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Sheldon Richman is the editor of The Freeman and TheFreemanOnline.org, and a contributor to The Concise Encyclopedia of Economics. He is the author of Tethered Citizens.

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The Goal Is Freedom | by Sheldon Richman

Regulatory Magic

The more the rules change the more they stay the same.

President Obama has signed the financial industry regulatory overhaul – officially, the Dodd-Frank Wall Street Reform and Consumer Protection Act. Predictably, what he said about it cannot possibly be true.

For example: “[T]hese reforms represent the strongest consumer financial protections in history.  And these protections will be enforced by a new consumer watchdog with just one job: looking out for people – not big banks, not lenders, not investment houses – looking out for people as they interact with the financial system.”

And: “[B]ecause of this law, the American people will never again be asked to foot the bill for Wall Street’s mistakes. There will be no more tax-funded bailouts — period. If a large financial institution should ever fail, this reform gives us the ability to wind it down without endangering the broader economy.  And there will be new rules to make clear that no firm is somehow protected because it is ‘too big to fail,’ so we don’t have another AIG.”

Note that Obama did not promise to spare the taxpayers from having to foot the bill for the government’s mistakes. He and the members in Congress know better than to make that howler of a promise.  Nevertheless, the magnitude of the whoppers being told about this law is astounding.

The government cannot deliver on pledges to protect consumers in the financial markets and to shield taxpayers from bailouts. In the first instance — consumer protection — financial instruments are inherently complex and government attempts to shelter less-sophisticated investors and borrowers from all danger would either require control of products to the point of prohibiting things people want or inundating them with information until they ignore all of it because of the sheer volume. Alas, what the new law will provide consumers is a false sense security – and that’s worse than none at all.

As for the new watchdog agency, we have cause to wonder why the law of regulatory capture should suddenly stop operating or why the door between government and industry should suddenly stop revolving. (It’s still spinning in the energy industries.)

As for taxpayer bailouts, the new law leaves plenty of room for the FDIC to borrow money in order to keep favored creditors of failing big companies afloat. The wind-up fund that’s supposed to be financed by banks and other firms will of course be filled by their customers.

Most generally, the new law exhibits the standard governmental hubris. Who truly believes that an army of necessarily myopic bureaucrats can ever know enough to 1) anticipate a systemic crisis and 2) do something intelligent about it in a timely way? The more centralized the power the more vulnerable we average taxpayers are. Mistakes are system-wide. The virtue of a freed market is not that it’s unregulated (it’s not) but that its radically decentralized.

So anyone who thinks this 2,300-plus page monstrosity has a chance to prevent another large-scale financial failure has been watching too much network news. Two pieces of information are pretty much all you need to see through the hype. First, in all those pages you will not find the words “Fannie Mae” or “Freddie Mac” (or their official names), the two government-sponsored enterprises (that’s a term of art) that had so much to do with encouraging the hollow mortgages that underlay the flimsy securities and credit default swaps that made the financial system so fragile these last several years. (Search our archive for many articles about this.) When Fannie and Freddie couldn’t pay their bills a couple of years ago, the government took them over, proving that the widely assumed implicit government guarantee of their obligations was real after all. They are still in business buying up mortgages though they need regular infusions of the Treasury’s borrowed money. Before it’s over the bailout cost is expected to at least hit the $400 billion cap, though Obama has unilaterally promised unlimited financial aid.

The second important fact is that the chief movers of this law, Sen. Chris Dodd and Rep. Barney Frank, are the two biggest congressional champions of Fannie and Freddie. Whenever anyone expressed concern about the poor condition of the GSEs’ books, Dodd and Frank could always be counted on to fend off the threat of scrutiny. They would insist it was all part of an altruistic cheap-home-ownership program, but too much money was being made from government intervention to take that seriously. Dodd and Frank were aided by Fannie’s and Freddie’s well-connected lobbyists and campaign contributions. All told, they spent $200 million from 1998 to 2008. Fannie and Freddie are the ultimate Washington insiders. “They’ve stacked their payrolls with top Washington power brokers of all political stripes,” the Politico reported. Altruism, indeed.

It’s Dodd, by the way, who said of his bill, “No one will know until this is actually in place how it works.” And Frank is ready to submit new legislation to fix any mistakes in the law. We’re about to have a laboratory experiment of the law of unintended consequences.

Obama said: “For years, our financial sector was governed by antiquated and poorly enforced rules that allowed some to game the system and take risks that endangered the entire economy.” The implication is now we have up-to-date rules that will be vigorously enforced. But he can’t possibly know that. Why not? Because in writing the law, Congress did not write the rules. It merely handed that job off to unelected, unaccountable bureaucrats in a variety of agencies. In a word, Congress delegated its legislative authority, which has no authority to do. (Not that anyone cares.)

The Wall Street Journal reports,

In a recent note to clients, the law firm of Davis Polk & Wardwell needed more than 150 pages merely to summarize the bureaucratic ecosystem created by Dodd-Frank. …[T]he lawyers estimate that the law will require no fewer than 243 new formal rule-makings by 11 different federal agencies. [Emphasis added.]

The SEC alone, whose regulatory failures did so much to contribute to the panic, will write 95 new rules. The new Bureau of Consumer Financial Protection will write 24, and the new Financial Stability Oversight Council will issue 56. These won’t be one-page orders. The new rules will run into the hundreds if not thousands of pages in the Federal Register, laying out in detail what your neighborhood banker, hedge fund manager or derivatives trader can and cannot do.

In other words, your misrepresentatives have no idea what they just passed.

The Journal adds that “the biggest financial players aren’t being punished or reined in. The only certain result is that they are being summoned to a closer relationship with Washington in which the best lobbyists win, and smaller, younger firms almost always lose.”

The more the rules change the more they stay the same.

There Are 12 Responses So Far. »

  1. Well done again Mr. Richman. I particularly liked the comments regarding Fannie, Freddie, and the politicians because I believe that this financial crisis was a perfect example of Austrian Business Cycle. It is therefore troubling that the Congress and the Fed are starting it all over again.

  2. You can suggest, as I think you are doing, that our foolish government is stumbling around and running into problems aimlessly as only a big government can. Take a jump, Sheldon, and figure out why they’re doing these things whilst they are contrary to all benefit. Well… someone must be benefiting, eh?

  3. The role of government in this and past crisises is obvious. We know that the government is not going to police itself; that’s a given. But what about we free enterprisers, free marketers, when are we going to admit we have some very bad actors that are unscrupulous in how they operate in the marrketplace. If we are not willing to develop means to police ourselves then how can we complain when the government decides to do it for us?

  4. [...] Filed under: Amendments,Economics,Government,Politics — Heidi @ 12:57 PM Regulatory Magic The more the rules change the more they stay the [...]

  5. Most people abhor the complexities of what is offered by legislators as “law”, and rightly so. Mechanical system devised by trained engineers and built by technicians generally “govern” behavior of the system through feedback; the feedback system compensates for conditions that are departures from “normal” or specified operating parameters. If, during normal operations, a system tends to the max or min of specified control limits, the feedback (positive or negative) system kicks in to preclude attainment of operating conditions harmful to the system (and humans). Thus, a properly operating system is built with explicit controls for the nominal range of operations.

    Would that our human governors acknowledge a need for these feedback mechanisms, a more humane and just system could be operating. Herbert Spencer and others identified the nefarious nature of legislation without proper feedback mechanisms. In his essay “Over Legislation”, Spencer berates the fact that legislators – ingnorant of the consequences of their actions – tend to respond to negative feedback with exactly the opposite action required to maintain stability of the system. More legislation intended for “…the removal of a special error is inevitably followed by the growth of other errors of the same genus.” Our political leaders are blind to the past and, although the basic tenets of the principle of unintended consequences are free for the taking, they continue their ignorant ways at the expense of the governed.

    The time is drawing near when free people will no longer submit to this tyranny of ignorance in the guise of nanny. Free men will be called to buck up and own their civic responsibilities…or the state will destroy itself, and all opportunity of the people for life, liberty and property.

  6. “or the state will destroy itself”

    You say that like it’s a bad thing.

  7. I search for those who tell the truth as they see it. Sadly that does not include the President of the United States of America.

  8. The new and perhaps more-vigorously enforced rules only set the stage for a broader, deeper, and more-disastrous crisis in the future, and sooner.

    A helpful response would be to eliminate rules. Which rules doesn’t matter very much, but more rules (eliminated) would be better than fewer, and all of them best of all.

    But that would take too much power away from Dodd, Frank and their ilk. Count on them to act to garner more power, regardless of how much harm that will bring.

  9. You can be sure it’ll contribute to the left taking over our economy. They’re well on the way already. November can only sloww it down.

  10. This is just a test comment

  11. Another test

  12. It is the height of arrogance for Frank to coauthor an overly invasive set of laws controlling behavior he instigated and advocated. He was one of the economic illiterate that was pushing Fannie, Freddie, and any bank that would listen to extend unsecured credit to anyone and everyone regardless of if they could pay it back and now he wants to protect us from the behavior he championed?

    Meanwhile the “fourth branch of government” plods along mindlessly regurgitating propaganda without any attempt to examine the economics.

    Pay no attention to the Senator behind the curtain. Lord knows the news isn’t.

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