Dodd-Frank’s Nasty Double Whammy

【译注:多德-弗兰克法案,全称《多德-弗兰克华尔街改革和消费者保护法》(Dodd-Frank Wall Street Reform and Consumer Protection Act),2010年颁行的金融监管改革法案,是国会对2008年金融危机的主要立法反应。】

Five years after the passage of the Dodd-Frank financial law, the causes and effects of the failed economic recovery are apparent throughout the banking system. The Federal Reserve’s monetary easing has inflated bank reserves, but lending has barely increased. Today banks maintain an extraordinary $29 of reserves for every dollar they are required to hold. In the first quarter of 2015 banks actually deposited more money in the Fed ($65.1 billion) than they lent ($52.5 billion).


According to the Federal Deposit Insurance Corp., 1,341 commercial banks have disappeared since 2010. Remarkably, only two new banks have been chartered. By comparison, in the quarter century before the financial crisis, roughly 2,500 new banks were chartered. Even during the Great Depression of the 1930s, an average of 19 new banks a year were chartered.

联邦存款保险公司(Federal Deposit Insurance Corp.)的数据显示,2010年至今已经有1341家商业银行消失。同时,只有两家新银行获得牌照。相比之下,在金融危机前的二十五年,大约涌现了2500家新银行。即使在20世纪30年代的大萧条时期,平均每年也有19家新银行获牌。

A Mercatus Center survey found that while community banks have hired 50% more compliance officers to deal with Dodd-Frank, overall industry employment has increased only 5% and remains below precrisis levels. Industrial, consumer and mortgage finance continue to flee the banking system, as the American Bankers Association reported this week that the law’s regulatory burden has led almost half of banks to reduce offerings of financial products and services.

莫卡斯特中心(Mercatus Center )的一项调查发现,尽管为应对多德-弗兰克法案,小型社区银行雇用的合规事务员比原先多了50%,整个行业的就业人数仅增加5%,仍然低于金融危机前的水平。产业金融、消费金融、抵押融资持续流出银行系统,据美国银行家协会(American Bankers Association)本周发布的报告,该法案造成的监管负担导致近半数银行削减了金融产品和服务。

New financial-services technology, such as online and mobile payment systems, has continued to blossom, but almost exclusively outside the banking system. The massive resources of, and talent in, banks have been sidetracked, rather than being employed to make loans and boost the economy.


Worst of all, Dodd-Frank has empowered regulators to set rules on their own, rather than implement requirements set by Congress. This has undermined a vital condition necessary to put money and America back to work—legal and regulatory certainty.


It is true that a certain amount of regulatory flexibility is necessary in many laws. But in the Securities Exchange Act of 1934, and most subsequent banking law before Dodd-Frank, the powers Congress granted to regulators were fairly limited and generally implemented by bipartisan commissions.


Major decisions were debated and voted on in the clear light of day. Precedents and formal rules were knowable by the regulated. And regulators generally had to be responsive to Congress, which controlled agency appropriations. These checks and balances, while imperfect, did promote general consistency and predictability in federal regulatory policy.


This process has been undermined. For example, Dodd-Frank’s Consumer Financial Protection Bureau is not run by a bipartisan commission. And the CFPB’s funding is automatic, virtually eliminating any real ability for elected officials to check its policies. Consistency and predictability are being replaced by uncertainty and fear.

但这套程序正在遭受侵蚀。例如,根据多德-弗兰克法案设立的消费者金融保障局(Consumer Financial Protection Bureau)并非由一个两党共同控制的委员会运作。再有,消费者金融保障局每年的拨款都是自动获得的,这令民选官员事实上无法监督其政策制订。原先政策总体的一致性和可预见性正在被迷茫和恐慌所代替。

Over the years the Federal Trade Commission and the courts defined what constituted “unfair and deceptive” financial practices. Dodd-Frank added the word “abusive” without defining it. The result: The CFPB can now ban services and products offered by financial institutions even though they are not unfair or deceptive by long-standing precedent.


Regulators in the Dodd-Frank era impose restrictions on financial institutions never contemplated by Congress, and they push international regulations on insurance companies and money-market funds that Congress never authorized. The law’s Financial Stability Oversight Council meets in private and is made up exclusively of the sitting president’s appointed allies.

多德-弗兰克法案之后,监管当局可以绕开国会审查授权程序,直接推行对金融机构的限制,以及对保险公司和货币市场基金的跨国监管。法案设立了金融稳定监督委员会(Financial Stability Oversight Council),其成员个个都是在任总统指定的盟友,会议均闭门进行。

Dodd-Frank does not say what makes a financial institution systemically important and thus subject to stringent regulation. The council does. Banks so designated have regulators embedded in their executive offices to monitor and advise, eerily reminiscent of the old political officers who were placed in every Soviet factory and military unit.


Dodd-Frank’s Volcker rule prohibits proprietary trading by banks. And yet, despite years of delay and hundreds of pages of new rules, no one knows what the rule requires—not even Paul Volcker.

多德-弗兰克法案的沃尔克规则(Volcker rule)禁止了银行的自营交易。然而,经过数年反复商讨,出台新规千百页,始终没人说得清楚这个规则到底提出了什么要求,就算沃尔克本人也做不到。

Then there is the “living will,” a plan that banks deemed to be systemically important must submit to the Fed and the FDIC on how they would be liquidated if they fail. The Fed and the FDIC have almost total discretion in deciding whether the plan is acceptable and therefore whether to institute a variety of penalties, including the divestiture of assets.

再有就是“生前遗嘱(living will)”——重要的银行必须向美联储和联邦存款保险公司预先递交清算计划,以备破产之需。美联储和联邦存款保险公司几近拥有完全的自由裁量权,判断该计划是否可接受,由此决定是否制定包括资产剥离在内的处罚措施。

Large banking firms must undergo stress tests to see if they could survive market turmoil. But what does the stress test test? No one knows. The Fed’s vice chairman, Stanley Fischer, said in a speech last month that giving banks a clear road map for compliance might make it “easier to game the test.” Compliance is indeed easier when you know what the law requires, but isn’t that the whole point of the rule of law?

法案规定,大型银行必须接受压力测试,以检验处于市场动荡时的存活能力。但压力测试测试些什么呢?没人知道。上个月,美联储副主席斯坦利·费希尔(Stanley Fischer)在演讲中说,为银行遵从法规提供清晰的路线图可能令银行“更容易通过压力测试”。只要法律明确,遵守规定确实更容易,可这不正是法治的基本要求吗?

To limit abuse by the rulers, ancient Rome wrote down the law and permitted citizens to read it. Under Dodd-Frank, regulatory authority is now so broad and so vague that this practice is no longer followed in America. The rules are now whatever regulators say they are.


Most criticism of Dodd-Frank focuses on its massive regulatory burden, but its most costly and dangerous effects are the uncertainty and arbitrary power it has created by the destruction of the rule of law. This shackles economic growth but more important, it imperils our freedom.




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