Will FSOC Be a Priority for Treasury Pick Jack Lew?

WASHINGTON — Recently departed Treasury Secretary Timothy Geithner was clearly dedicated to making the Financial Stability Oversight Council work, despite fears that the group of financial regulators would prove unwieldy and ineffective.

The question remains, however, whether his nominated successor, Jack Lew, will be as committed to the council.

Ever since the Dodd-Frank Act created the council, many have been skeptical that it could function. They cite its sheer size — 10 voting members and five nonvoting members — and its diversity, with the agencies represented covering credit unions, insurance and banking. Yet regulators have said the group has been helpful in airing contentious issues and taken steps toward designating systemically important nonbanks and reforming money market mutual funds.

Whether that early success continues, however, may depend on the Treasury secretary, who chairs the council. That has left some observers wondering how focused Lew will be on the group, especially given other pressing fiscal issues he must address.

"This will be interesting to see," said Satish Kini, co-chair of the banking group Debevoise & Plimpton. "It is very much an open question of how attentive he will be with FSOC, whether he will delegate a greater responsibility to his staff or to the deputy Treasury secretary. I think we will probably see Secretary Lew less involved in some of the details it appears that Secretary Geithner was."

So far Lew, known almost exclusively for his budgetary work, remains a blank slate concerning critical banking issues, including the implementation of Dodd-Frank, whether "too big to fail" has been adequately addressed and mitigating systemic risk. The first glimpse of his views on those and other issues will likely come at his confirmation hearing, which has yet to be scheduled.

"How he handles FSOC and other things will be signaled by his confirmation hearings," said Cornelius Hurley, director of the Boston University Center for Finance, Law & Policy. "That's why I'm hopeful when asked the questions in his confirmation hearings, he doesn't spout the party line that Dodd-Frank fixes 'too big to fail' and the CFPB has to have one head. That's not helpful."

That makes it unclear how Lew will preside as chairman and whether he will put equal emphasis on the council as Geithner.

"The chairman does affect the agenda, and we know little about his thinking on broader financial market issues," said Ernest Patrikis, a partner with White & Case and former general counsel of the New York Fed. "Money market mutual funds, 'too big to fail,' whatever the grand issues are on the table, we don't have an idea."

Lew's attitude toward the FSOC may ultimately determine the council's effectiveness, observers said. If he embraces and uses it, it could bolster its reputation that it is a key apparatus to address financial issues. If he sidelines it or delegates it to staff, it could ultimately cripple the council's influence, at least until the next Treasury secretary comes along.

One of the first tasks facing him, left over from Geithner's tenure, will be completion of designating nonbank financial companies as systemically important and putting forth recommendations to reform the money market mutual fund industry.

While Lew will be given some leeway to get up to speed on various issues, there will be pressure to act in order not to undermine the credibility of the council and the remaining work left on its Dodd-Frank to-do list.

"Geithner got it in place more or less the way he wanted it and they began to organize and issue decisions," said Karen Shaw Petrou, a managing partner at Federal Financial Analytics. "But a number of them are keyed up like the nonbank systemic designations. If that just dribbles out, the Dodd-Frank systemic framework will be a lot less credible, even if Congress fails to formally disassemble it. It is a make-or-break in terms of moving forward the systemic regulatory agenda to make it a credible one."

Petrou said Lew may let others handle the FSOC, at least until primary issues, including the debate over the budget and debt ceiling, are addressed.

"Even under Secretary Geithner in the last few months, the fiscal issues have been the top priority and understandably so, because the financial health of the country depends on fiscal sanity and getting the latter isn't easy," she said. "My expectation is that the deputy secretary, whoever that is that will be appointed, will be someone with a financial policy background and that he or she would take that on as a more full-time responsibility."

Meetings with lawmakers on Capitol Hill ahead of Lew's confirmation hearing have at least offered initial impressions on the priority he will place on following through with the administration's regulatory reform effort.

"It is clear to me that he is committed to finishing the job on Dodd-Frank financial reform, especially implementing a strong Volcker Rule that will put a firewall between hedge-fund-style trading and traditional banking," Sen. Jeff Merkley, D-Oregon, said in a statement after his Feb. 1 meeting with Lew.

Sen. Sherrod Brown, D-Ohio, endorsed Lew as the president's choice to head the Treasury, saying he's "clearly qualified for the job and has a long and impressive record of public service."

In his Jan. 24 meeting with Lew, Brown said, "I did raise my concern with Washington's long held bias towards Wall Street, particularly the largest megabanks that have only grown bigger since the financial crisis," but didn't give any indication on Lew's particular view on the issue.

Senate Banking Committee Chairman Tim Johnson said after his Jan. 29 meeting with the nominee that Lew "will be an outstanding Treasury secretary."

"He shares my commitment to sustaining and strengthening the economic recovery and providing certainty through implementation of Wall Street reform," Johnson said. "The next Treasury secretary already has his work piling up with ongoing budget negotiations, the debt ceiling debate, and continued implementation of Wall Street reform."

Observers will also be watching whether Lew is able to step above the political fray to help address outstanding regulatory reform issues, especially on looming questions of "too big to fail."

Most Democrats maintain that Dodd-Frank cured the "too big to fail problem," even though many observers question whether it has actually been eliminated. On the other hand, Republicans argue the reform law solidified "too big to fail," yet have failed to offer an alternative to replace the current batch of rules.

"It's like a Mexican standoff going on with two worlds, but neither one of them is the reality of the situation," Hurley said. "What I'm hoping is that Jack Lew can rise above those two parallel universes" and not tout the administration line by saying all debates are over. "It doesn't sound like very much, but that would be very, very refreshing for him to say, 'We're open to all ideas and we recognize that there may be more work to do.' "

Lew may have plenty of opportunity to do just that as House Financial Services Committee Chairman Jeb Hensarling, R-Texas, and several senators, including Brown and David Vitter of Louisiana, plan to intensify their scrutiny of Dodd-Frank.

If so, Lew will be called upon to play defense for the administration, and pointing to actions by the FSOC may prove a key part.

"Holding meetings isn't the issue," Petrou said. "It's making the hard decisions, pushing the panel towards action to give the Dodd-Frank framework the credibility that is going to be sorely tested in Congress this year. Treasury is going to be critical to that, along with the Obama administration, because the House and several members of the Senate are going to push very, very hard on the issue of Dodd-Frank doesn't work because 'too big to fail' still remains."