United States: Impact Of The 2018 Mid-Term Elections On Financial Services Regulation

Following historical trends, the first mid-term Congressional election in the Trump Administration has concluded with a new Democratic majority in the House of Representatives. In gains that exceed prior "blue wave" elections such as 2006, Democrats have gained 32 seats as of Thursday morning, November 8, bringing the tally to 225 Democrats, 199 Republicans, and 11 seats uncalled. Democrats also made substantial gains in gubernatorial (at least 7 pick-ups) and other state-level races—in a midterm election that will see Republicans lose unified control of Congress.

The "blue wave" was, however, confined to the House and to state races. Across the Capitol, Senate Republicans flipped three seats in Indiana, Missouri and North Dakota to hold their majority with 51 seats while three remain uncalled. As a result, both parties can claim some degree of victory: Democrats will obviously celebrate winning back the House, while Republicans take solace in their increased Senate majority, although they remain far short of the 60 votes typically needed to move legislation in the Senate.

What the results mean in practical terms is a return to divided government, and an emboldened Democratic Party eager to be a check on the Administration.

Divided government often yields gridlock in Washington, but we anticipate an active agenda both in oversight and policy. Both parties will use the 116th Congress to set the stage for the next (presidential) election cycle, crafting both the oversight and policy agendas to support their respective campaign goals of 2020. Moreover, pent-up energy among House Democrats in the minority will translate into an aggressive oversight agenda. With Democrats controlling only one chamber, there will be significant pressure on House leaders to hold oversight hearings as a vehicle for Democrats to draw contrasts with the Trump White House in advance of the 2020 Presidential election. As a general matter, we expect they will use their investigative authorities in some cases to drive changes in private-sector behavior.

Impact on Financial Services

Where financial services policy fits into this political dynamic is another matter altogether. What priority will the sector receive? Where might there be risk or opportunity on the policy front, including legislative wins, in the 116th Congress? And, more bluntly, what are the risks that the appetite for oversight will be focused on the financial services sector?

We start answering those questions with the suggestion that further regulatory reform in the coming two years will most likely be accomplished by agency action: rulemaking, interpretation and enforcement activity (or inactivity). The minimum lead time on rulemaking from initial work through a full notice-and-comment rulemaking to the implementation and compliance phase-in period is generally well over a year. House oversight of agency actions, designed to focus a spotlight on anything likely to be unpopular with voters, will have an impact on that process. As a result, any rulemaking not already underway or commenced within the next few months might not be completed before the 2020 elections. Of course, regulatory actions can be readily undone by a future administration.

At the state level, the Democrats' success in governors' races and in flipping control of state legislatures may increase the movement of financial regulation and enforcement action to the states, particularly consumer financial regulation. Seven Governors' seats (Illinois, Kansas, Maine, Michigan, Nevada, New Mexico, Wisconsin), and full control of six state legislatures (Colorado, Connecticut, Maine, New Hampshire, Washington State) as well as one chamber of the Minnesota legislature (which is now the only state legislature with different parties controlling different chambers of the state legislature), flipped to the Democrats, with Georgia's governor race still contested as of this writing. These state shifts may enhance the role of state consumer regulation in these states. Over the longer term, this shift will impact Congressional redistricting in 2021 after the 2020 census as well as who controls the administration of the 2020 elections in those states. These changes may impact control of the federal government over the next decade.

An interesting aspect of the political dynamics of financial regulation (and the recent swapping of parts of the respective voter bases between the two parties) is that the financial services industry—and the jobs, tax revenues, and economic growth and wealth it creates—is heavily concentrated in "Blue" states in the Mid-Atlantic and Northeast, Great Lakes Region, and West Coast, and to some degree in "Purple" swing states like Florida, Georgia and North Carolina, and in apparently now "Purple-Adjacent" states like Arizona, Kansas and Texas. The same could be said of the places of residence of the bulk of customer base of the financial services industry. This could make for some interesting political alliances between Republican and Democratic Congressional delegations across those states who are looking out for the interests of their constituents.

House Outlook

Rep. Maxine Waters (D-CA) is expected to serve as the chair of the House Financial Services Committee. Rep. Waters is likely to use her new position to exercise vigorous oversight over the federal financial regulators. Rep. Waters, while well-known as a critic of President Trump, is a long-time legislator with a track record as a dealmaker that has flown somewhat below-the-radar.

On the Republican side of the aisle, while there are several members vying to be the new Ranking Member on the Committee, none are likely to be as strictly conservative as retiring Chairman Jeb Hensarling (R-TX). Reps. Patrick McHenry (R-NC), Blaine Luetkemeyer (R-MO), Bill Huizenga (R-MI), and Sean Duffy (R-WI) are seen as the leading contenders for the ranking member position.

Though a small handful of Democratic Committee members will not be returning, most of its senior leadership will be. On the Republican side, however, between 10 and 13 current members will not be returning.

Under its oversight authority, we anticipate that the House Financial Services Committee and its various subcommittees will have frequent hearings on the actions (or inactions) of the banking and securities regulators. This may put pressure on the rulemaking, interpretive and enforcement agenda of the financial regulatory agencies, and potentially slow down or moderate the agencies' deregulatory agendas.

Additionally, the House Financial Services Committee and its subcommittees can be expected to utilize its oversight authority to question financial services industry executives on a range of issues as a means to build policy and public support for legislative issues that the Democrats seek to advance and to draw attention to and raise public opposition to agency actions that the Democrats do not support.

Senate Outlook

The chairmanship of the Senate Banking Committee is essentially down to two people: current Chairman Mike Crapo (R-ID), and Sen. Patrick Toomey (R-PA). The position is Crapo's if he chooses to keep it, but it is possible that Sen. Crapo could choose to take over the Senate Finance Committee if Sen. Chuck Grassley (R-IA)—who is senior to Sen. Crapo on the Finance Committee—opts to remain at the head of the Judiciary Committee. A move by Sen. Crapo to Finance would see the Banking gavel go to Sen. Toomey, a second-term Senator from Pennsylvania who was previously head of the conservative Club for Growth.

Sen. Sherrod Brown (D-OH) is expected to remain the Banking Committee's Ranking Member, and his membership will grow more progressive by virtue of at least two moderate Democrat members of the Committee, Sens. Joe Donnelly (D-IN) and Heidi Heitkamp (D-ND), losing their reelections. Although Sen. Jon Tester (D-MT) won his race, there are few "Red State" Democratic Senators left on the Banking Committee who are up for reelection in 2020 and who have an incentive to work across the aisle on banking reform legislation.

116th Congress Agenda

While divided government is more likely than not going to produce a substantial degree of gridlock, there are issues that present real opportunities for bipartisan dealmaking in the financial services arena. Additionally, we expect greater oversight activities/investigations by the House on financial regulators as well as big banks.

Financial Regulatory Reform: Potential Legislation

In 2017, the Treasury Department published its report and recommendations for regulatory reform for the financial services industry.1 Roughly one-third of the Treasury Department's recommended changes required Congressional action, with the remaining two-thirds requiring administrative rulemaking or other agency action. The Economic Growth, Regulatory Relief, and Consumer Protection Act, which passed with broad bi-partisan support in May 2018, accomplished some, but not all of the Administration's financial services legislative agenda. Any further action on the legislative recommendations is likely to be limited, technical, bi-partisan in appeal, and if it occurs at all, finished and enacted before the next presidential election is in full swing.

Waters and her Republican Senate counterpart could find some common ground on smaller regulatory matters that have previously garnered some level of bipartisan support, such as some of the component parts of the "JOBS Act 3.0" that passed the House earlier in 2018 with broad bipartisan support. Other items that can boast at least some bipartisan support, such as the so-called "Madden fix" proposal (to confirm the "valid when made" doctrine), are also possibilities but probably face longer odds in a Democratic House.

Export-Import Bank

Waters' ascendancy could portend a breakthrough on the dormant effort to reactivate the Export-Import Bank. There remains substantial support for the bank among Republican members of the Financial Services Committee, and with the exit of the Ex-Im Bank's chief critic (Chairman Hensarling), a bipartisan effort to reauthorize the bank is a possibility.

Uncertainty remains, however, as to how the Administration—which has been inconsistent on the bank—will view reauthorization efforts, and what direction the Senate may take.

Terrorism Risk Insurance Act

A clear opportunity for bipartisan cooperation comes in the form of the Terrorism Risk Insurance Act (TRIA), which is set to expire at the end of 2020 and therefore must be considered in the 116th Congress. The program, enacted following 9/11 to provide a federal backstop for insurers covering terrorism losses, has been reauthorized on a bipartisan basis a number of times already. As with the Ex-Im Bank, one of TRIA's chief critics was outgoing Chair Hensarling, and his specific concerns about the program are not necessarily shared by the incoming Republican committee leaders.

Housing Finance Reform

While many members agree that housing finance reform remains an item of unfinished business from the financial crisis, there is little agreement on the right solution, and divided control of Congress does not portend well for the prospects of breaking stalemate.

Nevertheless, Treasury Secretary Mnuchin has indicated his desire to move on GSE reform in 2019. There remains potential opportunity for the Administration to pursue some reforms administratively—but, as noted above, such efforts may be limited due to increased oversight by a Democratic House.

FinTech

The Democratic takeover in the House could result in increased scrutiny of the OCC's recent blessing of a national FinTech charter. Sens. Brown and Elizabeth Warren (D-MA) are also likely to remain leading voices in opposition to the OCC's FinTech charter (which originated at the OCC during the Obama Administration) while other Democrats, particularly those from California and other tech and financial hubs, may continue to support developments in FinTech. Any legislative effort in this area, however, is likely to prove tricky in a divided Congress, but might make for interesting political alliances between members of both parties.

Cybersecurity/Data Breach

A long-stalled legislative effort to address the current patchwork of state-level data breach notification laws was renewed recently in the form of legislation sponsored by Rep. Blaine Luetkemeyer, who is one of the contenders to be ranking member of the Financial Services Committee. It is not clear that anything has happened to break this logjam in the new Congress, but renewed attention from potentially key members yields at least some potential.

Administrative Agenda

In addition to the rulemakings required to implement the Economic Growth Act of 2018, the federal financial regulators will likely continue to pursue rulemakings and other administrative actions in the following areas:

  • CRA Reform and Modernization, which is being led by OCC Comptroller Otting but will require interagency support;
  • CFPB debt collection and HMDA rule amendments;
  • Small-dollar lending by banks;
  • Further statements and clarifications regarding the role of supervisory guidance versus that of binding rules and regulations of the federal financial agencies;
  • Interagency bank flood insurance rule amendments;
  • Further interagency efforts to simplify and streamline regulatory capital rules and reporting requirements;
  • Eliminating unnecessary regulations and obsolete supervisory letters and guidance;
  • Modernization of cybersecurity and privacy rules and regulations in line with the expectations of the European Union's General Data Protection Regulation;
  • BSA/AML compliance reform for financial institutions and investment advisers, including in connection with and related to real estate closings and cross-border funds transfers;
  • OCC rulemakings, and supervisory guidance and legal interpretations for nondepository FinTech companies seeking national charters;
  • SEC crowdfunding broker-dealer rules;
  • Amendments to the SEC's Guide 3 on bank holding company securities disclosures;
  • Clarifications on the scope and application of SEC, CFTC, and state and federal bank regulatory rules and oversight of coin and token offerings and services;
  • Federal and state money services business/money transmitter regulation of payment and funds transfer applications;
  • Volcker Rule reforms;
  • Remaining open items required under the Dodd-Frank Act of 2010, such as the single counterparty credit limit, swaps margin rules and the interagency Net Stable Funding Ratio rule;
  • FDIC brokered-deposits reforms consistent with the 2011 FDIC study mandated by the Dodd Frank Act; and
  • The SEC's proposed Regulation Best Interest (an enhanced suitability requirement imposed by SEC, rather than SRO rule which has its origins in a study mandated by the Dodd-Frank Act).

Notably, the SEC, CFTC and Federal Reserve are independent agencies that are insulated to some degree from direct command by the Administration; FINRA and the NFA are self-regulatory organization even more removed from direct political control; and the Treasury (and its sub-agencies including the OCC, OFAC, OFR, and FinCen) answer directly to the White House. FSOC, FDIC and FFIEC are something of hybrids with board representation from the different financial regulatory agencies. The interplay among a Democratic House, Republican Senate, Republican Administration and independent or semi-independent agencies over the next two years will be an interesting study in organizational behavior and political dealmaking.

Footnote

1 The four 2017 Treasury Department Reports on financial regulatory reforms cover banks and credit unions, capital markets, asset management and insurance, nonbank financial, fintech and innovation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions