What is the Worst Aspect of Dodd-Frank?

The Dodd-Frank Act is the most substantial piece of financial legislation since the Great Depression, and also one of the least popular among bankers. But not everyone agrees what part of Dodd-Frank should be thrown out the window or changed. Is it the Volcker Rule? The Durbin amendment? How about the Consumer Financial Protection Bureau? Bank Director asked a group of attorneys to answer that question.

If you could change one thing in the Dodd-Frank Act, what would it be?

I would not have established the Consumer Financial Protection Bureau (CFPB). It was not community financial institutions that initiated unfair, deceptive or abusive consumer practices, yet the trickle-down effect on smaller banks from enforcement endeavors against larger organizations will have a negative impact. Instead of punishing banks that did not cause the crisis with a brand new investigative arm of the government, what about focusing on the true troublemakers?

— Philip K. Smith, Gerrish McCreary Smith, PC

Title XIV of the Dodd-Frank Act has required the CFPB to substantially rewrite the substantive and procedural rules governing the U.S. residential mortgage system, including application, underwriting and servicing of home mortgage loans. As part of that statutory mandate, severe limitations were placed on the origination of mortgages, including the creation of so-called qualified mortgages and rules on loan originator compensation. To enforce those limitations, penalties were expanded for originators, servicers and assignees of mortgages—without a statute of limitations. The optimum change would be to modify these mortgage rules in a manner that would facilitate the availability of credit by lenders by providing greater flexibility in the types of loans permitted, as well as limiting the liability for originators and assignees for violations. Failure to do so may inhibit the availability of credit to the home mortgage segment.

— Joe Lynyak, Pillsbury Winthrop Shaw Pittman LLP

The Dodd-Frank Act pretends to eliminate so-called too big to fail while actually enshrining it (using different words) in federal statutory law. Worse, the Act expands the scope of potential bailouts to include nonbank financial companies. Title I of Dodd-Frank, which creates the Financial Stability Oversight Council, greatly multiplies the degree of moral hazard and creates structural incentives for institutions not currently large enough to be considered Systemically Important Financial Institutions (SIFIs) to expand so as to aspire to join that exclusive club. From a public policy viewpoint, this is simply awful. Adding yet another unwieldy federal bureaucracy—the Financial Stability Oversight Council—to the mix is also fundamentally misguided. Outright repeal of Title I would be a vast improvement. Secondly, while the creation of a federal agency devoted to consumer financial protection may have been inevitable, having a large bureaucracy with a broad and diffuse legislative mandate and virtually unlimited funding seems misguided. At a minimum, the CFPB should be made subject to congressional oversight and the appropriations process.

— Keith Fisher, Ballard Spahr LLP

That’s an easy one—the Volcker Rule! Hugely reactionary and draconian, the post-Depression idea that banks should be kept almost entirely out of proprietary trading and private fund investment is epic silliness. Since Gramm-Leach Bliley, plenty of organizations handled their freedoms in these areas well. Instead, why not ban mortgage lending? There has to be a better way to address the perceived risks of the banned Volcker Rule activities. The risk to the economy created by the law (as well as the risk of further boggling the implementation of it) outweighs any possible benefit. Adopted more than three years ago and still waiting for final regulations (or better yet re-proposed regulations)—there’s a reason for that kind of delay—it’s a bad law!

— Mark Nuccio, Ropes & Gray LLP

I would add a provision that expressly permits the agencies to tailor the law, either by regulation or on an individual institution basis, to ensure the rules to which an institution will be subject are appropriate for that institution. Dodd-Frank is a very broad, sweeping law, and that necessarily will result in it having unintended consequences for some institutions. For example, should insurance companies and other nonbank-centric financial services firms that either are designated as non-bank SIFIs or that retain a reasonably small bank presence be subject to the same capital rules as bank-centric institutions?

— Gregory Lyons, Debevoise and Plimpton LLP