Donald Trump will soon be our president.
Still, it’s unclear which financial regulations his administration will advance and to what end. The regulations were not a major issue during the campaign, and the resulting uncertainty is partly a result of Trump’s conflicting messages — such as putting a hold on any new financial regulations while declaring the repeal and replace the Dodd-Frank Act, which established standards for financial institutions.
But we have some hints as to what would be part of Trump’s financial regulatory agenda as his administration gets underway.
The Financial CHOICE Act, for instance, may serve as a guide to the future of financial regulations. The House legislation has several key principles — including protecting consumers from fraud, ending taxpayer bailouts of financial institutions, ending too big to fail, and simplifying the regulations to avert abuse by the Washington powerful. All of those goals seem consistent with a Trump agenda, and the legislation would repeal portions of the Dodd-Frank Act. He may not support the entire bill, but it seems likely that he will support certain provisions, such as allowing banks to abide by a 10 percent leverage ratio and upon compliance, exempt them from capital rules.
Also, Trump has said regulatory agencies would examine the rules on their books. The regulations that are “not necessary, do not improve public safety, and which needlessly kill jobs” should be eliminated. The recent nomination of Jay Clayton to chair the Securities and Exchange Commission demonstrates that Trump plans to have federal agencies review regulations by putting more industry insiders in supervisory roles. The selection of Clayton, a Wall Street insider with no government experience, signals that Trump is interested in a more capital raising, deal-making friendly leadership for the commission.
Clayton has indicated that he is not a fan of regulations that would impose cybersecurity mandates on companies, and prefers the self-regulatory approach. He also seems to disfavor cybersecurity regulations such as the New York Department of Financial Services proposed cybersecurity rules because he believes they lack focus.
Additionally, the choice of Clayton indicates that Trump administration’s and the SEC’s focus would change from enforcement both domestically and internationally to shedding regulatory burdens. For instance, like Trump, who referred to the Foreign Corrupt Practices Act as “horrible” in 2012, Clayton’s somewhat negative view of the measure would signal a key shift in the SEC’s priorities. Clayton headed a committee that drafted a 2011 paper focusing on the agency’s impact on international transactions that argued the United States’ approach to foreign corruption places significant costs on companies, particularly when compared with companies with no exchanges in the United States. The paper argued that unless foreign regulators adopt similar positions, the United States should reconsider its approach to foreign corruption problems.
Finally, on Jan. 12 Congress passed the SEC Regulatory Accountability Act that would require the SEC to, among other things, adopt regulations only after a cost-benefit analysis. The debated measure, which has passed Congress several times before with Republican lawmakers arguing the SEC adopts regulations that slow the economy, has never succeeded in the Senate. But it is more likely to do so now under a Trump administration because the legislation ties in with its agenda. Trump has said he wants to drain the Washington regulatory swamp that hurts American job creation. But while it is true that some SEC regulations impose significant costs on the financial industry, the SEC Regulatory Accountability Act would permit the Trump administration to roll back Dodd-Frank by tilting the agency’s decisions to what benefits industry.
Reducing regulatory costs imposed on U.S. companies almost surely will leave them with more money in their pockets, and provide fewer incentives to move businesses to less regulated regimes. But whether such companies decide to use the additional money to create American jobs remains to be seen. The potential downside of this agenda should not be overlooked — our regulations help prevent industry abuse and fraud.
The Trump administration should assess the motivations behind any regulation, including consumer and investor protection, before deeming it an unnecessary job-killer.
Nizan Geslevich Packin is an assistant professor of law at the Zicklin School of Business at Baruch College.