[Senate Hearing 111-137]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-137


          MODERNIZING BANK SUPERVISION AND REGULATION--PART II

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                   BANKING,HOUSING,AND URBAN AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

          FURTHER EXAMINING WAYS TO MODERNIZE AND IMPROVE BANK
          REGULATION AND SUPERVISION, TO PROTECT CONSUMERS AND
           INVESTORS, AND HELP GROW OUR ECONOMY IN THE FUTURE

                               __________

                             MARCH 24, 2009

                               __________

  Printed for the use of the Committee on Banking, Housing, and Urban 
                                Affairs


      Available at: http: //www.access.gpo.gov /congress /senate/
                            senate05sh.html







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            COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

               CHRISTOPHER J. DODD, Connecticut, Chairman

TIM JOHNSON, South Dakota            RICHARD C. SHELBY, Alabama
JACK REED, Rhode Island              ROBERT F. BENNETT, Utah
CHARLES E. SCHUMER, New York         JIM BUNNING, Kentucky
EVAN BAYH, Indiana                   MIKE CRAPO, Idaho
ROBERT MENENDEZ, New Jersey          MEL MARTINEZ, Florida
DANIEL K. AKAKA, Hawaii              BOB CORKER, Tennessee
SHERROD BROWN, Ohio                  JIM DeMINT, South Carolina
JON TESTER, Montana                  DAVID VITTER, Louisiana
HERB KOHL, Wisconsin                 MIKE JOHANNS, Nebraska
MARK R. WARNER, Virginia             KAY BAILEY HUTCHISON, Texas
JEFF MERKLEY, Oregon
MICHAEL F. BENNET, Colorado

                 Colin McGinnis, Acting Staff Director
              William D. Duhnke, Republican Staff Director
                       Amy Friend, Chief Counsel
                      Aaron Klein, Chief Economist
               Jonathan Miller, Professional Staff Member
                       Deborah Katz, OCC Detailee
                   Charles Yi, Senior Policy Advisor
                       Lynsey Graham-Rea, Counsel
                Misha Mintz-Roth, Legislative Assistant
                Mark Oesterle, Republican Chief Counsel
                    Jim Johnson, Republican Counsel
                       Dawn Ratliff, Chief Clerk
                      Devin Hartley, Hearing Clerk
                      Shelvin Simmons, IT Director
                          Jim Crowell, Editor

                                  (ii)












                            C O N T E N T S

                              ----------                              

                        TUESDAY, MARCH 24, 2009

                                                                   Page

Opening statement of Chairman Dodd...............................     1

Opening statements, comments, or prepared statements of:
    Senator Shelby...............................................     2
        Prepared statement.......................................    44
    Senator Johnson
        Prepared statement.......................................    44
    Senator Bunning..............................................     3
    Senator Tester...............................................     3
    Senator Warner...............................................     4
    Senator Schumer..............................................     4
        Prepared statement.......................................    44

                               WITNESSES

Daniel A. Mica, President and Chief Executive Officer, Credit 
  Union National Association.....................................     6
    Prepared statement...........................................    45
    Response to written questions of:
        Senator Shelby...........................................    85
William R. Attridge, President, Chief Executive Officer, and 
  Chief Operating Officer, Connecticut River Community Bank......     7
    Prepared statement...........................................    53
Aubrey B. Patterson, Chairman and Chief Executive Officer, 
  BancorpSouth, Inc..............................................     9
    Prepared statement...........................................    60
Richard Christopher Whalen, Senior Vice President and Managing 
  Director, Institutional Risk Analytics.........................    10
    Prepared statement...........................................    68
Gail Hillebrand, Financial Services Campaign Manager, Consumers 
  Union of United States, Inc....................................    12
    Prepared statement...........................................    74

                                 (iii)

 
          MODERNIZING BANK SUPERVISION AND REGULATION--PART II

                              ----------                              


                        TUESDAY, MARCH 24, 2009

                                       U.S. Senate,
          Committee on Banking, Housing, and Urban Affairs,
                                                    Washington, DC.
    The Committee met at 10:05 a.m., in room SD-538, Dirksen 
Senate Office Building, Senator Christopher J. Dodd (Chairman 
of the Committee) presiding.

       OPENING STATEMENT OF CHAIRMAN CHRISTOPHER J. DODD

    Chairman Dodd. The Committee will come to order. Good 
morning, everyone, and welcome to the Senate Banking Committee. 
Let me welcome my colleagues and our witnesses and the guests 
who are here in the audience. We appreciate your presence here 
this morning.
    This morning we will hold what amounts to our eighth full 
Committee hearing on the subject matter of modernization of 
Federal regulations. Today, we are talking about the 
modernization of bank supervision and regulation. This morning 
I want to welcome our witnesses. We have got a very 
distinguished panel of witnesses who are here to share some 
thoughts with us.
    We are going to again explore ways in which we will try to 
modernize and improve bank regulation and supervision to better 
protect consumers and restore confidence in our banking system. 
We do so at a time when our country's massive challenges loom 
very large indeed. All of us in the Congress of the United 
States, Democrats and Republicans alike, are trying to work 
together to meet these challenges and restore public confidence 
in our financial institutions.
    In the coming weeks, we will be working on critical 
legislation to lay out a long-term budget blueprint to address 
our continuing financial crisis and to address the issue of 
executive compensation. As we continue to address the economic 
crisis going forward, I think it is important we recognize that 
not all banks are responsible for this crisis. Quite the 
contrary. And as Chairman Bernanke has said only recently, 
small bank lending might very well help lead the way out of 
this crisis in many places. None of this is to suggest that 
small banks do not face economic troubles of their own, of 
course. Some do, and on an almost weekly basis, we hear stories 
about how the FDIC takes over banks and works to reassure 
depositors that their money will be safe.
    But it would be a mistake to paint every financial 
institution with the same broad brush, and as I have heard from 
community banks around my State of Connecticut, many of our 
community banks are in far better shape right now than the 
financial system is as a whole. Why? Well, in part because when 
the financial institutions align their practices and incentives 
with their long-term health, they are far less prone to engage 
in riskier behavior. They are far less likely to put their 
companies and the economic security of the American consumer at 
risk.
    Former Fed Chairman Greenspan believes companies would not 
take such extraordinary risks, because their own survival could 
be in jeopardy. Clearly, he was wrong, and that assumption cost 
the American people dearly.
    Some of that failure can be attributed to the prevailing 
ideology of the moment, ranging from the abusive terms mortgage 
lenders offered to the practices credit card companies still 
engage in. Many of us believe that if we had failed to protect 
the consumer, we failed to protect our economy. Others felt, of 
course, just the opposite.
    Many of us believed that if we had skin in the game, we 
would all take the consequences of our actions more seriously. 
Others were confident risk could be managed.
    Today, it is clear that consistent regulation across our 
financial architecture is paramount, and that with strong cops 
on the beat in every neighborhood, institutions would be far 
less likely to push risk onto the consumer. Regulators are the 
first line of defense for consumers and depositors, which is 
why we need to end the practice of shopping for the most 
lenient regulator and consider creating a single coordinated 
prudential regulator.
    In a crisis created first and foremost by our failure to 
protect consumers, we cannot afford to consider a so-called 
systemic risk regulator without also considering how we can 
better protect the consumers. All too often in this crisis, we 
saw that the relationship between the consumer and their 
financial institutions was, in effect, severed because of a 
lack of incentives to ensure loans are paid off down the road. 
That was not true of smaller institutions like those in my 
State and those of my colleagues' here. Like so many credit 
unions and community banks, they recognized something very 
simple: that your company reaps the benefits when you treat 
your customers fairly.
    With this hearing, I hope we can take a close look at how 
these values can be the building blocks for a modernized 21st 
century financial architecture in our country. That must be our 
goal, not only today but in the coming weeks, as we are charged 
with the responsibility of modernizing the Federal financial 
regulations.
    With that, let me turn to Senator Shelby, and then I will 
quickly turn to my colleagues for any comments they want, and 
then we will go to our witnesses.

             STATEMENT OF SENATOR RICHARD C. SHELBY

    Senator Shelby. Mr. Chairman, thank you for calling this 
hearing. I know we are holding a series of hearings here to 
build a record, and I think you are leading the way.
    I have an opening statement I would like to be made part of 
the record, and with that, I would like to, as soon as we can, 
get to the witnesses.
    Thank you, Mr. Chairman.
    Chairman Dodd. Thank you very much.
    Senator Johnson.
    Senator Johnson. I will pass and submit my written 
statement for the record.
    Chairman Dodd. Senator Bunning.

                STATEMENT OF SENATOR JIM BUNNING

    Senator Bunning. I will be brief, but I wanted to highlight 
a few points I made in the statement I put in the record for 
Thursday's hearing last Thursday.
    We all want to make changes that will make failure less 
likely to happen and the system strong enough to survive when 
failures do happen. I was impressed by Mr. Whalen's written 
testimony today. Among other things, it supports the concerns 
that I have stated many times, and I believe the Chairman and 
others on this Committee share, about the Fed's willingness and 
ability to regulate banks or overall risk. We do not need to 
give the Fed more power.
    I am going to repeat that: We do not need to give the Fed 
more power because they are no longer an independent agency. 
They are just part of the big group that is overseeing 
financial institutions along with writing legislation with the 
Treasury Secretary.
    Just creating a new regulator or two will not really add to 
stability. In fact, it just might create a false sense of 
security and a whole new class of firms that will expect 
Government bailouts if they make bad decisions.
    Congress and regulators cannot stop bad decisions or 
economic problems. Banks and other financial firms will fail in 
the future. While we want to try to prevent failure, it is at 
least as important to make sure the system can handle failure 
so there will be no temptation to bail out firms in the future.
    As Mr. Whalen points out, probably the most important thing 
we can do for stability is make sure regulators have the rules 
and powers in place to close failing firms in a quick but 
controlled manner. If we do not do that, markets will know the 
future Citigroups and AIGs of the world will not bring down the 
entire system. And market participants will act more 
responsibly because they know they will bear the consequences 
of their action. That will go a long way in creating a more 
stable system.
    Thank you.
    Chairman Dodd. Thank you very much, Senator.
    Senator Tester.

                STATEMENT OF SENATOR JON TESTER

    Senator Tester. Yes, thank you, Mr. Chairman.
    Quickly, first, I appreciate the hearing and appreciate you 
folks coming. I look forward to hearing your suggestions as we 
look for ways to instill consumer confidence and to promise 
stability in the--not in the marketplace, but in the banking 
institutions themselves.
    I would just say this: My main concern with modernization 
at this point in time is the impact, if handled improperly, on 
community banks and credit unions. I think that these folks are 
the lifeblood, especially where I come from in rural America.
    Last Saturday, as almost on a weekly basis personally, on a 
daily basis with my staff, we hear from community banks and 
credit unions about the issues that are impacting them right 
now, like premiums on deposit insurance, additional regulation 
on loan standards that really cuts back on their flexibility to 
get money out the door to local communities. And I would hope 
that whatever regulation we come up with will do what it is 
intended to do and not really hinder the folks who have really 
played by the rules and done a good job protecting their 
depositors and the folks they lend money to.
    Thank you, Mr. Chairman.
    Chairman Dodd. Thank you, Senator Tester.
    Senator Johanns--Senator Corker. I am sorry, Bob.
    Senator Corker. As usual, I will pass and wait to hear from 
the witnesses, which I think will be a beneficial thing to do.
    Thank you.
    Chairman Dodd. I appreciate that very much.
    Senator Warner.

              STATEMENT OF SENATOR MARK R. WARNER

    Senator Warner. Thank you, Mr. Chairman. I just want to 
echo what some of my colleagues have quickly said so we can get 
to the witnesses. But I appreciate you holding this hearing 
because I sometimes think particularly the media paints with a 
broad brush that everybody in the financial industry has been 
taking inappropriate actions. And the fact that today we are 
going to highlight some of the folks who are continuing to work 
through these challenging economic times and have not taken on 
some of the actions that got the industry in trouble is a good 
hearing for us, but it is also a good hearing for the public at 
large. So thank you for holding this.
    Chairman Dodd. Thank you very much.
    Senator Johanns.
    Senator Johanns. Mr. Chairman, I will just indicate I did 
get the testimony yesterday. That is so helpful and so very, 
very appreciated. So to all of you who worked to make that 
happen, I just want to express my appreciation.
    Other than that, I will pass and wait to hear from the 
witnesses.
    Chairman Dodd. Thank you very much.
    Senator Bennet.
    Senator Bennet. Mr. Chairman, I will pass. Thank you very 
much for holding this hearing.
    Chairman Dodd. Senator Bennett.
    Senator Bennett. I will pass.
    Chairman Dodd. Senator Schumer.

            STATEMENT OF SENATOR CHARLES E. SCHUMER

    Senator Schumer. I would ask that my entire statement be 
put in the record. I just want to make three quick points in 
reference to some of the testimonies.
    First, in reference to Mr. Mica's testimony, I think it is 
really important we look for more places for small businesses 
to get loans. Banks are not doing it right now. And one of the 
things I will be asking you to comment upon is legislation that 
we are putting in. I think it was in 1996 we said that credit 
unions could only do 12 percent of their lending to small 
business. I have scores, maybe hundreds, probably thousands of 
businesses in my area that cannot get loans or are actually 
having lines of credit pulled from them by banking 
institutions. I have credit unions that would like to lend to 
these businesses and prevent them--they are profitable, ongoing 
businesses--from going under, and the credit unions cannot lend 
because of the cap. I think we ought to lift it, and I will be 
putting in legislation on that.
    In reference to Mr. Whalen, having a unitary regulator 
makes a great deal of sense. Right now, banks can choose their 
regulators, oftentimes. You know, that is sort of like picking 
the umpire, and then having the umpire get paid more the more 
he is picked. We know what would happen. Senator Bunning knows 
best of all. The strike zone would expand. The calls would be 
different. And it would not work.
    And, finally, Ms. Hillebrand, I just wanted to point out 
Senator Durbin and I have introduced legislation to have a 
Financial Product Safety Commission. I think that is really 
important. That avoids the cracks in regulation that Mr. Whalen 
has talked about because if the product is regulated, not who 
issues it, you are not going to have mortgage brokers getting 
around the banks, which is what happened before. So I think 
that is important to do, and with that I would just ask that my 
entire statement be entered into the record.
    Chairman Dodd. That will certainly be the case, and true of 
all of our colleagues here and true of our witnesses as well. 
Any supporting documents or information you think would be 
helpful to the Committee will be included in the record.
    Let me welcome our witnesses this morning. Our first 
witness is Dan Mica, a former colleague of ours, a former U.S. 
Member from the House, currently President and CEO of the 
Credit Union National Association.
    Our next witness is William Attridge, and I welcome my 
constituent to the Banking Committee. Mr. Attridge is the 
President and CEO of the Connecticut River Community Bank. We 
are pleased to have you before the Committee this morning. 
Thank you for being here.
    Mr. Aubrey Patterson, is the Executive Chairman and CEO of 
BancorpSouth. He serves as Chairman of the American Bankers 
Association, and we welcome you as well to the Committee.
    Mr. Richard Christopher Whalen is Senior Vice President and 
Managing Director of Institutional Risk Analytics. Mr. Whalen 
has worked in a variety of capacities, including the Federal 
Reserve Bank of New York, where he worked in the Bank 
Supervision and Foreign Exchange Departments.
    And, last, we will hear from Gail Hillebrand, who is a 
senior attorney at the West Coast office of Consumers Union 
where she manages credit and finance advocacy teams and leads 
the Consumers Union Financial Services Campaign.
    We thank all five of you for being with us this morning. We 
will begin with you, Congressman Mica, and we would ask each of 
you to try and keep your remarks to about 5 or 6 minutes, if 
you can, so we can get to the questions. Welcome to the Banking 
Committee, Congressman Mica.

  STATEMENT OF DANIEL A. MICA, PRESIDENT AND CHIEF EXECUTIVE 
           OFFICER, CREDIT UNION NATIONAL ASSOCIATION

    Mr. Mica. Thank you very much, Mr. Chairman and Ranking 
Member Shelby and Members of the Committee. Let me just say 
that I will dispense with my written and oral testimony, try to 
summarize it to give you plenty of time for questions. I have 
heard in advance that several have to leave, so I am going to 
try to summarize very quickly.
    First and foremost, we believe in strong, fair, competent, 
tough Federal regulators for all financial institutions. It 
does no good to the industry to have a regulator that rolls 
over. We all pay. Taxpayers pay, the consumers pay, and 
ultimately industry pays. So we start out that we do need some 
good, solid, tough, fair, and competent regulation.
    And before I go into the other points, I think I need to 
hit a major point that is facing us right now, and you may have 
read the headlines over the weekend. Our Federal regulator took 
over two--into conservatorship two of our corporate credit 
unions. And I want to put this in perspective. We have 8,000 
credit unions in the United States with 90 million members--
8,000, 90 million members. We have 28 corporates where they put 
excess funds for liquidity and so on, a liquidity facility. One 
of those is a central corporate where the other corporates put 
money. And it was two of those corporates that the regulator 
took over.
    And it is interesting. Some people said, well, they should 
not have put money into these mortgage-backed securities. 
According to what the regulators have advised me just the other 
day when they took this over, all those securities were AAA or 
AA when they bought them. So the surrounding economy has 
created a problem for two of our wholesale credit unions, and 
that will impact all of us. And we will back to you and I know 
the regulator will be back to you to deal with the waterfall of 
that. We will probably be seeking, much like the banks, an 8-
year period of payback. We are not looking for a bailout but a 
payback. So we can pay that amount back that we have to refund 
the insurance fund over a period of time rather than in 1 year. 
Our legislation for credit unions, unlike the banks, makes us 
pay in 1 year.
    But I want to say this very clearly, that all of you here 
and anybody that is writing about credit unions, or talking: 
The 8,000 credit unions, the 90 million members, they are safe, 
they are sound. They have almost 11 percent capital, and every 
account is insured up to $250,000--every federally insured 
account. There are about 100, 200 credit unions that have 
private insurance. But the best institutions in the United 
States, we think, to put your money in right now, and the 
safest. But I wanted to address that because I know there were 
some concerns.
    So back to the fair, competent, strong, independent 
regulator. Essentially, the bottom line is credit unions are 
different than other institutions. We are not-for-profit. This 
is what you wrote in the law that defines a credit union, five 
things. You have to be not-for-profit, that is, 100 percent. 
And we are not like banks. We do not have shareholder 
stockholders. We are democratically operated 100 percent. We 
have volunteer boards, not paid boards like the banks. We have 
a special mission to provide consumers, and especially those of 
modest means, with credit and savings needs, consumers and 
those of modest means, not just those with modest means.
    We are virtually 100 percent on all of those. Our regulator 
does a good job. We have come out of this worst crisis since 
the Depression. And, by the way, credit unions were born of the 
Depression in the 1930s because everybody else was failing.
    We have a good regulator who understands the nuances and 
the problems that are attendant and much different than the 
for-profit system.
    If we had a separate regulator--and we have tried that in 
the past, in the 1930s, in the 1960s and 1970s. Each time we 
are essentially being put into the--it would be the chicken 
being put into the fox lair because the banking industry, the 
for-profit industry has either been oblivious to the needs of 
credit unions or, as you all know, they are very harsh about 
our existence. They feel that we may not have a place in our 
financial services system, and they try to write our rules.
    So you all know that, and we feel that unless we keep a 
separate Federal regulator--and that does not mean we love 
everything our regulator does, by any means. But if we keep a 
separate Federal regulator, we indeed would have a future in 
this country.
    So there are many things we can do, Chairman. Mr. Schumer 
mentioned member business lending. If we could get that cap 
raised, we could $10 billion with no Government assistance in 
small business loans and little America Main Street tomorrow.
    So, Mr. Chairman, I believe I am about out of time. I would 
just simply say this: I know there are questions about a 
consumer provision that was mentioned here. We again think that 
credit unions should not have to bear an undue burden, because 
we are not a part of that problem. Our members own our 
institutions. We do not abuse ourselves. And we think that all 
that needs to be taken into account as we look at what we are 
doing here.
    Yes, systemic regulation needs to be looked at, and while 
you are doing it, you might look at the rating agencies, too, 
and the ``too big to fail'' policy, because all those have 
played a part that we have all suffered collateral damage in.
    But we think you are on the right course. We look forward 
to working with you, and we thank you for the opportunity.
    Chairman Dodd. Thank you very much.
    Mr. Attridge, welcome.

 STATEMENT OF WILLIAM R. ATTRIDGE, PRESIDENT, CHIEF EXECUTIVE 
    OFFICER, AND CHIEF OPERATING OFFICER, CONNECTICUT RIVER 
COMMUNITY BANK, ON BEHALF OF THE INDEPENDENT COMMUNITY BANKERS 
                           OF AMERICA

    Mr. Attridge. Mr. Chairman, Ranking Member Shelby, and 
Members of the Committee, my name is Bill Attridge. I am 
President and Chief Executive Officer of Connecticut River 
Community Bank. My bank is located in Wethersfield, 
Connecticut, a 375-year-old town with about 27,000 people. Our 
bank opened in 2002 and has offices in Wethersfield, 
Glastonbury, and West Hartford--all suburbs of Hartford. We 
have 30 employees and about $185 million in total assets at 
this time. We are a full-service bank, but the bank's focus is 
on lending to the business community. I am also a former 
President of the Connecticut Community Bankers Association.
    I am here to represent the Independent Community Bankers of 
America and its 5,000 member banks. ICBA is pleased to have 
this opportunity to testify today, and ICBA commends your bold 
action to address the current issues.
    Mr. Chairman, community bankers are dismayed by the current 
situation. We have spent the past 25 years warning policymakers 
of the systemic risk by the unbridled growth of the Nation's 
largest banks and financial firms. But we were told we did not 
get it, that we didn't understand the new global economy, that 
we were protectionist, that we were afraid of competition, and 
that we needed to get with the ``modern'' times.
    However, our financial system is now imploding around us. 
It is important for us to ask: How did this happen? And what 
must Congress do to fix the problem.
    For over three generations, the U.S. banking regulatory 
structure has served this Nation well. Our banking sector was 
the envy of the world and the strongest and most resilient 
financial system ever created. But we got off track. Our system 
has allowed--and even encouraged--the establishment of 
financial institutions that threaten our entire economy. 
Nonbank financial regulation has been lax.
    The crisis illustrates the dangerous overconcentration of 
financial resources in too few hands. To address this core 
issue, we recommend the following.
    Congress should require the financial agencies to identify, 
regulate, assess, and eventually break up institutions posing a 
risk to our entire economy. This is the only way to protect 
taxpayers and maintain a vibrant banking system where small and 
large institutions are able to fairly compete.
    Congress should reduce the 10-percent cap on deposit 
concentration.
    Congress should direct the systemic risk regulator to block 
any merger that would result in the creation of a systemic risk 
institution. An effective systemic risk regulator must have the 
duty and authority to block activity that threatens systemic 
risk.
    Congress should not establish a single, monolithic 
regulator for the financial system. The current structure 
provides valuable regulatory checks and balances and promotes 
best practices among those agencies. The dual banking system 
should be maintained. Multiple charter options, both Federal 
and State, are essential preserve an innovative and resilient 
regulatory system.
    Mr. Chairman, we do not make these recommendations lightly, 
but unless you take bold action, you will again be faced with a 
financial crisis brought on by mistakes made by banks that are 
too big to fail, too big to regulate, and too big to manage. 
Breaking up systemic risk institutions while maintaining the 
current regulatory system for community banks recognizes two 
key facts: first, our current problems stem from 
overconcentration; and, second, community banks have performed 
well and did not cause the crisis.
    ICBA also believe nonbank providers of financial services, 
such as mortgage companies and mortgage brokers, should be 
subject to greater oversight for consumer protection. The 
incidence of abuse was much less pronounced in the highly 
regulated banking sector.
    Many of the proposals in our testimony are controversial, 
but we feel they are necessary to safeguard America's great 
financial system and make it stronger coming out of this 
crisis.
    Congress should avoid doing damage to the regulatory system 
for community banks, a system that has been tremendously 
effective. However, Congress should take a number of steps to 
regulate, assess, and ultimately break up institutions that 
pose unacceptable systemic risks to the Nation's financial 
system.
    ICBA looks forward to working with you on this very 
important issue, and we appreciate this opportunity to testify.
    Chairman Dodd. Thank you very much, and you have raised 
some very challenging questions, good questions. We thank you 
for that as well.
    Mr. Patterson, welcome to the Committee.

STATEMENT OF AUBREY B. PATTERSON, CHAIRMAN AND CHIEF EXECUTIVE 
                OFFICER, BANCORPSOUTH, INC., ON
           BEHALF OF THE AMERICAN BANKERS ASSOCIATION

    Mr. Patterson. Thank you, Chairman Dodd, Ranking Member 
Shelby, and Members of the Committee. My name is Aubrey 
Patterson, Chairman and CEO of BancorpSouth, Inc. Our company 
operates over 300 commercial banking, mortgage, insurance, 
trust and broker-dealer locations throughout six Southern 
States. I am pleased to testify on ABA's recommendations for a 
modernized regulatory framework. I might add that ABA does 
represent over 95 percent of the assets of the industry.
    Recently, Chairman Bernanke gave a speech which focused on 
three main areas: first, the need for a systemic risk 
regulator; second, the need for a method for orderly resolution 
of a systemically important financial firm; and, third, the 
need to address gaps in our regulatory system. We agree that 
those three issues should be the priorities. This terrible 
crisis should not have been allowed to happen again, and 
addressing these three areas is critical to ensure that it does 
not.
    ABA strongly supports the creation of a systemic regulator. 
In retrospect, it is inexplicable that we have not had such a 
regulator. If I could use a simple analogy, think of the 
systemic regulator as sitting on top of Mount Olympus looking 
out over all of our land. From that highest point, the 
regulator is charged with surveying the land looking for fires. 
Instead, we currently have had a number of regulators each of 
which sits on top of a smaller mountain and only sees its 
relative part of the land. Even worse, no one is looking over 
some areas, creating gaps in the process.
    While there are various proposals as to who should be the 
systemic regulator, much of the focus has been on giving the 
authority to the Federal Reserve. There are good arguments for 
looking to the Fed. This could be done by giving the authority 
to the Fed or by creating an oversight committee chaired by the 
Fed. ABA's one concern in using the Fed relates to what it may 
mean for the independence of that organization. We strongly 
believe in the importance of Federal Reserve independence in 
its role in setting and managing monetary policy.
    ABA believes that systemic regulation cannot be effective 
if accounting policy is not in some fashion part of the 
equation. To continue my analogy, the systemic regulator on 
Mount Olympus cannot function well if part of the land is 
strictly off limits and under the rule of some other body, a 
body that can act in a way that contradicts the systemic 
regulator's policies. That is, in fact, exactly what has 
happened with mark-to-market accounting.
    ABA also supports creating a mechanism for the orderly 
resolution of systemically important nonbank firms. Our 
regulatory bodies should never again be in the position of 
making up an impromptu solution to a Bear Stearns or an AIG or 
not being able to resolve a Lehman Brothers. The inability to 
deal with these situations in a predetermined way greatly 
exacerbated the crisis.
    A critical issue in this regard is ``too big to fail.'' The 
decision about the systemic regulator and a failure resolution 
system will help determine the parameters of ``too big to 
fail.'' In an ideal world, there would be no such thing as too 
big to fail, but we all know that the concept not only exists 
it has, in fact, broadened over the last few months. This 
concept has profound moral hazard and competitive effects that 
are very important to address.
    The third area for focus is where there are gaps in 
regulation. Those gaps have proven to be major factors in this 
crisis, particularly the role of unregulated mortgage lenders. 
Credit default swaps and hedge funds also should be addressed 
in legislation to close gaps.
    There seems to be a broad consensus to address these three 
areas. The specifics will be complex and, in some cases, 
contentious. But at this very important time, with Americans 
losing their jobs, their homes, and their retirement savings, 
all of us should work together to develop a stronger, more 
effective regulatory structure. ABA pledges to be an active and 
constructive participant in this critical effort.
    I would be happy to answer any questions, Mr. Chairman.
    Chairman Dodd. Thank you very much, Mr. Patterson. We 
appreciate your testimony.
    Mr. Whalen, welcome.

            STATEMENT OF RICHARD CHRISTOPHER WHALEN,
          SENIOR VICE PRESIDENT AND MANAGING DIRECTOR,
                  INSTITUTIONAL RISK ANALYTICS

    Mr. Whalen. Chairman Dodd, Senator Shelby, Members of the 
Committee, I am going to summarize my written comments and go 
down a list in bullet fashion, if you will, to respond to some 
of your comments and some of the other testimony.
    Systemic risk--does it exist? I am not sure. I used to work 
for Gerry Corrigan. I watched it in its early formations. Read 
the paper on my Web site called ``Gone Fishing,'' by the way. 
It is an allusion to his pastime with Chairman Volcker.
    What I would urge you to do is talk about systemic risks, 
make it plural, because then you are going to focus everybody 
on what we need to focus on, which are what the components that 
cause people to talk about systemic risk. A synonym for 
``system risk'' is ``fear.'' If you go back to the Corrigan 
Group's work, you will see they differentiate between market 
disturbances and systemic events. Market disturbances are when 
people are upset, unsure about pricing, stop answering the 
phone. Systemic risk is when you are not getting paid. That is 
the difference. And if the Congress would focus on what are the 
components that cause us to talk about systemic risk, then I 
think we will make progress.
    The role of the Fed: I have great admiration and respect 
for every one of my colleagues in the Federal Reserve System, 
especially for the people in bank supervision. But the Congress 
has to accept and understand that monetary economists are 
entirely unsuited to supervise financial institutions. In fact, 
they cannot even work in the financial services industry unless 
they work as economists. So when you understand their 
prejudices, when you understand their love and their devotion 
to monetary policy and economic thought, economic theory, you 
understand why it is hard for them to take apart large banks. 
They recoil in horror at the notion that we are not going to 
have lots of big dealer banks in New York City. Well, folks, 
they are gone. They are gone. We cannot put Humpty-Dumpty back 
together again.
    So my sense is we have to excuse the people at the Fed from 
all direct responsibility for bank supervision. We give them a 
seat at the table by giving them responsibility for the things 
they do well, which is market liquidity risk management, market 
surveillance, et cetera. Do not ask them to do too many things. 
In my opinion--I worked on the Hill for Democrats and 
Republicans, and the thing you constantly do over and over 
again is give agencies too much to do. Let us give each one of 
these agencies ownership of the specific area: market liquidity 
risk for the Fed; supervision and even consumer protection in 
terms of the unified regulator; and then, finally, resolution 
and insurance for the FDIC separate from the supervisory 
activities.
    Why? Well, really, if I had my druthers--and I loved the 
comments from the community bankers before--I would like to see 
the FDIC evolve into a rating agency where we could look at the 
premium they charge banks not just for their deposits but for 
all of their liabilities, and use that rating, use that premium 
charge as a basis for the public to understand the risks that 
that bank takes.
    I am delighted to hear people talk about small banks. My 
company rates little banks. Most little banks are just fine. We 
have got 3,000-plus institutions in our rating system that are 
A or A-plus. The problem is we have got 2,000, as of the end of 
2008, that we rate F. Half of those are victims of mark-to-
market accounting; about a quarter of those banks have stopped 
lending entirely. You can tell because they are running off. 
They are shrinking. Their revenue is falling. They just are not 
in a position to lend.
    So I think what we have to do is ask ourselves a basic 
question: What do we want to achieve with the future regulatory 
framework? And who are going to be the owners of each piece? I 
have provided a little graphic here, and the one thing I would 
urge you to consider both with respect to consumer protection 
and all other areas is let us see if we cannot partner with the 
States. Why can't the Federal Government set consistent rules 
for all of the banking markets in the U.S.? Leave different 
types of charters in place, let us have diversity in terms of 
charts, but then we have to come up with a way of unifying 
capital requirements, unifying safety and soundness, and having 
a level playing field. I would love, by the way, to have better 
data on credit unions. I get calls about credit unions every 
day, but I cannot rate them because the data they put through 
the National Credit Union Administration is not organized 
properly. You guys have to go spend some time with the FDIC. 
Copy their methodology. I can get a bank call report off their 
Web site in real time now. It comes out at the same time as the 
EDGAR filing for public banks. That is what investors need.
    Finally, let me just make one other comment, and I look 
forward to your questions. The reason little banks are not in 
trouble as much as big banks is because the State and FDIC 
regulatory personnel did not let them get in trouble. They did 
not let them build a financial market that is based on 
notional, fanciful, speculative contracts that have no 
connection to the real economy.
    The biggest indictment of the Federal Reserve Board is that 
they have countenanced and encouraged renters to become equal 
with owners. That is what we have with AIG. The speculators, 
the dealers in New York, have leveraged the real world with 
these speculative ``gaming contracts.'' That is the only thing 
you can call them.
    If I want home insurance, do I go to the corner grocery 
store and pay him a premium every month? No. I go to a 
reputable insurance company. Everybody on the street knew that 
AIG was the dumbest guy in the room. They all knew, and they 
sucked that firm's blood for almost 7 years. Now we have to pay 
for it? No. I disagree.
    I will be happy to answer your questions.
    Chairman Dodd. Thank you very much.
    Ms. Hillebrand, thank you very much for coming.

   STATEMENT OF GAIL HILLEBRAND, FINANCIAL SERVICES CAMPAIGN 
        MANAGER, CONSUMERS UNION OF UNITED STATES, INC.

    Ms. Hillebrand. Thank you, Mr. Chairman, Ranking Member 
Shelby, and Senators. I am Gail Hillebrand, Financial Services 
Campaign Manager for Consumers Union. You know us as the 
nonprofit publisher of Consumer Reports magazine, and we also 
work on consumer advocacy. I am happy to be here today to 
discuss how we are going to fix what is broken in our bank 
regulatory structure.
    Americans are feeling the pain of the failures in the 
financial markets. We are worried about whether our employers 
will get credit so that they can keep us in our jobs. Many 
households have lost home equity because someone else pumped up 
housing values by loaning money to people who could not afford 
to pay it back and made loans that no sensible lender would 
have made if they were lending their own money rather than 
putting the money out, taking the fee, and passing on the risk. 
We also have pain in households because of the abrupt increases 
in credit card interest rates.
    We have to start with consumer protection because the spark 
that caused our meltdown was a lack of consumer protection in 
mortgages. I am not going to talk generally about credit 
reform, but it will not be enough if we do stronger regulation 
and systemic risk regulation and we do not also do real credit 
reform. That would be like replacing all the pipes in your 
house and then letting poison water run through those pipes. We 
are going to have to deal with credit reform.
    We have two structural recommendations in consumer 
protection. The first one is for better Federal standards, and 
the second one is to acknowledge that the Federal Government 
cannot do it all and to let the States come back into consumer 
protection in enforcement and in the development of standards.
    We do not have one Federal banking agency whose sole job is 
protecting the financial services consumer, and we believe that 
the Financial Product Safety Commission will serve that role. 
It does not involve moving oversight of securities. That would 
stay where it is. But for credit, deposit accounts, and these 
new payment products, the Financial Product Safety Commission 
could set basic rules, and then the States could go further.
    Consumers know we have to pay for financial products, but 
we want to get rid of the tricks, the traps, and the 
``gotcha's'' that make it very hard to evaluate the product and 
that make the price of the product change after we buy it.
    Our second structural recommendation in consumer protection 
is for Congress to recognize that the Feds cannot do it all and 
to bring States back into consumer protection in financial 
services regardless of the nature of the charter held by the 
financial institution. We have 50 State Attorneys General. That 
is a powerful army for enforcement of both State and Federal 
standards, and we have State legislatures who often will hear 
about a problem when it is developing in one corner of the 
country or one segment of consumers, before it is big enough to 
come to the attention of unelected bank regulators, and even 
before it is big enough to come to your attention.
    At the very time that States were beginning to try to 
address subprime lending by legislation in the early 2000s, the 
OCC was actively issuing interpretations in 2003, and then in 
2004 a rule that said to national banks, ``You are exempt from 
whatever consumer protections States want to apply in the 
credit markets.''
    We have to get rid of that form of Federal preemption; 
including the OCC preemption rule. Congress needs to clarify 
that the National Bank Act really just means ``do not 
discriminate against national banks,'' but not give them a free 
pass to do whatever they like in your State; and to eliminate 
the field preemption for thrifts in the Homeowners Loan Act. 
Those are going to have to go.
    We have already tried the system where Feds regulated 
Federal institutions and States regulated State institutions, 
and it did not work partly because these institutions are 
competing in the same market, and a State legislature cannot 
regulate just some of the players in the market.
    Turning to systemic risk, we do believe the most important 
step is to close all the regulatory gaps and to strengthen both 
the powers and the attitudes--the skepticism, if you will--of 
the direct prudential regulators. Every gap is a vulnerability 
for the whole system, as we have learned the hard way, and more 
attention needs to be paid to risk.
    We agree with many others who have said we need an orderly 
resolution process for nondepository institutions. There should 
be clear rules on who is going to get paid and who is not going 
to get paid. These institutions should pay an insurance premium 
in some way to pay for that program themselves.
    We do agree there will be a need for a systemic risk 
regulator. No matter who gets that job, it must involve a 
responsible and phased transition to get rid of ``too big to 
fail.'' Either regulation has to make these complex 
institutions too strong to fail, or if private capital does not 
want to put their money in these complex institutions, then we 
have to phase them into smaller institutions that do not 
threaten our system.
    In closing, we have got to get the taxpayer out of the 
systemic risk equation, and we have got to put consumer 
protection back into the center of bank regulation.
    Thank you.
    Chairman Dodd. Thank you very, very much. I appreciate 
again your testimony here this morning. It has been very 
helpful.
    Let me start the questioning. First of all, while I haven't 
cosponsored the bill that Senator Schumer and Senator Durbin 
have on financial product safety, I think there is some real 
value in the idea.
    I also think there is general consensus among our 
colleagues that we need to fix regulatory arbitrage, where 
banks shopping around for the regulator of least resistance. I 
am trying to sort of sense just in conversations where our 
commonality of interest is.
    I think there is general consensus in the community banks, 
Mr. Attridge. I hear that all the time here--That people 
appreciate it when they speak to their own community banks. We 
should be more careful about how we characterize banking 
generally and look through what has been going on at the 
community level.
    Let me get to the issue of systemic risk. Mr. Whalen, your 
point about systemic risks is not a bad idea, that is, using 
the plural to talk about it, and also the issue of resolution 
management for nondepository institutions. I have some real 
reservations about the idea of the Federal Reserve. I just 
don't like the idea of a systemic risks regulator talking to 
itself. I think there is a danger when you are not listening to 
other voices when it comes to systemic risks, then you only 
hear your own voice.
    And as you are examining the issue of systemic risks, 
whether it is just by the size of the institution or the 
products and practices they are engaging in, there are various 
ideas that one ought to apply. Dan Tarullo, I thought, was very 
good the other day before this committee talking about how he 
would define systemic risk and the importance of looking at it 
from various perspectives.
    I, for one, would be intrigued with looking at alternative 
ideas, one of which has been raised by Gene Ludwig, who I think 
all of us are familiar with here. He raised the idea of a 
council, where it would be made up of the Fed, the OCC, the 
FDIC, possibly others, and where you would have a professional 
staff that would be analyzing systemic risk and rotating 
chairmanships with Treasury and others, so no one agency would 
necessarily dominate it. This is an idea that is interesting as 
an alternative to the Fed or some others that have been 
suggested.
    I would like, if you might, Mr. Whalen, to comment on this 
concept and if you think it has any value.
    Mr. Whalen. Well, I am kind of old fashioned. I start with 
the U.S. Constitution, and in the Constitution, it told the 
Congress you will have Federal Bankruptcy Courts, and in the 
18th century, that basically meant that bankruptcy was remote 
from politics. Over the last two centuries, we have politicized 
insolvency. In the 1930s, we had the Federal Deposit Insurance 
Act, which is, if you think about it, an extra chapter of 
bankruptcy, special to deal with financial depositories.
    But at the end of the day, we have the mechanisms today to 
deal with these issues. We just don't have the political will. 
And you hear excuses coming from various quarters that say, oh, 
you can't resolve these big entities. They have complex 
financial relationships with other entities, dah, dah, dah, 
dah, dah. Well, if that is the case, then private property is 
gone. We have socialized our entire society and we might as 
well just dispense with it, nationalize the banks, and get on 
with ordering them in an efficient manner in a socialist sense.
    But that is not American. Americans are meant to be 
impractical because the Founders knew that inefficiency is a 
good thing. So how do we, on the one hand, keep our efficient 
market, keep markets disciplined, but don't destroy ourselves, 
and I think it comes back to limiting the activities and the 
behavior of the institutions.
    Don't think about systemic risk as a separate entity. It 
grows out of the activities of the institutions. And I will 
tell you honestly that our work, we did a lot of research on 
the profitability of banks, on the behavior of banks, their 
business model characteristics. The larger banks are not very 
profitable. I mean, they are almost utilities now.
    So what was the answer by the Fed? Let us take more risk. 
The Fed wants to keep their constituents profitable, healthy, 
liquid. They would push them up the risk curve in terms of 
trading activities, over-the-counter derivatives, what have 
you. But then you look at the little bank that has 80 percent 
assets and loans and they are more profitable. In fact, on a 
risk-adjusted basis, they are three times more profitable than 
a big bank.
    So what I am saying to you is that if you want to fix 
systemic, look at the particular.
    Chairman Dodd. That is a very valid point.
    Mr. Patterson, how about you? I would like to hear from the 
other witnesses quickly on the systemic risks regulator, the 
idea of an alternative to the Fed.
    Mr. Patterson. The concern, as I indicated in my prepared 
testimony, there has been a lot of focus on the Fed performing 
that function and there are pros and cons to it, but clearly 
they have been suggested. The major concern that I think my 
colleagues and I at the ABA would have is any interference with 
or encroachment on their primary duty, which is as an 
independent central bank responsible for monetary policy. That 
doesn't mean that they are not capable of performing that 
function, and I would respectfully say that I don't think the 
Fed has pursued a policy of encouraging riskier activities by 
larger institutions, but we do think their primary function is 
and should continue to be as an independent central bank 
primarily responsible for monetary policies.
    Chairman Dodd. So an alternative idea to the Fed is 
something that you would be inclined, or willing to look at.
    Mr. Patterson. Yes, sir.
    Chairman Dodd. Mr. Attridge.
    Mr. Attridge. I don't have a problem with the----
    Chairman Dodd. The microphone, please.
    Mr. Attridge. I am sorry. I guess I have to bring it back 
to where I am in terms of running a community bank, and 
speaking on behalf of our bank and other banks in Connecticut, 
most of those that have been damaged--and most are doing well.
    Chairman Dodd. I agree.
    Mr. Attridge. Their operating earnings are fine. Where they 
have been damaged is in the hits they have been taking to 
capital and those hits are coming from government-sponsored 
enterprises. A lot of them invested in Fannie Mae or Freddie 
Mac preferred stock over the years. They were encouraged to do 
so, and how could it be a bad investment? It was a government-
sponsored enterprise.
    Fannie and Freddie, when you mention mortgages that are 
made by Fannie and Freddie, that is basically the gold seal. If 
you are buying Fannie and Freddie mortgages, they are 
appropriately underwritten and loan-to-values are good, people 
are rated to determine whether they can pay them back, and that 
is all fine. But someplace along the line, that failed, and for 
whatever reasons, Fannie Mae and Freddie Mac went out and 
bought private securities that didn't fit their own standards 
for underwriting.
    The same thing has happened with the Federal Home Loan 
Bank, where banks are now concerned about the investment they 
have in the Federal Home Loan Bank, and most banks have 
basically said, well, we are not going to continue to borrow 
from the Federal Home Loan Bank until that gets resolved 
because we don't want to have any exposure. When is the other 
shoe going to drop with the Federal Home Loan Bank? They have 
cut their dividend. They said they are not going to buy back 
stock for those that are repaying off their loans and in the 
past would have had the right to offer their stock back. The 
Federal Home Loan Bank is not doing that for the same reason. 
They went out and bought so-called toxic securities.
    So whatever the regulator is has to look at not just the 
banks, they have to look at the kind of financial instruments 
that are basically everywhere and are being purchased by banks, 
others, insurance companies, et cetera. They are not being 
rated right by the rating agencies. I don't know whose job that 
is, whether it is the Fed or a council, as you mentioned, 
Senator. Someone has to look at all the instruments that are 
involved in our system.
    And someplace back in Economics 101, Wall Street was there 
to allow the average citizen to participate in the capitalistic 
society, a place where you could purchase stocks. I think a 
majority of Wall Street now, or a good part of it, is basically 
a casino, and the financial instruments are nothing more than 
gambling, in my opinion, and I am not sure that is----
    Chairman Dodd. But the notion of the Federal Reserve, do 
you share the concerns expressed by Mr. Patterson and others 
about the Federal Reserve, given its responsibilities already 
in monetary policy and others----
    Mr. Attridge. I don't share that concern. I just think they 
probably are sitting at--or of any institution we have now that 
is in the appropriate spot to look at the ramifications of what 
is going on from the highest part--from the top of the 
mountain, I think they are probably in that position.
    Chairman Dodd. Senator Shelby.
    Senator Shelby. Thank you.
    Mr. Whalen, I want to pick up on something I understood you 
to be saying, and you can correct me if my impression is wrong. 
The Federal Reserve is and was the primary regulator of our 
holding companies, is that correct?
    Mr. Whalen. Yes.
    Senator Shelby. Where were they, if they were a bank 
regulator, where were they as a bank regulator, their role 
there as all these big banks got in such awful trouble? Where 
were they? That is the question. And if they were the primary 
regulator, gosh, you would have to give them an ``F.'' You 
would have to give them an ``F'' if you were a teacher on their 
ability to regulate the banks.
    Now, as you mentioned, they are economists, basically, and 
so that is troubling to me and I think it is also to Senator 
Dodd, Senator Bunning, and others. A lot of people have been 
saying, gosh, we are going to have to give the Fed the power as 
we go down the road because maybe by default. I don't believe 
that. I think whatever we do here, we have got to do it right. 
We have got to be comprehensive about it. But gosh, I see the 
Fed as a bank regulator big-time failing the American people. 
Do you want to comment on that.
    Mr. Whalen. Well, I think it is a failure born out of 
distraction. The Fed, as I mentioned before, the senior levels 
are populated by academic economists primarily. We occasionally 
let a banker in there or a generalist, but it has primarily 
become a place for patronage appointments of economists.
    And frankly, if you look at the history of financial 
economics, the development of innovation, as we call it, 
derivatives, et cetera, these are all the intellectual 
playthings of the economists. So they promoted all of this 
innovation that we have heard from the other witnesses that is, 
in fact, now killing the little banks who weren't involved in 
it in the first place.
    Senator Shelby. Promoted the consolidation of the whole 
banking system, didn't it.
    Mr. Whalen. Well, yes, in a sense. I mean, if you look at 
Wells-Wachovia, the solution to a large bank insolvency was to 
slam it together with another large bank. This is a bad idea. 
We should resolve institutions as they are. You know, they were 
about to merge Citi with Wachovia. What do the people at the 
Fed think of? They have the data. They know what the 
profitability and the internal risk numbers are for these 
banks.
    So I think culturally, they are ill equipped to put to the 
sword the dealers who enable their monetary policy. If you want 
to really simplify it, they just can't bring themselves to be 
tough on the very institutions with which they depend on 
implementing monetary policy.
    You know, Bank of America and Merrill, I think is a classic 
example of this. Here was a horrible transaction that should 
never have been approved by the application side of the Fed, 
but the monetary policy people and the primary dealer folks 
said, oh, we have to keep this primary dealer intact. We have 
to sell Treasury bonds. Of course, it is a good point. I think 
we should have restructured the dealer and sold it to new 
investors. That is what we should have done. And the Fed can't 
do that. They are just completely incapable of making a 
decision like that, in my opinion.
    Senator Shelby. What is the end game with AIG, as you see 
it? More taxpayers' money floating their business and----
    Mr. Whalen. No. I pray to God that we find the courage to 
put that company out of its misery and put it into bankruptcy, 
where it should have been 6 months ago, because if we don't do 
that, then we are holding the people of the United States and 
the world hostage to the credit default swap market. If you put 
AIG into bankruptcy, you are not going to end the world, but 
you are going to end the credit default swap market as we know 
it, and I think that would be a beneficial thing for everybody.
    Senator Shelby. There is no end game, is there.
    Mr. Whalen. Well, if we have the courage, there is----
    Senator Shelby. No, but there is not right at the moment.
    Mr. Whalen. No, not at the moment. No. Absolutely not.
    Senator Shelby. Credit rating agencies--while many banks 
did not engage, as you said, in substandard underwriting for 
the loans they originated, many of these institutions bought 
and held so-called AAA-rated securities that were backed by the 
poorly underwritten mortgages.
    Mr. Patterson, I want to ask you this question. Why was it 
inappropriate for these institutions to originate these loans, 
but it was acceptable for them to hold the securities 
collateralized by them.
    Mr. Patterson. If I understand the question, Senator 
Shelby, the ability to hold is based on the policies and the 
oversight of what the securities are backed by. If I could add 
to this just a little bit, one of the things that I think has 
exacerbated the problems we deal with enormously has been--and 
it is not unrelated to the question, I think--has been the fact 
that illiquid markets have resulted in an application by FASB 
and by the accounting fraternity in taking illiquid markets 
where there were no willing buyers and sellers and creating the 
necessity for an inappropriate write-down of the value of the 
assets which are otherwise still performing or at least are 
performing to a greater extent than the required write-down to 
a nonfunctioning marketplace.
    That is the subject of a broader discussion which I hope we 
have as to what a better solution would be with the role of the 
general primary regulator, the prudential regulator, and the 
systemic regulator as to ensuring that the current 
unresponsiveness, or at least the previous unresponsiveness of 
FASB and the SEC to find a reasonable solution to this problem 
that fits the business model of the institutions that are 
holding those investments is something that can and will be 
dealt with promptly.
    Senator Shelby. Mr. Whalen, do you envision a powerful 
regulator of all of our financial institutions, in a sense, 
including insurance, because of the risk that some companies 
like AIG have caused in the marketplace.
    Mr. Whalen. Well, as I said in my remarks, I think the 
Congress needs to mandate a level playing field as far as 
disclosure goes, because that way, companies like mine can rate 
insurance companies, too. It is very difficult to do insurance 
companies right now because the industry sits on the data. The 
NAIC will not do what they need to do to get that data really 
usable like the FDIC.
    Let us remember, the FDIC is the gold standard when it 
comes to public disclosure of financial data. They have done 
tremendous things as far as making really useful portfolio-
level data on banks available to analysts.
    Senator Shelby. Mr. Whalen, where did the doctrine of ``too 
big to fail'' that our Fed Chairman is all wrapped around now 
come from and how flawed is that.
    Mr. Whalen. Oh, it is hideously flawed. It goes against 
everything that Americans stand for. I think Andrew Jackson was 
right. The Fed, the central bank is a source of evil and we 
have to fence it.
    But having said all that, the bottom line is that since the 
LDC debt crisis and the real estate problems in the 1980s, the 
central bank has taken the view that certain large financial 
services companies cannot be subject to traditional bankruptcy, 
like WAMU, like Lehman Brothers. I would tell you that Lehman 
is the model. You should invite the U.S. Trustee for the 
Southern District of New York to come sit here all day and talk 
to you about the resolution of Lehman, because that is what we 
should do with AIG.
    Senator Shelby. If an institution is too big to manage, and 
a lot of them seem to be----
    Mr. Whalen. Yes.
    Senator Shelby. ----then it would follow that they are 
probably too big to regulate----
    Mr. Whalen. Oh, absolutely.
    Senator Shelby. ----so we have created a monster among 
ourselves, have we not.
    Mr. Whalen. Our colleagues talked about the mountaintop, 
the God's eye view. There is no such thing, my friends. I work 
in analytics. I worked in finance my whole life. There is no 
God's eye view. And even when you give people information, they 
don't necessarily act on it. One of my best friends wrote a 
piece about AIG in 2001 that was covered in The Economist. Herb 
Greenberg threatened to sue him, and he didn't back down and 
eventually AIG had to go away. He was right, but nobody paid 
attention.
    Senator Shelby. Thank you, Mr. Chairman.
    Chairman Dodd. Senator Johnson.
    Senator Johnson. Mr. Mica, would you care to comment about 
Mr. Whalen's criticism of your industry and its ratings.
    Mr. Mica. I am not here to defend our regulator in that 
sense, but I will tell you this. We do have a call report and 
that call report does give data that we look at. It gives us a 
good picture of how a credit union is doing. Could it be 
better? Could the technology be better? Certainly.
    I don't know how he does his ratings, but let me just 
mention, the Chairman mentioned rating agencies earlier. I, 15 
or 20 years ago, sat on the other side of this table and the 
largest insurance company failure in America happened and the 
day before, it was AAA ratings. So we are starting to see that 
all over again. We see it again, and it is not just one agency, 
it is others.
    So I do think that there are some areas that need to be 
looked at other than just the regulation of the industry, 
because you have to turn to others to get a sense of what you 
are investing in, and the public and the commercial enterprises 
of this Nation have looked there. So I don't have the answer. I 
just think it is something that needs to be looked at.
    And again, with regard to our regulator, our call report is 
good. It probably could be better.
    Senator Johnson. Does CUNA support a systemic risk 
regulator? If not, please elaborate.
    Mr. Mica. We would support the concept of a systemic 
regulator. Again, we think that NCUA, because of the special 
nature of credit unions--credit unions are very unique in our 
financial services system--that they should continue, and we 
don't shop regulators. We have a dual-charter system, but we 
have lived and all federally insured credit unions all deal 
with the NCUA, but they have a special niche in our society. We 
are 6 percent of the market. And in every case we have seen 
historically--we were in the Farm Credit Administration, we are 
in the FDIC--wherever we get put, we get put down if we don't 
have some separate interest looking after us.
    So we do think the concept is worthy of discussion. The 
Chairman mentioned earlier about bringing together the three 
major entities that now regulate, and I don't know if that is 
the answer or not. I do tend to agree with one thing, not 
everything that Mr. Whalen said by any means, but the fact is 
that when it gets to the systemic risk level, the other 
agencies have already failed, the regulators, and if you are 
going to call on the ones who have already failed, you may have 
a problem with a little self-defensive feeling. But we are open 
to any concept because we don't ever want to see what is 
happening to this country happen again. We are willing to 
discuss it.
    Senator Johnson. Mr. Attridge, in your testimony you 
suggest that depository institutions' withholding companies 
should have a systemic risk fee imposed on them by the FDIC. 
Can you expand on this idea? How much would this fee be in 
addition to regular premiums.
    Mr. Attridge. I don't know exactly how much the fee would 
be, but basically, right now, I disagree with the statement 
that the FDIC has failed in picking up systemic risk. I don't 
think that was their job. I am not sure their definition--they 
have done an excellent job in administering and regulating and 
resolving problems with the banks. I don't know what the 
details of their charter is, but I don't think that they were 
given the responsibility of regulating systemic risk.
    Mr. Mica. And I agree with that. I agree with that.
    Mr. Attridge. As far as our belief that some sort of 
premium should be paid, it basically just comes from the fact 
that right now, if you look at what is going on, a major 
problem for the community banks is the potential one-time 
assessment to refund the Insurance Fund, the FDIC Insurance 
Fund, and get the reserves back up to where they should be. Yet 
it is not really coming from problems that were in the 
community banks. It is coming from the systemic issues. At 
least that is my belief.
    So I don't know what the number would be. Certainly, 
whoever analyzes this could come up with a number that said, 
all right, in this holding company you have a bank. The bank 
would pay the FDIC insurance rates, but there is another part 
of that, of the risk in that holding company that will demand 
another premium that they would fund. And the amount of that, 
someone would have to really determine by analyzing the past 
history of the failures.
    Senator Johnson. Mr. Patterson, currently, there are 
resolution mechanisms for depository institutions that fail, 
but not for holding companies of the depository institutions. 
Who should be in charge of unwinding failed holding companies.
    Mr. Patterson. I think, if I could respond and expand on 
that just a bit, I do think that the FDIC has the primary 
function in the insurance of deposits and the regulation of 
banks themselves. When we look at holding companies, we are 
looking at an evolving type of holding company, obviously, as a 
result of the crisis that we have gone through. We have a new 
cadre of holding companies that have entered that structure and 
have a period of time to come into compliance with it. They 
obviously are under the current law.
    But it does seem to me that this goes also to the issue of 
the nonbank financial companies that are, whether we agree that 
it should be or not, the reality is there is a ``too big to 
fail'' reality, at least in the present and soon-to-be-future 
instance. That to me calls for a solution that resolution, to 
your point, that is not the proper role for the FDIC, which 
ought to be focused on deposit insurance and the regulation of 
banks.
    I know that the Treasury has recently come with some ideas 
on this. I don't have a suggestion other than the fact that the 
resolution of those failures, particularly in the cases that I 
have described, should certainly be outside, in my opinion, be 
outside the realm of the FDIC's normal processes.
    Senator Johnson. My time is up. Thank you.
    Chairman Dodd. Thank you very much.
    Senator Bunning.
    Senator Bunning. Yes. A general question for everybody. Of 
you sitting at the table, how many believe that the Federal 
Reserve is an independent agency, since they have been involved 
with Treasury and others in making up all these bailout 
policies that we have been dealing with? And yesterday, 
according to the Secretary of the Treasury, they are 
responsible for the $1 trillion-plus that are going to buy up 
these supposedly illiquid assets. So if they aren't in bed with 
the administration and the Treasury, where are they as far as 
independence as their charter, the 1930-some, or whatever year 
it was written, charter for the Federal Reserve made them? 
Anybody.
    Ms. Hillebrand. Senator Bunning, it is very hard, not being 
in the room, to know who should have done what differently. We 
are concerned about two other encroaches on the----
    Senator Bunning. No, answer my question, ma'am.
    Ms. Hillebrand. I think that they have opened the credit 
window in a way that has created some expectations it will 
remain open and we have to worry about closing that. We are 
also concerned----
    Senator Bunning. Are they an independent agency? That is 
the question.
    Ms. Hillebrand. So far.
    Senator Bunning. So far, they are an independent agency? 
Next.
    Mr. Whalen. No.
    Senator Bunning. No.
    Mr. Whalen. I think they have abdicated all of their 
statutory responsibilities.
    Senator Bunning. Responsibilities? Mr. Patterson.
    Mr. Patterson. Clearly, it has become fuzzy of necessity. 
They have acted out of necessity, but----
    Senator Bunning. Necessity? In other words, saving AIG was 
a necessity.
    Mr. Patterson. Was determined to be a necessity.
    Senator Bunning. OK. Mr. Attridge.
    Mr. Attridge. I don't know the degree of their 
independence, as to how political they are, but I think I would 
say that if they are given the responsibility for overseeing 
financial risk, it would seem to me that they could bring on 
the kind of people that they need to do that job.
    Senator Bunning. Are they or aren't they independent is the 
question.
    Mr. Attridge. Senator, I don't think I can answer that 
question.
    Senator Bunning. OK. Dan.
    Mr. Mica. Yes. Legally, they are. Actually, they are not as 
what they are doing----
    Senator Bunning. OK, that is----
    Mr. Mica. May I clarify an earlier statement, though? It 
was----
    Senator Bunning. No. I have got limited time and you can't.
    Mr. Mica. I will come back later. Thank you.
    Senator Bunning. OK. Mr. Whalen, do you think there is 
anything that credit default swap add to the system that is 
worth the risk they pose.
    Mr. Whalen. Only if you restrict the purchase of protection 
to those who have an economic interest in the underlying basis, 
the company, the instrument. When you let derivatives settle in 
cash so that the buyer of protection doesn't have to deliver a 
bond or a loan or whatever else is used to define the terms of 
the contract, then you have loosed the bounds of earth and you 
allow people to multiply risk infinitely, and this is what we 
have with AIG.
    Senator Bunning. How many here at this table think that the 
new plan that the Secretary of the Treasury expressed yesterday 
in conjunction with the Fed--you know the reason they used the 
Fed is they don't want to come back to the Congress and ask for 
new TARP money because they know the answer will be, ``No.'' So 
they are going to have the Fed print the money and the American 
taxpayers be on the hook for the money, over $1 trillion again. 
Do you know how much money that is since last September? Seven 
trillion. That is more than our whole national debt was just, 
like, 5 years ago.
    Now, if you think that the Fed is an independent agency, 
you are smoking something that is illegal, because I have sat 
here in this same seat and asked Chairman Bernanke questions 
about ``too big to fail,'' and he said, yes, there are 
institutions too big to fail. And I asked him, who allowed that 
to happen, and he couldn't answer. And his only job at the time 
was to regulate mortgages and set monetary policy, failing in 
both.
    Mr. Whalen.
    Mr. Whalen. I think the key failing of the Fed was their 
inability to say no, much like Moody's and S&P not saying no 
when the Street brought them toxic----
    Senator Bunning. Yes, but they were getting paid huge sums 
of money for those AAA ratings and AA ratings, because I know, 
my son was involved with Moody's and Standard & Poor for his 
company, and when he got finished getting his BB rating, he had 
to pay $250,000 to those two entities.
    Mr. Whalen. A very important point, if I can interrupt you. 
When Moody's and S&P were doing that, they were operating in 
the primary market for securities, before the securities are 
offered to the public. This is the key issue. When a rating 
agency is following a security in the secondary market, they 
are acting as journalists. But when they are in the conference 
room with the lawyers and the bankers structuring the 
liabilities of a brand new Delaware corporation that is going 
to issue securities to the public, they are acting as a banker.
    I was a supervisor of investment bankers, and this is why I 
get so enraged by this point. They were across the line. That 
is where we have a problem.
    Senator Bunning. Thank you.
    Thank you, Mr. Chairman.
    Chairman Dodd. Thank you very much, Senator Bunning.
    Senator Tester.
    Senator Tester. Thank you, Mr. Chairman.
    In these questions, I hope we can keep the answers fairly 
concise, but this first one is to Mr. Whalen. AIG, and all the 
banks that are too big to fail, if we allow them to fail, can 
you give me a short, very short synopsis on what the impacts 
are if AIG goes away.
    Mr. Whalen. The bondholders will take a loss. We are 
subsidizing the bondholders and the counterparties of AIG right 
now with public funds. And we are doing this with Citi, we are 
doing this with Fannie and Freddie, and apparently we are 
prepared to do this with other banks so the taxpayer is going 
to subsidize the loss so that the bondholder does not take----
    Senator Tester. What impact does it have on my operating 
loan as a farmer.
    Mr. Whalen. I think very little at the end of the day, if 
it is handled correctly.
    Senator Tester. What impact does it have on the loan of the 
homeowner.
    Mr. Whalen. I think at the end of the day it would be 
beneficial. If an adult stands up and says I am going to 
resolve this, I am going to give you finality, I think the 
markets would rally.
    Senator Tester. Short term and long term.
    Mr. Whalen. Yes.
    Senator Tester. And what about if all 17 that are too big 
to fail--I think that is how many there are. Say there are 10.
    Mr. Whalen. Oh, I do not expect that to happen. Look, the 
top couple may need to be really restructured, but I am hopeful 
that if we turn the direction of the economy around we can deal 
with the others in a reasonable fashion.
    Senator Tester. All right. And I do not want to put words 
in your mouth but--and I appreciate that perspective, by the 
way. You had said that you rate banks. There are 3,000 of them 
that are A; there are 2,000 of them that are F mainly due to 
mark-to-market.
    Mr. Whalen. About half of the 2,000 at the bottom are mark-
to-market, and the way we tell this is that they are not 
showing big loan losses. They have minus signs in their return 
on equity.
    Senator Tester. OK. How do we solve that.
    Mr. Whalen. You modify the FASB rule. But here is the 
thing, as I have been telling my clients: We may dodge the 
bullet by changing the accounting rules, but the underlying 
economics are still going to make us charge off these assets. 
So you are not getting anything. It is already baked into the 
pie. Whether we change the accounting rules or not, we are 
still going to see impairment on these assets as we go forward 
this year.
    Senator Tester. OK. So in the end, end of story, those 
2,000 are still in trouble.
    Mr. Whalen. They are in trouble, but, you see, it is a very 
different thing when a bank is simply writing off assets that 
are still performing versus charging off loans that are lost. 
That is the difference.
    Senator Tester. I understand. This is directed to Mr. 
Patterson or Mr. Attridge. I am hearing from my community 
bankers in the State of Montana--I do not think it is singular 
to them, because you guys addressed part of it--that the 
regulators are coming in, and even though the community banks 
for the most part, at least in my State, have done a great job, 
are coming in and putting the squeeze on them from a regulatory 
standpoint so they cannot loan money maybe because they are 
saying you either have to write down some of these loans or the 
mark-to-market issue comes up, or just the fact that they want 
to make sure that nobody fails or nobody gets in a situation 
where they have to shut them down, they are pinching them hard. 
And it is having some real negative effects in the economy 
because money is not available to be loaned for a whole 
different reason and all the other stuff.
    Could you kind of respond on that, Mr. Patterson or Mr. 
Attridge--Mr. Patterson first--if that is real and if you think 
it is necessary.
    Mr. Patterson. Certainly, there is at least some discussion 
that there may be a mixed message. But the fact is that the 
vast majority of banks are lending, do have lendable funds, do 
have strong capital ratios. And regulators in the field are 
always going to be focused on safety and soundness of the 
performance of the individual bank.
    Senator Tester. But I am hearing from the banks right now 
they are more concerned about that than they were a year ago.
    Mr. Patterson. Well, I have been in this business 40 years 
at the same bank, and we have grown to be a rather large 
institution. And every time there is a down cycle in the 
industry, regulators focus a bit more on safety and soundness, 
and should. But I----
    Senator Tester. Mr. Attridge, do you--go ahead.
    Mr. Patterson. Could I just comment on something Mr. Whalen 
said? Just a slight disagreement on mark-to-market accounting 
and the impact on the books of the banks.
    Senator Tester. OK.
    Mr. Patterson. His comment referred to an end loss, but I 
think the important thing is to understand that the role of 
FASB and the SEC, or whatever group, hopefully, succeeds in 
that responsibility to them, is such that the business model of 
the institution has an effect on the way that the new rules are 
promulgated.
    There is no reason for a bank whose business model is to 
buy and hold securities to have to take a loss that erodes 
their capital and inhibits their ability to make loans.
    Senator Tester. I understand.
    Mr. Attridge, I want to go back to the regulation question. 
Does increased regulation for the community banks in particular 
by the OCC have negative impacts on those banks' ability to 
make loans? And is their increased regulation something you 
think is proper.
    Mr. Attridge. I have not experienced that. My particular 
bank--or my bank gets reviewed every 18 months, ultimately by 
the State of Connecticut as well as the FDIC. We are due for an 
exam at the end of April by the FDIC.
    I am hearing from other banks that have been reviewed more 
recently, and a mixed message: Some of them saying there is 
really no significant difference from their past exams; a 
couple have said, yes, they have been asked to basically rate-
shock or adjust the values on some of their larger loans to----
    Senator Tester. Do you hear it from any banks that are 
being regulated by the OCC.
    Mr. Attridge. Yes, and I would say it was probably more 
pronounced there in terms of the OCC's request that they look 
at the banks with a more--excuse me, look at the loans with a 
more jaundiced eye, look at real estate values, and look at how 
those loans would perform if there was deterioration, further 
deterioration in the economy.
    Senator Tester. Thank you.
    Thank you, Mr. Chairman.
    Chairman Dodd. Thank you, Senator Tester, very much.
    Senator Johanns.
    Senator Johanns. Mr. Chairman, thank you.
    Let me start out, if I might, and actually thank the 
Chairman for his comments about the Federal Reserve as the 
super-regulator, if you will. I have not liked that idea from 
the beginning. It would seem to me to be just an enormous 
conflict of interest, that you would have the policymaker, the 
monetary policymaker then regulating the very entities that 
implement the policy. And I think that would just be all tied 
around the axle very, very quickly, and as you point out, they 
are finding it hard to regulate.
    So I am glad that idea has surfaced and been discussed, but 
I am hoping at some point here we put that to bed quickly 
because I think it is just the wrong direction, and I want to 
say that to start out.
    If I could, Mr. Whalen, a couple of questions for you. When 
you talk about systemic risk and the need to focus on that, do 
you include in the definition of that risk just the sheer fact 
that an institution, if you were to look at their books, may 
look good, may even look great, but they have just gotten so 
darn big that if anything happens, the threat of bringing the 
Nation's economy down is real and exists? Is that something we 
should be looking at, just the bigness, the magnitude of the 
organization? I would like to hear your thoughts on that.
    Mr. Whalen. I think there are two aspects to that. It is a 
very good question. One is size and the other is complexity. If 
you look at Citi, for example, a quarter of their liabilities 
actually contribute to the deposit insurance fund now, the 
domestic deposits. The foreign deposits do not contribute and 
all of the bonds, which fund the other half of the company, do 
not contribute. So if you look at Citi, really they are 
actually contributing on a dollar of assets basis less than the 
community bankers are, because most of their deposits are 
domestic. The little guys are pulling the train.
    So I think that Congress has to look at market share and 
has to look at complexity, and based on those two, if it were 
up to me, I would break up the top four banks and have them end 
up maybe a third of their current size. If I had 10 or 20 or 30 
banks the size of U.S. Bankcorp, instead of four, which now 
predominate over the entire industry, I think we would have a 
more stable system.
    Let me give you a number that will probably scare you a 
little bit. My maximum probable loss for the banks in the 
country above $10 billion in assets is $1.7 trillion. That is 
what we call ``economic capital.'' It is a worst-case loss 
number. But $1.4 trillion of that is top four institutions. 
There are a lot of banks in that list that actually subtract 
from that number because they are so much less risky than the 
big guys.
    We need a market share limit that looks at liabilities 
instead of deposits, in my opinion, and then as I said before, 
I would love to see the FDIC, as part of the systemic risk 
solution, rate banks based on their risk. Their premium, the 
contribution, the tax that they pay toward bank resolution 
costs should reflect their riskiness. And many of the 
institutions at this table would obviously be at the low end of 
that scale, as they should be.
    Senator Johanns. Your thoughts on this tend to lend some 
support, in my judgment, to this concept of maybe it is almost 
a group sort of approach, because you are looking at a number 
of different factors, and I wanted to throw that out.
    The second thing that I wanted to ask you--and this is 
maybe a little bit at the edges, but maybe not. When I think 
about systemic risk and I think about what has happened in the 
last 6 months, I think about the money that has been put into 
AIG and others, and I recognize it is all borrowed money. And I 
ask Chairman Bernanke about this, and he thoughtfully answered 
that, you know, this is a very difficult time for the economy, 
we probably need to solve the deficit issue at a later date.
    Next week, we will start debating a budget with massive 
deficits, as far as the eye can see, new programs, Government 
expansion, on and on and on. How big of a risk is that to our 
economy? I see China's comments. I see economists starting to 
opine about the threat that this is creating. How big of a risk 
is our inability to manage our deficits to our Nation's 
economy.
    Mr. Whalen. Well, I think it is a horrible risk, and what I 
have said to people in the administration and to my clients and 
the readers of our public newsletters is that I do not think we 
can fund it. Does anybody really believe that we can go to 
market looking for $200 or $250 billion at a shot in new money 
and roll the existing paper that is coming due in that period? 
I do not think we can fund it.
    We have to go look for ways to limit the cash cost of 
subsidies for our financial institutions so that we can focus 
on the economy. And the way you do that is by resolving these 
companies in the traditional fashion. Otherwise, these zombies 
will keep eating cash as long as we leave them alive. That is 
the issue. If you want to stop giving money to AIG, push it 
into bankruptcy. Let the State of New York Insurance 
Commissioner deal with the underwriters, and then the rest of 
it gets resolved by the U.S. Trustee. And I will say it again: 
That man should be sitting here. I would spend a whole week 
with him.
    Senator Johanns. Mr. Chairman, thank you.
    Chairman Dodd. Thank you.
    Senator Warner.
    Senator Warner. Thank you, Mr. Chairman. I want to continue 
a little bit on the line of my colleague from Nebraska on the 
``too big to fail'' component.
    Mr. Whalen, I thought some of your comments were very 
telling in terms of the amount of exposure we have from the top 
four banks. I guess I would ask Mr. Patterson, perhaps wearing 
more of your ABA hat than just your Bancorp hat, whether, one, 
you agree with Mr. Whalen's comments; and, two, some argument 
meant that if we were to try to look at size and complexity and 
draw the line, how that would position our industry with our 
foreign competitors that may or may not take similar actions.
    Mr. Patterson. Senator, I think that is an excellent point 
to raise about the fact that we are not isolated from foreign 
competitors and we are in a global economy.
    The fact is, whether we like it or not, we have arrived at 
a situation where too big to fail is a reality, whether it is a 
desirable circumstance or not or whether there is an available 
short-term solution to that or not. Be that as it may, that is 
where we are. And I think what it does is it speaks eloquently 
to the need for a systemic regulator, whether it be the Fed or 
whether it be a committee approach or a new entity that the Fed 
has some involvement with or not.
    The problem here is not bank regulation. The problem is 
gaps in regulation, and excessive leverage by institutions, 
both banks and others in that large category, and lack of 
understanding of the types of risks that were being taken by 
management and by regulators.
    But I do think this: I think that we have got to realize 
that it takes large, complex organizations to operate in a 
global economy, and I think there is a role for the community 
banks, there is a role for the regional banks like mine, and I 
think there is a role for these very large, complex money 
center organizations that perform multiple functions. Indeed, 
they are hard to manage. Some people say they cannot be well 
managed. Some people say the Fed should focus on its management 
of monetary policy and its independence and not be the 
prudential regulator of overall responsibility. Whether it is 
or should not does not obviate the need for it, that there be 
some control that these gaps be filled.
    And I would suggest at least the hypothesis that if these 
institutions were broken up, others would evolve to develop to 
fill their place over time.
    Senator Warner. Mr. Chairman, I have got a couple more 
questions. Can I go ahead and----
    Chairman Dodd. Absolutely. Please do.
    Senator Warner. I guess one thing we have had under the 
Chairman's leadership, we have had a lot of folk come by on 
this issue of too big to fail, and we have one camp who has 
kind of said too big to fail, although oftentimes we have not 
had anyone take us through what that failure would actually 
look like, and other than this kind of cataclysmic event that 
would somehow unwind and have enormous negative ramifications. 
And then, on the other hand, we have regulators who come here 
and say it is not that they are too big to fail, but we just do 
not have a resolution authority for bank holding companies.
    So one thing, Mr. Chairman, I would love to have, whether 
in this session or elsewhere, is at some point perhaps almost 
some tutorial on what would an unwinding of one of these top 
four institutions look like.
    Mr. Whalen. I could give you one right now.
    Senator Warner. If you could do that quickly, because I 
want to come back around to the products question as well.
    Mr. Whalen. Well, very simply, if it were up to me, with 
Citi I would roll the entire organization into a national bank. 
I would get rid of the holding company, and I would convert all 
the debt into equity, because then you would have a bank with 
50-percent tangible common equity, and you could put Government 
money in and work through the bad assets, and they would no 
longer be an issue. We would not hear about them anymore. That 
is how you deal with this with finality, because they have a 
choice. You go to Citi and say, look, form a creditors 
committee, I want to talk to you in a week; otherwise, I let 
Sheila resolve the holding companies--the banks, and the 
holding company goes into bankruptcy. It is a very short 
conversation.
    Senator Warner. I wish it was that simple. Perhaps it is, 
but I would love to hear that thorough debate because I think 
many of us up here, we hear the frustration with ``too big to 
fail'' comments, yet at times other than perhaps the comparison 
is always made to the disorderly dissolution of Lehman and what 
happened in that case and how we do not want prevent that 
again, but----
    Mr. Whalen. Nobody does not want to get paid. But Lehman 
Brothers to me is a classic example of why the good people in 
the U.S. Federal Bankruptcy Court should be the first folks you 
talk to about this. You do not need another layer of politics 
to deal with holding companies, because once the bank is gone, 
what do you have? You have a Delaware corporation that belongs 
in front of the U.S. Bankruptcy Court. The moment the FDIC 
becomes receiver of the banks, it is no longer a regulated 
entity. They are gone. The deposits are gone. The loans are 
gone. That is the point.
    Senator Warner. Let me come at this from a different way, 
and I am going to thank the Chairman for giving me a little 
more time.
    We look at size, we look at complexity. Another approach 
which I have been thinking about for some time is on the 
financial products end. Again, my premise is--and I would like 
to hear from a number of you, if you want to comment. And I 
spent 20 years around financing more in the venture capital 
end, but, you know, under the guise of innovation, it appears 
to me that over the last 10 years we have created a whole 
series of financial products that at some level have been 
argued that they have been about better pricing risk. I think 
on reflection it may be the marginal societal value of better 
pricing risk versus the type of systemic exposure that it has 
created and that many of these financial products may have been 
more about short-term fee generation than they have been about 
long-term value to the system.
    But if we were to--and I know Senator Schumer has mentioned 
an approach he has taken, and I would love to see what would be 
the--what kind of thinking any of you have done in terms of the 
criteria of how we might on a going-forward basis evaluate 
financial products. Is there an underlying theory? Is it just 
the risk they bring to the system? Would there be some effort 
to try to make an evaluation of a macrolevel societal value 
added for these new financial products? How do you do that, and 
how do you--you know, I am a little bit afraid that we closed 
the door on certain products from the last crisis, but with the 
amount of intellectual fire power going into financial 
engineering, how are we going to preclude the next generation 
of financial products kind of getting beyond our control or 
oversight? Ms. Hillebrand, or anyone else on that comment.
    Ms. Hillebrand. Thank you, Senator Warner. I think there 
are two things.
    One is the Financial Product Safety Commission would be 
charged not with minimizing all risk but with minimizing undue 
risk to consumers, including keeping up with those new 
practices and those new products, so that the consumer who 
overdraws by 85 cents does not face $126 in bank fees, as 
happened to a consumer who we talked to earlier this month, and 
keeping up, looking at the practices. This is not to say banks 
cannot charge fees, cannot do anything, but to try to watch the 
practices and to outlaw those products that just do not fit 
with the nature of the product. Your checking account should be 
a service you pay for and not a fee machine for the bank. We 
need to get back to that kind of common sense. We think a 
Financial Product Safety Commission could do it on the consumer 
financial product side. In the mortgage and credit area, we 
also need to create accountability structures so that everybody 
who has a piece of that loan has responsibility going forward. 
That means a suitability requirement for those who are selling, 
a fiduciary requirement for those who are advising, and as 
people talk about ``skin in the game,'' a responsibility going 
forward if there are later problems with that loan. That is a 
beginning.
    Senator Warner. Well, my time has expired. I know Senator 
Menendez--but I would like to hear from others, perhaps, if you 
could get back to us on what would be that--I still did not 
hear what would be the underlying theory of how we would 
evaluate financial products on a going-forward basis. We do not 
want to stem innovation and, clearly, some level of 
responsibility and higher minimum investment requires qualified 
investor criteria and other things I get. But what would be the 
underlying theory of how we should regulate or evaluate 
financial products.
    Thank you for allowing me a little additional time, Mr. 
Chairman.
    Chairman Dodd. Well, it is a great question, Senator 
Warner, and we will come back to it because I think it is an 
important point.
    One of the arguments I have made on this is you have got to 
begin with an overriding principle and concept. Just very 
briefly I would just say what happened over the years is, 
because some either promoted this idea very aggressively or 
acquiesced to it, is that we believed that consumer protection 
was antithetical to economic growth. If you were involved in 
consumer protection, this was somehow going to stifle 
creativity and imagination in wealth creation. And I think that 
was the fundamental flaw.
    When you begin any of this discussion, it is important to 
point out that the reason my community banks in Connecticut and 
Montana and elsewhere have done well over the years is because 
they deal with customers every day. When you are dealing with 
investment banks and others, they just do not have that portal. 
When you have got to have a customer making a choice whether or 
not to go to your bank in Connecticut, the Connecticut River 
Bank, or to Liberty or to some other community bank, local 
bankers, as yours do in New Jersey and Virginia, better keep 
that consumer in mind. And if you do not, you are going to be 
in trouble. And when you abandon that notion, what happens to 
that depositor, what happens to that person who buys a share, 
what happens to that person who buys an insurance policy, what 
happens to that person who takes their hard-earned money and 
deposits it in a bank, there are different expectations about 
what they can have.
    But, nonetheless, you begin with the notion of that 
investor, that depositor, that consumer, that shareholder, and 
you have a whole different perspective on this issue.
    I am sorry. I did not mean to digress, but to me, if you 
begin from that point, it seems to me then you can begin to 
start making sense of all this.
    Do you want to comment on that, Mr. Patterson?
    Mr. Patterson. Yes, Mr. Chairman, if I may. I think your 
points go directly to the issue and the truth of the matter as 
you related to your Connecticut colleagues and I to my banks 
throughout the mid-South, is that our prudential regulator 
looks at the entire organization and ought to have a key role, 
and I think does have a key role, in the basic commercial bank 
system to not only ensure safety and soundness and compliance 
with other regulations, but also consumer protection. And that 
is why the problems generally that we are talking about today 
came from the nonregulated sector where those gaps are.
    Chairman Dodd. Yes. As Mr. Attridge knows we have a lot of 
competition in Connecticut when it comes to community banking.
    Mr. Attridge. Right. Banking is a risk business, and in 
dealing with our customers, we can assess the risk. We get 
their financial information and make a decision whether they 
are a good loan or not.
    The problem is there are a lot of other investments that we 
have to make. All banks have an investment portfolio that is 
partly for liquidity, partly for investment purposes. And we 
are relying or have been relying in the past that a rating 
agency and others, brokerage firms, have assessed the quality 
of the investments we are buying. And that has kind of broken 
down, to the point where we are asking people, you know, are 
you sure that there is nothing in this package of, you know, 
mortgage-backed securities that we are buying--even though they 
are Fannie Mae/Freddie Mac rated, are you sure that there are 
no nonqualifying assets. And that is where the system is 
broken. I think that is what a systemic regulator has to 
oversee.
    Chairman Dodd. I can just tell you that up here around this 
table, having been now through eight hearings and a lot of 
individual conversations with my colleagues on both sides, I 
mentioned earlier certain things, regulatory arbitrage being 
one. I can also promise you rating agencies are going to be 
very much a part of our overall effort. There is commonality at 
certain points here and there will be points where we will have 
some debate about which way to go. But on rating agencies, I 
will bet there will be an answer, other than what we presently 
are dealing with.
    Mr. Whalen. Could I make a quick point.
    Chairman Dodd. Senator Menendez, I apologize.
    Mr. Whalen. Just to answer Senator Warner's question, it 
comes down to suitability when you are talking about complex 
institutional products that could hurt a bank or hurt a pension 
fund or a public agency that has to invest on behalf--these are 
nonprofessionals, oftentimes, as I describe them. These people 
cannot model the risks in these securities, so they should not 
be shown them in the first place. And I say this as a reformed 
investment banker. Ninety-nine percent of the people in this 
world cannot possibly understand complex structured assets or 
over-the-counter derivatives. They are not suitable. They 
should not be sold to these people in any case.
    Senator Warner. But haven't we proven the case that even in 
some cases the uppermost levels----
    Mr. Whalen. Yes.
    Senator Warner. ----at these very financial institutions--
--
    Mr. Whalen. Absolutely.
    Senator Warner. ----that are supposed to be the most 
sophisticated borrowers did not even understand these products.
    Mr. Whalen. That is right.
    Senator Warner. And the risk exposure they were taking on.
    Mr. Whalen. So why does the Fed, and particularly the Fed, 
go out of its way to promote and extend the over-the-counter 
market? It boggles my mind.
    Chairman Dodd. Well, this is where the clearinghouse notion 
comes in. So you get these exotic instruments; you just cannot 
have them being pushed out the door without----
    Mr. Whalen. Well, clearing only gets you so far, though, 
because, remember, the issue is a central counterparty who is 
holding the money. It is like playing poker. If you were 
playing poker with somebody who did not have to put chips on 
the table, you would not be very happy with that, would you.
    Chairman Dodd. You are maligning gamblers.
    [Laughter.]
    Mr. Whalen. I agree. The Nevada Gaming Commission would----
    Chairman Dodd. Gamblers lay off debts.
    Mr. Whalen. Absolutely. If the New York Lottery----
    Chairman Dodd. A good bookie will lay off a debt. This was 
not even good gambling.
    Mr. Whalen. The Nevada Gaming Commission could do a better 
job.
    Chairman Dodd. A good bookie will lay off a debt. They do 
not assume all that risk.
    Senator Warner. AIG did not do any downside hedging.
    Chairman Dodd. Yes. This was worse than that, my sense.
    Anyway, Senator Menendez, I apologize for that digression.
    Senator Menendez. Coming from New Jersey, I know what a 
good bookie does.
    [Laughter.]
    Senator Menendez. But in terms of the legitimate industry 
that exists in Atlantic City, so I just want to make that 
clear.
    You know, I have been listening to a lot of what we have 
been doing here, Mr. Chairman, for several hearings now, and it 
seems to me one of the primary questions--and I would like to 
ask Mr. Patterson, since you are here on behalf of the American 
Bankers Association. Isn't it--when an entity is too big to 
fail, haven't we failed already.
    Mr. Patterson. Certainly, if an entity cannot be properly 
regulated, then that is obviously a positive response to your 
question.
    Senator Menendez. Well, it seems to me that when we get to, 
whether it be in AIG or certain banking institutions that have 
been defined, that they create systemic risks to our overall 
economy because they are too big to fail, that we have already 
failed when they have become too big to fail because, in 
essence, we are saying that the risk comes to us as a society 
because should they make bad mistakes--and I agree that 
certainly if we had the regulators being the cop on the beat 
instead of asleep at the switch, that we may not have been 
totally headed to the directions we are, even though in many 
respects the regulators not only were asleep at the switch, but 
you had a whole universe of new financial instruments that they 
were not even engaged in.
    But at the end of the day, it just seems to me that the 
consolidation took place in such a way that entities became so 
big that they are too big to fail, and therefore the risk goes 
to the society should they fail. And in doing so, that is a 
pretty significant shift. And the question is, should you allow 
entities, whether they be an insurance company or a financial 
institution, to grow to the point that they are too big to 
fail.
    Mr. Patterson. Well, I think philosophically we would all 
agree that that is a bad proposition.
    Senator Menendez. We see how bad a proposition it is right 
now.
    Mr. Patterson. That is correct. And in my opening oral 
comments, I made the comment that we all agree that ``too big 
to fail'' is an issue and it is a problem and it shouldn't 
exist. We also agree that in the present instance, it does, so 
we have a twofold task here, and that is to deal with it. Our 
suggestion is that we have a prudential regulator that has 
overall systemic risk responsibility.
    Senator Menendez. But up until now, to be honest, wasn't 
the drive to basically say, leave the marketplace to act on its 
own, and if consolidation took place, so be it, under the 
presumption that the regulators were going to keep it in check.
    Mr. Patterson. I think that is a reasonable presumption and 
it obviously has----
    Senator Menendez. Has not worked.
    Mr. Patterson. ----the issues that it has created.
    Senator Menendez. Ms. Hillebrand, if you want to comment on 
this. I also want to ask you, much of our discussion of 
regulatory reform has talked about systemic risk. It has talked 
about complicated financial instruments that pose a threat to 
institutions and investors. But isn't it equally important to 
recognize that maybe the earliest and most fundamental failure 
that led to our current crisis in which--and it was a much 
simpler failure--is a lack of consumer protection.
    Ms. Hillebrand. Yes, Senator, absolutely. These bad 
mortgages--the bad practices in subprime were not new. They 
used to be called hard money loans. The theory was you could 
make money by loaning to someone who you had no reasonable 
expectation they would be able to repay. When that migrated 
into securitization, then it started to touch the whole 
economy, and we certainly saw it in nonprime with the no-doc 
loans. This little failure that first affected poor people and 
working class people and their neighborhoods suddenly kind of 
took off because it wasn't stamped out early. We don't know 
what the next little failure that could grow into a forest fire 
will be, but we know there will be one. Some innovation is 
toxic and early is the time when we need to address it.
    On the issue of have we already failed if an entity is too 
big to fail, I think the answer is yes and the question is what 
do we do from here. Part of it is we have to figure out how to 
make these entities whose complexity creates a risk for those 
of us who don't own them and are not their bond holders, but 
just taxpayers, to carry that risk themselves, to put that into 
their cost structure. If it is too expensive to internalize 
those risks, then that means that we need smaller institutions.
    And I am very intrigued by the ICBA suggestion that no 
further mergers be approved that involve institutions--involve 
or would create institutions--that are too big to fail.
    Senator Menendez. To some degree, in this present market 
that we are in, where we see one of the first things that 
happened in the first tranche of TARP was, in fact, the 
purchase of other institutions, and therefore more 
consolidation in the marketplace. Isn't that something that we 
should be concerned about as we look forward in terms of these 
set of circumstances.
    Mr. Whalen. With healthy institutions, no. As it was, I 
think, alluded to before, the industry can't shoulder the 
burden of the losses that are coming toward us. The Treasury is 
going to have to be involved. So if you go to a strong 
institution that is well managed and you say, we are going to 
give you more capital. We want you to eat everything that 
Sheila is cooking coming out of the resolution process with the 
FDIC. I think that makes sense, but I wouldn't allow any 
further combinations for the top 15, 20 banks. Why? Until we 
know how they are. Call me in 18 months and then maybe we will 
revisit this issue.
    But I don't want to see any more large bank mergers until 
we know what their loss rates are going to look like and we 
know what their capital needs are. I think that is a reasonable 
position on large banks. Small banks, it is case by case 
because you have a lot of strong entities. You want them to buy 
troubled institutions to help the public. You want there to be 
continuity.
    I mean, the FDIC does this every Friday and they are 
expanding their capacity so they can do more resolutions. It is 
a beautiful thing. When they close a bank on a Friday, there is 
a new owner over the weekend and on Monday morning they open 
and the public is served.
    Senator Menendez. That, I understand. I was talking about 
large institutions purchasing other----
    Mr. Whalen. Oh, I wouldn't allow it. In fact, you know, 
there is a moratorium now on de novos. They are not approving 
de novos applications now. They are basically telling all 
investors, focus on the troubled banks.
    Senator Menendez. One final question. With reference to the 
credit rating agencies, Mr. Attridge, you referenced them. Do 
you all have views as to how we, since you deal with them all 
the time and rely upon them to a great deal in terms of going 
ahead and making your loans, you know, do you have views on 
eliminating conflicts of interest that many of us consider 
pervade the credit rating industry, or have you anything that 
you think the SEC has done or should do.
    Mr. Attridge. Well, all banks are asked to risk assess 
virtually everything they do, every kind of an investment they 
make. But the reality is, community banks, and even larger 
banks, do not have the wherewithal to risk assess every single 
investment, especially any kind of package of mortgages that 
have been packaged either by Fannie Mae, Freddie Mac, et 
cetera. Someone has to do that. I think what we are missing is 
the oversight of whoever it is that is putting those packages 
together, and that would include the brokerage firms that are 
packaging them as well as the rating agencies.
    And clearly, AAA doesn't necessarily mean AAA anymore and 
that is a major problem for banks that are trying to make 
reasonable decisions when you have brokers calling you to say, 
you have got to buy this instrument. It is a great piece.
    We have been very fortunate in getting good advice from our 
brokers and we have avoided all of these, mainly just out of 
sheer maybe just sheer fear. We are saying, you know what? We 
are just not going to take a chance unless we are absolutely 
sure that it is Fannie Mae, Freddie Mac quality investments, 
and that is what we have invested in. We stayed away from 
auction rate preferreds and things of that nature that I think 
very few people understand. But it is because we just don't 
have the confidence at this point in the institutions that are 
putting ratings on those investments.
    Senator Menendez. Thank you, Mr. Chairman.
    Chairman Dodd. Thank you very much, Senator Menendez.
    Senator Schumer.
    Senator Schumer. Thank you, and I thank all the witnesses.
    First, to Mr. Mica, I want to come back to the legislation 
that I proposed to remove the business cap. Are your membership 
hearing from small businesses on an accelerated basis.
    Mr. Mica. Absolutely, and it is being reported throughout 
the country, and you have heard it here today. Banks and 
institutions are not lending the way they used to. They have 
withdrawn. Just the other day, the President made a comment 
that 70 percent of all jobs in America come from small 
businesses. We have a cap of 12.5 percent. We do the job well. 
Our portfolio, by the way, is less than 1 percent default. And 
I know I get some criticism from some of our opponents who say, 
well, they don't know how to do it. They made a bad loan in 
Texas. Tell me about making a bad loan.
    Senator Schumer. Yes.
    Mr. Mica. I mean, we have----
    Senator Schumer. So you think there would be significant 
desire----
    Mr. Mica. We could put $10 billion on Main Street, $10 
billion into Main Street small loans almost immediately if they 
lifted that cap.
    Senator Schumer. Mr. Attridge, let me just ask you, why at 
this time--we can debate whether this should be done 
permanently--but why at this time when so many banks, big and 
small, are not lending for a variety of reasons, and I hear 
about it regularly--I have several instances in my State where 
a small business is going to go under because they can't get 
bank lending. The existing bank has pulled the line of credit. 
They don't think the value of the inventory is as great as it 
used to be. Credit unions want to lend and they can't because 
they are at the cap. Give me a reason why we shouldn't, at the 
very least, temporarily lift the cap, given the state of our 
economy.
    Mr. Attridge. Well, first of all, Senator, I haven't 
experienced that. I keep hearing----
    Senator Schumer. Assume it is true.
    Mr. Attridge. Most----
    Senator Schumer. Give me an argument against doing it, but 
just assume it is true, because I am telling you, I have come 
up against those instances.
    Mr. Attridge. Of removing what cap now, Senator.
    Senator Schumer. Removing the 12.5 percent limit on credit 
unions lending to small businesses. I mean, I understand it 
gives your membership more competition, but I am talking about 
now where we are desperately short of credit in the economy and 
lending to small businesses.
    Mr. Attridge. Well, Senator, I guess from the community 
banks' point of view, at least the community banks in 
Connecticut and I know there are some in other parts of the 
country that are more stressed out because of the real estate 
issues in the area they are in, but we are well capitalized. We 
have the money to lend. We are lending and we are looking for 
loans and there is competition out there for good loans.
    The problem is on the other side. The small businesses are 
not looking for----
    Senator Schumer. Let me tell you a story I heard, and this 
is a Connecticut story. It is about a gentleman who applied for 
a job with me, OK. His father owns a small home heating oil 
delivery business. It has, I don't know, about 50 employees, 
ten trucks, I don't know how many. It had a $4 million line of 
credit with one of the larger banks, not a community bank, 
probably one of--I am certain it is one of Mr. Patterson's 
members. They pulled the line of credit. He has gone everywhere 
under the sun to try to find a substitute line of credit. This 
business is profitable. People are still buying home heating 
oil in Southwestern Connecticut. He can't find it.
    So you tell me your people are lending. Mr. Patterson tells 
me his people are lending. Every one of us at the table has had 
businesses calling us and saying they can't find the lending.
    Mr. Attridge. Well, Senator, we haven't----
    Senator Schumer. And I know----
    Mr. Attridge. We haven't changed our underwriting criteria. 
What has changed is the economic environment we are lending in.
    Senator Schumer. So if a credit union would want to lend to 
this small business and the local community banker for whatever 
reason wouldn't, why not let them? Mr. Whalen.
    Mr. Whalen. You want to first make sure that that credit 
union understands what they are getting into and that they have 
the ability to create and manage small business credits----
    Senator Schumer. Right.
    Mr. Whalen. ----because the reason for the cap was to 
protect them.
    Senator Schumer. Well, some would say that is the reason 
for the cap. Mr. Mica is saying the other way. He is saying the 
reason is to protect the people who didn't want the cap. Ms. 
Hillebrand is acknowledging. I think the history shows this was 
pushed not by the regulators, but by the bankers, and I have--
community banks do a great job in New York. I have a very good 
relationship with them.
    Mr. Whalen. Just make sure they have the capability to----
    Senator Schumer. Well, that is a different issue, but most 
of them--I mean, the record of the 12.5 percent is good, so 
they know how to do it.
    Yes, Mr. Patterson.
    Mr. Patterson. Yes, Senator Schumer. You asked for facts. I 
am reasonably certain that most of the credit unions are well 
within the cap that exists today already, so I am not sure to 
what degree that is a limitation. I know they would like to 
have the cap raised, but I am quite sure that almost all of 
them are well within it.
    Senator Schumer. Is that true, Mr. Mica.
    Mr. Mica. Some are below, but many are pushing it. But 
worse, we have credit union after credit unions that come to me 
and say, I can get in this business and do this today, but I am 
not going to get in when there is only a 12.5 percent cap. So 
we are restricting loans, too.
    Mr. Patterson. I had a follow-up.
    Senator Schumer. Please.
    Mr. Patterson. You made a reference to the fact that in the 
example you used, the line of credit was pulled by one of the 
large metropolitan banks.
    Senator Schumer. Yes.
    Mr. Patterson. Those institutions obviously in the present 
environment are capital constrained by the assets that are on 
their books, the difficult things that they are having to deal 
with----
    Senator Schumer. Yes, I know that.
    Mr. Patterson. ----as a result of all this. So they clearly 
are capital constrained. The vast majority of commercial banks 
are looking for loans, have the equity to support continuing to 
expand loans. And I think if you would survey throughout the 
membership of the ABA, the availability of credit is not an 
issue, except possibly in metropolitan areas such as where the 
money center banks had their----
    Senator Schumer. Well, let me tell you, I have found in New 
York, and I compared this to my colleagues--my time is up--that 
that is not the case, that we not only have a failure for 
people to get new lending, but you have lines of credit being 
pulled regularly from institutions that are still profitable, 
and it is because of what you said. They have an asset on their 
books that is valued at 80. It was once 100. It is at 80, but 
they are worried it might go to 50. They are not making a new 
loan. They are holding their capital in case it falls to 50. I 
am not right now criticizing the bank that does that. They are 
looking for their own survival. I am just saying we have to 
find new ways of lending.
    One quick last question just to Mr. Patterson. Do you think 
the TALF will expand more lending, particularly to small 
business.
    Mr. Patterson. Based on what I know about it, which is 
somewhat limited, it seems that it does have that capacity.
    Senator Schumer. OK.
    Chairman Dodd. Thank you very much, Senator. Interesting 
questions.
    Let me ask, and I realize this is new and so I don't expect 
you to have a detailed answer, but I wonder if I might just get 
a reaction to the proposal made yesterday by the Secretary of 
the Treasury and the White House on the public-private 
partnership idea. I realize I am--just a general reaction. I 
don't expect you to have necessarily detailed information about 
it.
    Congressman Mica, do you have a reaction.
    Mr. Mica. Well, our reaction is we hope it works.
    [Laughter.]
    Chairman Dodd. But we all do that.
    Mr. Mica. You know, the details are very slim for us. We 
are taking a look at it right now. I do think the concept of 
getting the private sector involved in this is very creative 
and helpful, because obviously it hasn't worked the other way. 
Beyond that, I think I had better withhold.
    Chairman Dodd. Mr. Attridge, any reaction to this, as 
someone who watches this stuff.
    Mr. Attridge. I still don't know what happens to the 
underlying value. I mean, there are losses there and they are 
going to have to be recognized someplace. You can buy all the 
toxic assets back, but you are buying from someone who is going 
to have to write them off.
    Chairman Dodd. Well, you just hit the right question, 
because I think everyone--they have asked the question, will 
buyers buy. I think buyers are going to buy. The question is, 
will the sellers sell.
    Mr. Attridge. They will buy it at a price. That is right.
    Chairman Dodd. The question is whether or not sellers sell. 
And so the issue is whether or not the banks are going to want 
to have an adverse effect on their balance sheets by selling or 
being forced to sell something for far less than they think it 
is worth.
    Mr. Attridge. A perfect example, I think, is the Federal 
Home Loan Bank right now. One of them wrote off about $329 
million----
    Chairman Dodd. Yes.
    Mr. Attridge. ----marking it to market. Their claim is that 
if they hold it to maturity, they will probably only have to 
write off $40 million. So if you go to them now and say, we are 
going to pay you market value and basically reaffirm the fact 
that they should have written off the 399, because that is what 
it is worth today, I don't think they are going to do it 
because they are going to take that hit to capital.
    Chairman Dodd. Just chatting with you here, I see the other 
side of the coin is that obviously we are all better off if 
these assets are off the balance sheets and markets can start 
functioning again. So there is that potential value, as well. 
And I understand your point clearly, because it does have an 
adverse effect on the balance sheet. But the upside is credit 
begins to flow again, to some extent.
    Do you want to comment on this, Mr. Patterson.
    Mr. Patterson. Yes, please. It underscores the importance 
of an effective mark-to-market accounting. If we have got a 
willing buyer, a willing seller, we are going to establish a 
bid-ask price, the transactions can be effective and they can 
achieve the intended results. What we don't need to have is an 
extension of the FASB approach that winds up with unintended 
write-downs for everyone with similar types of assets. If these 
institutions, even though they have absorbed the write-down, 
have the capital to support maintaining them on their books, 
then they are going to have an incentive to keep them.
    Chairman Dodd. Do you have any comment, Mr. Whalen.
    Mr. Whalen. Just two points. I think the key flaw in the 
Fed-Treasury approach is that they still want to recreate the 
old securitization market. They want to breathe life into 
securities that are dead. These are busted deals. No buy-side 
investor, other than the vulture community, is ever going to 
care about these deals again, regardless of what they were 
rated initially. They are gone. So the audience is small for 
this proposal.
    The other thing I worry about is that I still don't think 
investors are going to care, because people in my industry know 
that whereas we are getting relief on the accounting side, as I 
said before, the cash-flows are still falling. So it is very 
likely that we are going to see economic impairment to these 
assets as opposed to accounting rule-driven markdowns that we 
have seen before.
    And so my question is that if you are assuming that these 
assets are worth 80 cents, which I think is the core assumption 
by Fed and Treasury, and that all we need is time to help the 
markets recover back up to that intrinsic economic value of the 
security, I think that is a false assumption. I think we should 
be liquidating these instruments.
    In other words, Treasury should buy them. I would like them 
to give them to the FDIC, make them an asset of the Deposit 
Insurance Fund, and then I would like to see FDIC walk into 
court in Delaware, after they talk to the trustee, of course, 
and say, Your Honor, we are liquidating the trust on behalf of 
the holders. We are going to give them notice, the ones who 
haven't responded yet, and then we are going to extinguish the 
trust and get the loans, sell them to the community bankers, 
let them deal with it, because they are the only ones with the 
people to deal with this problem. The money centers with a call 
center in Colorado somewhere cannot restructure loans. You have 
got to get the customer in front of the banker.
    Chairman Dodd. Mr. Patterson.
    Mr. Patterson. I think we need to be very cautious about 
considering the role of the FDIC as an intermediary in that 
process. The Deposit Insurance Fund is funded by the commercial 
banks. We need to maintain the integrity of that system. The 
FDIC, obviously in collaboration with the leadership in 
Congress, is looking at ways to work with their working 
capital, but whether it has to do with the resolution of a 
nonbank major systemically important institution and the cost 
of that resolution or whether it has to do with such an 
intermediary role, the Deposit Insurance Fund does not need to 
be a part of that process.
    Chairman Dodd. Yes.
    Mr. Whalen. I disagree, Mr. Chairman, and let me just jump 
in here. It is all run off the Treasury. Whether we are talking 
about the FDIC Fund or any other Federal agency other than 
Pension Benefit Guaranty, it is all running out of the 
Treasury's general fund. So let us just dispense with this 
distinction.
    Ms. Hillebrand. Mr. Chairman, there is one other issue on 
the new program----
    Chairman Dodd. I will come right to you. Go ahead. I just 
want to finish this.
    Mr. Patterson. I have to respond to that. The Deposit 
Insurance Fund has always been completely funded by the 
commercial banks. It is and it needs to continue to be. It is 
not a Treasury function.
    Mr. Whalen. It is part of the general fund.
    Chairman Dodd. Yes.
    Ms. Hillebrand. Mr. Chairman, there is one other issue that 
will need to be looked at in how this is done, and it will be 
in the details that come out after today. If these assets are 
bought and held until they are paid off, it won't be an issue. 
But if they are bought by people who intend to liquidate them 
promptly, there will be some significant questions about 
responsibilities in debt collection, so that we don't get the 
kinds of problems that we already have when very old debts are 
bought by someone who hasn't got the paperwork, can't prove 
what was owed, and doesn't have the records. That puts the 
consumer in an impossible situation.
    Chairman Dodd. OK.
    Mr. Mica. Mr. Chairman.
    Chairman Dodd. Yes.
    Mr. Mica. If I may, I know we are the small ones at the 
table, but the way this legislation and previous legislation 
has been written, all the remnants of these big problems are 
being left certainly on the big institutions, but we end up 
with some of those, too, and we should not be discriminated 
against and left out. If there are going to be opportunities to 
offload some of these difficult problems that were created by 
others, we should be included in that.
    So I appreciate your consideration as you move forward on 
that and you look at that legislation, but to date, wherever 
there has been an indication to help us, the regulations have 
essentially ended up saying, we haven't taken you into 
consideration, possibly because you are too small, or possibly 
because we think you are doing so well. But we shouldn't be 
left with the remnants of everybody else's problem and no exit, 
either.
    Chairman Dodd. Thank you very much.
    Let me come back, if I can, to this consumer protection 
notion. Let me start with you, Mr. Attridge, as a community 
banker. Sometimes the consumer protection notions have been 
secondary thoughts, at least that is my impression. I am 
speaking very generically now. And the issue of safety and 
soundness trumps every other consideration, including consumer 
protection. At least that is the impression I have had.
    What is your reaction to a Financial Product Safety 
Commission idea that has been articulated by the Consumer Union 
and others? Elizabeth Warren at the Harvard Law School has 
been, I think, probably the leading advocate of the idea. But 
how do you react to that.
    Mr. Attridge. Well, my experience has been, and I believe 
the experience of most of the community banks in Connecticut is 
the compliance section of the FDIC and the CRA section of the 
FDIC, as well as the State of Connecticut and our Banking 
Department, are very diligent and determined and I would tell 
you we spend an incredible amount of time on CRA and compliance 
issues. We all have CRA policies, compliance policies. It is 
basically built into every job.
    We just took on a compliance officer, and we are a bank of 
30 people now and we brought in a compliance officer because 
you need the experience and just the ability to deliver all the 
reports to prove, even though you have never been accused or 
you have never had a complaint from your marketplace that you 
were discriminating in any way, you need the proof. You need to 
fill out the HMDA reports. It is a massive process and it is 
very detailed.
    So I think the job that is being done by the FDIC in that 
area is more than adequate, to the point where sometimes you 
step back and you say, the safety and soundness issues are more 
important to the longevity and soundness of the bank, as well 
as profitability of the bank, but we are spending an awful lot 
of time on just proving to people that we are doing things 
appropriately for the consumer.
    Chairman Dodd. Mr. Patterson.
    Mr. Patterson. First, I would like to say that the Congress 
has been very helpful in looking at the issue of regulatory 
burden and testing the efficiencies and the effectiveness of 
regulations and giving us relief where you could and we are 
appreciative of that.
    Two points, simply. One is most of what we are here to talk 
about today was in the nonregulated area, and the commercial 
banks have not been the source of the problem and are not today 
and will not be in the future.
    But the second reason is I have a concern that if there is 
a separate agency that has that responsibility and the 
prudential agency has the overall responsibility, that you 
don't have the opportunity to look at the entity as one affects 
the other in a holistic way.
    Chairman Dodd. How about if you build into the prudential 
regulator the idea of the Financial Product Safety Commissioner 
so it is part of it and they are not a separate entities.
    Mr. Patterson. I believe it already is the prudential 
regulator's role and I think that is where it should be, and I 
think it can be very effective and I think it has been. That is 
not where the problem has been.
    Chairman Dodd. Ms. Hillebrand, how do you respond to this? 
You are already involved in consumer protection, and know about 
these functions that are required of our community banks and 
regional banks and the like. In fact, I remember the CRA 
debate. During the largest debate, which was over Gramm-Leach-
Bliley, I was not sitting in this chair. I was sitting several 
chairs down from here in that debate. We stayed up all night on 
Gramm-Leach-Bliley. People were going back and forth and 
talking about the whole notion of commerce and banking, and 
that is a legitimate question to have raised with that 
legislation. But the debate all night was, as we resolved those 
matters, was over CRA. That is how we came to the conclusion as 
to whether or not we could have a Community Reinvestment Act 
and how it would work, and ultimately resolved in favor of one.
    I love to point out to people, because I know there is an 
argument to the contrary, that if you look at institutions that 
follow CRA guidelines on mortgage lending and underwriting 
standards, only about 6 percent ended up in foreclosure. Where 
CRA was being followed and where the underwriting standards 
were adhered to, poorer people were actually getting into homes 
on terms they could afford. It is when you stepped out of that 
process with the no-doc loans, the liar loans, and the like, 
that this whole system fell apart. That, to me, is always going 
to be the root cause of all of this, in a sense.
    That was not a community banking issue, that was a 
different matter. But I wonder if you might respond to this 
point that Mr. Attridge and my community bankers raised. We are 
already doing this. We are working our heads off every single 
day at this stuff. You are going to overload us with some 
additional burdens here we can't possibly comply with.
    Ms. Hillebrand. Mr. Chairman, thank you for your earlier 
remarks about the Financial Product Safety Commission. We don't 
believe we will overload anyone who is treating their customer 
fairly and responsibly. This would create rules that apply 
across the board to make the products simple enough for the 
customer to use without those ``gotchas'' and tricks. Credit 
unions and community banks came very late to some of those 
tricks and traps, but when everyone else is doing it, it does 
create a pressure and it is a profit center for your 
competitors if they are doing it and you are not. That can be a 
problem. In addition, the bank regulatory model of supervision 
will still exist. There will still be safety and soundness 
regulation. Of course, consumer protection will still be a 
piece of safety and soundness. But what bank regulators look at 
is compliance. Was a current law broken? What the Financial 
Product Safety Commission would do is be an ``unfairness 
practices regulator'' where no current law has been broken. As 
the Wall Street Journal said recently about some hedge fund 
conduct, ``it was perfectly legal when it occurred.'' It would 
be those things the Financial Product Safety Commission would 
make rules about, not all of them, but the ones that go too 
far.
    Chairman Dodd. Mr. Whalen, do you want to comment on this.
    Mr. Whalen. If one was creative, you might lessen the 
burden on institutions by going to a product-focused regulatory 
regime. In other words, don't make it a compliance checklist 
sort of exercise for the bank. Take that away from the bank 
management having to go through that as part of their exam 
process and instead just have a product focus by another 
agency. That might be a quid pro quo for the industry.
    Chairman Dodd. Let me ask you--I am jumping around here, 
but trying to wrap up. Forgive me for not remembering exactly 
which one of you embraced this view, but I mentioned Gramm-
Leach-Bliley going back a number of years ago and the issue of 
whether or not you could create firewalls between traditional 
commercial activities and banking activities. One of you has 
advocated that actually the distinction between commerce and 
banking doesn't have much validity. Is that your opinion.
    Mr. Whalen. If we live in the age of ``too big to fail,'' 
why bother with the Bank Holding Company Act? What is the 
point? That was supposed to be the firewall between the insured 
depository, where we have limits. I remember when I first----
    Chairman Dodd. It doesn't have any authority. I mean, that 
was the Federal Reserve failing to regulate.
    Mr. Whalen. When I first started working at the Fed, we had 
to memorize Section (4)(c)(8) of the Bank Holding Company Act 
so we knew what banks were allowed to sell credit insurance. 
The Congress had many such restrictions on bank activities and 
that limited their risk.
    Chairman Dodd. Yes. Are you still an advocate that we 
shouldn't have any distinction between commerce and banking.
    Mr. Whalen. I am because I think we are here now. I think 
we may have to invite the industrial sector into the financial 
sector at some point to provide new capital.
    But let me put it to you this way. There is a tension that 
has been illustrated in the last few months between the 
creditors of a bank holding company and the counterparties of 
the subsidiary bank. One could argue that the counterparties to 
the subsidiary bank, all of them, are now senior to the 
creditors of the parent bank holding company. I don't think 
that serves any public policy purpose. I would rather see the 
bank at the top issuing debt, issuing equity, issuing deposits, 
and paying a full load to the FDIC or whoever is the systemic 
risk regulator to contribute to the Resolution Fund.
    Chairman Dodd. Let me ask Mr. Patterson about that.
    Mr. Patterson. I do think in response to your direct 
comment that--and by the way, the encroachment by industrial 
firms raises a whole new set of issues as to----
    Chairman Dodd. The ISCs, you are talking about.
    Mr. Patterson. Yes, how we can reach that arena. But the 
problems we are dealing with came from the nonbanks in great 
number. If it weren't for Gramm-Leach-Bliley, if you had not 
passed Gramm-Leach-Bliley, you wouldn't have had the 
availability of the solutions that we have had with B of A 
assuming the responsibility for Merrill Lynch, with Goldman 
Sachs and Morgan Stanley achieving bank holding company status. 
I am not saying that that was not in response to a crisis. It 
obviously was. But had there not been--had Gramm-Leach-Bliley 
not been on the books, those solutions would not have been 
available to us.
    Chairman Dodd. Any comment on that, Mr. Attridge.
    Mr. Attridge. I agree. It is complex enough now without 
allowing commercial enterprises to intermingle with the 
financial institutions. I just think it adds an additional 
level of risk. I think they have experienced that in Japan and 
that was one of the problems.
    Chairman Dodd. Well, you have been very patient. We have 
had you almost two-and-a-half hours here, and I apologize for 
taking that long. There are some additional questions we will 
submit for the record for you, and I am sure my colleagues will 
too.
    I want to apologize to my Republican colleagues. They had a 
meeting that they were asked to attend at 11. It came up at the 
last minute, and so they felt obligated, but I know they will 
have some questions. Of course, several of them stayed, but 
nonetheless, the rest of them could not be here this morning.
    We will have another hearing later this week on the subject 
matter relating to the issue of the regulatory architecture.
    This has been very helpful this morning. I want to stay in 
touch with you, as well. This has helped define the 
conversation. I am very intrigued. Mr. Attridge had some very 
provocative ideas, as well as Mr. Whalen, and the advice and 
counsel of Consumers Union, we always appreciate it. The ABA 
has been very active in participating over the years with us in 
this. We have moved our way through this, and, of course, the 
credit unions. We have 142 of them in Connecticut, so I want 
you to know, I am not unmindful of that. I bet Mr. Attridge 
could have told you exactly how many credit unions there are.
    I thank you all very, very much, and this Committee will 
stand adjourned.
    [Whereupon, at 12:20 p.m., the hearing was adjourned.]
    [Prepared statements and response to written questions 
supplied for the record follow:]
            PREPARED STATEMENT OF SENATOR RICHARD C. SHELBY
    Thank you, Mr. Chairman. I think the events of the last few days 
have made it clear that our efforts must remain directed at dealing 
with the problems in the financial system. As we have seen from the 
huge swings in the markets with each announcement coming from 
Washington, the situation remains extremely volatile. Until we 
effectively deal with our financial system our efforts may, at best, be 
misguided and, at worst, damaging. After we deal with the financial 
crisis, we will then have to focus on correcting the weaknesses in the 
existing regulatory framework.
    I look forward to continuing the examination we began last week at 
our hearing with the banking regulators. Among the other issues that 
emerged from our hearing, I think it is clear that we need to have a 
better understanding about the nature and causes of systemic risk. With 
greater knowledge regarding this very difficult problem, we will have a 
better chance at fashioning the necessary measures to deal with it in 
the future.
    As I stated last week, it should be our goal to create a durable, 
flexible and robust regime that can grow with markets while still 
protecting consumers and market stability. This can only be done 
through a serious and considered effort on the part of the Committee.
    Once more, getting this done right is more important than getting 
it done quickly.
    Thank you Mr. Chairman.
                                 ______
                                 
               PREPARED STATEMENT OF SENATOR TIM JOHNSON
    Thank you Chairman Dodd and Ranking Member Shelby for holding 
today's hearing. As we now know, the regulatory structure overseeing 
U.S. financial markets has proven dangerously unable to keep pace with 
innovative, but risky, financial products; this has had disastrous 
consequences. Congress is now faced with the urgent task of looking at 
the role and effectiveness of the current regulators and fashioning a 
more responsive system.
    I share my colleagues' great interest in a systemic risk regulator. 
I am interested in how that entity would interact with existing bank 
regulators. I also think it is vitally important that we address the 
``too big to fail'' issue. How do the regulators unwind these 
institutions without causing economic harm? In addition, I share the 
interest in proposals to enhance consumer protections--particularly 
whether this should include a separate regulatory body specifically 
designed to protect consumers. I look forward to hearing the views of 
today's witnesses on these topics and a variety of other topics that 
they believe we should consider as we look for solutions.
    I will continue working to fashion good, effective regulations that 
balance consumer protection and allow for sustainable economic growth. 
Today's hearing is an important piece in the development of proposals 
to modernize the bank regulatory structure. Any proposal must create 
the kind of transparency, accountability, and consumer protection that 
is lacking in our system of regulation.
    Thank you, Mr. Chairman.
                                 ______
                                 
            PREPARED STATEMENT OF SENATOR CHARLES E. SCHUMER
    Mr. Chairman, thank you for holding this important hearing. 
Modernizing our balkanized bank regulatory structure is critical to 
restoring confidence in our financial sector. It is an accident of 
history that we have so many different banking regulators with so many 
different jurisdictions, and there is no good reason that it should 
continue.
    It is especially nonsensical that we have allowed banks to choose 
their own regulator. With all due respect to the regulators, it's like 
if major league baseball announced tomorrow that from now on, pitchers 
could choose their umpires, and on top of that, the umpires' salaries 
would go up the more they were chosen. I think we know what would 
happen. You'd get a bigger strike zone and a lot more called strike 
threes. And that's basically what we've done. I am not impugning the 
motives of anyone here. But I think we've created a set of perverse 
regulatory incentives that have contributed to our current crisis.
    Bank regulators need to remember that their ``clients'' are not the 
regulated banks, but those banks' customers, and, more broadly, the 
health of the banking system at large.
    With that in mind, it is also important that we address the issue 
of consumer protections (or lack thereof) developed by the federal 
regulators.
    We gave the Federal Reserve the power to regulate the mortgage 
market, the power to end abusive lending practices, way back in 1994. 
Yet the Fed, and the rest of the regulators did not utilize these 
powers until 2007, when it was already far too late. The damage had 
already been done, and the economy was careening towards the disaster 
that we now face.
    From this example, and others, such as the failure to rein in 
abusive credit card practices, it seems clear that the regulators have 
become captive to the regulated entities, especially when it comes to 
consumer protections, just as financial institutions have engaged in 
``trip wire pricing'', designed to induce mistakes by consumers so that 
the companies can jack up fees and drive up revenues.
    To address this failure, Senator Durbin and I have introduced a 
bill that would create a Financial Products Safety commission, similar 
to the Consumer Products Safety Commission, whose primary goal will be 
to ensure that consumers' interests are made paramount.
    Thank you for holding this hearing Mr. Chairman. I look forward to 
working with you and my colleagues on this Committee on these important 
issues.
                                 ______
                                 

                  PREPARED STATEMENT OF DANIEL A. MICA
                 President and Chief Executive Officer,
                   Credit Union National Association
                             March 24, 2009
    Chairman Dodd, Ranking Member Shelby, and Members of the Committee, 
on behalf of the Credit Union National Association (CUNA), I appreciate 
the opportunity to appear before you to express the need for 
maintaining an independent federal regulatory agency for federally 
insured credit unions.
    I am Dan Mica, the President and CEO of CUNA. CUNA is the largest 
credit union advocacy organization in this country, representing 
approximately 90 percent of our Nation's 8,000 state and federal credit 
unions and their 92 million members.
    Mr. Chairman, I applaud you for addressing this pressing issue. The 
collapse of the financial system has exposed flaws in the regulation of 
U.S. financial institutions, and these flaws absolutely must be 
addressed. I suggest, however, that most of the current crisis was 
caused by the actions of relatively unregulated financial institutions, 
and by compensation practices at even regulated institutions that 
encouraged excessive risk taking. I can assure you that neither of 
these two factors exists at credit unions. Credit unions did not in any 
way contribute to the current financial debacle and their current 
regulatory regime coupled with the cooperative structure militates 
against credit unions ever contributing to a financial crisis. 
Therefore it is imperative that credit unions not be swept up in the 
tide of regulatory reform that is so essential for some other parts of 
the financial system.
    Credit unions' unique mission, governance structure, and ownership 
structure necessitate an independent federal regulator in order to 
ensure that the credit union model is not eroded as a result of the 
misapplication of bank regulations to credit union operations. Unlike 
for-profit banks, credit unions are not-for-profit institutions that 
exist to serve their member-owners rather than to profit from them. 
Also unlike banks, the members of the credit union own their 
institutions, which are subject to a democratic, one-member-one-vote 
system irrespective of members' account balances or any other factor.
    I am aware that, on Friday, March 21, NCUA did place two wholesale, 
or ``corporate,'' credit unions into conservatorship. Those 
institutions serve only other credit unions, not people, and are 
completely different from the 8,000 retail, or ``natural person,'' 
credit unions in this country. Natural person credit unions have very 
narrow investment powers and very conservative investment policies, 
whereas corporate credit unions enjoy broader investment powers. 
Essentially, what created losses at the two corporate credit unions 
were declines in the values of mortgage-backed securities in which they 
had invested. Although these securities were originally AAA-rated and 
appeared prudent when they were made, market developments provide to 
the contrary. Let me emphasize two points here: first, few, if any, of 
the mortgages backing the securities were originated by credit unions; 
and second, the credit union system itself is funding the losses on 
these investments. That is not to say that we would reject some 
government help with the problem; we would prefer some help, which we 
would pay back, spreading the losses over time. But we expect to pay 
for the problem ourselves, and the problem says nothing about the 
condition or operations of credit unions that you and I can join.
    Getting back to the current discussion of regulatory restructuring, 
let me call your attention to the fact that, for decades, the banking 
industry has sought the extinction of credit unions in this country. 
Rather than pursue this goal in the marketplace, banks often seek to 
leverage legislation and regulations against credit unions through 
intense, well-funded lobbying and litigation. We urge Congress not to 
allow its deliberations about financial regulatory restructuring 
regulatory to become a vehicle for more of these tactics. The loss of 
the diversity, conservative management, and consumer ownership of 
credit unions through the creation of inappropriate regulatory 
mechanisms would be tragic not only for credit unions, but also for the 
92 million consumers who take advantage of credit union service. As I 
explain in more detail below, regulatory restructuring could force 
credit unions into the mold of the banks if restructuring is not 
approached with care.
Changes to the Credit Union Regulatory Structure Should Be Tailored to 
        the Need
    Although the causes of the current economic crisis are complex, few 
can doubt that the skyrocketing rates of mortgage loan defaults and 
foreclosures of the past few years were the catalyst, with the 
resulting drop in housing values serving to exacerbate these problems. 
The primary culprits were subprime mortgage loans characterized by high 
rates with large interest-rate re-sets, negative amortization, lack of 
sufficient underwriting, or other indicators of fraud.
    Unlike other types of financial institutions, credit unions 
originated few if any of the subprime mortgage loans with these 
characteristics and have not otherwise been the cause of our current 
economic circumstances. Credit unions' generally conservative lending 
practices and ongoing efforts to place the needs of members over 
profits have distinguished them from those who made unscrupulous loans 
in recent years.
    This distinction has been recognized by many in Congress. For 
example, Congressman Barney Frank (D-MA) has publicly stated that the 
economic crisis would never have occurred if all lenders originated 
loans in the same manner as credit unions.
    Unfortunately, the high rates of mortgage defaults and foreclosures 
have affected credit unions and their members as the current recession 
has deepened. Increased unemployment and other factors have affected 
the ability of some members to keep current on their mortgage, auto 
loan, and other obligations. Notwithstanding these difficulties, credit 
unions have been able to continue making loans, while other types of 
financial institutions have curtailed lending, and these efforts have 
been noted by the mainstream media. According to a March 15 Wall Street 
Journal article, as banks cut back on lending, credit union loans rose 
by 7 percent in 2008 to over $575 billion, up $35 billion from the 
previous year. The article also noted that bank loans in the country 
declined about $31 billion during this time.
    We certainly recognize that the current economic circumstances 
highlight the need to restructure the financial regulatory system. 
However, we believe these efforts should focus on protecting consumers, 
preserving their financial choices--including through dual chartering--
and limiting the systemic risk that is currently posed by institutions 
within the financial system which present disproportionate risk and 
have not been subject to sufficient regulatory oversight.
    Although we recognize that there are many suggestions to address 
these issues, such as creating a centralized systemic risk regulator or 
perhaps by enhancing the Federal Reserve Board's authority in the area 
of systemic risks, we urge Congress to exclude from the scope of such 
regulation smaller institutions that have shunned undue risk. Credit 
unions are among those in this category. By focusing on institutions 
whose operations and actions present the greatest risk, Congress will 
avoid the danger that credit unions--the very institutions that 
observed conservative lending and underwriting practices--could find 
themselves deprived not only of a voice, but even an audience, at a 
regulator dominated by larger, riskier institutions. We look forward to 
reviewing from this perspective the specific proposals and bills that 
will be introduced in the near future.
    Another caution comes from our experience with the Treasury under 
the past Administration and at times, the Federal Reserve Board. More 
specifically, credit unions and their regulator have not always had 
opportunities to provide input on the development of rules and policies 
that impact their operations to the same extent as banks. For instance, 
credit unions often have difficulty getting appointments with key 
Federal Reserve officials, and those officials routinely decline 
requests to appear before credit union audiences. A previous head of 
the Federal Deposit Insurance Corporation (FDIC) publicly called for 
taxation of credit unions, and the Office of Thrift Supervision, which 
has sometimes been short on institutions to regulate, has encouraged 
credit unions to convert to thrift charters. This should come as no 
surprise because those agencies' bank stakeholders view credit unions 
as their competition and spend a great deal of time, money, and effort 
lobbying against credit union interests, suing the National Credit 
Union Administration (NCUA), and using any other available means to try 
to put credit unions out of business.
    While we are hopeful that this is changing, past practices from 
these agencies help to illustrate why including small institutions, 
such as credit unions, under a large regulator focused on banks and/or 
other major market players would be detrimental to the interests of 
credit unions and their members.
    Since credit unions have not posed any systemic risks to the 
financial system or otherwise been the cause of the current economic 
crisis, we believe that only minimal changes need to be made to the 
regulatory structure of credit unions, including federally insured 
credit unions that are regulated by NCUA. The goal of these changes 
should be to enhance the quality of NCUA's regulatory structure and 
supervisory oversight.
Credit Unions Need an Independent Federal Regulator
    Not-for-profit credit unions' unique mission, democratic 
governance, and cooperative ownership structure necessitate an 
independent federal regulator for credit unions. The U.S. credit union 
system should continue to be regulated and supervised by an independent 
federal agency for the following three reasons:

  1.  Inherent risk aversion. The cooperative structure of credit 
        unions presents management with very different incentives 
        related to risk taking than at for-profit institutions. These 
        differences require a correspondingly different system of 
        prudential regulation and deposit insurance than that which is 
        appropriate for-profit institutions.

  2.  Preservation of member benefits. The cooperative structure 
        produces substantial benefits to credit union members, which 
        should be preserved.

  3.  Long-term viability. If the prudential regulation of credit 
        unions were merged with that of for-profit depository 
        institutions, credit unions would be transformed into for-
        profit institutions.

    The credit union way of doing business is significantly different 
even from mutual savings associations' because mutual thrifts are for-
profit, rely heavily on proxy voting, have self-perpetuating and 
management-controlled boards, and almost always base their member-
depositors' voting power on their account balances giving, for example, 
one vote for every $100 in a depositor's account. As the 105th Congress 
noted in the findings to the Credit Union Membership Access Act in 
1998:

        Credit unions, unlike many other participants in the financial 
        services market, are exempt from Federal and most State taxes 
        because they are member-owned, democratically operated, not-
        for-profit organizations generally managed by volunteer boards 
        of directors and because they have the specified mission of 
        meeting the credit and savings needs of consumers, especially 
        persons of modest means.

    The unique cooperative structure of credit unions entails a set of 
incentives for managers that differ markedly from those presented to 
managers of for-profit institutions. The not-for-profit, democratically 
controlled, and member focused orientation of credit unions has a 
significant effect on the behavior of credit union managers. Credit 
unions must over time earn a positive bottom line to retain earnings to 
build capital, which is crucial to federally insured depository 
institutions. However, credit unions operate in a mode of merely 
generating adequate net income to build capital, rather than profit 
maximization. They are driven instead to maximize member satisfaction. 
The managers and boards of credit unions do not own stock in the credit 
union (there is no such thing) and they have no stock options. They 
therefore have much less incentive to pursue risky initiatives that 
might increase the stock price and hence their own wealth. One of the 
very driving forces that led to the current financial crisis is 
completely absent from credit unions.
    In the words of Edward Kane of Boston College Finance Department, 
who correctly foresaw and analyzed the savings and loan debacle of the 
late 1980s: ``The cooperative structure of human-person credit unions 
creates reservoirs for firm value and systems for distributing claims 
to future cash flows that differ markedly from those of other deposit 
institutions. These differences make it less feasible for managers to 
pursue and to benefit from either corrupt lending or go-for-broke 
strategies of risk-taking.''
    The table that follows starkly illustrates Kane's point in terms of 
one of the most basic risks that financial institutions take on: the 
risk of lending. Credit union loan losses are consistently lower than 
at banks, across all loan types. Although credit unions and banks make 
similar types of loans, the credit union record of relatively 
conservative lending is striking. Over the past decade, bank loan 
charge-offs ranged from eight times higher than the credit union norm 
(for business loans) to nearly two times higher than the credit union 
norm (for non-credit-card consumer loans).


    These differences in loan losses stem from the natural tendency 
toward risk aversion induced by the cooperative structure. Further, 
credit unions lending is virtually exclusively consumer and small 
business oriented. The Treasury Department found in 2001 that: ``Over 
50 percent of the [credit union business] loans reported to us by 
survey respondents were made for businesses with assets under $100,000 
and about 86 percent of those made were to businesses with total assets 
less than $500,000.'' Obviously, such striking differences in natural 
behavior and market orientation require a different form of prudential 
regulation and deposit insurance.
    The behavioral differences seen in cooperative financial 
institutions also produce large societal advantages that are worth 
promoting and preserving. Some of these benefits are nonfinancial, such 
as the ability to exert control of the institution through the 
democratic process, access to large cooperative ATM networks, financial 
counseling, auto buying services, and the like. Significant financial 
benefits also are obvious. The credit union difference provides 
consumers with consistently favorable interest rates on loans and 
savings accounts and also gives rise to the imposition of fewer and 
lower fees. The table that follows highlights some of the financial 
advantages that were available in 2008. The 1.73 percentage point 
average rate differential on 4-year used car loans translates into 
nearly $600 in savings to the consumer who uses a credit union to 
finance a $15,000 vehicle.
    In the aggregate, CUNA economists estimate that credit unions 
provided $8 billion in direct financial benefits to the Nation's 92 
million credit union members in the year ending June 2008. These 
benefits are equivalent to approximately $90 per credit union member or 
approximately $170 per member household. Loyal credit union members--
those who use their credit union extensively--receive total financial 
benefits that are much greater than this average.
    The continued existence of these substantial societal benefits 
would be seriously jeopardized were the credit union regulator or 
credit union regulations merged into those focused on for-profit 
institutions. Credit unions represent just 6 percent of total 
depository institution assets. If the credit union regulator were 
merged into a for-profit regulatory body, the views, attitudes, and 
philosophy of the not-for-profit cooperative sector would undoubtedly 
be swamped and credit union behaviors would almost certainly ``morph'' 
into behaviors similar to those found in the for-profit sector.
    The not-for-profit mission and democratic governance structure of 
credit unions as cooperatives necessitate a fundamentally different 
supervisory approach at the federal level than banking supervision 
does. This fundamentally different approach to supervision requires an 
independent federal regulator that understands the unique nature of 
credit unions and will not become hostile to credit unions, as the FDIC 
and Farm Credit Administration were when they regulated federal credit 
unions. The United States is also far from the only country to 
recognize that credit unions, as not-for-profit cooperatives, require 
an independent credit union regulator. Most G20 countries--including 
Canada, Mexico, Germany, France, South Korea, Argentina, and Brazil--
have recognized that having bank regulators supervise credit unions at 
the national level just does not work, and so have many non-G20 
nations. It also worth noting that the establishment of a super-
regulator in the United Kingdom, the Financial Services Authority, has 
failed to save British financial institutions from substantial 
entanglement and dislocation in the current crisis.


CUNA Supports Specific, Modest Changes To Improve NCUA Operations
    We agree that a review of the operations of all federal financial 
institution regulators is certainly in order, including review of NCUA. 
We certainly do not mean to suggest that NCUA is a perfect regulator. 
Some of NCUA's issues stem from legislation. For instance, the Federal 
Credit Union Act limits to one the number of members of the NCUA Board 
who can come from credit unions. None of the other bank regulators has 
a similar restriction, and this one can promote an NCUA Board that has 
little relevant experience outside the government. Even more 
significant is the absence from the Act of any express authority for 
NCUA to address systemic risk within the credit union system. This lack 
has significantly restricted NCUA from doing what it needs to do to 
address the current crisis, and sharply contrasts with similar, but 
broader authority delegated to the FDIC. The fundamental point, 
however, as outlined above, is that it is paramount that credit unions 
be regulated independently.
    Although an independent credit union regulator is essential, we 
believe that there are commonalities among all financial institution 
regulators and that these synergies should be used to facilitate 
improved operations among all of these agencies. In that connection, we 
urged the previous Administration that the President's Working Group, 
which includes the Federal Reserve Board, the Federal Deposit Insurance 
Corporation and others, include NCUA as well. We intend to renew this 
request to the current Administration.
    We recognize that coordination among the regulators already occurs 
in a number of contexts. For example, the Federal Financial 
Institutions Examination Council (FFIEC) is a formal interagency body 
that prescribes uniform standards and forms for financial institution 
examinations. Also, the Financial Crimes Enforcement Network (FinCen) 
regularly convenes meetings of the Bank Secrecy Act Advisory Group 
(BSAAG), of which CUNA is a member. The BSAAG performs an important 
function by providing a forum for discussing how Bank Secrecy Act 
requirements can be used more effectively to combat terrorist 
financing. Another noteworthy example is the Financial Literacy and 
Education Commission, which is comprised of twenty federal agencies 
with the goal of developing and monitoring a national strategy to 
improve financial literacy in the United States. We also think that the 
coordination of training opportunities for the staffs of the financial 
regulatory agencies could help enhance efficiencies and contain agency 
costs.
    A means to facilitate these goals could be the creation of an 
additional interagency committee or task force to oversee these efforts 
and which would include equal representation from all the relevant 
agencies, including NCUA. This will help ensure a consistent approach 
to rulemaking while recognizing that the differences among financial 
institution charters may require different rules in specific areas.
Separate Regulator for Consumer Protection
    Most financial transactions involving consumers are currently 
covered by federal consumer protection laws. These include transactions 
involving credit and debit cards, automated teller machine transactions 
and other electronic fund transfers, deposit account transactions, 
mortgages and home equity loans, and other unsecured credit 
transactions.
    There has been significant debate as to whether a separate agency 
should be established with the mission of providing consumer 
protections with regard to credit and other financial transactions. The 
Federal Reserve Board currently issues the rules to implement many of 
the major consumer protection laws, most of which apply to credit 
unions. Enforcement of these rules is shared by both NCUA and the 
Federal Trade Commission.
    Other agencies also issue rules that protect consumers in financial 
transactions. Notable examples are in the area of privacy and fair 
credit reporting. These are often joint rulemaking efforts by all of 
the financial institution regulators, including NCUA. Significant 
exceptions include the rules issued under the Real Estate Settlement 
Procedures Act, which imposes disclosure and other requirements for 
mortgage lending and are implemented by the Department of Housing and 
Urban Development.
    Much of the impetus for consolidating consumer protection 
regulation in a single agency comes from the desire to stop certain 
financial institutions from making ``unsafe'' products available to 
unwitting consumers. Credit unions do not have much history of selling 
unsafe products to their members, although there can be healthy debates 
about whether some products, such as overdraft protection and payday-
loan equivalents, are good for consumers or not. Sometimes the same 
product can be pro- or anti-consumer, depending on its terms and on how 
it is serviced. Since the managers of firms tend to serve the interests 
of owners, and credit unions are owned by their members who are 
represented by democratically elected boards with authority over 
managers, consumers do not typically need much protection from their 
credit unions. However, inadvertent errors can occur, and comparative 
disclosures are important.
    Although we certainly see the appeal in creating a separate agency 
that would issue and implement consumer protection rules as this would 
centralize this important function, we would want to make sure that 
there is no net increase in the regulatory burden imposed on credit 
unions. Since we have not contributed to the problem, we would like not 
to pay a big price for the answer to a question that barely exists in 
our industry. In particular, enforcement and examination should remain 
primarily in the hands of NCUA; unleashing a new army of enforcers and 
examiners would add little to consumer well-being except costs, in the 
case of credit unions.
    However, we would be concerned that shifting rulemaking power from 
NCUA to a separate agency would curtail NCUA's authority. NCUA has had 
responsibility in implementing many consumer protection rules, often as 
a joint effort with other agencies. We believe that the creation of a 
separate agency should not limit NCUA's ability to continue to provide 
input and ensure that new rules address specific credit union concerns. 
We would also be concerned with any changes that would limit NCUA's 
current enforcement authority in this area.
History Teaches Lessons About Supervision of Credit Unions
    Although the first credit unions in the United States were state-
chartered credit unions established in New Hampshire and Massachusetts 
around 1909--we will be celebrating the centenary of U.S. credit unions 
in Boston later this year--federal regulation of credit unions did not 
begin until 1934.
    That year, at the height of the Great Depression, Congress passed 
the Federal Credit Union Act and created the federal credit union 
charter. (Federal deposit insurance--or, as we call it, share 
insurance--for federal- and state-chartered credit unions did not come 
into being until 1970.) Congress created the federal credit union 
charter in large part because the financially troubled banks of the 
time were not able to meet the public demand for consumer and small 
business credit. The troubles of those times were not so different from 
our current problems. Foreclosures abounded. Banks--many of which had 
significant numbers of uncollectible loans on their books, as well as 
other bad assets--were unable or unwilling to extend necessary credit. 
Not-for-profit credit unions were encouraged to step up and do what 
for-profit banks could or would not do.
    The passage of the Federal Credit Union Act marked the beginning of 
a long period in which federal credit union regulation was something of 
a wandering orphan.
    The first stop, from 1934 to 1942, was at the Farm Credit 
Administration, perhaps because the Farm Credit Administration 
regulated Farm Credit System cooperatives rather than for-profit banks. 
While the relationship between credit unions and the Farm Credit 
Administration was initially good, by the late 1930s many Farm Credit 
Administration officials had become indifferent or openly hostile to 
credit unions since the agency was overburdened and federal credit 
union supervision had no real connection to the Farm Credit 
Administration's basic functions.
    The second stop, beginning in 1942, was the FDIC. There, the 
hazards of being regulated by an agency primarily dedicated to the 
banking industry soon became apparent. Only weeks after federal credit 
unions came under FDIC supervision, then-CUNA President R.A. West said 
``we are very much of an orphan in the [FDIC] and . . . steps must be 
taken to relieve this situation as quickly as possible.'' In various 
statements, the FDIC denigrated the importance of credit unions, urged 
Congress to give them low priority, and dismissed the importance of 
credit unions in the FDIC's own work.
    By 1947, it was clear that federal credit unions needed a regulator 
of their own in order to prosper, and CUNA began to seek such an 
arrangement. That wish was partially fulfilled when Congress created 
the Bureau of Federal Credit Unions in 1948. The Bureau wandered 
between the now-dissolved Federal Security Agency and the Department of 
Health, Education and Welfare before evolving into the completely 
independent NCUA we know today.
    Admittedly, federal credit unions' experience with regulation by 
FDIC and other multi-jurisdictional agencies occurred decades ago, but 
Congress has wisely not repeated the mistake of having credit unions 
supervised at the federal level by a bank regulator or another multi-
jurisdictional agency. As discussed earlier in this statement, anti-
credit union bias periodically manifests itself today within federal 
banking regulatory agencies. History teaches that credit union 
regulation should not be entrusted to a multifunctional regulator, and 
especially not one whose primary constituency is the banking industry.
Conclusion
    Mr. Chairman, thank you again for the opportunity to testify on 
this important issue. The issues you are examining are important. Once 
they are settled, we believe it will be appropriate for Congress to 
take a hard look at some other long-postponed issues, such as whether 
the current powers of credit unions are sufficient to serve their 
members, or whether they have been limited for the benefit of the 
banking industry. Meanwhile, we urge Congress to maintain the 
independent federal regulator for credit unions not only for the well-
being of credit unions, but also for the well-being of the 92 million 
consumers who benefit from credit union membership.
                                 ______
                                 

               PREPARED STATEMENT OF WILLIAM R. ATTRIDGE
    President, Chief Executive Officer, and Chief Operating Officer,
                    Connecticut River Community Bank
                             March 24, 2009
    Mr. Chairman, Ranking Member Shelby, and Members of the Committee, 
my name is William Attridge, I am President and Chief Executive Officer 
of Connecticut River Community Bank. I am also a member of the 
Congressional Affairs Committee of the Independent Community Bankers of 
America. \1\ My bank is located in Wethersfield, Connecticut, a 350-
year-old town of over 27,000 people. ICBA is pleased to have this 
opportunity to testify today on the modernization of our financial 
system regulatory structure.
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     \1\ The Independent Community Bankers of America represents nearly 
5,000 community banks of all sizes and charter types throughout the 
United States and is dedicated exclusively to representing the 
interests of the community banking industry and the communities and 
customers we serve. ICBA aggregates the power of its members to provide 
a voice for community banking interests in Washington, resources to 
enhance community bank education and marketability, and profitability 
options to help community banks compete in an ever-changing 
marketplace.
    With nearly 5,000 members, representing more than 18,000 locations 
nationwide and employing over 268,000 Americans, ICBA members hold more 
than $908 billion in assets, $726 billion in deposits, and more than 
$619 billion in loans to consumers, small businesses and the 
agricultural community. For more information, visit ICBA's Web site at 
www.icba.org.
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Summary of ICBA Recommendation
    ICBA commends the Chairman and the Committee for tackling this 
issue quickly. The current crisis demands bold action, and we recommend 
the following:

    Address Systemic Risk Institutions. The only way to 
        maintain a vibrant banking system where small and large 
        institutions are able to fairly compete--and to protect 
        taxpayers--is to aggressively regulate, assess, and eventually 
        break up institutions posing a risk to our entire economy.

    Support Multiple Federal Banking Regulators. Having more 
        than a single federal agency regulating depository institutions 
        provides valuable regulatory checks-and-balances and promotes 
        ``best practices'' among those agencies--much like having 
        multiple branches of government.

    Maintain the Dual Banking System. Having multiple charter 
        options--both federal and state--is essential for maintaining 
        an innovative and resilient regulatory system.

    Access to FDIC Deposit Insurance for All Commercial Banks, 
        Both Federal and State Chartered. Deposit insurance as an 
        explicit government guarantee has been the stabilizing force of 
        our Nation's banking system for 75 years.

    Sufficient Protection for Consumer Customers of Depository 
        Institutions in the Current Federal Bank Regulatory Structure. 
        One benefit of the current regulatory structure is that the 
        federal banking agencies have coordinated their efforts and 
        developed consistent approaches to enforcement of consumer 
        regulations, both informally and formally, as they do through 
        the Federal Financial Institutions Examination Council (FFIEC).

    Reduce the Ten Percent Deposit Concentration Cap. The 
        current economic crisis illustrates the dangerous 
        overconcentration of financial resources in too few hands.

    Support the Savings Institutions Charter and the OTS. 
        Savings institutions play an essential role in providing 
        residential mortgage credit in the U.S. The thrift charter 
        should not be eliminated and the Office of Thrift Supervision 
        should not be merged into the Office of the Comptroller of the 
        Currency.

    Maintain GSEs Liquidity Role. Many community bankers rely 
        on Federal Home Loan Banks for liquidity and asset/liability 
        management through the advance window.

    The following will elaborate on these concepts and provide ICBA's 
reasons for advocating these principles.
State of Community Banking Is Strong
    Despite the challenges we face, the community bank segment of the 
financial system is still working and working well. We are open for 
business, we are making loans, and we are ready to help all Americans 
weather these difficult times.
    Community banks are strong, common sense lenders that largely did 
not engage in the practices that led to the current crisis. Most 
community banks take the prudent approach of providing loans that 
customers can repay, which best serves both banks and customers alike. 
As a result of this common sense approach to banking, the community 
banking industry, in general, is well-capitalized and has fewer problem 
assets than other segments of the financial services industry.
    That is not to suggest community banks are unaffected by the recent 
financial crisis. The general decline in the economy has caused many 
consumers to tighten their belts thus reducing the demand for credit. 
Commercial real estate markets in some areas are stressed. Many bank 
examiners are overreacting, sending a message contradicting 
recommendations from Washington that banks maintain and increase 
lending. For these reasons, it is essential the government continue its 
efforts to stabilize the financial system.
    But, Congress must recognize these efforts are blatantly unfair. 
Almost every Monday morning for months, community banks have awakened 
to news the government has bailed out yet another too-big-to-fail 
institution. On many Saturdays, they hear the FDIC has summarily closed 
one or two too-small-to-save institutions. And, just recently, the FDIC 
proposed a huge special premium to shore up the Deposit Insurance Fund 
(DIF) to pay for losses caused by large institutions. This inequity 
must end, and only Congress can do it. The current situation--if left 
uncorrected--will damage community banks and the consumers and small 
businesses we serve.
Congress Must Address Excessive Concentration
    ICBA remains deeply concerned about the continued concentration of 
banking assets in the U.S. The current crisis has made it painfully 
obvious the financial system has become too concentrated, and--for many 
institutions--too loosely regulated.
    Today, the four largest banking companies control more than 40 
percent of the Nation's deposits and more than 50 percent of the assets 
held by U.S. banks. We do not believe it is in the public interest to 
have four institutions controlling most of the assets of the banking 
industry. A more diverse financial system would reduce risk, and 
promote competition, innovation, and the availability of credit to 
consumers of various means and businesses of all sizes.
    Our Nation is going through an agonizing series of bankruptcies, 
failures and forced buy-outs or mergers of some of the Nation's largest 
banking and investment houses that is costing American taxpayers 
hundreds of billions of dollars and destabilizing our economy. The 
doctrine of too big--or too interconnected--to fail, has finally come 
home to roost, to the detriment of American taxpayers. Our Nation 
cannot afford to go through this again. Systemic risk institutions that 
are too big or inter-connected to manage, regulate or fail should 
either be broken up or required to divest sufficient assets so they no 
longer pose a systemic risk.
    In a recent speech Federal Reserve Chairman Ben S. Bernanke 
outlined the risks of the too-big-to-fail system:

        [T]he belief of market participants that a particular firm is 
        considered too big to fail has many undesirable effects. For 
        instance, it reduces market discipline and encourages excessive 
        risk-taking by the firm. It also provides an artificial 
        incentive for firms to grow, in order to be perceived as too 
        big to fail. And it creates an unlevel playing field with 
        smaller firms, which may not be regarded as having implicit 
        government support. Moreover, government rescues of too-big-to-
        fail firms can be costly to taxpayers, as we have seen 
        recently. Indeed, in the present crisis, the too-big-to-fail 
        issue has emerged as an enormous problem. \2\
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     \2\ Financial Reform To Address Systemic Risk, at the Council of 
Foreign Relations, March 10, 2009.

    FDIC Chairman Sheila Bair, in remarks before the ICBA annual 
convention last Friday said, ``What we really need to do is end too-
big-to-fail. We need to reduce systemic risk by limiting the size, 
complexity and concentration of our financial institutions.'' \3\ The 
Group of 30 report on financial reform stated, ``To guard against 
excessive concentration in national banking systems, with implications 
for effective official oversight, management control, and effective 
competition, nationwide limits on deposit concentration should be 
considered at a level appropriate to individual countries.'' \4\
---------------------------------------------------------------------------
     \3\ March 20, 2009.
     \4\ ``Financial Reform; A Framework for Financial Stability,'' 
January 15, 2009, p. 8.
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    The 10 percent nationwide deposit concentration cap established by 
the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 
should be immediately reduced and strengthened. The current cap is 
insufficient to control the growth of systemic risk institutions the 
failure of which will cost taxpayers dearly and destabilize our 
economy.
    Unfortunately, government interventions necessitated by the too-
big-to-fail policy have exacerbated rather than abated the long-term 
problems in our financial structure. Through Federal Reserve and 
Treasury orchestrated mergers, acquisitions and closures, the big have 
become bigger.
    Congress should not only consider breaking up the largest 
institutions, but order it to take place. It is clearly not in the 
public interest to have so much power and concentrated wealth in the 
hands of so few, giving them the ability to destabilize our entire 
economy.
Banking and Antitrust Laws Have Failed To Prevent Undue Concentration; 
        Large Institutions Must Be Regulated and Broken Up
    Community bankers have spent the past 25 years warning policy 
makers of the systemic risk that was being created in our Nation by the 
unbridled growth of the Nation's largest banks and financial firms. 
But, we were told we didn't get it, that we didn't understand the new 
global economy, that we were protectionist, that we were afraid of 
competition, and that we needed to get with the ``modern'' times.
    Sadly, we now know what modern times look like and the picture 
isn't pretty. Our financial system is imploding around us. Why is this 
the case, and why must Congress take bold action?
    One important reason is that banking and antitrust laws fail to 
address the systemic risks posed by excessive financial concentration. 
Their focus is too narrow. Antitrust laws are designed to maintain 
competitive geographic and product markets. So long as the courts and 
agencies can discern that there are enough competitors in a particular 
market that is the end of the inquiry.
    This type of analysis often prevents local banks from merging. But, 
it has done nothing to prevent the creation of giant nationwide 
franchises competing with each other in various local markets. No one 
asked, is the Nation's banking industry becoming too concentrated and 
are individual firms becoming too powerful both economically and 
politically.
    The banking laws are also subject to misguided tunnel vision. The 
question is always whether a given merger will enhance the safety and 
soundness of an individual firm. The answer has been that ``bigger'' is 
almost necessarily ``stronger.'' A bigger firm can--many said--spread 
its risk across geographic areas and business lines. No one wondered 
what would happen if one firm, or a group of firms, decides to jump off 
a cliff as they did in the subprime mortgage market. Now we know.
    It is time for Congress to change the laws and direct that the 
Nation's regulatory system take systemic risk into account and take 
steps to reduce and eventually eliminate it. These are ICBA specific 
recommendations to deal with this issue:
Summary of Systemic Risk Recommendations
    Congress should direct a fully staffed interagency task 
        force to immediately identify financial institutions that pose 
        a systemic risk to the economy.

    These institutions should be put immediately under 
        prudential supervision by a Federal agency--most likely the 
        Federal Reserve.

    The Federal systemic risk agency should impose two fees on 
        these institutions that would:

      compensate the agency for the cost of supervision; and

      capitalize a systemic risk fund comparable to the FDIC's 
        Deposit Insurance Fund.

    The FDIC should impose a systemic risk premium on any 
        insured bank that is affiliated with a firm designated as a 
        systemic risk institution.

    The systemic risk regulator should impose higher capital 
        charges to provide a cushion against systemic risk.

    The Congress should direct the systemic risk regulator and 
        the FDIC to develop procedures to resolve the failure of a 
        systemic risk institution.

    The Congress should direct the interagency systemic risk 
        task force to order the break up of systemic risk institutions 
        over a 5-year period.

    Congress should direct the systemic risk regulator to 
        review all proposed mergers of major financial institutions and 
        to block any merger that would result in the creation of a 
        systemic risk institution.

    Congress should direct the systemic risk regulator to block 
        any financial activity that threatens to impose a systemic 
        risk.

    The only way to maintain a vibrant banking system where small and 
large institutions are able to fairly compete--and to protect 
taxpayers--is to aggressively regulate, assess, and eventually break up 
those institutions posing a risk to our entire economy.
Identification and Regulation of Systemic Risk Institutions
    ICBA recommends Congress establish an interagency task force to 
identify institutions that pose a systemic financial risk. At a 
minimum, this task force should include the agencies that regulate and 
supervise FDIC-insured banks--including the Federal Reserve--plus the 
Treasury and Securities and Exchange Commission. This task force would 
be fully staffed by individuals from those agencies, and should be 
charged with identifying specific institutions that pose a systemic 
risk. The task force should be directed by an individual appointed by 
the President and confirmed by the Senate.
    Once the task force has identified systemic risk institutions, they 
should be referred to the systemic risk regulator. Chairman Bernanke's 
March 10 speech provides a good description of the systemic risk 
regulator's duties: ``Any firm whose failure would pose a systemic risk 
must receive especially close supervisory oversight of its risk-taking, 
risk management, and financial condition, and be held to high capital 
and liquidity standards.'' Bernanke continued: ``The consolidated 
supervisors must have clear authority to monitor and address safety and 
soundness concerns in all parts of the organization, not just the 
holding company.''
    Of course, capital is the first line of defense against losses. 
Community banks have known this all along and generally maintain higher 
than required levels. This practice has helped many of our colleagues 
weather the current storm. The new systemic risk regulator should adopt 
this same philosophy for the too-big-to-fail institutions that it 
regulates.
    Clearly, the systemic risk regulator should also have the authority 
to step in and order the institution to cease activities that impose a 
systemic risk. Many observers warned that many players in the Nation's 
mortgage market were taking too many risks. Unfortunately, no one 
agency attempted to intervene and stop imprudent lending practices 
across the board. An effective systemic risk regulator must have the 
unambiguous duty and authority to block any financial activity that 
threatens to impose a systemic risk.
Assessment of Systemic Risk Regulatory Fees
    The identification, regulation, and supervision of these 
institutions will impose significant costs to the systemic risk task 
force and systemic risk regulator. Systemic risk institutions must be 
assessed the full costs of these government expenses. This would entail 
a fee, similar to the examination fees banks must pay to their 
chartering agencies.
Resolving Systemic Risk Institutions
    Chairman Bair and Chairman Bernanke have each recommended the 
United States develop a mechanism for resolving systemic risk 
institutions. This is essential to avoid a repeat of the series of the 
ad hoc weekend bailouts that have proven so costly and infuriating to 
the public and unfair to institutions that are too-small-to-save.
    Again, Bernanke's March 10 speech outlined some key considerations:

        The new resolution regime would need to be carefully crafted. 
        For example, clear guidelines must define which firms could be 
        subject to the alternative regime and the process for invoking 
        that regime, analogous perhaps to the procedures for invoking 
        the so-called systemic risk exception under the FDIA. In 
        addition, given the global operations of many large and complex 
        financial firms and the complex regulatory structures under 
        which they operate, any new regime must be structured to work 
        as seamlessly as possible with other domestic or foreign 
        insolvency regimes that might apply to one or more parts of the 
        consolidated organization.

    This resolution process will, obviously, be expensive. Therefore, 
Congress should direct the systemic risk regulator to establish a fund 
to bear these costs. The FDIC provides a good model. Congress has 
designated a minimum reserve ratio for the FDIC's Deposit Insurance 
Fund (DIF) and directed the agency to assess risk-based premiums to 
maintain that ratio. Instead of deposits, the ratio for the systemic 
risk fund should apply as broadly as possible to ensure all the risks 
covered are assessed.
    Some of the systemic risk institutions will include FDIC-insured 
banks within their holding companies. These banks would certainly not 
be resolved in the same way as a stand-alone community bank; all 
depositors would be protected beyond the statutory limits. Therefore, 
Congress should direct the FDIC to impose a systemic risk fee on these 
institutions in addition to their regular premiums.
    The news AIG was required by contract to pay hundreds of millions 
of dollars in bonuses to the very people that ruined the company point 
to another requirement for an effective systemic risk regulator. Once a 
systemic risk institution becomes a candidate for open-institution 
assistance or resolution, the regulator should have the same authority 
to abrogate contracts as the FDIC does when it is appointed conservator 
and receiver of a bank. If the executives and other highly paid 
employees of these institutions understood they could not design 
employment contracts that harmed the public interest, their willingness 
to take unjustified risk might diminish.
Breaking Up Systemic Risk Institutions and Preventing Establishing New 
        Threats
    ICBA believes compelling systemic risk regulation and imposing 
systemic risk fees and premiums will provide incentives to firms to 
voluntarily divest activities or not become too big to fail. However, 
these incentives may not be adequate. Therefore, Congress should direct 
the systemic risk task force to order the break up of systemic risk 
institutions over a 5-year period. These steps will reverse the long-
standing regulatory policy favoring the creation of ever-larger 
financial institutions.
    ICBA understands this will be a controversial recommendation, and 
many firms will object. We do not advocate liquidation of ongoing, 
profitable activities. Huge conglomerate holding companies should be 
separated into business units that make sense. This could be done on 
the basis of business lines or geographical divisions. Parts of larger 
institutions could be sold to other institutions. The goal is to reduce 
systemic risk, not to reduce jobs or services to consumers and 
businesses.
Maintain a Diversified Financial Regulatory System
    While ICBA strongly supports creation of an effective systemic risk 
regulator, we oppose the establishment of a single, monolithic 
regulator for the financial system. Having more than a single federal 
agency regulating depository institutions provides valuable regulatory 
checks-and-balances and promotes ``best practices'' among those 
agencies--much like having multiple branches of government. The 
collaboration required by multiple federal agencies on each interagency 
regulation insures all perspectives and interests are represented, that 
no one type of institution will benefit over another, and the resulting 
regulatory or supervisory product is superior.
    A monolithic federal regulator such as the UK's Financial Service 
Authority would be dangerous and unwise in a country with a financial 
services sector as diverse as the United States, with tens of thousands 
of banks and other financial services providers. Efficiency must be 
balanced against good public policy. With the enormous power of bank 
regulators and the critical role of banks in the health and vitality of 
the national economy, it is imperative the bank regulatory system 
preserves real choice, and preserves both state and federal regulation.
    For over three generations, the U.S. banking regulatory structure 
has served this Nation well. Our banking sector was the envy of the 
world and the strongest and most resilient financial system ever 
created. But we have gotten off the track. Nonbank financial regulation 
has been lax and our system has allowed--and even encouraged--the 
establishment of financial institutions that are too big to manage, too 
big to regulate, and too big to fail.
    ICBA supports a system of tiered regulation that subjects large, 
complex institutions that pose the highest risks to more rigorous 
supervision and regulation than less complex community banks. Large 
banks should be subject to continuous examination, and more rigorous 
capital and other safety and soundness requirements than community 
banks in recognition of the size and complexity and the amount of risk 
they pose. They should pay a ``systemic risk premium'' in addition to 
their regular deposit insurance premiums to the FDIC.
    Community banks should be examined on a less intrusive schedule and 
should be subject to a more flexible set of safety and soundness 
restrictions in recognition of their less complex operations and the 
fact that community banks are not ``systemic risk'' institutions. 
Public policy should promote a diversified economic and financial 
system upon which our Nation's prosperity and consumer choice is built 
and not encourage further consolidation and concentration of the 
banking industry by discouraging current community banking operations 
or new bank formation.
    Congress need not waste time rearranging the regulatory boxes to 
change the system of community bank regulation. The system has worked, 
is working, and will work in the future. The failure occurred in the 
too-big-to-fail sector. That is the sector Congress must fix.
Maintain and Strengthen the Separation of Banking and Commerce
    Congress has consistently followed one policy that has prevented 
the creation of some systemic risk institutions. The long-standing 
policy prohibiting affiliations or combinations between banks and 
nonfinancial commercial firms (such as Wal-Mart and Home Depot) has 
served our Nation well. ICBA opposes any regulatory restructuring that 
would allow commercial entities to own a bank. If it is generally 
agreed that the current financial crisis is the worst crisis to strike 
the United States since the Great Depression, how much worse would this 
crisis have been had the commercial sector been intertwined with banks 
as well? Regulators are unable to properly regulate the existing mega-
financial firms, how much worse would it be to attempt to regulate 
business combinations many times larger than those that exist today?
    This issue has become more prominent with recent Federal Reserve 
encouragement of greater equity investments by commercial companies in 
financial firms. This is a very dangerous path.
    Mixing banking and commerce is bad public policy because it creates 
conflicts of interest, skews credit decisions, and produces dangerous 
concentrations of economic power. It raises serious safety and 
soundness concerns because the companies operate outside the 
consolidated supervisory framework Congress established for owners of 
insured banks. It exposes the bank to risks not normally associated 
with banking. And it extends the FDIC safety net putting taxpayers at 
greater risk. Mixing banking and commerce was at the core of a 
prolonged and painful recession in Japan.
    Congress has voted on numerous occasions to close loopholes that 
permitted the mixing of banking and commerce, including the nonbank 
bank loophole in 1987 and the unitary thrift holding company loophole 
in 1999. However, the Industrial Loan Company loophole remains open.
    Creating greater opportunities to widen this loophole would be a 
serious public policy mistake, potentially depriving local communities 
of capital, local ownership, and civic leadership.
Maintain the Dual Banking System
    ICBA believes strongly in the dual banking system. Having multiple 
charter options--both federal and state--that financial institutions 
can choose from is essential for maintaining an innovative and 
resilient regulatory system. The dual banking system has served our 
Nation well for nearly 150 years. While the lines of distinction 
between state and federally chartered banks have blurred in the last 20 
years, community banks continue to value the productive tension between 
state and federal regulators. One of the distinct advantages to the 
current dual banking system is that it ensures community banks have a 
choice of charters and the supervisory authority that oversees their 
operations. In many cases over the years the system of state regulation 
has worked better than its federal counterparts. State regulators bring 
a wealth of local market knowledge and state and regional insight to 
their examinations of the banks they supervise.
The Current Federal Bank Regulatory Structure Provides Sufficient 
        Protections for Consumer Customers of Depository Institutions
    One benefit of the current regulatory structure is the federal 
banking agencies have coordinated their efforts and developed 
consistent approaches to enforcement of consumer regulations, both 
informally and formally, as they do through the Federal Financial 
Institutions Examination Council (FFIEC). This interagency cooperation 
has created a system that ensures a breadth of input and discussion 
that has produced a number of beneficial interagency guidelines, 
including guidelines on nontraditional mortgages and subprime lending, 
as well as overdraft protection, community reinvestment and other areas 
of concern to consumers.
    Perhaps more important for consumer interests than interagency 
cooperation is the fact that depository institutions are closely 
supervised and regularly examined. This examination process ensures 
consumer financial products and services offered by banks, savings 
associations and credit unions are regularly and carefully reviewed for 
compliance.
    ICBA believes nonbank providers of financial services, such as 
mortgage companies, mortgage brokers, etc., should be subject to 
greater oversight for consumer protection. For the most part, 
unscrupulous and in some cases illegal lending practices that led 
directly to the subprime housing crisis originated with nonbank 
mortgage providers. The incidence of abuse was much less pronounced in 
the highly regulated banking sector.
Retain the Savings Institutions Charter and the OTS
    Savings institutions play an essential role in providing 
residential mortgage credit in the United States. The thrift charter 
should not be eliminated and the Office of Thrift Supervision should 
not be merged into the Office of the Comptroller of the Currency. The 
OTS has expertise and proficiency in supervising those financial 
institutions choosing to operate with a savings institution charter 
with a business focus on housing finance and other consumer lending.
Government-Sponsored Enterprises Play an Important Role
    Many community bankers rely on Federal Home Loan Banks for 
liquidity and asset/liability management through the advance window. 
Community banks place tremendous reliance upon the FLHBs as a source of 
liquidity and an important partner in growth. Community banks also have 
been able to provide mortgage services to our customers by selling 
mortgages to Fannie Mae and Freddie Mac.
    ICBA strongly supported congressional efforts to strengthen the 
regulation of the housing GSEs to ensure the ongoing availability of 
these services. We urge the Congress to ensure these enterprises 
continue their vital services to the community banking industry in a 
way that protects taxpayers and ensures their long-term viability.
    There are few ``rules of the road'' for the unprecedented 
government takeover of institutions the size of Fannie and Freddie, and 
the outcome is uncertain. Community banks are concerned that the 
ultimate disposition of the GSEs by the government may fundamentally 
alter the housing finance system in ways that disadvantage consumers 
and community bank mortgage lenders alike.
    The GSEs have performed their central task and served our Nation 
well. Their current challenges do not mean the mission they were 
created to serve is flawed. ICBA firmly believes the government must 
preserve the historic mission of the GSEs, that is, to provide capital 
and liquidity for mortgages to promote homeownership and affordable 
housing in both good times and bad.
    Community banks need an impartial outlet in the secondary market 
such as Fannie and Freddie--one that doesn't compete with community 
banks for their customers. Such an impartial outlet must be maintained. 
This is the only way to ensure community banks can fully serve their 
customers and their communities and to ensure their customers continue 
to have access to affordable credit.
    As the future structure of the GSEs is considered, ICBA is 
concerned about the impact on their effectiveness of either an 
elimination of the implied government guarantee for their debt or 
limits on their asset portfolios. These are two extremely important 
issues. The implied government guarantee is necessary to maintain 
affordable 30-year, fixed rate mortgage loans. Flexible portfolio 
limits should be allowed so the GSEs can respond to market needs. 
Without an institutionalized mortgage-backed securities market such as 
the one Freddie and Fannie provide, mortgage capital will be less 
predictable and more expensive, and adjustable rate mortgages could 
become the standard loan for home buyers, as could higher down payment 
requirements.
Conclusion
    Mr. Chairman, to say this is a complex and complicated undertaking 
would be a great understatement. Current circumstances demand our 
utmost attention and consideration. Many of the principles laid out in 
our testimony are controversial, but we feel they are necessary to 
preserve and maintain America's great financial system and make it 
stronger coming out of this crisis.
    ICBA greatly appreciates this opportunity to testify. Congress 
should avoid doing damage to the regulatory system for community banks, 
a system that has been tremendously effective. However, Congress should 
take a number of steps to regulate, assess, and ultimately break up 
institutions that pose unacceptable systemic risks to the Nation's 
financial system. The current crisis provides an opportunity to 
strengthen our Nation's financial system and economy by taking these 
important steps. ICBA looks forward to working with this Committee on 
these very important issues.

               PREPARED STATEMENT OF AUBREY B. PATTERSON
                 Chairman and Chief Executive Officer,
                           BancorpSouth, Inc.
                             March 24, 2009
    Chairman Dodd, Ranking Member Shelby, and Members of the Committee, 
my name is Aubrey Patterson. I am Chairman and Chief Executive Officer 
of BancorpSouth, Inc., a $13.3 billion-asset bank financial holding 
company whose subsidiary bank operates over 300 commercial banking, 
mortgage, insurance, trust and broker dealer locations in Mississippi, 
Tennessee, Alabama, Arkansas, Texas, Florida, Louisiana, and Missouri. 
I currently serve as co-chair of the Future Regulatory Reform Task 
Force at the American Bankers Association (ABA) and was a former 
chairman of ABA's Board of Directors. ABA works to enhance the 
competitiveness of the Nation's banking industry and strengthen 
America's economy and communities. Its members--the majority of which 
are banks with less than $125 million in assets--represent over 95 
percent of the industry's $13.9 trillion in assets and employ over 2.2 
million men and women.
    ABA congratulates the Committee on the approach it is taking to 
respond to the financial crisis. There is a great need to act, but to 
do so in a thoughtful and thorough manner, and with the right 
priorities. That is what this Committee is doing. On March 10, Federal 
Reserve Board Chairman Bernanke gave an important speech laying out his 
thoughts on regulatory reform. He laid out an outline of what needs to 
be addressed in the near term and why, along with general 
recommendations. We are in broad agreement with the points Chairman 
Bernanke made in that speech.
    Chairman Bernanke focused on three main areas: first, the need for 
a systemic regulator; second, the need for a preexisting method for an 
orderly resolution of a systemically important nonbank financial firm; 
and third, the need to address gaps in our regulatory system. 
Statements by the leadership of this Committee have also focused on a 
legislative plan to address these three areas. We agree that these 
three issues--a systemic regulator, a new resolution mechanism, and 
addressing gaps--should be the priorities. This terrible crisis should 
not be allowed to happen again, and addressing these three areas is 
critical to making sure it does not.
    ABA strongly supports the creation of a systemic regulator. In 
retrospect, it is inexplicable that we have not had a regulator that 
has the explicit mandate and the needed authority to anticipate, 
identify, and correct, where appropriate, systemic problems.
    To use a simple analogy, think of the systemic regulator as sitting 
on top of Mount Olympus looking out over all the land. From that 
highest point the regulator is charged with surveying the land, looking 
for fires. Instead, we have had a number of regulators, each of which 
sits on top of a smaller mountain and only sees its part of the land. 
Even worse, no one is effectively looking over some areas.
    This needs to be addressed. While there are various proposals as to 
who should be the systemic regulator, most of the focus has been on 
giving the authority to the Federal Reserve. It does make sense to look 
for the answer within the parameters of the current regulatory system. 
It is doubtful that we have the luxury, in the midst of this crisis, to 
build a new system from scratch, however appealing that might be in 
theory. There are good arguments for looking to the Federal Reserve, as 
outlined in the Bernanke speech. This could be done by giving the 
authority to the Federal Reserve or by creating an oversight committee 
chaired by the Federal Reserve. ABA's concern in this area relates to 
what it may mean for the independence of the Federal Reserve in the 
future. We strongly believe that Federal Reserve independence in 
setting monetary policy is of utmost importance.
    ABA believes that systemic regulation cannot be effective if 
accounting policy is not part of the equation. To continue my analogy, 
the systemic regulator on Mount Olympus cannot function if part of the 
land is held strictly off limits and under the rule of some other body 
that can act in a way that contradicts the systemic regulator's 
policies. That is, in fact, exactly what happened with mark-to-market 
accounting.
    As Chairman Bernanke pointed out, as part of a systemic approach, 
the Federal Reserve should be given comprehensive regulatory authority 
over the payments system, broadly defined. ABA agrees. We should not 
run the risk of a systemic implosion instigated by gaps in payment 
system regulations.
    ABA also supports creating a mechanism for the orderly resolution 
of systemically important nonbank firms. Our regulatory bodies should 
never again be in the position of making up a solution on the fly to a 
Bear Stearns or AIG, of not being able to solve a Lehman Brothers. The 
inability to deal with those situations in a predetermined way greatly 
exacerbated the crisis. Indeed, many experts believe the Lehman 
Brothers failure was the event that greatly accelerated the crisis. We 
believe that existing models for resolving troubled or failed 
institutions provide an appropriate starting point--particularly the 
FDIC model, but also the more recent handling of Fannie Mae and Freddie 
Mac.
    A critical issue in this regard is too-big-to-fail. Whatever is 
done on the systemic regulator and on a resolution system will set the 
parameters of too-big-to-fail. In an ideal world, no institution would 
be too big to fail, and that is ABA's goal; but we all know how 
difficult that is to accomplish, particularly with the events of the 
last few months. This too-big-to-fail concept has profound moral hazard 
implications and competitive effects that are very important to 
address. We note Chairman Bernanke's statement: ``Improved resolution 
procedures . . . would help reduce the too-big-to-fail problem by 
narrowing the range of circumstances that might be expected to prompt 
government action.'' \1\
---------------------------------------------------------------------------
     \1\ Ben Bernanke, speech to the Council on Foreign Relations, 
Washington, DC, March 10, 2009.
---------------------------------------------------------------------------
    The third area for focus is where there are gaps in regulation. 
These gaps have proven to be major factors in the crisis, particularly 
the role of largely unregulated mortgage lenders. Credit default swaps 
and hedge funds also should be addressed in legislation to close gaps.
    There seems to be a broad consensus to address these three areas. 
The specifics will be complex and, in some cases, contentious. But at 
this very important time, with Americans losing their jobs, their 
homes, and their retirement savings, all of us should work together to 
develop a stronger regulatory structure. ABA pledges to be an active 
and constructive participant in this critical effort.
    In fact, even before the turmoil of last fall, ABA's board of 
directors recognized this need to address the difficult questions about 
regulatory reform and the desirability of a systemic risk regulator. As 
a consequence, Brad Rock, ABA's chairman at that time, and chairman, 
president, and CEO of Bank of Smithtown, Smithtown, New York, appointed 
a task force to develop principles and recommendations for change. I am 
co-chair of that task force. I will highlight many of the principles 
developed by this group--and adopted by ABA's board of directors--
throughout my statement today.
    In the rest of my statement today, I would like to expand on the 
priorities for change:

    Establish a regulatory structure that provides a mechanism 
        to oversee and address systemic risks. Included under this 
        authority is the ability to mitigate risk-taking from 
        systemically important institutions, authority over how 
        accounting rules are developed and applied, and protections to 
        maintain the integrity of the payments system.

    Establish a method to handle the failure of nonbank 
        institutions that threaten systemic risk.

    Close the gaps in regulation. This might include the 
        regulation of hedge funds, credit default swaps, and 
        particularly nonbank mortgage brokers.

    I would like to touch briefly on each of these priorities to 
highlight issues that underlie them.
I. Establish a Regulatory Structure That Provides a Mechanism To 
        Oversee and Address Systemic Risks
    ABA supports the formation of a systemic risk regulator. There are 
many aspects to consider related to the authority of this regulator, 
including the ability to mitigate risk-taking from systemically 
important institutions, authority over how accounting rules are 
developed and applied, and the protections needed to maintain the 
integrity of the payments system. I will discuss and highlight ABA's 
guiding principles on each of these.
A. There is a need for a regulator with explicit systemic risk 
        responsibility
    A systemic risk regulator would strengthen the financial 
infrastructure. As Chairman Bernanke noted: ``[I]t would help make the 
financial system as a whole better able to withstand future shocks, but 
also to mitigate moral hazard and the problems of too big to fail by 
reducing the range of circumstances in which systemic stability 
concerns might prompt government intervention.'' ABA believes the 
following principles should apply to any systemic risk regulator:

    Systemic risk oversight should utilize existing regulatory 
        structures to the maximum extent possible and involve a limited 
        number of large market participants, both bank and nonbank.

    The primary responsibility of the systemic risk regulator 
        should be to protect the economy from major shocks. The 
        systemic risk regulator should pursue this objective by 
        gathering information, monitoring exposures throughout the 
        system and taking action in coordination with other domestic 
        and international supervisors to reduce the risk of shocks to 
        the economy.

    The systemic risk regulator should work with supervisors to 
        avoid pro-cyclical reactions and directives in the supervisory 
        process.

    There should not be a new consumer regulator for financial 
        institutions. Safety and soundness implications, financial 
        risk, consumer protection, and other relevant issues need to be 
        considered together by the regulator of each institution.

    It is clear we need a systemic regulator that looks across the 
economy and identifies problems. To fulfill that role, the systemic 
regulator would need broad access to information. It may well make 
sense to have that same regulator have necessary powers, alone or in 
conjunction with the Treasury, and a set of tools to address major 
systemic problems. (Although based on the precedents set over the past 
few months, it is clear that those tools are already very broad.)
    At this point, there seems to be a strong feeling that the Federal 
Reserve should take on this role in a more robust, explicit fashion. 
That may well make sense, as the Federal Reserve has been generally 
thought to be looking over the economy. We are concerned, however, that 
any expansion of the role of the Federal Reserve could interfere with 
the independence required when setting monetary policy. One of the 
great strengths of our economic infrastructure has been our independent 
Federal Reserve. We urge Congress to carefully consider the long-term 
impact of changes in the role of the Federal Reserve and the potential 
for undermining its effectiveness on monetary policy.
    Thus, ABA offers these guiding principles:

    An independent central bank is essential.

    The Federal Reserve's primary focus should be the conduct 
        of monetary policy.
B. To be effective, the systemic risk regulator must have some 
        authority over the development and implementation of accounting 
        rules
    Accounting standards are not only measurements designed to ensure 
accurate financial reporting, but they also have an increasingly 
profound impact on the financial system--so profound that they must now 
be part of any systemic risk calculation. No systemic risk regulator 
can do its job if it cannot have some input into accounting standards--
standards that have the potential to undermine any action taken by a 
systemic regulator. Thus, a new system for the establishment of 
accounting rules--one that considers the real-world effects of 
accounting rules--needs to be created in recognition of the critical 
importance of accounting rules to systemic risk and economic activity. 
Thus, ABA sets forth the following principles to guide the development 
of a new system:

    The setting of accounting standards needs to be 
        strengthened and expanded to include oversight from the 
        regulators responsible for systemic risk.

    Accounting should be a reflection of economic reality, not 
        a driver.

    Accounting rules, such as loan-loss reserves and fair value 
        accounting, should minimize pro-cyclical effects that reinforce 
        booms and busts.

    Clearer guidance is urgently needed on the use of judgment 
        and alternative methods, such as estimating discounted cash 
        flows when determining fair value in cases where asset markets 
        are not functioning and for recording impairment based on 
        expectations of loss.

    For several years, long before the current downturn, ABA argued 
that mark-to-market was pro-cyclical and should not be the model used 
for financial institutions as required by the Financial Accounting 
Standards Board (FASB). Even now, the FASB's stated goal is to continue 
to expand the use of mark-to-market accounting for all financial 
instruments. For months, we have specifically asked FASB to address the 
problem of marking assets to markets that were dysfunctional.
    Our voice has been joined by more and more people who have been 
calling for FASB and the Securities and Exchange Commission to address 
this issue, including Federal Reserve Chairman Bernanke and, as noted 
below, former Federal Reserve Chairman Paul Volcker. For example, in 
his recent speech, Chairman Bernanke stated: ``[R]eview of accounting 
standards governing valuation and loss provisioning would be useful, 
and might result in modifications to the accounting rules that reduce 
their pro-cyclical effects without compromising the goals of disclosure 
and transparency.'' \2\ Action is needed, and quickly, so that first 
quarter reports can be better aligned with economic realities. We hope 
that FASB and SEC will take the significant action that is needed; this 
is not the time to merely tinker with the current rules.
---------------------------------------------------------------------------
     \2\ Ibid.
---------------------------------------------------------------------------
    In creating a new oversight structure for accounting, independence 
from outside influence should be an important component, as should the 
critical role in the capital markets of ensuring that accounting 
standards result in financial reporting that is credible and 
transparent. But accounting policy can no longer be divorced from its 
impact; the results on the economy and on the financial system must be 
considered.
    We are very much in agreement with the recommendations of Group of 
30, headed by Paul Volcker and Jacob Frenkel on fair value accounting 
in its Financial Reform: A Framework for Financial Stability. That 
report stated: ``The tension between the business purpose served by 
regulated financial institutions that intermediate credit and liquidity 
risk and the interests of investors and creditors should be resolved by 
development of principles-based standards that better reflect the 
business model of these institutions.'' The Group of 30 suggests that 
accounting standards be reviewed:

  1.  to develop ``more realistic guidelines for dealing with less-
        liquid instruments and distressed markets'';

  2.  by ``prudential regulators to ensure application in a fashion 
        consistent with safe and sound operation of [financial] 
        institutions''; and

  3.  to be more flexible ``in regard to the prudential need for 
        regulated institutions to maintain adequate credit-loss 
        reserves''.

    Thus, ABA recommends the creation of a board that could stand in 
place of the functions currently served by the SEC.
C. Uniform standards are needed to maintain the reliability of the 
        payments system
    An important part of the conduct of monetary policy is the 
reliability of the payments system, including the efficiency, security, 
and integrity of the payments system. Therefore, ABA offers these three 
principles:

    The Federal Reserve should have the duty to set the 
        standards for the reliability of the payments system, and have 
        a leading role in the oversight of the efficiency, integrity, 
        and security thereof.

    Reforms of the payments system must recognize that 
        merchants and merchant payment processors have been the source 
        of the largest number of abuses and lost customer information. 
        All parts of the payments system must be responsible for its 
        reliability.

    Ensuring the integrity of the payments system against 
        financial crime and abuse should be an integral part of the 
        supervisory structure that oversees system reliability.

    Banks have long been the primary players in the payments system 
ensuring safe, secure, and efficient funds transfers for consumers and 
businesses. Banks are subject to a well-defined regulatory structure 
and are examined to ensure compliance with the standards. 
Unfortunately, the current regulatory scheme does not apply comparable 
standards for nonbanks that participate in the payments system. This is 
a significant gap that needs to be filled.
    In recent years, nonbanks have begun offering ``nontraditional'' 
payment services in greater numbers. Internet technological advances 
combined with the increase in consumer access to the Internet have 
contributed to growth in these alternative payment options. These 
activities introduce new risks to the system. Another key difference 
between banks and nonbanks in the payments system is the level of 
protection granted to consumers in case of a failure to perform. It is 
important to know the level of capital held by a payment provider where 
funds are held, and what the effect of a failure would be on customers 
using the service. This information is not always as apparent as it 
might be.
    The nonbanks are not subject to the same standards of performance 
and financial soundness as banks, nor are they subject to regular 
examinations to ensure the reliability of their payments operations. In 
other words, this is yet another gap in our regulatory structure, and 
one that is growing. This imbalance in standards becomes a competitive 
problem when customers do not recognize the difference between banks 
and nonbanks when seeking payment services.
    In addition, the current standard designed to provide security to 
the retail payment system, the Payment Card Industry Data Security 
Standard, compels merchants and merchant payment processors to 
implement important information security controls, yet tends to be 
checklist and point-in-time driven, as opposed to the risk-based 
approach to information security required of banks pursuant to the 
Gramm-Leach-Bliley Act. \3\ Through the Bank Service Company Act, 
federal bank regulatory agencies can examine larger core payment 
processors and other technology service providers for GLB compliance. 
\4\ We would encourage the Federal Reserve to use this power more 
aggressively going forward, and examine an increased number of payment 
processors and other technology providers.
---------------------------------------------------------------------------
     \3\ 16 C.F.R. 314.
     \4\ 12 U.S.C. 1861-1867(c).
---------------------------------------------------------------------------
    In order to ensure that consumers are protected from financial, 
reputational, and systemic risk, all banks and nonbank entities 
providing significant payment services should be subject to similar 
standards. This is particularly important for the operation of the 
payments system, where uninterrupted flow of funds is expected and 
relied upon by customers. Thus, ABA believes that the Federal Reserve 
should develop standards for reliability of the payments system that 
would apply to all payments services providers, comparable to the 
standards that today apply to payments services provided by banks. The 
Federal Reserve should review its own authority to supervise nonbank 
service providers in the payments system and should request from 
Congress those legislative changes that may be needed to clarify the 
authority of the Federal Reserve to apply comparable standards for all 
payments system providers. We support the statement made by Chairman 
Bernanke: ``Given how important robust payment and settlement systems 
are to financial stability, a good case can be made for granting the 
Federal Reserve explicit oversight authority for systemically important 
payment and settlement systems.'' \5\
---------------------------------------------------------------------------
     \5\ Ibid.
---------------------------------------------------------------------------
II. Establish a Method To Handle the Failure of Nonbank Institutions 
        That Threaten Systemic Risk
    We fully agree with Chairman Bernanke when he said: ``[T]he United 
States also needs improved tools to allow the orderly resolution of a 
systemically important nonbank financial firm, including a mechanism to 
cover the costs of the resolution.'' \6\ Recent government actions have 
clearly demonstrated a policy to treat certain financial institutions 
as if they were too big or too complex to fail. Such a policy can have 
serious competitive consequences for the banking industry as a whole. 
Without accepting the inevitability of such a policy, clear actions 
must be taken to address and ameliorate negative consequences of such a 
policy, including efforts to strengthen the competitive position of 
banks of all sizes.
---------------------------------------------------------------------------
     \6\ Ibid.
---------------------------------------------------------------------------
    The current ad hoc approach, used with Bear Stearns and Lehman 
Brothers, has led to significant unintended consequences and needs to 
be replaced with a concrete, well-understood method of resolution. 
There is such a system for banks, and that system can serve as a model. 
However, the system for banks is based in an elaborate system of bank 
regulation and the bank safety net. The system for nonbanks should not 
extend the safety net, but rather should provide a mechanism for 
failure designed to limit contagion of problems in the financial 
system.
    These concerns should inform the debate about the appropriate actor 
to resolve systemically significant nonbanks. While some suggest that 
the FDIC should have broader authority to resolve all systemically 
significant financial institutions, we respectfully submit that the 
FDIC's mission must not be compromised by a dilution of resources or 
focus. Confidence in federal deposit insurance is essential to the 
health of the banking system. Our system of deposit insurance is paid 
for by insured depository institutions and, until very recently, has 
been focused exclusively on insured depository institutions. The costs 
of resolving nonbanks must not be imposed on insured depository 
institutions; rather, institutions subject to the new resolution 
authority should pay the costs of its execution. Given that these costs 
are likely to be very high, it is doubtful that institutions that would 
be subject to the new resolution authority would be able to pay 
premiums large enough to fully fund the resolution costs. In that case, 
the FDIC would need to turn to the taxpayer and, thereby, jeopardize 
confidence in the banking industry as a whole.
    Even if systemically significant nonbanks could fully fund the new 
resolution authority, one agency serving as both deposit insurer and 
the agency that resolves nondepository institutions creates the risk of 
a conflict of interest, as Comptroller Dugan recently observed in 
testimony before this Committee. \7\ The FDIC must remain focused on 
preserving the insurance fund and, by extension, the public's 
confidence in our Nation's depository institutions. Any competing role 
that distracts from that focus must be avoided.
---------------------------------------------------------------------------
     \7\ Testimony of John C. Dugan, Comptroller of the Currency, 
before the Senate Committee on Banking, Housing, and Urban Affairs, 
March 19, 2009.
---------------------------------------------------------------------------
    Thus, ABA offers several principles to guide this discussion:

    Financial regulators should develop a program to watch for, 
        monitor, and respond effectively to market developments 
        relating to perceptions of institutions being too big or too 
        complex to fail--particularly in times of financial stress.

    Specific authorities and programs must be developed that 
        allow for the orderly transition of the operations of any 
        systemically significant financial institution.

    The creation of a systemic regulator and of a mechanism for 
addressing the resolution of entities, of course, raises the important 
and difficult question of what institutions should be considered 
systemically important, or in other terms, too-big-to-fail. The theory 
of too-big-to-fail (TBTF) has in this crisis been expanded to include 
institutions that are too intertwined with other important institutions 
to be allowed to fail. We agree with Chairman Bernanke when he said 
that the ``clear guidelines must define which firms could be subject to 
the alternative [resolution] regime and the process for invoking that 
regime.'' \8\
---------------------------------------------------------------------------
     \8\ Ibid.
---------------------------------------------------------------------------
    ABA has always sought the tightest possible language for the 
systemic risk exception in order to limit the TBTF concept as much as 
possible. We did this for two reasons, reasons that still apply today: 
first, TBTF presents the classic moral hazard problem--it can encourage 
excess risk-taking by an entity because the government will not allow 
it to fail; second, TBTF presents profound competitive fairness 
issues--TBTF entities will have an advantage--particularly in funding, 
through deposits and otherwise--over institutions that are not too big 
to fail.
    Our country has now stretched the systemic risk exception beyond 
what could have been anticipated when it was created. In fact, we have 
gone well beyond its application to banks, as we have made nonbanks 
TBTF. Ideally, we would go back and strictly limit its application, but 
that may not be possible. Therefore, we need to adopt a series of 
policies that will address the moral hazard and unfair competition 
issues while protecting our financial system and the taxpayers. This 
may be the most difficult question Congress will face as it reforms our 
financial system.
    For one thing, this cannot be done in isolation from what is being 
done in other countries. Systemic risk clearly does not stop at the 
border. In addition, the ability to compete internationally will be a 
continuing factor in designing and evolving our regulatory system. Our 
largest financial institutions compete around the world, and many 
foreign institutions have a large presence in the United States.
    This is also a huge issue for the thousands of U.S. banks that will 
not be considered too big to fail. As ABA has noted on many occasions, 
these are institutions that never made a subprime loan, are well 
capitalized, and are lending. Yet we have been deeply and negatively 
affected by this crisis--a crisis caused primarily by less regulated or 
unregulated entities like mortgage brokers and by Wall Street firms. We 
have seen the name ``bank'' sullied as it is used very broadly; we have 
seen our local economies hurt, and sometimes devastated, which has led 
to loan losses; and we have seen deposit insurance premiums drastically 
increased to pay for the excessive risk-taking of institutions that 
have failed. At the same time, there is a clear unfairness in that many 
depositors believe their funds, above the insurance limit, are safer in 
a TBTF institution than other banks. And, in fact, this notion is 
reinforced when large uninsured depositors lose money--take a 
``haircut''--when the FDIC closes some not-too-big-to-fail banks.
    There are many difficult questions. How will a determination be 
made that an institution is systemically important? When will it be 
made? What extra regulations will apply? Will additional capital and 
risk management requirements be imposed? How will management issues be 
addressed? Some have argued that the largest, most complex institutions 
are too big to manage. Which activities will be put off-limits and 
which will require special treatment, such as extra capital to protect 
against losses? How do we avoid another AIG situation, where, it is 
widely agreed, what amounted to a risky hedge fund was attached to a 
strong insurance company and brought the whole entity down? And, 
importantly, how do we make sure we maintain the highly diversified 
financial system that is unique to the United States?
III. Close the Gaps in Regulation
    A major cause of our current problems is the regulatory gaps that 
allowed some entities to completely escape effective regulation. It is 
now apparent to everyone that a critical gap occurred with respect to 
the lack of regulation of independent mortgage brokers. Questions are 
also being raised with respect to credit derivatives, hedge funds, and 
others.
    Given the causes of the current problem, there has been a logical 
move to begin applying more bank-like regulation to the less-regulated 
and un-regulated parts of the financial system. For example, when 
certain securities firms were granted access to the discount window, 
they were quickly subjected to bank-like leverage and capital 
requirements. Moreover, as regulatory change points more toward the 
banking model, so too has the marketplace. The biggest example, of 
course, is the movement of Goldman Sachs and Morgan Stanley to Federal 
Reserve holding company regulation.
    As these gaps are being addressed, Congress should be careful not 
to impose new, unnecessary regulations on the traditional banking 
sector, which was not the source of the crisis and continues to provide 
credit. Thousands of banks of all sizes, in communities across the 
country, are scared to death that their already crushing regulatory 
burdens will be increased dramatically by regulations aimed primarily 
at their less-regulated or unregulated competitors. Even worse, the new 
regulations will be lightly applied to nonbanks while they will be 
rigorously applied--down to the last comma--to banks.
    This Committee has worked hard in recent years to temper the impact 
of regulation on banks. You have passed bills to remove unnecessary 
regulation, and you have made existing regulation more efficient and 
less costly. As you contemplate major changes in regulation--and change 
is needed--ABA would urge you to ask this simple question: how will 
this change impact those thousands of banks that make the loans needed 
to get our economy moving again?
    There are so many issues related to closing the regulatory gaps 
that it would be impossible to cover each in detail in this statement. 
Therefore, let me summarize the important issues by providing the key 
principles that should guide any discussion about filling the 
regulatory gaps:

    The current system of bank regulators has many advantages. 
        These advantages should be preserved as the system is enhanced 
        to address systemic risk and nonbank resolutions.

      Regulatory restructuring should incorporate systemic 
        checks and balances among equals and a federalist system that 
        respects the jurisdictions of state and federal powers. These 
        are essential elements of American law and governance.

      We support the roles of the Office of the Comptroller of 
        the Currency (OCC), Federal Deposit Insurance Corporation 
        (FDIC), Federal Reserve, the Office of Thrift Supervision (OTS) 
        and the state banking commissioners with regard to their 
        diverse responsibilities and charters within the U.S. banking 
        system.

      Bank regulators should focus on bank supervision. They 
        should not be in the business of running banks or managing bank 
        assets and liabilities.

    The dual banking system is essential to promote an 
        efficient and competitive banking sector.

      The role of the dual banking system as incubator for 
        advancements in products and services, such as NOW and checking 
        accounts, is vital to the continued evolution of the U.S. 
        banking sector.

      Close coordination between federal bank regulators and 
        state banking commissioners within Federal Financial 
        Institutions Examination Council (FFIEC) as well as during 
        joint bank examinations is an essential and dynamic element of 
        the dual banking system.

    Charter choice and choice of ownership structure are 
        essential to a dynamic, innovative banking sector that responds 
        to changing consumer needs, customer preferences, and economic 
        conditions.

      Choice of charter and form of ownership should be fully 
        protected.

      ABA strongly opposes charter consolidation. Unlike the 
        flexibility and business options available under charter 
        choice, a consolidated universal charter would be unlikely to 
        serve evolving customer needs or encourage market innovation.

      Diversity of ownership, including S corporations, limited 
        liability corporations, mutual ownership, and other forms of 
        privately held and publicly traded banks, should be 
        strengthened.

    Diversity of business models is a distinctive feature of 
        American banking that should be fostered.

      Full and fair competition within a robust banking sector 
        requires a diversity of participants of all sizes and business 
        models with comparable banking powers and appropriate 
        oversight.

      Community banks, development banks, and niche-focused 
        financial institutions are vital components of the financial 
        services sector.

      A housing-focused banking system based on time-tested 
        underwriting practices and disciplined borrower qualification 
        is essential to sustained homeownership and community 
        development.

    An optional federal insurance charter should be created.

    Similar activities should be subject to similar regulation 
        and capital requirements. These regulations and requirements 
        should minimize pro-cyclical effects.

      Consumer confidence in the financial sector as a whole 
        suffers when nonbank actors offer bank-like services while 
        operating under substandard guidelines for safety and 
        soundness.

      Credit unions that act like banks should be required to 
        convert to a bank charter.

      Capital requirements should be universally and 
        consistently applied to all institutions offering bank-like 
        products and services.

      Credit default swaps and other products that pose 
        potential systemic risk should be subject to supervision and 
        oversight that increase transparency, without unduly limiting 
        innovation and the operation of markets.

      Where possible, regulations should avoid adding burdens 
        during times of stress. Thus, for instance, deposit insurance 
        premium rates need to reflect a balance between the need to 
        strengthen the fund and the need of banks to have funds 
        available to meet the credit needs of their communities in the 
        midst of an economic downturn.

    The FDIC should remain focused on its primary mission of 
        ensuring the safety of insured deposits.

      The FDIC plays a crucial role in maintaining the 
        stability and public confidence in the Nation's financial 
        system by insuring deposits, and in conducting activities 
        directly related to that mission, including examination and 
        supervision of financial institutions as well as managing 
        receiverships and assets of failed banking institutions so as 
        to minimize the costs to FDIC resources.

    To coordinate anti-money laundering oversight and 
        compliance, a Bank Secrecy Act ``gatekeeper,'' independent from 
        law enforcement and with a nexus to the payments system, should 
        be incorporated into the financial regulatory structure.
Conclusion
    Thank you for the opportunity to present the ABA's views on the 
regulation of systemic risk and restructuring of the financial services 
marketplace. The financial turmoil over the last year, and particularly 
the protection provided to institutions deemed to be ``systemically 
important,'' require a system that will more efficiently and 
effectively prevent such problems from arising in the first place and a 
procedure to deal with any problems that do arise. Clearly, it is time 
to make changes in the financial regulatory structure. We hope that the 
principles laid out in this statement will help guide the discussion. 
We look forward to working with Congress to address needed changes in a 
timely fashion, while maintaining the critical role of our Nation's 
banks.

            PREPARED STATEMENT OF RICHARD CHRISTOPHER WHALEN
              Senior Vice President and Managing Director,
                      Institutional Risk Analytics
                             March 24, 2009
    Chairman Dodd, Senator Shelby, and Members of the Committee, My 
name is Christopher Whalen and I live in the State of New York. \1\ 
Thank you for requesting my testimony today regarding ``Modernizing 
Bank Supervision and Regulation.''
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     \1\ Mr. Whalen is a co-founder of Institutional Risk Analytics, a 
Los Angeles unit of Lord, Whalen LLC that publishes risk ratings and 
provides customized financial analysis and valuation tools.
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    Before I address the areas that you have specified, let me suggest 
some broad themes and questions for further investigation, questions 
which I believe the Committee should consider before diving into the 
detail of actual legislative changes to current law and regulation. 
Simply stated, we need to do some basic diligence about our financial 
institutions, our markets and our economy, both generally and with 
respect to the present financial crisis, before we can attack the task 
of remaking the current supervision and regulation of financial 
institutions.
Financial Institutions Structure
    What is a financial institution in terms of the reality 
        today in the marketplace vs. the stated intent of law and 
        regulation? What tasks do financial institutions perform that 
        actually require public regulation? What tasks do not?

    What activities should be permitted for federally insured 
        depositories? What capital is required to support these 
        regulated activities in a safe and sound manner?

    How much capital must an insured depository institution 
        have in order for (a) markets and (b) the public to have 
        confidence in that institution's ability to function? Are 
        regulatory measures even meaningful to the public today?

    How do regulatory regimes such as fair-value accounting and 
        Basel II, and market-driven measures such as EBITDA or tangible 
        common equity (``TCE''), affect the real and perceived need for 
        more capital in financial institutions? Is the marketplace a 
        better arbiter of capital adequacy, particularly from a public 
        interest perspective, than the private internal bank models and 
        equally inconsistent, nonpublic regulatory process enshrined in 
        the Basel II accord?
Financial Market Structure
    What is ``systemic risk?'' Is systemic risk a symptom of 
        other risk factors or an independent risk measure in and of 
        itself? If the latter, how is it measured? \2\
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     \2\ My personal view is that systemic risk is a political concept 
akin to fear and not something measurable via scientific methods. See 
also ``What Is To Be Done With Credit Default Swaps?'' American 
Enterprise Institute, February 23, 2009. See: http://www.rcwhalen.com/
pdf/cds_aei.pdf.

    How do government policies either increase or decrease 
        systemic risk? For example, has the growth of Over-the-Counter 
        (``OTC'') market structures increased perceived systemic risk 
        hurt investors and negatively affected the safety and soundness 
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        of financial markets?

    Does the fact of cash settlement for credit default 
        contracts increase system leverage and therefore risk? Does the 
        rescue of AIG illustrate how OTC cash settlement credit default 
        contracts multiply the systemic risk of a given cash market 
        credit basis? \3\
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     \3\ In classical terms, a legal contract recognized as such under 
common law requires the exchange of value between parties, but a credit 
default swap (``CDS'') fails this test. Instead, a CDS is better viewed 
as a ``barrier option'' in insurance industry terms or a gaming 
instrument like the New York Lottery. Because the buyer of protection 
does not need to deliver the underlying asset to collect the insurance 
payment, the parties may settle in cash and there is no limit on the 
number of open positions written against this basis--save the 
collateral requirements for such positions, if any. Because the 
effective collateral posted by dealers of CDS heretofore was low 
compared to effective end-user collateral requirements, the dealer 
leverage in the system was almost infinite and thus the systemic risk 
increased by an order of magnitude. In economic terms, CDS equates 
renters with owners, risk is increased and regulation is rendered at 
best irrelevant.

    Should the Congress mandate SEC registration for all 
        investment instruments that are eligible for investment by 
        smaller banks, insurers, pensions and public agencies? Should 
        the Congress place limits on the ability of securities dealers 
        to sell complex OTC structured assets and derivatives to 
        relatively unsophisticated ``end users'' such as pension funds, 
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        public agencies and insurance companies?

    Should the Congress place an effective, absolute limit on 
        size and complexity of banks? What measures ought to be used to 
        gauge market share?
Political Economy
    Does the inability of the Congress to govern its spending 
        behavior and the related monetary policy accommodation by the 
        Federal Reserve Board add to systemic risk for global financial 
        institutions and markets?

    Does the fact of twin budget and current account deficits 
        by the U.S. add to the market/liquidity risk facing all global 
        financial institutions? That is, is the heavily indebted U.S. 
        economy unstable and thus an engine for creating systemic 
        events?
Prudential Regulation
    Our Nation's Founders tended to favor competition over monopoly, 
inefficiency and conflict, in the form of checks and balances, over 
efficiency and short-run practicality. The challenge for the national 
Congress remains, as it always has been, reconciling the need to be 
more efficient to achieve current public policy goals while remaining 
true to the legacy of deliberate inefficiency given to us by the 
framers of the Constitution.
    Or to put it another way, the Founders addressed the systemic risk 
of popular rule by placing deliberately mechanical, inefficient checks 
and balances in our path. Similar checks are present in any well 
managed government or enterprise to prevent bad outcomes. In Sarbanes-
Oxley risk terms, this is what we call ``systems and controls.''
    For example, when the House of Representatives, reflecting current 
popular anger and indignation, passes tax legislation encouraging the 
cancelation of state law contracts and the effective confiscating of 
monies lawfully paid to executives at AIG, it falls to the Senate to 
withhold its support for the action by the lower chamber and instead 
counsel a more deliberate approach to advancing the public interest.
    For example, were the Senate to put aside the House-passed measure 
and instead pass legislation that forces the Fed and Treasury push AIG 
into bankruptcy to forestall further public subsidies for this 
apparently insolvent company, the U.S. Trustee for the Federal 
Bankruptcy Court arguably could seek to recover the bonuses paid to 
executives.
    The Bankruptcy Trustee might also be able to recover the tens of 
billions of dollars in payments to counterparties such as Goldman Sachs 
(NYSE:GS), which has so far reportedly received $20 billion in public 
funds paid and pledged. One might argue that the immediate bankruptcy 
of AIG is now in the best interest of the public because it provides 
the only effective way to (a) claw-back bonuses and counterparty 
payments, and (b) end further subsidies for this insolvent corporation. 
\4\
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     \4\ For a discussion of the true purposes of the AIG rescue by the 
Fed, See Morgenson, Gretchen, ``A.I.G.'s bailout priorities are in 
critics' cross hairs,'' The New York Times, March 17, 2009. Also, it 
must be noted that analysts in the risk management community such as 
Tim Freestone identified possible instability in the AIG business as 
early as 2001. AIG threatened to sue Freestone when he published his 
findings, which were documented at the time by the Economist magazine. 
Notables such as Henry Kissinger questioned the Economist story and 
said ``I just want you to know that Hank Greenberg has more integrity 
than any person I have ever known in my life.''
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    In my view, it serves the public interest to have multiple 
regulators sitting at the table in terms of managing what might be 
called ``systemic risk,'' including both state and federal regulators. 
In the same way that the federal government has forced a cooperative 
relationship between local, state and federal law enforcement when it 
comes to anti-terrorism efforts, so too the Congress should end the 
competition between federal and state regulators illustrated by the 
legal battle over state-law preemption and instead mandate cooperation. 
In areas from prudential regulation to consumer protection, why cannot 
the federal government mandate broad standards to achieve policy 
objectives, then empower/compel state and federal agencies to cooperate 
in making these goals a reality?
    What makes no sense about the current system of regulation is 
having the various federal and state regulators compete amongst 
themselves over shared portions of the different components of risk as 
viewed from a public policy perspective, including market and liquidity 
risk, safety and soundness, and regulatory enforcement and consumer 
protection. Were I to have the opportunity to rearrange the map of the 
U.S. regulatory system, here is how I would divide the areas of 
responsibility:


    Seen from the perspective of the public, the risks facing the 
financial system can be divided into three large areas: (a) market and 
liquidity risk management, (b) regulatory enforcement and consumer 
protection, and (c) deposit insurance and the resolution of insolvent 
institutions. Each area has implications for systemic stability. Let me 
briefly comment on each of these buckets and the agencies I believe 
should be tasked with responsibility for these areas in a restructured 
U.S. regulatory system.
Market and Liquidity Risk
    As the bank of issue and the provider of credit to the financial 
system, the Fed must clearly be given the lead with respect to 
providing market and liquidity risk management, and general market 
oversight and surveillance. The Fed's chief area of competency is in 
the area of monetary policy and financial market supervision. But I 
strongly urge the Congress to strip the Fed of its current, direct 
responsibility for financial institution supervision and consumer 
protection to help the agency better focus on its monetary and economic 
policy responsibilities, as well as an enhanced market surveillance 
effort.
    The United States needs a single safety-and-soundness regulator for 
all financial institutions, even if they retain diversity in terms of 
charters and activities. Consider that no other major industrial nation 
in the world gives its central bank paramount responsibility for bank 
safety and soundness, and for good reason. Over the past decade, the 
Fed has demonstrated an inability to manage the internal conflict 
between its role as monetary authority and its partial responsibility 
for supervising bank holding companies and their subsidiary banks.
    While some people claim that the Glass-Steagall Act law dividing 
banking and commerce has been repealed, I remind you that the Bank 
Holding Company Act of 1956 is still extant. I urge the Congress to 
delete this statute in its entirety as part of any new financial 
services legislation. Indeed, given the size of the capital deficit 
facing the larger players in the banking industry, AIG, and the GSEs, 
it seems inevitable that the Congress will be compelled to allow 
industrial companies to enter the U.S. banking sector. \5\
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     \5\ The subsidies for the GSEs, AIG, and Citigroup amounts to a 
transfer of wealth from American taxpayers to the institutional 
investors who hold the bonds and derivative obligations tied to these 
zombie institutions. All of these companies will require continuing 
cash subsidies if they are not resolved in bankruptcy. My firm 
estimates that the maximum probable loss for the top U.S. banks with 
assets above $10 billion, also known as Economic Capital, will be $1.7 
trillion through the cycle, of which $1.4 trillion is attributable to 
the top four money center banks. With the operating loss subsidy 
required for the GSEs and AIG, the U.S. Treasury could face a 
collective, worst-case funding requirement of $4 trillion through the 
cycle.
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    The Fed's internal culture, in my view, is dominated by academic 
economists whose primary focus is monetary policy and who view bank 
supervision as a troublesome, secondary task. The Fed economists to 
whom I particularly refer believe that markets are efficient, that 
investors are rational, and that encouraging products such as subprime 
securitizations and OTC derivative contracts are consistent with bank 
safety and soundness. The same Fed economists believe that big is 
better in the banking industry, even though the overwhelming data and 
statistical evidence suggests otherwise. \6\
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     \6\ Given the magnitude of the losses incurred over the past 
several years due to financial innovation, it is worth asking if 
economists or at least those economists involved in the securities 
industry and financial economics more generally should be licensed and 
regulated in some way. Several observers have suggested that rating 
agencies ought to be compelled to publish models used for rating OTC 
structured asset, thus it seems reasonable to ask economists and 
analysts to stand behind their work when it is used to create 
securities. For an excellent discussion of the misuse of mathematics 
and other quantitative tools expropriated from the physical sciences by 
economists, regulators, and investment professionals, see ``New Hope 
for Financial Economics: Interview with Bill Janeway,'' The 
Institutional Risk Analyst, November 17, 2008.
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    Critics of the Fed are right to say that under Alan Greenspan, the 
central helped cause the subprime mortgage debacle, but not for the 
reasons most people think. Yes, the expansive monetary policy followed 
by the Fed earlier this decade was a big factor, but equally important 
was the active encouragement by Fed staff and other global regulators 
of over-the-counter derivatives and the use by banks of off-balance-
sheet vehicles such as collateralized debt obligations (``CDOs'') for 
liability management. \7\
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     \7\ I recommend that the Committee study Martin Mayer's 2001 book, 
``The Fed: The Inside Story of How the World's Most Powerful Financial 
Institution Drives the Markets,'' particularly Chapter 13, 
``Supervisions,'' on the Fed's role in bank regulation.
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    The combination of OTC derivatives, risk-based capital requirements 
championed by the Fed and authorized by Congress, and favorable 
accounting rules for off-balance sheet vehicles blessed by the SEC and 
the FASB, enabled Wall Street to create a de facto assembly line for 
purchasing, packaging, and selling unregistered, high-risk securities, 
such as subprime collateralized CDOs, to a wide variety of 
institutional investors around the world. These illiquid, opaque 
securities now threaten the solvency of banks in the United States, 
Europe, and Asia.
    Observers describe the literally thousands of structured investment 
vehicles created during the past decade as the ``shadow banking 
system.'' But few appreciate that this deliberately opaque, unregulated 
market came into existence and grew with the direct approval and 
encouragement of the Fed's leadership and the academic research 
community from which many Fed officials are drawn to this day. For 
every economist nominated to the Fed Board, the Senate should insist on 
a noneconomist candidate!
    Simply stated, in my view monetary economists are not competent to 
supervise financial institutions nor to set policy for regulating these 
institutions, yet successive Presidents and Congresses have populated 
the Fed's board with precisely such skilled professionals. While the 
more conservative bank supervision personnel at the 12 regional Federal 
Reserve banks and within agencies such as the OCC, OTS, and FDIC often 
opposed ill-considered liberalization efforts such as OTC derivatives 
and the abortive Basel II accord, the Fed's powerful, isolated 
Washington staff of academic economists almost always had its way--and 
the Congress supported and encouraged the Fed even as that agency's 
policies undermined the safety and soundness of our financial markets.
    The result of our overly generous tolerance for economist dabbling 
in the real world of banking and finance is a marketplace where some of 
the largest U.S. banks are in danger of insolvency, because their 
balance sheets are laden with illiquid, opaque and thus toxic OTC 
instruments that nobody can value or trade--instruments which the 
academic economists who populate the Fed actively encouraged for many 
years. Remember that comments by Fed officials made over the years to 
the Congress lauding these very same OTC cash and derivative 
instruments are a matter of public record. Given the Fed's manifest 
failure to put bank safety and soundness first, I believe that the 
Congress needs to rethink the role of the Fed and reject any proposal 
to give the Fed more authority to supervise investment banks and hedge 
funds, for example, not to mention the latest economist policy 
infatuation, ``systemic risk.''
    We can place considerable blame on the Fed for the subprime crisis, 
but it must be said that an equally important factor was the tendency 
of Congress to use financial regulatory and housing policy to raise 
money and win elections. Members of Congress in both parties have 
freely used the threat of new regulation to extort contributions from 
the banking and other financial industries, often with little pretense 
as to their true agenda. Likewise, the Congress has been generous in 
providing with new loopholes and opportunities for regulatory 
arbitrage, enabling the very unsafe and unsound practices in terms of 
mortgage lending, securitization and the derivatives markets that has 
pushed the global economy into a deflationary spiral.
    Let us never forget that the subprime housing bubble that began the 
present crisis came about with the active support of the Congress, two 
different political administrations, the GSEs, the mortgage, real 
estate, banking, securities and homebuilding industries, and many other 
state and local organizations. It should also be recalled that the 1991 
amendment to the Federal Reserve Act which allowed the Fed of New York 
to make the ill-advised bailout loans to AIG and other companies was 
added to the FDICIA legislation in the eleventh hour, with no debate, 
by members of this Committee and at the behest of officials of the 
Federal Reserve. The FDICIA legislation, let's recall, was intended to 
protect the taxpayer from loss due to bailouts for large financial 
institutions. \8\
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     \8\ When the amendment to Section 13 of the FRA was adopted by the 
Senate, Fed Vice Chairman Don Kohn, then a senior Federal Reserve Board 
staffer, reportedly was present and approved the amendment for the Fed, 
with the knowledge and support of Gerry Corrigan, who was then 
President of the Federal Reserve Bank of New York and Vice Chairman of 
the FOMC. See also ``IndyMac, FDICIA and the Mirrors of Wall Street,'' 
The Institutional Risk Analyst, January 6, 2009.
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Supervision and Consumer Protection
    A unified federal supervisor should combine the regulatory 
resources of the Federal Reserve Banks, SEC, the OCC, and the Office of 
Thrift Supervision, to create a new safety-and-soundness agency 
explicitly insulated from meddling by the Executive Branch and the 
Congress. This agency should be responsible for setting broad federal 
standards for compliance with law and regulation, capital adequacy and 
consumer protection, and be accountable to both the Congress and the 
various states whose people it serves. As I mentioned before, the 
agency should be tasked to form cooperative alliances with state 
agencies to secure the objectives in each area of regulation. America 
has neither the time nor the money for regulatory turf battles.
    As the Congress assembles the unified federal supervisor, it should 
include enhanced disclosure by all types of financial services 
entities, including hedge funds, nonbank mortgage origination firms and 
insurers, to name a few, so that regulators understand the contribution 
of these entities to the overall risk to the system, even if there is 
no actual prudential oversight of these entities at the federal level.
Insurance and Resolution
    The Congress does not need to disturb existing state law regulation 
on insurance or mortgage origination in order to ensure that the 
unified federal regulator and FDIC have the power to reorganize or even 
liquidate the parents of insolvent banks. What is needed is a systemic 
rule so that all participants know what happens to firms that are 
mismanaged, take imprudent risks and become insolvent. So long as the 
Congress fashions a clear, unambiguous systemic rule regarding how and 
when the FDIC can act as the government's fully empowered receiver to 
resolve financial market insolvency, the markets will be reassured and 
the systemic stresses to the system reduced in the process. \9\
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     \9\ While the commercial banking industry is required to provide 
extensive disclosure to the public, insurance companies have long 
dragged their feet when it comes to providing data to the public at a 
reasonable cost. Whereas members of the public can access machine-
readable financial information about banks from portals such as the 
FDIC and FFIEC, in real time, comparable data on the U.S. insurance 
industry is available only from private vendors and at great cost, 
meaning that the public has no effective, direct way to track the 
soundness of insurers.
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    The primary responsibility for insuring deposits and other 
liabilities of banks, and resolving troubled banks and their 
affiliates, should be given to the FDIC. Whereas the unified federal 
regulator will be responsible for oversight and supervision of all 
institutions, the FDIC should be given authority to (a) publicly rate 
all financial institutions via the pricing of liability risk insurance, 
(b) make the determination of insolvency of an insured depository 
institution, in consultation with the unified regulator and the Fed, 
and (c) to reorganize any organization or company that is affiliated 
with an insolvent insured depository.
    The cost of membership to the financial services club must be to 
either maintain the safety and soundness of regulated bank depositories 
or submit unconditionally to prompt corrective action by the FDIC to 
quickly resolve the insolvency. The Founders placed a federal mechanism 
for bankruptcy in the U.S. Constitution for many reasons, but chief 
among them was the overriding need for finality to help society avoid 
prolonged damage due to insolvencies.
    By focusing the FDIC on its role as the insurer of deposits and 
receiver for failed banks, and expanding its legal authority to 
restructure affiliates of failed banks, the Congress could solve many 
of the political and jurisdictional issues that now plague the approach 
to the financial crisis.
    By giving the FDIC the primary authority to determine insolvency 
and the legal tools to restructure an entire organization in or out of 
formal receivership, situations such as the problems at Citigroup or 
AIG could more easily be resolved or even avoided. And by ending the 
doubt and ambiguity as to how insolvency is resolved, an enhanced role 
for the FDIC would reduce perceived systemic risk.
    For example, if the FDIC had the legal authority to direct the 
restructuring of all of the units of Citigroup, the agency could 
collapse the entire Citigroup organization into a single national bank 
unit, mark the assets to market, wipe out the common and preferred 
equity, convert all of the parent company debt into new common equity, 
and contribute new government equity funds as well. The resulting bank 
would have 40-50 percent TCE vs. assets and would no longer be a source 
of systemic risk to the markets. Problem solved.
    While the FDIC probably has the moral and legal authority to compel 
Citigroup to restructure along these lines (or face a traditional bank 
resolution), Congress needs to give the FDIC the power as receiver to 
make these type of changes unilaterally. In the case of a bankruptcy by 
AIG, FDIC could play a similar role, managing the insolvency process 
and assisting as the state insurance regulators take control of the 
company's insurance units. The remaining company would then be placed 
into bankruptcy.
    In addition to giving the FDIC paramount authority as the guardian 
of safety and soundness and thus a key partner in managing the factors 
that comprise systemic risk, the Congress should give the FDIC the 
power to impose a fee on all bank liabilities, including foreign 
deposits and debt issued by companies that own insured depository 
institutions. All of the liabilities of a regulated depository must 
support the Deposit Insurance Fund and the Congress should also modify 
its market share limitations to include liabilities, not merely 
deposits, for limiting size and thus the ability of a single 
institutions to destabilize the global financial system.
Systemic Risk Regulation
    As I stated above, systemic risk is a symptom of other factors, a 
sort of odd political term spawned under the equally dubious rubric of 
identifying certain banks as being ``Too Big To Fail.'' When issues 
such as market structure and prudential regulation of institutions are 
dealt with adequately, the perceived ``problem'' of systemic risk will 
disappear. \10\
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     \10\ For a discussion of the origins of ``Too Big To Fail,'' see 
``Gone Fishing: E. Gerald Corrigan and the Era of Managed Markets,'' 
The Herbert Gold Society, February 1993.
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Consumer Protection and Credit Access
    I believe that the Congress should give the unified federal 
regulator primary responsibility for enforcement of consumer protection 
and credit access laws. That said, however, I believe that the Congress 
should revisit the issue of federal preemption of state consumer fraud 
and credit laws. While there is no doubt that the federal government 
should set consistent regulations for all banks, there is no reason why 
federal and state agencies cannot cooperate to achieve these ends. The 
notion that consumer regulation must be an either or proposition is 
wrong.
    As this Congress looks to reform the larger regulatory framework, a 
way must be found to allow for cooperation between state and federal 
agencies tasked with financial regulation and in all areas, including 
consumer and enforcement. There is no federal tort law, after all, so 
if consumers are to have effective redress of grievance for bad acts 
such as fraud or predatory lending, then the agencies and courts of the 
various states must be part of the solution.
Risk Management
    In terms of risk management priorities, I believe that the Congress 
must take steps to resolve the market structure and bank activities 
problems suggested in the questions at the start of my remarks. 
Specifically, I believe that the Congress should:

    Require that all OTC derivatives be traded on organized 
        exchanges, that the terms of most contracts be standardized, 
        and that the exchange act as counterparty to all trades and 
        enforce all margin requirements equally on dealers and end 
        users alike. The notion that merely creating automated clearing 
        solutions for CDS contracts, for example, will address the 
        systemic risk issues is mistaken, in my view. \11\
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     \11\ See Pirrong, Craig, ``The Clearinghouse Cure,'' Regulation, 
Winter 2008-2009.

    Require that all structured assets such as mortgage 
        securitizations be registered with the SEC. It is worth noting 
        that an affiliate of the NASDAQ currently quotes public prices 
        on all of the covered mortgage bonds traded in Denmark. Such a 
        system could be easily adapted for the U.S. markets and almost 
        overnight create a new legal template for private mortgage 
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        securitization.

    In terms of ``originate to distribute'' lending, the 
        covered bond model may be the only means to ``distribute'' 
        mortgage paper for some time to come. The idea currently 
        popular inside the Fed and Treasury that now moribund 
        securitization markets will revive is not even worthy of 
        comment. The key issue for the future of securitizations is 
        whether regulators can craft an explicit recognition of the 
        legacy risk involved in ``good sales.'' It may be that, when 
        actually described accurately, the risks involved in 
        securitization outweigh the economic rewards.

    In terms of mark-to-market accounting, the fact that 
        markets have focused on bank TCE, which like EBITDA is not a 
        defined accounting term, illustrates the folly of trying to 
        define and thereby constrain the preferences of investors and 
        analysts via accounting rules.

      Using TCE and CDS as valuation indicators, the market 
        concludes that all large banks are insolvent. This is not just 
        a matter of being ``pro-cyclical'' as is fashionable to say in 
        economist circles, but rather of multiplying the already 
        distorted, ``market efficiency'' perspective on value provided 
        by mark-to-market into a short sellers bonanza. The Chicago 
        School is wrong; short-term price is not equal to value.

      If you make every financial firm on the planet operate 
        under the same rules as a broker-dealer for market risk 
        positions, then capital levels must rise and leverage ratios 
        for all types of financial disintermediation must fall. 
        Everything will be held to maturity, securitization will become 
        exclusively a government activity and the U.S. economy will 
        stagnate. Mark-to-market implies a net reduction in credit to 
        U.S. consumer and the global economy that is causing and will 
        continue to cause asset price deflation and a related political 
        firestorm.

      While the changes now proposed by the FASB to mark-to-
        market accounting may give financial institutions some relief 
        in terms of rules-driven losses, falling cash flows behind many 
        assets classes are likely to force additional losses by banks, 
        insurers and other investors.

    Finally, regarding credit ratings, I urge the Congress to remove 
from federal law any language suggesting or compelling a bank, agency 
or other investor to utilize ratings from a particular agency. There is 
no public policy good to be gained from creating a government monopoly 
for rating agencies. The best way to keep the rating agencies honest is 
to let them compete and be sued when their opinions are tainted by 
conflicts. \12\
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     \12\ See ``Reassessing Ratings: What Went Wrong, and How Can We 
Fix the Problem?,'' GARP Risk Review, October/November 2008.
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                                 ______
                                 

                 PREPARED STATEMENT OF GAIL HILLEBRAND
                  Financial Services Campaign Manager,
                Consumers Union of United States, Inc.,
                             March 24, 2009
    Chairman Dodd, Ranking Member Shelby, and Members of the Committee, 
I appreciate the opportunity to testify on behalf of Consumers Union, 
the nonprofit publisher of Consumer Reports, \1\ on the important topic 
of reforming and modernizing the regulation and oversight of financial 
institutions and financial markets in the United States.
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     \1\ Consumers Union of United States, Inc., publisher of Consumer 
Reports and Consumer Reports Online, is a nonprofit membership 
organization chartered in 1936 to provide consumers with information, 
education, and counsel about goods, services, health and personal 
finance. Consumers Union's print and online publications have a 
combined paid circulation of approximately 8.5 million. These 
publications regularly carry articles on Consumers Union's own product 
testing; on health, product safety, financial products and services, 
and marketplace economics; and on legislative, judicial, and regulatory 
actions that affect consumer welfare. Consumers Union's income is 
solely derived from the sale of Consumer Reports, its other 
publications and services, and noncommercial contributions, grants, and 
fees. Consumers Union's publications and services carry no outside 
advertising and receive no commercial support. Consumers Union's 
mission is ``to work for a fair, just, and safe marketplace for all 
consumers and to empower consumers to protect themselves.'' Our 
Financial Services Campaign engages with consumers and policymakers to 
seek strong consumer protection, vigorous law enforcement, and an end 
to practices that impede capital formation for low and moderate income 
households.
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Introduction and Summary
    The job of modernizing the U.S. system of financial markets 
oversight and financial products regulation will involve much more than 
the addition of a layer of systemic risk oversight. The regulatory 
system must provide for effective household risk regulation as well as 
systemic risk regulation. Regulators must exercise their existing and 
any new powers more vigorously, so that routine, day to day supervision 
becomes much more effective. Gaps that allow unregulated financial 
products and sectors must be closed. This includes an end to 
unregulated status for the ``shadow'' financial sector. Regulators must 
place a much higher value on the prevention of harm to consumers. This 
new infrastructure, and the public servants who staff it, must protect 
individuals as consumers, workers, small business owners, investors, 
and taxpayers.
    A reformed financial regulatory structure must include:

    Strong consumer protections to reduce household risk;

    A changed regulatory culture;

    A federal agency independent of the banking industry that 
        focuses on the safety of consumer financial products;

    An active role for state consumer protection;

    Credit reform leading to suitable and sustainable credit;

    An approach to systemic risk that includes systemic 
        oversight addressing more than large financial institutions, 
        stronger prudential regulation for risk, and closing regulatory 
        gaps; and

    Increased accountability by all who offer financial 
        products.
1. Strong, effective, preventative consumer protection can reduce 
        systemic risk
    Proactive, affirmative consumer protection is essential to 
modernizing financial system oversight and to reducing risk. The 
current crisis illustrates the high costs of a failure to provide 
effective consumer protection. The complex financial instruments that 
sparked the financial crisis were based on home loans that were poorly 
underwritten; unsuitable to the borrower; arranged by persons not bound 
to act in the best interest of the borrower; or contained terms so 
complex that many individual homeowners had little opportunity to fully 
understand the nature or magnitude of the risks of these loans. The 
crisis was magnified by highly leveraged, largely unregulated financial 
instruments and inadequate risk management. The resulting crisis of 
confidence led to reduced credibility for the U.S. financial system, 
gridlocked credit markets, loss of equity for homeowners who accepted 
nonprime mortgages and for their neighbors who did not, empty houses, 
declining neighborhoods and reduced property tax revenue. All of this 
started with a failure to protect consumers.
    Effective consumer protection is a key part of a safe and sound 
financial system. As FDIC Chairman Bair testified before this 
Committee, ``There can no longer be any doubt about the link between 
protecting consumers from abusive products and practices and the safety 
and soundness of the financial system. Products and practices that 
strip individual and family wealth undermine the foundation of the 
economy.'' \2\
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     \2\ Bair, Sheila C., Chairman, Federal Deposit Insurance 
Corporation, Testimony before the Senate Committee on Banking, Housing 
and Urban Affairs on Modernizing Bank Supervision and Regulation, March 
19, 2009, http://www.fdic.gov/news/news/speeches/chairman/
spmar0319.html.
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    Effective consumer protection will require:

    Changing the regulatory culture so that every existing 
        federal financial regulatory agency places a high priority on 
        consumer protection and the prevention of consumer harm;

    Creating an agency charged with requiring safety in 
        financial products across all types of financial services 
        providers (holding concurrent jurisdiction with the existing 
        banking agencies); and

    Restoring to the states the full ability to develop and 
        enforce consumer protection standards in financial services.
2. A change in federal regulatory culture is essential
    Consumer advocates have long noted that federal banking agencies 
give insufficient attention to achieving effective consumer protection. 
\3\ Perhaps this stems partly from undue confidence in the regulated 
industry or an assumption that problems for consumers are created by 
just a few ``bad apples.'' One federal bank regulator has even 
attempted to weaken efforts by another federal agency to protect 
consumers from increases in credit card interest rates on funds already 
borrowed. \4\ Consumers Union believes that federal banking regulators 
have placed too much confidence in the private choices of bank 
management and too much unquestioning faith in the benefits of 
financial innovation. Too often, the perceived value of financial 
innovation has not been weighed against the value of preventing harm to 
individuals. The Option ARM, as sold to a broad swath of ordinary 
homeowners, has shown that the harm from some types and uses of 
financial services innovation can far outweigh the benefits.
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     \3\ Improving Federal Consumer Protections in Financial Services, 
Testimony of Travis Plunkett, before the Committee on Financial 
Services of the U.S. House of Representatives, July 25, 2007, available 
at http://www.consumerfed.org/pdfs/
Financial_Services_Regulation_House_Testimony_072507.pdf.
     \4\ The OCC unsuccessfully asked the Federal Reserve Board to add 
significant exemptions to the Fed's proposed rule to limit the raising 
of interest rates on existing credit card balances. See the OCC's 
comment letter: http://www.occ.treas.gov/foia/
OCC%20Reg%20AA%20Comment%20Letter%20to%20FRB_8%2018%2008.pdf.
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    We need a fundamental change in regulatory culture at most of the 
federal banking regulatory agencies. Financial regulators must place a 
much higher value on preventing harm to individuals and to the public. 
Comptroller Dugan's testimony to this Committee on March 19, 2009, may 
have unintentionally illustrated the regulatory culture problem when he 
described the ``sole mission'' of the OCC as ``bank supervision.'' \5\
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     \5\ The Comptroller stated: ``Most important, moving all 
supervision to the Board would lose the very real benefit of having an 
agency whose sole mission is bank supervision. That is, of course, the 
sole mission of the OCC . . . '' Dugan, John C., Comptroller of the 
Currency, Testimony before the Senate Committee on Banking, Housing and 
Urban Affairs on Modernizing Bank Supervision and Regulation, March 19, 
2009, p.11, available at: http://banking.senate.gov/public/
index.cfm?FuseAction=Hearings.Testimony&Hearing_ID=494666d8-9660-
439f82fa-b4e012fe9c0f&Witness_D=845ef046-9190-4996-8214-949f47a096bd. 
Other parts of the testimony indicate that the Comptroller was 
including compliance with existing consumer laws within 
``supervision.''
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    The purpose of this hearing is to build for a better future, not to 
assign blame for the current crisis. However, the missed opportunities 
to slow or stop the products and practices that led to the current 
crisis should inform the decisions about the types of changes needed in 
future regulatory oversight. Consumer groups warned federal banking 
agencies about the harms of predatory practices in subprime lending 
long before it exploded in volume. For example, Consumers Union asked 
the Federal Reserve Board in 2000 to reinterpret the triggers for the 
application of the Home Ownership and Equity Protection Act (HOEPA) in 
a variety of ways that would have expanded its coverage. \6\ Other 
consumer groups, such as the National Consumer Law Center, had been 
seeking similar reforms for some time. In the year 2000, the New York 
Times reported on how securitization was fueling the growth in subprime 
loans with abusive features. \7\ While the current mortgage meltdown 
involves practices in loan types beyond subprime and high cost 
mortgages, we will never know if stamping out some of the abusive 
practices that consumer advocates sought to end in 2000 would have 
prevented more of those practices from spreading.
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     \6\ Garcia, Norma Paz, Senior Attorney, Consumers Union, Testimony 
before the Federal Reserve Board of Governors regarding Predatory 
Lending Practices, Docket No. R-1075, San Francisco, CA, September 7, 
2000, available at: www.defendyourdollars.org/2000/09/
cus_history_of_against_predato.html. In that testimony, Consumers Union 
asked the Federal Reserve Board to adjust the HOEPA triggers to include 
additional costs within the points and fees calculation, which would 
have brought more loans under the basic HOEPA prohibition on a pattern 
or practice of extending credit based on the collateral--that is, that 
the consumer is not expected to be able to repay from income. We also 
asked the Board to issue a maximum debt to income guideline to further 
shape industry practice in complying with the affordability standard.
     \7\ Henriques, D., and Bergman, L., Mortgaged Lives: A Special 
Report.; Profiting from Fine Print with Wall Street's Help, New York 
Times, March 20, 2000, available at: http://www.nytimes.com/2000/03/15/
business/mortgagedlives-special-report-profiting-fine-print-with-wall-
street-s-help.html.
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    Some have claimed that poor quality loans and abusive lender 
practices were primarily an issue only for state-chartered, solely 
state-overseen lenders, but the GAO found that a significant volume of 
nonprime loans were originated by banks and by subsidiaries of 
nationally chartered banks, thrifts or holding companies. The GAO 
analyzed nonprime originations for 2006. That report covers the top 25 
originators of nonprime loans, who had 90 percent of the volume. The 
GAO report shows that the combined nonprime home mortgage volume of all 
banks and of subsidiaries of federally chartered banks, thrifts, and 
bank holding companies actually exceeded the nonprime origination 
volume of independent lenders subject only to state oversight. The GAO 
reported these volumes for nonprime originations: $102 billion for all 
banks, $203 billion for subsidiaries of nationally chartered entities, 
and $239 billion for independent lenders. Banks had a significant 
presence, and subsidiaries of federally chartered entities had a volume 
of nonprime originations nearly as high as the volume for state-only-
supervised lenders. \8\
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     \8\ Financial Regulation: A Framework for Crafting and Assessing 
Proposals to Modernize the Outdated U.S. Financial Regulatory System, 
GAO 09-216, January 2009, at 24, available at: http://www.gao.gov/
new.items/d09216.pdf.
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    It is too easy for a bank regulator to see its job as complete if 
the bank is solvent and no laws are being violated. The current crisis 
doesn't seem to have brought about a fundamental change in this 
regulatory perspective. Comptroller Dugan told this Committee just last 
week: ``Finally, I do not agree that the banking agencies have failed 
to give adequate attention to the consumer protection laws that they 
have been charged with implementing.'' \9\ Clearly, the public thinks 
that bank regulation has failed. Homeowners in distress, as well as 
their neighbors who are suffering a loss in home values, think that 
bank regulation has failed. Taxpayers who are footing the bill for the 
purchase of bank capital think that bank regulation has failed.
---------------------------------------------------------------------------
     \9\ Dugan, John C., Comptroller of the Currency, Testimony before 
the Senate Committee on Banking, Housing, and Urban Affairs. U.S. 
Senate, March 19, 2009. p 11, available at: http://banking.senate.gov/
public/index.cfm?FuseAction=Hearings.Testimony&Hearing_ID=494666d8-
9660-439f82fa-b4e012fe9c0f&Witness_ID=845ef046-9190-4996-8214-
949f47a096bd.
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3. Consumers need a Financial Product Safety Commission (FPSC)
    The bank supervision model lends itself to the view that the 
regulator's job is finished if existing laws are followed. 
Unfortunately, a compliance-focused mentality leaves no one with the 
primary job of thinking about how evolving, perhaps currently legal, 
business practices and product features may pose undue harm to 
consumers. A strong Financial Product Safety Commission can fill the 
gap left by compliance-focused bank regulators. The Financial Product 
Safety Commission would set a federal floor for consumer protection 
without displacing stronger state laws. It would essentially be an 
``unfair practices regulator'' for consumer credit, deposit and payment 
products. \10\ Investor protection would remain elsewhere. \11\
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     \10\ Payment products include prepaid cards, which increasingly 
are marketed as account substitutes, including to the unbanked. For a 
discussion of the holes in current consumer law with respect to these 
cards, see: G. Hillebrand, Before the Grand Rethinking, 83 Chicago-Kent 
L. Rev. No. 2, 769 (2008), available at: http://www.consumersunion.org/
pdf/WhereisMyMoney08.pdf. Consumers Union and other consumer and 
community groups asked the Federal Reserve Board to expand Regulation E 
to more clearly cover these cards, including cards on which 
unemployment benefits are delivered, in 2004. Consumer Comment letter 
to Federal Reserve Board in Docket R-1210, October 24, 2004, available 
at: http://www.consumersunion.org/pdf/payroll1004.pdf. That protection 
is still lacking. In February 2009, the Associated Press reported on 
consumer difficulties with the use of prepaid cards to deliver 
unemployment benefits. Leonard, C., Jobless Hit with Bank Fees on 
Benefits, Associated Press, Feb. 19, 2009.
     \11\ Investor protection has long been important to Consumers 
Union. In May 1939, Consumer Reports said: ``I know it is quite 
impossible for the average investor to examine and judge the real 
security that stands behind mere promises of security, and that unless 
one has expert knowledge and disinterested judgment available, he must 
shun all such plans, no matter how attractive they seem. We cannot wait 
for the next depression to tell us that these financial plans--
appealing and reasonable in print--failed and created such widespread 
havoc, not because of the depression, but because they were not 
safeguarded to weather a depression.''
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    The Financial Product Safety Commission would not remove the 
obligation on existing regulators to ensure compliance with current 
laws and regulations. Instead, the Commission would promulgate rules 
that would apply regardless of the chartering status of the product 
provider. This would insulate consumers from some of the harmful 
effects of ``charter choice,'' because chartering would be irrelevant 
to the application of rules designed to minimize unreasonable risks to 
consumers. Only across the board standards can eliminate a ``race to 
the bottom'' in consumer protection.
    Without endorsing the FPSC, FDIC Chairman Bair has emphasized the 
need for standards that apply across types of providers of financial 
products, stating:

        Whether or not Congress creates a new commission, it is 
        essential that there be uniform standards for financial 
        products whether they are offered by banks or nonbanks. These 
        standards must apply across all jurisdictions and issuers, 
        otherwise gaps create competitive pressures to reduce 
        standards, as we saw with mortgage lending standards. Clear 
        standards also permit consistent enforcement that protects 
        consumers and the broader financial system. \12\
---------------------------------------------------------------------------
     \12\ Bair, Sheila C., Chairman, Federal Deposit Insurance 
Corporation, Testimony before the Committee on Banking, Housing, and 
Urban Affairs on Modernizing Bank Supervision and Regulation, March 19, 
2009.

    The Financial Product Safety Commission is part of a larger shift 
we must make in consumer protection to move away from failed 
``disclosure-only'' approaches. Financial products which are too 
complex for the intended consumer carry special risks that no amount of 
additional disclosure or information will fix. Many of the homeowners 
who accepted predatory mortgages did not understand the nature of their 
loan terms. The over 60,000 individuals who filed comments in the 
Federal Reserve Board's Regulation AA docket on unfair or deceptive 
credit card practices described many instances in which they 
experienced unfair surprise because the fine print details of the 
credit arrangement did not match their understanding of the product 
that they were currently using. The Financial Product Safety Commission 
can pay special attention to practices that make financial products 
difficult for consumers to use safely.
4. State power to protect financial services consumers, regardless of 
        the chartering of the financial services provider, must be 
        fully restored
    The Financial Product Safety Commission would set a federal floor, 
not a federal cap, on consumer protection in financial services 
products. No agency can foresee all of the potentially harmful 
consequences of new practices and products. A strong concurrent role 
for state law and state agencies is essential to provide more and 
earlier enforcement of existing standards and to provide places to 
develop new standards for addressing emerging practices. Harmful 
financial practices often start in one region or are first targeted to 
one subgroup of consumers. When those practices go unchallenged, others 
feel a competitive pressure to adopt similar practices. State 
legislatures should be in a unique position to spot and stop bad 
practices before they spread. However, federal preemption has seriously 
compromised the ability of states to play this role.
    Some might ask why states can't just regulate state-chartered 
entities, while federal regulators address the conduct of federally 
chartered entities. There are several reasons. First, federal bank 
regulators aren't well-suited to address conduct issues of operating 
subsidiaries of national banks in local and state markets. Second, 
assertions of federal preemption for nationally chartered entities and 
their subsidiaries interfere with the ability of states to restrict the 
conduct of state-chartered entities. The reason for this is simple: if 
national financial institutions or their operating subsidiaries have a 
sizable percentage of any market, this creates a barrier to state 
reforms applicable only to state-only entities. The state-chartered 
entities argue strongly against the reforms on the grounds that their 
direct competitors would be exempt.
    As FDIC Chairman Bair told the Committee on March 19, 2009:

        Finally, in the ongoing process to improve consumer 
        protections, it is time to examine curtailing federal 
        preemption of state consumer protection laws. Federal 
        preemption of state laws was seen as a way to improve 
        efficiencies for financial firms who argued that it lowered 
        costs for consumers. While that may have been true in the short 
        run, it has now become clear that abrogating sound state laws, 
        particularly regarding consumer protection, created an 
        opportunity for regulatory arbitrage that frankly resulted in a 
        ``race-to-the-bottom'' mentality. Creating a ``floor'' for 
        consumer protection, based on either appropriate state or 
        federal law, rather than the current system that establishes a 
        ceiling on protections would significantly improve consumer 
        protection. \13\
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     \13\ Bair, Sheila C., Chairman, Federal Deposit Insurance 
Corporation. Testimony before the Senate Committee on Banking, Housing, 
and Urban Affairs on Modernizing Bank Supervision and Regulation, March 
19, 2009.

    The Home Owners' Loan Act stymies application of state consumer 
protection laws to federally chartered thrifts due to its field 
preemption, which should be changed by statute. State standards for 
lender conduct and state enforcement against national banks and their 
operating subsidiaries have been severely compromised by the OCC's 
preemption rules and operating subsidiary rule. \14\ The OCC has even 
taken the position that state law enforcement cannot investigate 
violations of non-preempted state laws against a national bank or its 
operating subsidiaries. \15\ That latter issue is now pending in the 
U.S. Supreme Court.
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     \14\ In 2004, the Office of the Comptroller of the Currency 
promulgated regulations to preempt state laws, state oversight, and 
consumer enforcement in the broad areas of deposits, real-estate loans, 
non-real estate loans, and the oversight of operating subsidiaries of 
national banks. 12 CFR 7.4000, 7.4007, 7.4008, 7.4009, and 34.4. 
These regulations interpret portions of the National Bank Act that 
consumer advocates believe were designed to prevent states from 
imposing harsher conditions on national banks than on state banks, not 
to give national banks an exemption from state laws governing financial 
products and services.
    The OCC has repeatedly sided in court with banks seeking to 
invalidate state consumer protection laws. One example is the case of 
Linda A. Watters, Commissioner, Michigan Office of Insurance and 
Financial Services v. Wachovia Bank, N.A., 550 U.S. 1 (2007). The OCC 
filed an amicus brief in support of Wachovia in the United States 
Supreme Court to prevent Michigan from regulating the practices of a 
Wachovia mortgage subsidiary. The OCC argued that its regulations and 
the National Bank Act preempt state oversight and enforcement and 
prevented state mortgage lending protections from applying to a 
national bank's operating subsidiary. The Supreme Court then held that 
Michigan's licensing, reporting, and investigative powers were 
preempted. Wachovia is no longer in business, and many observers 
attribute that to its mortgage business.
     \15\ In Office of the Comptroller of the Currency v. Spitzer, 396 
F. Supp. 2d 383 (S.D.N.Y., 2005), aff'd in part, vacated in part on 
other grounds and remanded in part on other grounds sub nom. The 
Clearing House Ass'n v. Cuomo, 510 F.3d 105 (2d Cir., 2007), cert. 
granted, Case No. 08-453, New York's Attorney General sought to 
investigate whether the residential mortgage lending practices of 
several national banks doing business in New York were racially 
discriminatory because the banks were issuing high-interest home 
mortgage loans in significantly higher percentages to African-American 
and Latino borrowers than to White borrowers. The OCC and a consortium 
of national banks sued to prevent the Attorney General from 
investigating and enforcing the anti-discrimination and fair lending 
laws against national banks. The OCC claimed that only it could enforce 
these state laws against a national bank. The district court granted 
declaratory and injunctive relief, and the Second Circuit affirmed. 
(See http://www.ca2.uscourts.gov:8080/isysnative/
RDpcT3BpbnNcT1BOXDA1LTU5OTYtY3Zfb3BuLnBkZg==/055996-cv_opn.pdf.) The 
case is now being briefed in the U.S. Supreme Court.
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    The OCC is an agency under the U.S. Treasury Department. The 
Administration should take immediate steps to repeal the OCC's package 
of preemption and visitorial powers rules. \16\ This would remove the 
agency's thumb from the scale as courts determine the meaning of the 
National Bank Act. Further, because the OCC's broad view of preemption 
has influenced the Courts' views on the scope of preemption under the 
National Bank Act, Congress should amend the National Bank Act to make 
it crystal clear that state laws requiring stronger consumer 
protections for financial services consumers are not preempted; state 
law enforcement is not ``visitation'' of a national bank; and any 
visitorial limitation has no application to operating subsidiaries of 
national banks.
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     \16\ Those rules are 12 CFR 7.4000, 7.4007, 7.4008, 7.4009, and 
34.4.
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    Once the preemption barrier is removed, state legislation can 
provide an early remedy for problems that are serious for one subgroup 
of consumers or region of the country. State legislation can also 
develop solutions that may later be adopted at the federal level. Prior 
to the overbroad preemption rules, as well as in the regulation of 
credit reporting agencies which falls outside of OCC preemption, states 
have pioneered such consumer protections as mandatory limits on check 
hold times, the free credit report, the right to see the credit score, 
and the security freeze for use by consumers to stop the opening of new 
accounts by identity thieves. \17\ Congress later adopted three of 
these four developments into statute for the benefit of consumers 
nationwide.
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     \17\ The first two of these developments were described by 
Consumers Union in its comment letter to the OCC opposing its broad 
preemption rule before adoption. Consumers Union letter of Oct. 1, 
2003, in OCC Docket 03-16, available at: http://www.consumersunion.org/
pub/core_financial_services/000770.html. The free credit report and the 
right to a free credit score if the score is used in a home-secured 
loan application process were both made part of the FACT Act. For 
information on the security freeze, which is available in 46 states by 
statute and the remaining states through an industry program, see: 
http://www.consumersunion.org/campaigns//learn_more/003484indiv.html.
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5. Credit reform can provide access to suitable and sustainable credit
    Attempts to protect consumers in financial services are often met 
with assertions that protections will cause a reduction in access to 
credit. Consumers Union disputes the accuracy of those assertions in 
many contexts. However, we also note that not every type of credit is 
of net positive value to consumers. For example, the homeowner with a 
zero interest Habitat for Humanity loan who was refinanced into a high 
cost subprime mortgage would have been much better off without that 
subprime loan. \18\ The same is true for countless other homeowners 
with fixed rate, fully amortizing home loans who were persuaded to 
refinance into loans that contained rate resets, balloon payments, 
Option ARMs, and other adverse features of variable rate subprime 
loans.
---------------------------------------------------------------------------
     \18\ Center for Responsible Lending founder Martin Eakes described 
this homeowner as the reason he become involved in anti-predatory 
lending work in a speech to the CFA Consumer Assembly.
---------------------------------------------------------------------------
    Creating access to sustainable credit will require substantial 
credit reform. This will have to include steps such as: outlawing 
pricing structures that mislead; requiring underwriting to the highest 
rate the loan payment may reach; requiring that the ``shelter rule'' 
which ends purchaser responsibility for problems with the loan be 
waived by the purchaser of any federally related mortgage loan; 
requiring borrower income to be verified; ending complex pricing 
structures that obscure the true cost of the loan; requiring 
suitability and fiduciary duties; and ending steering payments and 
negative amortization abuses.
6. Systemic risk regulation, prudential risk regulation, and closing 
        regulatory gaps
A. Scope of systemic risk regulation
    There has been discussion about whether the systemic risk regulator 
should focus on institutions which are ``too big to fail.'' Federal 
Reserve Board Chairman Bernanke has noted that the incentives, capital 
requirements, and other risk management requirements must be tight for 
any institution so large that its failure would pose a systemic risk. 
\19\
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     \19\ Bernanke, Ben S., Chairman, Federal Reserve Board. Speech to 
the Council on Foreign Relations. Washington, DC, March 10, 2009, 
available at: http://www.federalreserve.gov/newsevents/speech/
bernanke20090310a.htm#f4.
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    FDIC Chairman Bair's recent testimony posed the larger question 
about whether any value to the economy of extremely large and complex 
financial institutions outweighs the risk to the system should such 
institutions fail, or the cost to the taxpayer if policymakers decide 
that these institutions cannot be permitted to fail. Consumers Union 
suggests that one goal of systemic risk regulation should be to 
internalize to large and complex financial market participants the 
costs to the system that the risks created by their size and complexity 
impose on the financial system. ``Too big to fail'' institutions either 
have to become ``smaller and less complex'' or they have to become 
``too strong to fail'' despite their size and complexity--without 
future expectations of public assistance.
    There are many ideas in development with respect to what a systemic 
risk oversight function would entail, who should perform it, and what 
powers it should have. Systemic risk oversight should focus on 
protecting the markets, not specific financial institutions. Systemic 
risk oversight probably cannot be limited to the largest firms. It will 
have to also focus on practices used by bank and nonbank entities that 
create or magnify risk through interdependencies with both insured 
depository institutions and with other entities which hold important 
funds such as retirement savings and the money to fund future pensions.
    The mortgage crisis has shown that a nonfinancial institution, such 
as a rating agency or a bond insurer, can adopt a practice that has 
consequences throughout the entire financial system. Toxic mortgage 
securitizations which initially received solid gold ratings are an 
example of the widespread consequences of practices of nonfinancial 
institutions.
B. Who should undertake the job of systemic risk regulation?
    There are many technical questions about the exact structure for a 
systemic risk regulator and its powers. Like other groups, Consumers 
Union looks forward to learning from the debate. Accordingly we do not 
offer a recommendation as between giving the job to the Federal Reserve 
Board, the Treasury, the FDIC, the new agency, or to a panel, 
committee, or college of regulators. However, we offer the following 
comments on some of the proposal. We agree with the proposition put 
forth by the AFL-CIO that the systemic risk regulator should not be 
governed by, or do its work through, any body that is industry-
dominated or uses a self-regulatory model. We question whether the same 
agency should be responsible for both ongoing prudential oversight of 
bank holding companies and systemic risk oversight involving those same 
companies. If part of the idea of the systemic risk regulator is a 
second pair of eyes, that can't be accomplished if one regulator has 
both duties for a key segment of the risk-producers.
    The panel or committee approach has other problems. A panel made up 
of multiple regulators would be composed of persons who have a shared 
allegiance to the systemic risk regulator and to another agency. It 
could become a forum for time-wasting turf battles. In addition, 
systemic risk oversight should not be a part-time job. We also are 
concerned with the proposal made by some industry groups that the 
systemic risk regulator be limited in most cases to acting through or 
with the primary regulator. This could recreate the type of cumbersome 
and slow interagency process that the GAO discussed in the context of 
mortgage regulation. \20\
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     \20\ Government Accountability Office. Financial Regulation: A 
Framework for Crafting and Assessing Proposals to Modernize the 
Outdated U.S. Financial Regulatory System, January 2009, GAO 09-216, p. 
43, available at: http://www.gao.gov/new.items/d09314t.pdf.
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    Consumers Union supports a clear, predictable, rules-based process 
for overseeing the orderly resolution of nondepository institutions. 
However, it is not clear that the systemic risk regulator should 
oversee the unwinding. That job could be given to the FDIC, which has 
deep experience in resolving banks. Assigning the resolution job to the 
FDIC might leave the systemic risk regulator more energy to focus on 
risk, rather than the many important details in a well-run resolution.
C. Relationship of systemic risk regulation to stronger across the 
        board prudential regulation and to closing regulatory gaps
    Federal financial regulators must have new powers and new 
obligations. How much of the job is assigned to the systemic risk 
regulator may depend in part on how effectively Congress and the 
regulators close existing loopholes and by how much the regulators 
improve the quality and sophistication of day to day prudential 
regulation. For example, if the primary regulator sees and considers 
all liabilities, including those now treated as off-balance sheet, that 
will change what remains to the done by the systemic oversight body. 
Thus, each of the powers described in the next subsection for a 
systemic risk regulator should also be held, and used, by primary 
prudential regulators. The more effectively they do so, the more the 
systemic risk regulator will be able to focus on new and emerging 
practices and risks.
    Closing the gaps that have allowed some entities to offer financial 
products, impose counterparty risk on insured institutions, engage in 
bank-like activities, or otherwise impinge on the health of the 
financial system without regulation is at least as important, if not 
more important, than the creation and powers of a systemic risk 
regulator. Gaps in regulation must be closed and kept closed. Gaps can 
permit small corners of the law to become safe harbors from the types 
of oversight applicable to similar practices and products.
    The theory that some investors don't require protection, due to 
their level of sophistication, has been proved tragically wrong for 
those investors, with adverse consequences for millions of ordinary 
people. The conduct of sophisticated investors and the shadow market 
sector contributed to the crisis of confidence and thus to the credit 
crunch. The costs of that crunch are being paid, in part, by 
individuals facing tighter credit limits and loss of jobs as their 
employers are unable to get needed business credit.
D. Powers of a systemic risk regulator
    Consumers Union suggests these powers for a systemic risk 
regulator. Other powers may also be needed. As already discussed, we 
also believe that the primary regulator should be exercising all or 
most of these powers in its routine prudential supervision.
    Power to set capital, liquidity, and other regulatory requirements 
directly related to risk and risk management: It is essential to 
ensuring that all the players whose interconnections create risk for 
others in the financial system are well capitalized and well-managed 
for risk.
    Power to act by rule, corrective action, information, examination, 
and enforcement: The systemic risk regulator must have the power to act 
with respect to entities or practices that pose systemic risk, 
including emerging practices that could fall in this category if they 
remain unchecked. This should include the power to require information, 
take corrective action, examine, order a halt to specific practices by 
a single entity, define specific practices as inappropriate using a 
generally applicable rule, and engage in enforcement.
    Power to publicize: The recent bailout will be paid for by U.S. 
taxpayers. Even if some types of risks might have to be handled quietly 
at some stages of the process, the systemic risk regulator must have 
the power and the obligation to make public the nature of too-risky 
practices, and the identities of those who use those practices.
    Power and obligation to evaluate emerging practices, predict risks, 
and recommend changes in law: Even the best-designed set of regulations 
can develop unintended loopholes as financial products, practices and 
industry structure change. Part of the failure of the existing 
regulatory structure has been that financial products and practices 
regularly outpace existing legal requirements, so that new products fit 
into regulatory gaps. For this reason, every financial services 
regulator, including the systemic risk regulator, should be required to 
make an annual, public evaluation of emerging practices, the risks that 
those emerging practices may pose, and any recommendations for 
legislation or regulation to address those practices and risks.
    Power to impose receivership, conservatorship, or liquidation on an 
entity which is systemically important, for orderly resolution: 
Consumers Union agrees with many others who have endorsed developing a 
method for predictable, orderly resolution of certain types of nonbank 
entities. There will have to be a required insurance premium, paid in 
advance, for the costs of resolution. Such an insurance program is 
unlikely to work if it is voluntary, since those engaged in the 
riskiest practices might also be those least likely to choose to opt in 
to a voluntary insurance system.
    Undermining of confidence from a power to modify or suspend 
accounting requirements: Some have recommended that the systemic risk 
regulator be given the power to suspend, or modify the implementation 
of, accounting standards. Consumers Union believes that this could lead 
to a serious undermining of confidence. As the past year has shown, 
confidence is an essential element in sustaining financial markets.
7. Promoting increased accountability
    Consumers Union strongly agrees with President Obama's statement 
that market players must be held accountable for their actions, 
starting at the top. \21\ There are many elements to accountability. 
Here is a nonexclusive list.
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     \21\ Overhaul, post to the White House blog on Feb. 25, 2009, 
available at http://www.whitehouse.gov/blog/09/02/25/Overhaul/.
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    Consumers Union believes that accountability must include making 
every entity receiving a fee in connection with a financial instrument 
responsible for future problems with that instrument. This would help 
to end the ``keep the fee, pass the risk'' phenomenon which helped to 
fuel poor underwriting of nonprime mortgages. Moreover, everyone who 
sells a financial product to an individual should have an enforceable 
legal obligation to ensure that the product is suitable. Likewise, 
everyone who advises individuals about financial products should have 
an enforceable fiduciary duty to those individuals.
    Executive compensation structures should be changed to avoid 
overemphasis on short term returns rather than the long term health and 
stability of the financial institution. We also agree with the 
recommendation which has been made by regulators that they should 
engage in a thorough review of regulatory rules to identify any rules 
which may permit or encourage overreliance on ratings or risk modeling.
    Consumers Union also supports more accountability for financial 
institutions who receive public support. Companies that choose to 
accept taxpayer funds or the benefit of taxpayer-backed programs or 
guarantees should be required to abandon anti-consumer practices and be 
held to a high standard of conduct. \22\
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     \22\ For example, in connection with the Consumer and Business 
Lending Initiative, which is to be managed through the Term Asset 
Backed Securities Facility (TALF), Consumers Union and 26 other groups 
asked Secretary Geithner on Jan. 29, 2009, to impose eligibility 
restrictions on program participants to ensure that the TALF would not 
support the taxpayer financed purchase of credit card debt with unfair 
terms. That request was made before the program's size was increased 
from $200 billion to $1 trillion. http://www.consumersunion.org/pdf/
TALF.pdf.
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    A stronger role for state law and state law enforcement also will 
enhance accountability. Regulatory oversight and strict enforcement at 
all levels of government can stop harmful products and practices before 
they spread. ``All hands on deck,'' including state legislatures, state 
Attorneys General and state banking supervisors, will help to enforce 
existing standards, identify problems, and develop new solutions.
Conclusion
    Even the best possible regulatory structure will be inadequate 
unless we also achieve a change in regulatory culture, better day to 
day regulation, an end to gaps in regulation, real credit reform, 
accountability, and effective consumer protection. Creating a systemic 
risk regulator without reducing household risk through effective 
consumer protection would be like replacing the plumbing of our 
financial system with all new pipes and then still allowing poisoned 
water into those new pipes. The challenges in regulatory reform and 
modernization are formidable and the stakes are high. We look forward 
to working with you toward reforming the oversight of financial markets 
and financial products.
LIST OF APPENDICES

  1.  General Accountability Office figure showing 2006 nonprime 
        mortgage volume of banks ($102 billion), subsidiaries of 
        nationally chartered financial institutions ($203 billion) and 
        independent lenders ($239 billion).

  2.  Consumers Union's Principles for Regulatory Reform in Consumer 
        Financial Services.

  3.  Consumers Union's Platform on Mortgage Reform.

                               Appendix 1
    Page 24 from GAO Report, GAO 09-0216, A Framework for Crafting and 
Assessing Proposals to Modernize the Outdated U.S. Financial Regulatory 
System. Also found at: http://www.gao.gov/new.items/d09216.pdf.


                               Appendix 2
Consumers Union Principles for Regulatory Reform in Consumer Financial 
        Services
  1.  Every financial regulatory agency must make consumer protection 
        as important as safety and soundness. The crisis shows how 
        closely linked they are.

  2.  Consumers must have the additional protection of a Financial 
        Product Safety agency whose sole job is their protection, and 
        whose rules create baseline federal standards that apply 
        regardless of the nature of the provider. This agency would 
        have dual jurisdiction along with the functional regulator. 
        States would remain free to set higher standards.

  3.  State innovation in financial services consumer protection and 
        state enforcement of both federal and state laws must be 
        honored and encouraged. This will require repeal of the OCC's 
        preemption regulations and its rule exempting operating 
        subsidiaries of national banks from state supervision. The OCC 
        should also immediately cease to intervene in cases, or to file 
        amicus briefs, against the enforceability of state consumer 
        protection laws.

  4.  Every financial services regulator must have: a proactive 
        attitude to find and stop risky, harmful, or unfair practices; 
        prompt, robust, effective complaint handling for individuals; 
        and an active and public enforcement program.

  5.  Financial restructuring will be incomplete without real credit 
        reform, including: outlawing pricing structures that mislead; 
        requiring underwriting for the ability to repay the loan at the 
        highest interest rate and highest payment that the loan may 
        reach; a requirement that the ``shelter rule'' that ends most 
        purchaser responsibility for problems with a loan be waived by 
        the purchaser of any federally related mortgage loan; a 
        requirement that borrower income be verified; an end to complex 
        pricing structures that obscure the true cost of credit; 
        suitability and fiduciary duties on credit sellers and credit 
        advisors; and an end to steering payments and negative 
        amortization abuses.

                               Appendix 3
Consumers Union Mortgage Reform Platform
    We need strong new laws to make all loans fair. This should include 
these requirements for every home mortgage:

    Require underwriting: Every lender should be required to 
        decide if the borrower will be able to repay the loan and all 
        related housing costs at the highest interest rate and the 
        highest payment allowed under the loan.

    Lenders should be required to verify all income on the loan 
        application.

    End complex pricing structures that obscure the true cost 
        of the loan.

    Brokers and lenders should be required to offer only those 
        types of loans that are suitable to the borrower.

    Brokers and lenders should have a fiduciary obligation to 
        act in the best interest of the borrower.

    Stop payments to brokers to place consumers in higher cost 
        loans.

    End the use of negative amortization to hide the real cost 
        of a loan.

    Require translation of loan documents into the language in 
        which the loan was negotiated.

    Hold investors accountable through assignee liability for 
        the loans they purchase.

    Require that everyone who gets a fee for making or 
        arranging a loan is responsible later if something goes wrong 
        with that loan.

    Adopt extra protections for higher-cost loans.

    Restore state powers to develop and enforce consumer 
        protections that apply to all consumers and all providers.

    For more information, see: http://
        www.defendyourdollars.org/topic/mortgages.
        RESPONSE TO WRITTEN QUESTIONS OF SENATOR SHELBY
                      FROM DANIEL A. MICA

Q.1. Corporate Credit Unions--Mr. Mica, last Friday the 
National Credit Union Administration placed two corporate 
credit unions, U.S. Central and Western Corporate, into 
conservatorship. Both of these corporate credit unions have 
suffered significant losses on their investments in mortgage-
backed securities.
    What is your view on the reasons for the financial problems 
at these corporate credit unions?

A.1. It is our understanding that the National Credit Union 
Administration Board was concerned about the level of estimated 
losses the two corporate credit unions could have on their 
mortgage backed securities. These legal investments, most of 
which were AAA rated, were attractive and performing well when 
made. However, due to the economy and problems in the mortgage 
market, the value of these securities has been affected by the 
market and by concerns about potential credit losses relating 
to the underlying mortgage loans.

Q.2. Do you believe there was adequate oversight of the 
investment portfolios of corporate credit unions?

A.2. The National Credit Union Administration Board had 
examination staff that operated in each of these corporate 
credit unions and both were subject to examinations and 
financial reporting requirements on their investments. We do 
believe it is appropriate to review the regulatory process as 
it relates to the corporate credit unions, particularly with an 
eye toward proper regulation of concentration limits and 
whether longer-term investments should be limited for corporate 
credit unions.

Q.3. What measures should be taken to restructure corporate 
credit unions?

A.3. CUNA is attaching the comment letter we filed April 6, 
2009, with NCUA on our recommendations for restructuring the 
corporate credit union system. While we support restructuring 
the corporate system, our comments focused on furthering the 
interests of natural person credit unions. Many credit unions 
rely on corporate credit unions for core services such as 
settlement, payments, and liquidity. These services should be 
continued and facilitated. At the same time, appropriate 
capital, corporate governance, supervisory and regulatory 
requirements should be developed that will enhance economies of 
scale and permit appropriate innovations that will help meet 
the needs of natural person credit unions into the future.
                           VIA [email protected]
                                                      April 6, 2009
Ms. Mary F. Rupp,
Secretary of the Board,
National Credit Union Administration
1775 Duke Street
Alexandria, Virginia 22314-3428

RE: CUNA's Comments on Advanced Notice of Proposed Rulemaking for Part 
704, Corporate Credit Unions

Dear Ms. Rupp:

    On behalf of the Credit Union National Association, we are filing 
this letter with the National Credit Union Administration to address 
the future of the corporate credit union system, in response to NCUA's 
Advance Notice of Proposed Rulemaking (ANPR) on the corporate credit 
unions. By way of background, CUNA is the largest credit union advocacy 
organization in this country, representing approximately 90% of our 
Nation's 8,000 state and federal credit unions, which serve 92 million 
members.
    This letter was developed under the auspices of CUNA's Corporate 
Credit Union Task Force (CCUTF), which is chaired by Terry West, 
President and CEO of VyStar Credit Union in Jacksonville, FL. The other 
members of the Task Force are: Robert Allen, President and CEO of 
Teachers FCU in Farmingville, NY; Dale Dalbey, President and CEO of 
Mutual Savings Credit Union in Birmingham, AL; Tom Gaines, President 
and CEO of the Tennessee Credit Union League; Frank Michael, President 
and CEO of Allied Credit Union in Stockton, CA; David Rhamy, President 
and CEO of Silver State Schools CU in Las Vegas, NV; and Jane Watkins, 
President and CEO of Virginia Credit Union in Richmond, VA. Kris 
Mecham, CUNA Chairman and President and CEO of Deseret First FCU in 
Salt Lake City, UT; Tom Dorety, Immediate Past CUNA Chairman and 
President and CEO of Suncoast Schools FCU in Tampa, FL; and Harriet 
May, CUNA Vice Chairman and President and CEO of GECU in El Paso, TX, 
serve as ex officio members.
    While the restructuring of the corporate credit union system is 
very significant, most federally insured credit unions have been 
focused on, and are extremely concerned about, the costs they must bear 
in connection with the National Credit Union Share Insurance Fund's 
(NCUSIF) assistance for corporate credit unions. These include the 
write down and replenishment of their 1 percent NCUSIF deposit, their 
insurance premium costs, and the impairment of their capital in their 
corporate credit unions that many credit unions must reflect. This 
letter addresses both the immediate issues related to NCUA's recent 
actions on corporate credit unions and the longer-term restructuring 
questions, beginning with a summary of the issues and our responses.
I. Summary of CUNA's Views
A. Costs of NCUA's Assistance for Corporate CUs
    The costs associated with the NCUSIF's assistance to the 
        corporate credit unions, along with the impairment of credit 
        unions' capital in their corporate credit union, will have a 
        deleterious impact on the credit union system if they must be 
        absorbed in one year.

    CUNA and the Corporate Credit Union Task Force have urged 
        NCUA since January 28th, when it announced the NCUA Corporate 
        Credit Union Stabilization Plan, to provide a mechanism to 
        allow credit unions to spread out their costs, as the Federal 
        Deposit Insurance Corporation (FDIC) has done for banks. Most 
        in the credit union system feel the Board should not have 
        announced the Corporate Stabilization Plan in January without 
        having developed a mechanism to spread out the costs to credit 
        unions.

    CUNA will continue to do all we can to attain a better 
        outcome for credit unions than the current situation, including 
        through assistance from the U.S. Treasury.

    However, CUNA strongly commends the Board for its work on 
        its new legislative proposal, which is addressed below, and we 
        want to continue to work with NCUA and others to achieve 
        amendments that will help mitigate the impact of the costs on 
        credit unions.

    We particularly support NCUA's proposal to establish a 
        Stabilization Fund that, if approved by Congress, could borrow 
        from the Treasury to fund assistance to corporate credit 
        unions, which will help spread out the costs to federally 
        insured credit unions.

    NCUA's proposed amendment calls for $6 billion in borrowing 
        authority for the new Stabilization Fund--a figure very close 
        to NCUA's estimated $5.9 billion in insurance costs to fund the 
        assistance to the corporate credit unions. Additional authority 
        for NCUA to borrow up to $18 billion in emergencies, with 
        approval from the Treasury and others, is also pending. CUNA 
        agrees these changes are an improvement over the current $100 
        million in borrowing authority for the agency. However, we 
        support seeking greater borrowing authority for the NCUSIF or 
        the new Stabilization Fund, to give NCUA and credit unions even 
        more flexibility in dealing with insurance costs, to the extent 
        efforts to pursue higher borrowing authority do not jeopardize 
        our ability to achieve legislation that will mitigate the 
        impact of the costs on the credit union system.

    CUNA also supports statutory amendments that will give 
        credit unions up to eight years to pay for insurance costs.

    In addition, we are advocating an amendment that will allow 
        the Central Liquidity Facility to provide liquidity directly to 
        the corporate credit unions, as another tool to assist NCUA and 
        the credit union system.

    From the time NCUA announced it had contracted with PIMCO 
        to analyze the securities held by corporate credit unions, CUNA 
        has been urging NCUA to provide adequate information to credit 
        unions from the report, particularly the assumptions and 
        analyses regarding losses.

    Credit unions need the information so they can determine 
        the reasonableness of the agency's cost estimates relating to 
        the losses within the corporate credit unions and the resulting 
        insurance assessments to credit unions. These assumptions have 
        an additional negative impact on many credit unions because of 
        the impairment of their capital in their corporate, which will 
        not be addressed by the new legislation.

    Until now, credit unions have had no way to assess the 
        agency's assumptions regarding these costs.

    On April 3, 2009, NCUA Board Chairman Michael Fryzel 
        announced that key information from the PIMCO report will be 
        provided to the members of the two corporate credit unions 
        placed into conservatorship, WesCorp and U.S. Central, and the 
        state regulators. A summary of significant information from the 
        report will be provided to others. He also announced that the 
        two corporate credit unions are each obtaining an independent, 
        third-party assessment of the credit losses for their asset-
        backed securities.

    CUNA commends this NCUA Board action and wants to continue 
        to work with NCUA to achieve transparency regarding the 
        agency's corporate credit union actions to the fullest extent 
        possible and appropriate. This includes providing sufficient 
        information regarding the PIMCO report and other key 
        information to the entire credit union system so that credit 
        unions will be able to evaluate whether the agency's credit 
        loss evaluations and the various agency decisions, which were 
        based on those evaluations, are reasonable.

    The actual losses that credit unions will ultimately have 
        to bear from the asset- and mortgage-backed securities in 
        corporate credit union portfolios will depend in large part on 
        those securities being held until they have been largely 
        amortized. While NCUA has indicated it plans to hold the 
        securities to maturity, we believe it is imperative that NCUA 
        take additional steps to assure credit unions that, unless it 
        can work with Treasury to obtain a favorable price well above 
        the current market value for the securities before they mature, 
        these securities will not be sold prior to almost complete 
        amortization.

    A number of accounting issues have arisen since the 
        announcement of the assistance to the corporate credit unions 
        and the two corporate credit union conservatorships. The issues 
        generally relate to when and to what extent natural person 
        credit unions must report the impairments of their NCUSIF 
        deposits and capital in their corporate credit unions. While 
        credit unions have raised concerns about NCUA's accounting 
        guidance in Accounting Bulletin (AB 09-2) CUNA appreciates the 
        latest agency memorandum to examiners, which indicates credit 
        unions will not be dealt with harshly if they do not report 
        their NCUSIF deposit impairment on their March 31, 2009 
        statements. CUNA wants to continue working with NCUA to achieve 
        as much clarity for credit unions on these issues as possible.
B. Corporate CU Services
    Corporate credit unions should focus on core services of 
        settlement, payment systems, and meeting the short-term 
        investment and liquidity needs of their member credit unions.

    Long-term investments have created serious problems for the 
        corporate credit union system that natural person credit unions 
        are now having to pay for.

    Corporate credit unions should not be permitted to 
        concentrate their assets in long-term, on-balance sheet 
        investments because such activities have resulted in some 
        corporate credit unions taking on more risk than they could 
        reasonably manage or mitigate.
C. Corporate CU Structure
    The current two-tier corporate system has outlived its 
        utility and characteristics of the system that have facilitated 
        undue risk taking, reduced credit unions' capital, and created 
        inefficiencies must be eliminated.

    Requiring corporate credit unions to focus on payments, 
        settlement and short-term investments and liquidity will reduce 
        the number of corporate credit unions.

    CUNA is not advancing a specific number of corporate credit 
        unions, and it is not recommending that NCUA determine the 
        appropriate number.

    However, the number of corporate credit unions should be 
        small enough to reflect operational efficiencies that benefit 
        natural person credit union members.

    Further, a single interface between the corporate credit 
        union system and key payment and settlement entities could be 
        extremely beneficial as it could combine and strengthen credit 
        unions' ability to influence governmental and private sector 
        decisions in these areas that impact credit unions' operations.

    At the same time, having more than one corporate credit 
        union to provide one or more of the core services for natural 
        person credit unions could prove to be beneficial.

    In any event, the number of corporate credit unions should 
        be sufficient to promote innovation among the remaining 
        corporate credit unions and avoid a potential single point of 
        failure that could arise if only one corporate credit union 
        survives.
D. Capital of Corporate CUs
    Corporate credit unions' Tier 1 capital requirement should 
        be at least 4% and could be as high as 6%. Risk-based capital 
        should also be required.

    Natural person credit unions that use corporate credit 
        unions should be required to maintain contributed capital in 
        their corporate.
E. Corporate Governance
    Corporate credit unions should be permitted to have 
        outside, nonmember directors who can contribute diverse 
        experiences to a corporate credit union's board.

    A corporate should be permitted to have up to 20 percent of 
        its board comprised of nonmembers and also be permitted to pay 
        a nonmember director a reasonable director's fee.

    Such fees should be comparable to those paid by federally 
        insured depository institutions of similar asset size, so long 
        as the amount of this fee and any other director compensation 
        is fully disclosed to the corporate credit union's members.
F. Fields of Membership
    CUNA supports allowing corporate credit unions to have 
        national fields of membership.
II. Discussion of CUNA's Recommendations and Key Points
A. NCUA's Corporate Credit Union Stabilization Program
    Few, if any, issues confronting the credit union system are of 
greater significance than the National Credit Union Administration's 
handling of the financial predicament that has confronted the corporate 
credit union system. That is because the economic, political, and 
member/public relations issues associated with NCUA's decision to place 
U.S. Central Corporate Federal Credit Union and Western Corporate 
Federal Credit Union into conservatorship, as well as the NCUSIF 
assistance to corporate credit unions announced in January which 
combined are now estimated to cost federally insured credit unions $5.9 
billion, will have serious ramifications now and well into the future--
particularly if credit unions have to write down these costs all in one 
year.
    While issues relating to the funding of the assistance to the 
corporate credit unions are not part of the ANPR, our members have 
urged us to address these matters in the context of this comment 
letter.
    Our members feel strongly that they should be able to spread out as 
much of their insurance costs as possible over time, particularly in 
light of the fact that the FDIC determined that a special insurance 
premium amounting to 20 basis points of insured deposits, on top of the 
regular 12 to 16 basis point premium, was too much for the banks to 
fund in one year. Following complaints from the banks, the FDIC reduced 
this year's special assessment to 10 basis points, for a total of 22 to 
26 basis points--far less than the insurance costs credit unions are 
expected to pay.
    Since January 28, 2009, when NCUA announced the corporate 
assistance, CUNA and its Corporate Credit Union Task Force have been 
urging NCUA to adopt alternative approaches for funding the assistance 
that will help spread out the program's insurance costs to credit 
unions. \1\ As we have discussed with the agency, while some options 
would take time to implement, in our view NCUA has the legal authority 
to spread out all premium costs that restore the NCUSIF equity to over 
1 percent of insured shares. \2\ NCUA does not need approval from 
Congress or Treasury to take this action.
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     \1\ In addition to spreading out the insurance costs, CUNA has 
urged NCUA to pursue other means to mitigate credit unions' costs 
associated with the Corporate Stabilization Program, including funds 
from the Treasury's TARP, amendments to the FCU Act to allow the CLF to 
provide loans and capital to corporate credit unions, and options 
consistent with accounting rules that allow the agency to deviate from 
GAAP in recognizing its own costs to the NCUSIF.
     \2\ The 1 percent deposit is required to be replenished in the 
year the NCUSIF incurs an impairment that would reduce the Fund balance 
to below 1 percent, under the Federal Credit Union Act. However, for 
the premium costs which fund the .30 percent balance in the Fund, NCUA 
has authority under the FCUA to spread those costs out over time. 12 
U.S.C. 1782(c)(1)(A), (c)(2).
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    We do applaud NCUA's efforts to develop legislation that will help 
spread out all the insurance costs for credit unions, and we want to 
work with the agency as well as the National Association of State 
Credit Union Supervisors, the National Association of Federal Credit 
Unions, and the National Federation of Community Development Credit 
Unions to achieve its passage as quickly as possible. In particular, 
CUNA supports:

    The new proposal developed by NCUA to establish a 
        Stabilization Fund that could borrow from the U.S. Treasury to 
        fund assistance to corporate credit unions; and

    Legislation that will give credit unions up to seven or 
        eight years to pay for insurance costs and increase the 
        authority of the NCUSIF to borrow from the Treasury in exigent 
        circumstances.

    NCUA's new proposal calls for $6 billion in borrowing authority for 
the Stabilization Fund, absent exigent circumstances. This level is 
very close to the $5.9 billion estimate NCUA has indicated the 
insurance costs to credit unions will e as a result of the corporate 
credit union assistance. Pending legislation will allow NCUA to borrow 
up to another $12 billion from Treasury in emergencies, but only with 
the approval of Treasury and others. These proposed limits are 
improvement over the current $100 million borrowing authority, and we 
appreciate efforts to expand NCUA's borrowing authority. However, we 
hope to partner with NCUA to pursue even higher borrowing authority for 
the NCUSIF or the new Stabilization Fund, as long as such efforts will 
not place the legislation to mitigate the impact of the costs on the 
credit union system at risk.
    We also support an amendment to allow the Central Liquidity 
Facility to provide short-term loans directly to corporate credit 
unions, and we would welcome NCUA's support to include this amendment 
in the Stabilization Fund legislation.
    While CUNA commends the Board for its work on this proposal, our 
members feel the Board should not have announced the assistance for the 
corporate credit unions without providing an acceptable mechanism to 
spread out the costs credit unions will bear--particularly given the 
impact of these costs on credit unions in some areas, which have 
already been weakened by the current economic crisis.
    The decisions NCUA has made this year regarding the corporate 
credit union system are among the most monumental the agency has ever 
made and will continue to impact the entire system for years to come. 
Since NCUA announced it had contracted with PIMCO to analyze the 
securities held by corporate credit unions, CUNA has been urging NCUA 
to provide adequate information to credit unions so they could 
determine the reasonableness of the agency's cost estimates relating to 
losses within the corporate credit unions and the resulting insurance 
assessments to credit unions. These assumptions will have an additional 
negative impact on many credit unions because of the impairment of 
their capital in their corporate credit unions, which will not be 
addressed by the new legislation.
    Until now, credit unions have had no way to assess the validity of 
the agency's assumptions regarding these costs. On April 3, 2009, NCUA 
Board Chairman Michael Fryzel announced that key information from the 
PIMCO report will be provided to the members of the two corporate 
credit unions placed into conservatorship, WesCorp and U.S. Central, as 
well as to the state regulators. A summary of significant information 
from the report will be provided to others. He also announced that the 
two corporate credit unions are each obtaining an independent, third-
party assessment of the credit losses for their asset-backed 
securities.
    CUNA commends this NCUA Board response and wants to continue to 
work with NCUA to achieve transparency regarding the agency's corporate 
credit union actions to the fullest extent possible and appropriate. We 
are hopeful that sufficient information regarding the PIMCO report will 
be provided to the entire credit union system so that credit unions 
will be able to evaluate whether the agency's credit loss evaluations 
and the various agency decisions, which were based on those 
evaluations, are reasonable.
    The estimate of the costs to the share insurance fund for the 
Corporate Stabilization Program ($5.9 billion as of this writing) is 
indeed just that, an estimate. The ultimate losses derived from the 
portfolio of securities held by the corporate credit unions depends on 
two factors: the actual credit losses on the securities (determined by 
various and complicated future economic events), and the extent to 
which the securities might be sold prior to full amortization, 
resulting in market losses that could exceed the eventual credit 
losses.
    Credit unions understand that they will eventually be responsible 
through the share insurance fund for the actual credit losses in the 
portfolio, and that the extent of these losses is currently unknowable. 
They are, however, very concerned that they might be forced to pay 
additional market losses resulting from premature sales of the 
securities.
    Credit unions understand that the agency would not be in a position 
to sell the securities so long as the market losses exceed the 
available reserves (including the $5.9 billion added to available 
funds). Yet they are anxious that once the Fund is ``in the money,'' 
counting existing capital and the additional $5.9 billion, the pressure 
on the agency to sell the remaining securities and lock out any future 
increases in losses could become acute.
    NCUA has released a statement and Board members have indicated the 
agency's intent to hold the securities until maturity, which is 
positive. However, credit unions continue to seek assurances that the 
agency will be able to withstand pressure and hold the securities until 
they are largely amortized or essentially back to par, unless it is 
able to work with the Treasury to sell corporate credit unions' assets 
before they mature at favorable prices well above their current market 
values.
    Finally, a number of accounting issues have arisen since the 
announcement of the assistance to the corporate credit unions and the 
two corporate credit union conservatorships. These relate to when and 
to what extent natural person credit unions must report the impairments 
of their NCUSIF deposit and capital in their corporate credit unions. 
These are not easy issues and questions remain concerning appropriate 
accounting treatments. The latest agency memorandum to examiners 
indicates credit unions will not be dealt with harshly if they do not 
report their NCUSIF deposit impairment on their March 31, 2009 
statements. CUNA appreciates this development and wants to continue 
working with NCUA to achieve as much clarity for credit unions on these 
accounting issues as possible in a timely fashion.
B. CUNA's Corporate Credit Union Task Force
    Prior to NCUA's issuance of the ANPR, in recognition of the serious 
issues facing corporate credit unions, CUNA formed the Corporate Credit 
Union Task Force (CCUTF) earlier this year. \3\ The CCUTF has met a 
number of times to consider the issues outlined in the ANPR. The role 
of the Task Force has been to review the current corporate credit union 
network, assess the nature and scope of the problems within the 
network, and to develop forward thinking, feasible recommendations to 
address those problems responsibly.
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     \3\ Members of the Task Force are Terry West, chair, Robert Allen, 
Dale Dalbey, Tom Gaines, Frank Michael, David Rhamy, and Jane Watkins; 
Kris Mecham, Tom Dorety, and Harriet May serve as ex officio members.
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    A key objective for the Task Force in crafting its recommendations 
for reform of the corporate system has been to ensure the interests and 
needs of natural person credit unions for payment and settlement 
services as well as short-term liquidity are met. The Task Force also 
sought to develop recommendations that would mitigate the risks 
associated with corporate credit union operations. This letter reflects 
their views, as well as those of numerous credit unions and Leagues 
that responded to this request for comments. It has also been reviewed 
by CUNA's Governmental Affairs Committee as well as our Board of 
Directors, and it represents CUNA's official positions. CUNA's GAC and 
Board reflect a broad cross-section of American's credit unions by 
size, region, and charter types.
C. The Future Structure of the Corporate System
    CUNA is aware that the first task the Board must deal with 
regarding corporate credit unions is stabilizing the system in the 
near-term. Once that has been accomplished, a transition to a revised 
system will be necessary. In our comments that follow, we deal only 
with what the optimal system should be, not with the mechanism of how 
to transform the current system to its future form.
    Corporate credit unions have historically fulfilled an important 
role by providing natural person credit unions with settlement and 
payment services. In addition, corporate credit unions have played a 
major role in meeting both the short- and long-term investment needs of 
credit unions, and in providing short- and medium-term loans to credit 
unions.
    As a result of the current economic crisis, many corporate credit 
unions have experienced a dramatic reduction in the market value of 
their investments. These reductions have been exacerbated by the 
virtual shutdown of the market for mortgage-backed securities and other 
investments. This series of events has severely undermined the 
stability of the corporate credit union system.
    CUNA believes that the future structure of the corporate credit 
union system must be very different from the one that has evolved over 
the past three decades, if it is going to be well positioned to meet 
the needs of member credit unions while successfully managing risk. 
Changes must be made to the number of tiers within the system, the 
number of corporate credit unions, the services they provide, their 
capitalization, and governance. Ultimately, the driving factor must be 
the set of services that it is essential for credit unions to receive 
from a corporate system. Once those services are established, the 
remaining issues concerning the future of the corporate system can be 
determined.
D. Services Provided by the Restructured Corporate System
    Services currently provided by corporate credit unions can be 
divided into the following mutually exclusive categories:

    Payment processing, such as checks, ACH, Wire Transfers, 
        ATM and debit, etc. Payment processing involves transferring 
        information about financial transactions (payments) so that the 
        financial institutions of both the payor and payee know when to 
        debit or credit whose account by how much. In addition to 
        corporate credit unions, a number of other vendors provide 
        various types of payment processing to credit unions.

    Settlement. This function involves transferring money among 
        financial institutions to settle out the net effect of inflows 
        and outflows resulting from payments and other credit union 
        transactions. Settlement requires a financial institution 
        charter, and maintaining accounts at a Federal Reserve Bank and 
        other financial institutions to execute and manage the transfer 
        of funds.

    Short-term investments. This function involves investments 
        credit unions make with overnight funds, and other short-term 
        investments. The limit for short-term investments could be as 
        short as three months, but no longer than one year.

    Short-term liquidity. This function involves providing 
        short-term lending to credit unions. This could be for as short 
        as overnight to facilitate a credit union's settlement 
        accounts, to slightly longer to allow credit unions to adjust 
        to monthly or seasonal liquidity flows.

    Long-term investing. This involves portfolio investing for 
        credit unions with longer maturities than defined as short-term 
        investing.

    Long-term liquidity. This involves longer term lending to 
        credit unions. Credit unions typically undertake such borrowing 
        not to adjust to net loan and savings inflows, but instead for 
        asset/liability management purposes such as holding longer term 
        loans.

    Among these services, the core function that credit unions require 
from a corporate credit union system is settlement. Settlement provides 
the point of contact of the credit union movement with the rest of the 
financial system, and we believe that credit unions would be placed at 
a significant disadvantage if they had to individually arrange for 
settlement services with correspondent or Federal Reserve banks. 
Settlement is a function that can be performed efficiently at scale by 
a very few endpoints for the entire credit union system.
    Whatever institution provides settlement services must also be able 
to provide short-term investing and liquidity. A credit union's 
settlement account is its overnight, interest-earning account. Access 
to overnight or very short-term loans is also necessary for settlement.
    These then comprise the core functions that the future corporate 
system must be designed to offer: settlement, short-term investments, 
and short-term liquidity.
    Payment processing is often linked to settlement and short-term 
liquidity and investment, and there can be efficiencies in a corporate 
credit union offering various types of payment processing. CUNA 
supports payment processing as a permissible activity for corporate 
credit unions because it is often so closely related to settlement.
E. Long-Term Investments and Concentrations in Such Investments for 
        Corporate Credit Unions Should Be Curtailed and Managed
    Many believe that, in the future, corporate credit unions should 
not be engaged in longer-term investing (on the corporate credit 
union's balance sheet). Long-term investments and liquidity are not 
crucial to the settlement function, and longer-term investing has been 
the source of most of the serious problems in the corporate system, 
such as the failure of CapCorp and the current problem of unrealized 
losses on illiquid securities. Corporate credit unions could in theory 
successfully and safely engage in providing term investment services on 
their own balance sheets, but permissible investment activities would 
need to be more restrictive than current regulations, and corporate 
credit unions would have to be required to hold capital levels far in 
excess of what credit unions would likely be willing to provide. A 
number of credit unions believe there is not enough capital in the 
credit union movement to fund long-term investments on the balance 
sheets of both natural person and corporate credit unions. Another 
consideration in removing long-term investing from corporate credit 
unions is the fact that it is feasible for credit unions to meet their 
long-term investing needs through means already available outside 
corporate credit union balance sheets: securities purchases, mutual 
funds, investment advisory services, and deposits in other financial 
institutions.
    Corporate credit unions have traditionally held relatively broad 
authority to engage in long-term (greater than one year) investing. 
Absent such authority, corporate credit unions likely would not have 
been able to obtain the favorable yields they have been able to garner 
and pass on to their member credit unions. Obtaining such yields, 
however, has not been without substantial risk for the corporate credit 
union system. Furthermore, as the system is currently structured, 
losses stemming from these long-term investments can have a direct, 
detrimental affect on natural person credit unions and on other aspects 
of the corporate credit unions' operations, including payment, 
settlement, and liquidity services.
    Part 12 C.F.R. 704.5(c), Investments, of NCUA's Rules and 
Regulations, describes corporate credit unions' current basic 
investment activities, which CUNA supports for corporate credit unions 
going forward. These include investments in:

    Securities, deposits, and obligations set fort in Sections 
        107(7), 107(8), and 107(15) of the Federal Credit Union Act;

    Deposits in, the sale of federal funds to, and debt 
        obligations of corporate credit unions, Section 107(8) 
        institutions, and state banks, trust companies, and certain 
        mutual savings banks;

    Corporate CUSOs;

    Marketable debt obligations of certain corporations; and

    Domestically issued asset-backed securities.

    Additionally, Appendix B to Part 704, Expanded Authorities and 
Requirements, details the riskier investments that qualifying corporate 
credit unions can purchase, such as long-term investments rated no 
lower than BBB. NCUA attempts, in Appendix B, to mitigate the risk 
involved with these investments by mandating that participating 
corporate credit unions fulfill ``additional management, 
infrastructure, and asset and liability requirements.'' Corporate 
credit unions seeking to purchase long-term, Appendix B investments 
must first be granted prior approval--which can subsequently be removed 
at any time--by NCUA.
    Even with the above-mentioned safeguards, the risk to the entire 
credit union system associated with certain short-term investments, 
such as asset-backed securities, and long-term investments in Appendix 
B may be too great. The possible long-term investments enumerated under 
the appendix include those that have resulted in much of the corporate 
credit unions' unrealized losses and other-than-temporarily impaired 
assets.
    However, while removing the authority to invest in riskier long-
term investments will reduce the risk to the entire credit union 
system, such limitations will also have the consequence of reducing the 
earning potential of natural person credit unions. Many of these credit 
unions have already been heavily invested in their corporate credit 
unions.
    In light of these concerns about investments and concentrations of 
assets in a limited number of investment vehicles, CUNA encourages NCUA 
to consider the extent to which longer-term, riskier investments for 
corporate credit unions should be dramatically curtailed and whether 
alternative means for natural person credit unions to invest in some 
additional investments should be pursued.
    To be clear, CUNA encourages NCUA to consider supporting natural 
person, not corporate, credit unions to have the option to purchase 
alternative investments vehicles, such as those authorized under the 
proposed Credit Union Regulatory Improvement Act (CURIA). Section 301, 
Investments in Securities by FCUs, of CURIA, for example, would 
authorize the Board to permit natural person credit unions to purchase 
certain investment securities as the Board sees appropriate. Allowing 
natural person credit unions to make such investments through providers 
outside the credit union system would have the effect of moving some of 
the risk away from the National Credit Union Share Insurance Fund 
(NCUSIF). Any investment losses suffered by natural person credit 
unions would affect the NCUSIF only if they substantially reduce the 
credit unions' net worth, and even then might be covered by FDIC 
insurance if the investment provider were a federally insured bank.
F. The Number of Corporate Credit Unions and Their Tiers
    Once the primary function of corporate credit unions has been 
determined to be the provision of settlement services and closely 
related activities, the issue of the appropriate number of corporate 
credit unions can be addressed. Processing payments and handing 
settlement are scale businesses, so the number of corporate credit 
unions can be sharply reduced to a very small number. With only a few, 
large corporate credit unions serving natural person credit unions, 
there would no longer be the need for a two-tiered structure.
    Achieving economies of scale and enhancing the ability of the 
credit union system to influence and interface with the settlement 
process supports a good case for having only one corporate credit 
union. Under this approach, the remaining corporate credit union would 
serve as the settlement gateway from the entire credit union movement 
to the rest of the financial system on settlement and related issues. 
The principles and recommendations outlined in this letter would not 
preclude that outcome.
    However, economies of scale are not the only considerations 
regarding the number of corporate credit unions into the future. 
Beneficial effects on pricing and innovation are also needed, which may 
be harder to attain without some direct credit union-market 
competition.
    In any event, CUNA does not support having NCUA determine the 
appropriate number of corporate credit unions. Rather, we believe that 
as a result of capital requirements and limits on services and 
investments, member credit union owners should contemplate no more than 
a very limited number of corporate credit unions--small enough to take 
advantage of economies of scale, but large enough to foster innovation 
and competition.
G. Corporate Credit Union Capital
    CUNA believes that a corporate credit union's minimum Tier 1 
capital ratio should be at least 4 percent and possibly higher, up to 6 
percent over a reasonable period of time. If NCUA chooses to institute 
risk-based capital requirements for corporate credit unions, such risk-
based capital should be comparable to those applicable to similarly 
situated FDIC-insured depository institutions. CUNA believes that 
market factors, such as corporate credit unions' payments system 
counterparties' concerns about counterparty risk, will generally 
encourage corporate credit unions to maintain higher net worth ratios 
of up to 6 percent.
    CUNA believes, however, that risk-based capital requirements are 
likely unnecessary for corporate credit unions if NCUA adopts CUNA's 
recommendations for limitations on corporate credit unions' business 
and investment activities, as outlined above. CUNA believes that if 
NCUA has concerns regarding the amount of capital necessary to cover 
corporate credit unions' payment and settlement risks, it should 
consider requiring a payment and settlement risk reserve that would be 
deducted from Tier 1 capital but included in Tier 2 capital to some 
degree, as discussed below under ``4.''
    1. Components of Corporate Credit Union Capital and Capital Ratios. 
CUNA believes that a corporate credit union's regulatory capital should 
consist of Tier 1 capital-reserves and undivided earnings (RUDE) as 
well as paid-in capital (PIC)-and Tier 2 capital. Corporate credit 
union Tier 2 capital should include member capital shares (MCS) as well 
as subordinated term debt and general reserves such as the ``Reserve 
for Payment and Settlement Risk'' discussed below.
    CUNA also believes that Tier 2 capital for corporate credit unions 
could include subordinated term debt because U.S. low-income credit 
unions count subordinated debt--in the form of a ``secondary capital 
account''--as regulatory capital, because Canadian credit unions count 
subordinated debt as regulatory capital, and because U.S. federal 
banking regulators and the Basel Committee on Banking Supervision also 
consider subordinated debt to be Tier 2 capital. \4\
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     \4\ See, e.g., 12 C.F.R. Appendix A to part 325.
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    2. Require PIC Investments for Access to Corporate Services and 
Lengthen MCS. CUNA believes that natural-person credit unions should 
make meaningful PIC investments in a corporate in order to use that 
corporate credit union's services, that the callable period of member 
capital shares (MCS) should be extended to five years from three years, 
and that corporate credit unions should be permitted to write down 
called MCS over five years rather than two.
    In general, a natural person credit union's required PIC investment 
in a corporate credit union should be calculated based on the investing 
credit union's asset size, and its required MCS balance should be based 
upon its usage of the corporate credit union's services.
    Requiring natural person credit unions to contribute perpetual or 
20-year-callable PIC to their corporate and extending the callablility 
and write-down periods for MCS will strengthen the corporate credit 
unions' capital positions. In addition, required PIC subscriptions by a 
corporate credit union's natural person credit unions members would 
give all users of a corporate credit union's services an increased 
incentive to monitor their corporate credit union's management and 
business activities.
    CUNA also believes that NCUA should consider making natural person 
credit unions' PIC investments transferable from one corporate to 
another, so long as the PIC of state-chartered corporate credit unions 
would not be considered ``capital stock'' within the meaning of 26 
U.S.C. 501(c)(14)(A). CUNA believes that transferable PIC would not 
likely qualify as ``capital stock'' so long as it is clearly designated 
as a form of deposit.
    3. Risk-Based Capital. If NCUA restricts corporate credit union 
business and investment in the manner suggested by CUNA, above, risk-
based capital requirements for the corporate credit unions would likely 
not be necessary. However, if such investments are not restricted, then 
risk-based capital for corporate credit unions engaging in those 
activities is essential.
    If the Basel II risk-based capital rules developed by the Federal 
Reserve Board, the Office of the Comptroller of the Currency, the 
Office of Thrift Supervision, and the FDIC applied to corporate credit 
unions, \5\ a corporate credit union that is invested solely in U.S. 
Treasury securities and other highly-rated fixed-income investments \6\ 
would have an 8 percent risk-based capital ratio requirement that would 
generally be lower than the amount of capital required by a 4 percent 
net worth ratio.
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     \5\ See, e.g., Risk-Based Capital Guidelines; Capital Adequacy 
Guidelines: Standardized Framework, 73 Fed. Reg. 43982 (proposed July 
29, 2008). FDIC-insured depository institutions are subject to a 3 
percent absolute leverage ratio on Tier 1 capital and a risk-based 
capital ratio of 8 percent. See 12 C.F.R. 325.3; see also, e.g., 12 
C.F.R. 3.6, Appendix A to 12 C.F.R. pt. 3 (national banks).
     \6\ I.e., generally AAA to AA-rated investments. These investments 
are typically assigned a risk-weighting of 20 percent, meaning that 
their value for risk-based capital calculation purposes is discounted 
to 20 percent of face value. See, e.g., Risk-Based Capital Guidelines; 
Capital Adequacy Guidelines: Standardized Framework, 73 Fed. Reg. 
43982, 43991-98 (proposed July 29, 2008).
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    Stated another way, risk-based capital requirements for corporate 
credit unions would generally be irrelevant-if corporate credit unions 
were subject to a minimum 4 percent net worth ratio and a minimum 8 
percent risk-based capital ratio--until a corporate made significant 
investments in assets in the Basel II 50 percent risk category or the 
100 percent or 150 percent risk-weight categories. Most potential 
corporate credit union investments would be placed in the 50 percent 
(or a higher) risk-weight category if they are rated below AA-.
    4. Reserves for Payment and Settlement Risk. CUNA believes that 
corporate credit unions should hold sufficient capital to be insulated 
from operational risk arising from payment and settlement activities, 
possibly including a capital charge deducted from Tier 1 capital to 
establish appropriate reserves for payment and settlement risk.
    Under the Basel II standardized approach to controlling for payment 
and settlement operational risk, a corporate credit union's payments 
and settlement risk capital charge would be 18 percent of the three-
year average of the corporate credit union's annual gross income from 
payment and settlement activities.
    CUNA believes that this reserve for payment and settlement risk 
should be deducted from Tier 1 capital but should be included in Tier 2 
capital (possibly subject to a percentage of assets limitation, such as 
1% of assets) because, under Basel II rules, this reserve would qualify 
as Tier 2 capital. This reserve qualifies under Basel II as Tier 2 
capital because it is a general reserve that does not reflect a known 
loss or deterioration in a particular asset, and would be available to 
meet unidentified losses that may subsequently arise.
H. Corporate Credit Union Governance
    CUNA believes that the boards of directors of corporate credit 
unions should generally consist of representatives of their member 
natural person credit unions, but that a corporate credit union should 
have the option of having up to 20 percent of its board consist of 
nonmember directors if its members so choose.
    CUNA wishes to note that most current corporate credit union 
directors are ``outside directors'' or ``independent directors'' within 
the common definitions of those terms, since they are not officers of 
the corporate credit union and, as individuals, have no direct 
financial interest in the corporate. \7\ These directors are typically 
representatives of the corporate credit unions' member natural person 
credit unions, none of which are individually able to exert control 
over a corporate because credit unions' one-member-one-vote voting 
structure prevents the concentration of voting power in the hands of a 
few. CUNA believes, therefore, that comparisons between the governance 
of corporate credit unions and that of for-profit, stock corporations 
with significant numbers of ``inside directors''--i.e., those who are 
also officers of the corporation and/or who represent the interests of 
controlling stockholders--are inapt.
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     \7\ E.g., ``Outside Director,'' John Downes and Jordan Elliot 
Goodman, Dictionary of Finance and Investment Terms (Barron's, 7th ed. 
2006) (``[A] member of a company's board of directors who is not an 
employee of the company.''); id. at ``Independent Director'' 
(``Independent Director: same as Outside Director''); Black's Law 
Dictionary 473 (7th ed., 1999) (``A nonemployee director with little or 
no direct interest in the corporation.'').
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    Outside directors ``are considered important because they are 
presumed to bring unbiased opinions to major corporate decisions and 
also can contribute diverse experience to the decision-making 
process.'' \8\ CUNA believes that the outside directors representing 
the interests of corporate credit unions' member natural person credit 
unions currently serving on corporate credit unions' boards already 
bring unbiased opinions to major corporate decisions. CUNA does not 
believe that corporate credit unions should be required to have 
outside, nonmember directors because most current corporate directors 
already qualify as ``outside directors'' and because nonmembers may 
have interests that do not align with those of the corporate, or with 
the interests of credit unions generally.
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     \8\ ``Outside Director'', Dictionary of Finance and Investment 
Terms.
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    CUNA believes, however, that corporate credit unions should be 
permitted the option to have nonmember directors who can contribute 
diverse experience to a corporate credit union's board, if the 
corporate credit union's member natural person credit unions so choose. 
A corporate should be permitted to have up to 20 percent of its board 
be composed of non-members and also be permitted to offer a non-member 
director a reasonable director's fee comparable to that paid by 
federally insured depository institutions of similar asset size, so 
long as the amount of this fee and any other director compensation is 
disclosed to the corporate credit union's members. The NCUA Board has 
authority under section 120(a) of the Federal Credit Union Act to 
authorize a corporate to have nonmember outside directors and to pay 
those nonmember directors a reasonable fee.
I. National Fields of Membership
    CUNA believes that the small number of corporate credit unions that 
operate in the future should continue to have national fields of 
membership. Without overlapping fields of membership, there would be no 
competition among corporate credit unions, and therefore, no need to 
have more than one. CUNA understands that competition among corporate 
credit unions may have in the past contributed to thinly capitalized 
institutions, operating on very low margins, taking significant 
investment risks. However, with sufficient capital requirements and 
with investments restricted to only those necessary to perform short-
term investing and liquidity for credit unions, CUNA believes that 
competition among corporate credit unions would provide for better 
service to credit unions in a context of full safety and soundness.
III. Conclusion
    Thank you for the opportunity to comment on the ANPR regarding the 
structure and operations of corporate credit unions. The issues raised 
in the ANPR are critical for all credit unions, and changes to the 
current corporate credit union structure, as outlined above, are 
imperative to ensure the continued vitality of both corporate and 
natural person credit unions.
    The entire credit union system is now in the process of absorbing 
the recent losses associated with corporate credit union investments. 
Although these losses will never be fully recovered, we strongly 
believe that adopting the principles and recommendations outlined in 
this letter will demonstrate the resiliency of the credit union system 
while helping to help ensure the unfortunate events involving the 
corporate credit unions are never, ever repeated.
    As stated above, CUNA supports NCUA's efforts to help spread out 
credit unions' costs associated with the Corporate Credit Union 
Stabilization Plan, including the proposed legislation, and to address 
related issues. We hope NCUA will work with us to:

    Seek statutory authority for the CLF to provide liquidity 
        directly to corporate credit unions;

    Achieve higher statutory borrower authority for the agency 
        beyond current proposals, to the extent such an effort does not 
        jeopardize the success of any other aspect of the legislations;

    Reassure credit unions it plans to hold asset-backed 
        securities of the two conserved corporate credit unions until 
        maturity; and
    Help clarify remaining accounting issues concerning the 
        reporting of impaired capital in corporate credit unions and 
        the write-down of the NCUSIF deposit.

    We also welcome NCUA's announcement that a separate review of the 
securities of U.S. Central and WesCorp has been undertaken, and that 
the agency will make critical information from the PIMCO available to 
the credit union system. We look forward to reviewing the data.
    We also recognize that the restructuring of the corporate credit 
union system will continue to be a difficult process. CUNA and the 
CCUTF will be available throughout this process to meet with NCUA to 
work through these very complex issues. Meanwhile, please do not 
hesitate to contact us at (202) 638-5777 if you have any questions 
about our comments.
        Sincerely,
                                            Daniel A. Mica,
                                                  President and CEO
                                                Terry West,
                                        President/CEO of VyStar CU,
                and CUNA Corporate Credit Union Task Force Chairman
