AFR in the News: Influencing the Rule Makers

The enactment of legislation is never the end of a political story; it’s more of a break between chapters – especially when there’s big money at stake.

Take the Dodd-Frank Act. Since its passage in July 2010, according to Halley Sweetland Edwards of the The Washington Monthly, “the financial industry has been spending billions of dollars on lawyers and lobbyists,” all of them “charged with one task: weaken the thing.”

Much of this work has been directed at the oversight agencies responsible for translating the broad requirements of the statute into enforceable rules. “Reform groups like Americans for Financial Reform, Better Markets, and Public Citizen have thus far done a heroic job writing substantive, evidence-based letters of concern and organizing public letter-writing campaigns…,” Edwards says. But while such voices “make a big difference, they go only part of the way toward countering the overwhelming influence that industry has enjoyed.”

Industry has the edge not only in staff and money but in market data and knowledge of its fast-changing products and practices. “The regulators need to be able to pool all of this disparate information together into a complete picture of the financial system, which I’m not sure if they have the funding and coordination to do,” AFR policy director Marcus Stanley told Edwards.

“It is in some ways a Sisyphean task,” Edwards continues. “Here you have a group of rule makers—lawyers, economists, analysts, and specialists—sitting around a table. On one side, they’ve got the language of Dodd-Frank, which requires them, by congressional mandate, to effectively regulate new, never-before-regulated products in never-before-regulated markets that change by the month. On the other side, they’ve got a pile of reports, nine out of ten of which were provided by the same industry they’re trying to rein in.”

The point of many of these submissions is to show that this or that rule would impose terrible costs on companies, forcing them to forego investment or cut jobs. And that can be a potent line of argument with regulators, who often lack the time and knowledge to assess its accuracy. “[I]ndustry lobbyists and lawyers [crowd] into their conference rooms on a nearly daily basis, flooding their in-boxes with comment letters, and telling them that if they do something wrong, they’ll be personally responsible for squelching financial innovation and destroying the economy,” Edwards writes.

Nowadays, regulators often hear the same kind of thing from industry-friendly judges and legislators, who are even harder to ignore. “Many of us think of Congress as passing a law, shunting it off to the agencies, then wiping its hands of the matter,” Edwards observes. But lawmakers, “and particularly those who voted against Dodd-Frank to begin with, have a number of tools up their sleeves, which they’ve been using consistently since 2010 in an attempt to retroactively weaken the act.” One such strategy is “to go after the regulators personally, lambasting them publicly, smearing their reputations, and wasting their time,” she adds.

Even if the charges are fanciful, the experience of being denounced by members of the congressional committee that oversees your agency tends to leave an impression. “Those performances waste an enormous amount of time,” AFR executive director Lisa Donner told Edwards. “It plays a role. It’s intimidating.”