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Making Swiss Cheese of Derivatives Reform

Posted by Larry Doyle on March 6, 2014 5:02 AM |

In what would appear to be a classic case of pandering to the public while allowing Wall Street to effectively write its own set of rules and ‘reforms’, we witness this bait and switch tactic within the legislation pitched to the American public as having brought meaningful transparency to the derivatives markets.

Yes, that quadrillion (thousand trillion) sized market with 95% of the concentration in the 5 largest ‘too big to fail’ banks.

Thanks to our friends at POGO for highlighting the following loopholes large enough for a Mack truck:

Last week, the Roosevelt Institute hosted a conference on financial regulatory reform with a panel of experts including Joseph Stiglitz, Simon Johnson, and Elizabeth Warren, among others. The conference coincided with the release of the Institute’s new report, Make Markets Be Markets – Step 1: Restoring the Integrity of the U.S. Financial System. (LD’s comment: This report appears to be a fabulous resource.)

POGO is still reading through the report, but couldn’t help but notice that there’s an entire section dedicated to the regulation of over-the-counter (OTC) derivatives written by Professor Michael Greenberger, the former Director of Trading and Markets at the Commodities Futures Trading Commission (CFTC) under Brooksley Born. Over the past few months, POGO has been raising concerns about some potential loopholes in Congress’s legislation to overhaul the regulation of OTC derivatives, including one that would create an “alternative swap execution facility” with much weaker requirements for transparency and disclosure.

POGO was pleased to see Professor Greenberger highlight this provision as one of three “deregulatory measures” that “crept into the House bill.” Here’s his take on it:

Swaps Execution Facility. First, while the bill continues to require that swaps not otherwise exempt must be exchange traded, at the behest of Wall Street lobbyists, the exchange trading requirement can be satisfied by placement of a privately executed swap on a “swaps execution facility,” which includes electronic trade execution or voice brokerage. While the electronic trade must be conducted by an entity “not controlled” by the counterparties, if the “SEF will not list the contract, it does not have to be executed.” In other words, the swap does not need to be exchange traded if it is submitted to a swaps execution facility that will not trade the swap. Pursuant to vigorous Wall Street lobbying, this SEF (introduced in House Agriculture Committee mark up) appears to undercut completely the bill’s and the Obama Administration’s exchange trading requirement. The provision for the SEF must be removed from any bill addressing the regulation of derivatives and swaps.

When politicians in Washington or elsewhere say that the derivatives market has been reformed and become much more transparent, go ahead and call bull$#@& on them and then ask how the language highlighted above got into the bill.

Navigate accordingly.

Larry Doyle

Please order a hard copy or Kindle version of my book, In Bed with Wall Street: The Conspiracy Crippling Our Global Economy.

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The opinions expressed are my own. I am a proponent of real transparency within our markets so that investor confidence and investor protection can be achieved.

  • coe

    LD – You continue to highlight the many reasons why true banking/capital markets reform remains illusory…I don’t for a second believe the Wall Street firms and the Banks don’t get it…rather, I think they absolutely get it – they just don’t want to abide by the legislative and regulatory prescriptions…how on earth can anyone, least of all a complicit congress/regulatory/administration regime possibly understand the nuances of these complex transactions and programs – it cannot be a surpise to anyone that any legislation that must be delivered in thousands of pages of gobbledygook and the ensuing rulemaking that is taking longer than the Big Dig construction project to complete can only be fraught with loopholes and gray areas of interpretation…hard to contemplate the vapor trail of zeroes in the derivative markets…will the supllementary leverage ratio requirement realistically bring all of this off-balance sheet activity into scope and force banks to carry more capital – call me a cynic, but I’ll take the under…the list of hot spots is a long one indeed…what about GSE public policy – have we outlived the critical dynamics that drove them into conservatorship? where is the political will and the teeth in the regulatory sanctioning…maybe this is a stretch, but I am drawn to remember my history of ancient times and why civilizations fail – Nero fiddled while Rome burned…the time to rebuild the Glass-Steagall wall is way overdue – keep up the good work

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