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Blueprint for a Modernized Financial Regulatory Structure

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Blueprint for a Modernized Financial Regulatory Structure THE DEPARTMENT OF THE TREASURY BLUEPRINT FOR A MODERNIZED FINANCIAL REGULATORY STRUCTURE March 2008 THE DEPARTMENT OF THE TREASURY Henry M. Paulson, Jr. Secretary Robert K. Steel Under Secretary for Domestic Finance David G. Nason Assistant Secretary for Financial Institutions Contributors: Kelly Ayers Heather Etner John Foley, III Gerry Hughes Timothy Hunt Kristen Jaconi Charles Klingman C. Christopher Ledoux Peter Nickoloff Jeremiah Norton Philip Quinn Heidilynne Schultheiss Michael Scott Jeffrey Stoltzfoos Mario Ugoletti Roy Woodall TABLE OF CONTENTS I. Executive Summary..............................................................................................................1 The Need for Review.......................................................................................................................3 Recommendations............................................................................................................................5 Conclusion .....................................................................................................................................21 II. Introduction.........................................................................................................................25 III. History of the Current Regulatory Framework...............................................................31 Broad Overview of the U.S. Financial Services Sector.................................................................31 Depository Institution Regulation and History..............................................................................32 Futures Regulation and History .....................................................................................................44 Securities Regulation and History .................................................................................................52 Insurance Regulation and History..................................................................................................61 IV. Short-Term Recommendations..........................................................................................75 President’s Working Group on Financial Markets ........................................................................75 Mortgage Origination.....................................................................................................................78 Liquidity Provisioning by the Federal Reserve .............................................................................83 V. Intermediate-Term Recommendations.............................................................................89 Thrift Charter .................................................................................................................................89 State Bank Regulation....................................................................................................................99 Payment and Settlement Systems ................................................................................................100 Futures and Securities..................................................................................................................106 Insurance......................................................................................................................................126 VI. The Optimal Regulatory Structure .................................................................................137 Recommendation Overview.........................................................................................................137 General Choices for Reform ........................................................................................................138 Optimal Structure: An Objectives-Based Regulatory Structure .................................................143 Market Stability Regulator...........................................................................................................146 Prudential Financial Regulator ....................................................................................................157 Business Conduct Regulator........................................................................................................170 VII. Conclusion .........................................................................................................................183 VIII. Appendix............................................................................................................................187 Appendix A – Federal Register Notice........................................................................................187 Appendix B – Review of Past Treasury and Administration Regulatory Reform Reports .........197 Appendix C – Existing Regulatory Structure for Subprime Mortgage Origination ....................207 Appendix D – Descriptions of Select U.S. Payment and Settlement Systems ............................209 Appendix E – Commodity Futures Modernization Act Core Principles .....................................215 Chapter I: Executive Summary I. Executive Summary The mission of the Department of the Treasury (“Treasury”) focuses on promoting economic growth and stability in the United States. Critical to this mission is a sound and competitive financial services industry grounded in robust consumer protection and stable and innovative markets. Financial institutions play an essential role in the U.S. economy by providing a means for consumers and businesses to save for the future, to protect and hedge against risks, and to access funding for consumption or organize capital for new investment opportunities. A number of different types of financial institutions provide financial services in the United Chapter I: Executive Summary Summary Executive Chapter I: States: commercial banks and other insured depository institutions, insurers, companies engaged in securities and futures transactions, finance companies, and specialized companies established by the government. Together, these institutions and the markets in which they act underpin economic activity through the intermediation of funds between providers and users of capital. This intermediation function is accomplished in a number of ways. For example, insured depository institutions provide a vehicle to allocate the savings of individuals. Similarly, securities companies facilitate the transfer of capital among all types of investors and investment opportunities. Insurers assist in the financial intermediation process by providing a means for individuals, companies, and other financial institutions to protect assets from various types of losses. Overall, financial institutions serve a vitally important function in the U.S. economy by allowing capital to seek out its most productive uses in an efficient matter. Given the economic significance of the U.S. financial services sector, Treasury considers the structure of its regulation worthy of examination and reexamination. Treasury began this current study of regulatory structure after convening a conference on capital markets competitiveness in March 2007. Conference participants, including current and former policymakers and industry leaders, noted that while functioning well, the U.S. regulatory structure is not optimal for promoting a competitive financial services sector leading the world and supporting continued economic innovation at home and abroad. Following this conference, Treasury launched a major effort to collect views on how to improve the financial services regulatory structure. In this report, Treasury presents a series of “short-term” and “intermediate-term” recommendations that could immediately improve and reform the U.S. regulatory structure. The short-term recommendations focus on taking action now to improve regulatory coordination and oversight in the wake of recent events in the credit and mortgage markets. The intermediate recommendations focus on eliminating some of the duplication of the U.S. regulatory system, but more importantly try to modernize the regulatory structure applicable to certain sectors in the financial services industry (banking, insurance, securities, and futures) within the current framework. 1 Treasury also presents a conceptual model for an optimal regulatory framework. This structure, an objectives-based regulatory approach, with a distinct regulator focused on one of three objectives—market stability regulation, safety and soundness regulation associated with government guarantees, and business conduct regulation—can better react to the pace of market developments and encourage innovation and entrepreneurialism within a context of enhanced regulation. This model is intended to begin a discussion about rethinking the current regulatory structure and its goals. It is not intended to be viewed as altering regulatory authorities within the current regulatory framework. Treasury views the presentation of a tangible model for an optimal structure as essential to its mission to promote economic growth and stability and fully recognizes that this is a first step on a long path to reforming financial services regulation. The current regulatory framework for financial institutions is based on a structure that developed many years ago. The regulatory basis for depository institutions evolved gradually in response to a series of financial crises and other important social, economic, and political events: Congress established the national bank charter in 1863 during the Civil War, the Federal Reserve System in
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