Financial Services Committee Chair Prepares “Views and Estimates” Document for Markup

Financial Services Committee Chair Jeb Hensarling circulated to Members of the Committee on Financial Services a “Views and Estimates” document for markup. Once adopted by the full committee, the document will be transmitted to the Budget Committee “to be set forth in the concurrent resolution on the budget for fiscal year 2018.”

The document is required by section 301(d) of the Congressional Budget Act which requires “each standing committee to submit to the Committee on the Budget, not later than six weeks after the President submits his budget or upon the request of the Budget Committee: (i) its views and estimates with respect to all matters to be set forth in the concurrent resolution on the budget for the ensuing fiscal year that are within its jurisdiction or function; and (ii) an estimate of the total amounts of new budget authority and budget outlays to be provided or authorized in all bills and resolutions within its jurisdiction that it intends to be effective during that fiscal year.”

The document includes the following recommendations:

  • “replace the failed aspects of the Dodd-Frank Act with free-market alternatives”;
  • “place the non-monetary policy activities of the independent agencies within the Committee’s jurisdiction on the appropriations process”;
  • “replac[e] the Orderly Liquidation Authority with established bankruptcy procedures, wherein shareholder and creditor claims are resolved pursuant to the rule of law rather than the arbitrary discretion of regulator”;
  • eliminate the Office of Financial Research, as proposed by the Financial CHOICE Act;
  • “enhance accountability and lead to greater transparency” at the Consumer Financial Protection Bureau (“CFPB”) by reforming the CFPB’s “operations and unconstitutional structure, including by subjecting the CFPB to Congressional appropriations process, and by reforming the CFPB’s statutory mandate to ensure that it takes into account, and seeks to promote, robust market competition”;
  • “modernize the SEC’s operations and structure to eliminate inefficiencies”; and
  • “promote greater accountability at the Federal Reserve by advancing legislation to fund the non-monetary activities of the Federal Reserve’s Board of 33 Governors and 12 regional banks through the Congressional appropriations process.”

Lofchie Comment: If there is an overriding theme in the initiatives contained in the Visions and Estimates document, it is that Congress chooses to assert its authority over the so-called “regulatory state,” or the unofficial fourth branch of the government. Most significantly, Congress is exercising that authority by asserting its funding power over the various regulatory agencies – particularly, the CFPB. Undoubtedly, many of these measures will be seen as reasons for Democrats and Republicans to fight, but that should not be the case with the exercise of the funding powers. The issue raised by these measures is not whether elected Democrats or Republicans are in the right concerning any particular policy decision, but whether regulatory agencies should be able to operate free of the political control of whichever party is in power.

The Visions and Estimates document provides an example of this in a section that examines the funding of the CFPB. Assuming that current CFPB Director Richard Cordray serves out his term, Mr. Cordray will remain in power until some point in 2018; he will keep his position for a substantial part of President Trump’s four-year term. President Trump then will be able to appoint a new CFPB director who could undo much of the previous director’s work and will serve well into the term of the next elected President, who easily could be a Democrat. In short, we could have a situation in which the unelected head of the CFPB is not financially accountable to Congress and acts in opposition to whoever happens to be President at a given time, whether Republican or Democrat. This is no way to structure a regulatory agency. Both Democrats and Republicans ought to prefer the CFPB to be funded by Congress and held accountable by elected political officials.

Federal Register: CFTC Requests Comments on Proposal to “Modernize” Recordkeeping Requirements

The CFTC requested comment on a proposal to modernize certain recordkeeping obligations. The proposal would remove a requirement that electronic records be kept in their original format, and would allow recordkeepers to reduce costs associated with paper records through the utilization of “advances in information technology.” The request for comments was published in the Federal Register.

Comments on the proposed amendments must be submitted by March 20, 2017.

Lofchie Comment: The rule proposal would provide welcome updates to the requirements for the storage of electronic records under CFTC Rule 1.31. Significantly, the proposal would eliminate many of the prescriptive requirements of the current rule, including the need for firms to use outdated “write once, read many” (or “WORM”) storage media. Instead, the proposed new rule would adopt a technology-neutral requirement that electronic records be maintained in ways that preserved their “authenticity and reliability.” In addition, the proposal would eliminate the need for firms that store records electronically to (i) appoint a “technical consultant” that agrees to provide the records to the CFTC, and (ii) file a notice with the CFTC regarding compliance with Rule 1.31. However, the proposal also would require firms to implement written policies to assure compliance with the new requirements, including policies for training personnel, and for regular compliance monitoring.

The CFTC’s recent move to a more principles-based approach presents an interesting question: will the SEC follow the CFTC’s lead and modernize SEC Rule 17a-4 along similar lines?

 

CFTC Proposes Capital, Liquidity and Related Requirements for Swap Dealers

The CFTC approved proposed rules establishing minimum capital, liquidity, financial reporting and related requirements for CFTC-registered swap dealers (“SDs”) and major swap participants (“MSPs”). The proposed rules are a reproposal of rules previously proposed in 2011.

The proposed rules cover the follow areas related to SDs and MSPs:

  • capital requirements;
  • liquidity requirements;
  • financial recordkeeping and financial reporting;
  • obligation to notify regulators if a firm’s capital drops below certain levels; and
  • limitations on the withdrawal of capital and liquid assets.

The CFTC identified three approaches to allow firms to meet capital requirements:

  • an approach based on bank capital requirements that would be available to SDs that are subsidiaries of a bank holding company and thus subject to BHC capital requirements;
  • an approach modeled after the SEC’s capital requirements; and
  • a “tangible” net capital approach intended for a commercial enterprise, but that is also required to register as a swap dealer with the CFTC.

The proposal would establish certain liquidity, reporting and notification requirements, and would obligate entities covered by the proposal to keep current books and records in accordance with U.S. Generally Accepted Accounting Principles. Firms would be able to use models, although the models would have to be approved by the regulators. In addition, the rules provide for a “comparability” determination that will allow non-U.S. swap dealers that are not subject to regulation by the Federal Reserve Board to be subject to their home country capital rules.

There are currently 104 provisionally-registered swaps dealers (no registered major swap participants). Of those, 51 are not subject to the CFTC’s capital requirements because they are subject to U.S. bank requirements (including 36 which are non-U.S. banks having branches in the United States). Eight of the remaining swap dealers are already capital-regulated by the CFTC because they are FCMs, some of which are also SEC-registered broker-dealers. Of the remaining firms, some are subsidiaries of U.S. or non-U.S. bank holding companies or other entities subject to Basel-capital requirements that have sufficient capital to sustain their activities. Currently, there are no registered major swap participant and there is only one primarily commercial firm (Cargill) provisionally registered as a swap dealer with the CFTC.

In statements issued in connection with the reproposal, Chair Timothy Massad emphasized that the proposed requirements should avoid requiring all such firms to follow one approach. “Requiring all firms to follow one approach could favor one business model over another, and cause even greater concentration in the industry,” he said.

Commissioner J. Christopher Giancarlo expressed concerns regarding (i) the rule’s effect on smaller swap dealers and how much additional capital they may have to raise; (ii) the especially broad scope of the proposal; and (iii) the proposed capital model review and approval process.

Lofchie Comment: In terms of the substance of the rule requirements, the CFTC largely punted responsibility (and appropriately so) either to the banking regulators or to the SEC, both of which have significantly more expertise and staff to deal with these matters. It would have been messy for the CFTC and the SEC to take different approaches to capital requirements. Firms subject to regulation by both regulators would have been forced to comply with the more conservative set of rules in any case. In terms of process, the CFTC will wait and see what capital rules are eventually adopted by the SEC and then piggyback on them. For the CFTC, this is an entirely sensible way to go.  For firms that have an interest in the CFTC Rules, and will be subject to the “SEC version of the SEC rules, this means that they should concentrate on commenting on the actual SEC Rules, as the CFTC will likely follow along with whatever the SEC does.

In the Appendix, the CFTC reports the number of registered swap dealers and major swap participants. The numbers are revealing.

  • The CFTC stated that it had expected 300 swap dealers to register. Only 104 firms have done so. The costs associated with registration have likely caused numerous firms either to abandon dealing in swaps or to reduce their level of business below the de minimis level so as to not become subject to registration. Put differently, the regulations have led to a significant increase in the concentration of the swaps-dealing business. If the CFTC determines to reduce the level of business at which swap dealers are required to register, virtually all of the small unregistered swap dealers will further reduce their level of business or drop out of swaps dealing entirely. In short, Dodd-Frank has led to a significant accelerated concentration of swaps exposure.
  • There are no firms registered as a major swap participant. Not one. The registration requirements, applicable to large users of swaps that are not dealers, are absurd; it would be impossible for any non-dealer to comply with them. These provisions should be dropped from Dodd-Frank and the regulators should no longer waste time coming up with rules for registration categories that will apply to no one.
  • Congress gave no instruction as to how capital requirements could possibly be applied to a commercial entity that is a swap dealer. It simply does not work to have regulatory capital requirements (which largely require that a firm hold liquid financial assets) for commercial enterprises that own oil wells, related buildings and refineries. After years of struggling with how to make this round peg fit into a square hole, the CFTC essentially gave up (which was the rational thing to do). It set a low tangible capital requirement, which serves as an irrelevant fig leaf: a rule that the CFTC proposed merely because Congress required it to do so.

Currently, the CFTC does not have the expertise to supervise a models-based capital regime. Greater consideration should be given as to how this will work in practice.

Investor Advocate Rick Fleming Describes Progress on SEC Disclosure Effectiveness Initiative

SEC Investor Advocate Rick Fleming described continuing progress on the SEC Disclosure Effectiveness Initiative, an effort intended to review and modernize public company reporting requirements in Regulation S-K and Regulation S-X. In an address given at a NASAA Corporation Finance Training event in Texas, Mr. Fleming emphasized that meeting the informational needs of investors should be the guiding principle of the Initiative moving forward. He added that the methods for determining those needs are “as outdated as some of the disclosure rules.”

Mr. Fleming noted that the initiative is responsive to congressional mandates found in the JOBS Act and the FAST Act, but is broader in its objectives and scope than the mandates require (as is outlined in an SEC concept release dated April 2016). To the degree to which the FAST Act addresses “duplicative, overlapping, or outdated” provisions, Mr. Fleming stated, it reflects the fair criticism that the SEC has not done a “very good job of updating or streamlining its rules.”

Even so, he argued, the disclosure requirements serve as a crucial foundation upon which businesses raise capital. He stated that the success of the requirements should be measured primarily in terms of the “enhanced utility of corporate disclosures for the investing public.” Mr. Fleming stressed the importance of maintaining fairness in the evolving markets:

“[W]e are in the midst of a generational shift that will change the securities marketplace. But one thing will not change – investors will still count on those markets being fair. The challenge, particularly for regulators, will be to simultaneously think bigger and more creatively while exercising an appropriate level of caution to protect investors in an evolving world.”

Lofchie Comment: It is notable that Mr. Fleming did not focus on disclosures of political and political-interest issues, such as those favored by Senator Elizabeth Warren (D-MA). Instead, Mr. Fleming concentrated on disclosures that facilitate investment decisions.

SEC Officials Describe the Potential for Data Analytics to Improve Disclosure and Research

In separate speeches, SEC Investor Advocate Rick A. Fleming and Division of Economic and Risk Analysis Deputy Director and Deputy Chief Economist Scott W. Bauguess described how the SEC might employ data analytics to improve disclosure and the value of research using big data.

Mr. Fleming identified “wish list” priorities for the SEC: (i) “embrace the Legal Entity Identifier with the goal of making public company disclosure to the SEC interoperable with disclosure to other reporting regimes,” (ii) require the block-tagging of narrative text disclosures, and (iii) “require detail-tagging within narrative text disclosures.” Mr. Fleming stated: “by prioritizing structured data, and particularly the tagging of text . . . the [SEC] could drive even greater innovation in cost-effective enhancements to the packaging and delivery of information.” Mr. Fleming delivered his speech at the XBRL US Investor Forum 2016: “Finding Value with Smart Data.”

Mr. Bauguess described the consequences of the “proliferation of analytical methods enabled by big data.” He asserted that the rise of big data resulted in, among other things: (i) fewer limitations in the scope of potential empirical studies by researchers who have access to extensive computer resources; and (ii) an increase in the capacity to focus on assessing the robustness of the empirical methods that underlie the conclusions of studies. Despite these advances, Mr. Bauguess observed, human judgment “remains essential in making the output of [SEC] analytical models and methods actionable.” Mr. Bauguess delivered his speech at the Midwest Regional Meeting of the American Accounting Association.

SEC Commissioner Champions High-Quality Economic Analysis as “Essential Part of Regulatory Processes”

SEC Commissioner Michael S. Piwowar remarked that “high-quality economic analysis is an essential part of regulatory processes” for the Public Company Accounting Oversight Board (“PCAOB”). At the PCAOB 2016 Conference on Auditing and Capital Markets, the Commissioner described “common myths and misconceptions about the process.”

Commissioner Piwowar emphasized that high-quality economic analysis: (i) serves as the cornerstone not only for individual rulemakings but for setting the rulemaking agenda as well; and (ii) is necessary not only for the [PCAOB] to satisfy its statutory obligations to find that a proposed rule serves the public interest and protects investors but also as a prerequisite for the Commission to satisfy its own oversight obligations. He stated that the PCAOB’s guidance on rulemaking recognizes “four main elements: (1) the need for the rule, (2) the baseline for measuring the rule impacts, (3) the alternatives considered, and (4) the economic impacts of the rule and alternatives.”

In discussing myths and misconceptions of the regulatory process, Commissioner Piwowar stated that economic analysis:

  • is not interchangeable with cost-benefit analysis – economic analysis is “much broader” and “complements cost-benefit analysis, because it provides a more complete view of the trade-offs and consequences of alternative approaches, thereby providing the tools for ‘thinking through’ the cost-benefit analysis”;
  • does not slow down the rulemaking process, it “actually speeds up the rulemaking process,” by easing compliance burdens;
  • is not a partisan political issue – “[s]olid economic analysis is . . . something that both political parties can agree upon”;
  • is relevant not only to rulemaking but also to other activities such as SEC examinations and investigations; and
  • is not “a fad that will disappear” – it “has become part of the SEC’s DNA . . . [and] will become part of the PCAOB’s DNA, too.”

Commissioner Piwowar commended the PCAOB for “including, as part of its strategic plan, the use of economic analysis tools in conducting post-implementation review of new standards.” He concluded that:

I hope the [PCAOB] is more effective at post-implementation review than the [SEC]. In fact, I hope the Board is so successful in its post-implementation review efforts that the Commission can learn from them.

Lofchie Comment: It is almost certainly not the case that economic analysis is something that both political parties can agree upon. To the extent that either party seeks to use financial regulation as a device for political gain, economic analysis will always run a distant second in importance to polling.

SEC Chief of Staff Anticipates Future Challenges for Compliance Professionals

SEC Chief of Staff Andrew J. Donohue outlined future compliance challenges in his remarks at the 2016 National Conference of the National Society of Compliance Professionals.

Mr. Donohue predicted, among other things, that:

  • compliance expertise will encompass “a far broader set of subjects, including expertise in technology, operations, market, risk, and auditing, to name a few”;
  • because the “general trend of declining or stagnant top-line revenue growth will trigger an ever-increasing fixation on expenses,” compliance departments will have to ensure that “they have the funding necessary for discharging their critical function as well as the technological and other resources that are essential to their success”;
  • because compliance is “often expected to develop front-end controls that will prevent the business from violating regulations or disregarding established policies and procedures,” technology will catalyze a “more holistic model”;
  • globalization and increasing business complexity will force firms to determine “which regulatory requirements apply, and how they should be interpreted and implemented”; and
  • firms and regulators will have to monitor technological developments and increasingly automated systems in order not to establish a “variety of separate systems that perform similar or overlapping functions.”

Mr. Donohue concluded that preparation for a future of compliance is key:

Much like in medicine, when it comes to compliance, an ounce of prevention is truly worth a pound of cure.

Lofchie Comment: Mr. Donohue predicts a future in which compliance expenses increase significantly. He does not acknowledge, however, the problems that rising costs may cause our economy and society. This is not to decry regulation in general; one does not have to be a libertarian to acknowledge that regulation’s costs sometimes can outweigh its benefits. It should be clear, however, that as regulatory costs rise, (i) there is a reduction in services or an increase in the cost of those services, and (ii) increases in cost generally affect small firms more than larger ones since regulatory costs tend not to rise in proportion to the size of a given firm.

Mr. Donohue’s analogy between compliance costs and medical expenses is worth considering. Certainly, it is better to avoid an illness than to suffer from it. The bleak reality is this: no one can afford to spend an unlimited amount of resources on preventing problems. Even if a person or government did so, things still would go wrong, since human bodies and regulatory systems are enormously complex and often unpredictable. The cost of medical care in the United States is much higher than it is in the rest of the world, and the benefits of that care are not always commensurate with the cost. As with our healthcare system, so with our system of regulation.

One final note: Mr. Donohue is right when he says that the challenges of being a compliance professional have grown enormously. Meeting those challenges means mastering a range of skills that surpasses the compass demanded by most professions.

Senator Urges President to Replace SEC Chair

Senator Elizabeth Warren (D-MA) “strongly urge[d]” President Obama to “immediately designate another SEC Commissioner as Chair of the agency.”

In her letter to the President, Senator Warren explained that “Chair White’s refusal to move forward on a political spending disclosure rule serves the narrow interests of powerful executives who would prefer to hide their expenditures of company money to advance their own personal ideologies.” Senator Warren highlighted Chair Mary Jo White’s “Disclosure Effectiveness Initiative” as part of her “anti-disclosure agenda” and charged that the SEC never has produced data to support Chair White’s presumption that investors experience “information overload.” She further noted that Chair White “has also refused to say how much time and agency resources have been spent on this voluntary initiative,” which Senator Warren had previously requested in a letter to Chair White. Senator Warren continued:

Giant public companies have every right to advocate for less transparency in public markets, whatever the broader economic consequences. But the SEC was not created to work for them. Under a new Chair, the agency can re-direct its limited discretionary resources away from actively undermining the interests of investors and back toward its core purposes.

Senator Warren also pointed out that, “[a]s of October 2016, the SEC has yet to finalize nineteen mandatory rules under the Dodd-Frank Act.”

Lofchie Comment: Senator Warren appears to take the view that financial regulation is but the continuation of politics by other means (paraphrasing Prussian strategist von Clausewitz). The attack on the SEC Chair is not the first shot fired by the Senator. She has launched a number of attacks on regulators and academics who have not aligned their views with hers. Seee.g.Senator Warren Asks CFTC to Withdraw EEMAC Report on Position LimitsSenator Warren Questions “Good Intentions” behind Study Challenging DOL’s Fiduciary Proposal.

The Senator’s latest missive follows closely upon the D.C. Circuit Court decision that the CFPB structure, which is commonly viewed as the Senator’s creation, is unconstitutional because the Director of the CFPB was immune from dismissal by the President. Yet now, the Senator calls for the SEC Chair to be fired because she has failed to follow “Congressional mandates.” To be consistent, the Senator should acknowledge that the CFPB’s original structure was inherently flawed in that it inappropriately insulated the agency from both Presidential and Congressional control. The President could remove the CFPB Director only “for cause.” Senator Warren seems to be arguing that SEC Chair White’s actions don’t amount to appropriate “cause” for removal, but are sufficient to designate an alternative Commissioner as Chair. Under the CFPB’s structure, that would not be possible, given that there is only one Director.

Senator Warren and her Congressional colleagues should revisit the CFPB’s design in toto, ideally replacing the single-director model with a five-person bipartisan model (i.e., similar to that of the SEC), and provide for Congressional control over the CPFB’s budget. Sauce for the goose (the SEC, the CFTC, and a host of other federal agencies) should be sauce for the gander (the CFPB).

As far as the Senator’s actual request, there is no possibility of it being granted. (Unsurprisingly, the White House indicated support for the SEC Chair.) If the President were to take the action that the Senator calls for, Chair White would resign, which would leave the SEC with only two Commissioners and, thus, the Democrats would lose their majority.

IOSCO Examines Corporate Governance Regulation

The Corporate Governance Task Force (“CGTF”) of the IOSCO Growth and Emerging Markets (“GEM”) Committee issued a final report in which it analyzed the following “key topics” of corporate governance: (i) board composition, (ii) remuneration and incentive structures, and (iii) risk management and internal controls. The CGTF based its conclusions on a survey of GEM Committee members, and of relevant institutions and market entities in over 30 jurisdictions.

In the report, the CGTF emphasized that “[c]orporate governance is a work in progress,” and stated that its recommendations are intended “to help regulators consider possible ways for improvements in their corporate governance regulatory frameworks” (emphasis in original). The CGTF also stressed the importance of the role of the regulator in incorporating jurisdictional best practices into larger regulatory frameworks:

Capital markets regulators should take a relevant role in ensuring the regulatory frameworks consider the best governance practices within their jurisdictions. Accordingly, their views should be an increasingly important reference on the subject in global debates.

Additionally, the CGTF recommended that regulators:

  • require companies to indicate as concisely as possible the “main risks resulting from the risk identification methodology adopted by the company[ies],” and to describe how those risks “affect the business”;
  • emphasize social and cyber risks, and sustainability, proportionately when regulating risk reporting and management;
  • encourage companies to adopt integrated reporting by interacting with their stakeholders, as well as through other means;
  • encourage periodic self-assessment reports by companies’ boards that address the “efficiency and appropriateness of companies’ systems and controls, including identified deficiencies and the appropriate corrective action to be taken”;
  • compare analyses of internal controls and systems reported by external auditors with companies’ descriptions and their boards’ self-assessment reports;
  • encourage companies to establish specialized subcommittees in order to support board performance; and
  • “consider market conditions and characteristics, segments and scale of companies, so that they do not impose excessive or unnecessary regulatory costs” in mandating specialized risk committee requirements.

Lofchie Comment: One of the more interesting parts of the CGTF’s report is the discussion of “diversity” in corporate boards of directors, since regulators from different countries expressed contrasting views on the meaning and significance of diversity, and the degree to which it should be treated as a governmental goal.

SEC Accountant Addresses Recent Developments in Financial Reporting

SEC Interim Chief Accountant Wesley R. Bricker outlined ways in which auditors, and others responsible for financial reporting, can “reinforce the reliability and credibility of financial reporting for investors” under the new FASB credit loss standard. In remarks before the AICPA National Conference on Banks & Savings Institutions, Mr. Bricker addressed:

  • the FASB’s recent completion of its multi-year standard setting process for credit losses, which requires earlier recognition of credit losses on many loans, securities and other financial assets;
  • existing SEC rule staff guidance for maintaining books and records for credit losses under current Generally Accepted Accounting Principle requirements, including continued focus on internal control over financial reporting; and
  • the importance of coordination among all stakeholders in the transition and implementation activities relating to the new credit loss standard.

Mr. Bricker emphasized that “the issuance of the new credit loss standard represents a significant enhancement in the quality of financial reporting by providing financial statement users with more decision-useful information about the expected credit losses related to many financial assets.” He highlighted that:

[C]ompanies will be required to immediately recognize expected losses instead of deferring losses until incurred, which should result in more timely reporting of losses to investors. . . .

Mr. Bricker is part of the SEC Office of the Chief Accountant which maintains oversight over the Financial Accounting Standards Board and the Public Company Accounting Oversight Board.

Lofchie Comment: Mr. Bricker’s observations raise a question as to whether “earlier recognition” of losses may bring the SEC into conflict with the banking regulators, who may have their own views as to when a loss should be recognized.