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As regulators prepare to implement what many see as one of the biggest regulatory changes in years to how Wall Street operates, both bankers and their adversaries are voicing concern over the complexity and scope of a rule meant to rein in risk at big banks.
The so-called Volcker Rule, which was crafted by former Federal Reserve Chairman Paul Volcker, aims to stop big banks — specifically those that are granted deposit insurance by the federal government — from taking high-risk bets with other people’s money. It was proposed as part of the Dodd-Frank Act of 2010, a behemoth bill passed in response to the 2008-09 financial crisis.
The rule started as a simple ban on proprietary trading (banks trading for their own profit, not clients’ gain) and a ban on banks investing in hedge funds, which often make higher-risk trades. Hedge funds, unlike consumer banks, aren’t insured by the Federal Deposit Insurance Corporation.
But over the last three years, the rule became progressively longer and more complex, as banks and their lobbyists debated with federal officials and experts about exceptions and caveats.
On Tuesday, the Securities and Exchange Commission, one of five regulatory agencies charged with enforcing the Volcker Rule and the only one that hasn’t yet given its nod of approval, is expected to vote in favor of implementing it. That will likely kick off a months-long process of figuring out what it actually means.
The final rule is expected to be dozens of pages long, with hundreds of pages of attached commentary. The length and complexity of the ruling has led bankers to worry that it would overly burden banks with figuring out what they can and cannot do in the course of ordinary business. It has also led activists and analysts to worry that the number of exceptions built into the rule would leave banking largely unchanged and wedded to the same practices that led the country to crisis just a few years ago.
“Regulators have done the best they can with this rule,” said Bill Singer, a lawyer who works with securities firms and others in the financial industry. “Unfortunately, ‘the best they can’ rarely works ... It’s nearly 1,000 pages. Who the hell knows what it says?”
The specifics of the Volcker Rule have been in flux since its inception, but that hasn’t stopped banks from taking educated guesses about what they may have to do in order to fall in line with it. Many banks have already closed their proprietary-trading departments.
But other potential elements of the rule, like the ability of banks to invest in hedge funds, have been met with more resistance.
Banks lobbied hard to get that provision changed. In one draft of the ruling, regulators allowed for an exception to the hedge-fund prohibition if the bank started the hedge fund in-house. Now it’s not clear whether that would be allowed.
“If they can own a hedge fund, they can get around the entire rule,” said Alexis Goldstein, communications director for the Other 98%, a nonprofit organization advocating for alternative economic policies.
Banks and trade groups have said the complexity of the rule puts an unneeded regulatory burden on their businesses.
The U.S. Chamber of Commerce, a trade group for companies in many sectors, including banking, wouldn’t comment for this story but has sent several letters to regulators urging them to spend more time understanding the rule before implementing it.
“The rule may have unintended but detrimental impacts upon growth, operations and cash management,” the Chamber of Commerce wrote in one letter. “We believe that it is more important to get the Volcker Rule right than meet an artificially imposed deadline.”
Complex by design?
Advocates for the Volcker Rule say the very complexity that the Chamber of Commerce and others have railed against is a product of banks’ lobbying efforts. They say the more confusing the regulations, the easier for banks to find ways around them.
“(The complexity) is a direct by-product of the banks’ lobbying,” said Goldstein. “There are so many exemptions because they lobbied for so many exemptions.”
Those exemptions have led some to call on lawmakers to completely scrap the rule and start over again. They say it’s not worth taking the time to implement such a massive piece of legislation if it may not end up preventing many of the types of trading that were popular leading up to the country’s financial crisis.
Some consumer advocates and anti-big-bank activists want to see a return to the Glass-Steagall Act, passed in 1933, which completely separated consumer banks from investment banks. The act was slowly watered down until it was effectively repealed in 1999.
Marcio Monzane, head of the finance wing of UNI Global Union, which represents bank workers among others, said a return to total bifurcation would be the only way to ensure a 2008-style financial crisis doesn’t recur.
But for others, even some of the harshest critics of the Volcker Rule, the change represents a step into a more secure future for finance. They say that while it is by no means perfect, the Volcker Rule would significantly lessen the risky behavior of some of the same banks associated with the Great Recession.
Akshat Tewary, a lawyer who led a group of Occupy Wall Street–related activists in writing a 325-page comment letter about the rule in 2012, said the rule wouldn’t prevent another financial crisis but would be better than nothing.
“We certainly wish the rule was much less complicated,” he said. “But it can still be effective. We have to deal with what we have.”