Senate Banking Panel Could Take Second Look at Dodd-Frank

WASHINGTON — After passing the Dodd-Frank Act two years ago, the Senate Banking Committee has largely fallen silent, holding hearings on a spate of issues but otherwise pushing only noncontroversial bills forward.

But that is likely to change next year, including — some industry representatives hope — the possibility that the panel will take a fresh look at several financial reform law provisions that bankers see as too burdensome.

"We're in a strange phase after the Wall Street reform act where a lot of the activity was in the regulatory arena. In other words, the timeframe was for the bank regulatory agencies to implement and flesh out the massive changes that Congress put into statute," said Paul Merski, executive vice president for congressional relations and chief economist for the Independent Community Bankers of America. "We're kind of getting in the phase where Congress will have a second review of how these provisions that regulations have fleshed out are impacting the marketplace, and maybe make corrections where things are not working out."

The committee has yet to issue a formal agenda for the next Congress, but spokesman Sean Oblack said that oversight of the Dodd-Frank law and other issues like mortgage finance reform will probably top the agenda, much like last year.

"We expect that the committee would continue to focus on oversight of Wall Street Reform, the housing finance system, expiring authorizations and consideration of the President's nominees in the 113th Congress," Oblack said in a statement to American Banker. "That said, Chairman Johnson is waiting until the committee is officially organized so he has a chance to consult with the new roster of committee members and the ranking member before releasing a detailed agenda."

Observers said there are several reasons why legislation — not just oversight — might be back on the agenda next year.

For one, although Democrats were mostly united in defending the Dodd-Frank law leading up to the election, they may be feeling more latitude now to address certain issues with the bill.

"There was a certain blood oath that Democrats took leading up to the election, where they all had to take a pledge to say that Dodd-Frank was the best thing going, but in truth they all knew that it needed drastic improvements," said Cornelius Hurley, director of the Boston University Center for Finance, Law & Policy. "So without the looming elections, they can now set about making those drastic improvements."

Others pointed to macroeconomic factors that may force them to reopen provisions in the law, including frustration with the lagging economy.

"The real focus is going to be the shift from looking at why banks did bad things to how you can get more credit flowing into the economy. I think that shift is going to be very constructive for the banks and the economy," said Jaret Seiberg, senior policy analyst at Guggenheim Securities. "That shift in focus is going to open the door for making modifications to Dodd-Frank."

Republicans, too, appear to be moving away from their hardline opposition to everything in Dodd-Frank. In recent months, the tone has become less about outright repeal of Dodd-Frank — a politically unrealistic prospect — and more about how to make productive tweaks to the law.

Even former GOP presidential candidate Mitt Romney took a more nuanced stance during the final months of the campaign, backtracking from his earlier calls to repeal the law.

"You could even see from Gov. Romney's change of rhetoric during the campaign that there are aspects of the law that he supported. There was a recognition that you can't take away everything that was put into place," said Amy Friend, a managing director at Promontory Group and former chief counsel to the Senate Banking Committee.

"Companies have spent a lot of money getting ready — if you went out to banks and said, 'Do you want to repeal this wholesale?' I suspect they would say they didn't want that."

Exactly what issues get addressed, however, is an open question.

"The law will be reopened, and from there anything could happen," said Isaac Boltansky, a policy analyst for Compass Point Research & Trading, adding that many issues are "ripe for negotiation once the law is reopened."

Some tweaks, including adding protections for privileged information that banks share with the Consumer Financial Protection Bureau and certain modifications to derivatives provisions, are relatively uncontroversial.

Additional areas that could again come up for debate include changes to the so-called Volcker rule that bans proprietary trading, the structure and appropriations of the CFPB and the law's "too big to fail" provisions.

But passage of any legislation related to Dodd-Frank will be dependent on relationships between lawmakers on the committee and in the full chamber. It remains to be seen how Sen. Michael Crapo, R-Idaho, who is expected to take over as the lead Republican on the panel, will work with Chairman Tim Johnson, D-S.D., and whether he will be willing or able to keep fellow GOP colleagues in line.

Another critical factor may be any push by Senate leadership for the "nuclear option" that would alter chamber rules and bring down the number of votes needed to invoke cloture. Senate Democrats now have a 55-person majority, including two independents who will caucus with the party, and leadership could use that number as the new vote threshold needed to avoid a filibuster, observers said.

"If they do this, then there's very much a chance that Sen. Johnson could have an opportunity to be more active," said Brandon Barford, vice president at ACG Analytics and a former Hill staffer.

Even so, Barford cautions that Democrats would still need to work with the GOP to get a Dodd-Frank corrections bill or other legislation signed into law.

"If the nuclear option is used, then moving forward you need to have Harry Reid get along extremely well with [House Speaker John] Boehner. The leaders have to reach an agreement and keep the agreement," said Barford. "You have to carefully craft the amendment tree, and have a managed package that includes at least some things Republicans want, and keeps things out that Democrats don't want."

The Banking Committee could also make progress on other priorities, like housing finance reform. Few are hopeful that Congress will pass a comprehensive bill anytime soon, but observers say the issue could start gaining more traction in the next Congress.

"I anticipate that there will be continued attention on foreclosures, and they might take a fresh look at the GSEs and housing finance reform," said Friend.

In particular, Friend said lawmakers are likely to wait to see how the CFPB's qualified mortgage rule, which is expected out by January, and the interagency risk retention plan, which is due afterward, affect the market.

"Those will be extremely important in terms of trying to provide some certainty to the private sector," she said. "That's probably the first shoe to drop. Does that provide enough certainty for the private sector to engage again, or will they hang back until Congress deals with housing finance reform more broadly?"

Boltansky added that he's hopeful other bills that stalled this term could pass next year, including a housing bill sponsored by Sens. Robert Menendez of New Jersey and Barbara Boxer of California that would make refinancing easier for some homeowners.