Capital Formation Legislation - What will the Senate Do?

In rare burst of bipartisanship last week, the House of Representatives passed a capital formation bill – H.R. 3606, the “Jumpstart Our Business Startups Act” (JOBS Act) – by a vote of 390 to 23. Even the White House issued a Statement of Administration Policy in support of the bill, which would ease regulatory burdens on business start-ups. With the Senate expected to complete votes on the highway bill today, Senate Republicans are pressuring the majority to move next to the JOBS Act.

In a letter to Senate Banking Committee Chairman Johnson (D-SD), who is reported to be working with Majority Leader Harry Reid (D-NV) on developing a new, Senate version of the JOBS Act, Banking Committee Ranking Member Shelby (R-AL) raised objections with their drafting a new bill “without any input from Senate Republicans.” Shelby wrote that he “nevertheless” stands “ready to work with you to craft bipartisan legislation” and recommended that Johnson consider capital formation legislation introduced by Senators Scott Brown (S. 1791); Hutchison (S. 556); Thune (S. 1831); and Toomey (S. 1544, S. 1824, and S. 1933). All but two of the six bills Shelby listed have bipartisan sponsors.

Meanwhile, on the Senate floor this morning, Minority Leader Mitch McConnell (R-KY) emphatically urged the Majority Leader to “immediately take up the bipartisan jobs bill the House sent over last Thursday” once the Senate finishes the highway bill. McConnell went on to say, “The House-passed Jobs bill isn’t just important for what it does, but for what it represents. It’s a rare and welcome signal that lawmakers in Washington still value the risk-takers and the entrepreneurs who’ve always been so vital to our nation’s greatness...This is precisely the kind of thing we should be doing in Washington.”

At the end of his statement, McConnell asked for consent that the Senate take up the House JOBS bill and his Democratic colleagues objected. McConnell is expected to continue attempting to bring up the JOBS bill without much success, because Reid reportedly wants to scale back aspects of the House bill as well as add additional issues such as the reauthorization of the Export-Import Bank and an increase in the debt the Small Business Administration can guarantee for small business investment companies to $4 billion. Reid has said the Senate will next move to judicial nominations and has not offered a timeframe for the capital formation legislation.
 

Letter from Senator Shelby to Senate Banking Committee Chairman Johnson (PDF)

Senate and House Pass Bill Banning Insider Trading by Members of Congress

This article was originally published in the February 2012 edition of Current Developments in Securities Laws by Michael E. Plunkett, Partner, Blank Rome LLP.

 

On February 2, 2012, and February 9, 2012, the Senate and House of Representatives, respectively, passed separate versions of the “Stop Trading on Congressional Knowledge Act” (STOCK Act) which addresses, among other matters, insider trading among certain members and employees of the federal government and the political intelligence community.1

Insider trading occurs when a person trades stocks or other securities on the basis of material, nonpublic information about the security or the issuer of the security in breach of a duty of trust or confidence, such as a duty to keep the information confidential. With respect to information that a member of the federal government gains in the course of his or her official duties, it has been difficult to show that the member has a duty to keep that information confidential or other duty of trust or confidence that would preclude trading on the basis of the confidential information. The STOCK Act provides a framework for prohibiting specified members and employees of the federal government from trading on the basis of material, nonpublic information acquired in the course of their official duties. Under both the Senate and House bills, if enacted, the new law would:

  • affirm that specified members and employees of the federal government are not exempt from insider trading prohibitions; 
  • require that various ethics committees and offices issue rules clarifying that specified members and employees of the federal government may not use nonpublic information derived from their positions with the federal government as a means of making a profit; 
  • provide that specified members and employees of the federal government owe an affirmative duty of trust and confidence to U.S. citizens, among others, regarding material, nonpublic information derived from the performance of their official responsibilities;
  • require members and employees of Congress, as well as certain members and employees of the executive branch, including the President and Vice-President, to report to the appropriate ethics office the purchase, sale, or exchange of any stocks, bonds, commodities futures or other securities within 30 days after the transaction in the Senate bill, and within 30 days after learning of the transaction but in no case more than 45 days after the transaction in the House bill. The reporting requirements do not apply to transactions involving “widely held investment funds,” such as mutual funds;
  • require the creation of publicly accessible, searchable online systems for disclosed financial reports; and 
  • require the Comptroller General to submit a report within one year on the sale of political intelligence (i.e. information derived from certain executive or legislative branch officials for use in analyzing securities or commodities markets).

The Senate bill includes additional provisions addressing political intelligence consultants, requiring organizations dealing in political intelligence to:

  • register with the federal government upon making one or more political intelligence contacts. The provision is more stringent than similar provisions in the Lobbying Disclosure Act which require registration only if an employee makes more than one federal lobbying contact for a client and devotes 20% or more of his or her time to federal lobbying activities for the client in a 3-month period; and
  • submit semiannual reports identifying their clients and the issues for which they engaged in political intelligence activities.

The bills will be sent to conference for reconciliation. If enacted, the STOCK Act should affirmatively establish the basis for prohibiting members of Congress and other high level federal employees from profiting based on material, nonpublic information during the course of their official duties under generally applicable securities laws. In addition, it should lead to enhanced disclosure of the activities of the political intelligence community.

 

To see the full February 2012 newsletter, please click here

 

1. See S. 2038, 112th Cong. (as passed by Senate, Feb. 2, 2012), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s2038es/pdf/BILLS-112s2038es.pdf; S. 2038, 112th Cong. (as amended and passed by the House of Representatives, Feb. 9, 2012), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s2038eah/pdf/BILLS-112s2038eah.pdf.
2. See 17 C.F.R. §240.10b5-2(b)(1). The insider trading laws can also be breached in other ways, such as by providing confidential information to another so that person may trade on the basis of the information.
3. Political intelligence is defined by the Act as information derived by a person from direct communication with an executive branch employee, a member of Congress, or an employee of Congress and provided in exchange for financial compensation to a client who intends, and who is known to intend, to use the information to inform investment decisions.

 

 

 

Analysis: Government's Moneyball Moment

The recent movie Moneyball, based on Michael Lewis’ book, describes the cash-strapped 2002 Oakland Athletics’ efforts to build a competitive team with limited resources. Oakland General Manager Billy Beane relied on sophisticated, seldom-used metrics to analyze players, leading him to make the right investments -- even when they defied conventional wisdom. With a meager $41 million budget, Beane turned the A’s into a powerhouse that gave the $125 million New York Yankees a run for their money.

The story is analogous to the situation government faces today. Given an ever-growing deficit, government needs to find ways to do more with less. And better intelligence and data analytics can go a long way toward making this possible.

When Vivek Kundra was federal chief information officer he launched an IT Dashboard in 2009 to shine light on $80 billion in information technology investments across government. Almost immediately, IT projects worth $27 billion were identified as over budget and behind schedule. After reviewing 38 of the highest-priority projects, 12 were accelerated, four were terminated, and 11 were reduced in scope, saving an estimated $3 billion. Kundra also announced the administration’s 25-point IT reform plan, which includes increased use of analytics to track progress and identify areas in need of improvement.

In other ways, government is identifying ways to do more with less by leveraging technology to sort through and understand massive amounts of information in just about every aspect of citizens’ lives from banking and health care to education.

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Could the CFPB Change the Rules on Arbitration Clauses?

Of the 87 studies required by the Dodd Frank Act, one may get a bump up the priority list thanks to the recent U.S. Supreme Court decision in CompuCredit v. Greenwood, which upheld the rights of companies to include mandatory arbitration clauses in their user agreements. Several consumer groups disagreed with the court’s ruling and are calling on the new Consumer Financial Protection Bureau (CFPB) to get involved sooner rather than later. Section 1028 of Dodd Frank directs the CFPB to conduct a study and report to Congress on restricting mandatory pre-dispute arbitration, however, Congress set no deadline for completing the study. Once the CFPB does complete the study, the bureau has the authority to “prohibit or impose conditions or limitations” (via regulation) on arbitration agreements. The bureau’s rules must be consistent with the study.

The National Consumer Law Center (NCLC) recently issued a release protesting the court’s decision and pressing the CFPB to get started on the study. “The Supreme Court decision makes it all the more urgent for the Consumer Financial Protection Bureau to stop companies from using forced arbitration clauses to hide from the law,” said the group’s managing attorney Lauren Saunders. Saunders added, “Forced arbitration puts a thumb on the scales of justice in favor of predatory lenders...”

There are also bills in Congress that would amend the Federal Arbitration Act so that pre-dispute arbitration agreements would be invalid and unenforceable if they concern disputes related to employment, consumers, or civil rights. The Arbitration Fairness Act of 2011 (S. 987), sponsored by Sen. Al Franken (D-MN), asserts that mandatory arbitration clauses were “intended to apply to disputes between commercial entities of generally similar sophistication and bargaining power,” not consumers. Rep. Hank Johnson (D-GA) is sponsoring companion legislation (HR 1873) in the House. Both bills are sitting in their respective judiciary committees and not expected to move any time soon in this contentious election year. FRW is watching the CFPB for the next move.

 

Cordray Controversy Continues

Following President Obama’s January 4th announcement that he would install former Ohio Attorney General Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) using a recess appointment, a hailstorm of controversy has ensued, as lawyers, legislators and industry question the legitimacy of the move – and look for ways to undermine it.

Lawyers:

Following the appointment, the Office of Legal Counsel stated that Congress can only prevent the president from making such appointments “by remaining continuously in session and available to receive and act on nominations,” not by holding pro forma sessions.

Senate Republicans, led by Sen. Chuck Grassley, Ranking Member of the Senate Judiciary Committee, accused the president of ignoring more than 90 years of legal precedent in making the recess appointments while the Senate remained in pro forma session. “The Justice Department and the White House owe it to the American people to provide a clear understanding of the process that transpired and the rationale it used to circumvent the checks and balances promised by the Constitution,” Grassley said. “Overturning 90 years of historical precedent is a major shift in policy that should not be done in a legal opinion made behind closed doors hidden from public scrutiny.” The letter was signed by Senate Judiciary Committee members Grassley, Sen. Orrin Hatch (R-UT), Sen. Jon Kyl (R-AZ), Sen. Jeff Sessions (R-AL), Sen. Lindsey Graham (R-SC), Sen. John Cornyn (R-TX), Sen. Mike Lee (R-UT), and Sen. Tom Coburn (R-OK).

On January 12, the Department of Justice issued a memo arguing that pro forma sessions held every third day in the Senate do not constitute a functioning body that can render advice and consent on the president’s nominees. It said the president acted consistently under the law by making the appointments. “Although the Senate will have held pro forma sessions regularly from January 3 to January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to ‘receive communications from the president or participate as a body in making appointments,’” Virginia Seitz, assistant attorney general for the Office of Legal Counsel, wrote in the memo dated Jan. 6.

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What to Expect in 2012: Derivatives

In the 17 months since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), implementation has progressed slowly. Financial regulators have finalized 74 of the 243 rules required by the Act and have conducted 39 of the 87 required studies.

The regulatory process is significantly behind schedule. Regulators have proposed an additional 128 rules but have failed to finalize them by their statutory deadlines. The regulators have yet to propose 26 rules that were set to be finalized by the end of 2011. Heading into 2012, regulators will have some catching up to do, though many regulators, namely Securities and Exchange Commission (SEC) Chair Mary Schapiro and Commodity Futures Trading Commission Chair Gary Gensler, have repeatedly emphasized that they are more focused on “getting the rules right” than they are on meeting deadlines. Coupled with House Republicans’ ongoing attempts to stall regulations by cutting funding to regulators, the regulatory process will likely extend far longer than originally intended.

Title VII of Dodd-Frank, which deals with the regulation of the over-the-counter swaps markets, is one area to watch in 2012. Dodd-Frank brings the over-the-counter derivatives market under significant government regulation for the first time. Many types of derivatives will now have to be traded on exchanges and routed through clearinghouses, with regulators examining trades before they are cleared. Derivatives are jointly regulated by the CFTC and the SEC, and both regulators are significantly behind schedule.

Thus far, regulators have missed 71 Title VII rulemaking deadlines. The first quarter of 2012 is set to be the busiest time for regulators, with 25 new regulations due by March 30; 14 of which have yet to be proposed. There are an additional 16 new regulations due in the third quarter of 2012, as well as the 152 rulemakings that remain behind schedule. The upcoming year also calls for an additional 28 studies. The bulk of these studies (11) are to be conducted by the Government Accountability Office (GAO), though the SEC and the bank regulators will likely see a significant burden as well, in addition to their rulemaking responsibilities.

There have been many legislative attempts to stall, scale back, defund or otherwise prevent the implementation of Title VII. Republicans, namely Senate Majority Leader Mitch McConnell (R-KY), have said that “anything we can do to slow down, deter, or impede” the regulators’ agenda would be “good for our country.” While Republicans will likely continue to fight most of the regulations, many in industry view the rules as inevitable and have encouraged regulators to finalize them as soon as possible to give companies sufficient time to prepare for implementation.

 

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Despite Dissent, CFTC Moves Forward With Volcker Rule

Yesterday the Commodity Futures Trading Commission (CFTC) unveiled the latest iteration of regulations required under Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, known as the “Volcker Rule.” Named for former Federal Reserve Chairman Paul Volcker, the rule restricts banking entities from engaging in short-term proprietary trading for their own accounts and from sponsorship of hedge or private equity funds.

Under the proposed rule, banks would be required to establish internal compliance programs designed to monitor compliance with Section 619 and the accompanying regulations. Firms will also be required to report “certain quantitative measurements” to regulators to assist them in distinguishing prohibited proprietary trading from permitted activities.

The rule is almost identical to the Joint Volcker Rule proposed by the Federal Reserve, the Office of the Comptroller of the Currency, Treasury, the Federal Deposit Insurance Corporation, and the Securities and Exchange Commission in October 2011. Those rules have come under fire even by Volcker himself, in recent months for their length and complexity. "It's much more complicated than I would like to see," Volcker said in November. 

 

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Despite Republican Objections, Obama Installs Cordray as CFPB Director

President Obama announced this afternoon that he will install Former Ohio Attorney General Richard as director of the Consumer Financial Protection Bureau by “recess appointment.” The recess appointment comes despite the fact that the Senate is not officially in recess. The appointment will almost certainly be challenged in court.

Speaking in Shaker Heights, Ohio, the president said “Today I’m appointing Richard as America’s consumer watchdog. That means he’ll be in charge of one thing: looking out for the best interests of American consumers. His job will be to protect families like yours from the abuses of the financial industry.” The president went on to criticize Senate Republicans for blocking Cordray’s confirmation. “The only reason Republicans in the Senate have blocked Richard is because they don’t agree with the law setting up the consumer watchdog. They want to weaken it. Well that makes no sense at all.”

Now that the bureau has a director, it will assume its full authority under Dodd-Frank, which includes oversight authority over non-bank financial institutions. In the five-and-a-half months since the bureau opened its doors, mortgage servicers, debt collectors, and payday lenders have been outside of its purview. Now, these and other non-banks will likely be subject to regulatory and enforcement actions by the CFPB.

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Now What? - Senate Fails to Stop Cordray Filibuster

This morning, Senate Republicans made good on their promise to block former Ohio Attorney General Richard Cordray’s nomination as director of the Consumer Financial Protection Bureau.

The Senate voted 53-45 to proceed with the confirmation, falling short of the 60 votes needed to prevent a filibuster. All but two Republicans voted to sustain the filibuster. Sen. Scott Brown (R-MA) is the only Republican Senator to publicly support Cordray, likely because he finds himself in a tight Senate race against CFPB architect Elizabeth Warren. Sen. Olympia Snowe (R-ME), who was one of only three Republicans to vote for Dodd-Frank, voted present.

So what comes next? The general consensus is: Nothing.

The House has taken steps over the last several months to prevent a recess appointment, and will likely continue to do so. The Obama Administration has not shown any sign of willingness to back down and change the bureau’s structure, nor is nominating another potential director likely to do any good. Republicans have made it clear that their hesitation has nothing to do with any individual candidate (though many believe Cordray was chosen in part because he is far less controversial than Warren); and no Senator on either side is likely to flip-flop on this issue going into an election year. In all likelihood, both sides will use it as a talking point throughout the 2012 election, with Democrats blaming Republicans for handicapping an agency aimed at protecting consumers and Republicans blaming Democrats for creating a regulatory agency without sufficient mechanisms to limit the director’s authority.

The Obama Administration has fought to rally support around Cordray in recent months. The CFPB has been operating without a director since it opened its doors on July 21, 2011, meaning that its authority is limited to banks and does not extend to non-banking financial institutions, including debt collectors, payday lenders and mortgage servicers. In May, 44 Republicans Senators sent a letter to President Obama vowing to block any nominee for director until the Bureau is restructured, namely by replacing its single director with a 5-person board. Senate Republican leaders have said that they are still waiting for a response to their letter.

Frank's Farewell and His Potential Successors

Rep. Barney Frank (D-MA), Ranking Member of the House Financial Services Committee, Father of Financial Regulatory Reform, and 16-term Congressman announced today that he will not be seeking re-election in 2012. Regardless of politics, few can deny that Rep. Frank has been a giant in the U.S. Congress, particularly in the financial sector, and that he will leave enormous shoes to fill. Within hours of the announcement, rumors began to circulate as to which Democrat will assume his prized seat on the financial services committee. Here are the top contenders:

Rep. Maxine Waters (D-CA):

Rep. Waters, the second most senior Democrat on the committee, is believed by many to be the top choice, and sources say she wasted no time this afternoon before lobbying Members for support. Now in her 11th term in Congress, Waters is the Ranking Member of the powerful Subcommittee on Capital Markets and Government-Sponsored Enterprises and has chaired the Congressional Black Caucus. While Waters is the heir apparent, there may be obstacles in her way. She is currently under investigation by the House ethics committee for three alleged violations. The investigation will certainly continue into 2012. If the committee finds she violated House rules and/or refers her case to the Justice Department, her chances for committee leadership may diminish.

Rep. Carolyn Maloney (D-NY):

Rep. Maloney is next in line after Waters and will certainly rise in influence following Rep. Frank’s departure. Elected in 1993, Maloney has a long history as an active, comparatively moderate member of the committee, and also has ties to the home of the nation’s financial sector. Rep. Maloney has chaired the Joint Economic Committee as well as the House Financial Services Subcommittee on Financial Institutions and Consumer Credit. She was also the author of the Credit Card Accountability, Responsibility and Disclosure Act, also known as the “Credit Card Bill of Rights,” and has been called “the best friend a credit card user ever had.” Given the controversy surrounding Waters and industry’s potential preference for a more moderate voice, some speculate that Maloney could surpass Waters and take the top spot.

The speculation will certainly continue throughout the coming year, but no definitive answer will come until the 113th Congress is sworn in in 2013.

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So Long, Supercommittee

Well, at least they didn’t drag it out over Thanksgiving.

Shortly before 5 p.m. on November 21, 2011, Supercommittee Co-Chairs Sen. Patty Murray (D-WA) and Rep. Jeb Hensarling (R-TX) released a joint statement telling the world what it already knew: it was all over. While many had hoped for the sort last-minute compromise we have come to expect from this Congress, this time it just wasn’t in the cards. While the blame game is sure to continue for months (likely all 12 months between now and Election 2012), we turn our attention to what could happen next.

Option 1: Sequestration

It was supposed to be a deterrent, a fate so unthinkable it would force the Supercommittee into action. Now, it may become reality. Under the terms of the debt ceiling agreement, across-the-board spending cuts will be automatically triggered that will equal the $1.2 trillion in savings the Supercommittee failed to create. The first automatic cuts are split equally between security and non-security spending and are set to take effect on January 2, 2013. Security funding includes the Department of Dense, the Department of Energy nuclear-weapons related activities and the National Nuclear Security Administration, among other agencies. Security spending would be capped at $546 billion in FY 2013 and at $556 billion in FY 2014. All other non-security funding—including military construction, Veterans Affairs and Homeland Security funding—would be capped at $501 billion in fiscal 2013 and $510 billion in fiscal 2014. Under sequestration, Medicare will face limited cuts, but Social Security, Medicaid, veterans and civil and military pay, funding for the wars in Iraq and Afghanistan and overseas contingency operations will be excluded entirely.
 

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Reporting Thresholds under New Form PF for Registered Investment Advisers Managing Hedge Funds, CLOs and CDOs

CDO and CLO Managers are assessing reporting requirements under Form PF, jointly promulgated by the SEC and the CFTC as required under the Dodd-Frank Act.1 One recent issue raised by some managers who are registered investment advisers is whether assets held in CDOs and CLOs must be included for purposes of determining Form PF reporting thresholds for "private funds," "hedge funds" and "private equity funds."

On October 31st, the Commodity Futures Trading Commission (the "CFTC") and the Securities and Exchange Commission (the "SEC") jointly announced final rules relating to new reporting requirements for advisers of certain private funds, commodity pool operators and commodity trading advisors.2 The new rule will require filing of Form PF (for "private fund") by investment advisers registered with the SEC that advise private funds having at least $150 million in assets under management. Most registered investment advisers are expected to make annual filings; however, certain large fund advisers, including those with at least $1.5 billion in assets under management attributable to hedge funds, will be required to file more detailed information on a quarterly basis. These new reporting requirements are primarily intended to provide the Financial Stability Oversight Committee, the SEC and the CFTC with important information about systemic risk in the private fund industry.

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Keep the Volcker Rule Brief, Let the Regulators Referee

Regulations to implement the Volcker Rule have hit the street. Now a new phase of the battle to reign-in proprietary trading by banks is at hand. If past is prologue, a tough and divisive battle looms. Meanwhile, the industry, regulators and customers will be dealing with the uncertainty that has bedeviled all concerned since Dodd-Frank was enacted.

How did we get here? How did a ten-page provision in legislative language end up being a 298 page proposed rule? When the industry, its lobbyists, its supporters on Capitol Hill and regulators all do what they do best, a complicated, lengthy and unwieldy set of rules is the result.
From the beginning, the banking industry has been openly opposed to the Volcker Rule. The effort to sidetrack it was unsuccessful, but the legislation did provide for exceptions to the rule to be developed by regulators.

That created the opening, and ever since enactment of the bill, industry representatives have been working to ensure the proposed regulations define, as generously as possible, the types of exceptions under which banks may trade through their own accounts. Regulators made an attempt to deal with all these issues. The resulting rules regarding market making trades, trades with and for international customers and others will allow limited proprietary trading to take place.

Now the rule is under attack by some for being too weak and others for being too cumbersome and unwieldy. Congressional hearings and proposals to repeal the Volcker Rule can be expected. A classic Washington stand-off is unfolding.

All of this will extend the uncertainty hanging over this process. The industry and its supporters may well harbor hopes that a Republican victory in the 2012 election would result in both Houses of Congress and the White House being in the hands of those supporting Volcker Rule repeal. So it may well be deep into 2013 before anyone can confidently assert the Volcker Rule process is complete.

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As Clock Ticks, the Super Committee Hears from Predecessors

On Tuesday, November 1, 2011, the Joint Select Committee on Deficit Reduction held a hearing entitled “Overview of Previous Debt Proposals.” Former Clinton Chief of Staff Erskine Bowles and former Senator Alan Simpson (R-WY), co-chairs of the National Commission on Fiscal Responsibility and Reform, as well as former Senator Pete Domenici (R-NM) and former Congressional Budget Office Director Dr. Alice Rivlin, co-chairs of the Bipartisan Policy Center Debt Reduction Task Force. From the day the Super Committee was formed, its members have said they would draw on previous deficit reduction proposals, specifically naming these two commissions.

During his opening remarks committee co-chair Jeb Hensarling (R-TX) commented that America faces a legitimate fiscal crisis and that structural reforms to entitlements, especially healthcare, are needed if the committee is going to fulfill its statutory responsibility to reduce the growth of the deficit by $1.5 trillion over the next ten years. He said he is especially concerned about the rising rate of Medicare spending and noted that it is not possible for the U.S. federal government to “tax away” its problems. Democratic co-chair Patty Murray (D-WA) reiterated the importance of striking a balanced and bipartisan deal that does not unduly burden the middle class and more vulnerable Americans. She reproached her Republican colleagues, saying that Democrats would be willing to make painful concessions if Republicans would do the same. She went on to say, “It’s not enough for either side to simply say they want to reduce the deficit – now is the time when everyone needs to be putting some real skin in the game and offering serious compromises.”

Simpson and Bowles testified before the committee on the findings of the National Commission on Fiscal Responsibility and Reform. They both urged the committee to take action on a comprehensive fiscal plan that will reduce the deficit. Mr. Bowles stated that the so-call “Simpson-Bowles” plan was based on six guiding principles – ensuring the plan would not disrupt a fragile economic recovery; protecting the truly disadvantaged; doing nothing to jeopardize the safety and security of the country; investing appropriately in education, infrastructure, and research; reforming the tax code; and cutting discretionary spending where appropriate. Simpson commented that he does not believe the committee’s mandate to find $1.5 trillion in deficit reduction is enough and that the Simpson-Bowles recommendation of reducing the deficit by $4 trillion is the minimum amount needed to restore the United States’ fiscal stability, stabilize U.S. debt, and begin to reduce the growing debt-to-GDP ratio. Both Simpson and Bowles warned the committee about the necessity of acting quickly, saying that while they acknowledged that it may not be possible for the committee to have the reforms drafted into legislative language and scored by the CBO by the November 23 reporting deadline, it is crucial that committee agree on an overall framework.

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Busy Without a Boss - CFPB Gets Cranking

The Consumer Financial Protection Bureau (CFPB) may not have a director, but that hasn’t stopped if from getting straight to work. Although its powers are limited until the Senate confirms a director, the CFPB recently kicked off two major efforts that prove it isn’t letting Senate Republicans slow it down.

Today, the CFPB and the Department of Education announced that they are working together to simplify financial aid offers for college students. The “thought starter,” (CFPB officials were careful to emphasize that this was not a formal proposal), would require all financial aid providers to supply students with a one-page “shopping sheet” containing basic information including the total cost of attendance, total debt at graduation and monthly debt payments thereafter. It also requires clear distinctions between scholarships, which do not have to be repaid, and loans. The new disclosure aims to make the costs and risks of student loans easier to understand and comes as part of the CFPB’s broader “Know Before You Owe” initiative; aimed at simplifying the paperwork borrowers receive when applying for loans.

Earlier this month, the CFPB issued the “CFPB Supervision and Examination Manual,” describing the supervision and examination process, outlining specific examination procedures and presenting templates for documentation. The CFPB has stated that these procedures will be used to examine “supervised entities.” This perhaps purposely vague characterization may reflect the bureau’s hope that it will soon enjoy its full authority, rather than being limited to bank oversight. In this vein, the CFPB included examination procedures related to compliance with a number of statutes, which, while applicable to banks, could have broad applications to a number of non-bank institutions.

Meanwhile, the CFPB awaits a director. The Obama Administration has pulled out all the stops to rally support around former Ohio Attorney General Richard Cordray, who was nominated by President Obama on July 17, 2011 and approved by the Senate Banking Committee on October 6, 2011. The Obama 2012 campaign website includes a tool enabling supporters to send one of four prewritten messages to the 44 GOP Senators who have vowed to block Cordray’s confirmation until the CFPB is restructured. Last week, The National Association of Attorneys General sent a letter to Senate leaders supporting Cordray’s nomination. Thirty-seven state attorneys general signed the letter, which they said was intended to put pressure on Senate Republicans to explain “why they aren’t acting.”

Ranking Member of the Senate Banking Committee Sen. Richard Shelby (R-AL) countered saying that he and his Republican colleagues sent the president a letter in May and never received a response. Said Shelby, “We haven’t heard from the president. Maybe he’s off campaigning,”