Unacceptable Outcomes: An Ode To Elizabeth Warren

lol red rosa stahp
Elizabeth Warren sending Habeas Quaestus’s author on  her first assignment. But seriously read Red Rosa.

People hate that I love Senator Elizabeth Warren. Which at first glance may seem surprising: after all, Warren is beloved by a large portion of the Left and even some people outside of it. But it isn’t her that’s the problem: it’s me. My liberal friends hate that I share her videos yet constantly chide and push them to be far more radical than the views she expresses. My radical friends hate that I defend her decision to not endorse Bernie Sanders, her decision to not run for president, and even her decision to be a Senator. Her sharp style of argumentation and rational, no-nonsense demeanor makes her an ideal populist candidate for a country fed up with big finance. But her and I both know that, at least at this point, she does more good as a Senator.

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The End of Dodd-Frank Part 2: But Who Will Save OLA?

This post is part of my ongoing series on provisions of the Dodd-Frank Act which have been under attack by conservative, and some liberal, forces. For Part 1 on the Volcker Rule, click here.


Fox News, depicting another kind of orderly liquidation of a bank.

Who Should Break Up The Banks?

As I mentioned in a blog post outside of this series, the presidential campaign of Bernie Sanders has given this topic a lot of media coverage. Some of that has been good: it has reignited public interest in bringing back the Glass-Steagall Act, and despite what opponent Hillary Clinton says, the Dodd-Frank Act’s Volcker Rule is no replacement for that act. But other parts have not been so great: after all, the Dodd-Frank Act is a complicated piece of legislation that became an even more complicated mess of regulatory rules from multiple government agencies and conflicting case law by various different district courts.  The one major success the finance industry had with it was to force compromises that had even more strength in the confusion they add than the actual loopholes they create. And as I talked about in that blog post, Bernie Sanders’s campaign has stated that it wants to use the Mitigation of risks to financial stability provision, 12 U.S.C. § 5331, to break up the “too big to fail” banks in his first year. As I mentioned, that is pretty much politically impossible given the legislative requirements and just how many banks qualify as “too big to fail.”

This post is going to look at another provision: Orderly Liquidation Authority (OLA) as laid out in Subchapter II, Chapter 53 of Title 12 of the U.S.C. Interestingly, Hillary Clinton in the debates has hinted that she would use this authority, specifically to go after disreputable or insolvent financial institutions. While I certainly am aware of how friendly Clinton is with the captains of finance, it is a fairly risky move on her part: OLA is largely despised by even the more liberal economists. The usual “doom and gloom” narratives (funny how they’re never about the things that actually cause recessions) have been put forth by orthodox economists of all stripes. Stephen J. Lubben, Seton Hall University School of Law corporate apologist and neo-colonialist, wrote in his piece for the New York Times “The Flaws in the New Liquidation Authority” that OLA “…is apt to destroy going concern value and result in greater market disruption…There are no easy solutions, and probably failure avoidance is a better aim than any of the proposed resolution mechanisms.” In other words, Lubben wants the market to be allowed to “self-regulate” (shocking I know). As Lubben mentions, others like the Hoover Institute want to utilize some form of bankruptcy proceeding instead of OLA. But before we delve into the alternatives, let’s look at a basic outline of what OLA is.

Previously, when a financial institution was on its way to failing, it would be handled in a fairly similar way to any company failing: through a bankruptcy proceeding. But the government, in a rare moment of clarity that only a major economic downturn can bring, realized that institutions like Lehman Brothers would not conduct themselves properly and that, rather than file for bankruptcy in a timely manner, would postpone it through accounting fraud, misinformation, and perjury. So, Congress decided to create the OLA provision of Dodd-Frank to ensure that major financial institutions would not be allowed to put themselves in the same kind of situation that Lehman Brothers was in. The process was taken out of the Bankruptcy Courts, modified to take away power from financial institutions, and handed over to the Federal Deposit Insurance Corporation (FDIC), an independent agency of the government whose whole purpose is to insure the deposits that people make at the banks they govern (I am going to stay out of the broker-dealer provisions, which are governed by the Securities Investor Protection Corporation). This change of venue is already upsetting to the finance industry: the priorities of a Bankruptcy Court have increasingly been to garner whatever capital possible for financial institutions, whereas the FDIC is looking out for the consumers (note: for many reasons, this is not the same as looking out for communities or the public, but it is an interest often in opposition with that of the major finance companies).

The FDIC’s Ten Step Programme

An orderly liquidation is a 10-step process:

  1. The Secretary of the Treasury, after an investigation, finds that a financial institution is at risk and contacts the FDIC and the financial institution to request that the FDIC be appointed the receiver of the institution. The institution has two options: accept, which takes it to step 4, or oppose.
  2. If the financial institution opposes the request, the Secretary petitions a federal district court to force the financial institution to accept the receivership of the FDIC. There is a closed, confidential hearing where the court evaluates whether or not the Secretary’s determination of the institution as at or dangerously close to default is “arbitrary or capricious.” Capricious means prone to sudden changes in mood or behavior.
  3. The court has 24 hours to deliberate. If it fails to make a determination, the FDIC will automatically be granted receivership. Otherwise, however the court rules, it can be appealed by either the Secretary or the financial institution to first the Court of Appeals for the DC Circuit and after the Supreme Court.
  4. If the financial institution accepts the initial request for receivership, the court fails to make a decision within 24 hours, or the court and any further appeals rule in favor of the Secretary , then the FDIC is granted receivership of the financial institution for three years, with two possible extensions of an additional year each.
  5. The FDIC as receiver now has six major responsibilities: (1) to prioritize the stability of US financial markets over the continuance of the financial institution (2) ensure that shareholders of the institution are the very last to get paid (3) ensure that unsecured creditors bear some of the losses (4) ensure that the management responsible for the condition of the institution are removed (5) ensure that members of the board of directors who contributed to the condition of the institution are removed (6) not take any equity interest in the institution.
  6. If you could not guess from that list, the FDIC now has near-complete control of the financial institution, and may conduct it in anyway that the normal management lawfully would.
  7. But unlike the normal management, the FDIC will be focused mostly on the complete liquidation of the financial institution by selling off some of its assets and transferring others to a “bridge company.”
  8. A “bridge company” would be an entity created by the FDIC through their receivership. It would be created in a similar manner and operate in a similar way as any corporation, with the Board of Directors being appointed by the FDIC.
  9. Once enough of the assets have been sold or transferred to bridge companies to avoid applicable antitrust law, the FDIC may choose to merge the rest of the institution with another financial institution upon that institution’s consent.
  10. However it may be partitioned out, the assets will be completely liquidated within 3 – 5 years without any costs being borne by the taxpayer. Think of it like leftovers that are about to spoil in a house of four people: you might eat some, give some to your roommates, reincorporate it into a new dish (leftover rice and beans always winds up becoming a burrito for me), and probably throw some of it away.

So What Does It All Mean?

If you think this is complicated, this is actually a major simplification of the enormity of particular limitations and additional regulations, judicial and other agency oversight of the process from beginning to end, and rules for handling outstanding lawsuits and other obligations against the financial institution.

But it does not require that comprehensive of an understanding to see that OLA actually has a fair amount of power within it. So does this makes Hillary Clinton’s preference for it more radical, or at least realistic, than Bernie Sanders’s congressional-led bank dissolution? Not necessarily. While the 24 hour default on judicial judgment is one of the strongest regulations in the sector, there are two major stumbling blocks to the process: prior to receivership, the evaluation of risk, and during receivership, the creation of bridge companies.

Risk Is The Game

As I have stated before, risk is the foundation of the finance industry. Capitalism is full of contradictions, or perhaps seventeen major ones as David Harvey divides it, and as Harvey writes one of the clever schemes of capitalism is the ability to utilize these very contradictions for the purpose of capital accumulation. A government beholden to capitalism, as ours is, will always have two interests: to mitigate risk to forestall or manipulate recession and to allow and facilitate a certain amount of risk in the markets. One of the beauties of OLA is that it provides a window for how the government views the relation between the risks of individual corporations and the systemic risk of the finance market.

This is reflected in 12 U.S.C. § 5383, which stipulates the following factors for systemic risk evaluation:

(1) an evaluation of whether the financial company is in default or in danger of default;
(2) a description of the effect that the default of the financial company would have on financial stability in the United States;
(3) a description of the effect that the default of the financial company would have on economic conditions or financial stability for low income, minority, or underserved communities;
(4) a recommendation regarding the nature and the extent of actions to be taken under this subchapter regarding the financial company;
(5) an evaluation of the likelihood of a private sector alternative to prevent the default of the financial company;
(6) an evaluation of why a case under the Bankruptcy Code is not appropriate for the financial company;
(7) an evaluation of the effects on creditors, counterparties, and shareholders of the financial company and other market participants; and
(8) an evaluation of whether the company satisfies the definition of a financial company
Currently, we can to a certain extent  expect Secretary of the Treasury Jacob Lew, as unsavory as he is, to be a good Neo-Keynsian and enforce these provisions with good faith. However, some of them will vary in their enforcement: for example, a Republican Secretary may assert that things like payday loans are beneficial to the economic conditions or financial stability for low income, minority, or underserved communities.
But one provision that is trouble regardless of who is Secretary is (6). This provision, contrary to what the laissez-faire proponents will tell you, is actually meant to give the Secretary leeway to not use OLA and to employ Lubben’s “let the market decide” principle. But the very conditions that gave birth to Dodd-Frank show the danger in trusting that private solutions should be looked at first: whether rumor or based on actual statements, several banks were thought to be the ones to buyout Lehman Brothers to prevent its bankruptcy. When you allow the Secretary to make evaluations based on private solutions, there is a high risk of this happening again, since the management of banks is by its nature “capricious.” It is not that private institutions may not be able to solve every systemic risk, it is that private institutions will never be able to solve many systemic risks. They are beholden to their corporation alone, and while some smarter players in the sector fight to prevent systemic risks, these exceptions can hardly outbalance those who will watch the fire burn it down as long as they can collect on the insurance. This provision needs to be amended out: the finance industry has plenty of cheerleaders, and the Secretary of Treasury being one in any instance is a major conflict of interest. Unfortunately that may be inevitable given, as I have previously state, that the Secretary has for the past few decades always been a finance insider.
Bridge Burner
I actually agree, at least as a short-term intermediary matter, that the creation of bridge companies is a good means to avoid the liquidation triggering antitrust violations. However, I disagree strongly that they should be regular private corporations. Rather, I think it is best for them to be independent agencies modeled on the FDIC. Transferring, or even selling, the assets will not necessarily decrease systemic risk in and of itself (sorry Bernie and Hillary, breaking up the “too big to fail” banks is not good enough). Many of these assets, as most clearly seen in the mortgage foreclosure crisis which was a whole mess of bad faith tainted assets, are toxic. A private corporation could likely continue or even exacerbate the damage of these assets: after all, their goal is to make money, not to prevent systemic risk, even though that is the very motive that gave birth to them. Instead, independent agencies could take the time necessary (and unavailable to the FDIC under receivership) to gradually detox assets with a priority given to prevent both systemic risk and harm to the individuals caught up in the assets. These priorities may be difficult to balance: preventing systemic risk would usually be aided by action as quickly and comprehensively as possible, but such action could intentionally, recklessly, or negligently harm people, especially the low income communities that are so often exploited by such assets.
The End Of Orderly Liquidation Authority
So those are the short term problems and remedies, what is the future of Orderly Liquidation Authority? OLA is a prime example in public policy where a good offense will be far better than a defense at protecting it. People remember what went wrong far more than what went right, so the OLA is already at a disadvantage. However, the banks are the bane, if not outright enemy, of most people and they would love to see a very public execution. The Treasury Department talks big about how important OLA is, but so far this in theory far more than in practice.
There are plenty of targets. The Treasury Department needs to show, publicly and vigorously, that OLA can work, and they need to do it soon or there could be devastating consequences.

Bernie Won’t Break The Banks

Bernie Sanders

Picture from washingtontimes.com

Bernie Sanders got 2016 started by a speech in NYC on one of his favorite issues: the regulation of the banking and finance industry. As one of the defenders of Glass-Steagall back when it was being chipped away at in 1999, Sanders is able to position himself as a “Cassandra of Troy” figure to liberals who might otherwise be reluctant about instituting serious financial regulations beyond the Dodd-Frank Act. Along with income inequality, it is an issue which he has a tactical advantage over any of the other presidential candidates as the only one to admit in anyway that the financial industry is what it is:

Greed, fraud, dishonesty and arrogance, these are the words that best describe the reality of Wall Street today.

While I might disagree on fraud, only because most things normal people consider fraud is perfectly legal in the context of mass financial capital accumulation, it is the most honest description of the captains of capitalism by a major presidential candidate since Eugene V. Debs. But the question is what policies will, and more importantly can, Bernie enact as president? Let’s break down the ones he talked about during his speech:

Breaking Up The Too Big To Fail Banks

First, we have his proposal that he will break up the “too big to fail” banks under Section 121 of the Dodd-Frank Act. Legislators tend to refer to laws based on how they were passed in Congress, but this can be somewhat misleading at times: what we really want to look at is the corresponding section of the United States Code, 12 U.S.C. sec. 5331. This provision does indeed set up a system to “break up” the banks, but it is sufficiently complicated as to put into doubt whether a President Sanders could break up even one, let alone all, of the “too big to fail” banks in his first year.

Banks that are governed by this section must hold $50 billion in assets. That sounds like a lot of money, but not in the banking world: the top 38 banks in this country all hold over $50 billion in assets, and to redistribute the assets of giants like the over $1 trillion top four banks would likely push a lot of the other banks into the over $50 billion range. Which isn’t to say that breaking up these banks is impossible: I just want to give a scope of what a large project it is. It is also worth noting that there is a major limit to what the U.S. government can do at all since, as Forbes reports in 2014, not a single U.S. bank is in the top five banks of the world for asset holdings.

Then there needs to be a 2/3 vote of Congress approving the Federal Reserve taking action. With every. Single. Bank. Let’s all keep in mind how much Congress has gotten accomplished in the past ten years. Even after that, the Board of Governors is required to run through alternative solutions before breaking up the bank, particularly:

(1) limit the ability of the company to merge with, acquire, consolidate with, or otherwise become affiliated with another company;
(2) restrict the ability of the company to offer a financial product or products;
(3) require the company to terminate one or more activities;
(4) impose conditions on the manner in which the company conducts 1 or more activities

These provisions tell us an interesting story about the priorities of capitalists. The howling over the free market is contextualized here by what “freedoms” they’re willing to give up before they give up capital accumulation and growth. The Federal Reserve literally telling them what to offer or not offer, and how to offer it, are more palatable than disrupting the notion that the banks should be able to keep the assets they’ve leeched off the work of others. The bank is also provided a hearing before the Board of Governors where they can argue for why no provision should be enforced upon them or why a certain provision would be sufficient.

If none of the alternatives work, the Board of Governors will break up the bank. Now, after going through that whole process in a much shortened form, do we really think it is possible for a President Sanders to use this law in his first year of the presidency, rallying 2/3 of Congress every time, to break up all 38 of these “too big to fail” banks?

Reinstate Glass-Steagall

President Sanders also wants to reinstate the Glass-Steagall Act, particularly through the bill being pushed for by Elizabeth Warren and John McCain. I talked about how this would be a significant improvement, but with difficulties, towards the end of my post on the Volcker Rule. It is pleasant to see that Sanders shares my view that the attempt by Hillary Clinton and others beholden to big finance to blame this on a few bad apples outside of commercial banking is wrong if not outright deceitful. Sanders states:
And, let’s not kid ourselves. The Federal Reserve and the Treasury Department didn’t just bail out shadow banks [Sanders’s term for noncommercial banks]. As a result of an amendment that I offered to audit the emergency lending activities of the Federal Reserve during the financial crisis, we learned that the Fed provided more than $16 trillion in short-term, low-interest loans to every major financial institution in the country including Citigroup, JP Morgan Chase, Bank of America, Wells Fargo, not to mention large corporations, foreign banks, and foreign central banks throughout the world.

Too Big To Jail

Sanders also wants to go after the bank and finance industry with the criminal law. I am not necessarily opposed to this, but the question is how much will it help and what sort of broader foundation belief does it rest on? Sanders and other progressives are fond of saying that no one or few have been prosecuted for the 2009 recession:

But when it comes to Wall Street executives, some of the wealthiest and most powerful people in this country, whose illegal behavior caused pain and suffering for millions – somehow nothing happens to them. No police record. No jail time. No justice.

This is a bit hyperbolic. Meet U.S. Attorney Preet Bharara, personal pain-in-the-ass to big finance and disliked by many for his “aggressive” tactic of actual prosecuting white collar crimes. He has an 85-1 conviction rate for insider trading alone. He also won the first conviction holding a major commercial bank responsible for causing the financial crisis. The point being that there have been many prosecutions and even some criminal convictions. The question is, has that improved the situation? I would say that is doubtful. The whole purpose of a corporation is to centralize liability outside of an individual’s conduct. While we on the Left love to say that corporations are not people, for the purposes of the law they very much are, except that a corporation cannot be put in prison. And deterrence by criminal prosecution is generally empirically suspect.


Sanders also states that he will reign in Wall Street by making appointments of people not beholden to the interests of the banks and financial institutions. But who does the President appoint in the finance world?

-The Board of Governors is appointed by the President, but appointments are locked in for a term of 14 years and cannot be changed for policy reasons. Not a single Governor’s term expires during the first term of whoever wins the U.S. Presidency. President Obama has requested appointments for the two Board vacancies – unless these are blocked by the Senate, which in the current Senate is certainly possible, there will be no new Board of Governors under the first term of a Sanders presidency.

-The Secretary of the Treasury is appointed by the President and is the most powerful economic position in the executive branch. Notably, Secretary under FDR William H. Woodin was a big force behind the FDIC and Glass-Steagall Act. But President FDR had a far more cooperative Congress than a President Sanders will. Woodin was aided in his work by the fact that he was an industrialist himself, and other capitalists trusted him. Since that time, while proposals have ranged in popularity, Secretaries have almost always been insiders like Donald Regan, Lloyd Bentsten, Larry Summers, Henry Paulson, and Timothy Geithner. Sanders would be under a lot of pressure to also appoint an insider, and not by the Republicans but by fellow Democrats who see it as the only way to gain economic policy victories for their party.

President Sanders Won’t Break The Banks

If Sanders goes on to win the presidency, which is doubtful, his ability to effect change will be limited at best. As powerful as the president is, he is only the head of one of the three branches of government, and the other two have clearly defined themselves as pro-Wall Street. The Carter presidency in particular shows the limits: the economic crisis was triggered by OPEC, an entity outside of U.S. governmental regulation, and Congress’s refusal to cooperate stymied any hopes of Carter implementing the measures needed to cut short the crisis and save his own reputation.

But there is certainly upsides to Sanders discussing these issues during his campaign. There seem to be two major positions on the Left when it comes to this issue: on the more conservative side, the trusting of the process and nominal reforms, and on the more radical side, a disinterest in engaging with or understanding the financial system. While dogmatic reformism will always be insufficient, an outright rejection of any strategy but the complete immediate dissolution of the financial system is the sort of inane self-righteous postulating that Lenin denounced in his “Left-Wing Communism: An Infantile Disorder.” However, the position of endorsement of Sanders’s campaign by Leftists such as Socialist Alternative represents the other side where pragmatism ends and opportunism begins.

In between, we find a different strategy: to use but not depend on the government to regulate or weaken the banks and financial institutions, and to build radical alternatives like credit unions and worker cooperatives as well as imagining and advocating for a future economy that is democratic and socialist. To juggle these is difficult, and those who do will often be derided as riding the fence or being too moderate for some and too radical for others. But this ideology more than any other focuses on the grassroots movement building that has always been the vehicle for the working class to gain power.

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The End of Dodd-Frank Part 1: Thus Spoke Volcker

The Volcker Rule, also know as United States Code Section 1851, was the consolation prize for the Glass-Steagall Act failing to get reinstated. It prohibits banking entities from engaging in proprietary trading or acquiring “any equity, partnership, or other ownership interest in or sponsor a hedge fund or a private equity fund.” For Glass-Steagall Act supporters, it was viewed as too little. For those who support continuing the abolition of Glass-Steagall, such as presidential candidate Hillary Clinton, the Volcker Rule is viewed as a go-around. They want to get rid of it because the very same banking connection to proprietary trading, hedge funds, and private equity funds helped bail out these institutions during the recession. And then they, in turn, were bailed out by the federal government and other banks.

The Volcker Rule was made explicitly in recognition of this dynamic: the constituents said no more bailouts, so Congress made it impossible for bailouts to ever happen again, at least in the way they did with Bear Sterns and others. One criticism raised quite fairly is that the Volcker Rule may not actually prevent bailouts. But often it is under the delusional rationale of free-market dogmatism, rather than recognizing that a porous, watered down version of Glass-Steagall will never be a substitute, even in the short term, for the reinstatement of Glass-Steagall. Not to mention that it was only this year that the rule actually took effect, and it won’t be until next summer that we see audits to check for compliance. Until then, the effects  of the rule are at best conjecture. But we do not have time: the last minute sellings of prop desks and CLO’s at least demonstrate continued interests by the banks to engage in activities prohibited by the Volcker Rule.

The most succinct but comprehensive capitalist argument against the Volcker Rule I have found was provided George W. Madison, Gary J. Cohen, William A. Shirley  in the Banking and Financial Services Policy Report, entitled “Reconsidering Three Dodd-Frank Initiatives: The Volcker Rule, Limitations On Federal Reserve Section 13(3) Lending Powers, AND SIFI Threshholds” (34 No. 6 Banking & Fin. Services Pol’y Rep. 1). They divide criticisms of the Volcker Rule into four types: Risk, Liquidity, Complexity, and Competition. While they do not address Competition directly because they claim their criticisms are not concerned with it, their underlying ideology, both express and implicit, centers on competition as regulatory and I will criticize that in turn. However, because I see the questions of liquidity and complexity as being subsumed within the question of risk itself, I will in the interest of time focus solely on the arguments made about risk.

The structure of “Reconsidering…” introduces each criticism with Chairman Volcker’s rejection of similar criticisms. While I doubt the truncated summaries are not necessarily accurate representations, I do agree that Volcker’s justifications often fall short or are simply wrong. In other words, this is not me countering Madison et al’s arguments to defend Volcker’s as much as to assert options outside such a constricted binary.

The financial industry is rather torn about how to handle the criticisms of risk. Risk is far too important to their industry for them to accept changes that significantly lower risks. Let’s give a brief illustration of what risk means to finance. Before the United States’ credit rating was downgraded to AA+, U.S. Treasury bonds in a one year period were practically a risk-free investment: there should be no difference between your expected return and actual return. That looks like this:

risk free


Where is the variance curve? There is none: the actual results will always line up with expected results. Now let’s look at hedge funds, as conveniently set next to the more secure mutual funds:


YTD HF performance_1


And the risk of hedge funds, despite providing unconscionable high returns during the housing bubble and the recession, has steadily been increasing.




And since banks started making these sorts of investments post-Glass-Steagall, their standard deviations have on average increased. A simple, non-causal relation I’m sure.

And that is precisely what is criticized in “Reconsidering…”: “a correlation between the proprietary trading activity and the losses certainly existed, but not a significant causal relationship” (34 No. 6 Banking & Fin. Services Pol’y Rep. 1, 3). Madison et al. instead say that the problem is in “supersenior” collaterized debt obligations (CLO’s). Blaming CLO’s is convenient for industry shills: “supersenior” CLO’s are not stratified into risk tranches, under the mistaken belief that properly construct CLO’s could not completely default. The problem with that belief: (1) quite a few CLO’s were not properly constructed (2) there was risk, and the banks hid it in undercapitalized bond insurers. In both these instances, you have causes of the collapse that are easy to atomize into the fraud or mistakes of a few “bad apples.” So if CLO’s are the main problem, what is Madison et al.’s solution? Capital requirements. In 2004, the S.E.C. allowed the largest broker-dealers to apply for exemptions. Because that exemption is still in place, it gives the more conservative critics of the recession a solid campaign target to obfuscate their agenda to chip away at Dodd-Frank piece by piece. The Financial Crisis Inquiry Commission Report (FCIC) does talk about how thin capital was an important factor:

In the years leading up to the crisis, too many financial institutions, as well as too many households, borrowed to the hilt, leaving them vulnerable to financial distress or ruin if the value of their investments declined even modestly. For example, as of 2007, the five major investment banks—Bear Stearns, Goldman Sachs, Lehman Brothers, Merrill Lynch, and Morgan Stanley—were operating with extraordinarily thin capital.FCIC Report pg. xix

But here are the problems: first, the bad apple theory finds no correlation between the indisputable direct actors of the crisis and actors subverting capital requirements through the 2004 exemptions. Not only was Bear Stearns, public “bad apple” enemy number one, within the current capital requirements, they also happened to be within the pre-2004 capital requirements as well. It turns out that leverage held by the investment banks was not the fault of the 2004 exemptions at all:

Leverage at the investment banks increased from 2004 to 2007, growth that some critics have blamed on the SEC’s change in the net capital rules…In fact, leverage had been higher at the five investment banks in the late 1990s, then dropped before increasing over the life of the CSE program—a history that suggests that the program was not solely responsible for the changes. –FCIC Report pg. 153-154

The FCIC Report is being generous in saying “not solely responsible.” The capital requirement exemptions were not in anyway a major factor in the recession. They are merely a convenient scapegoat for the ill-informed and the zealots of free-market ideology. Such scapegoating is possible when the inability to see the forest from the trees pervades U.S. understanding of economics, or rather the inability to see the inherent contradictions of capital from the specific manifestations of it in various financial factors and instruments. As David Harvey points out, these contradictions are never actually solved, but rather moved around. His focus, as a geographer, is how this is done geographically, noting the examples of the U.S. to Brazil and the West to Greece. But geography is only one facet of place – financial investments, I would argue, are another. And this is the fundamental nature of capital; Karl Marx in Grundrisse states that-

…[capital] already appears as a moment of production itself. Hence, just as capital has the tendency on one side to create ever more surplus labour, so it has the complementary tendency to create more points of exchange…The tendency to create the world market is directly given in the concept of capital itself. Every limit appears as a barrier to be overcome. –Grundrisse pg. 334

And as finance experiences growth, it creates more points of exchange, which means more trades, in shorter time, with far more risk. Thus, the futility in “solving” the problems which caused the recession by imposing a single regulation that merely attempts to limit, not even growth itself, but the speed of growth. Madison et al.’s claim that short-term exchanges are not at issue is farcical. Bear Stearns demonstrates, about as clearly as one can get, that the singular function of lax capital requirements is not needed to engage in risky growth and, as Marx states in Grundrisse, such haphazard search for more points of exchange is intrinsic to capital itself.

But the Volcker Rule is hardly exempt from this criticism either, though built on slightly stronger foundation. As a Marxist myself I do not believe that there could ever be a set of regulations capable of preventing the uncontrollable swarming of capital. But while “every limit appears as a barrier to be overcome,” some barriers are far easier to overcome than others. The Volcker Rule certainly sets stronger, though not impermeable, limits to the reproduction of the conditions that created the recession than any single capital requirement ever could.

An apt analogy would be three “average people” in a race against one another. One runner is given a track that is simply a one mile line, and not given any restrictions. The second runner is given an identical track, but told “You can only run at 7 mph at any given time. But we will only check your speed once in the race, and will give you 30 seconds to slow down if you’re over the limit.” The last runner is given a labyrinth where the correct path is one-mile long, but allowed to run as quickly as they want. The first runner and second runner will likely have identical times: the average one mile time of a person is 8:18, or about 7.22 mph. That additional 0.22 mph could easily be made up while the referees are not watching. The last runner will likely have the worst time. Unlike the second runner, the last runner has actual limitations to how they can run.

But the Volcker Rule itself contains a number of loopholes, most notably the convoluted (d)(1)(G) exception to certain activities around hedge funds and private equities or the provisions governing activities outside the United States in (d)(1)(H) and (d)(1)(I). The confidence of the banks themselves in the face of the impending implementation of restrictions this coming summer may indicate that they have found, or expect to find, a means of subverting the Volcker Rule. Regardless, the specific naming of proprietary trading, private equity, and hedge funds allows future financial instruments that can be defined outside of these while serving similar functions to be engaged with by banking entities. In other words, the Volcker Rule may not be a labyrinth as much as a fork, one path with a dead end and the other leading to the finish line. How effective it will be is far too dependent on a large number of circumstances for Leftists to be comfortable with it even in the short term, and that is not even counting the 13 proposed pieces of proposed legislation (a political analysis of their viability would take far too long to go into here, but worth noting nonetheless).

Another piece of proposed legislation could alter the Volcker Rule if enacted, and that’s Elizabeth Warren and John McCain’s 21st Century Glass-Steagall Act. While hardly the means of putting an end to any triggering of mass dispossession by recession, the strict separation of banking activities significantly reduces the effect of risky financial actors on commercial banks, as well as ending poor assessments of risk that give undue power to diversification of investments regardless of the kind of investment. Further, for those of us interested in pushing for worker cooperative banking, nationalized banking, public banking, etc., a Glass-Steagall reinstatement would decrease the short-term competitive edge commercial banks have by investments too risky for small, community or municipal public banks to take on. While it only has six co-sponsors and the bill’s prospects are rather grim, the idea has enough popularity to stay in the media, albeit with a far less Leftist lens than I give it.

But we can all act on this issue immediately in two simple ways. The first is to refuse the resignation to commercial banks being above the law and regulation. To refute the rewriting of history to claim that the recession was not caused by a lack of regulation. To state plainly that the banks got bailed out and we got sold out, and that we cannot accept that as business as usual. And the second is to divest. Divest from predatory financial institutions. Divest from the big commercial banks that have profited from investing in those institutions. Stop making investments with the sole goal of profit, and start taking conscious measures to avoid the schemes that hurt people of color, women, and the working class. To do so completely is impossible: there is no ethical consumerism when capital only exists from the surplus value extracted from labor. But to change that larger problem requires rebuilding society in a way that will be made far more difficult if our communities are torn apart by increasingly brief gaps between recessions.

Read Part 2 on Orderly Liquidation Authority here.

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The End of Dodd-Frank

6281762077_bc5ab9a1d5_zMost Leftist groups face a fairly unwieldy task of challenging a whole range of complicated issues with far less funding and time than their conservative counterparts. That is compounded by an overall focus on trying to prevent individual people from suffering which, while a noble endeavor, does not change the conditions that created that suffering.

So I want to start producing more technical legal but no less radical analysis, especially for the purposes of crafting both policy for the near future and setting our sights on some more distant visions of a socialist world. These are obviously the conjectures of a 1L student with a rather transparent agenda, so take that for what it is worth: if anything, this exercise is more to build up my own experience. I welcome any criticisms that readers may have.

I have three series planned so far, on issues with a rather abysmal lack of Leftist insight, at least in the legal realm. The latter two, because I do have many colleagues in friends in the respective field, will be released much later, and those will be on Prison Abolition and Constitutional Crisis. The first, which I will start immediately, is on the Dodd-Frank Act. With a Republican-controlled Congress enacting revisions to the financial regulations, revisions crafted by the lawyers of the banking and finance groups, it seems like a timely subject in need of an injection of truth. Because these lawyers are attempting to rewrite history, somehow re-constructing the recession as the fault of regulation and restriction. Here is what I am planning to cover:

Part 1 – Thus Spoke Volcker: The Volcker Rule, U.S.C. 1851, is essentially the consolation prize for advocates who failed to reinstate the Glass-Steagall Act. It prohibits banking entities from (1) engaging in proprietary trading and (2) having any pecuniary interest in a hedge fund or a private equity fund. The challenges to it are eloquently summed up in Madison, Cohen, and Shirley’s “Reconsidering Three Dodd-Frank Initiatives”: Risk, Liquidity, Complexity, and Competition. I’m going to pick apart how circular the logic of these challenges are, how their claims of wanting to reduce risk ring hollow, and how segregation between the banking industry and such risky financial institutions and instruments is crucial to preventing a virtual replication of the recent recession in a matter of a few years. In fact, that will happen because the Volcker Rule just is not the Glass-Steagall Act. With the recent repudiations of some of the very people who formerly championed the end of the act, the time for its reinstatement could be at hand.

Part 2 – But Who Will Save OLA?: The Orderly Liquid Authority was put in place to allow the government to intervene in financial corporations where normal bankruptcy is not possible. The collapse of Lehman Brothers was, in large part, unstoppable due to the inability of such intervention. The OLA is being challenged on a number of constitutional grounds, namely the First Amendment, the Due Process Clause, and the Takings Clause. I will refute that the OLA is unconstitutional, and further assert that its authority should be extended beyond the current scope of agencies. While it would be delusional to think that such Keynesian measures will stop another crisis of capital from ever occurring, the regulations need to be extended to at least temporarily prevent any further dispossession of wealth from the working class, and especially the Black working class, communities.

Part 3 – The Chilling Effect of Capitalism on Stability in the Congo: Here I will talk about a portion of the Dodd-Frank Act which have been chipped away by stare decisis. The constitutional arguments largely lean on the recent move to extend First Amendment protections to corporations. This trend is dangerous, and may require legislative intervention to really prevent. That is unlikely to happen with the current composition of Congress, so I will explore alternatives to the arguments the S.E.C. and others have failed with.

Part 4 – Financing a Democratic Future: Why should a socialist care about regulating an industry which they find to be inherently oppressive? Here I will explore the pros and cons of fighting for reforms, raising consciousness among the working class about how capital functions, and what role the legal profession can play in pushing for public ownership of the banks and other means of financing cooperatively owned businesses.