Donald Trump faces a major hurdle in fulfilling his pledge to do a “big number” on the Dodd-Frank Act: persuading enough Democrats to go along.
That’s why Republican lawmakers say they are considering a backup plan for dismantling parts of the financial rules overhaul that wouldn’t require support from a single Democrat.
In the narrowly-divided Senate, most bills need 60 votes to become law. But Republicans are looking into ramming through changes with just 51 votes through a complicated process known as budget reconciliation.
To do that, they’d need to demonstrate that the financial regulations are draining the government’s checkbook. For instance, they’d have to supply evidence federal expenditures would be reduced if hedge funds got a break on regulations. Or that the nation’s fiscal health would improve if the Treasury Department doesn’t help failing banks.
The strategy is already being used to go after Obamacare. Key Republicans, including House Financial Services Chairman Jeb Hensarling of Texas, have said it’s also an option for targeting at least some aspects of the 2010 Dodd-Frank law.
Republicans are constrained in which parts of the law they can kill because of the need to show a direct effect on federal spending. Still, reconciliation is an “attractive option,” as the prospect of Republicans and Democrats agreeing to compromise on any legislation dims, Brian Gardner, an analyst at Keefe Bruyette & Woods wrote in a note to clients Wednesday.
“It’s plausible you could do this, but the next part is the hard part—finding out what works,” says Norbert Michel, a financial regulation fellow at the Heritage Foundation. “It’s torturous logic to make anything fit within the limits of reconciliation.”
House lawmakers, led by Hensarling, are planning to introduce legislation in the coming weeks that would make changes to Dodd-Frank, Republicans have said. Trump supports ripping up the law, saying this week that it’s a “disaster” that has made it difficult for businesses to get loans and that he wants to do a “big number” on the measure. If Hensarling’s bill fails to pass in the House or dies in the Senate, Republicans might then turn to reconciliation.
Here’s an overview of how it works and what parts of Dodd-Frank Republicans might be able to go after.
Reconciliation and Dodd-Frank: The Basics
Budget reconciliation, used to reduce the U.S. deficit, is a multi-step process in both chambers of Congress. Lawmakers are limited in the nature of what can be included in the legislation.
Republicans don’t have a problem passing legislation in the House. The Senate, where they hold 52 of 100 seats, poses the bigger challenge.
Sen. Pat Toomey of Pennsylvania is leading the charge in his chamber to identify what aspects of Dodd-Frank can be altered through reconciliation.
“There’s a long list of what we can do,” Toomey said in an interview, declining to give specifics. “We’re still refining it.”
Republicans will have to demonstrate that overhauling any part of Dodd-Frank they seek to eliminate will help the U.S. reduce costs or increase revenues. That requires getting an assessment from the nonpartisan Congressional Budget Office and sign-off from the Senate parliamentarian.
In determining the cost effect, Senate leaders could tell the budget office to consider how Dodd-Frank affects the U.S. economy. That may make it easier for some changes to be approved through reconciliation by changing the calculations over reducing government costs or increasing revenue.
Debate likely would play out as lawmakers consider the 2018 budget—a discussion that’s months away. Republican leaders have already said the focus of those talks will be on revamping tax law. Adding Dodd-Frank to the discussions will create an additional hurdle.
The future of the Consumer Financial Protection Bureau (CFPB), a watchdog agency created under Dodd-Frank, is likely to be one of the biggest targets under reconciliation.
Republicans and financial services executives have tried for years to change how the Bureau is managed and funded. They object to the Bureau’s structure. It’s funded by the Federal Reserve system and has a single person in charge of approving rules and enforcement actions. Other independent agencies are run by a chairman and a bipartisan commission and get funding directly from Congress.
Republicans must show that requiring Congress to approve the CFPB’s budget—which totals about $646.2 million—would reduce government spending. With Congress in charge of funding, lawmakers could cut agency funds, reducing how much it has to create rules and pursue enforcement actions.
Gutting Too-Big-To-Fail Bankruptcy
Dodd-Frank gives the federal government the power to intervene when U.S. banks fail. The biggest banks are required to create living wills detailing how they could be wound down in a bankruptcy. If their plans don’t work, the Federal Deposit Insurance Corp. can step in, liquidate the bank and force losses on shareholders and creditors. The Treasury would provide temporary funding, which the budget office has said contributes to the U.S. deficit.
Republicans argue this part of the law makes taxpayers liable when banks fail and should be revised. Under reconciliation, they’re considering blocking regulators’ ability to intervene after a bank failure. The budget office estimated in 2012 that eliminating that authority would decrease the federal deficit by $22.5 billion over a decade.
Big banks might not be happy about a change. While they don’t like the paperwork and scrutiny associated with living wills, banks appreciate that there’s a system in place to prevent them from going out of business in a crisis.
“The banking industry likes that there’s certainty,” says Ed Mills, a financial policy analyst FBR Capital Markets. “Taking away that certainty would be bad. What does that do for investor confidence?”
Eliminating FSOC and Systemic Risk Label
Republicans want to use reconciliation to take power from the Financial Stability Oversight Council, a unit of the Treasury established by Dodd-Frank that monitors major risks to the financial system. The Council decides which financial companies should be labeled as “systemically important,” a designation that subjects them to more rules.
Insurers, asset managers and other financial companies have fought for years to change how the Oversight Council determines risk. Republicans say the Council isn’t transparent and there aren’t enough checks and balances on its management.
They also don’t like the Office of Financial Research, another independent bureau within the Treasury, created to provide analysis and research in support of the oversight council and its members. Eliminating the Office of Financial Research would have reduced spending by $255 million over 10 years, the budget office estimated in 2012, potentially giving Republicans ammunition to get rid of it in reconciliation.
Easing Rules for Private Equity and Hedge Funds
Republicans may also try to eliminate a requirement that private-equity companies and hedge funds register with the Securities and Exchange Commission (SEC), which forces them to disclose more information about their investments and undergo routine inspections by the regulator.
That registration requirement helped the SEC spot alleged violations at private equity companies, resulting in record fines imposed against Apollo Global Management LLC, Blackstone Group LP and KKR & Co.
The SEC’s new authorities required it to hire additional staff, and will cost about $2.5 billion over a 10-year period, the CBO estimated in 2010. As a result, Republicans could target the provision under reconciliation.