I’m supposed to be in Geneva right now, but United Airlines decided that what I really wanted to do was to sit around Dulles for 5 hours waiting for them to figure out they couldn’t fix a mechanical problem, and then to sit around a hotel for a day waiting for today’s flight. Luckily I was able to get the last seat on that plane, so I don’t have to do something like Dulles-Newark-Frankfort-Geneva like some of the other folks on the canceled flight.
So that gives me some time to catch up on reading (and blogging). And it takes some time to read this loooonnnnggggg Bloomberg encomium to Gary Gensler, which describes his valiant St. George-like battles against the big, bad banking dragons.
The basic theme is that anything the banks don’t like must be good, and anything the banks do like must be bad. The profile confirms that’s Gensler’s view of the world, and Silla Brush and Robert Schmidt pretty much adopt that template.
If only the world were that simple. Yes, regulatory capture by major financial institutions is a major danger, and happens. Freddie and Fannie illustrate that in spades, for sure. So one should always approach the lobbying efforts of large incumbent players, especially large financial institutions, with incredible skepticism.
But at the same time, one has to remember that regulators do stupid things, and adopt regulations that are grossly counterproductive and impose costs far in excess of any conceivable benefits. Banks potentially subject to such regulations reasonably fight against those, which means that bank opposition to a regulation is not a sufficient statistic to determine whether it is a good or bad policy.
The two regulations that Gensler fought for that are covered extensively in the Bloomberg piece are definitely examples of bad regulations. The article devotes the largest share of pixels to the battle over the request for quote battle. You may recall that I named Gensler’s RFQ proposal as the Worst of the Worst of Frankendodd. The SEF mandate itself is seriously misguided, and mandating how many quotes those wanting to buy or sell a swap must obtain is totally cracked: it is predicated on the paternalistic belief that those who are doing the trading don’t have the ability to make the appropriate trade-offs between information leakage and greater competition to get their business.
The article also details the battle over the de minimis level of trading activity that would determine who has to register as a swap dealer, and thereby incur the additional compliance, collateral, and capital burdens. Gensler wanted the level set at a piddling $100 million, which would catch pretty much everyone of even modest size in the CFTC’s swap dealer web.
If the purpose of the swap dealer designation is to reduce systemic risk, the level of trading activity is a very poor means of determining which entities should be subject to the higher level of regulation and scrutiny. And seriously, many firms that must register as swap dealers under the $3 billion level eventually settled upon-against Gensler’s furious opposition-are not systemically risky, either.
Relatedly, the article identifies futurization as an end run around regulation. As I’ve written before, futurization is a predictable response to regulations that treat economically identical instruments differently. Swaps are treated more punitively, due to more onerous collateral standards, and because swap trades count towards the de minimis swap dealer trading level but identical futures don’t. So, duh, people will choose futures over swaps that are otherwise economically equivalent. If this also allows firms that aren’t systemically important to escape the burdens of swap dealer registration, that’s all for the better.
Moreover, it should be noted that futurization has been over-hyped. Its main effect has been in energy. There is no way that the real swap dealers who are systemically important-the JP Morgans, Citis, etc.-are going to be able to avoid being designated as swap dealers by switching their business to futures. (Don’t interpret that to mean that I believe that swap dealer designation will materially reduce systemic risk.) A lot of their business is in instruments for which futures are not a viable substitute. In contrast, in energy (and commodities generally) for the bulk of the business futures and swaps are close substitutes.
Indeed, there is an irony here. Large quantities of energy swaps were “NYMEX lookalikes” virtually equivalent to futures traded on NYMEX (and then the CME after it acquired NYMEX): firms traded the swaps because under the CFMA, they were subject to a lighter regulatory touch than futures. So the energy swaps business was largely a product of regulation, and when the regulation changed, the business changed. The business went to where the regulatory burden was lowest. Go figure. Given that part of the premise of Frankendodd is that the futures regulatory structure was the right model that made an appropriate trade off between costs and benefits, the migration to futures should be considered an improvement even by Frankendodd supporters. It brought the business back to where it should have been all along, according to the advocates of Frankendodd.
The article also writes a lot about extraterritoriality, a subject that makes my eyes glaze over. The most revealing aspect of this battle is Gensler’s regulatory imperialism, and his stubborn resistance to near universal opposition. In Gensler’s view-and in the article-everybody was out of step but Gary.
One interesting omission (as if you think anything could be omitted in a 20 page article) is anything related to position limits, another Gensler hobby horse. Perhaps this is because he eventually prevailed in the Commission, and got it to pass a rule to his liking, so it doesn’t fall into the category of where Gensler’s views lost out to intense political opposition. But it does fall into the category of a regulation that was opposed vigorously by the banks, who prevailed-at least for now-in getting the regulation stopped. The difference is that they fought and won that battle in court (though appeals are ongoing).
The article does devote some coverage to the systemic risk of clearinghouses. Ironically, it indicates that Gensler is aware that CCPs concentrate counterparty risk, which can be problematic. This is quite contrary to many of his public statements on the issue, including in an FT oped mentioned in the Bloomberg piece, in which Gensler suggests that CCPs are a magic box that makes risk disappear. So was he misinformed before, and has he come to a better understanding of the way things really work? Or was he deceptive in his earlier advocacy?
It’s good to know that there is some recognition of this issue, but sadly, the diagnosis of how CCPs contribute to systemic risk is cramped and simplistic. Yes, the failure of a CCP is a major worry, but as I point out in the paper I will present in Paris next week (assuming UA cooperates!) measures to keep CCPs immune from failure can create systemic risks too. There is too little systematic thinking about systemic risk.
In politics and journalism, good versus evil narratives are easy and comforting. The problem with that is that when you are talking about something as complicated as derivatives regulation, the world isn’t that simple. Rent seeking and capture happen, resulting in industry-friendly regulations that may create or perpetuate systemic risks, or fail to mitigate real problems. But regulatory stupidity happens too. This is especially likely when you have a regulatory crusader who believes that he is on the side of good fighting evil, and who approaches complicated markets with a very narrow set of simple beliefs, rigidly held: Transparency good! More transparency better! (Ironic, given that SEFs reduce transparency about the identity of counterparties, even if they increase pre- and post-trade price transparency). Clearing good! Banks bad and anti-competitive!
As you know, I believe that the intellectual assumptions underlying Frankendodd are fundamentally flawed. The adverse consequences of those fundamental bugs are only exacerbated when the individual with the primary responsibility for implementing the law believes the bugs are actually features, and approaches his task with a Jesuitical zeal that treats any opposition as the result of malign and self-interested motivations. Gensler’s rigidity and self-righteousness, and apparent unwillingness to contemplate the possibility that people were opposing him because, he was, you know, actually wrong, have made the process costlier and more contentious, and made the resulting regulations more costly and less beneficial. Consequently, Gensler’s defeats on these issues-which are minor in the scheme of things, really-are to be welcomed, not lamented.