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Chapter 5 the REPEAL of GLASS STEAGALL Durham E-Theses The political economy of nancial regulation of US investment banking TREES, HANS How to cite: TREES, HANS (2017) The political economy of nancial regulation of US investment banking, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/12265/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk Cover page Hans Trees Doctor of Philosophy School of Government & International Affairs, Durham University Castle College, Durham University Hans Trees The political economy of financial regulation of US investment banking This thesis analyses the political economy of the financial regulation of US investment banking, which is an under-researched topic within the IPE of finance. Various academics claim investment banks – or “Wall Street” – have significant influence on regulatory decision-making as well as policy making more generally so that they can shape the outcomes to suit their preferences. As this thesis will show, the vast majority of these claims are not rooted in empirics. The dissertation examines the factors and circumstances that led to a de-regulatory outcome in the area of financial regulation of investment banking. Five case studies are analysed in this regard: the repeal of the Glass Steagall Act, which is split into three case studies given the length of the period of observation and complexity involved, the Commodity Futures Modernisation Act, which legalised the non-regulation of OTC derivatives markets in the USA, and the Securities and Exchange Commission’s alternative net capital rule regime and Consolidated Supervised Entities Programme. The author tests to what extent interest group based explanation, the role of ideas, the judiciary as well as regulators’ statutory authority played a role in arriving at deregulation. The thesis’s case studies span a period of fourty years. When analysing the cases, the thesis finds that investment banks’ interest groups were important in providing regulators with information, however the role of the judiciary in interpreting existing laws and thereby given them a different meaning carried as much weight in deregulatory policy outcomes as the aspect of regulators’ own regulatory amendments. Generally speaking, absent legislative change, regulators were successful in achieving their policy outcomes if they were largely aligned with the ideational consensus of the regulatory and market community and acted within their statutory authority. Regulators failed when they acted within their authority, but went against the ideational consensus of the entire regulatory and market community. The thesis shows that these episodes of de-regulation were in fact not driven by “Wall Street” and its lobbyists, but the result of complex chains of causalities in which the judiciary and regulators played major roles. The political economy of financial regulation of US investment banking An analysis of key deregulatory decisions Hans Trees Doctor of Philosophy Research conducted at the School of Government and International Affairs, Durham University, Castle College & The London School of Economics and Political Science Thesis submitted for the Doctor of Philosophy to the University of Durham, 2015 3 Table of contents Chapter 1: Introduction 11 Chapter 2: Literature review 17 2.1 Introduction 17 2.2 Theories of regulation and the study of international political economy of finance 17 2.3 The IPE of finance literature 24 2.4 Basel I + literature 29 2.5 Basel II 34 2.6 The non-IPE literature on investment banking 50 2.7 Relevant literature on the IPE of investment banking 51 2.8 Central weaknesses of the literature 52 Chapter 3: Research Design 3.1 The Research Puzzle 55 3.2 A hotly contest field: research design 59 3.3 Conducting semi-structured elite interviews 64 3.4 The dependent variable 74 3.5 The hypotheses and explanatory variables 77 3.6 Conclusion 89 Chapter 4: The repeal of Glass Steagall: the beginnings 4.1 Introduction 91 4.2 The IPE literature on the repeal of Glass-Steagall 93 4.3 The unintentional beginning of the repeal of Glass Steagall in the 1960s 98 4.4 Analysis and consequences 103 4.5 The opening of the floodgates: ICI vs. the FRB 105 4.6 An IPE analysis of the Board of Governors of Federal Reserve System vs. Investment Company Institute 111 4 Chapter 5: The repeal of Glass Steagall: the Volker years 5.1 Introduction 118 5.2 The SIA vs. The Fed: The Charles Schwab Case 120 5.3 The Commercial Paper Ruling 125 5.4 The end of Volcker 133 5.5 Conclusions 137 Chapter 6: The FED under Greenspan & repeal of Glass Steagall 6.1 Introduction 140 6.2 Greenspan and the changing of the US financial market structure 141 6.3 The Securities Industry Association’s final battle 145 6.4 The final road to Gramm Leach Bliley 149 6.5 A political economy analysis 153 6.6 Concluding remarks on the Glass Steagall case studies 155 Chapter 7 CFMA 2000: The political economy of not regulating OTC derivatives 7.1 Introduction 160 7.2 The outcome 161 7.3 Process tracing of CFMA’s historical roots 163 7.4 The Swap policy statement 165 7.5 The SEC’s move 168 7.6 The Concept Release 175 7.7 Conclusions 185 Chapter 8: The SEC’s Consolidated Supervised Entities Programme 8.1 Introduction 189 8.2 The outcome 190 8.3 The European Financial Services Action Plan and its impact on US investment banks 197 8.4 The unfolding of the SEC response 202 8.5 A political economy analysis 211 5 Chapter 9: Conclusions 9.1 Introduction 216 9.2 Hypotheses 220 9.3 Findings from the case studies 225 9.4 Cross comparisons and theory building 228 Bibliography 236 6 Abbreviations: ABA: American Bankers Association BAC: Banking Advisory Committee of the EU BCBS: Basel Committee on Banking Supervision BHC: Bank Holding Company CEA: Commodity Exchange Act of 1936 CFMA: Commodity Futures Modernisation Act of 2000 CFTC: U.S. Commodity Futures Trading Commission CSE: SEC’s Consolidated Supervision Entity Programme EC: European Community ECJ: European Court of Justice ECOFIN: Economic and Finance Council EU: European Union Exchange Act: Securities Exchange Act of 1934 Fed: Federal Reserve System FRB: Federal Reserve Board (Board of Governors of the Federal Reserve) FSA: The United Kingdom’s Financial Services Authority FSAP: Financial Services Action Plan of the European Commission GLB: Gramm Leach Bliley Act ICI: Investment Company Institute IIF: International Institute of Finance IOSCO: International Organization of Securities Commissions IPE: International Political Economy ISD: Investment Services Directive LBHI: Lehman Brothers Holding Inc. LTCM: Long Term Capital Management NRSO: Nationally Recognised Statistical Rating Organisation OTC: Over the counter PWG: The President’s Working Group on Financial Markets ScA: Scenario Analysis SEC: US Securities and Exchange Commission SIBHC: Supervised Investment Bank Holding Companies S&P: Standard & Poor’s TBSCI: The Bear Stearns Holding Company Inc. US GAAP: United States of America Generally Accepted Accounting Pratices VaR: Value at Risk 7 “The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged.” 8 Acknowledgements There are many people who have enriched my academic journey during this doctoral thesis. At the LSE, I have to thank Kevin Young, Julie Braun, Annie Bird, Maja Rasmussen and Helen Addison. The research has benefited tremendously from the support I received both at Durham University and the LSE. Above all, I would like to thank my supervisor Prof. David Held who had supported me throughout my studies. I would not have been able to finish this dissertation without his great and unfaltering support – in good as well as tough times during the study. I also wish to thank Eva-Maria Nag who has been a dear friend and supporter both in London and Durham. Thank you. Dedication I dedicate this thesis to my loving wife, Maneesha, who endured long nights and weekends of me being locked away doing research without a word of complaint. Without her heart, dedication and love, I would not have been able to finish this work. Thank you. I also wish to dedicate this dissertation to my parents, who have made me the person I am today and have always been there. Thank you both. 9 10 Hans Trees SGIA, Durham University Chapter 1 INTRODUCTION Claims about the power of ‘Wall Street’ in academia as well as the media range from there being a ‘Wall Street Treasury Complex’ - that can somehow by virtue of a ‘revolving door’ between the US Treasury and Wall Street exert influence and shape policy decisions (Bhagwati, 1998) – to investment banks ‘requesting’ their regulators, in this case the SEC, to use their own internal model for capital adequacies purposes (Johnson & Kwak, 2010). On the subject of the repeal of Glass Steagall, scholars argue that ‘Wall Street’ lobbied for its repeal (Underhill & Zhang, 2008). The overall message about the ‘Wall Street’ is clear in all three cases: Wall Street is a powerful lobby whose requests get granted and which enjoys privileged access to the world’s key decision-makers.
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