Tag Archives: financial regulation reform

Senator Heller’s Choke Point

Heller Amendment Operation Choke Point

One thing in life is almost more certain than death and taxes – if there is legislation that the banking industry wants then Senator Dean Heller (R-NV) will be quite happy to sponsor it, carry water for it, vote for it, and then remind anyone who is still listening how he’s a Man for the Consumers because he once voted against the “bail-out.”   To see Senator Heller’s latest foray into playing the Banker’s Boy one needs to dig a bit, unearthing S.Amdt 4715 to S.Amdt 4685 amending HR 2578, the Commerce, Justice, Science and Related Agencies Appropriations Act of 2016.

Senator Heller has teamed up with Senators Vitter, Crapo, Paul, Lee, and Cruz to insert the following: 

Sec. __.  None of the funds made available in this Act may
    be used to carry out the program known as “Operation Choke
    Point”. [Cong.gov]

What is Operation Choke Point and what was it intended to do?  The Department of Justice was disturbed by reports that fraudulent merchants had found a way around federal banking regulations and once they inserted themselves into the banking system they could team with payment processors to initiate debit transactions against consumer’s accounts and have the amounts transmitted to their own accounts.

Even more disturbing, the Department’s investigations revealed that some third party processors knew that the merchants with whom they were working were frauds but they continued to process their transactions in direct violation of federal law.  [Harris pdf]

So, for example, Quickie Check Instant Lending could get a customer to sign a loan agreement for some outrageous amount of interest, and then hand the item over to a payment processor.  With some cooperation from the bank (usually garnered by providing a handsome fee thereto) the payment processor would have the bank make automatic debits to the person’s account.  Or, say, the Fast Weight Loss Pill Factory got an order from John Q. Public, and the payment processor + bank would insure that John’s bank account was regularly debited for the fraudulent product, or for products not delivered, or whatever scam was being run.

The idea behind Choke Point was to gather information from banks which appeared to be engaged in fraud, or might have evidence of fraudulent conduct by others. Subpoenas were issued, and indeed there were some banks doing some rather obnoxious business.  [See Fair Oaks Bank]  The Fair Oaks Bank had received hundreds of notices from consumers’ banks that the people whose bank accounts were being charged had NOT authorized the payments; had evidence that more than a dozen merchants served by the payment processor had “return rates” over 30% and one had a “return rate” over 70%; and, Fair Oaks had evidence of efforts by merchants to conceal their real identities.

One of the obvious targets are payday lenders who were operating in violation of state regulations regarding the amount of interest that could be charged to a customer.  As the New York Times explained back in January 2014:

“The new, more rigorous oversight could have a chilling effect on Internet payday lenders, which have migrated from storefronts to websites where they offer short-term loans at interest rates that often exceed 500 percent annually. As a growing number of states enact interest rate caps that effectively ban the loans, the lenders increasingly depend on the banks for their survival. With the banks’ help, the lenders that typically work with a third-party payment processor that has an account at the banks are able, authorities say, to automatically deduct payments from customers’ checking accounts even in states where the loans are illegal.”

The object of Choke Point was to cut the insidious relationship between the banks, the processors, and the fraudsters – or choke it off.  If one wanted to promote the interests of the payday lenders, third party processors, and banks willing to turn a blind eye toward the nature of these transactions – there are fewer ways much better than to hamstring the Department of Justice’s investigations into these kinds of transactions.  However, that is precisely what Senator Heller is proposing.

The DoJ’s investigations were also reviled because some of the ammosexuals among us got the idea that if pawn shops couldn’t use the untraditional routes for payment, therefore the whole operation was one giant gun grab. Senators Cruz and Lee bought this horse and have been riding it for some time now.  One quick visit to Politifact will demolish the SunTrust Bank/Brooksville Pawn shop story that made the rounds in 2015.

“SunTrust announced in a Aug. 8, 2014, press release that the bank had “decided to discontinue banking relationships with three types of businesses – specifically payday lenders, pawn shops and dedicated check-cashers – due to compliance requirements.” The bank still works with firearms dealers, according to the release.” [Politifact]

Hence, the policy decision made by SunTrust was no more “anti-gun” than it was anti-jewelry, anti-guitar, anti-CD, anti-work out equipment, or anything else  in a pawn shop.

There are some salient features of this story – once again Senator Heller who delights in his description as a “moderate,” has teamed up with some of the most radical members of the GOP in the U.S. Senate (witness his previous alliances with Senator Jim DeMint (R-SC).  Once again Senator Heller has sided with the payday lenders against any action taken to regulate their relationships with their customers. And, once more Senator Heller has demonstrated his willingness to carry any water in any bucket the American Bankers’ Association wants him to transport to the Senate floor.

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Filed under banking, Economy, financial regulation, fraud, Heller, Nevada politics

Heck: The Bankers Good Little Soldier

Heck photo

The ad wars begin, with one from the Democratic side of the aisle noting the record of one Joe Heck, currently the Republican representative from Nevada District 3:

“The ad highlights legislation Heck sponsored as a state senator to repeal excise taxes on Nevada banks, criticizes him for accepting more than $300,000 in campaign contributions from the securities and investment industry, and portrays him as in “lockstep with Washington Republicans.”

It also notes that Heck, who now represents Nevada’s 3rd Congressional District, once called the mortgage crisis in the state “a blip on the radar” on a 2008 questionnaire.”  [LVSun]

The amount of money candidates receive from the financial industry doesn’t  bother me as much as the voting records of the candidates who receive them.  And, Representative Heck has been a very good little soldier for the financial sector interests.

Marching back to July 26, 2012 we find Representative Heck voting in favor of the interestingly titled HR 4078 “Red Tape Reduction and Small Business Job Creation Act.”  The title was commonplace, everything in those days had “small business” and “job creation” attached to the title, perhaps to obscure the fact that the Congress had done exactly diddly to create jobs or help really small businesses.  The effect would not have been small, or particularly creative.

HR 4078 would have prohibited any federal government agency from promulgating or taking “significant regulatory action,” unless the employment rate dropped below 6%, defining  “significant regulatory action” as any action that is likely to result in a rule or guidance with a fiscal effect of $50 million or more as determined by the Office of Management and Budget, or to adversely affect one of the following, including, but not limited to (Sec. 105) [PVS]  Now why would this bill illustrate Representative Heck’s allegiance to the banking sector?

Answer: Because the Dodd-Frank Act regulating the financial sector was enacted on July 21, 2010 – that would be the Wall Street Reform and Consumer Protection Act – and the agencies were in the rule making process when HR 4078 was considered in the House.  Now, what sector of the economy was going to see a $50 million dollar effect?  Here’s a clue: It’s not family owned bodegas and gas stations.  The banking industry did NOT want to see any regulation, any restraint, any inconvenience to their consumer gouging practices and HR 4078 was the result.  (And, the law if enacted would have prevented any more attempts to contain climate change – a bonus in GOP eyes.)

Move forward to October 23, 2013, and HR 2374 the “Retail Investor Protection Act.” There’s nothing in this bit of legislation that protects “retail investors.”  In fact, section 2Prohibits the Secretary of the Department of Labor from establishing a regulation that defines the circumstances under which an individual is considered a fiduciary until 60 days after the Securities and Exchange Commission establishes standards of conduct for brokers and dealers.”  Does this sound familiar? It should. It’s part and parcel of the fight to allow financial advisors to push products which improve their bottom line even if the advice isn’t in the best interests of their clients – like retirement funds.  The bankers have been fighting this right down to at least May 6, 2016.  However, the rule – now in place — has some benefits for “retail investors” as Morningstar summarizes:

“This change clearly is a victory for investors. Roughly half of retail U.S. mutual fund assets will be protected by the new, higher standards. They will not prevent bad advice, of course, nor trades from lower- to higher-cost funds. But they do command that all advice, whether successful or not, be offered in good faith, and that the rationale for all trades, whether into cheaper or pricier funds, be recorded. Such precautions will inevitably lead to better overall outcomes.”

Yes, those better overall outcomes and higher standards of responsibility for mutual funds were precisely what the bankers wanted to avoid, and exactly what Representative Joe Heck voted against on behalf of the bankers in HR 2374.

Catherine Cortez Masto It doesn’t take too much financial expertise to see which Nevada senatorial seat candidate is taking marching orders from the financial sector.  On one hand we have Joe Heck (R-NV3) who can be counted upon to find fault with the CFPB, the Dodd Frank Act, and efforts to make financial advisors account for their advice; and, on the other we have a former state Attorney General who actually Did something about that not-so-little blip that was the housing market crash/debacle in Nevada:

“2009: Cortez Masto Investigated And Found Broad Problems With The Bank Of America’s Interactions With Imperiled Borrowers. “In a complaint filed Tuesday in United States District Court in Reno, Catherine Cortez Masto, the Nevada attorney general, asked a judge for permission to end Nevada’s participation in the settlement agreement. This would allow her to sue the bank over what the complaint says were dubious practices uncovered by her office in an investigation that began in 2009. […] The breadth of the new Nevada complaint indicates that Bank of America’s problems extend throughout its mortgage operations, including origination, loan servicing and securitization. Nevada officials also found broad problems in the bank’s interactions with imperiled borrowers.” [New York Times, 8/30/11]”  [CCM]

And, there’s more. [here] What Representative Joe Heck was calling a “blip” was in reality the state of a state which led the national foreclosure rate stats for 62 straight months, and a scene in which some 58% of Nevada homeowners in 2011 were “underwater.”  Some blip.  Gee, even Representative Heck was pleased as of February 2012 with the settlement achieved in part by Cortez Masto,“Rep. Joe Heck, R-Nev., said he is ‘happy to see that an agreement was reached. At a time when Nevada families are struggling the most to make ends meet, I have high hopes that this settlement will provide them much needed relief.’ [Las Vegas Review-Journal, 2/9/12]”

There really doesn’t appear to be much question at this point which senatorial candidate is most disposed to protecting the interests of retail investors (or any other kind for that matter), and consumers of financial products (most all of us), and homeowners… we have a choice between the man who wanted to scale back the efforts of the Dodd Frank Act and CFPB and the woman who took on the Big Banks and fraudulent lenders.

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Filed under Economy, financial regulation, Heck, Nevada politics

Amodei, Heck, Hardy, Sell Out Seniors

Amodei 3 There are three members of the House of Representatives from Nevada who, as of April 28, 2016 at 3:23 pm roll call vote #176, don’t get to talk about protecting retired persons, and their interests.  One of these members is Mark Amodei (R-NV2) who decided to vote “yes” on a House temper tantrum about Department of Labor rules on fiduciary duty.

Heck photo

Representative Joe Heck (R-NV3) is the second.  Congressman Heck decided that investment advisers should be allowed to put their own interests ahead of the interests of their retirement account clients.  Perhaps he’s touting the GOP line that making the investment advisers put clients’ interests ahead of their own profits would mean higher costs for investment advice.   The GOP says they want to “protect access to affordable retirement advice.”  If you are inclined to believe this I have some investment advice for you….free of charge.

Hardy 2

And, the third one who doesn’t get to talk about protecting retirees? Nevada 4th District Mr. Malaprop, Cresent Leo Hardy, Republican from Mesquite.   He seems to like the “old standard,” and this raises the question why?  Let’s take a look at the “old standard:”

“Before the new standard, advisers were only required to give “suitable” advice, which left the door open for them to steer clients into products that made the advisers more money but weren’t the best option. That practice was costing Americans an estimated $17 billion a year in conflicted advice, according to the White House. Some people say their finances, particularly their chances of retiring comfortably, have been destroyed by bad advice and that they would have simply been better off without it.” [TP]

Yes, we have it, Representative Hardy evidently believes that it is better for Americans to waste $17 billion per year on conflicted investment advice than to hold advisers to a higher standard of fiduciary responsibility.


One, that would be ONE member of the Nevada congressional delegation voted to hold financial advisers to a higher standard than “just what will best line the pockets of their firms.”  Representative Dina Titus (D-NV1) was the lone member among the delegation to vote against the GOP sell out to the financial and banking industry.

Thus, the next time one of the three Republicans blather on about how they want to protect senior citizens and retirees – We can smile and say “But what about HJ Res 88 on April 28, 2016 at 3:23 pm.”

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Filed under Amodei, financial regulation, Heck, Nevada Congressional Representatives, Nevada politics, profiteering, public employees, Titus

Sinking the Vasa: A Message for Global Corporations

Vasa 1

The construction of the Vasa took almost two and a half years; her hull built of more than 1,000 oak trees.  She carried 64 bronze cannon, and was to sail with masts over 50 meters high. She was the pride of the Swedish Fleet.  King King Gustav II Adolph was certain she would not only be a tangible reminder of Swedish military power, but a message to other 17th century monarchs of the potential futility of assaulting the Swedish navy.   There may be some modern comparisons, albeit somewhat tenuous, to King Gustav II Adolph and his plans.

79 year old Joseph Sepp Blatter recently won the FIFA election and will head the organization for another four years.  He has crafted a corporate alliance to insure his power, and maintained his control in a manner reminiscent of a feudalism which predates King Gustav II Adolph.   This, in the face of criminal charges against some of his top lieutenants. This, in the face of serious threats to create a new Thirty Years War and break the hold of FIFA on world soccer competition. [DailyMail]

Blatter’s reaction to the possible constriction of his power? He’s a victim, however:

“Between 2010 and 2013, half of FIFA’s 24-strong executive committee was accused of some form of corruption, five were forced to resign, and one was banned for life. In 1999, Blatter reassured the world about his soon-to-be-disgraced cabinet: “I can’t speak about everyone’s sense of morality but, for the 24 members of a committee I have the honor to direct, I can say they have all taken a sort of ethical oath.” [Slate]

By his lights his latest troubles are the result of American and British sour grapes.   There’s another contemporary example of a global mogul who cries “victim” when confronted.

In 2013 JP Morgan tried to spin the tale that it was a “victim” of government interference with the financial markets and therefore could not be held liable for the egregious mortgage/financial results of its actions during the Financial Collapse of 2007-2008.  It was a nice try, but the arguments weren’t constructed of anything so solid as the oaks which went into the construction of the Vasa hull. [Dealbook]   The whining continued into 2015.

CEO Jamie Dimon complained in January 2015 that “banks were under assault!”  A person might think Dimon considered himself analogous to the 1626 Polish-Lithuanian Commonwealth fighting off King Gustav II Adolph to secure the city of Danzig (Gdansk)?  However, there’s more and it brings on another whine. “It’s those lazy investors!” [C&L]

“You might think that the chairman and CEO of a major bank that had just pleaded guilty to a federal felony charge and has paid out more than $20 billion in legal settlements in recent years would show a little humility.  But then you wouldn’t be reckoning with Jamie Dimon, the head of JPMorgan Chase. At an investment conference in New York this week, Dimon lashed out at institutional investors who voted against his pay package and his dual role as the firm’s chairman and chief executive, and otherwise rejected management’s wishes on shareholder resolutions at the annual meeting May 19.” [LATimes]

Dimon’s craft was one of the survivors of the 2007-2008 debacle, Dick Fuld’s Lehman Brothers operation was one of the first casualties, but wait! it wasn’t their fault.  They ignored the 12-1 debt ratio, coming in closer to something like 40-1.  All it took was faulty economic modeling, excessive real estate exposure, over reliance on ratings, and an utter failure to manage their repos. [Bloomberg] One more we find one of the titans of industry and finance whinging as though they aren’t responsible for the systems they set in place.  No more so than King Gustav II Adolph could be blamed for the wreck of the Vasa?

When the King heard the Danes were constructing a ship with two gun decks, he changed the orders and specified the Vasa was to be similarly constructed.  That the original specifications were for a single enclosed gun deck was not taken into serious consideration.  One useless stadium here, another there – no matter.  One purchase of a highly questionable financial enterprise here, another there, no matter? One disregard of the 12-1 rule, so what could go wrong?

Indeed, what could go wrong when keel modifications were not taken into consideration, when no one at the time really knew how to calculate a ship’s stability, stiffness, and sailing characteristics?  Did anyone know the “value” of a hybrid financial product based on the price of a batch of derivatives in 2005?

There was a “lurch test” conducted on the Vasa before her launch, and the instability and ballast problems were noted.  The test consisted of having 30 men run from side to side amidship, and after three of these runs the ship was “rocking so violently it was feared it would heel over.” [FacUPedu pdf] How many more FIFA executives need to be indicted before that organization heels over?

All these ships, physical, financial, and entertaining,  were supposed to sail effortlessly in calm waters of their own choosing.

Vasa 2

The Vasa began her maiden voyage from the Skeppsgarden Shipyard on August 10, 1628; all 1210 tonnes of her, with her 38 ft. beam, her 16 ft. draft, and her 172 ft. height.  Yes, she was indeed top heavy, the ‘lurch test had illustrated that to all who witnessed it.  Hundreds, if not thousands came to see the flagship of the fleet take her first voyage.  The spectacle was not what was intended.

After she sailed about 1300 meters a light wind gust caused her to heel over on her side, the gun ports were open (to allow a salutary salvo to be fired) and water poured in.  The beautifully decorated, heavily armed, ship sank only 390 ft. from shore in waters about 32 ft. deep.

From both historic and modern inquests we know why she sank – there were “Ten Lessons Learned.”

There were excessive schedule pressures.  The scheduling pressures were exacerbated by changing needs, and operational characteristics were modified during the construction process.  There was a lack of technical specifications, compounded by a lack of a documented project plan.  Is any of this beginning to sound familiar?

There was excessive innovation, for example, no one in Sweden at the time had ever constructed a ship with two enclosed gun decks.  Worse still, there were secondary innovations added to accommodate the initial innovations, even though no one knew the implications of the initial ones.  And, there was the inevitable “requirement creep,” during the 2 1/2 years of construction;  we’d recognize this as “mission creep.”

There were no contemporary scientific methods for “calculating the center of gravity, the stiffness, and the resulting stability relationships of the Vasa.” We’d also recognize the creation of “financial products” the value of which couldn’t be determined at the outset being used as the “ballast” for subsequent iterations and innovations.  And, then there were two more items on the fail-list which we are obviously still dealing with today.

They ignored the obvious. The stability test was a failure – but that quite evidently didn’t deter the launch.  The second item is “possible mendacity,” or, “the results of the stability test were known to some but were not communicated to others.”  [FacUPedu pdf]

Imagine: a modern corporate leader.  A modern global corporate leader so anxious to “win,” to prosper, that in the interest of innovation caution is blown to the winds?  Imagine: a modern corporate leader who is so determined to “succeed” that the lack of specificity, the dearth of calculations, and the inappropriateness of methodology is dismissed? And, imagine a global corporate leader who either ignores or is never informed by the sycophantic warning signs that all is not well?  And so the beautiful Vasa sank.  She is now a museum piece.

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Filed under Economy

Swiping Away Toward the Next Debacle?

banker 2 The Las Vegas Sun reports that residents of the Las Vegas metropolitan area have run up $3.88 billion – yes, that’s billion with a B – in credit card debt as of June 2014.  The residents are not alone. There’s more credit card indebtedness piling up in Texas.  The Dallas Morning News lists the increases in credit card debt for Houston is up 5.45%, for Dallas-Fort Worth up 4.70%, and just for good measure there are other increases around the country.  Orlando’s credit card debt is up 4.89%, Atlanta up 4.21%, Tampa-St. Petersburg up 3.75%.   There’s good and bad news here.

Remember the mantra in this blog? One man’s debt is another man’s asset?

Somewhere, somehow, in the maw of the Wall Street financial institutions, those accounts receivable are being sliced, and diced, and traded.  They are being securitized.  They are becoming Asset Based Securities.  Read bonds. They are being priced and sold.  And, of course, someone is making a tidy profit. Synchrony, the largest issuer of private label credit cards for large retailers in the United States,  recently earned a Morningstar rating of BBB for its new issue.  Profits are good news, if the products being transferred are valued properly.  If not, then we have the 2007-2008 Mortgage Meltdown Debacle Redux.

The replication of that debacle will be a bit more difficult if the Security and Exchange Commission succeeds in enforcing rules under the 2010 Dodd Frank Act. The rules now call for firms issuing the securities to file reports with the SEC on the underlying loan data, including credit scores and debt levels.  The SEC plans on providing potential investors with debt to income ratio information and metrics which would help with the assessment of loan/credit quality.  [WSJ]

We should possibly recall at this point that both the Heritage Foundation and the American Enterprise Institute have called for the repeal of most, if not all, the provisions of the Dodd Frank Act.  The ultra-conservative think tanks have already declared the Act an imposition of unreasonable regulatory burdens on financial institutions.  [AEI]  It should also be remembered that Nevada Senator Dean Heller has called for the repeal of the Dodd Frank Act and its attendant regulations. [NVProg]

It’s also within recent memory that then-Representative Heller voted against the House version of the Dodd Frank bill on December 10 and  11, 2009 when Representatives Berkley and Titus voted in favor of it.  [govtrack]  Then on the final vote, December 11, 2009 Heller voted against the measure as one of 176 Republicans to do so. [govtrack]

When the conference report came back with the changes made to the bill from the Senate, once again Heller voted against it, on June 30, 2010. [govtrack] Heller also voted against H.R. 4173 (111th) on the conference report. [govtrack]  Four “nay” votes certainly should indicate that Heller was not in favor of financial regulatory reform.

Once in the Senate, Senator Heller teamed with Senator Jim DeMint (R-SC) to fully repeal the Dodd Frank Act in 2011. [DB]  And, lest he be considered inconsistent —  Senator Heller has now signed on as a cosponsor of Senator Bob Corker’s (R-TN) bill (S. 1217) which would make the FMIC (Federal Mortgage Insurance Corp) an independent agency of the federal government – read: Out from under the provisions of Dodd Frank.

For the record, there are eight bills in the House and Senate which provide for the repeal or diminishment of the financial regulation reforms included in the Dodd Frank Act. [govtrack]  Among these bills are those  sponsored by (H.R. 5016) Rep. Ander Crenshaw (R-FL), (H.R. 4564) Rep. Patrick McHenry (R-NC), (H.R. 4304) Rep. Steve Scalise (R-LA), (H.R> 3193) Rep. Sean Duffy (R-WI), and in the Senate, S. 1861, sponsored by Senator John Cornyn (R-TX). [govtrack]

The efforts by the Securities and Exchange Commission and the Consumer Financial Protection Bureau to implement and enforce financial regulatory reform measures remain under a steady assault of lobbying interests, banking associations, wealth managers, and their allies in the U.S. Congress.  Senator Heller is certainly among this legion.

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Filed under Economy, financial regulation, Heller, Nevada economy

H.R. 1135 and the Baize Door: Republicans Revisit CEO Pay Disclosure

Monopoly Character bankerWe can’t really say that the 113th is a Do Nothing Congress, they are doing something.  However, what the Congress is doing is not getting much press.  The Village Media, hot to inspect the implications of the latest Drudge headline, or to masticate endlessly over the ramifications of immigration reform or health insurance reform politics, is singularly inept at economic reporting.  The problem is that there’s nothing particularly sexy about the implementation of the 2002 Sarbanes Oxley Act or the Dodd-Frank Act, and this may be exacerbated by the evident lack of economic knowledge of some who carry the label journalist.

Our problem is that as everyday, ordinary, reasonably well educated Americans we are getting a heavy dose of information slanted toward the professional investors — “business news” designed by and delivered to professional investors.   Today’s post concerns a topic once rendered dramatic enough to attract the attention of the news networks — when a sufficient number of 99% Protestors raised a ruckus — but now has sunk back beneath the ocean’s  Mesopelagic Zone: Corporate CEO Pay.

There’s A Plan Here

The Dodd-Frank Act, section 953 (b) was never popular with corporate leadership.  The section dealing with the disclosure of CEO compensation was initially ignored, never really enforced, and now the Republican controlled House of Representatives would like to repeal it wholesale.  [NVRDC]

Corporations are currently required to follow the rules pertaining to section 953 (b) which are, in detail:

(1) IN GENERAL.—The Commission shall amend section 229.402 of title 17, Code of Federal Regulations, to require each issuer to disclose in any filing of the issuer described in section 229.10(a) of title 17, Code of Federal Regulations (or any successor thereto)—  (A) the median of the annual total compensation of all employees of the issuer, except the chief executive officer (or any equivalent position) of the issuer;  (B) the annual total compensation of the chief executive officer (or any equivalent position) of the issuer; and (C) the ratio of the amount described in subparagraph (A) to the amount described in subparagraph (B). (2) TOTAL COMPENSATION.—For purposes of this subsection, the total compensation of an employee of an issuer shall be determined in accordance with section 229.402(c)(2)(x) of title 17, Code of Federal Regulations, as in effect on the day before the date of enactment of this Act. [DoddFrank]

Translation:  Corporations are now required to report the ratio of pay between their CEO’s and their “median” or most typical workers.  The plan devised by the CEO’s and their Congressional allies is to avoid telling the investors and the public anything about CEO pay…ever.

The Bill to Implement the Plan

The bill introduced into Congress to put this simple plan into effect is H.R. 1135, Representative Bill Huizenga’s (MI-4) “Burdensome Data Collection Relief Act.”  It is summarized by the Congressional Research Service as follows:

“Burdensome Data Collection Relief Act – Amends the Dodd-Frank Wall Street Reform and Consumer Protection Act to repeal the requirement that the Securities and Exchange Commission (SEC) amend certain federal regulations about executive compensation to require each issuer of securities to disclose in any filing: (1) the median of the annual total compensation of all the issuer’s employees, except the chief executive officer; (2) the annual total compensation of the chief executive officer; and (3) the ratio of the first amount to the second.”

In short — corporations will no longer be “burdened” by having to disclose the total compensation of their chief executive officers, or to disclose the ratio of CEO pay to that of their median workers.  And, those of us in the general public will no longer be “burdened” by having such information available.   At this point, the CEO’s would be pleased to have information about their compensation packages drift and drop down into the Abyssopelagic Zone on its way to the Hadalpelagic…

One criticism of the requirements of section 953 (b) is that executive pay is a package of components consisting of base pay, bonuses, stock grants and other long term compensation, accumulated benefits in pension plans, and the value of accumulated benefits in more specific executive pension plans.   Some of the benefits are much higher than the base pay.  [BlmLaw]  In short the argument is that computing the CTAC (total annual compensation) is “difficult.”   It’s tempting to offer the rejoinder that perhaps someone would like to sell the corporation a computer for its actuaries and auditors to use in this calculation.   The computation is probably too much for the average abacus, and perhaps even for a nice old fashioned pocket calculator, but … I thought this was why we had computers?

Why the introduction of H.R 1135?

The essential question boils down to: Is it worth the effort to calculate and compile statistics on corporate CEO compensation?

Representative Huizenga says no.

“Huizenga told BNA that “Section 953(b) of Dodd-Frank creates an enormous burden for publicly traded companies while offering no corresponding benefit. By forcing publicly traded companies to report median total compensation, the federal government is requiring companies to provide data that is potentially misleading to investors due to the differing geographic locations of the business. A salary in Detroit is going to be different than a salary in San Francisco, which is going to be different than a salary in London.” [Huizenga]

With all due (lack of) respect, I think individuals can figure out that a company based in the U.S. with most of its employees in Bangladesh is going to have a slightly skewed ratio of CTAC to MTAC.  (median total annual compensation)  Likewise, its not hard to figure that the ratio will be different for companies with domestic manufacturing or service provision activities.   The point remains — whether the ultimate calculation can be slanted is assumed, it’s the out of control full on flash flood of executive compensation which remains unaddressed by corporate boards and problematic for their employees.

Think just for a moment or two about the great push to disclose the salaries and benefits of public employees; as if kindergarten teachers, local firefighters, DOT personnel, and retired police officers are a “Great Drain On The American Way of Free Enterprise” and we should all know exactly what they are collecting.  However, the base pay, benefits, general and specific pension plans, and bonuses of corporate executives is just “tooooo difficult to calculate,” and the great unwashed might be “ill informed” by the release of such data.  It appears as though requiring the corporation to reveal the compensation of top ranking employees is enough to drive them all so frantic as to require fainting couches trailered from their golf carts.

Now, where might Representative Huizenga have gotten the notion that section 953 (b) was the cause of so much pearl-clutching?  There’s a hint in a January 19, 2012 letter from the Financial Services Roundtable to SEC Commissioner Mary Shapiro. (pdf)  The letter is a summation of the common talking points. The section is “too difficult,” some of the results might be “misleading,” and their are problems for multinational corporations.

It shouldn’t surprise any one that the signatories to this epistle include such very special interests as the American Petroleum Institute, the American Insurance Association, the National Association of Manufacturers, the Financial Services Roundtable, the Securities Industry and Financial Markets Association, and the U.S. Chamber of Commerce.  (*full list provided below)  We’d probably not see another such  collection of pro-corporate/financial interests beyond the manicured greens of Augusta, Merion, Pebble Beach, and Oakmont.

Breaching the Green Baize Door

Once upon a time, in the days of Downton Abbey, when  the domains of the served and the servants were rigidly prescribed, the green baize door separated the two realms into precisely delineated classes.  To trespass into the the “other’s” territory was all but an assault on foreign territory.  Thus, the dis-inclination to divulge such information as CEO compensation to those below stairs.  The compensation packages are “too complex for the average person to understand,” and the recipients might be mislead by the statistical requisites necessary to calculate the ratios with any precision.

Further, the computations are an annoyance for the corporate management, confusing for the multi-national corporate structure, and of only moderate utility to the domestics.

What the Residents beyond the green baize door have decided, if we are to believe their January 2012 missive, is that the inconvenience to the Residents outweighs the value of the information to the Domestics.   Thus, on June 19, 2013 members of the House Financial Services Committee voted to protect the Residents on a 36-21 vote to repeal section 953 (b) and send H.R. 1135 to the floor of the house. [HFSC pdf]

If the Residents have their way, no more information about CEO compensation will flow down through the green baize door, and the amount of compensation received by the Executive Class will be consigned to the Hadalpelagic Zone as far beneath the waves as possible.  What could possibly go wrong?

*Signatories to the January 19, 2012 letter to Commissioner Shapiro: American Benefits Council, American Insurance Association, American Petroleum Institute, Business Roundtable, Center On Executive Compensation, Competitive Enterprise Institute, The Financial Services Roundtable, HR Policy Association, National Association of Manufacturers, National Association of Real Estate Investment Trusts,  National Association of Wholesaler-Distributors, National Investor Relations Institute, National Restaurant Association, National Retail Federation, Property Casualty Insurers Association of America, The ERISA Industry Committee,  The Real Estate Roundtable, Retail Industry Leaders Association Securities Industry and Financial Markets Association, Society of Corporate Secretaries & Governance Professionals, Society for Human Resource Management,  U.S. Chamber of Commerce,WorldatWork

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Amodei, Heck Join Big Bank Boys Club: H.R. 1062 Protects Wall Street

Occupy Wall Street bankersAlmost lost in the hyperbolic distractions so beloved by the D.C. press, was the House passage of H.R. 1062 on May 17, 2003, a bill to gut the capacity of the Security and Exchange Commissions rule making to protect American investors.   And, Nevada Representatives Amodei (R-NV2) and Heck (R-NV3) voted in favor of it.  Representatives Titus (D-NV1) and Horsford (D-NV4) voted against H.R. 1062.

What did they support?

“SEC Regulatory Accountability Act – Amends the Securities Exchange Act of 1934 to direct the Securities and Exchange Commission (SEC), before issuing a regulation under the securities laws, to: (1) identify the nature and source of the problem that the proposed regulation is designed to address in order to assess whether any new regulation is warranted; (2) use the SEC Chief Economist to assess the costs and benefits of the intended regulation and adopt it only upon a reasoned determination that its benefits justify the costs; (3) identify and assess available alternatives that were considered; and (4) ensure that any regulation is accessible, consistent, written in plain language, and easy to understand.”  [Thomas CRS Summary] (emphasis added)

Oh, how the Wall Street Wizards will love this one! The Little Wizards in the investment banking sector have long wanted all regulators to use the “cost/benefit” standard for restraining the excesses of investment enthusiasm.   H.R. 1062 seeks to gut the Dodd-Frank financial reform statute enacted in the wake of the Mortgage Meltdown and attendant financial machinations, and unleash the Wall Street Wizards from all regulation “past, present, and future.”  [HuffPo] We already have “cost/benefit analysis”  built into the system — so why another bit of legislation?

Here’s the little kicker in the bill:  “This bill was transparently designed to allow each regulation to be challenged in court by industry, but not by consumer advocates.”  [HuffPo] Got it?

Evidently, Representatives Heck and Amodei believe this to be a good idea — that the financial sector battalion of legal expertise may challenge each and every regulation proposed by the Securities and Exchange Commission — but the rules may NOT be challenged by consumer advocates.

As Representative Gwen Moore (D-WI4) explains:

“The ink would not be dry on a SEC rule before the race to the courthouse door to challenge the regulations would begin. Presumably, the most powerful industry participants would challenge the rules in the way that achieves their narrow interest, which may be to the detriment of investors or other less-affluent market participants. In this way, the most powerful industry interests would be able to not only use the courts to undo consumer protections, but to also seek competitive advantage over competitors.”

The big get bigger, the fat get fatter, and the rest of us sit waiting to find out how best to serve the Big Bankers on Wall Street.

But wait! It gets better — if you happen to be a Big Banker on The Street:

Requires the SEC to: (1) consider whether the rulemaking will promote efficiency, competition, and capital formation; (2) consider the impact of the regulation upon investor choice, market liquidity, and small business; (3) explain in its final rule the nature of comments received concerning the proposed rule or rule change; and (4) respond to those comments, explaining any changes made in response and the reasons that it did not incorporate industry group concerns regarding potential costs or benefits. [Thomas CRS Summary] (emphasis added)

Any rule has to promote “capital formation?”  Translation: No SEC rule may prevent any investment banking operation from accumulating capital (money) just about any way it wants to, and even further — if the rule does prevent some Wall Street investment house or Monster Bank from accumulating all the coin of the realm it wants then the SEC has to explain (presumably to Wall Street’s satisfaction) why “industry group concerns” weren’t incorporated into the rules.  Another translation might be in order:  The SEC can’t propose and adopt any rule Wall Street doesn’t like.

Wall Street would like to modify some existing rules (like those pertaining to the Dodd-Frank Act) and H.R. 1062 offers them a way to do that:

Requires the SEC to: (1) review its existing regulations periodically to determine if they are outmoded, ineffective, insufficient, or excessively burdensome; and (2) modify, streamline, expand, or repeal them.  [Thomas CRS Summary] (emphasis added)

How nice.  Now, just what does “excessively burdensome” actually mean?  The standard Wall Street dictionary applies the term to any regulation they don’t like.   Is it “excessively burdensome” to require a Wall Street firm to report what it’s doing with derivatives? Is it “excessively burdensome” to make Wall Street stop playing casino games with people’s mortgages?   If the rule isn’t “excessively burdensome,” then how about making rule proposals almost impossible?  The bill had a little something for that prospect too:

“Requires the SEC, whenever it adopts or amends a major rule, to state in its adopting release: (1) the purposes and intended consequences of the regulation, (2) the post-implementation quantitative and qualitative metrics to measure the economic impact of the regulation and the extent to which it has accomplished the stated purposes, (3) the assessment plan that will be used under the supervision of the Chief Economist to assess whether the regulation has achieved those purposes, and (4) any foreseeable unintended or negative consequences. Requires the assessment plan to: (1) consider the costs, benefits, and intended and unintended consequences of the regulation; and (2) specify the data to be collected, the methods for its collection and analysis, and an assessment completion date.”  [Thomas CRS Summary]

Got all that?  How is an “unintended consequence” foreseeable?  That’s why they’re called “unintended” in the first place.   So, the SEC cannot enforce any rule which might at any point in the future have an “unintended consequence” because that would violate the provision calling for a full assessment of the development of the rule.

After this bit of legislative legerdemain on behalf of the Big Banks and their cohorts on Wall Street, Representatives Amodei and Heck have not a quarter of an inch of room to talk about protecting small businesses — who are all too often at the mercy of the Big Banks, nor do they have any leeway to discuss protecting investors and their retirement accounts.  Nevada homeowners facing all manner of difficulties with mortgages that were sold off in packages and then bet on more enthusiastically than the Kentucky Derby might want to inquire precisely how Representatives Amodei and Heck are protecting their interests?

Representatives Heck and Amodei have joined the Big Bank Boys Club in this vote; a connection avoided by Representatives Horsford and Titus.

If you are not a resident of Nevada and would like to see how your Representative voted on this egregious bit of pandering to Wall Street and Big Bank interests click here.

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