After fending off most challenges to its independence and winning new powers to oversee big financial firms, the Federal Reserve has emerged from a bruising debate on the overhaul of U.S. financial rules as perhaps the pre-eminent regulator in the sector. But that could only bring it added blame if things go wrong again.
Just a few months ago, amid populist anger at the Fed for failing to prevent the financial crisis of 2008 and bailing out Wall Street, Congress was talking of stripping the central bank of its supervisory oversight of banks or forcing it to submit to congressional audit of its interest-rate decisions.
Instead, the new law gives the Fed more power and a better tool box to help prevent financial crises. It will become the primary regulator for large, complex financial firms of all kinds, such as American International Group, the insurer which built a massive derivatives portfolio that regulators didn’t see until it was too late.
This isn’t the first time Congress has expanded the Fed’s role. After the Great Depression, it passed the Employment Act in 1946, charging the Fed with averting the huge unemployment seen in the 1930s. After the double-digit inflation of the 1970s, the Fed was formally given a dual mandate of promoting both price stability and maximum sustainable employment. In the wake of the latest financial crisis, the Fed is effectively being told to add the maintenance of financial stability to its responsibilities.
The risks, however, are that the Fed still won’t be able to prevent another crisis, and that it will be an even clearer target for blame if that occurs. “The bill has good intentions, but I’m worried about its implementation. If I were the Fed, I’d be seriously worried about being left holding the bag,” said Anil Kashyap, a professor at the University of Chicago’s Booth School of Business.
The Fed, of course, still shares responsibility for overseeing the financial system with the Federal Deposit Insurance Corp., the Securities and Exchange Commission and other agencies with which it sits on the new Financial Stability Council. And in a change, the new law requires the Fed to get the Treasury’s go-ahead before using its extraordinary authority to lend to almost anyone, and limits loans to sectors of the economy rather than individual firms, such as Bear Stearns or AIG.
But the Fed’s role is in most respects expanded by the legislation. The central bank will decide whether the council should vote on breaking up big companies if they threaten the stability of the entire financial system. It also will be able to force big financial companies—not just firms legally organized as banks—to boost their capital and liquidity. It will have the power to scrutinize the largest hedge funds.
All this could suck the Fed into political controversies. A decision to break up a big bank because of its size likely would subject the Fed to conflicting pressures from lobbyists and politicians. “It could give a lot of people reason to interfere,” says Thomas Cooley, professor at the New York University Stern School of Business.
The Fed’s role in the rescue of AIG and Bear Stearns, and its acquiescence in letting Lehman Brothers fail, led the public to question the Fed’s powers and prompted Congress to consider curtailing its powers. One threat came from legislation sponsored by long-time Fed critic Ron Paul (R., Texas), author of the best-selling book “End the Fed,” who sought to expand the authority of the congressional Government Accountability Office to audit the Fed. The new law expands the GAO’s auditing authority but avoids nearly all provisions that alarmed the Fed.
In the end, the Fed’s emergency lending during the 2008 crisis will face a one-time audit to be published by Dec. 2010 and it will be required—with a two-year lag—to reveal which banks borrow from its discount window. With lobbying from several presidents of the 12 regional Federal Reserve Banks, the Fed also fought off proposals to remove it from supervision of the large number of smaller banks.
“Basically, they ended up winning almost on everything that counts,” says Laurence Meyer, a former Fed board governor now with economic consulting firm Macroeconomic Advisers LLC.
The Fed will surrender its responsibilities for consumer-finance regulation —never central to its mission or to its chairmen—which will be shifted to a new independent agency. It will be housed and financed by the Fed, but the central bank won’t have any authority over it.
In a sign of the greater importance assigned to financial stability, the Federal Reserve Board will get a second vice chair position, this one responsible for supervision, to be chosen by the White House. One likely contender is Daniel K. Tarullo, a Georgetown University law professor who was President Barack Obama’s first appointee to the Fed board and is the point person on bank regulation. He already has been pulling control of bank supervision to Washington from the New York and other regional Fed banks, which oversees the big Wall Street firms.
Congress also gave the Fed responsibility for setting the fees merchants must pay banks when customers use their debit cards, another political hot potato. The Fed will have nine months to collect data and decide on a ceiling for such fees that must be “reasonable and proportional to the cost of processing those transactions.” During this time, there’s certain to be a lobbying war pitting retailers and banks. The Fed faces criticism from consumer groups if it sets the fee threshold too high or anger from banks if the level is set too.