Why Warren's Glass-Steagall Bill Is DOA

WASHINGTON — Elizabeth Warren's legislative attempt to reinstate Glass-Steagall may further galvanize the movement to rein in the big banks. But that does not mean her bill is going anywhere in Congress.

Analysts consider her bill — cosponsored by Sen. John McCain, R-Ariz., and two others — dead on arrival. Not only do several top policymakers view a 2013 version of the Glass-Steagall Act as inconsistent with modern finance, but many have put their stock in implementing the 2010 Dodd-Frank Act as the preferred method to fix the system. And some say yet another proposal for ending too big to fail is just diluting the issue.

"Absent another crisis or lightning striking, there's little chance" of the legislation passing right now, said Edward Mills, a policy analyst at FBR Capital Markets.

Warren, a Massachusetts Democrat, teamed up earlier this month with McCain as well as Sens. Maria Cantwell, D-Wash., and Angus King, I-Maine, to introduce the 21st Century Glass-Steagall Act. The bill aims essentially to do the same thing as the original Depression-era law, which was repealed in the nineties, by requiring firms within five years to separate commercial banking supported by government-backed deposits from their swaps and investment banking activities.

"The idea behind the bill is simple — banking should be boring," Warren said July 11.

But even though the bill has garnered media attention, its passage is a long shot. Many observers believe that when the writing of Dodd-Frank concluded in 2010, the moment passed to reinstate a firewall between an institution's traditional banking function and it riskier activities.

The Obama administration has clearly thrown its weight behind implementing Dodd-Frank, arguing that new proposals to end "too big to fail" or otherwise stabilize the financial system should be shelved — at least until regulators have finished writing rules required by the 2010 statute and they are a given a chance to work.

"There's a real feeling in the White House that, 'We've done financial reform, we need to put that behind us,'" said Mark Calabria, director of financial regulation studies at the Cato Institute and a former senior staffer on the Senate Banking Committee. "I don't think Obama wants to spend his second term debating financial reform. It's not on their radar screen. They see it as a distraction."

Senior lawmakers, including Senate Banking Committee Chairman Tim Johnson, D-S.D., have also voiced their commitment to Dodd-Frank, suggesting little appetite for debating a new regulatory overhaul so quickly after the battle over the 2010 law. Meanwhile, many reiterate the argument that the global financial system, in which diversified companies play a vital role moving capital and supporting economic activity, would be in conflict with the outdated system created under the original Glass-Steagall law.

At his February confirmation hearing, Treasury Secretary Jacob Lew called the 1930s law an "anachronism," saying that "activity in the financial world [has] gotten beyond it."

Observers note that key provisions of Dodd-Frank, which was meant for a more modern system, also would be in conflict with Warren's bill. That is particularly the case in the first two sections of Dodd-Frank, which deal, respectively, with the regulation of and resolution processes for systemically important firms.

Titles I and II of Dodd-Frank "assume the existence of the diversified financial institutions Glass-Steagall would prohibit," said Andrew Olmem, a partner at Venable and former Republican chief counsel and deputy staff director at the Senate Banking Committee. "Congress just passed Dodd-Frank, which is built around the existence of diversified financial institutions, so adopting Glass-Steagall now would be a 180-degree change from the bill it passed a mere three years ago."

Not only Lew but several others — including Federal Reserve Board Gov. Daniel Tarullo, former Rep. Barney Frank and former Sen. Chris Dodd — have suggested that Glass-Steagall would not have prevented the global financial crisis. Critics of Warren's bill also point to earlier comments she made where she appeared to concede the same argument.

"Warren herself said Glass-Steagall would not have solved the crisis," said a senior industry lobbyist.

Some argue that Warren's bill could have more traction if it was the first and only proposal out there for reining in big banks. But her bill was introduced after two other senators, Democrat Sherrod Brown of Ohio and Republican David Vitter of Louisiana, proposed legislation to require strong enough capital requirements that would effectively break up some of the largest financial institutions. Others have attempted to advance different ideas, while still others view Dodd-Frank as having ended "too big to fail."

Mills said the multitude of differing ideas makes it unlikely that Congress will enact any new approaches.

"You will not find a politician in DC who openly will support 'too big to fail,' but that's where agreement ends," he said. "Where there is wide variance is in the choices over how you end 'too big to fail.' That's what the banks have on their side: the opposition is divided into multiple solutions."

Isaac Boltansky, a policy analyst at Compass Point Research & Trading, said any of the proposals are unlikely to gain serious attention until the next high-profile blunder by a large institution — of the magnitude of JPMorgan Chase's huge trading loss last year.

"I view the Glass-Steagall legislation and the Brown-Vitter legislation as bills that are going to be put in a drawer for the next time we have a major operational failure like JPMorgan's London Whale," Boltansky said. "This legislation isn't meant to see the light of day — it's meant to be a placeholder for a broader conversation."