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Understanding Regulatory Capture: an Academic Perspective from the United States

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Understanding Regulatory Capture: an Academic Perspective from the United States Chapter 2 Understanding Regulatory Capture: An Academic Perspective from the United States Lawrence G. Baxter Duke Law School In the wake of the Financial Crisis of 2008, the About the Author: Lawrence Baxter is professor of huge Deepwater Horizon oil spill in 2010, and practice of law in the Duke Law School. He has published other industrial catastrophes, the media and extensively in the areas of United States and global academic journals are now replete with charges of banking and regulation; and administrative law. He began that industries have captured their regulators. his academic career at the University of Natal in South Africa, where he held tenure from 1978 to 1984. In 1995, There are well-documented reports of constantly Baxter joined Wachovia Bank in Charlotte, NC, serving revolving doors in which the regulators and the first as special counsel for Strategic Development and regulated frequently change places, of huge later as corporate executive vice president, founding amounts spent by industries in lobbying both Wachovia’s Emerging Businesses and Insurance Group legislators and regulators, and of close social and its first eBusiness Group. He served as chief eCommerce officer for Wachovia Corporation from 2001 relationships that exist between senior regulators to 2006 before returning to Duke in 2009. and executives. A recent Bloomberg BusinessWeek profile describes the “chummy relationship” between the chairman of Citigroup, Sometimes it seems almost as if the United States Dick Parsons, and the Secretary of the United Treasury (not to mention the staff of the White States Treasury, Timothy Geithner, whom Parsons House itself) is run by a cadre of officials who apparently calls “Timmy” – a term that one were either recently members of Goldman Sachs leading Wall Street analyst observes ‘does not or who had spent most of their waking hours exactly acknowledge the authority of the interacting with the CEOs of Goldman, JP Morgan, Secretary, a post once occupied by Alexander 1 Citi and other New York banking giants. One might Hamilton’. be excused for assuming that the atmosphere between Big Finance and its regulators more 1 Mayo, M. (2012). Exile on Wall Street: One Analysts Fight to accurately resembles the congeniality of an Save the Big Banks From Themselves. Hoboken, N.J. Wiley. It is perhaps worth noting that the same profile observes that Parsons ‘also got along well with [Comptroller of the Bloomberg Businessweek, 24.03.2011, available online at Currency, John] Dugan, whom Parsons calls a “good guy”. http://www.businessweek.com/magazine/content/11_14/b4 Leonard, D. (2011). ‘Dick Parsons, Captain Emergency’, 222084044889.htm. The Making of Good Financial Regulation 31 Baxter – An Academic Perspective from the United States exclusive club than the formal relationship Capture is a perplexing concept when invoked in between regulators and a powerful industry. One any area of economic regulation. It is frequently might then also reasonably wonder whether such misdiagnosed because critics ‘leap from an event “chums” might treat each other rather more (however embarrassing) to make large-scale favourably than strangers2. inferences about an agency’s entire culture’, and it is often mistreated because ‘there is far too “Capture” has therefore become a prominent much fatalism – some of it strategic, no doubt – element in public policy debates on financial about the possibility of ameliorating capture or regulation. As a theory of private distortion of even preventing it’3. The concept is generally public purpose, the concept seems important for problematic because it is at once a theory of diagnosing regulatory failures culminating in the legislative and regulatory motivation and a 2008 Financial Crisis (Crisis) and for lessons on vituperative accusation levelled at results how to prevent future crises. The capture of unfavorable to one of the contesting groups, even financial regulators by elements of the financial if those results might indeed strike the right industry is now often offered to explain why balance among competing interests – “we wuz regulators did not take apparently obvious action robbed”, as many a losing boxer and his trainer to curb excessive industry practices that might have grumbled at the end of a fight. The have contributed to the Crisis, and as a reason for accusation is likely to be made even if the actual delayed implementation and substantial dilution result was the right one, or one that was of rules designed to reform the financial system. inevitable given the legislative mandate under which the regulator is operating. Capture: an elusive concept Capture might also manifest itself in various “Regulatory capture” has long played an forms, ranging from the blatant (for example, important role in efforts to explain alleged where an official is bribed to make a decision) to regulatory failure. Suggesting that one interest the more nuanced types of ‘deep’ or ‘cultural’ group among many in a field contesting for capture that involve a consanguinity among elite recognition of their disparate interests has seized classes of regulators and executives4. In the latter control of the umpires, such that the game is no situation, regulators and executives might share longer taking place on a level playing field, or that similar backgrounds, traditions, understandings of regulatory systems are even created by a strong the markets and fundamental philosophies, talk to interest group in order to stifle competition, each other frequently and almost exclusively, capture is used by proponents of both regulation share implicit understandings; the quintessential and deregulation to make their case. In a world of “old boys’ club”. Thus an appearance of giant financial institutions, powerful chief impartiality on the part of a regulator might belie executives, and huge bonuses despite poor an inherent bias that, in various subtle ways, financial performance, it seems that capture is to systematically favours that part of the industry blame, one way or the other. For those in favour with which the regulator most closely identifies. of more regulation, the industry’s ability to influence regulators must be curbed. For those in favour of less regulation, one of the reasons for 3 Carpenter, D. & D. Moss (2012). ‘Introduction.’ Draft reducing regulatory influence is to prevent chapter (as of 28.10.11) in: Carpenter and Moss, eds favoritism by captured regulators. (forthcoming). Preventing Regulatory Capture: Special Interest Influence, and How to Limit It. 4 Hanson J & Yosifon D, (2003), The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 University of Pennsylvania Law Review. 129, 202–84; Kwak (forthcoming). ‘Cultural 2 See Johnson, S. (2009). ‘The Quiet Coup.’ The Atlantic, May, Capture and the Financial Crisis’, Draft chapter (as of and Johnson, S. and J. Kwak (2010). 13 Bankers: The Wall 24.10.11) in: Carpenter, D. and D. Moss, eds (forthcoming). Street Takeover and the Next Financial Meltdown. New York, Preventing Regulatory Capture: Special Interest Influence, Pantheon Books. and How to Limit It. The Making of Good Financial Regulation 32 Baxter – An Academic Perspective from the United States Capture in financial regulation Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and state When one starts to apply the notion of capture to insurance commissioners. Each has a different financial regulation, the concept becomes more specific mission. The FDIC acts as manager and problematic than ever. In the United States (US), protector of the federal deposit insurance funds, for example, additional elements bedevil the and as receiver for banks and systemically analysis. important holding companies and non-bank financial institutions when they fail. The CFPB acts There are various kinds of financial regulators. as a market umpire to protect consumers from Some, for example the Office of the Comptroller improper financial products and promote proper of the Currency (OCC), are specifically directed to market disclosures. The SEC and CFTC protect the favour the industry they charter. The OCC is a overall transparency and integrity of the prestigious agency within the Treasury securities, futures and derivatives markets. State Department founded back in 1863 primarily to insurance commissioners regulate the insurance create and propagate a national (or federal) activities of the financial companies, no matter banking system, which was intended to smother how large. These various agencies have often the chaotic state-chartered system that had taken differing positions, sometimes in direct enjoyed a monopoly in US banking after the opposition to each other or to the Fed or the OCC. demise of the Second Bank of the United States Very public examples of such clashes range from (1836). National banks, in the words of the US disputes over the reporting of loan loss reserves, Supreme Court in 1873, are ‘national favourites’. the eligibility of trust preferred securities as Though seldom expressed in such blunt terms, the appropriate components of capital, and the ability growth and prosperity of the national banking of a holding company to shelter its derivatives system continues to be vigorously promoted by business inside its insured bank subsidiary. In this the OCC as a part of its implicit mandate under the respect the regulatory fragmentation of the US National Bank Act. State-chartered banks, the system, far from being the chaotic structure for tenacious counterparts to national banks, also which it is often criticized, provides some of the continue to survive under the aegis of their own “factional” elements that James Madison in the state chartering agencies. Bank holding companies Federalist No. 10 considered so important for have likewise enjoyed considerable protection by generating a sound result through partisan the agency directly responsible for approving their competition. So, although the public focus tends formation and promoting their prosperity, the to be on the Fed and the Treasury, it is not self- Board of Governors of the Federal Reserve System evident exactly whom has been captured or how (Fed).
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