It's been two years since President Obama signed the Wall Street-reform bill that has come to be known as Dodd-Frank. So has it succeeded in creating "safer and more modern rules of the road for the financial industry," as Treasury Secretary Timothy Geithner claims?
Good question. To a large extent, we really can't answer, even though a full 24 months has elapsed since Dodd-Frank became law. Why? Because many of the rules remain unwritten, creating tremendous uncertainty among affected firms and consumers. Dodd-Frank didn't so much create new rules as create the institutions that would set up the rules. And most of those rules don't yet exist.
According to Jonathan Macey of Yale Law School, "Dodd-Frank is not directed at people. It is an outline directed at bureaucrats and it instructs them to make still more regulations and to create more bureaucracies." In essence, Congress punted. Lawmakers outsourced their constitutional duties -- and on an important issue that affects millions of people.
What happens, then, to accountability? To the rule of law? "The Constitution creates three branches of government, yet administrative agencies and vast bureaucracies operate in practice as a headless fourth branch," Heritage Foundation scholar Matthew Spalding writes in his new book Changing America's Course.
But don't assume, just because we haven't felt the full effect of Dodd-Frank, that it's causing no harm now. The uncertainty caused by fear over what the bureaucrats may or may not do is hardly helping an economy struggling its way through a fragile recovery still rife with unemployment.
Plus the rules that the legislation did actually spell out have hardly been helpful to consumers. Consider bank fees, to take one of the most obvious examples. Dodd-Frank included a provision that put the federal government in charge of setting the "interchange" fees that retailers pay the banks for processing debit-card transactions, even though such fees had nothing to do with what caused the financial crisis of 2008. So the Federal Reserve last year dictated limiting what banks can charge for processing debit-card purchases, from an average rate of 44 cents a transaction, to seven to 12 cents -- a drop of as much as 84 percent.
To consumers, this may sound great. But the banks, not surprisingly, weren't about to shrug off the loss of billions of dollars a year. So some banks are now charging fees for debit-card use. Others no longer offer free or low-cost checking accounts. In the end, who winds up in the crosshairs of this bogus, big-government solution? Not the big banks. Consumers.
Perhaps the biggest failing, when it comes to Dodd-Frank, is something that lawmakers didn't do. In their zeal to persecute Wall Street, they overlooked two of the biggest players in the crash of 2008: Fannie Mae and Freddie Mac. Before the housing collapse, these two "government sponsored enterprises" controlled as much as half of the nation's residential mortgage market. Since then, both companies have gone bankrupt, and rely on the federal government to keep them alive with billions in taxpayer money.
Fannie and Freddie have always imposed risks on taxpayers and the financial system. It's time for genuine, effective financial reform. They should be phased out, with their remaining assets broken up (if they can stand on their own) or sold off (to private banks and investors).
As for Dodd-Frank, it's time for repeal. Financial industry expert David John calls it "trash compacter legislation filled with heavy-handed, counterproductive provisions, many of which had only a loose connection to the problems raised by the financial crisis." There's no fixing it.
If we want "safer and more modern rules of the road for the financial industry," in Geithner's words, we need to recognize Dodd-Frank as a dangerous dead end.
Ed Feulner is president of The Heritage Foundation (www.heritage.org).