Court rules that there are no checks and balances

Financial Reform Newsletter

March 20, 2015

Court rules that there are no checks and balances when the Executive Branch settles cases, even those that caused the worst financial crash since 1929 and caused the worst economy since the Great Depression of the 1930s, costing the US more than $12.8 trillion: Longtime readers know that Better Markets sued DOJ over its $13 billion settlement with JP Morgan Chase. Without transparency, oversight, accountability or any judicial review, that settlement was negotiated in secret and without any meaningful public discloser. For $13 billion, JP Morgan Chase got total civil immunity and got to keep secret the illegal conduct of its executives, officers, supervisors and staff in inflating the subprime housing bubble – all as detailed in the lawsuit. Regrettably, as Better Markets stated in the press following press release, a federal district court dismissed the case on entirely procedural grounds:

“The court never considered or ruled on the merits of our lawsuit that DOJ did not have the unilateral authority to settle years of JP Morgan Chase’s egregious illegal conduct without independent judicial review. The decision sadly stands for the proposition that there are no checks and balances when it comes to Executive Branch action to settle any case on any terms without any meaningful transparency, public accountability or oversight by anyone.

“This procedural ruling makes clear that the lawsuit is not deficient, the law is: no one has standing to challenge DOJ’s actions even when senior political appointees secretly negotiate legal immunity in exchange for a $13 billion payment from the country’s largest, most politically connected too-big-to-fail wall street bank for inflating the subprime housing bubble, which lead to the worst financial crash since 1929. Such backroom deals should not be allowed in a democracy worthy of its name. We will be carefully evaluating the court’s opinion before determining our next steps.”

As The Financial Times editorialized in “The People Versus Wall Street Banks” when the lawsuit was filed,

“Whether or not its legal challenge succeeds, Better Markets has highlighted some troubling issues.”

The FT was right. The legal deck was always stacked against the lawsuit because the law discriminates against those like Better Markets seeking to protect the public interest (while privileging private corporate interests). That means that the “troubling issues” raised by DOJ’s repeated secret backroom settlements with the powerful and politically connected elite too big to fail banks on wall street will have to be addressed by the people’s elected officials in Congress. Surprisingly, Congress has so far just sat silently on the sidelines while the Executive Branch has unilaterally seized breathtaking authority to take such unaccountable action on these historic matters.

Better Markets is in the middle of important hearings in Congress on numerous financial reform issues: Sometimes Better Markets is in the middle of Congressional hearings when, like next week, President and CEO Dennis Kelleher has been asked to testify next week at a Senate Banking Committee hearing on the Financial Stability Oversight Council “FSOC”. Other times, like yesterday, our work can get injected into a hearing without notice.

At a Senate Banking Committee hearing yesterday on the “Regulatory Regime for Regional Banks,” several of the country’s most senior financial regulators testified: Fed Governor Dan Tarullo, FDIC Chairman Marty Gruenburg and OCC Comptroller Tom Curry. The Ranking Member on the Committee, Sen. Sherrod Brown (D-OH), used a chart from a Fact Sheet released by Better Markets on the subject of the hearing: “Everything You Need to Know About the $50 Billion Threshold.” To our surprise, Fed Governor Tarullo questioned the accuracy or completeness of the chart from the Fact Sheet, but he was wrong, as we detailed in this press release.

However, that shouldn’t detract from the focus of the hearing: the enhanced prudential standards applied to banks as tailored for their size and risk profile. The law set a threshold of $50 billion to initiate a closer look at banks’ activities and provided for increasing standards for the largest, riskiest, and most complex banking organizations that pose the greatest threat to Americans’ savings, jobs and homes – the too-big-to-fail megabanks on Wall Street. As detailed in the Fact Sheet, while the financial reform law requires regulators to apply enhanced prudential standards, it also gives them very broad discretion in tailoring those standards to the risk profile and activities of different banks.

That has stopped too many from mis-describing the law and how it is applied, causing some to call for either the elimination of the $50 billion threshold altogether or raising it. However, before taking the consequential step of changing the law, policymakers should ask those seeking to change the $50 billion threshold to demonstrate that

1. a specific requirement of the statute is causing demonstrable, independently verifiable damage to the U.S. economy, and

2. he only means to fix such a requirement is through legislative changes, rather than, for example, the Fed appropriately exercising the discretion already provided for by the law.

Remember, the financial reform law was enacted just a few years ago to prevent another crash like 2008 and the economic wreckage it caused and continues to cause to American families, workers, communities and our federal budget. Financial reform should be allowed to be fully implemented and then changed only if in fact changes are needed, rather than in response to fact-free claims of harm or, worse, due to the disguised claims of Wall Street’s most dangerous too-big-to-fail banks that collect big bonuses while getting ready for their next bailout.

Fighting to protect your retirement security and the integrity of the markets: Secretary of Labor Tom Perez also testified before the House Appropriations Committee on Tuesday and the House Education and Workforce Committee on Wednesday outlining the Department’s Fiscal Year 2016 budget request. During the Tuesday hearing Secretary Perez was asked about DOL’s new rule to protect Americans’ retirement savings. Better Markets has been meeting with leaders in Washington and working with allies in support of this proposed rule that is expected to require brokers to act in the best interests of their clients rather than putting their own economic interests above their clients. This indefensible conflict of interest is the result of a 40-year old legal loophole that must be closed to help ensure that tens of millions of Americans finally get the unbiased advice they deserve so they can build a comfortable and dignified retirement.

Like the DOJ, the SEC is excellent at spin and PR about how tough they are and how great their work is, but the facts show otherwise: Also on Thursday, SEC Enforcement Director Andrew Ceresney testified before the House Financial Services Committee. As we have pointed out and criticized for years, the SEC has been following a dangerous pattern of severely punishing low-level actors while letting Wall Street’s too-big-to-fail banks and, particularly, their executives off the hook when it comes to enforcing the law. That approach only incentives more crime where there is little fear of being caught and less worry about being meaningfully punished. It’s imperative that the SEC begins to go after Wall Street megabank leaders, require them to fully disclose the extent of their wrongdoing, and have banks and individuals pay real penalties that actually fit the crime. The SEC must get out of the PR and spin business and back to being a real cop on the Wall Street beat.