The slow pace of rulemakings under Dodd-Frank has been a consistent rallying cry among those skeptical of the law. Those who oppose reform say the delays are more proof that the law is overly complex, while the market says businesses will suffer the longer they have to wait for clear and consistent rules.
This refrain was touched on in the JPMorgan hearing on Wednesday with its chief executive, Jamie Dimon, and more expressly part of another hearing last week with senior regulators, where lawmakers jockeyed for position to jab the agencies on how slowly they were implementing the law.
But though the pace of reform has not been quick, the intent here is more about scoring political points than fostering a more efficient process to implement Dodd-Frank.
The implementation process has had its flaws, no question. Market players hungry for rules are basically left waiting, and some of the pending proposals — most notably the 'Volcker Rule' — appear to require an advanced doctoral degree to understand.
But the slow pace of reform is not accidental.
Under existing law, the agencies' must follow administrative rules that invite public input into rulemakings. Each regulation first requires a proposal, with a long comment period.
For all of the big Dodd-Frank rules, there have been extensions to those timeframes to accommodate the massive amount of people with opinions. And rather than provide a clear course of action, most of the comments received go off in a thousand contradictory directions: implement the law with zero tolerance, provide exemptions, limit the scope of the exemptions, don't skimp on exemptions because you will then constrain the markets, be simple, be nuanced, allow hedging, limit the definition of hedging, but be careful there aren't unintended consequences.
Is it any surprise the Volcker Rule proposal is so hard to decipher, not to mention that a final rule is taking so long?
That does not include all the time regulators spend traveling back and forth to Capitol Hill to explain themselves.
Senior staff must brief principals on the hearing's substance, possible questions from lawmakers and key points to make in testimony to support the agency's point of view. Then, there is the drafting and revision of testimony, and the time that the agency's leader and senior aides must devote to prepare for and attend the hearing itself.
The principle of public dialogue was one of the key ideas on which this country was built, so scrutiny of the regulators' work is appropriate.
But, considering that the regulators — extremely well-qualified as they are — are working on government salaries in an era of constrained budgets, maybe one of the ingredients for a more efficient implementation is, to quote Elvis, "a little less conversation."
With the constant demands of Congress for them to answer for their mistakes — and the cacophony of opinions in the marketplace — how is a regulator ever supposed to sit down and write a rule?
We've all been there — working under a supervisor who is subjecting us to a deadline but for some reason is getting in our face about what a poor job we're doing, all the while taking up the time we need to finish our work. If the deadline is so important, then maybe a little more silence is needed.
The regulators' task is all the more challenging when you consider that the most important rules must be crafted jointly by multiple agencies, each with their own unique missions. That means smart people must get in a room and agree on a common approach. Yet anyone in Washington knows getting agreement on where to have lunch is a chore.
To satisfy the need for public scrutiny of the implementation, perhaps a better model is the private-sector group announced last week by The Pew Charitable Trusts and the CFA Institute. The venture, named the Systemic Risk Council, will be chaired by former Federal Deposit Insurance Corp. Chairman Sheila Bair and will include such names as Paul Volcker, Brooksley Born and Bill Bradley, charged with providing outside commentary on the regulators' progress in writing the rules. The group says it intends to point out where regulators may be underperforming.
But presumably it will not require more of the precious time of those agency heads who we all think should be pulling more all-nighters interpreting Dodd-Frank.
Another novel alternative is the point made by Rep. Barney Frank, D-Mass., last week, that lawmakers can help the agencies speed up the rulemaking process with more funds to do it.
"At a time when JPMorgan Chase has reported the loss of $3 billion or more in the derivatives markets, the Republicans are refusing to appropriate a small percentage of that amount to provide the protections we need against a return to financial chaos," Frank said in a statement.
Otherwise, Congress is at least as responsible as the agencies it oversees for the delay in clear regulations.
Joe Adler is the Deputy Washington Bureau Chief for American Banker. The views expressed are his own.