Financial Regulatory Relief: Approaches for Congress, Regulators, and the Administration

Summary

The 2007-2009 financial crisis led to significant changes in financial regulation, but critics argue that the burden these changes have imposed now exceeds their benefits. Congress and the Administration are considering financial regulatory relief from various postcrisis regulatory changes, including the Dodd-Frank Act (P.L. 111-203). This report provides an overview of the options available to pursue that goal.

Approaches for Congress

Congress can mandate that regulators provide relief through legislation. Most relief legislation likely would follow the normal legislative process. For example, H.R. 10, a wide-ranging regulatory relief package, was passed by the House on June 8, 2017. Two special legislative procedures may be available in limited circumstances, however.

The Congressional Review Act (CRA, 5 U.S.C. §§801-808) provides expedited procedures for Congress to overturn recently promulgated regulations. To date, the 115th Congress has used the CRA to overturn one Dodd-Frank Act rulemaking (disclosure requirements for resource-extraction firms).

The reconciliation process provides for expedited consideration in the Senate, but is intended to be limited to provisions intended to change direct spending or revenues. Only a few of the funding provisions affecting financial regulators might meet these criteria.

Approaches for Financial Regulators

The vast majority of postcrisis regulatory reforms have been issued by independent financial regulators, not the Administration. In theory, the regulators issuing any regulation could issue new regulations modifying or repealing the original, provided they have authority under the authorizing statute to do so. But to overturn a final rule that has already been promulgated, regulators must initiate new rulemaking following the standard process, generally including notice and comment procedures. In addition, applying a regulation involves judgment by regulators. Regulators can alter how a regulation is interpreted and enforced using their supervisory (e.g., regulatory guidance and supervisory letters) and enforcement powers. Until new leadership is appointed, regulators may have little desire to revisit regulations that they have issued recently under current or previous leadership.

Approaches for the Administration

On February, 3, 2017, President Trump signed an executive order to “identify any laws, treaties, regulations, [and] guidance ... that inhibit Federal regulation of the United States financial system in a manner consistent with the Core Principles.” One of the core principles is to “make regulation efficient, effective, and appropriately tailored.” The order does not revise or repeal any specific regulation, which can be done administratively only through the standard rulemaking process. Because financial regulators are independent regulatory agencies, they cannot be compelled to comply with executive orders governing certain aspects of the rulemaking process.

The Treasury Secretary has the opportunity to influence regulatory priorities through his position as chair of the Financial Stability Oversight Council (FSOC), a council made up predominantly of the federal financial regulators. FSOC has limited rulemaking authority, however. It can make recommendations to member agencies, but it cannot compel agencies to follow those recommendations. FSOC’s most notable rulemaking authority is its ability to designate nonbank financial institutions as systemically important (SIFIs).

One notable regulation issued by the previous Administration—as opposed to by an independent regulatory agency—was the Department of Labor’s (DOL’s) fiduciary rule, which requires a uniform fiduciary standard for registered broker-dealers and investment advisers when giving financial advice on retirement accounts. On February 3, 2017, President Trump issued a presidential memorandum directing the DOL to rescind or revise the rule if it “adversely affect(s) the ability of Americans to gain access to retirement information and financial advice.”

All the leadership positions at the financial regulators have fixed terms and are appointed by the President following Senate confirmation. Although most of these individuals may be removed only “for cause,” over time, these positions will become vacant, allowing President Trump to nominate candidates to fill most, if not all, of them. At present, President Trump has filled the chair of the Securities and Exchange Commission (SEC), while several other positions are vacant, including the chairs of the Office of the Comptroller of the Currency (OCC) and the Commodity Futures Trading Commission (CFTC). Most, but not all, multimember boards or commissions have statutory political affiliation requirements that give the President’s party a majority of seats but limit the number of seats that one party can hold.