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Banking Regulation in the US and Basel III

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Banking Regulation in the US and Basel III 135 Banking Regulation in the US and Basel III Dr. Rolf-Peter Mikolayczyk formerly Deutsche Bank NYC Table of Contents List of Abbreviations 136 1. Introduction 137 2. Banking crises/regulation – some history 137 3. New rules and regulations for US banking 138 4. Basel III/history of Basel accords 145 5. Final thought 150 Appendix 151 References 153 136 Dr. Rolf-Peter Mikolayczyk List of Abbreviations AIG American International Group, Inc. BIS Bank for International Settlements C-Banker Commercial Banker C-banking Commercial Banking CDS Credit Default Swap CEO Chief Executive Officer CFTC Commodity Futures Trading Commission Eq. % of Assets Equity as a percentage of Assets FDIC Federal Deposit Insurance Corporation FDR Franklin Delano Roosevelt FHC Financial Holding Company GLBA Graham-Leach-Bliley-Act GSA Glass-Steagall-Act I-Banker Investment Banker I-banking Investment Banking O & D Originate & Distribute OCC Office of the Controller of the Currency OTC Over The Counter ROE Return on Equity r/w risk-weighted SEC Security Exchange Commission SIFI Systemically Important Financial Institution SPE Special Purpose Enterprise USA/ U.S. United States of America VaR Value at Risk Banking Regulation in the US and Basel III 137 1. Introduction The inclusion of the regulatory elements, which the US-financial industry will have to absorb, will have an impact on the financial world as a whole. Therefore, I think it is ap- propriate to bring them into the discussion of this workshop on the Euro-crisis. With this said, I would like to add that I will highlight the key political measurements put in place/ announced/ contemplated after input in form of comments and recommen- dations offered by bankers, lobbyists, academia and others. I will also make an attempt to put them into a historical perspective. And I will not be shy to be critical about these changes imposed on the US-American banking industry by asking the simple question whether the new rules of the game will: − Immunize the banking system against a disaster like the one experienced in 2008? − Even better, avoid banking crashes that require taxpayer money to save the entire economy? In this context, I have to mention that my research has been focused on the large glob- ally operating banks headquartered in the Western World; primarily the ones now de- fined as “too-big-to-fail” institutions. 2. Banking crises/regulation – some history Looking back, the regulatory changes made in 1999 by the US authorities, the abolish- ment of the Glass-Steagall-Act, led not only the US – but all Western economies into the crisis of 2008, according to not only my research. And it is hard to believe that we all still suffer from it with four years into it. A common opinion has been that the disaster is (almost) as bad as the banking crisis of 1933 was and followed by the Great Depression. Quite a number of similarities of the two “events” can be brought up. However, more importantly, then and now as a consequence of the created disaster the banking laws and regulations were changed. When contemplating the amendments to the banking regulations made in 1933/34, one has to concur that they were drastic: GSA was signed into law by FDR. It was the end of the “Universal Banking-System” in the USA. All financial institutions had to adjust their business model, better said it had to be radically altered. The subsequent split of investment banking and commercial banking resulted in 65-years of quite stable and sound banking institutions in the U.S. In 1999, all this was changed back with the Graham-Leach-Bliley-Act disrespecting the “past experiences” of the pre-GSA era in the U.S. And only 10 years later, we are back into deep crisis mode. The impact of GLBA on European Universal banks was a para- 138 Dr. Rolf-Peter Mikolayczyk digm shift towards I-banking and away from their stalwart, the lending business. Their objective was to become competitive with the US-C- and I-Banks on an international basis although they “entered the game” with a significant disadvantage. Their balance sheets were much higher leveraged than the competition they desired to take on. Fur- thermore, the securities markets in the US were better developed, much bigger and more liquid than the European ones. It is an important factor, bearing in mind that the prime role of I-banking has been the trading side of the business equation. As an example, Deutsche Bank used to be seen as a lending institution for all these years. Today, it calls itself a “GLOBAL INVESTMENT BANK”. With it came that management changes were made in favor of I-bankers who introduced a strict trading mentality. Short-term profit focus and with it the publication of ROE-targets were applied as main management tools to justify incentive compensation packages for senior management. And this applies to all Western European banks now playing on this field. This raises the question whether the present re-shuffle of regulations will have the same “fruitful” impact on the banking industry as the GSA before? And therefore, will it lead to a much more stable banking industry in order to diminish the fallout of such disas- ters? Or even better, will we avoid banking industry missteps altogether and protect taxpayers’ money? 3. New rules and regulations for US banking According to the Senate Committee on Banking, Housing, and Urban Affairs, the law was written under the Summary headline:“Create a Sound Economic Foundation to Grow Jobs, Protect Consumers, Rein in Wall Street, End Too Big to Fail, Prevent Another Financial Crisis.” It is hailed as the most comprehensive financial regulatory reform measures taken since the Great Depression and is called “The Dodd-Frank Wall Street Reform and Consumer Protection ACT“. In the following, I will categorize the key measurements taken in an attempt to high- light strengths and weaknesses of them.1 1 See Attachment: Regulatory Measurements taken/to be taken. Banking Regulation in the US and Basel III 139 Restoring American Financial Stability Table 1: Restoring American Financial Stability Key features of legislation Addressing: 1. Addressing Systemic Risks/ • Organizational issues Advanced Warning System 2. Bank Supervision/ -Regulation 3. Securitization 4. Transparency & Accountability for Derivatives • Idiosyncrasies of last 5. Hedge Funds/ Insurance crisis 6. Executive Compensation & Corporate Governance 7. End Too Big to Fail Bailouts/ • The Future of Banking Bailout by Taxpayers Organizational Issues, referring to item 1. of Table 1 Members of the newly established Financial Stability Oversight Council will be politi- cal appointees. Their duties have been defined as collect information, provide direction, support the work of the council, monitor the financial services market, facilitate infor- mation sharing, recommend actions, suggest general supervisory priorities and provide a forum for discussion, among others. From this could be taken that it easily could become a forum with little effectiveness. Idiosyncrasies, referring to items 2. and 6. of Table 1 When evaluating the key features of legislation, the BIS-working paper +51, titled “The financial turmoil of 2007-?; a preliminary assessment and some policy considerations”, written by Claudio Borio, came to mind.2 In March 2008, Borio obviously did not (yet) foresee the devastating banking crisis that followed with the bankruptcy of Lehman in September of the same year. At that time, he used the word “turmoil”, describing what went on in the banking industry: a temporary adjustment to the “new” financial markets”. He called the elements of this new market “idiosyncrasies”. These bank prod- uct innovations were structured credit products; dominantly securitization, credit risk transfer instruments; primarily credit default swaps, a business model switch from B&H to O&D; by extended use of the syndication markets. I would add to the list the “(bad) business behavior” of the Credit Rating Agencies as well as the breathtaking growth of the Hedge Fund Industry and the Private Equity Industry. Running the idiosyncrasies list against the above stated key measurements to bring back stability of the US banking system, I conclude that the politicians’ efforts were mo- tivated by “showing action” against what was new and peculiar in the financial world rather than looking at the US banking industry comprehensively and taking, -in addi- tion thereto-, historical experiences into account. Claudio Borio, already then, ended his paper with the comment: “... these idiosyncratic elements, prominent as they are, should not blind us to the more fundamental nature of the turmoil and the factors behind it.” 3 2 Borio, C. (2008). 3 Borio, C. (2008), op. cit. 140 Dr. Rolf-Peter Mikolayczyk In my words, what has been legislating is an attempt to cure symptoms of the past crisis rather than address the causes! Overhaul existing Agency Oversight System4 At own admission, the legislator has stated that “Today, we have a convoluted system of bank regulators created by historical accident”.5 “(R)egulation (was) riddled with dangerous loopholes ...”. I would add due to the fact that GSA was abolished without alignment of the supervi- sory regulations. The objective is to put in place “...clear lines of responsibility, reduce arbitrage, and improve consistency and accountability”.6 Fact is that Fed, FDIC, OCC and SEC remain unchanged in place as independent agencies. Capital Standards The capital standards presently in place (5.5 % of assets) constitute the floor of capital required. Furthermore, a 15 to 1 leverage can be imposed on US banks to mitigate great threat to the financial system. My remarks on Basel III will complement this US-specific rule. Securitization Reform The key features of the reform have been the amendment of registration, disclosure, and reporting requirements for asset-backed securities and other structured finance prod- ucts as well as the amendment of safe harbor rule; requiring financial institutions to retain more of the credit risk from securitization.
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