Obama Can Rein In Banks Without Going Through Congress

It's been hard for the public to accept that the same big banks that had a hand in crippling the economy are churning out record profits and letting their executives take home whopping bonuses.

President Obama also seems uneasy about this turn of events, or at least what he perceives to be its root cause: risky trading.

"More and more of the revenue on Wall Street is based on arbitrage -- trading bets -- as opposed to investing in companies that actually make something and hire people," Obama told Marketwatch radio on Wednesday. "We have to continue to see how can we rebalance the economy sensibly, so that we have a banking system that is doing what it is supposed to be doing to grow the real economy...That is an unfinished piece of business."

It certainly is an unfinished piece of business, but not the kind that requires legislation. Remember Dodd-Frank? The nearly 900-page law is full of reform measures to address the sort of reckless risk-taking that continues to ruffle Obama's feathers. Most measures are already in place (we'll go into that later), but some have languished in regulatory limbo (again, we'll go into that later).

Putting the 2010 Dodd-Frank law to work has been a monumental struggle, fraught with contentious battles in Congress to weaken nearly every measure. Wall Street's relentless lobbying campaign pressured regulators to dial down some of the reforms, but the overhaul law still has a lot of strength.

"There is tremendous authority to restructure Wall Street banks that is already there in Dodd-Frank," said Marcus Stanley, policy director of Americans for Financial Reform. "The regulators have the statutory authority. The question is whether they are going to use that authority."

Here are three specific statutes in Dodd-Frank that could have real impact on Wall Street:

Incentive-based compensation

This provision (a.k.a: Section 956) says banks, credit unions, investment advisers, brokerage firms and other financial institutions have to restructure pay in a way that doesn't encourage risk-taking.

"We continue to see a lot of these banks take big risks because the profit incentive and the bonus incentive is there for them," Obama said during his Marketplace interview.

There is no denying that big bonuses are back on Wall Street. The New York State comptroller's office said employees pulled in an average bonus of $164,530 last year, returning them to the highs of 2008. A lot of the increase was pegged to delayed payout from previous years, a strategy firms have used to keep risky behavior in check. Banking regulators issued guidance a few years back to encourage firms to tie bonuses to performance.

Not every company is cautious about compensation structure, which is why Congress included the incentive-based provision in the first place.

"Bankers engage in these risky trades because they’re paid to do so, and this statute provides power to prevent that," said Bart Naylor, a financial policy advocate with the nonprofit group Public Citizen.

A group of regulatory agencies, including the Securities and Exchange Commission, proposed a rule in 2011. It called on firms with more than $50 billion in assets to defer at least half of incentive-based pay for three years and adjust that compensation to reflect company performance. The proposal also included bonus restrictions for executive officers and folks who could leave the company open to substantial losses, such as traders.

But the proposal has been stuck in the final drafting phase. There are six agencies (that's a lot of people), with varying perspectives and demands, involved in writing the rule. People close to the process say too many cooks in the kitchen is spoiling the stew, but  Obama could nudge the agencies to pick up the pace and get it done.

Volcker Rule

Named after former Federal Reserve chairman Paul Volcker, this provision, arguably the centerpiece of Dodd-Frank, requires banks to spin off their trading arms and prevents them from trading for their own benefit.

It took three years for regulators to complete the rule as government infighting and intense lobbying by banks slowed the process. But it got done. Now, it's a matter of enforcement.  This is where the president could insist that regulators follow the rule to the letter of the law, without concessions to investment banks.

In anticipation of the rule, many large banks, such as JPMorgan Chase and Goldman Sachs, have shuttered or spun off their proprietary trading desks, as well as their private-equity arms and hedge funds. Trading revenue declined 16 percent in the first quarter compared to the same time a year ago, according to a recent report from the Office of the Comptroller of the Currency.

Banks have generally reduced their exposure to derivatives, but don't let that fool you, said Dennis Kelleher, who heads the watchdog group Better Markets. "Wall Street took down the proprietary trading sign and just moved the business into different parts of the bank," he said. "They are trying to get away with prop trading  by calling it something else and hoping the regulators won't enforce the law."

Resolution authority

Dodd-Frank gave the Federal Deposit Insurance Corp. the authority to wind down failed firms and instituted so-called living wills, a blueprint for how banks could be resolved. Regulators can require banks to restructure or streamline their operations if their wills aren't up to snuff.

"There hasn't been very much transparency into that process," Stanley said. "It seems regulators are focusing on ways to try to finance the banks during a resolution, but we haven't seen, at least in a publicly transparent way, much focus on simplifying the banks activities so that they're less complex and easier to manage if they fail."

Reform advocates say now is the time for regulators to take steps to reduce the complexity of banks, with moves such as simplifying the labyrinth of subsidiaries.

On Wednesday, Obama said one of his key focuses over the last couple of years has been "to make sure that we've got a circuit breaker so that if certain banks are making bad decisions, they are less likely to bring down the entire system."

It seems like we've got that circuit breaker in place -- but need regulators to make sure Wall Street doesn't fiddle with it.

Danielle Douglas covers the banking industry for The Washington Post.