Fraud Enforcement And Recovery Act Of 2009
I will. I will. Madam President, the Fraud Enforcement and Recovery Act of 2009 comes out of the Judiciary Committee. Senators Leahy and Grassley and their colleagues have worked hard to put together a strong bipartisan bill to deal with…
I will.
I will.
Madam President, the Fraud Enforcement and Recovery Act of 2009 comes out of the Judiciary Committee. Senators Leahy and Grassley and their colleagues have worked hard to put together a strong bipartisan bill to deal with fraud. In fact, I am told that for every dollar we invest in this effort, there is roughly $15 that would accrue to the benefit of American taxpayers. I commend them for their efforts on this important piece of legislation.
However, this Judiciary Committee bill is sort of turning into a Banking Committee bill as most of the amendments being offered are within the jurisdiction of the Banking Committee. I understand the appetite of my colleagues to address some of these questions. Some of them are very good ideas, ones that I will mention in a moment and that I can support. Others are very complicated and have are technical issues, but they also could do great damage to the effort we are all principally engaged in and desirous of achieving, and that is to restore confidence and optimism in order to get our economic system back on its feet.
I thought it might be valuable, as chairman of the Banking Committee, to run through the amendments that affect the jurisdiction of the Banking Committee and to share some of my observations on ones I would be willing to support, which means we could possibly have voice votes on them and accept them as part of this bill, and others which are of concern to me and which I would oppose for reasons I will briefly explain.
On a positive note, Senator Coburn has offered amendment No. 983. This amendment would require the examination of what happened with the GSEs, Fannie Mae, Freddie Mac, the Federal Home Loan Banks.
Yesterday, we adopted a proposal, offered by Senators Isakson, Conrad, and myself, to establish a commission to examine thoroughly how we got into the situation we find ourselves in. There has been a debate about whether we ought to do that with an outside commission or within the Congress. There is a legitimate debate about that. My colleague from North Dakota proposed a select committee, which was adopted last evening. Whether we adopt the select committee approach or an outside commission, in either case, the GSEs would be a part of that examination.
I make the case that the amendment of the Senator from Oklahoma may be duplicative or unnecessary. But rather than have an extended debate about that, I recommend we accept the amendment. The issues surrounding the GSEs are clearly going to be a part of the look-back. So rather than have extended debate about that, let's just accept the amendment and move on. Then the commission or the select committee can make those specific determinations. I urge that a voice vote be acceptable on that issue.
Senator Kohl has offered amendment No. 990. That amendment is designed to offer additional protections to older Americans from misleading and fraudulent marketing practices within the financial area. I commend my colleague for his amendment. We all know elderly Americans are some of the most--if not the most--vulnerable to the marketing scams that go on, either through direct mail operations or telemarketing operations. People who are alone and vulnerable in many ways are incredibly susceptible to some egregious marketing techniques. The Senator has offered an amendment that would provide additional security for those in retirement, and we can all applaud him for that effort. The amendment has been endorsed by the North American Securities Administrators, financial planners, the Consumer Federation of America, and many others. I commend Senator Kohl for that amendment and again urge my colleagues to accept it, if that is acceptable to the Senator from Wisconsin.
Senator Schumer has offered amendment No. 1006 which would add $20 million of authorization to the Securities and Exchange Commission in funding for 2010 and 2011. All of us can appreciate the need for additional support for the Enforcement Division. Americans are painfully aware of the Madoff scandal as well as the Stanford Ponzi schemes. We have had these agencies before our Banking Committee with hearings on how that happened, whether or not people were doing their jobs. Senator Schumer has suggested we provide additional resources.
Earlier this year, I requested, along with members of my committee, a billion dollars a year for the SEC in 2010, a level which we still will not reach with this additional $20 million. Many of us agree that the Securities and Exchange Commission has to have the tools and the staff to do the job. There are an awful lot of scams going on. We don't want to hear about Americans being victimized by them any longer. While there is no guarantee that with additional resources and personnel we will stop all of them, we certainly know that with additional resources and tools, we can minimize the problems that emerged with the Madoff and Stanford scandals. Senator Schumer has offered a very good amendment, and I urge that it be accepted.
Those three amendments are ones we can accept, and hopefully we will in order to assist our colleague from Vermont and others in moving this bill along.
Let me mention a couple of amendments with which I have some difficulty.
First, the Coburn amendment No. 982. This amendment would authorize the use of TARP funds to cover the cost of this bill. I have many problems with this amendment. First, there is a point of order against this amendment. But aside from the point of order, the purpose of TARP, which Congress passed last year, was to provide assistance to unlock our frozen financial markets in order to provide credit for small businesses; to purchase securities backed by loans from small businesses; to provide capital to banks so they can continue to make loans, although not many of them are doing so, but that was the idea behind the program; and to fund the Making Home Affordable Programs, which modifies mortgage loans, either reducing principal or interest, so that we can mitigate the 10,000 people a day who are entering into foreclosure and for whom modifying those loans is critically important. If we start going around and deciding we will use TARP funds for every idea and every bill that comes to the floor we will deprive the Treasury and others of the tools necessary to get our economy moving again. If we start spreading TARP resources in areas that have little or nothing to do with the underlying economic crisis we will be taking a step in the wrong direction. I urge my colleagues to vote against amendment No. 982 for those reasons. If we start down this path, it will be more and more difficult to get our economy back on its feet again. I know that many of my colleagues disagreed with the TARP, but that is what Congress adopted. There were those who objected to using TARP money for the auto industry and believed that was wrong. There may be other areas where some have disagreed with the use of
TARP funds. But to have it become a funding mechanism for every bill that comes along would undermine the very purpose of those programs.
The next two amendments I urge my colleagues to pay attention to and I believe are matters of concern are the amendments from our colleague from Louisiana, Senator Vitter, No. 991, and Senator DeMint from South Carolina, amendment No. 994. Let me explain both of the amendments and why I have concerns about each of them.
The Vitter amendment has to do with the issue of warrants. It is a complicated subject matter, but let me briefly explain it. What would be the effect of this amendment? This amendment is basically a favor to banks and minimizes help for taxpayers. That is what it comes down to. This amendment would take away the discretion of regulators and the Treasury to impose additional capital requirements or any other requirements on a TARP recipient that could benefit taxpayers or protect the financial system. Under this amendment, the financial institutions would have the discretion to act on their own in areas where they currently can not. It is quite clear that when they receive, in many cases, billions of dollars in taxpayer money to shore up their position, to salvage these institutions, that to then turn around and allow them unilaterally to make decisions which could harm the taxpayer and cause even further delay of financial system recovery is exactly the wrong direction in which we ought to be going.
The amendment would allow the TARP recipient, rather than Treasury, to determine when its warrants would be repurchased. The amendment would not permit Treasury's discretion to determine when warrants may be executed and would allow the recipient to indefinitely defer exercise of the warrants. In addition, it could harm the taxpayers by eliminating the requirement that Treasury pay market price for these warrants.
So under this amendment, we are reducing the power of the regulators at the very critical moment we want them to exercise that influence rather than allow the recipients themselves to allow what is in their best interest. They are the ones who have received billions of taxpayer money. It seems to me having a leash on all that and allowing the best decision to be made on behalf of the overall economy is what we ought to be doing.
The amendment would empower the banks, which may act in their individual interests--and I understand that--but having received so much taxpayer money, it seems to me we ought to make sure we are not going to allow that unilateral self-interest to trump the interests of the larger concern; and that is the American taxpayer and the overall restoration of our economic well-being.
So I say respectfully to my colleague, and a member of our committee, Senator Vitter, this amendment, I think no matter how good his intentions, may actually do a lot more damage and harm if it were to be adopted at this critical moment when we see that glimmer of light that our economy is beginning to show some signs of recovery. This amendment could set us back at the very moment we may be heading in the right direction.
The last amendment I will address at this moment is one offered by our colleague from South Carolina, Senator DeMint. I am not in any way disparaging the intentions of my colleagues here. I have great respect for all whom I serve with, and their intentions, I am sure, are motivated by their own framework of how they see these issues. But this amendment concerns me as well in a similar vein. It is a different subject matter, but a similar approach.
Here is what I mean by that. The DeMint amendment also allows a lot of discretion to be left in the hands of the financial institutions, the institutions which have received, of course, tremendous support from the American taxpayer. This amendment would deprive the Treasury of the ability to convert preferred stock to common stock. That conversion could allow banks to basically shore up their balance sheets. That is what some are considering to do. This would limit their ability to do that. It would say you could not do that. You could not have that kind of conversion.
If we limit that ability to make that kind of a discretionary decision, then this could mean that more small business lending would be curtailed, more mortgage lending would be curtailed, more lending for commercial real estate, all of which may be absolutely critical in the coming weeks.
Preferred stock does not increase bank capital in a similar manner as common shares do. The Senator's amendment could lead to the very real consequence that lending is constricted significantly more than we see currently. That would mean more businesses closing for lack of capital, which means more job losses across our country. It means more foreclosures of homes. Madam President, as I mentioned earlier, 10,000 homes a day is a staggering number already. I cannot imagine watching that number increase further. Yet the adoption of that amendment could achieve that result. It could also mean foreclosed homes staying on the market longer, another result that we do not want to see.
In short, the amendment means a lot more economic hardship. Some TARP recipients may not be able to pay a dividend in connection with preferred shares. It would be counterproductive to deprive the Treasury of their discretion to convert its preferred shares to common shares under those circumstances. At a very time you want to shore up balance sheets by allowing for that conversion, this amendment would prohibit that conversion. It seems to me to constrict that kind of action is exactly the wrong direction to be going in at this very moment. The Government's upside potential could be much greater with common shares in some instances, and to deny the ability of our Treasury and others to make that kind of conversion I think could be harmful.
Allowing conversion from preferred shares to common shares would permit the Treasury to provide additional flexibility and assistance to financial institutions and, maybe most importantly, would limit the use of additional taxpayer funds. Let me emphasize that point. I think we are all painfully aware that with about $100 billion left of TARP funds, if you restrict the ability to move from preferred shares to common shares, you increase the likelihood of having to come back here. I do not know of a single Member of this body who welcomes coming back here seeking additional TARP funds. That may very well occur, but it will occur a lot more rapidly if you adopt the DeMint amendment.
So while, again, I respect my colleague from South Carolina, a member of our committee--and I do not question at all his motivations in all of this--I say in this case as well, as with the Vitter amendment, you are restricting the ability of the people we have charged with managing this. If we end up having Congress--535 Members of Congress--deciding on a daily basis how to micromanage this program, and with all due respect to my colleagues, this is above our pay grade in many ways. We in Congress do a lot of things well. Micromanaging this program, such as these two amendments suggest, I think sends us in the wrong direction.
Again, I urge my colleagues on both sides of the aisle to please look at these two amendments and understand the potential danger were they to be adopted. It would certainly curtail our ability, in my view, to engage in exactly the activities that need to be at the top of our agenda: loosening up that credit market; getting a hold of the foreclosure issue, and trying to go in the opposite direction of where it is going today; making it possible for small businesses to get back on their feet; and allowing banks to start lending again in this country. If you adopt these two amendments you achieve the opposite result.
So I urge, on both the Vitter amendment and the DeMint amendment, they be rejected. And for the reasons I offered on, the second Coburn amendment, that are that we cannot turn the TARP program into a slush fund for every program that comes through here, as it was specifically designed to deal with the economic crisis, and that ought to be the purpose for which these funds are used. I urge my colleagues to reject that amendment as well.
Unfortunately, Senator Leahy, the chairman of the Judiciary Committee, has had his bill turn into a Banking Committee bill with all of these
amendments. So I felt obligated in some sense to come over and share with my colleagues at least my observations on these amendments: the ones I think we can accept--and I applaud my colleagues who have offered amendments that I think are significant and can contribute; even the first Coburn amendment, which I disagree with because you do not need it as a result of the earlier amendments which we adopted cover the issues of his amendment. But I think all of us recognize that the GSES issues have to be part of that look-back, so I would find it difficult to oppose his amendment. Therefore, I urge my colleagues to support that amendment, along with the Kohl amendment and the Schumer amendment that have been offered.
With that, I see my colleagues from North Dakota and Utah who are anxious to speak. I yield the floor.