After three days of GOP obstruction and deadlock, Senate Democrats finally wore down their colleagues across the aisle and will today begin full debate on overhauling Wall Street on the Senate floor. Instead of haggling behind closed doors, senators will now have to fight to improve or whittle down the bill out in the open. In the coming days, you’ll see members of both parties making lots of statements and offering amendments to the bill, largely crafted by Sen. Chris Dodd (D-Conn.), that bolster and weaken the array of proposed rules and regulations that rewrite how our financial services industry does business.
Right now, there look to be three main sticking points between the parties. One is the proposed consumer protection agency, which would oversee areas like mortgage lenders, auto dealers, and credit card practices. Sen. Richard Shelby (R-Ala.), a leading figure on financial reform, wants to pare back the reach and power of the agency; he says it would create unnecessary bureaucracy and would pry into the lives of Americans. Shelby’s counterpart, Sen. Dodd, said yesterday that he disagrees with Shelby’s position. "I cannot agree to his desire to weaken consumer protections given the enormous abuses we have seen," Dodd said. There's sure to be an intense fight waged on the Senate floor to determine the fate of the consumer agency.
What to do with systemically risky, or "too-big-to-fail," banks is another prickly issue. In an interview with CNBC yesterday, Sen. Bob Corker (R-Tenn.), another leading Republican on financial reform, said the two parties had yet to reconcile their differences on ending the threat of too-big-to-fail banks and preventing future taxpayer bailouts. That said, Corker hinted that GOPers and Democrats weren’t that far apart on the issue: "We can fix 'Too Big To Fail' piece. We really can, in about five minutes. Everybody knows how to fix it." If Corker’s remarks are any indication, reaching a compromise on too-big-to-fail—what Corker seems to believe is low-hanging fruit for the Senate—could be top of the to-do list.
The third issue where major differences remain is regulating derivatives, the exotic, opaque instruments used both by farmers and manufacturers to hedge their risk and by Wall Street to bet on swings in the markets. The derivatives language included in the bill now is especially tough—most of it comes from the Senate agriculture committee’s derivatives bill, which would require derivatives to be traded on exchanges (like the New York Stock Exchange) and put through a clearinghouse so that the risk of losses is absorbed by many parties instead of a few (think AIG). The agriculture committee’s bill would also force derivatives trading desks to be spun off from their larger banking operations, a provision that’s drawn the ire of Wall Street.
Yesterday, Shelby said, "on the derivatives, we haven't worked that out." And the lone Democrat to vote against cloture three times with Republicans, centrist Sen. Ben Nelson (D-Neb.), opposes the current derivatives legislation, too. A provision in the derivatives section would force existing derivatives contracts to post margin—either cash or securities as collateral—on those deals. Warren Buffett, the head of Omaha-based Berkshire Hathaway, had sought to kill that margin requirement for existing derivatives, saying the government couldn't rewrite existing contracts, and his company put pressure on Nelson to do so. But margin requirement remains in the bill, and it's unlikely Nelson will agree to the bill's derivatives rules as they are now until there’s resolution on the Buffett provision.
Of course, there are many other fights to come on the 1,300-page bill. (You can read about more of those here.) Only now, you can watch those fights on CSPAN, or the highlights on the big TV networks, just as many people tuned in for the war over health care reform. The debate starts today around noon.
During Tuesday's 10-hour grilling of past and present Goldman Sachs executives and traders before a Senate subcommittee, the questioning frequently centered on four mortgage-related products the company had sold to investors as the subprime market was about to implode. At one point, an indignant Sen. Jon Tester (D-Mont.) said, "Every one of these [deals] looks like a wreck waiting to happen." And he asked Daniel Sparks, the former head of Goldman's mortgage department, how he "in good faith" could peddle these mortgage-related products to clients when it was clear the mortgage market was close to complete collapse—and when Goldman itself had begun "shorting," or betting against, this very same market. Sparks—whose overall evasiveness drew the ire of Senate investigations subcommittee chair Carl Levin (D-Mich.) and other lawmakers—replied: "At the time we did those deals, we expected those deals to perform." Numerous documents released by the subcommittee, however, indicate that Sparks, who left Goldman in the spring of 2008, and his former employer knew otherwise. And his testimony raises a serious question: whether he lied to Congress under oath.
The four doomed deals were put together or sold between December 2006 and late April 2007. Each involved an exotic product called a synthetic collateralized debt obligation (CDO), made up not of mortgage-backed bonds but instruments that merely referenced and reacted to the performance of a set of mortgage bonds. Each would become a spectacular failure, mostly winding up in junk status and rendered nearly worthless. One of these deals was Abacus, which is the focus of the Securities and Exchange Commission's (SEC) billion-dollar fraud case against Goldman and company vice president Fabrice Tourre. That suit alleges that the firm deliberately created and sold what amounted to a ticking time bomb—a subprime mortgage-based product that was designed to go bust—and didn't tell investors that a hedge fund trader betting against Abacus had influenced the product's creation.
As it was making those deals, Goldman was taking a far more negative view of the mortgage markets. So the issue is, what did Sparks know and when did he know it? More precisely, did he—could he—really expect these deals to do well when Goldman was peddling them to customers?
A letter drafted by Rep. Marcy Kaptur (D-Ohio) calling for a criminal investigation of Goldman Sachs has garnered more than 140,000 petition signatures as well as the support of 61 members of the House, including Republican congressman Michael Burgess of Texas. Kaptur's letter, addressed to Attorney General Eric Holder, draws on the allegations cited in the Securities and Exchange Commission's securities fraud suit against Goldman, and says the DOJ should go one step further by pursuing criminal charges against Goldman. "If the DOJ is not currently looking into this particular case, we respectfully ask you to ensure that the US Department of Justice immediately open a case on this matter and investigate," Kaptur's letter says.
Kaptur and members of the Progressive Change Campaign Committee, the organization that drummed up the petition signatures and also made some 4,000 calls to Congress about a Goldman criminal suit, will meet outside the DOJ today at 2 pm to turn up the heat on Holder. The pressure from Kaptur and PCCC comes at a incredibly tough juncture for Goldman. In addition to the SEC's civil suit, Goldman's top executives, including CEO Lloyd Blankfein, face a shareholder suit in New York surrounding the firm's controversial collateralized debt obligations deal (the same at the center of the SEC suit). The firm is also the defendant in a class-action suit over mortgage securities. Blankfein has said he and the firm will fight the SEC's suit.
The financial reform battle—that is, to even start the full debate in the Senate—continues on here on Capitol Hill. For the third time in as many days, Senate GOPers defeated a vote to start debating financial reform legislation, a bill that would try to end future taxpayer bailouts, create a new consumer protection agency to guard against predatory lenders and dangerous products, and shed light on the opaque, $450 trillion over-the-counter derivatives market. The vote was 56-42, with centrist Sen. Ben Nelson (D-Neb.) again voting with Republicans. Majority Leader Harry Reid ultimately voted against the bill, too, a maneuver that allows him to schedule another vote which could happen as early as Thursday morning.
The losing vote wasn't entirely surprising, as Sen. Chris Dodd (D-Conn.), a top Democratic negotiator on financial reform, said earlier Wednesday morning that his party still didn't have the votes to begin the debate. Remarks on Wednesday by Sen. Richard Shelby (R-Ala.) suggest the gulf between the two parties remains gaping and it could take several more days before an agreement is finally reached. "Are we close to wrapping up a comprehensive deal? No, we're not close to that," Shelby told MSNBC.
Americans for Financial Reform, a group putting the heat on Republicans for blocking the Senate's Wall St. overhaul, has a new ad out today in the Boston area targeting Scott Brown, the junior senator from Massachusetts who won the late Ted Kennedy's former seat and took away the Democrats' senate 60-vote supermajority. In the past two days, Brown has twice voted against beginning full debate on the Senate floor on the financial regulatory bill, joining GOPers in stalling an inevitable vote on reform. In the ad, AFR highlights the fact that the financial services industry was a major donor for Brown (the finance, insurance, and real estate, or FIRE, sector was the largest giver to Brown's campaign at $972,800, according to the Center for Responsive Politics), and says, "The Wall Street banks got their money's worth with Senator Brown and bonus checks are no doubt in the mail."