WASHINGTON – By law, Target Corp., Best Buy Co. Inc. and thousands of other retailers, restaurateurs and convenience-store operators should be paying much lower fees to banks, credit-card companies and credit unions for debit-card transactions.
Instead, the so-called “swipe fee” limit Congress ordered in 2010 has been lobbied, reset higher, litigated lower and recently appealed to a higher court.
Today, more than three years after Congress passed the Dodd-Frank Wall Street Reform Act, the swipe-fee saga has gone the way of much of the sweeping financial overhaul brought on by the Great Recession: It hangs in limbo as the federal government’s rulemaking process seemingly trumps the will of Congress.
Federal agencies have blown deadlines for 63 percent of reform rules with implementation dates, according to a recent study by the Davis Polk law firm in New York. Of 175 overdue rules, 64 have not even been released. Meanwhile, 118 other rules had no deadlines whatsoever.
Ed Mierzwinski, consumer program director of the Public Interest Research Group (PIRG), said an old lobbying strategy is being perfected by special interests in the 21st century: “If you can’t kill the bill, kill the rule.”
The swipe-fee cap was supposed to move billions of dollars from banking coffers to consumer pockets by cutting retailers’ business costs, but remains tied up in litigation. At an average of more than 40 cents a transaction, the swipe fee generates more than $15 billion a year, according to estimates.
Momentum to execute Dodd-Frank rules has been so slow that President Obama summoned several agency heads to the White House on Aug. 19 to encourage them to finish implementing critical parts of the law to protect investments of average Americans from another financial meltdown. “I’m glad the president is pushing the agencies,” Sen. Amy Klobuchar, D-Minn., said. “It’s time to get this done.”
The banking industry’s “friends” in Congress have restricted the budgets of agencies trying to implement reform, said Sen. Al Franken, D-Minn. “We’re seeing a shortage of resources that I think is deliberately obstructionist,” Franken said.
Annette L. Nazareth, a former Securities and Exchange commissioner and now a partner at Davis Polk, takes a different view, contending that she has seen little “delay for delay’s sake.” The legislation is complicated, she said, and difficult to implement quickly.
“Everyone on Capitol Hill knew the deadlines [set in the law] were not doable,” she said.
Challenges used to be rare
Fred Emery has been part of the regulatory rulemaking process for half a century, first as a government employee and since 1980 as a consultant to government agencies that hire his private business, the Regulatory Group Inc. Before the 1970s, Emery said, rulemaking was more secretive and harder to challenge in court. Judicial rulings in the late 1960s opened up federal rules to pre-enforcement challenges.
“There have been thousands of cases since,” he said.
Fear of lawsuits led to more open rulemaking, Emery believes, but it also has slowed the process considerably.
When the Securities and Exchange Commission writes rules, officials spend “a huge amount of time in the general counsel’s office to minimize the risk of being subject to a challenge,” Nazareth said.
When federal officials settle on a rule, agencies draft proposals and invite public comments for months — a process that can lead to changes to the rules and start another period of public engagement.
PIRG’s Mierzwinski said that lobbyists exploit the wariness of suit-shy regulators and the technical details of legislative directives. “After Congress passed [Dodd-Frank], the regulators looked out their windows and saw that the siege towers set up by lobbyists had moved from the Capitol to their offices,” he said.
Mierzwinski points to a part of the law known as the Volcker Rule as a prime example of delays based on technical issues. Congress ordered the rule to keep financial institutions from investing deposits in certain speculative ways that helped create the Great Recession. Because five agencies must reach consensus on the Volcker Rule, industry lobbyists can easily tie it up by loading each agency with questions and comments, Mierzwinski said.
‘A little frustrated’
Emery said lobbyists simply are doing their jobs. “Any company of any size has an association that represents them,” he said, so many viewpoints are heard. “I think [lobbyists] are more aggressive. And they have more money.”
Franken is learning about this as he tries to convince the SEC to draft a rule changing the way banks and brokerages get their financial products rated.
In the run-up to the recession, Franken said, rating agencies gave AAA ratings to mortgage-backed securities that were “junk” because the agencies knew high ratings would bring them future business.
A piece of Wall Street reform proposed by Franken was supposed to deal with these conflicts of interest. A two-year SEC study concluded in December 2012 that there are conflicts that should be addressed. In May, the SEC held a roundtable at which a number of representatives of rating and financial businesses opposed Franken’s plan to have an independent government board oversee how these financial products are rated. Four months after the roundtable, the SEC hasn’t proposed a rule.
“I’m a little frustrated at the pace,” Franken said. “We’ve had the report. The conflict of interest still exists.”
Meanwhile, not even the chairwoman of the SEC has been able to give the senator a time frame on a new rule.
According to an SEC spokesman, “Commission staff is carefully considering the various viewpoints presented during the roundtable and in related letters in formulating a recommendation to the commission.”
That might be due diligence, Emery said, but in some cases, “if you try to answer all the questions, the rule never gets out the door.”