Given today's communications, there is no effective way to separate federal and state jurisdiction over financial services regulation. By moving to national charters, banks have been able to limit their exposure to state regulation, with no obvious or clear loss of consumer protection. Given a choice between a single national system of regulation for securities and redundant state and national systems, a national system seems clearly preferable. One alternative might be to create a national charter for securities firms, assuming that a national charter for these institutions would preempt state law. This does not seem necessary, however. Securities firms already operate under a comprehensive nationwide system of regulation. Congress could simply make clear that this system preempts state securities regulation, as Congress has already done for the regulation of mutual funds.
Legislation for the creation of a national insurance charter has already been proposed and likely will have the support of the Treasury. This is necessary legislation that will have its most important effect in reducing consumer costs if it enhances competition by preempting state regulation for all nationally chartered companies.
1.6. Europe is putting in place a more integrated single financial market under its Financial Services Action Plan. Many Asian countries as well are developing their financial markets. Often, these countries or regions are doing so on the basis of widely adopted international regulatory standards. Global businesses often cite concerns about the costs associated with meeting diverse regulatory standards in the numerous countries in which they operate. To address these issues, some call for greater global regulatory convergence and others call for mutual recognition. To what extent should the design of regulatory initiatives in the United States be informed by the competitiveness of U.S. institutions and markets in the global marketplace? Would the U.S. economy and capital market competitiveness be better served by pursuing greater global regulatory convergence?
Even if it were politically possible, convergence of global regulatory standards will take too long to achieve. Mutual recognition--which assumes that our government will assess the quality of consumer and investor protection in jurisdictions abroad that seek recognition--is the most sensible course at this point. Consumers and investors in general will become familiar with the protections offered in various jurisdictions and can make choices about whether they want to deal with companies that are offering services from places that do not offer suitable
protection. Mutual recognition arrangements should include the right of U.S. consumers and investors to bring actions in the U.S. courts under the applicable foreign law if the foreign firm has been deemed to have entered the U.S. market under a mutual recognition arrangement.
As for global competitiveness, it seems obvious that the effect of regulation on the competitiveness of U.S. financial institutions should be taken into account when designing regulatory structures and the substance of regulation. In a global marketplace in which it is possible, in seconds, to transfer funds or purchase goods and services anywhere in the world, the United States cannot insulate itself from change and risk. Financial education of consumers is a better investment than more regulation. The continuation of policies that create excessive regulatory costs for consumers and investors will only drive both financial services firms and their customers abroad and out of the reach of U.S. regulators. There are also indications that foreign companies are not willing to offer their shares to the public in the United States because of both regulatory and legal costs. This deprives U.S. investors of the investment opportunities available in other economies and the diversification that this investment would provide.
It seems reasonable to believe that there is an optimal level of regulation--a point at which regulation adds value in the form of investor or consumer confidence. But if this is true, there is also a suboptimal point, where excessive regulation adds costs that do not provide commensurate value. It is difficult to determine through research or cost/benefit analysis where this point might be, but it seems likely that transactions will move out of markets where regulation is subtracting rather than adding value. In the migration of transactions out of the United States, the market may be trying to tell us something.
Peter J. Wallison ([email protected]) is the Arthur F. Burns Fellow in Financial Policy Studies at AEI.
AEI research assistant Karen Dubas and editorial assistant Evan Sparks worked with Mr. Wallison to edit and produce this Financial Services Outlook.
1. Department of the Treasury, Notice and Request for Comments, "Review by the Treasury Department of the Regulatory Structure Associated With Financial Institutions," Federal Register 72, no. 200 (October 17, 2007): 58939-41.