Mr. Speaker, given the bicameral and bipartisan support for our bill and the overwhelming consensus about the systemic risk created by the section we are working to reform today, I am genuinely…
Mr. Speaker, given the bicameral and bipartisan support for our bill and the overwhelming consensus about the systemic risk created by the section we are working to reform today, I am genuinely surprised we are even here debating this today.
Nevertheless, I rise to speak in support of H.R. 992, the Swaps Regulatory Improvement Act, which my Democrat friend from New York, Sean Patrick Maloney, and I have worked together on in the House Agriculture Committee.
As my colleagues are aware, our bipartisan bill amends a provision in the Dodd-Frank Act which was included at the 11th hour to ``get 60 votes in the Senate'' as former House Financial Services Chairman Barney Frank indicated during a markup of the bill back in February, 2012.
This section we reform with our bill was mischaracterized as an effort to prevent ``risky'' swaps activities in the bank. While we believe this provision was proposed in good faith, it simply does not prevent the risk that its authors intended. Moreover, this provision of the bill will cause many American financial institutions to operate at a significant disadvantage to their foreign competitors.
Federal Reserve Chairman Ben Bernanke and former Federal Reserve Chairman Paul Volcker have both publicly raised concerns about section 716.
In the 112th Congress, the House Financial Services Democrats, including Chairman Frank and current Ranking Member Maxine Waters, endorsed H.R. 1838, agreeing that this measure addressed the valid criticisms of section 716 without ``weakening the financial reforms law's important derivative
safeguards or prohibitions on bank proprietary trading.''
The bill before us today is virtually identical to H.R. 1838 from the last Congress.
Mr. Speaker, to echo what Federal Reserve Chairman Ben Bernanke said at a hearing on February 27:
Section 716, as drafted, will not reduce risk and will
likely increase costs of people who use the derivatives and
make it more difficult for the bank to compete with foreign
competitors who can provide a more complete set of services.
It is crystal clear: this section needs to be reformed.
I ask my colleagues to support this bill and look forward to my Senate colleague, Kay Hagan, passing her companion bill in the Senate so we can get this commonsense reform completed.
Board of Governors of the
Federal Reserve System,
Washington, DC, May 12, 2010.
Hon. Christopher J. Dodd,
Chairman, Committee on Banking, Housing, and Urban Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: You have asked for my views on section
716 of S. 3217. This section would prevent many insured
depository institutions from engaging in swaps-related
activities to hedge their own financial risks or to meet the
hedging needs of their customers, and would prohibit nonbank
swaps entities, including swap dealers, clearing agencies and
derivative clearing organizations, from receiving any type of
Federal assistance.
The Federal Reserve has been a strong proponent of changes
to strengthen the regulatory framework and infrastructure for
over-the-counter (OTC) derivative markets to reduce systemic
risks, promote transparency, and enhance the safety and
soundness of banking organizations and other financial
institutions. Title VII and Title VIII of S. 3217 include
important provisions designed to achieve these goals. For
example, Title VII would require most derivative contracts to
be cleared through central clearinghouses and traded on
exchanges or open trading facilities, require information
concerning all other derivatives contracts to be reported to
trade repositories or regulators, and provide the regulatory
agencies significant new authorities to ensure that all swaps
dealers and major swap participants are subject to strong
capital, margin, and collateral requirements with respect to
their swap activities. Title VIII also includes provisions
designed to help ensure that centralized market utilities for
clearing and settling payments, securities, and derivatives
transactions (financial market utilities), which are critical
choke points in the financial system, are subject to robust
and consistent risk management standards--including
collateral, margin, and robust private-sector liquidity
arrangements--and do not pose a systemic risk to the
financial system.
I have also frequently made clear that we must end the
notion that some firms are ``too-big-to-fail.'' For that
reason, the Federal Reserve has advocated the development of
enhanced and rigorous prudential standards for all large,
interconnected financial firms, and the enactment of a new
resolution regime that would allow systemically important
financial firms to be resolved in an orderly manner, with
losses imposed on the Federal Reserve to provide emergency,
secured credit to nondepository institutions only through
broad-based liquidity facilities designed to address serious
strains in the financial markets, and not to bail out any
specific firm.
S. 3217 makes important contributions to the goals of
reducing systemic risk, eliminating the too-big-to-fail
problem, and strengthening prudential supervision. I am
concerned, however, that section 716 is counter-productive to
achieving these goals.
In particular, section 716 would essentially prohibit all
insured depository institutions from acting as a swap dealer
or a major swap participant--even when the institution acts
in these capacities to serve the commercial and hedging needs
of its customers or to hedge the institution's own financial
risks. Forcing these activities out of insured depository
institutions would weaken both financial stability and strong
prudential regulation of derivative activities.
Prohibiting depository institutions from engaging in
significant swaps activities will weaken the risk mitigation
efforts of banks and their customers. Depository institutions
use derivatives to help mitigate the risks of their normal
banking activities. For example, depository institutions use
derivatives to hedge the interest rate, currency, and credit
risks that arise from their loan, securities, and deposit
portfolios. Use of derivatives by depository institutions to
mitigate risks in the banking business also provides
important protection to the deposit insurance fund and
taxpayers as well as to the financial system more broadly. In
addition, banks acquire substantial expertise in assessing
and managing interest rate, currency, and credit risk in
their ordinary commercial banking business. Thus, banks are
well situated to be efficient and prudent providers of these
risk management tools to customers.
Importantly, banks conduct their derivatives activities in
an environment that is subject to strong prudential Federal
supervision and regulation, including capital regulations
that specifically take account of a bank's exposures to
derivative transactions. The Basel Committee on Banking
Supervision has recently proposed tough new capital and
liquidity requirements for derivatives that will further
strengthen the prudential standards that apply to bank
derivative activities. Titles I, III, VI, VII and VIII of
S.3217 all add provisions further strengthening the authority
of the Federal banking agencies and other supervisory
agencies to address the risks of derivatives. Section 716
would force derivatives activities out of banks and
potentially into less regulated entities or into foreign
firms that operate outside the boundaries of our Federal
regulatory system. The movement of derivatives to entities
outside the reach of the Federal supervisory agencies would
increase, rather than reduce the risk to the financial
system. In addition, foreign jurisdictions are highly
unlikely to push derivatives business out of their banks.
Accordingly, foreign banks will have a competitive advantage
over U.S. banking firms in the global derivatives
marketplace, and derivatives transactions could migrate
outside the United States.
More broadly, section 716 would prohibit the Federal
Reserve from lending to any swaps dealer or major swap
participant--regardless of whether it is affiliated with a
bank--even under a broad-based 13(3) liquidity facility in a
financial crisis. Experience over the past two years
demonstrates that such broad-based facilities can play a
critical role in stemming financial panics and addressing
severe strains in the financial markets that threaten
financial stability, the flow of credit to households and
businesses, and economic growth. These facilities will be
less effective if participants must choose between continuing
(or unwinding) derivatives positions and participating in the
market-liquefying facility.
I am concerned that section 716 in its present form would
make the U.S. financial system less resilient and more
susceptible to systemic risk and, thus, is inconsistent with
the important goals of financial reform legislation. We look
forward to continuing to work with the Congress as you work
to enact strong regulatory reform legislation that both
addresses the weaknesses in the financial regulatory system
that became painfully evident during the crisis, and
positions the regulatory system to meet the inevitable
challenges that lie ahead in the 21st century.
Sincerely,
Ben Bernanke.