Clinton’s plan starts with defending the comprehensive Wall Street reforms passed in the wake of the crisis—the Dodd-Frank Act. Then it takes important additional steps to curb risk in the financial industry, crack down on bad actors, and ensure that everyday investors and consumers are treated fairly. As she’s said, “We need to make sure there’s accountability on Wall Street so there can be prosperity on Main Street.”[ii]
Clinton’s plan would:
Clinton understands that the strength of our markets depends on the strength of the rules that govern them. U.S. capital markets represent a national asset and offer a substantial international competitive advantage. With strong rules of the road, the financial sector can help make it possible for everyday Americans to meet their aspirations—helping young families buy a first home, allowing entrepreneurs to finance a new or expanding business, and supporting workers as they build wealth for retirement. A well-regulated financial system can facilitate the kind of responsible, long-term investment that drives broad-based economic growth.
- Defend Dodd-Frank against Republican attacks—so that we don’t go back to the days when Wall Street could write its own rules.
- Tackle dangerous risks in the financial system—reducing both present and future threats to our financial and economic stability.
- Hold both individuals and corporations accountable when they break the law or put the system at risk—protecting the integrity of our markets and upholding basic fairness.
- Ensure that the financial sector serves the interests of investors and consumers, not just itself—so that everyday Americans can save and invest with confidence that they’re getting a fair shake.
Clinton’s plan would support this kind of investment. It builds on her record of proposing reforms that would discourage excessive risk-taking, increase fairness, enhance transparency and accountability, and curb the kinds of abuses that led to the financial crisis and the Great Recession.
As a Senator, Clinton called for:
- Addressing abuses in the subprime mortgage market. Clinton called for immediate action to address abuses in the subprime mortgage market, and she laid out detailed and concrete proposals for how to do so—starting a year and a half before the collapse of Lehman Brothers.[iii]
- Imposing stronger regulations on the “shadow banking” system. Clinton called on Congress to provide regulators with immediate authority to constrain the risky activities of the “shadow banks” like Lehman Brothers that played a leading role in causing the crisis.[iv]
- Toughening regulation of risky derivatives. Clinton urged greater transparency in our complex and risky derivatives markets, an idea that Dodd-Frank eventually embraced.[v]
- Cracking down on excessive executive compensation. Clinton proposed, among other things, giving shareholders an annual vote on executive compensation, strengthening clawback provisions for improperly awarded executive bonuses, and prohibiting conflicted payments to corporate compensation consultants.[vi]
- Closing the carried interest loophole. Clinton called for closing the carried interest loophole, which provides a preferentially low tax rate for certain types of Wall Street income, noting that it was a “glaring inequality” that offends our values as a nation.[vii]
Five years ago, President Obama and Congress enacted the landmark Dodd-Frank Act to address the causes of the financial crisis.
Yet even as it works to protect us from a repeat of the crash, Republicans in Congress are assaulting Dodd-Frank at every turn—working to restore the same failed “light touch” approach to Wall Street that helped devastate our economy. They have slipped deregulatory provisions into must-pass bills.[viii] They have tried to hamstring the government’s authority to regulate some of our largest and riskiest financial firms.[ix] They have committed to defunding and defanging the Consumer Financial Protection Bureau, an agency dedicated solely to protecting everyday Americans from unfair and deceptive financial practices.[x] And they are poised to continue these damaging efforts by pushing more of their deregulatory agenda in the upcoming budget and debt ceiling negotiations.
While Republicans profess to support small community banks, they insist on using “community banking” reform as a Trojan Horse for their attempts to roll back tough rules for the biggest banks. Clinton rejects these efforts and has instead called for commonsense reforms to unleash the potential of community banks—a backbone of lending to small farms, small businesses, and everyday American families.[xi]
In short, the Republican playbook would reverse the progress we have made since the crisis and restore the old and dangerous ways of doing business. If Republicans want to hold the American economy hostage for the benefit of their corporate patrons, that’s a fight Democrats should be ready to wage and win. As President, Clinton would stand up to Republican efforts to gut Dodd-Frank. She would veto any legislation that attempts to weaken the law and would fully enforce its protections.
New Reforms to Make the Financial System Safer and Fairer
As important an achievement as Dodd-Frank was, Clinton recognizes that the job of financial reform isn’t finished. She would fully implement Dodd-Frank’s protections and go beyond Dodd-Frank in working to combat dangerous risk-taking, hold bad actors accountable, and ensure that Wall Street serves everyday Americans. She would ensure that no institution is too big to fail or too risky to manage. And she would appoint tough, independent-minded regulators to help get the job done.
Specifically, Clinton would:
Tackle dangerous risks in the financial system.
Responsible risk-taking is a bedrock of a healthy financial system and a strong economy. But history has also taught us—from the Great Depression of the 1930s to the Global Financial Crisis of 2008—that dangerous risk-taking in the financial sector can have devastating consequences for the economy as a whole. Dodd-Frank enacted critical reforms to rein in excessive risks on Wall Street. But there is still more to do.
Tackling dangerous risk-taking in the financial sector starts with imposing tougher constraints on the biggest banks. But it also requires constraining risk beyond banks. In fact, the crisis itself demonstrated that serious risks could emerge from institutions and activities in the so-called “shadow banking” system, which often receives little prudential oversight at all. That’s why Clinton would implement a comprehensive plan to tackle excessive risk wherever it appears.
Hold both individuals and corporations accountable when they break the law.
- Impose a “risk fee” on the largest financial institutions. Dodd-Frank’s reforms and higher capital requirements on the largest banks are already helping address the problem of “Too Big to Fail.” But we need to go further to deal with the risk posed by size, leverage, and unstable short-term funding strategies.Clinton would charge a graduated risk fee every year on the liabilities of banks with more than $50 billion in assets and other financial institutions that are designated by regulators for enhanced oversight. The fee rate would scale higher for firms with greater amounts of debt and riskier, short-term forms of debt—meaning that, as firms get bigger and riskier, the fee rate they face would grow in size. The fee would therefore discourage large financial institutions from relying on excessive leverage and the kinds of “hot” short-term money that proved particularly damaging during the crisis.[xii] Moreover, the strength of this deterrent would grow for firms with larger amounts of debt. The risk fee would not be applied to insured deposits and would therefore have no impact on traditional banking activities funded by insured deposits and equity capital.[xiii] In implementing the risk fee, Clinton would also call on regulators to impose higher capital requirements if she determines that such a step is a necessary complement to the fee.
- Require firms that are too large and too risky to be managed effectively to reorganize, downsize, or break apart. The complexity and scope of many of the largest financial institutions can create risks for our economy by increasing both the likelihood that firms will fail and the economic damage that such failures can cause.[xiv] That’s why, as President, Clinton would pursue legislation that enhances regulators’ authorities under Dodd-Frank to ensure that no financial institution is too large and too risky to manage. Large financial firms would need to demonstrate to regulators that they can be managed effectively, with appropriate accountability across all of their activities. If firms can’t be managed effectively, regulators would have the explicit statutory authorization to require that they reorganize, downsize, or break apart. And Clinton would appoint regulators who would use both these new authorities and the substantial authorities they already have to hold firms accountable.
- Strengthen oversight of the “shadow banking” system to reduce risk. Limiting excessive risk-taking by the largest banks is necessary to keep the system safe—but it’s not sufficient. As the failures of firms like Lehman Brothers, Bear Stearns, and AIG made clear—and as economists from Paul Krugman to Ben Bernanke have cautioned—dangerous financial risks can lurk outside of regulated banks—in less regulated or even unregulated entities.[xv] By one measure, the so-called “shadow banking” sector—which includes certain activities of hedge funds, investment banks, and other non-bank financial companies—makes up a quarter of the global financial system.[xvi] Nonbank lenders originated 40 percent of new mortgages by dollar volume in 2014, compared to 12 percent in 2010.[xvii] And the IMF recently warned that “risks are elevated” in the United States’ non-bank financial system.[xviii] Clinton believes we need more transparency in the shadow banking sector, a better understanding of the risks it poses, and stronger tools to tackle those risks. Specifically, she would:
- Impose, in coordination with other major international financial centers, margin and collateral requirements on repurchase agreements and other securities financing transactions—risky forms of short-term borrowing that played a key role in the onset of the financial crisis—in order to limit the build-up of excessive leverage in the shadow banking system[xix];
- Enhance public disclosure requirements for repurchase agreements, so that both regulators and market participants can more fully understand the risks associated with these activities[xx];
- Strengthen leverage restrictions and liquidity requirements for broker-dealers, which played a key role in the recent crisis[xxi];
- Enhance regulatory reporting requirements for hedge funds and private equity firms—improving upon Dodd-Frank’s “Form PF” so that it more fully captures the risk exposures of these private investment funds[xxii];
- Review recent regulatory changes to the money market fund industry, which suffered a massive and destabilizing run after the failure of Lehman Brothers that was quelled only by a taxpayer guarantee,[xxiii] to ensure that the new rules are adequately addressing the risks that money market funds pose to their investors and the economy[xxiv];
- Enhance transparency requirements and disclosure for exchange-traded products so that underlying liquidity, leverage, and market risks can be assessed;
- Strengthen the tools and authorities of the Financial Stability Oversight Council (FSOC) to tackle risks in the shadow banking system—wherever those activities may migrate or emerge.[xxv]
- Impose a high-frequency trading tax and reform the rules that govern our stock markets. The growth of high-frequency trading (HFT) has unnecessarily burdened our markets and enabled unfair and abusive trading strategies that often capitalize on a “two-tiered” market structure with obsolete rules. That’s why Clinton would impose a tax targeted specifically at harmful HFT. In particular, the tax would hit HFT strategies involving excessive levels of order cancellations, which make our markets less stable and less fair.Clinton would also reform our stock market rules to ensure equal access to markets and information, increase transparency, and minimize conflicts of interest. Over the last decade, equity markets have become less transparent—often serving the interests of high-frequency traders and “dark pool” operators at the expense of the investing public. Clinton is calling on the Securities and Exchange Commission (SEC) to pursue reforms that ensure that these markets are putting the interests of the investing public and corporate issuers before those of high-frequency traders and financial firms.
- Create compensation rules to curb behavior that puts our financial system at risk. Clinton believes that compensation arrangements at large financial institutions must discourage the types of excessive risk-taking that can threaten the stability of our economy. She would enforce Dodd-Frank to require that a large bank’s senior management and material risk-takers defer a meaningful portion of their annual compensation to future years, such that they would lose some or all of that compensation if the bank suffers losses that threaten its financial health. The rule would apply beyond insured banks to include systemically important non-bank financial firms.[xxvi]
- Strengthen the Volcker Rule to reduce risk. The Dodd-Frank Act’s Volcker Rule put into practice a straightforward and common-sense principle: banks shouldn’t be allowed to make risky and speculative trading bets with taxpayer-backed money. But, as ultimately enacted by Congress, the Volcker Rule’s prohibition on these risky trading activities contained a damaging loophole: it allowed firms to invest up to three percent of their capital in hedge funds that can themselves make risky trading bets.[xxvii] This loophole allows the largest institutions to risk billions on exactly the types of speculative trading activities that the Volcker Rule is meant to prohibit. Moreover, banks are already structuring their activities to avoid the Volcker Rule’s restrictions. Clinton would close the Volcker Rule’s hedge fund loophole. She would fully enforce the Volcker Rule, in a manner that stays true to its underlying goals—ensuring that banks can’t avoid its prohibitions on risky activities by using evasive business structures. And she would reinstate the “swaps push-out” rule for banks’ derivatives trading, which was repealed at the behest of the banking lobby in last year’s budget deal.[xxviii]
- Enhance transparency in the banking system. Transparency in the financial system can reduce the build-up of risk during periods of stability and diminish “contagion” effects during periods of crisis. But the SEC’s guidance for banking organization disclosure has not been materially updated in decades, and therefore does not properly account for the complexities of modern banking.[xxix] Clinton would ask the SEC, Treasury Department, and the three federal banking agencies to coordinate to enhance and simplify public disclosure requirements for the banking industry. The largest firms should have to disclose much more information to the market. And the smallest banks should be relieved of the heavy regulatory burden of excess paperwork cataloguing activities that they do not engage in at a meaningful level.[xxx]
- Enhance international cooperation to curb excessive risk-taking. Clinton understands that strengthening constraints on excessive risk-taking within our own borders is not enough: as home to the world’s strongest and most sophisticated financial markets, we need to push for strong financial regulations in major financial centers around the world—leveling the playing field for U.S. firms and safeguarding global stability. For example, Clinton’s administration would fight for stronger global capital requirements and tougher margin and collateral requirements for securities financing and derivatives transactions. Clinton would also work to put in place tough global rules for winding down large and internationally active financial institutions when their failure poses a risk to the global financial system. As a former secretary of state, Clinton has the know-how to work with international partners to make progress on critical economic issues. As president, she would deploy that know-how to make the international financial system stronger and more secure.
- Bolster the financial system’s defenses against the threat of cyber attacks. In recent years, major cyber attacks have compromised the personal and financial information of millions of consumers.[xxxi] But Clinton understands that lapses in cyber security don’t only affect consumers—they also have the potential to threaten the stability of the financial system and the economy as a whole. That’s why Clinton would encourage regulators to consider cyber-preparedness as a significant part of their assessments of financial institutions. She would also seek to strengthen the sharing of timely cyber threat information between the government and the private sector,[xxxii] promote the integration of better security practices into agreements with third-party vendors,[xxxiii] and focus on rapid detection and response to limit the damage of breaches that do occur.[xxxiv]
Both before and after the financial crisis, there have been clear-cut examples of law-breaking in the financial sector—from conspiring to manipulate foreign exchange markets to facilitating money laundering to perpetrating fraud. As Clinton has said, “stories of misconduct in the financial industry are shocking” and cannot be tolerated.[xxxv] Yet too often, both the corporations and individuals responsible are getting off without sufficient penalty.[xxxvi] Imposing accountability on Wall Street will help protect the integrity of our markets so that they’re serving everyday Americans—and so that law-abiding individuals, who make up the vast majority of people working in finance, can compete on a level playing field.
That’s why Clinton would ensure that both individuals and corporations are held accountable when they break the law. And she would see to it that prosecutors and regulators have the tools and resources they need to get the job done.
Ensure that individuals are held accountable when they break the law. Banks and other financial firms have paid large fines for financial misconduct, totaling roughly $200 billion globally since the financial crisis.[xxxvii] But too often it has seemed that the human beings responsible for corporate wrongdoing get off with limited consequences, or none at all. One recent study found that in roughly two-thirds of corporate criminal settlements between 2001 and 2014, no individuals were charged.[xxxviii]
Ensure that corporations are held accountable when they break the law. Even as we renew our focus on individual accountability, we need to work to maximize the effectiveness of criminal prosecutions and civil enforcement actions against corporations. Firms shouldn’t treat penalties for breaking the law as merely a cost of doing business, and we need to put an end to the patterns of recidivism we see in some institutions today.
- Emphasize individual accountability when prosecuting corporate wrongdoing. Clinton believes that the best way to deter corporate wrongdoing is to hold individuals accountable for their misconduct. She would enforce our laws against the individuals who break them—plain and simple. That includes holding corporate officers and supervisors accountable when they knew about misconduct by their subordinates and failed to prevent it or stop it. When people commit crimes on Wall Street, they will be prosecuted and imprisoned.
- Ensure that fines for major corporate wrongdoing hit the bonuses of culpable executives, supervisors, and employees—and that senior executives have their jobs on the line when egregious misconduct takes place on their watch. When a financial institution pays a large fine for illegal behavior, culpable executives, supervisors, and employees should bear some of the cost—not just shareholders and customers. That’s why Clinton would require that large financial institutions pay for a portion of major civil or criminal fines from the incentive-based pay of culpable employees, their supervisors, and the relevant senior executives of the firm—anyone who was responsible for or should have caught the problem.[xxxix] Moreover, she would empower regulators to require that senior executives leave their jobs when particularly egregious misconduct takes place under their supervision. Her bottom line is simple: supervisors and senior executives should be held accountable when wrongdoing happens on their watch.
- Prohibit individuals in financial services who are convicted of egregious crimes from future employment in the industry. The Federal Deposit Insurance Act currently prevents depository institutions and bank holding companies from employing anyone who has been convicted of a crime of dishonesty, breach of trust, or money laundering.[xl] Similar employment bars also apply under our securities laws—barring, for example, investment companies from employing individuals previously convicted of a felony or misdemeanor while working in certain professions.[xli] Clinton would unify and expand these provisions. Specifically, she would ensure that serious crimes under securities, commodities, consumer, and banking laws would result in employment bars across the entire financial services industry.[xlii]
- Extend the statute of limitations for major financial fraud. Financial fraud can take years to unearth, and prosecuting financial fraud can be time-intensive and complex—particularly when targeting high-level executives at large companies. And yet the current statutes of limitations for enforcing our laws against fraud, which generally last just five or six years,[xliii] are too often insufficient to account for the time-intensive nature of these prosecutions.[xliv] In fact, prosecutors have recently been forced to adopt novel legal theories, with mixed success, after time has run out on conventional fraud statutes.[xlv] Clinton believes that individuals who commit major financial frauds shouldn’t go free simply because prosecutors have insufficient time to hold them to account. That’s why she would extend the statute of limitations to 10 years for major financial fraud.
- Hold individuals accountable when they commit insider trading. In response to a recent federal court ruling that upended long-standing enforcement practice, Clinton would propose legislation to clarify that insider trading prosecutions do not require knowledge that the source disclosed the inside information for personal benefit and to clarify what “personal benefit” means.[xlvi]
Ensure that prosecutors and regulators have the tools and resources they need to hold both individuals and corporations accountable for financial wrongdoing.
- Curtail the overuse of deferred prosecution and non-prosecution agreements. Under deferred prosecution (DPAs) and non-prosecution agreements (NPAs), prosecutors defer or even stop pursuing charges against an individual or corporation in exchange for a commitment by the offending party to take specified compliance actions and cooperate with the government. While these agreements were originally designed for low-level crimes and for individuals cooperating in the prosecution of more culpable individuals, they have since become the predominant tool in the government’s corporate criminal enforcement efforts.[xlvii] DPAs and NPAs should not be the norm; they should be used in limited circumstances, when there are good reasons for using them. And they should not be used in egregious cases of corporate crime.
- Establish prosecutorial guidelines for deferred prosecution and non-prosecution agreements to enhance transparency and accountability. The DOJ has issued no guidelines governing when and how DPAs and NPAs should be used, even as these settlement agreements have increased in prevalence. The Department should issue guidelines that:
- Make clear that DPAs and NPAs should be used in only limited circumstances;
- Outline the circumstances in which DPAs and NPAs may be considered, as well as the categories of criminal activity that cannot generally be resolved by such agreements;
- Require public disclosure of DPAs and NPAs, so the public knows both when prosecutors are entering such agreements and what’s in them;
- Ensure that DPAs and NPAs impose fines that are significant enough to deter illegal activity, so that firms do not have an incentive to break the law.
- Require that firms admit wrongdoing and the underlying facts as a condition of settlement agreements. Firms should be required to admit wrongdoing and the underlying facts in instances of egregious wrongdoing. Doing so will ensure that firms take full and complete responsibility for their misconduct.[xlviii]
- Bolster transparency for corporate settlements. Firms that negotiate settlements with government regulators often end up paying significantly less than publicly stated because of tax deductions and other credits that reduce these settlements’ true value. Moreover, key details of these settlements are often kept confidential, so the public has no ability to evaluate the fairness of the terms. Clinton supports shining light on these agreements through the bipartisan Truth in Settlements Act, introduced by Senators Warren and Lankford. This bill would allow the public to hold regulators accountable for the settlements they negotiate by requiring detailed and accessible public disclosure of settlement terms, including any tax offsets, as well as public justification when settlements are kept confidential.[xlix]
- Restrict SEC waivers when companies engage in repeated egregious conduct. Under current law, when companies engage in bad conduct, they are supposed to lose important benefits of the securities law—such as the ability for large firms to issue stocks and bonds using streamlined registration. But the SEC has consistently waived such consequences for large financial firms that have repeatedly broken the law, passing up critical opportunities to reduce recidivism and deter future misconduct. Clinton would curtail the use of these waivers in cases of egregious or repeated law-breaking and misconduct.
Fight to protect investors and consumers.
- Give prosecutors the resources they need to punish law-breakers. Right now, our efforts to investigate and prosecute financial crimes are under-resourced.[l] For example, after the financial crisis in 2008, Congress authorized an additional $310 million to help key divisions of the DOJ pursue financial fraud in 2010 and 2011—but ultimately appropriated only $55 million for the effort.[li] From 2011 to 2014, sequestration forced DOJ to institute a hiring freeze, which caused the Department to lose more than 4,000 employees.[lii] The enforcement offices of the SEC and Commodity Futures Trading Commission (CFTC) are even more budget-constrained, and yet Republicans have consistently put their funding at risk.[liii] Clinton would increase funding for the DOJ, SEC, and CFTC so they have the resources and manpower they need to get the job done.
- Strengthen the independence of the SEC and CFTC. Republicans and banking lobbyists have shown they are committed to using the appropriations process to compromise the SEC and CFTC’s core functions, even as they committed themselves to repeated attempts at defunding and defanging the Consumer Financial Protection Bureau (CFPB). And yet these regulators are already grossly underfunded: the CFTC, for example, has a budget of roughly $200 million[liv] and is tasked with policing a derivatives market of over $400 trillion[lv]—or 2 million times larger than its annual budget. Clinton would make funding for the SEC and CFTC independent of annual appropriations in Congress—just like funding for all the other financial regulators—so that they can carry out their important missions without undue and inappropriate political interference.[lvi]
- Increase maximum penalties for SEC and CFTC enforcement actions. The penalties that the SEC and CFTC are authorized to levy on those who break the law are insufficient to hold those guilty of misconduct accountable and deter future misconduct. For example, the maximum penalty the CFTC can levy for most infractions is $140,000—barely a blip on a Wall Street balance sheet.[lvii] SEC penalties are capped at $150,000 per violation for individuals and $725,000 per violation for corporations.[lviii] These provisions need to be brought into the real world, through legislation that substantially increases these maximums—so that penalties can fully reflect the extent of the harm caused.[lix]
- Reward whistleblowers for bringing illicit activity into the light of day. The Financial Institutions Reform, Recovery, and Enforcement Act, enacted in 1989, provides rewards for whistleblowers—an important prosecutorial tool.[lx] But these rewards are capped too low. They are far lower than whistleblower rewards offered under comparable anti-fraud statutes and may be insufficient to create the strong incentives for whistleblowing we need in the financial sector. Clinton would raise the cap to encourage more whistleblowing.[lxi]
Dodd-Frank took crucial steps to protect consumers and investors from unfair and deceptive practices, most importantly by creating the CFPB. But much work remains to be done. Tens of millions of Americans have errors on their credit reports that make it more difficult to buy a home or land a job.[lxii] Too many are harassed by debt collectors for medical bills that they thought they already paid.[lxiii] Billions of dollars are drained from Americans’ bank accounts every year because of shady overdraft practices.[lxiv] And billions more are drained from retirement accounts because of high fees and conflicts of interest in the investment management industry.[lxv] Clinton would fight to protect honest and hardworking Americans from unfair and deceptive practices in the financial industry that are holding them back—and she will lay out specific proposals for doing so over the course of this campaign.
We have to encourage Wall Street to live up to its proper role in our economy—helping Main Street grow and prosper. With strong rules of the road and smart incentives, the financial industry can help more young families buy that first home, make it possible for entrepreneurs to create new small businesses, and support hard-working Americans saving for retirement. Clinton’s plan will help us unlock that potential. She’ll work to create good-paying jobs, raise incomes, and help families afford a middle class life, with less speculation and more growth—growth that’s strong, fair, and long-term. That’s what Hillary Clinton is fighting for in this campaign and that’s what she’ll do as President.
[i] Dodd-Frank at Five Years: Reforming Wall Street and Protecting Main Street, U.S. Department of the Treasury (July 2015).
[ii] Hillary Clinton (@HillaryClinton), Twitter (Aug. 7, 2015, 4:43 PM), https://twitter.com/hillaryclinton/status/629769753683476480.
[iii] Hillary Clinton, Remarks on Subprime Lending to the National Community Reinvestment Coalition (Mar. 15, 2007) (transcript available at http://www.presidency.ucsb.edu/ws/index.php?pid=77069).
[iv] Press Release, Hillary Clinton, Senator Clinton Calls for Immediate Action to Strengthen Financial Market Regulation and Help Keep Families in Their Homes (Mar. 31, 2008) (available at http://www.presidency.ucsb.edu/ws/?pid=96569).
[v] Hillary Clinton, Remarks in Knoxville, Iowa on America’s Economic Challenges (Nov. 19, 2007) (transcript available at http://www.presidency.ucsb.edu/ws/index.php?pid=77078).
[vi] Corporate Executive Compensation Accountability and Transparency Act, S. 2866, 110th Cong. (2007-2008).
[vii] Kevin Drawbaugh, Hillary Clinton Slams Private Equity Tax Rate, Reuters (July 3, 2007), available at http://www.reuters.com/article/2007/07/14/us-privateequity-clinton-idUSN1339356720070714; see also, Katrina vanden Heuvel, Clinton and Obama Call to End Tax Breaks for Hedge Funders, The Nation (July 16, 2007), available at http://www.thenation.com/article/clinton-and-obama-call-end-tax-breaks-hedge-funders/.
[viii] See, e.g., Cheyenne Hopkins and Silla Brush, Wall Street’s Win on Swaps Rule Shows Washington Resurgence, Bloomberg Business (Dec. 12, 2014), available at http://www.bloomberg.com/news/articles/2014-12-12/wall-street-s-win-on-swaps-rule-shows-resurgence-in-washington.
[ix] Press Release, S. Comm. on Banking, Housing, & Urban Affairs, Shelby Releases Discussion Draft of “The Financial Regulatory Improvement Act of 2015” (May 12, 2015) (available at http://www.banking.senate.gov/public/?FuseAction=Newsroom.PressReleases&ContentRecord_id=d870ced1-d075-f8a0-0641-2c1f7d6f3c13).
[x] Peter Schroeder, GOP Targets Consumer Bureau, The Hill (May 18, 2014), available at http://thehill.com/policy/finance/206371-gop-prepares-slew-of-bills-targeting-consumer-financial-protection-bureau; Suzy Khimm, The GOP’s New Push to Defang the CFPB, Wash. Post: Wonkblog (Feb. 8, 2012), available at http://www.washingtonpost.com/blogs/wonkblog/post/the-gops-new-push-to-defang-the-cfpb/2012/02/08/gIQA1DrfzQ_blog.html.
[xi] Hillary Clinton, Remarks in Cedar Falls, Iowa (May 19, 2015).
[xii] Daniel Tarullo, Shadow Banking and Systemic Risk Regulation, Remarks at the Americans for Financial Reform and Economic Policy Institute Conference (Nov. 22, 2013) (transcript available at http://www.federalreserve.gov/newsevents/speech/tarullo20131122a.htm) (“The dynamic unleashed by short-term wholesale funding runs in 2007 and 2008 directly exacerbated financial stress.”).
[xiii] The fee would also exclude certain insurance policy reserves, and it would apply to both the on- and off-balance sheet liabilities of covered institutions. Moreover, the fee would apply to the U.S. subsidiaries of foreign banking organizations with greater than $50 billion in assets as well as any foreign nonbank financial companies designated by the Financial Stability Oversight Council for enhanced prudential standards and Federal Reserve supervision. Funds raised from the risk fee would go to general revenue.
[xiv] See William C. Dudley, President of the New York Federal Reserve, Enhancing Financial Stability by Improving Culture in the Financial Services Industry (Oct. 20, 2014) (transcript available at http://www.newyorkfed.org/newsevents/speeches/2014/dud141020a.html) (“In conclusion, if those of you here today as stewards of these large financial institutions do not do your part in pushing forcefully for change across the industry . . . the inevitable conclusion will be reached that your firms are too big and complex to manage effectively. In that case, financial stability concerns would dictate that your firms need to be dramatically downsized and simplified so they can be managed effectively.”).
[xv] Paul Krugman, Out of the Shadows, N.Y. Times (June 18, 2009), available at http://www.nytimes.com/2009/06/19/opinion/19krugman.html?_r=0; Ben S. Bernanke, Remarks at the 49th Annual Conference on Bank Structure and Competition (May 10, 2013) (transcript available at http://www.federalreserve.gov/newsevents/speech/bernanke20130510a.htm).
[xvi] Shadow Banking Around the Globe: How Large, and How Risky?, The International Monetary Fund (Oct. 2014) (available at https://www.imf.org/external/pubs/ft/gfsr/2014/02/pdf/c2.pdf).
[xvii] Marshall Lux & Robert Greene, What’s Behind the Non-Bank Mortgage Boom? (Harvard Kennedy School Mossavar-Rahmani Center for Business and Government Associate Working Paper No. 42, June 2015).
[xviii] IMF Country Report No.15/170: United States Financial System Stability Assessment, The International Monetary Fund (July 2015) (available at https://www.imf.org/external/pubs/ft/scr/2015/cr15170.pdf).
[xix] Regulatory Framework for Haircuts on Non-Centrally Cleared Securities Financing Transactions, Financial Stability Board (Oct. 2014), http://www.financialstabilityboard.org/2014/10/pr_141013; see also Stanley Fischer, The Importance of the Nonbank Financial Sector Speech at the Debt and Financial Stability, Remarks at the Regulatory Challenges conference (Mar. 27, 2015) (transcript available at http://www.federalreserve.gov/newsevents/speech/fischer20150327a.htm) (“The proposed international framework being developed by the Financial Stability Board for margins on securities financing transactions may be an important tool for limiting the pro-cyclicality and sharp deleveraging that can occur in these markets.”); Janet Yellen, Monetary Policy and Financial Stability, Remarks for the 2014 Michel Camdessus Central Banking Lecture (July 2, 2014) (transcript available at http://www.federalreserve.gov/newsevents/speech/yellen20140702a.htm) (“[M]inimum margin requirements for repurchase agreements and other securities financing transactions . . . could . . . help avoid potentially destabilizing procyclical margin increases in short-term wholesale funding markets during times of stress.”).
[xx] Specifically, the disclosure requirements for repurchase agreements in both the SEC’s FOCUS Report for broker dealers and the Federal Reserve’s call reports for bank holding companies should be reviewed and enhanced. See Eric S. Rosengren, Short-Term Wholesale Funding Risks, Remarks at the Global Banking Standards and Regulatory and Supervisory Priorities in the Americas Conference (Nov. 2014) (transcript available at http://www.bostonfed.org/news/speeches/rosengren/2014/110514/110514text.pdf); Viktoria Baklanova, Repo and Securities Lending: Improving Transparency with Better Data, Office of Financial Research (April 23, 2015), http://financialresearch.gov/briefs/files/OFRbr-2015-03-repo-sec-lending.pdf.
[xxi] See IMF Country Report No.15/170, supra note 20, para. 55; Mary Jo White, Chairman’s Address at SEC Speaks 2014 (Feb. 21, 2014) (transcript available at http://www.sec.gov/News/Speech/Detail/Speech/1370540822127); Daniel K. Tarullo, Evaluating Progress in Regulatory Reforms to Promote Financial Stability, Speech at the Peterson Institute for International Economics (May 3, 2013) (transcript available at http://www.federalreserve.gov/newsevents/speech/tarullo20130503a.htm); Eric S. Rosengren, Broker-Dealer Finance and Financial Stability, Keynote Speech at the Conference on the Risks of Wholesale Funding (Aug. 13, 2014) (transcript available at http://www.bostonfed.org/news/speeches/rosengren/2014/081314/081314text.pdf) (noting that the broker-dealer model “remains surprisingly unchanged”); Jeff Kearns & Matthew Boesler, Fed’s Rosengren, Dudley Say Broker Regulations Need Overhaul, Bloomberg Business (Aug. 13, 2014), available at http://www.bloomberg.com/news/articles/2014-08-13/fed-s-rosengren-says-brokerage-rules-need-major-re-examination.
[xxii] Mark Flood, Phillip Monin & Lina Bandyopadhyay, Gauging Form PF: Data Tolerances in Regulatory Reporting on Hedge Fund Risk Exposures, Office of Financial Research (July 2015), http://financialresearch.gov/working-papers/files/OFRwp-2015-13_Gauging-Form-PF.pdf (“We find that Form PF’s measurement tolerances are sufficiently large to allow private funds with dissimilar actual risk profiles to report similar risks to regulators.”).
[xxiii] See Mary L. Schapiro, Perspectives on Money Market Fund Reform, Testimony before the Senate Banking Committee (Jun. 2012) (transcript available at http://www.sec.gov/News/Testimony/Detail/Testimony/1365171489510).
[xxiv] See Report of the Commission on Inclusive Prosperity 130, Center for American Progress (2015).
[xxv] See Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203, § 120.
[xxvi] See Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203, § 956.
[xxvii] Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203, § 619(d).
[xxviii] See Dodd-Frank Wall Street Reform and Consumer Protection Act § 716; Paul Krugman, Wall Street’s Revenge: Dodd-Frank Damaged in the Budget Bill, N.Y. Times (Dec. 14, 2014), available at http://www.nytimes.com/2014/12/15/opinion/paul-krugman-dodd-frank-damaged-by-the-budget-bill.html?ref=todayspaper.
[xxix] See Report on Review of Disclosure Requirements in Regulation S-K, Securities & Exch. Commission (Dec. 2013) http://www.sec.gov/news/studies/2013/reg-sk-disclosure-requirements-review.pdf; Michael S. Piwowar, Remarks Before the Exchequer Club of Washington, D.C. (May 20, 2015) (transcript available at http://www.sec.gov/news/speech/remarks-before-exchequer-club-washington-dc.html).
[xxx] See Hillary Clinton, Remarks in Cedar Falls, Iowa (May 19, 2015).
[xxxi] Bill Hardekopf, The Big Data Breaches of 2014, Forbes (Jan. 13, 2015), http://www.forbes.com/sites/moneybuilder/2015/01/13/the-big-data-breaches-of-2014/.
[xxxii] 2015 Annual Report, Department of Treasury Financial Stability Oversight Council, http://www.treasury.gov/initiatives/fsoc/studies-reports/Documents/2015%20FSOC%20Annual%20Report.pdf.
[xxxiii] Id.; see also Eric S. Rosengren, President & CEO of the Federal Reserve Bank of Boston, Remarks at the Basel Committee on Banking Supervision & the Financial Stability Institute Forum on Strengthening Financial Sector Supervision & Current Regulatory Priorities: Cyber Security & Financial Stability (Jan. 30, 2015), available at https://www.bostonfed.org/news/speeches/rosengren/2015/013015/013015text.pdf/.
[xxxiv] See Rosengren, supra note 32.
[xxxv] Hillary Clinton, Remarks at the New School on Building the “Growth and Fairness Economy” (July 13, 2015).
[xxxvi] See Sally Quillian Yates, Memo on Individual Accountability for Corporate Wrongdoing, Department of Justice (Sep. 2015), http://www.justice.gov/dag/file/769036/download.
[xxxvii] Global Risk 2014-2015: Building the Transparent Bank, Boston Consulting Group (Dec. 2014), www.bcgperspectives.com; Chiara Albanese, David Enrich & Katie Martin, Citigroup, J.P. Morgan Take Brunt of Currencies Settlement, Wall St. J. (Nov. 12, 2014), http://www.wsj.com/articles/banks-reach-settlement-in-foreign-exchange-rigging-probe-1415772504 (“Globally, lenders have racked up more than $200 billion in penalties in recent years...”).
[xxxviii] Brandon L. Garrett, The Corporate Criminal as Scapegoat (Virginia Public Law and Legal Theory Research Paper No. 7) (Mar. 2015) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2557465). Garrett’s study covers settlements at the federal level involving so-called “deferred prosecution” and “non-prosecution” agreements.
[xxxix] Firms would be responsible for ensuring that their employment contracts provide them with the necessary power to reach significant portions of incentive-based pay to meet this requirement. Regulators would have strong anti-evasion authority to prevent firms from manipulating compensation arrangements to circumvent the rules.
[xl] 12 U.S.C. § 1829(a)(1)(A); see also 12 U.S.C. § 1818(g).
[xli] See, e.g., 15 U.S.C. § 80a-9(a)(1).
[xlii] See Dudley, supra note 15.
[xliii] 18 U.S.C. § 3282(a); 18 U.S.C. § 3301(b).
[xliv] See Eric Holder, Attorney General, Remarks on Financial Fraud Prosecutions at NYU School of Law (Sept. 17, 2014) (transcript available at http://www.justice.gov/opa/speech/attorney-general-holder-remarks-financial-fraud-prosecutions-nyu-school-law).
[xlv] Compare U.S. v. Bank of New York Mellon, No. 11 Civ. 6969 (LAK), 2013 U.S. Dist. LEXIS 58816, (S.D.N.Y. Apr. 24, 2013), with Gabelli v. SEC 568 U.S. __ (2013); see also Jason M. Breslow, As Deadlines Loom for Financial Crisis Cases, Prosecutors Weigh Their Options, Frontline (Jan. 22, 2013), http://www.pbs.org/wgbh/pages/frontline/business-economy-financial-crisis/untouchables/as-deadlines-loom-for-financial-crisis-cases-prosecutors-weigh-their-options.
[xlvi] See United States v. Newman, 773 F.3d 438 (2d Cir. 2014).
[xlvii] See David M. Uhlmann, The Pendulum Swings: Reconsidering Corporate Criminal Prosecution (Aug. 11, 2015) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642455).
[xlviii] See Commissioner Luis A. Aguilar, A Stronger Enforcement Program to Enhance Investor Protection, Remarks at 20th Annual Securities Litigation and Regulatory Enforcement Seminar (Oct. 25, 2013) (transcript available at http://www.sec.gov/News/Speech/Detail/Speech/1370540071677#_edn43); Mary P. Hansen, ‘Neither Admit Nor Deny’ Settlements at the SEC, The National Law Review (April 3, 2014) (available at http://www.natlawreview.com/article/neither-admit-nor-deny-settlements-sec-securities-and-exchange-commission).
[xlix] Truth in Settlements Act, S. 1109, 114th Cong. (2015); see also Press Release, Office of Sen. Elizabeth Warren, Senate Passes Bipartisan Truth in Settlements Act to Make Federal Agency Settlements More Transparent, (Sep. 22, 2014) (available at http://www.warren.senate.gov/?p=press_release&id=964).
[l] See Eric Holder, Attorney General, Remarks on Financial Fraud Prosecutions at NYU School of Law (Sept. 17, 2014) (transcript available at http://www.justice.gov/opa/speech/attorney-general-holder-remarks-financial-fraud-prosecutions-nyu-school-law).
[li] Audit Report 14-12: Audit of the Department of Justice’s Efforts to Address Mortgage Fraud, Department of Justice (Mar. 2014) (available at https://oig.justice.gov/reports/2014/a1412.pdf).
[lii] Press Release, U.S. Department of Justice, Attorney General Holder Announces Justice Department to Lift Hiring Freeze (Feb. 10, 2014) (available at http://www.justice.gov/opa/pr/attorney-general-holder-announces-justice-department-lift-hiring-freeze).
[liii] Letter from Shaun Donovan, Director, Office of Management and Budget, to Hal Rogers, Chairman, U.S. House of Representatives Committee on Appropriations (June 16, 2015) (available at https://www.whitehouse.gov/sites/default/files/omb/legislative/letters/fy-16-house-fsgg-letter-rogers.pdf) (regarding the 2016 Financial Services and General Government Appropriations Bill).
[liv] President’s Budget and Performance Plan: Fiscal Year 2015, Commodity Futures Trading Commission (Mar. 2014) (available at http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcbudget2015.pdf).
[lv] President’s Budget, Fiscal Year 2016, Commodity Futures Trading Commission (Feb. 2016) (available at http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcbudget2016.pdf).
[lvi] See Brooksley Born & William Donaldson, Make Regulators Self-Funding, Politico (Mar. 10, 2013), available at http://www.politico.com/story/2013/03/self-funding-of-regulators-would-help-fiscal-mess-088666; IMF Country Report No.15/170, supra note 20, para. 49.
[lvii] Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203, § 753 (amending the Commodity Exchange Act §6(d) [7 U.S.C. § 13b]).
[lviii] Securities Act of 1933, Pub. L. 73-22, § 20(d)(2) [15 U.S.C. § 77h-1].
[lix] See Ed Beeson, CFTC Needs Sharper Enforcement Teeth, Massad Tells Sens., Law360 (May 14, 2015), available at http://www.law360.com/articles/653714/cftc-needs-sharper-enforcement-teeth-massad-tells-sens; Letter from Mary Jo White, S.E.C. Chair, to Jack Reed, Chairman of the Senate Subcommittee on Securities, Insurance and Investment (Nov. 28, 2011) (available at http://www.scribd.com/doc/74820022/Mary-Schapiro-s-Letter-to-Senator-Jack-Reed).
[lx] 12 U.S.C. § 4205(d)(1)(a)(i).
[lxi] See Eric Holder, Attorney General, Remarks on Financial Fraud Prosecutions at NYU School of Law (Sept. 17, 2014) (transcript available at http://www.justice.gov/opa/speech/attorney-general-holder-remarks-financial-fraud-prosecutions-nyu-school-law).
[lxii] Blake Ellis, Millions of credit reports have errors, CNN Money (Feb. 12, 2013), available at http://money.cnn.com/2013/02/11/pf/credit-report-errors/; see also, Report to Congress Under Section 319 of the Fair and Accurate Credit Transactions Act of 2003, Federal Trade Commission (Jan. 2015) (available at https://www.ftc.gov/system/files/documents/reports/section-319-fair-accurate-credit-transactions-act-2003-sixth-interim-final-report-federal-trade/150121factareport.pdf ).
[lxiii] Chi Chi Wu, Strong Medicine Needed: What the CFPB Should Do to Protect Consumers from Unfair Collection and Reporting of Medical Debt, National Consumer Law Center (Sept. 2014) (available at http://www.nclc.org/images/pdf/pr-reports/report-strong-medicine-needed.pdf); Press Release, Consumer Financial Protection Bureau, CFPB Spotlights Concerns with Medical Debt Collection and Reporting (Dec. 11, 2014) (available at http://www.consumerfinance.gov/newsroom/cfpb-spotlights-concerns-with-medical-debt-collection-and-reporting/).
[lxiv] Re-ordering Transactions: A Costly Overdraft Abuse, Center for Responsible Lending, http://www.responsiblelending.org/overdraft-loans/tools-resources/re-ordering.html (last visited August 26, 2015); Press Release, Consumer Financial Protection Bureau, CFPB Report Raises Concerns About Impact of Overdraft Practices on Consumers (June 11, 2013) (available at http://www.consumerfinance.gov/newsroom/cfpb-report-raises-concerns-about-impact-of-overdraft-practices-on-consumers/).
[lxv] The Effects of Conflicted Investment Advice on Retirement Savings, Executive Office of the President of the United States (Feb. 2015), https://www.whitehouse.gov/sites/default/files/docs/cea_coi_report_final.pdf.
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