Michael Barone: Dodd-Frank's problems — and potential solutions

BY MICHAEL BARONE Published: January 8, 2013

Over the next year, we will probably see much controversy over the implementation of Obamacare. Health insurance is something that almost every adult has some acquaintance with, and there seem to be glitches aplenty in the legislation, much delay in issuing regulations and some possible changes resulting from litigation.

We're likely to see or hear less about the operations of the Dodd-Frank financial regulation legislation, passed four months after Obamacare. Most of us don't work at banks or financial institutions, which will have to grapple with its myriad provisions and the regulations to be issued thereunder, and we tend to toss out those disclosure forms our bank sends out.

But Dodd-Frank may produce more problems than it solves. That is the thesis of David Skeel, professor at the University of Pennsylvania Law School, in his new book, “The New Financial Deal: Understanding the Dodd-Frank Act and Its (Unintended) Consequences.”

Skeel does not find fault in Dodd-Frank's effort to regulate derivatives — contracts in which one party agrees to pay another in case of changes in interest rates, currency exchange rates, oil prices or just about anything else — with provisions encouraging them to be conducted through clearinghouses.

Derivatives were an obvious target for regulation, since it was derivatives based on the value of mortgage-backed securities that did much to trigger the collapse of Lehman Brothers and AIG in 2008. Skeel calls these Dodd-Frank derivative provisions “an unequivocal advance.”

But he sees serious problems in what he describes as the two themes that emerge from the law's 2,319 pages: “(1) government partnership with the largest financial institutions and (2) ad hoc interventions by regulators rather than a more predictable, rule-based response to crises.”

Lehman's collapse, followed by the Bush administration's demand for the $700 billion TARP legislation and especially its initial rejection (reversed four days later) in the House, led to staggering losses first in the stock market and then in the economy at large.

Skeel is one of many who argue, persuasively in my view, that the real mistake here was not the failure to bail out Lehman but the apparently successful bailout of a smaller investment bank, Bear Stearns, in March 2008.