WASHINGTON — Congress will kick off a jam-packed fall session on Tuesday when lawmakers return from summer break, with a number of key banking priorities up for consideration.
Financial services issues may not rival time-sensitive decisions on the Iran nuclear deal or the budget, but debates over regulatory relief, cybersecurity and other industry concerns are likely to be renewed.
Possible Omnibus Bill
As in recent years, one of the best chances for banking reform is likely to come amidst high-stakes political horse-trading. The GOP-led Congress and the Democratic White House are gearing up for battles over several top tier issues, potentially providing a vehicle for financial services issues if movement through regular order falls short.
"Given the limited number of things that are must-pass, an omnibus funding bill becomes an attractive vehicle" for regulatory relief items, said Brad Thaler, vice president of legislative affairs at the National Association of Federal Credit Unions.
Critics of the Dodd-Frank Act's "swaps pushout" provision succeeded in rolling back the measure as part of a must-pass spending bill that weaved its way through Congress at the end of 2014. It's possible that lawmakers may again have to grapple with a major omnibus package — this time to fund the government, raise the debt limit or even continue the country's transportation program.
Going into the fall session, lawmakers remain at an impasse over the budget, with the end of the fiscal year on Sept. 30 just a few weeks away. There's a good chance Congress will have to pass a short-term continuing resolution to avoid a government shutdown, while lawmakers continue the fight over funding Planned Parenthood and other hot-button issues into December, when a bigger deal could be in the offing.
Lawmakers will also have to grapple with raising the country's debt limit sometime in coming months as the Treasury Department exhausts its latest round of "extraordinary measures" in addition to passing a long-term reauthorization of the Highway Trust Fund, after approving a three-month extension this summer before the August recess. Many in the banking industry remain opposed to unrelated provisions that help pay for the transit measure — cuts to the Federal Reserve's dividend paid to banks and hikes in guarantee fees at Fannie Mae and Freddie Mac. Congress is also deeply divided over reauthorization of the Export-Import Bank, another measure that could become part of broader negotiations this fall.
"Democrats have made it clear for months that they want to provide regulatory relief to community banks and credit unions, but not at the expense of rolling back Wall Street reform," said a Democratic aide with the Senate Banking Committee. "Democrats will be focused on creating jobs by helping community banks, renewing the Export-Import Bank, and rebuilding our transportation infrastructure without relying on the funding scheme Sen. McConnell has proposed."
It's unclear at this point where or how additional banking measures, including any number of regulatory relief provisions, will find their way into the broader deals in the making, but the opportunities are ripe. At the same time, banking industry officials are increasingly frustrated with the lack of action from Congress to help smaller financial institutions.
"You're going to see more intense grassroots pressure and lobbying, given the frustration levels with Congress not getting anything over the finish line," said Paul Merski, executive vice president for congressional relations and chief economist for the Independent Community Bankers of America.
The political brokering in Congress will also take place with an eye toward the 2016 elections. Lawmakers on both sides of the aisle have an interest in being able to point to legislative victories in what's become a political environment marked by gridlock. Both parties are going to be fighting hard for control of the Senate next year, and want to give their presidential contenders every rhetorical advantage possible.
Sen. Richard Shelby's, R-Ala., banking reform package is the most obvious place to look for measures to be included in a larger omnibus deal. The bill cleared the Banking Committee, over which Shelby presides, in May, though the vote was split down party lines. Democrats remain sharply critical of the plan, saying it undermines the Dodd-Frank Act and provides too much help for larger institutions, not just the smallest banks.
The Alabama lawmaker, who is also a senior appropriator, then added his legislation, which spans more than 200 pages, to the financial services spending bill in July — to the ire of Democrats and the White House.
That could put the bill in a prime position on the negotiating table ahead of budget talks and the other pending fights, though lawmakers will still be challenged to find partisan agreement on a package. Many individual pieces of the bill, particularly those involving regulatory relief, have previously won the support of Democrats, but so far only Republicans have supported the full legislation.
"At the end of the day, there's a good chance we will have dozens of Dodd-Frank changes enacted into law, and most of them with at least some level of bipartisan support — on the policy if not the process," said Dan Crowley, a partner at K&L Gates.
Just like with the swaps pushout fight, this year's battle will likely come down to where the White House draws the line on changes to Dodd-Frank. If an omnibus deal is struck, President Obama will likely weigh the package as a whole, including banking reforms that he might otherwise oppose.
(To be sure, a bipartisan deal could still be struck, in which case a regulatory relief bill could move through regular order, but there's little indication right now that talks are moving in that direction.)
At the same time, industry observers are looking at a number of standalone measures in the House, those that have cleared the Financial Services Committee as well as those approved by the full House. Such measures could come into particular focus if talks around the Shelby bill continue to end in stalemate, in part because many have already won bipartisan support.
"Right now because of the broad nature of the Shelby package, it's somewhat difficult to gauge how much Democratic support there would have been for each particular provision," said Isaac Boltansky, a policy analyst at Compass Point Research & Trading. "At least on the House side we're able to take a look at that."
The committee, led by Rep. Jeb Hensarling, R-Texas, held a two-day markup just before the August recess that included a number of key bills for the industry. A spokesman for the chairman said that the Texas lawmaker plans to push for those provisions to get a vote on the House floor.
Bankers will also be watching closely to see if the House banking panel takes up a measure to change a $50 billion Dodd-Frank threshold for enhanced prudential standards. Shelby's bill would raise the line to $500 billion, while giving regulators the discretion to name banks as "systemically important" below that point. A popular House bill by Rep. Blaine Luetkemeyer, R-Mo., would remove the line altogether in favor of qualitative measures of systemic importance.
It's possible that bill could come up for a vote this fall after several hearings this year on the $50 billion line issue, though it's still unclear where Hensarling stands. The chairman is a strong critic of Dodd-Frank and some have speculated that he'd rather see more sweeping reforms to the law rather than piecemeal changes, like amending the SIFI threshold.
"The committee has had many discussions surrounding SIFI designation issues and has an aggressive schedule slated for the fall," said one House source. "The SIFI designation issue continues to be at the forefront of many members' minds, and we expect more committee action on the topic in the coming months."
Housing Finance Reform
Top-level discussions about overhauling Fannie Mae and Freddie Mac have fallen off precipitously this year, but the issue could rise up again in a more targeted form this fall. Mel Watt, director of the Federal Housing Finance Agency, approved major salary increases for the heads of the two government-sponsored enterprises this summer, and the congressional backlash has been swift.
The House banking panel voted nearly unanimously in July in favor of a bill halting the raises and capping executive compensation to the highest salary paid at the agency, which was reportedly estimated at $255,000 in 2011. Watt had proposed raising the chief executive compensation for those leading the GSEs from $600,000 to nearly $4 million, a plan that has also been criticized by the Treasury Department.
"That has come to the fore as must-pass legislation, and the only question is, what's attached to it?" said Crowley.
It's possible that lawmakers could use the provision to introduce additional, but still-narrow housing finance measures to spur risk-sharing at the GSEs and move more private capital into the market.
Broader efforts to unwind or even recapitalize Fannie Mae and Freddie Mac are not expected to gain political traction this year in what is expected to already be a very busy congressional session.
There are a number of other financial measures that could come up for debate this fall, though whether they can win broad attention amidst pitched battles over time-sensitive priorities remains to be seen.
"Between now and Christmas, there's so much that's deadline-oriented that anything without an expiration date is likely to get lost in the shuffle," said Brandon Barford, a partner at Beacon Policy Advisors.
Many in the financial services community will be urging the Senate to take up the Cybersecurity Information Sharing Act after several false starts for a vote this summer. Majority Leader Mitch McConnell and Minority Leader Harry Reid have agreed to return to the bill after the summer recess, but securing floor time for a vote could prove tricky in September between debates over Iran and the budget, in addition to a visit by Pope Francis. The House passed two related information-sharing bills in April that would ease the passing of cyber-threat data between government and the private sector.
"We are hopeful that the Senate will consider CISA," said James Ballentine, executive vice president of congressional relations and political affairs at the American Bankers Association. "With a limited window available to get legislation done, we hope Congress will not push this important bipartisan legislation to the end of the waiting list."
At the same time, analysts will be watching to see if Shelby holds hearings and votes on a growing number of executive nominees, including two to the Federal Reserve. Democrats wrote a letter to the chairman over the summer complaining that the committee was the only one in the Senate to have not held a confirmation hearing yet this year.
"There is no excuse for Republicans to keep dragging their feet on the 11 nominations that are now pending before the Banking Committee," said the Democratic Banking Committee aide.
Whether nominees, including others to the Treasury Department, the Securities and Exchange Commissions, the Commodity Futures Trading Committee and the Federal Deposit Insurance Corp.'s inspector general's office would be able to win floor consideration after passage out of the committee is also an open question. The Banking Committee has so far scheduled a Sept. 17 hearing for Adam Szubin, who is nominated to be undersecretary for terrorism financial crimes at the Treasury Department.
Janet Yellen, meanwhile, has reportedly been invited to testify on financial regulation and supervision matters before the Financial Services Committee in September, though a date for that hearing has not been set. Yellen testifies before both banking panels twice a year, but critics have charged that she should separately speak to Congress on regulatory matters until a vice chair for financial supervision is confirmed at the Fed. The White House has yet to name anyone to the position, which was created under Dodd-Frank five years ago. It's not yet clear if Yellen will provide similar testimony in the Senate.
Separately, industry critics are expected to continue their opposition to a Department of Labor proposal to amend the fiduciary duty standard, aimed at reducing conflicts of interest for advisors giving retirement advice. The Financial Services Committee plans to "scrutinize" the DOL measure, which will "make it harder for Americans to retire," a committee spokesman said. The panel will hold a subcommittee hearing on the issue on Sept. 10.
Still, observers said overturning the rule is likely to be an uphill battle because the White House has made the proposal a political priority. DOL officials, for example, recently held four days of hearings and discussion over the rule, giving critics a chance to air their grievances.
The Financial Services Committee spokesman said the panel will also hold hearings this fall on Dodd-Frank, the SEC and the CFPB. The panel's latest hearing on terrorist financing is scheduled for Sept. 9.
Some in the industry may also continue to push for a delay to new disclosures under the Truth in Lending Act/Real Estate Settlement Procedures Act, which go into effect Oct. 3.
Richard Cordray, director of the Consumer Financial Protection Bureau, has said the agency will be lenient with institutions in early months as they implement the new disclosures, but industry advocates warn that more protections are needed, as institutions get up to speed with the procedures. During its markup in July the Financial Services Committee passed a bill with bipartisan support that would prohibit the new TRID rules from being enforced until Feb. 1 — another measure to watch.
"We feel that giving financial institutions to Feb. 1 to comply with TRID will make sure there's enough time for everyone to ramp up and have all the necessary means at their disposal," said Sam Whitfield, deputy chief advocacy officer for congressional relations at the Credit Union National Association.