[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] EXAMINING THE DANGERS OF THE FSOC'S DESIGNATION PROCESS AND ITS IMPACT ON THE U.S. FINANCIAL SYSTEM ======================================================================= HEARING BEFORE THE COMMITTEE ON FINANCIAL SERVICES U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ MAY 20, 2014 __________ Printed for the use of the Committee on Financial Services Serial No. 113-79 U.S. GOVERNMENT PRINTING OFFICE 88-541 PDF WASHINGTON : 2014 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 HOUSE COMMITTEE ON FINANCIAL SERVICES JEB HENSARLING, Texas, Chairman GARY G. MILLER, California, Vice MAXINE WATERS, California, Ranking Chairman Member SPENCER BACHUS, Alabama, Chairman CAROLYN B. MALONEY, New York Emeritus NYDIA M. VELAZQUEZ, New York PETER T. KING, New York BRAD SHERMAN, California EDWARD R. ROYCE, California GREGORY W. MEEKS, New York FRANK D. LUCAS, Oklahoma MICHAEL E. CAPUANO, Massachusetts SHELLEY MOORE CAPITO, West Virginia RUBEN HINOJOSA, Texas SCOTT GARRETT, New Jersey WM. LACY CLAY, Missouri RANDY NEUGEBAUER, Texas CAROLYN McCARTHY, New York PATRICK T. McHENRY, North Carolina STEPHEN F. LYNCH, Massachusetts JOHN CAMPBELL, California DAVID SCOTT, Georgia MICHELE BACHMANN, Minnesota AL GREEN, Texas KEVIN McCARTHY, California EMANUEL CLEAVER, Missouri STEVAN PEARCE, New Mexico GWEN MOORE, Wisconsin BILL POSEY, Florida KEITH ELLISON, Minnesota MICHAEL G. FITZPATRICK, ED PERLMUTTER, Colorado Pennsylvania JAMES A. HIMES, Connecticut LYNN A. WESTMORELAND, Georgia GARY C. PETERS, Michigan BLAINE LUETKEMEYER, Missouri JOHN C. CARNEY, Jr., Delaware BILL HUIZENGA, Michigan TERRI A. SEWELL, Alabama SEAN P. DUFFY, Wisconsin BILL FOSTER, Illinois ROBERT HURT, Virginia DANIEL T. KILDEE, Michigan STEVE STIVERS, Ohio PATRICK MURPHY, Florida STEPHEN LEE FINCHER, Tennessee JOHN K. DELANEY, Maryland MARLIN A. STUTZMAN, Indiana KYRSTEN SINEMA, Arizona MICK MULVANEY, South Carolina JOYCE BEATTY, Ohio RANDY HULTGREN, Illinois DENNY HECK, Washington DENNIS A. ROSS, Florida STEVEN HORSFORD, Nevada ROBERT PITTENGER, North Carolina ANN WAGNER, Missouri ANDY BARR, Kentucky TOM COTTON, Arkansas KEITH J. ROTHFUS, Pennsylvania LUKE MESSER, Indiana Shannon McGahn, Staff Director James H. Clinger, Chief Counsel C O N T E N T S ---------- Page Hearing held on: May 20, 2014................................................. 1 Appendix: May 20, 2014................................................. 59 WITNESSES Tuesday, May 20, 2014 Atkins, Paul S., Chief Executive Officer, Patomak Global Partners 8 Barr, Michael S., Professor of Law, the University of Michigan Law School..................................................... 13 McNabb, F. William III, Chairman and Chief Executive Officer, the Vanguard Group, Inc., on behalf of the Investment Company Institute (ICI)................................................ 10 Scalia, Eugene, Partner, Gibson, Dunn & Crutcher LLP............. 12 Smithy, Deron, Treasurer, Regions Bank, on behalf of the Regional Bank Coalition................................................. 15 Wallison, Peter J., Arthur F. Burns Fellow in Financial Policy Studies, the American Enterprise Institute..................... 17 APPENDIX Prepared statements: Atkins, Paul S............................................... 60 Barr, Michael S.............................................. 70 McNabb, F. William III....................................... 73 Scalia, Eugene............................................... 88 Smithy, Deron................................................ 105 Wallison, Peter J............................................ 118 Additional Material Submitted for the Record Lynch, Hon. Stephen: ``Systemic Risk and the Asset Management Industry,'' by Douglas J. Elliott, Fellow, The Brookings Institution, dated May 2014............................................. 134 EXAMINING THE DANGERS OF THE FSOC'S DESIGNATION PROCESS AND ITS IMPACT ON THE U.S. FINANCIAL SYSTEM ---------- Tuesday, May 20, 2014 U.S. House of Representatives, Committee on Financial Services, Washington, D.C. The committee met, pursuant to notice, at 10:01 a.m., in room 2128, Rayburn House Office Building, Hon. Jeb Hensarling [chairman of the committee] presiding. Members present: Representatives Hensarling, Bachus, Royce, Capito, Garrett, Neugebauer, McHenry, Pearce, Posey, Westmoreland, Luetkemeyer, Huizenga, Hurt, Stivers, Fincher, Stutzman, Hultgren, Ross, Pittenger, Barr, Cotton; Waters, Maloney, Sherman, Meeks, Hinojosa, McCarthy of New York, Lynch, Scott, Green, Moore, Ellison, Perlmutter, Himes, Peters, Carney, Sewell, Foster, Kildee, Delaney, Sinema, Beatty, Heck, and Horsford. Chairman Hensarling. The committee will come to order. Without objection, the Chair is authorized to declare a recess of the committee at any time. The title of today's hearing is, ``Examining the Dangers of the FSOC's Designation Process and Its Impact on the U.S. Financial System.'' I now recognize myself for 4 minutes to give an opening statement. The committee's hearing today is on the Financial Stability Oversight Council which, like most Washington bureaucracies, has come to be known by its acronym, FSOC. FSOC was established, or so its supporters tell us, to make it easier for regulators to communicate and share information with each other. But the regulators didn't need an act of Congress to do that, and information-sharing is not what FSOC is really all about. Instead, FSOC is about one thing: increasing Washington's control over the U.S. economy, thus curtailing both economic freedom and economic prosperity. And FSOC does this through its power to designate systemically important financial institutions, or in bureaucratic speak, SIFIs. Having failed to prevent the last financial crisis, notwithstanding having every regulatory power necessary to do so, regulators were rewarded with even more power by the Dodd- Frank Act. The Dodd-Frank Act represents a breathtaking outsourcing of legislative power to the Executive Branch. Federal agencies now have virtually unfettered discretion to expand their regulatory control through a designation process that is opaque, secretive, vague, open-ended, and highly subjective. And by empowering FSOC to designate SIFIs, Dodd- Frank allows the Federal Reserve to impose bank-like standards on nonbank institutions. In other words, to move institutions from the nonbailout economy to the bailout economy. And that is what FSOC is doing, expanding the Fed's power to control the financial system using the pretext that size alone poses a systemic risk. Rather than offering up detailed data and compelling analysis to justify its efforts to commandeer large financial institutions, FSOC's perfunctory explanations are typical of an unaccountable group of agencies that feel they don't need to justify their actions to anyone. Many think it odd that FSOC has chosen insurance companies and asset managers as targets for SIFI designation when there are others that clearly pose far greater risk to financial stability. Insurance companies are already heavily regulated at the State level, and asset managers operate with little leverage. And since they manage someone else's funds, it is almost inconceivable that an asset manager's failure could cause systemic risk. In contrast, there were Fannie Mae and Freddie Mac, which were at the epicenter of the financial crisis. They were highly leveraged before the crisis and remain highly leveraged today. They are not only a source of systemic risk; they are its very embodiment. Then, there is the Federal Government itself. As I watch the national debt clock turn to my left and right, having borrowed upwards of $17 trillion, it is perhaps the most leveraged institution in world history, and, like charity, perhaps SIFI designation should begin at home. Americans should also be worried that FSOC seems to take its direction from an international organization that meets secretly: the Financial Stability Board (FSB). Though the United States is represented, and I use that word advisedly, on this international board by the Treasury Department, the Federal Reserve, and the Securities and Exchange Commission, neither the Treasury, the Fed, nor the SEC has ever reported to Congress about its participation, nor have they ever asked for Congress' approval to participate in the global organization. Now, while Administration officials are fond of invoking the risks that supposedly lurk in the so-called shadow banking system, great risks also lurk to U.S. financial stability and competitiveness in a shadow regulatory system in which Treasury and the Federal Reserve may have ceded U.S. sovereignty over financial regulatory matters to a secretive, unaccountable coalition of European bureaucrats. Just days ago, in this very hearing room, Secretary Lew refused to answer key questions regarding Treasury's participation in the FSB designation process. To most Americans, the SIFI designation process may seem like a classic inside-the-Beltway exercise, but the stakes are enormous. Designation anoints institutions as too-big-to-fail. Today's designations are tomorrow's taxpayer-funded bailouts. Americans may find themselves paying more to insure their homes and their families. Investors who relied on mutual funds to save for their children's education or their own retirement will find they have earned less. And our economy will suffer as sources of long-term investment capital dry up. I once again call upon FSOC to cease and desist further SIFI designations until Congress can review the entire matter. I now yield 6 minutes to the ranking member for an opening statement. Ms. Waters. Thank you, Mr. Chairman. Six years ago this March, our regulators were faced with the first of many difficult decisions related to the financial crisis: bail out Bear Stearns or risk its bankruptcy, spreading instability worldwide. This was the first of several interventions during an economic collapse that resulted in the destruction of trillions of dollars of wealth, millions of families' economic livelihood, and the world's confidence in our markets and our way of life. Despite the revisionist views of my Republican colleagues, this crisis resulted in part from an inability of markets to police themselves, which was compounded by the inability of the previous Administration and regulators to stop predatory practices on Wall Street. At the end of the day, Wall Street's greed had disastrous effects on Main Street. As we picked up the pieces, we learned that regulators lacked authority to regulate entire markets, such as the $600 trillion over-the-counter derivatives market. Even worse, they did not have a comprehensive understanding of the companies they regulated, like AIG. For example, State regulators were barred from regulating AIG's derivatives as insurance products, but at the same time neither Federal regulators, nor AIG's own executives, understood the massive risk it was taking. Democrats responded to the massive vulnerabilities in our system by enacting the Wall Street Reform Act, which created the Financial Stability Oversight Council (FSOC) to identify such risks and take the steps necessary to prevent them from threatening our economic well-being. Because of the FSOC, supported by the Office of Financial Research (OFR), we now have a more complete view of the entire market, and when necessary the FSOC can subject financial firms to safeguards intended to prevent certain threats from harming the economy, and it can make recommendations to address risky activities or practices. Congress determined as a starting point that the FSOC would look at all bank holding companies with more than $50 billion in assets, but also directed the Council to look more broadly. Any firm or activity whose unregulated risk could create an economic pandemic should be identified and dealt with now, before it is too late. To date, the FSOC has identified two insurance companies that fit the designation, AIG and Prudential, as well as a finance company, GE Capital. It is important to note that these companies weren't just singled out without evidence. FSOC has provided an informative, detailed analysis that paints a picture of their exposure. For example, in the case of AIG, the FSOC determined that a large number of corporate and financial entities have significant exposure in its capacity as a global insurer and could suffer losses in the event of financial distress at AIG. Now, while these designations must be made on a strong analytical basis, at the same time I support a strong appeals process if industry stakeholders feel as if FSOC got it wrong. However, to date, I have not seen anything to suggest that FSOC's appeals process has failed. I have reviewed this appeals process with my staff, and I am convinced that the industries have an opportunity to make their case. The financial crisis demonstrated a need for heightened supervision of nonbank financial institutions, not just in the United States, but globally as well. That is why I have been mystified to see FSOC's decisions criticized as forgone conclusions based on the recommendations of the international coordinating body, the Financial Stability Board. Not only is there not a shred of evidence that supports this theory, but these critics are missing the point. Constructive engagement by U.S. representatives with the Financial Stability Board and the global boards coordinating insurance and securities regulation promote our global financial stability. Mr. Chairman, we in Congress have been clear that we expect FSOC's actions to be crafted in a way that mitigates specific risks. One-size-fits-all solutions are more likely to cause harm than promote stability. But I believe Congress must continue to support the Wall Street Reform Act, and as a result we must hold the FSOC accountable to its mission to prevent any one company or risky activity from ever threatening our livelihood again. Mr. Chairman, I have talked with many representatives from the industries that are concerned about whether or not FSOC is attempting to treat them as banks, and I am sympathetic to that argument, and I am looking very closely to see if this is true. And I, again, support an appeals process where these companies have an opportunity to lay out their case and to challenge the FSOC, and I am looking to see how this is going to work, because I do believe that the industries have a right to question this, but I also believe that FSOC by law has a responsibility to mitigate risk in this country. And with that, I yield back the balance of my time. Chairman Hensarling. The Chair now recognizes the gentleman from New Jersey, Mr. Garrett, the chairman of our Capital Markets and GSEs Subcommittee, for a minute and a half. Mr. Garrett. Thank you, Mr. Chairman. I thank the witnesses for being here to share their knowledge and their insights on this important issue on FSOC. For some time now, this committee has been focused on the many failings of FSOC and its structure and its operation. We did that in hearings and letters and speeches, and we have asked FSOC for explanation and changes to address our concerns. So far, however, we have been met simply by stonewalling. Apparently some members of FSOC feel that public policy is best made under a blanket of secrecy and that argumentativeness is the best way to engage with Congress. The few answers that we do get are often strawman arguments that claim the only choices we have are FSOC's current way of doing things or nothing at all. Well, I don't accept that. FSOC did not come down from heaven, perfect in every way, and there is certainly room for improvement. To that end, I have introduced H.R. 4387, the FSOC Transparency and Accountability Act. This bill subjects FSOC to the Sunshine Act and Federal Advisory Committee Act. It also allows all members of the commission and boards represented on FSOC to attend and participate in the meetings. It also requires that an agency's vote represents the collective vote of the entire commission or board, not just the Chair. And finally, the bill permits members of the House Financial Services Committee and the Senate Banking Committee to attend FSOC meetings, as I have tried to do but was turned away in the past. So far, FSOC has done little to reassure this committee that it is a responsible body, and it would not be far-fetched to say that FSOC itself is one of the greatest threats to financial stability that we face today. Finally, Mr. Chairman, I agree with the chairman that the FSOC should be refrained from any additional designations until we understand more about the process and impact of SIFI designation. And I yield back. Chairman Hensarling. The Chair now recognizes the gentleman from Massachusetts, Mr. Lynch, for 2 minutes. Mr. Lynch. Thank you, Mr. Chairman. I thank the ranking member, as well, and the witnesses for helping the committee with its work. In the wake of the historical global financial crisis that cost the U.S. economy over $22 trillion, the landmark Dodd- Frank Wall Street Reform and Consumer Protection Act set systemic risk mitigation as one of the primary goals of comprehensive financial regulatory reform. To this end, Dodd- Frank created the Financial Stability Oversight Council (FSOC), which is a collaborative body designed to identify institutional sources of risk and instability within our financial system. In furtherance of that mission, Section 113 of Dodd-Frank authorizes the Council to determine that a U.S. nonbank financial institution is systemically important upon a finding that, and this is a quote from the statute, ``material financial distress at the company or the nature, scope, size, scale, concentration, interconnectedness, or mix of activities of the company could pose a threat to the financial stability of the U.S.'' Mr. Chairman, I support the FSOC. I think it could be an institutional and collaborative force for stability in our financial markets. However, in order to better ensure that the Council's evaluation process for all our financial companies under Section 113 of Dodd-Frank reflects the seriousness of SIFI designation, I would urge the Council to make every effort to conduct its review in a manner that maximizes transparency and accountability without compromising the laudable goals of our financial reform efforts. In addition, I would note that Dodd-Frank specifically contemplates that each financial company is different for the purposes of evaluating the risk it poses to the U.S. financial system. That is precisely why Dodd-Frank set forth the series of factors that the Council must consider in determining whether a nonbank financial institution is systemically important. These factors include the extent of a company's leverage and off-balance sheet exposures, the degree to which a company is already subject to regulation by one or more primary regulators, and the extent to which the assets are managed. I see I am running out of time. I think that in many cases those factors tend to favor acquittal on behalf of some of our mutual funds, and I just ask that FSOC take those recommendations to heart. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentlelady from West Virginia, Mrs. Capito, the chairwoman of our Financial Institutions Subcommittee, for a minute and a half. Mrs. Capito. Thank you, Mr. Chairman. And I want to thank the gentlemen for joining us for the hearing today. As we have heard, the FSOC was originally envisioned as a mechanism for regulatory agencies to share information about potential risks, but it has morphed into an opaque entity that is subverting the prudential regulatory agencies by ignoring their expertise on specific industries that they are charged with supervising. There are some very real economic consequences for many of the decisions that the FSOC is making, and this hearing will get to the heart of that. One of the tasks FSOC is charged with doing is designating nonbank SIFIs. In September of 2013, the FSOC designated a large life insurer as systemically significant despite extensive dissenting opinions from the FSOC's independent member having insurance experience. The one member of the FSOC who is charged with having a significant understanding of the industry argued that the FSOC's basis for the designation simply did not support the likelihood that the failure of the firm would cause disruption to the financial system. Furthermore, he argued that the majority of the FSOC that had approved the designation simply did not understand the basic fundamentals of the insurance industry. Similarly, we will hear concerns about a one-size-fits-all approach to the regulation of financial institutions larger than $50 billion in assets. I have long been concerned about how the various asset designations and thresholds are designated in Dodd-Frank. We need to move past these ambiguous thresholds and change the regulatory agencies, charge them with determining the financial risk to the system based on the riskiness of their operations. I yield back. Chairman Hensarling. The Chair now recognizes the gentlelady from New York, Mrs. Maloney, the ranking member of our Capital Markets Subcommittee, for 2 minutes. Mrs. Maloney. I thank the chairman, and I apologize for being late. I was doing an event with Congressman Poe on the anti-trafficking, sex trafficking bills that will be on the Floor later on today, and which I hope will enjoy wide bipartisan support. Mr. Chairman, one of the key lessons that we have learned from the financial crisis was that nonbank financial institutions that pose greater systemic risks need to be subject to stricter prudential standards. To implement this, Dodd-Frank created the Financial Stability Oversight Council, or FSOC, which is in charge of identifying the financial institutions that pose systemic risk and designating them as systemically important financial institutions (SIFIs). This is an important and necessary power, and without it we would have no protection against examples such as the AIG challenge that we faced. However, the fact that this power to designate firms as systemically risky is so important also means that it should be exercised with great care, especially for firms that don't operate like traditional banks, like asset managers. We must also make sure that any proposed changes to the SIFI designation process do not hinder the FSOC's ability to carry out its mission of identifying and mitigating systemic risks in the financial system. Policymakers have to strike a careful balance between ensuring that there is a fair and thorough process for designating firms as systemically important on the one hand, and preserving the FSOC's ability to identify and mitigate systemic risk on the other hand. I look forward to the hearing today, and I thank you very much. My time has expired. Chairman Hensarling. The Chair now recognizes the gentleman from Texas, Mr. Neugebauer, the chairman of our Housing and Insurance Subcommittee, for a minute and a half. Mr. Neugebauer. Thank you, Mr. Chairman, for holding this important hearing on the Financial Stability Oversight Council's designation process. The identification of nonbank systemically important firms is a serious exercise that has major implications for the competitiveness of U.S. firms and the stability of our financial markets. This has been an area where I have been outspoken since the beginning, as I strongly believe FSOC's structure and its process for designating systemically important firms is fatally flawed. Rather than using data, history, and economic analysis to justify SIFI designations, FSOC has used far-fetched, highly speculative, worst-case scenarios to justify an aggressive expansion of regulatory power for Washington. In addition, many of the targets of this new regulatory overreach had nothing to do with the financial crisis and pose very little risk to financial stability. No designation has been more symbolic of FSOC's flaws than the recent designation of an insurance company, Prudential Financial, as an SIFI. The Prudential designation ignored the expertise of the company's primary regulator, as well as FSOC's members specifically created to provide expert knowledge in the field of insurance. One of those members, Director John Huff, a State insurance commissioner from Missouri, recently stated that FSOC's misguided overreliance on bank concepts is nowhere more apparent than in FSOC's basis for designation of Prudential Financial. He went on to say that the basis for the designation was grounded in implausible, even absurd scenarios. The designated insurance expert, Mr. Roy Woodall, stated that the underlying analysis used by FSOC on the Prudential designation ran counter to fundamental and seasoned understanding of the business of insurance. Chairman Hensarling. The time of the gentleman has expired. Finally, the Chair recognizes the gentleman from Missouri, Mr. Luetkemeyer, the vice chairman of our Financial Institutions Subcommittee, for a minute and a half. Mr. Luetkemeyer. Thank you, Mr. Chairman. For the most part the SIFI designation process seems to be shrouded in secrecy. We have seen no meaningful metrics used in decisions, and Secretary Lew and other officials have refused to answer questions about the process. While the designation process is opaque at best for many firms, it is pretty straightforward for bank holding companies--straightforward and thoughtless. If an institution has more than $50 billion in assets, it is an SIFI. It doesn't matter if a bank is smaller but engages in risky behavior or if a bank is larger but engages in no risky behavior. The only thing that matters is one arbitrary figure related to size. What kind of an evaluation is that? I understand that common sense is in short supply in this town, but FSOC's designation process has serious implications on the financial system and needs to incorporate some element of logic and transparency. I look forward to the hearing with our witnesses today. And I yield back the balance of my time, Mr. Chairman. Chairman Hensarling. We now turn to our witnesses. The Honorable Paul Atkins is the CEO of Patomak Global Partners, a financial consulting firm. He previously served as a Member of the Congressional Oversight Panel for TARP and as a Commissioner on the Securities and Exchange Commission. Mr. Atkins holds a law degree from Vanderbilt University. Mr. William McNabb is the chairman and CEO of the Vanguard Group, a position he has held since 2009. Before becoming CEO, Mr. McNabb served as managing director of Vanguard's institutional and international businesses. Today, we welcome his testimony on behalf of the Investment Company Institute. Mr. Eugene Scalia is a partner at Gibson, Dunn & Crutcher, where he is co-chair of the firm's Administrative Law and Regulatory Practice Group. He earned his law degree from the University of Chicago. Professor Michael Barr teaches financial institutions, international finance, and other aspects of financial law at the University of Michigan Law School. He previously served as Treasury Secretary Rubin's Special Assistant, and in other capacities at the Treasury Department. He earned his law degree from Yale Law School. Mr. Deron Smithy is the treasurer of Regions Bank, which is based in Birmingham, Alabama. Today, we welcome his testimony on behalf of the Regional Bank Coalition. Last but not least, and no stranger to our committee, Mr. Peter Wallison is the Arthur F. Burns Fellow in Financial Policy Studies at the American Enterprise Institute. Without objection, each of your written statements will be made a part of the record. Hopefully, each of you is familiar with our green, yellow, and red lighting system on the witness table. I would ask each of you to please observe the 5-minute time allocation. Mr. Atkins, you are now recognized for a summary of your testimony. STATEMENT OF PAUL S. ATKINS, CHIEF EXECUTIVE OFFICER, PATOMAK GLOBAL PARTNERS Mr. Atkins. Thank you. Good morning. Mr. Chairman, Ranking Member Waters, and members of the committee, it is a pleasure to be back before you all today. As the chairman said, I believe you have my formal statement, and I know the chairman is a stickler for time, so I shall try to highlight a few of the central points. But as a preliminary matter, I believe there is some clarification as to basic pronunciation that is in order. As you all know, Dodd-Frank gives the FSOC authority to label entities within the financial services industry as systemically important financial institutions, abbreviated as S-I-F-I. Now, former chairman Barney Frank quipped the other day that ``SIFFY,'' as with all due respect some people, including on the committee, have pronounced it, sounds like a disease, but that is because, I think, with all due respect, that there is a mispronunciation. So how does one pronounce this? It is WiFi, and this is hi-fi, and this is SIFI. And by no coincidence, it has a homonym, sci-fi. And SIFI designation I think is the statutory gateway to a new level, and for some entities a whole new world of potentially a twilight zone of regulation by the Federal Reserve. I have two fundamental points. First, designating managed investment funds, particularly mutual funds, much less their advisers as SIFIs is a bad idea that lacks any demonstrated or I believe demonstrable analytic foundation. That point has nothing whatsoever to do with partisan politics or whether one is in favor of or opposed to Dodd-Frank. Second, facts matter. Investment funds and investment management are fundamentally different from banks or the banking business. Bank regulators' prudential regulation of the largest mutual funds or their advisers will not be a complement, much less a viable substitute for the existing capital markets' regulatory regime. Let me briefly touch on the two regulatory bodies affected. I am not here to defend the SEC's jurisdiction. If this were some sort of turf war, you wouldn't be hearing from me about it. The SEC is expert at regulating capital markets--risk markets. That is simply not what the Fed does, much less the FSOC. The Fed regulates to preferred outcomes. Central bankers are central planners. The SEC's entire experience and focus is on maintaining free and fair capital markets, while the Fed exists to ensure the safety and soundness, the continued viability of the banking system. So there is nothing in the Fed's 100-year history that even begins to suggest that applying prudential standards to capital market participants would be a benefit or that the Fed would be an effective capital markets regulator. I want to underscore a further point in that connection. Were the Fed to impose capital requirements on SIFI-designated funds or even advisers, investors, notably ordinary individual investors saving for retirement or a downpayment in their 401(k) plans, would have to pony up or face Fed-imposed redemption restrictions. In fact, investment funds are overwhelmingly providers of capital. Mutual funds in particular tend to carry little or no leverage. A mutual fund does not transmit, but bears counterparty risk. To that extent, at least, mutual funds are the very opposite of the sort of highly leveraged entity enhanced Federal Reserve supervision was designed to address. So what, in sum, could we expect if a mutual fund were designated an SIFI and subjected to the Fed's prudential supervision? Besides higher costs and lower returns, there will be less flexibility and more exposure to uncertain market risk. The Fed could constrain investors' ability to redeem their shares on demand or elect to require fund managers to remain in positions that they otherwise would have exited. Imagine that disclosure to investors? Also, sound funds could be subjected to Fed demands to support failing banks under Dodd-Frank Section 210(o). Think of it as an investor-funded ``TARPs-are-us.'' The unfortunate investors in SIFI funds would be at risk of supporting too-big- to-fail financial institutions under that section. None of this would provide any advantage to fund investors. Indeed, such Fed demands could easily force conflicts with the fund manager's fiduciary duty to the fund and therefore to investors. Moreover, if FSOC's cavalier treatment of the insurance industry is any precedent, we should all be extremely concerned that equally misguided and uninformed treatment of regulated investment funds, notably mutual funds, is soon to follow. Any FSOC move to designate regulated investment funds as SIFIs lacks analytic foundation. There is nothing in last September's self-serving--I would say sophomoric--OFR report (Office of Financial Research report) to suggest otherwise. And with that, my time has expired. Thank you. [The prepared statement of Mr. Atkins can be found on page 60 of the appendix.] Chairman Hensarling. Mr. McNabb, you are now recognized for a summary of your testimony. STATEMENT OF F. WILLIAM MCNABB III, CHAIRMAN AND CHIEF EXECUTIVE OFFICER, THE VANGUARD GROUP, INC., ON BEHALF OF THE INVESTMENT COMPANY INSTITUTE (ICI) Mr. McNabb. Thank you, Chairman Hensarling, and members of the committee, for the opportunity to participate in today's hearing. I am Bill McNabb, chairman and CEO of the Vanguard Group, one of the world's largest mutual fund organizations. We have some $2.6 trillion in U.S. mutual fund assets entrusted to us by everyday people saving for college, retirement, education, and other goals. I appear today in my capacity as chairman of the Investment Company Institute. ICI's membership includes U.S. mutual funds, exchange-traded funds, closed-end funds, and unit investment trusts with aggregate assets of nearly $17 trillion. ICI members are subject to substantial regulation and oversight by the SEC and other agencies, and we support appropriate regulation to ensure the resiliency and vibrancy of the global financial system. But we are deeply concerned about the way in which regulators in the United States and globally are considering large mutual funds and their managers for designation as SIFIs. The Financial Stability Oversight Council here in Washington, and the FSB operating globally, appear to be singling out large U.S. funds or their managers to subject them to an added burden of bank-style regulation. Let me speak plainly. There is no justification for designating mutual funds or their managers as SIFIs. Stock and bond funds did not contribute to the financial crisis and do not pose threats to financial stability. If mutual funds or their managers are designated, millions of individual Americans could pay a tremendous price. ICI is concerned that many of those involved in FSOC are predisposed to view the world through a banking lens. There are important fundamental differences between banks and funds. Unlike banks, fund managers act as agents, investing the money of others, not as principals putting their own capital at risk. Unlike bank depositors, fund investors understand they can lose money, and unlike banks, funds operate without any need for government intervention. There are several compelling reasons why even the largest funds are not SIFIs. First, mutual funds use little to no leverage, which is the essential fuel of most financial crises. The very largest U.S. funds have roughly 4 cents of debt for every dollar of shareholder equity. The largest U.S. banks by contrast have $9.70 of debt for every dollar of equity. Second, funds don't experience financial distress that can threaten U.S. financial stability. Hundreds of funds exit the business every year, and none of them requires government intervention or assistance. Third, stock and bond funds don't face so-called runs even in the most turbulent markets. While domestic stock funds own about 25 percent of U.S. stocks, their gross stock sales during the financial crisis represented less than 6 percent of market trading per month. If anything, these funds and their long-term investors have a dampening effect on market volatility. They enjoy a stable investor base because 95 percent of assets in stock and bond funds are held by everyday households, and virtually all of those households report that they are investing for long-term goals, such as retirement and education. Fourth, the structure and comprehensive regulation of mutual funds limits risk and the transmission of risk. For example, daily valuation of fund portfolios, portfolio liquidity requirements, limits on borrowing, and simple transparent structures are among the features that both protect investors and limit risk. If the FSOC designates funds as SIFIs, the consequences for investors would be severe. Under Dodd-Frank, a designated fund could be subject to bank-level capital requirements with investors bearing the cost through higher fees and lower returns. It is particularly troubling that investors in a designated fund could be forced to help shoulder the costs of bailing out large failing financial institutions under the orderly liquidation provisions. This is essentially a tax on retail investors, and Congress wrote Dodd-Frank specifically to avoid burdening taxpayers with these costs. We are also concerned that the Federal Reserve's prudential supervision could conflict with a fund manager's fiduciary duty to act in the best interests of the fund. To protect the stability of the banking system, the Fed might pressure a fund manager to stay in certain markets or to maintain financing for troubled institutions, even if the manager believes those actions would harm investors. We don't believe that Congress created Dodd-Frank to target funds or to appoint the Fed as a significant capital markets regulator, and it is clear to us that SIFI designation, which was intended to be used quite sparingly, is not the right tool for addressing risk in these markets. If regulators believe specific activities or practices pose risk, they appropriately have considerable authority to address those risks. Members of this committee from both sides of the aisle have focused a great deal of attention on the FSOC's lack of transparency and vague processes. We share your concern. Mr. Chairman, we agree that FSOC should cease and desist on further designations until Congress can better understand the process. Thank you, and I will be happy to take questions at the appropriate time. [The prepared statement of Mr. McNabb can be found on page 73 of the appendix.] Chairman Hensarling. Mr. Scalia, you are now recognized for 5 minutes. STATEMENT OF EUGENE SCALIA, PARTNER, GIBSON, DUNN & CRUTCHER LLP Mr. Scalia. Mr. Chairman, Ranking Member Waters, and members of the committee, thank you for the opportunity to testify today regarding the Financial Stability Oversight Council. I am a lawyer at the firm of Gibson, Dunn & Crutcher, and this morning I would like to offer a few observations on FSOC from the perspective of the requirements of administrative law. The FSOC designation process is an unusual one. If there is a similar process before another government agency, I am unaware of it. The process begins with a company being told that it is being considered for designation. It is not told why, yet it is singled out and considered on a solitary and secretive basis. This is very different than a rulemaking, for instance, where the companies in an industry are publicly told that the government is considering changing the requirements that apply to them, and what follows is an open and public discussion about the proper outcome. A company that has been notified of potential designation is kept in the dark in at least two ways. First, the process itself is largely closed and unknown to the company. Until the very late stages it does not know why it is being considered, it does not know what opinions have been formed about it or what concerns and tentative conclusions have been reached. FSOC compiles extensive information on the company. None of that information is shared until after the FSOC members' proposed designation. Access to FSOC decision-makers is closely guarded, and as a practical matter is impossible. Second, the company has inadequate notice on the legal standards that will be applied to it. As a Nation, we value fair notice to the public of their legal obligations for two principal reasons. First, when we are told what the law is, we are able to conform our conduct to comply in order to avoid sanctions. Second, when the government commits itself in writing to what the law is, it limits its discretion and power, and that in turn helps prevent arbitrary government conduct. When it comes to SIFI designation, though, FSOC has done little more than list numerous factors it will consider without identifying the relative weight the factors will be given or what constitutes a passing grade under any one factor. Moreover, its SIFI designation decisions to date have applied such loose and subjective reasoning that other companies being considered have no way of knowing whether they will be designated or what changes they could make so they are not designated. This brings me to the substance of FSOC's designation decisions to date as reflected in the leading Prudential decision. That decision is an exceptionally weak specimen of regulatory reasoning by a government agency. I do not believe it would have survived review in a court. The problems with their decision are addressed at length in my written testimony. They include unsubstantiated conjecture; a subjective, standardless notion of excessive risk; and repeated disregard, as a number of you have mentioned, for the existing system of insurance regulation by the States. I want to conclude by emphasizing another aspect of the FSOC designation process that is very unusual and is a terrible way to make government decisions. FSOC is not considering the consequences of its actions. It is singling out individual companies and subjecting them to an entirely new regulatory regime without knowing what effect that regulatory framework will have. Suppose that just two or three companies in a robustly competitive industry are designated systemic, and suppose that SIFI designation will subject those companies to significantly more costly regulatory requirements than their competitors. Those increased costs should be an extremely important consideration for FSOC. Remember, designation is supposed to be buttressing companies, supposed to be shoring them up, but what if it actually weakens them by making them less competitive? In that case, SIFI designation may be doing exactly the opposite of what is intended. The government should never act without considering the consequences of its action. That is elementary. But FSOC does not make the consequences of designation part of its decision- making process. Worse, FSOC does not know what regulatory requirements will result from designation. It does not know what capital standards will apply to companies that are designated, although it has every reason to believe that under current law, those capital standards will be essentially bank- based, which are improper for other financial firms, such as insurance companies. Before asserting that designation is appropriate because it will bring better protections, the government must determine what those protections are and what effects they will have. Until then, designation decisions are premature. I want to conclude by commending the members of this committee for bringing attention to these issues. Our system of government rests on the belief that the government makes better, fairer decisions when it acts openly, through processes where the public, including Congress, have insight and input. Thank you for inviting me to speak here today, and I look forward to your questions. [The prepared statement of Mr. Scalia can be found on page 88 of the appendix.] Chairman Hensarling. Professor Barr, you are now recognized for 5 minutes. STATEMENT OF MICHAEL S. BARR, PROFESSOR OF LAW, THE UNIVERSITY OF MICHIGAN LAW SCHOOL Mr. Barr. Thank you, Mr. Chairman, and Ranking Member Waters. I am pleased to appear before you today to discuss the key role of the Financial Stability Oversight Council in reducing risks in the financial system. In 2008, the United States plunged into a severe financial crisis that shuttered American businesses and cost millions of households their jobs, their homes, and their livelihoods. The crisis called for a strong response. Under the Dodd-Frank Act, there is new authority to regulate major firms that pose a threat to financial stability without regard to their corporate form; to wind down such firms in the event of a crisis without feeding a panic or putting taxpayers on the hook; to attack regulatory arbitrage, restrict risky activities, and beef up supervision; to require central clearing and exchange trading of standardized derivatives, and capital, margin, and transparency throughout the market; to improve investor protections; and to establish a new Consumer Financial Protection Bureau to look out for American families. The Act also established a Financial Stability Oversight Council, with the authority to designate systemically important firms and financial market utilities for heightened prudential oversight, to recommend that member agencies put in place higher prudential standards when warranted, and to look out for risks across the financial system. One of the major problems in the lead-up to the financial crisis was there was not a coherent system of supervision for major financial institutions. The Federal financial regulatory system that existed was broken. Major financial firms were regulated according to their formal labels, as banks, thrifts, investment banks, insurance companies, and the like, rather than according to what they actually did. Risk migrated to the less well-regulated parts of the system and leverage grew to dangerous levels. The designation of systemically important financial institutions is a cornerstone of the Dodd-Frank Act. A key goal of reform was to create a system of supervision which ensured that if an institution posed a risk to the financial system, it would be regulated, supervised, and have capital requirements that reflected its risk regardless of its corporate form. The Dodd-Frank Act established a process through which the largest and most interconnected firms could be designated as systemically important and then supervised and regulated by the Fed. The Council has developed detailed rules, interpretive guidance, and a hearing process, including extensive engagement with affected firms, to implement this designation process. The existing rules provide for a sound deliberative process, protection of confidential and proprietary information, and meaningful and timely participation by affected firms. Critics of designation contend that it fosters too-big-to- fail, but the opposite is the case. Regulating systemically important firms reduces the risk that failure could harm the real economy and destabilize the financial system. It provides for robust supervision in advance and provides for a mechanism to wind down such a firm in the event of a crisis. Other critics argue that the FSOC should be more beholden to the regulatory agencies that are its members, but again the opposite is true. Congress wisely provided for its voting members, all of whom are confirmed by the Senate, to participate based on their individual assessment of risks in the financial system, not based on the position of their individual agencies, however comprised. Some critics also contend that certain types of firms in certain industries or under certain sizes should be categorically walled off from heightened prudential supervision, but such steps will expose the United States to the very risks we faced in the lead-up to the last devastating crisis. The failure of firms of diverse types and diverse sizes at many points, even in very recent memory, from Long-Term Capital Management to Lehman and AIG, suggests that blind spots in the system should at the very least not be intentionally chosen in advance by the Congress. The way to deal with the diversity of sizes and types of institutions is to develop regulation, oversight, and capital requirements that are graduated and tailored to the types of risks that such firms might pose to the financial system. Beyond designation, FSOC and member agencies have other tools available, including increased data collection, transparency, collateral and margin rules, operational and client safeguards, risk management standards, and other measures that can be used in appropriate circumstances. Lastly, some critics complain that the FSOC's work is too tied to global reforms, including reforms by the Financial Stability Board, but global coordination is essential to making the financial system safer. And these global efforts are not binding on the United States. Rather, the FSOC and U.S. regulators make independent regulatory judgments about domestic implementation based on U.S. law. In sum, significant progress has been made in making the financial system safer and fairer and better focused on serving households, businesses, and the real economy. Now is not the time to turn it back. [The prepared statement of Mr. Barr can be found on page 70 of the appendix.] Chairman Hensarling. Thank you. The Chair now recognizes Mr. Smithy for 5 minutes. STATEMENT OF DERON SMITHY, TREASURER, REGIONS BANK, ON BEHALF OF THE REGIONAL BANK COALITION Mr. Smithy. Good morning, Chairman Hensarling, Ranking Member Waters, and members of the Financial Services Committee. My name is Deron Smithy, and I am the treasurer of Regions Bank, based in Birmingham, Alabama. I appreciate the opportunity to speak to the committee about the systemic risk designation, its impact on regional banks, and the ways in which it can be improved. Regions Bank is a member of the Regional Bank Coalition, a group of 18 traditional lending institutions that play a critical role in the Main Street economy. Each of these banks are larger than $50 billion in assets, but operate basic, straightforward businesses that do not individually threaten the U.S. financial system. Regions Bank, for example, is a diversified, community-focused lender offering a full range of consumer and business lending products and services in 16 States. We have a time-honored and relatively simple operating model that focuses on relationship banking, matching high- quality customer service with industry expertise. Regions serves more than 500,000 commercial customers, including 450,000 small business owners, and we bank nearly 4.5 million consumer households. Collectively, the banks in our coalition operate in all 50 States, hold one-fourth of the U.S. banking deposits, and have credit relationships with more than 60 million American households, yet no regional bank maintains a national deposit share greater than 3 percent of total deposits. In aggregate, our asset base is less than 2 percent of GDP, roughly equivalent to that of the single largest U.S. bank. We are traditional banks that fund ourselves primarily through deposits, and we loan those deposits back into our communities. Regional banks are an important source of credit to small and medium-sized firms, competing against banks of all sizes throughout our markets. Regional banks are not complex. We do not engage in significant trading or international activities, make markets in securities, or have meaningful interconnections with other financial firms. Regional banks are not systemic and do not threaten U.S. financial stability. The Dodd-Frank Act adopted a blunt definition of systemic risk for banks, relying on a simple $50 billion asset threshold. I would note Federal Reserve Governor Tarullo's recent speech in which he highlighted the need to rationalize the regulatory structures so that regulators can more precisely consider differences among firms. He questioned many of the existing bright line, asset-only thresholds and contended that the aims of prudential regulation should vary according to the business activities. He also suggested that the 80-plus banks larger than $10 billion, but those not deemed global systemically important, are overwhelmingly recognizable as traditional commercial banks. On these points we would agree with Governor Tarullo, and we would support the bipartisan bill, H.R. 4060, introduced by Congressman Luetkemeyer and five other members of the committee. The bill would have regulators review five factors-- size, complexity, interconnectedness, international activity, and substitutability--before making a systemic designation. All are factors that regulators have used in other contexts to determine how firms might impact U.S. financial stability. Regional banks constantly react to regulatory and policy changes made in Washington, and these rules affect how we manage our organizations. Systemic regulation has both direct and indirect cost, and for individual regional banks these costs add up to hundreds of millions of dollars each year. They impact how we lend and how we price credit. Even absent systemic designation, protective regulatory guardrails that have evolved since the financial crisis would remain in place for regional banks. The Federal Reserve has the authority to continue the capital planning and stress testing processes started before Dodd-Frank. Moreover, regional banks would remain subject to new Basel III capital and liquidity requirements, as well as numerous other rules outside of Title I's enhanced prudential standards. To reiterate, the current designation process is imprecise and the costs incurred by regional banks are not commensurate with its impacts. Regional bank activities do not threaten the country's financial stability, nor are we complex organizations that would be difficult to resolve in a crisis. The current standard does not best serve the banks, taxpayers, and communities we serve, or the regulators. The regulators have requested clearer, less ambiguous ways to determine systemic risk. A multifactor, activity-based test would do this. Thank you again for the opportunity to testify before the committee today, and I look forward to answering any questions you may have. [The prepared statement of Mr. Smithy can be found on page 105 of the appendix.] Chairman Hensarling. To bat cleanup, Mr. Wallison, you are now recognized for your testimony. STATEMENT OF PETER J. WALLISON, ARTHUR F. BURNS FELLOW IN FINANCIAL POLICY STUDIES, THE AMERICAN ENTERPRISE INSTITUTE Mr. Wallison. Thank you, Mr. Chairman, Ranking Member Waters, and members of the committee. Thank you for the opportunity to testify this morning. Under Dodd-Frank, the Financial Stability Oversight Council (FSOC) has the authority to designate any nonbank financial firm as a systemically important financial institution, or SIFI. That is if the institution's financial distress will cause instability in the U.S. financial system. Firms designated as SIFIs are turned over to the Fed for what appears to be bank-like regulation. The troubling aspects of the FSOC's authority were revealed recently when it designated Prudential Financial as an SIFI. Every FSOC member who was expert in insurance and not an employee of the Treasury Department itself dissented from that decision. Virtually all of the other members, knowing nothing about insurance or insurance regulation, dutifully voted in favor of Prudential's designation. Now, how could we entrust the decision to regulate a large insurer like a bank to a group with no expertise about insurance regulation, and when the FSOC could not possibly have known how the Fed would actually regulate an insurance firm? Even more troubling was the fact that the FSOC offered no facts, no analysis, and no standards in support of its decision. For example, interconnections are supposed to be one of the main reasons that SIFIs are SIFIs. All financial institutions are interconnected in some way, but the FSOC's Prudential decision says nothing about the degree of Prudential's interconnections or why they are a danger to the financial system. The same is true of all the other prior FSOC designations. Let me say it plainly: On the evidence of the Prudential decision, this emperor has no clothes. The FSOC seems to have no idea how to assess the danger of interconnections or any of the other reasons that SIFIs are considered such a threat to the financial stability that they require Fed bank-like regulation. This means the decisions are completely arbitrary. And since these decisions have a seriously adverse effect on competition and economic growth, they should not be allowed to continue until the FSOC can explain its decisions to Congress. There are other reasons to be concerned. Two months before the FSOC's Prudential decision, the Financial Stability Board (FSB), an international body of regulators empowered by the G- 20 leaders to reform the international financial system, had already declared Prudential an SIFI, also without facts and analysis. Since the Treasury and the Fed are members of the FSB, they had already approved the FSB's designation well before the FSOC designated Prudential as an SIFI in September. This raises two questions: first, the fairness and objectivity of the FSOC's designation process; and second, whether the FSOC will simply rubber-stamp the decisions of the FSB in the future. This is important because the FSB looks to be a very aggressive source of new regulation of nonbank financial firms. In early September, the FSB published plans to apply what it called its SIFI Framework to securities firms, finance companies, asset managers, and investment funds, including hedge funds. These firms are the so-called shadow banks that bank regulators are so eager to regulate. It will be very difficult to show that these nonbank firms are a threat to the financial system, but the Prudential decision shows that neither the FSB, nor the FSOC believes it has any obligation to demonstrate this. The question before this committee is not solely whether investment funds are SIFIs. The FSB has already suggested it will apply the SIFI Framework to securities firms, mutual funds, hedge funds, and many, many others. If the FSOC follows suit, and that has been the pattern, we may see many of the largest nonbank firms in the U.S. financial system brought under bank-like regulation. As shown in my prepared testimony, these capital markets firms and not the banks are the main funding sources for U.S. business. Subjecting them to bank-like regulation will reduce their risk-taking and innovation and thus have a disastrous effect on competition and economic growth, and this outcome would be the result of decisions by the FSB carried out by the FSOC. About 2 weeks ago, Mr. Chairman, you said that the FSOC should cease and desist on designations until Congress can assess the consequences. I hope that request is honored. [The prepared statement of Mr. Wallison can be found on page 118 of the appendix.] Chairman Hensarling. Thank you. The Chair now recognizes himself for 5 minutes for questioning. Mr. McNabb, you run one of the largest mutual fund companies in America. I assume there are a lot of mom and pops who entrust their savings with you to send somebody to college, maybe start a small business, maybe plan for retirement. Recently, I had a study come across my desk by Douglas Holtz-Eakin, the former Director of the Congressional Budget Office, which estimated that designating asset managers as SIFIs--sorry, Mr. Atkins, I am not sure the ``sci-fi'' is going to catch on, but it was compelling--over the lifetime of their investment, their investment portfolio could be hurt by as much as 25 percent, $108,000 per investor. Have you seen this study? Have your people analyzed it? And if that is in the ballpark, knowing that you deal with a lot of hard-working Americans' savings, what is this SIFI designation going to mean to the individual trying to save for retirement or send a kid to college? Mr. McNabb. Thank you for the question, Mr. Chairman. You are right. We do serve a lot of mom and pops. We have 25 million investors, roughly, scattered around the country. Savings for retirement and for education would be the two primary reasons. I actually have a copy of that study; it just came across my desk yesterday. I am guessing the numbers are actually conservative in terms of the calculations because they did it as a one-time--they looked at a one-time investment and what would the consequences of bank-like capital be on the accrual of the account, if you will, and the estimate was that over a long period of time, the account value would be 75 percent of what it would have been were there no capital requirements. We have also looked at a couple of other analyses that are similar, where instead of looking at capital requirements, we looked at some of the proposed so-called SIFI taxes. In those cases, if you are an investor, for example, in our S&P 500 Fund, which is one of the more basic funds we offer, your fees would quadruple. And at that level, it would be pretty disastrous for many investors. Chairman Hensarling. Mr. Wallison, as I was listening to your testimony, I think you said to some extent that the decision-making formula for FSOC to designate a nonbank SIFI was completely arbitrary. You mentioned about the G-20 Financial Stability Board, their process that designated, I think, three U.S. insurers as global SIFIs. Wasn't it, I don't know, 10 or 12 days ago that we had Secretary Lew in this hearing room where I asked him, as head of FSOC, did Treasury consent or object to these designations? He refused to answer the question 3 different times. I suppose there is a possibility their representatives fell asleep during the proceedings and neither objected or consented. So that would seem to suggest that either the United States adopted whatever the criteria is of SSB, or they have their own, but yet they refuse to reveal it. I am not sure that anyone has been able to discern what this approach is. I noticed that yesterday, Treasury Under Secretary Mary Miller said that she was surprised that anyone would believe that FSOC is considering possibly designating the asset management industry as an SIFI. And she was quite adamant that FSOC did not follow the G-20's Financial Stability Board's designation of these three U.S. insurers. How credible is it to you that the FSB would have made these designations without the consent of Treasury and other U.S. participants? Mr. Wallison. It seems to me completely unreasonable to believe that the FSB would go ahead with a designation of U.S. firms without the agreement of the U.S. participants, particularly the Treasury Department and the Fed. Chairman Hensarling. What concerns do you have if the United States would continue to follow the FSB's lead? Mr. Wallison. I have a very serious concern about process here, because at least in the banking area, the Basel capital requirements are put into place by a group of regulators, and then they are put into place by the U.S. bank regulators here in the United States. I am afraid that some people are looking at the process of the FSB as similar to the bank capital process that is undertaken in Basel, and if that is so, they are expecting at the FSB that once they designate an institution as an SIFI, the FSOC here in the United States will simply take that designation and apply it in the United States. That is not, I think, what Congress intended when it set up the FSOC and expected some kind of analysis. And it is not getting that analysis anyway. Chairman Hensarling. The Chair needs to gavel himself down. The Chair now recognizes the ranking member, Ms. Waters, for 5 minutes. Ms. Waters. Thank you very much, Mr. Chairman. Mr. McNabb, I spent a considerable amount of time following this subprime meltdown that we had in this country, and I worked very hard to convince a lot of people, despite the fact I and others were criticized for it, to do this bailout because we felt that this country's economic future was at stake. And we felt that the recession could morph into a depression, and so we worked very hard to try and do what we thought was the best thing. In all of the work that we were doing, AIG, for example, emerged as a real problem, an insurance company. So my decision about whether or not I support FSOC being able to take a look at nonbank companies is based on some of what I learned during that awful period of time that we went through. Now, we find that AIG again is designated as an SIFI, and so I want to understand from you why you think FSOC is wrong in taking a look at something like AIG. It doesn't have to be specific, but I use that as an example. Mr. McNabb. Thank you, Ranking Member Waters. The AIG question actually, I think, highlights an important point. When you look at what happened at AIG, it was the activities at the firm. AIG had morphed into much more than an insurance company, and it was the activities that really led to their demise. The activities were extraordinary leverage and excessive risk-taking. And I would say both those kinds of activities have been present in almost every financial crisis going back 500 years. When we talk about the mutual fund industry, as an example, funds employ no leverage. And the other difference, of course, is that funds are acting as agents as opposed to proprietary traders and so forth, and that is a very big difference. And so the activities that drove AIG to the brink are certainly the kinds of activities that should be looked at. But it is not really based on the firm, it is really the leverage and the activities, much as my colleague Mr. Smithy here on the panel suggested regarding the regional banks. Ms. Waters. So you don't think that AIG, Prudential, as well as maybe GE Capital should be designated? Mr. McNabb. I am not expert enough on GE Capital or Prudential. Again, my take would be to look at the factors that make those firms either more risky or less risky. And it is not the firm's size or even the assets under-- Ms. Waters. It is about risk, Mr. McNabb. I want to move to Mr. Barr now. Mr. Barr, I have heard a lot about the incompetence of FSOC. They don't know what they are doing, they don't know how to regulate or determine risk of insurance companies, et cetera. Do you agree that the FSOC has both the expertise and the authority to appropriately assess nonbank financial institutions such as insurance companies? Do they have the authority and the expertise? Mr. Barr. I believe they do, Ranking Member Waters. I believe that the FSOC has developed a quite extensive staff and expertise across the financial sector. They could always do more. I think the process of building expertise in a new agency is a challenging one. I think they should do more to build up their staff and the staff of the independent Office of Financial Research as well. But they certainly have the authority, and they have plenty of people with experience. Ms. Waters. Mr. Wallison, you made quite a point of talking about the lack of competence and expertise at the FSOC. If they were competent, if they had the expertise, if they could be designed in a way that you would design them, do you think there should be an FSOC? Mr. Wallison. Yes, I always thought there should be an opportunity, as there was with the Presidential Council that used to meet and talk about common problems in the regulatory area. And, in fact, something like FSOC could get together and talk about whether they think that there are systemic issues developing in the economy. My problem with FSOC is that it has the power to make decisions to turn over certain institutions to the Fed for bank-like regulation without even knowing what bank-like regulation would be, for example, for an insurance company, and without actually showing us the basis for those decisions. If we think about those decisions, they have to do with the future. Will a firm's distress cause instability in the U.S. economy? Those are guesses about the future, and if they provide no data about what they think will happen, I don't think this is a credible decision. Chairman Hensarling. The time of the gentlelady has expired. The Chair now recognizes the gentleman from New Jersey, Mr. Garrett, the chairman of our Capital Markets Subcommittee, for 5 minutes. Mr. Garrett. Thanks, Mr. Chairman. Mr. Wallison, can you briefly say, in your view, does SIFI designation reinforce too-big-to-fail? Mr. Wallison. Yes, I think that is one of the problems with it, of course, and that is once you are said to be an institution whose failure might cause the instability in the United States economy, you are saying it is too-big-to-fail. Mr. Garrett. Right. You heard the testimony of Professor Barr. He seemed to be saying that all is well with FSOC, with their expertise and the like. Do you concur? Mr. Wallison. I don't know any of the experts they have, but if you look at the decision that they made in the Prudential case, they provided no data that would suggest that they are experts. And-- Mr. Garrett. That is a good point. So, Professor Barr, you just said a minute ago that they had the expertise, and you referred to the OFR. Have you read the OFR report that was--but for the fact that SEC put it up on their Web site would not have been disclosed? Have you looked at that? And is that what you base the fact that you think they have the expertise to do the job? Mr. Barr. I believe the question was asked about the expertise of the FSOC, which I think is strong. I think the OFR is a new organization and is still building. Mr. Garrett. You referred back to them and said--you referred back and said one of their bases of expertise is the OFR. So have you looked at the report? Mr. Barr. Yes, I have. Mr. Garrett. And do you know that virtually every one of the commentators on there have basically criticized it and said there is absolutely no empirical data in it? Did you find empirical data it in? Mr. Barr. The report was not something I would hang my hat on. Mr. Garrett. All right. So, you wouldn't hang your hat on it, but apparently FSOC hung their hat on it. So if that is-- Mr. Barr. I have no idea--sorry, sir, to interrupt--one way or another about that. Mr. Garrett. That is a good point. So then, how can you say that they are acting with empirical data if you are not able to say, and we are not able to say, and I think that is Mr. Wallison's and Mr. Atkins' points as well, that when we look at FSOC, we cannot figure out what are their facts, what is their analysis, and what are their standards? And if we can't figure those things out from FSOC, how can you sit there and say that they are operating with facts, analysis, and standards? Mr. Barr. I am not privy to the internal processes at all of what is going on at the FSOC, but my understanding is they have not acted in any way with respect to some designation of asset managers. So I have no way of knowing one way or the other the extent to which the OFR report may or may not play a role in that process. Mr. Garrett. And isn't that really the point? That not only are you not privy to it, Members of Congress are not privy to it. I guess no one actually is privy to it. Even commissioners from the various agencies where the chairmen are members of are not privy to it. And I think that is one of the simple things that we could do is to allow the American public to be privy to this information, to be privy to how they make the decisions, what the facts are, what the analysis is. Mr. Atkins, would you agree that this sort of information by FSOC, how they make this, what the standards are, should be open to the American public and the industry as well? Mr. Atkins. Absolutely, Congressman Garrett. Mr. Garrett. Why is that? Mr. Atkins. Because when you look at it--this goes back to the essence of bank regulation, I think, versus other sorts of regulation--it comes down to transparency. And bank regulators love, because they are focusing on safety and soundness, to lurk in the shadows and do their regulation not in the broad daylight like other regulators do. I think that is part of the problem here with the FSOC. Mr. Garrett. I have a bill out there, and basically it would subject FSOC to the Sunshine Act and the Federal Advisory Committee Act. I will just throw this out to the whole panel. Is there anybody on the panel who would say that there should not be more transparency with FSOC? Is there anybody on the panel who would say that they should not have to operate like just about every other agency in the Federal Government and have a little bit of sunshine? Does anybody disagree with more transparency at FSOC? Mr. Barr. I think, Mr. Garrett, there ought to be regularized processes and transparency. I am not sure that the Sunshine Act is always the best way of doing that. And if you are asking me about the other regulatory agencies, I think that the Sunshine Act often makes, in its particular formulations, it difficult to do their job in a transparent way and in a way that is considered. So I would be for more transparency and regularization, but maybe not quite with that particular mechanism as the tool to do it. Mr. Garrett. Okay. I appreciate that. And I guess the rest of the panel is, instead, open to more transparency. Let me ask this, then. Until we get to that point, whether it is as far as I would like to go and other Members would like to go, or, as Professor Barr finds, some intermediate, is there anyone who would disagree with this statement, that until we get more transparency, more openness, and understand what the facts, analysis, and standards are, and they should cease and desist what they are doing right now? Does anybody disagree that they should be on hold until we know this? Mr. Scalia. I certainly agree with that prescription for two reasons: first, so that there can be a better public understanding of what the law is that they are applying; and second, because they need to look more closely at what the consequences of their designation decisions are going to be. And until we have those things, I do think it is precipitous for them to continue designations. Mr. Garrett. I appreciate that. And I thank the chairman. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentlelady from New York, Mrs. Maloney, the ranking member of our Capital Markets Subcommittee, for 5 minutes. Mrs. Maloney. Thank you, Mr. Chairman, and Ranking Member Waters. Professor Barr, I am looking at the law right now, and there is an appeals process, and an open appeals process, in Title 1 of the bill. And it says, notice and opportunity for hearing and final determination. If I remember, we had a whole appeals process. If someone was designated, they could say, I disagree. There could be other hearings, another whole determination. And people say that the FSOC Board is not competent. It is composed of the head of the Treasury, the Federal Reserve, the OCC, the FDIC, the SEC, the CFTC, the CFPB, the FHFA, and the NCUA, and the independent insurance expert. So, it is the basic financial regulators. I would say we are in big trouble if our financial regulators, the head of these departments, are incompetent. That is just my statement. I think they are fully vetted and very competent. But, in any event, they can appeal the process, and even if they are designated over their objections, there is an appeal to the courts, where everything is publicly debated, and assessments are made before a court. Is that correct? Mr. Barr. That is correct. Mrs. Maloney. So I would argue there is an extensive appeal process as we see it. Now, there has been a lot of designation, or, rather, conversation, about AIG. And AIG was an insurance company, but what designated them as an SIFI was their financial entrepreneurship, shall we say. It was not the insurance area. The insurance area was well-run, was not a problem. It was the London office where they were in all types of risky products, which brought this country to a debt of $185 billion. So, that is what designated them. I have one question for the panel: Has any insurance company that is just totally insurance been preliminary designated or designated as an SIFI? It is my understanding that no insurance company that is a real insurance company--if you are experimenting in financial products, then they have been designated, but not one that is a pure insurance company. Has anyone been designated that is a pure insurance company? Mr. Scalia. Prudential was designated essentially exclusively on the basis of its insurance activities, which drew dissents from both members of FSOC who have expert in insurance. They spoke at length about how their colleagues on FSOC appeared to have no appreciation whatsoever for the industry. Mrs. Maloney. Then, why was that designated and other insurance companies were not? What was Prudential doing that was different in financial areas? I would like to ask Mr. Barr, since he is a professor and not involved in the industry. I respect the industry, but I want to hear from the professor and then from you. Mr. Barr. I don't know whether other insurance companies will or won't be designated in the future. My understanding is that the FSOC was concerned with the extent of the activity of Prudential that occurred both with respect to its investment activities and the relationship of various of its subcomponents. But I don't know whether or not the FSOC will be similarly concerned with other types of insurance firms in that regard. And I think that you are correct to point out with respect to AIG that AIG's activities obviously extended far beyond the regular activity of an insurance firm. There were also problems within AIG with respect to securities financing among the various affiliates within AIG that created additional risk. Mrs. Maloney. Let's go to Prudential. Was Prudential involved in any innovative entrepreneurship financing that was different from regular insurance? No? Mr. Barr. I have not examined with any detail for this hearing the balance-sheet and off-balance-sheet activities of Prudential. Mrs. Maloney. I would like to look at it and read the report and then get back with more questions. But I also have some other questions. I wanted to ask Mr. McNabb, in your testimony you noted that under the current law, the SEC now requires, I believe, at least 83 percent or 85 percent to be liquid in their portfolios. And in your experience, during the crisis, did this remain liquid or not? Mr. McNabb. In our experience, it remained fully liquid. Mrs. Maloney. Okay. Would anybody else like to comment? And also during the redemption period when people--there was a run really on mutual funds and everything else. During the redemption period, were they in any stress at all that you are aware of? Mr. McNabb. First of all, I would say there was not a run, with all due respect. Mrs. Maloney. Okay. Mr. McNabb. A run really refers-- Mrs. Maloney. Demand, shall we say, a demand. Mr. McNabb. Redemptions--monthly redemptions never totaled more than roughly 2 percent of fund assets on average; even in the most extreme cases it was single digits. And again-- Mrs. Maloney. So there wasn't a-- Mr. McNabb. There was plenty of liquidity in the equity markets. Mrs. Maloney. There was no crisis. Mr. Garrett [presiding]. The gentlelady's time has expired. Mrs. Maloney. Unfortunately. This is a fascinating panel. I want to thank all of you. Mr. Garrett. It is. I now yield to the gentleman from Alabama, Mr. Bachus, the chairman emeritus of the committee, for 5 minutes. Mr. Bachus. Thank you. The first point Mrs. Maloney has made is that AIG--it was their counterparty risk arising from the credit default swaps, which was nothing to do with your traditional insurance business. And any argument that insurance companies ought to be regulated because of AIG just simply fails on the facts. Insurance companies don't have the same problems with banks. Their obligations are long-term. They don't depend on short-term deposits and then lend long. So, it is just an absolute fallacy. Mr. Barr, I remember you sitting in the conference committee where about a third of Dodd-Frank was written, sort of orchestrating the different pieces with Chairman Dodd and Chairman Frank. So I think you are probably as close as anybody to being the author of it. It probably ought to be called Dodd- Frank-Barr. So, I am not surprised-- Mr. Barr. I doubt they would agree with that. Mr. Bachus. I am not surprised you are here defending it. I think Mr. McNabb makes an excellent point that I didn't know. I always learn something in these hearings that I didn't know, and that is that while the market was dropping 40, 50 percent, and people were liquidating their entire portfolios, the mutual funds only sold 6 percent of their stock. So they were really more of a stabilizing influence during the financial crisis. Thank goodness that some of the pension funds weren't unloading, and the mutual funds weren't unloading. I can't imagine what it would have been like otherwise. And their structure, their operation, their risk profile, comparing them to a bank is--it is apples and oranges. Is there anybody who disagrees with that, maybe other than Mr. Barr? Mr. Barr. Let me address an aspect of that if I could, Mr. Bachus. I think that the portion of the industry that did experience a run is the money market mutual fund part of the industry. Money market mutual funds experienced quite a destabilizing run in the wake of Lehman Brothers' failure, and it was stemmed only with a $3 trillion guarantee-- Mr. Bachus. It was less than 1 percent. Mr. Barr. --from the Treasury Department. Mr. Bachus. Again, their problems were sort of--when you have a panic, there was certainly maybe a perception, but there was absolutely no reality. And I am sure a lot of people went there because they were losing money and liquidity and cash from some of the pullback in lending. I understand what you are talking about. You are talking about maybe one money market fund, and it was less than 1 percent. You are talking about ``breaking the buck.'' Is that what you are referring to? Mr. Barr. I am talking about the breaking the buck and the Reserve Primary Fund, but also the run that occurred in the money market mutual fund system that was arrested-- Mr. Bachus. Was there really a run? Mr. Barr. --with a $3 trillion guaranteed-- Mr. Bachus. Let me call on-- Mr. Barr. --by the Federal Government. Mr. Bachus. Mr. Atkins, was there a run? Mr. Atkins. No. Well, I just heard of that. I think the empirical evidence and studies, like one by the firm Treasury Strategies, shows that was actually not the case. Mr. Bachus. I just think that there is a perception, just like this perception that AIG, their insurance business; they were fully reserved, their insurance business. Mr. Barr. I think we just have a-- Mr. Bachus. I think we have to start with the facts, and the facts are when you are talking about a mutual fund, you are talking about a bank regulator regulating something that is not a bank in any way. Mr. Barr. I was--I'm sorry. Mr. Bachus. Let me ask you this. I am a cosponsor of Mr. Luetkemeyer's bill, for two reasons. One, Mr. Scalia mentioned, that we don't know what their criteria is. It is not an open process. You don't know what to address because you don't know what--why they are deciding, which, to me, is against the whole democratic process, rule of law. You don't know what the law is--Mr. Garrett going over and not being able to even attend. Don't you see a problem with that, that it is not open and transparent and-- Mr. Barr. I think actually having congressional involvement in the FSOC would undermine the ability of the Congress to provide independent and effective oversight of the FSOC through forums such as this. Mr. Bachus. Okay. So if we understood what was going on, it would undermine our ability to have oversight? Mr. Barr. I do. Mr. Bachus. Okay. That makes a lot of sense. Thank you. Mr. Garrett. On that note, I yield now to the gentleman from California. Mr. Sherman. Mr. Atkins, I refuse to use ``sci-fi'' in lieu of SIFI because I don't want to besmirch my favorite genre of fiction. The gentlelady from New York points out that there is an appeals process, but, Mr. Scalia, I think you point out there are no standards to be applied. So if you can appeal to the Supreme Court and say, we don't meet the standard, but the standard is you are an SIFI because we say you are an SIFI, I think the Supreme Court would say, yes, you meet the standard. But, Mr. Scalia, I think you have it wrong when you say the FSOC is the most opaque government agency in making its decisions because you are clearly not familiar with the Financial Accounting Standards Board and its process. So at most, they are in second place. I think the FSOC got it wrong. By looking at everyone in this room, you all represent folks, with the exception of the professor, who might be designated SIFIs. The entities that were at the core of the meltdown were the credit rating agencies. They are not here because their balance sheets are in the millions, and your balance sheets are in the trillions. But the fact is that the decisions made by the credit rating agencies, paid for by the issuers, selected by the issuers, umpire selected by one of the teams, controls far more trillions of dollars than decisions made by the witnesses in this room. And the fact that the SEC hasn't even implemented the modest provisions of Dodd-Frank with regard to the selection of credit rating agencies makes me think I am going to be back in this room in 5 or 10 years talking about another meltdown. The gentleman from Alabama, I think, points out that insurance companies are different. I think the proof that we had better regulation in the States than we had in Washington is that AIG was obviously run at the top by drunken sailors. They crashed on the rocks all the ships that they were allowed to control. But even under that management, all of the ships, that is to say subsidiaries, that were subject to State insurance regulations survived and have even provided sufficient profits to resurrect the fleet. The problem, therefore, is not in the States, it is here in Washington, where we prohibit calling a credit default swap insurance, which is, of course, crazy. If I ran a fire insurance company and said, I am unregulated; if your house burns down, I won't give you a check, I will give you a U.S. bond; you can trade your house, your burnt-down house for a U.S. bond, that would be an end run around, say, fire insurance regulation, and we wouldn't allow it. But instead, we have this bizarre notion that if we insure your portfolio, that is insurance, but if you can trade your burned-down portfolio for U.S. bonds, that is not insurance. And so Congress allowed AIG and continues to allow these unregulated insurance policies on portfolios to be issued without any insurance regulation. Finally, I will point out that too-big-to-fail is too-big- to-exist. It shouldn't be just a matter that these entities are so large that we will give them special regulation, and then they will save 80 basis points on their cost of funds. Mr. McNabb, you have all my money. You may not know this. The only way you are an SIFI in the sense that you could take an action that could cost Americans trillions of dollars would be if the money you say you are holding for me isn't in your vault. I am responsible for the investment decisions. Putting aside all the things you do voluntarily, and all the things you do as part of industry, and looking only at the requirements imposed by government, what requirements are there so that I know that the value of the assets in your vault is equal to all the statements you have mailed out to everybody in the country? Mr. McNabb. First of all, thank you, sir, for being an investor. I am very grateful for that. Mr. Sherman. Thanks for the low fees. Mr. McNabb. We are endeavoring to keep them as low as possible. The structure of mutual funds is very different--this is the big difference between funds and a bank-like organization. Each fund is a separate entity and is separately managed, has a separate board of directors, and the assets are custodied separately. So actually, there is no Vanguard vault where your assets reside; they are held by a separate custodian. And funds cannot be commingled. So, let us use the S&P 500 Fund as an example. If Vanguard-- Mr. Sherman. You picked the one that has all my money. Mr. McNabb. If Vanguard went out of business tomorrow, then the fund's board would simply arrange another advisory agreement with another firm to manage these assets. Those assets would be separate and whole. Different funds also cannot commingle assets. So one fund being down can't borrow from another fund in order to ``make it whole.'' Each fund has to be treated as a separate entity. And again, this goes to the whole nature of the difference between funds and banks. We are acting as agents. You are an equity holder in a fund, and we are acting on your behalf, whereas a bank is a proprietary institution. Chairman Hensarling. The time of the gentleman has expired, but the Chair found the answer interesting. The Chair now recognizes the gentleman from Texas, Mr. Neugebauer, the chairman of our Housing and Insurance Subcommittee, for 5 minutes. Mr. Neugebauer. Thank you, Mr. Chairman. The identification of a nonbank systemically important firm is a fairly serious exercise. And I think it has a lot of implications for the competitiveness of some of those firms. It says to the world that this institution has systemic risk to the financial markets. It has been discussed that recently Prudential was found to be one of these SIFIs. And it was interesting, and I think it has been brought out in testimony, that several of the people who sit on FSOC, either in an advisory capacity or a voting capacity, didn't agree with that decision. In fact, John Huff said that FSOC's misguided overreliance on banking concepts is no more apparent than FSOC's basis for the designation of Prudential Financial. He went on to say that the basis for that designation was grounded in implausible, even absurd scenarios. Mr. Scalia, what were your views on FSOC's mythology and their final decision? Mr. Scalia. The Prudential decision is an unusually thinly reasoned and poorly substantiated decision for a government agency in several ways. As you note, the members of FSOC who had the expertise in insurance were very troubled by the analysis or lack thereof. Mr. Wallison talked about the coordinating function of FSOC. We have talked about the expertise of FSOC. Those can be valuable things, but if those members of FSOC who have the expertise in that specific industry are deeply troubled and ignored, that is going to yield a very poor government decision, which is exactly what happened there. So I don't think that FSOC--to the extent it has expertise--functioned properly in that case. Mr. Neugebauer. There has been a lot of discussion about what does that mean, and what does that mean to that company. What would you see some of the consequences that a firm might experience, and its customers, for being designated as an SIFI? Mr. Scalia. The consequence of SIFI designation that is, I think, most apparent is being subjected to different capital requirements. And we currently, under Dodd-Frank as written and as interpreted by the Fed, have every reason to believe that a designated company will be held to the capital requirements applied to a bank, which is remarkable, because I think there is unanimity that bank-based capital standards are really inappropriate for other kinds of financial institutions. I think what is transpiring is that FSOC is taking the position, ``We don't make the capital standards decision, the Fed does;'' and the Fed says, ``We don't make the designation decision, really, FSOC does.'' And so, you have designation with consequences that everybody recognizes are quite problematic, but the answer seems to be, that is okay because the left hand doesn't know what the right hand is doing, which is not ordinarily how the government ought to defend its actions, particularly when you have this body, FSOC, which is supposed to be coordinating and ensuring consistent intelligence in how regulatory matters are approached. Mr. Neugebauer. Thank you. Mr. Wallison, you described FSOC's designation of Prudential as perfunctory and data-free, I believe. In fact, you said that the only useful numbers in its designation were the page numbers. So should the FSOC's designation process be more rigorous or more transparent, or what would you think is a more appropriate process for FSOC to go through for these designations? Mr. Wallison. I think we have to recognize from the beginning that what they are doing is very serious for the firms involved, and serious, actually, for the economy as a whole. And so we would expect that when they make a designation, they would actually be able to show us, especially show Congress, what it was they based the designation on. I also said in my remarks that the FSOC used the word ``significant'' 47 times in a 12-page paper, which was their entire justification for designating Prudential as an SIFI. This is not adequate. And one of the reasons I said that they seemed to be an emperor without any clothes is that I went back and looked at what they did for the other previous designees, AIG and for GE Capital. Same thing. No specifics. So I have the idea--and I would like to see it disproved-- that they have no way of demonstrating the things that they are required to demonstrate, which is that a firm's financial difficulties would lead to instability in the U.S. economy. And if they have no way of demonstrating that, they shouldn't be allowed to make these decisions arbitrarily. Mr. Neugebauer. Thank you. My time has expired. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Texas, Mr. Hinojosa, for 5 minutes. Mr. Hinojosa. Thank you, Mr. Chairman. Before the financial crisis, the financial regulators focused on different segments of the market, which caused a fragmented approach to oversight. There was no organization tasked with taking an eagle's-eye view of the entire financial system to watch for impending trouble. The Financial Stability Oversight Council was created to do just that. Had there been a council in place, it is possible they might have identified the systemic risk infecting the economy and could have diverted the crisis. The Financial Stability Oversight Council is the cornerstone of the Dodd-Frank Act. Let us not forget the cost of the disjointed approach to financial regulation prior to that crisis. The Government Accountability Office estimates that the 2008 financial crisis cost the U.S. economy more than $22 trillion. Whereas today's hearing supposedly seeks to examine the dangers of the FSOC's designation process, the real danger to the American economy arises when our regulators are asleep at the switch. As the Financial Stability Oversight Council proceeds with identifying systemically important institutions, Congress should seek to improve its effectiveness, not hinder it. Some criticize that the FSOC's designation process has been opaque. My first question is to Mr. Barr. Do you have any suggestions for increasing transparency in this process? Mr. Barr. I think that you are correct that the FSOC designation process is essential to policing the boundaries of systemically important financial institutions and ensuring that there is a safe system in place. There are undoubtedly ways that the process, which is a quite new process, can be made more standardized and more transparent over time. I think that the FSOC has done a good job, given the new nature of the proceedings, to get started. There may be ways of providing more information in advance to firms that are more specific about the types of showings that will be required. As it currently exists, a lot of that information is provided to firms during the process of the--the provisional designation, and it may be possible over time to move that data and information up further in the process. Mr. Hinojosa. Mr. Barr, is the FSOC appropriately balancing the need for transparency against the need to protect sensitive market and supervisory information? Mr. Barr. I think the balance they have struck so far is a reasonable one. It is not the only one you could strike, but I think that it is a reasonable one. And I think that firms have a great deal of time to participate in the process, the ability to provide essential information to the FSOC that is necessary for a designation. Again, I think over time it may be that the FSOC, after reviewing its experience over the initial period, may move the process one way or another along the lines of providing greater transparency, but I think the path they have chosen thus far is a reasonable one, given the newness of the process. Mr. Hinojosa. Lastly, Mr. Barr, do you agree that the FSOC has both the expertise and the authority to appropriately assess the nonbanking financial institutions, such as insurance companies? Mr. Barr. I do. It certainly has the expertise and the authority to act in these areas based on not only its own staff, but the staff of its member agencies. As with any organization, I think that it is going to continue to want to build the expertise, the in-house capacity, the data analytics, the data collection that is necessary to be effective, but I think they are doing a good job so far. Mr. Hinojosa. I yield back, Mr. Chairman. Chairman Hensarling. The Chair now recognizes the gentlelady from West Virginia, Mrs. Capito, the chairwoman of our Financial Institutions Subcommittee, for 5 minutes. Mrs. Capito. Thank you, Mr. Chairman. And I apologize for having to step out of the hearing during your statement. I just have a couple of questions. One question I wanted to ask was alluded to in my opening statement, and that is the $50 billion threshold for automatic SIFI designation for banks. As you know, there has been a lot of discussion as to whether that is an arbitrary deadline-- arbitrary designation threshold. And I guess I would like to ask each of you to answer the question. There have been a lot of folks who have said that we need a more nuanced approach where we are looking more at the risk profiles and deeper into each institution's business models as opposed to just using a specific $50 billion as a threshold. So I am just going to go down the line and ask each of you if you have an opinion on that, and I will start with Mr. Atkins. Mr. Atkins. Thank you. I think that to have an arbitrary type of threshold like that does not make a lot of sense. But I think, to what is being discussed here, if you look at what even President Obama's designee on the FSOC said about the whole process with respect to Prudential, he criticized and said it was not reasonable, not supportable, no data was run. So even the President's own insurance designee had that to say about the flow of process. Mrs. Capito. Okay. Mr. McNabb? Mr. McNabb. Again, the asset level makes no sense to me either, neither for banks nor for investment companies. I would say any focus that the FSOC should have should be on activities as opposed to institutions or asset levels. Mrs. Capito. Is there a feeling that the threshold is too low? It should go to $100 billion, or just an arbitrary threshold is-- Mr. McNabb. I think just arbitrary. Mrs. Capito. Okay. Mr. Scalia? Mr. Scalia. My principal concern with the threshold is that there is no evidence that there is anything beyond that threshold that is being considered and resulting in designation. It appears to be the case, for example, when you read the Prudential decision that once you hit the threshold, the agency will simply engage in a series of speculative hypotheses and designate you. Mr. Wallison has pointed out that the sort of undefined word ``significant'' appears 47 times. There is actually a word that appears almost twice as much. In this 12-page decision, the word ``could'' is used 87 times. The words ``would'' or ``will,'' which constitute findings, scarcely appear at all. So there is this very speculative approach once you hit that threshold. Mrs. Capito. Mr. Barr? Mr. Barr. I think the key question is, the key point is to make sure that the approach that is taken to firms is a graduated approach and a nuanced approach that is consistent with not just their size, but their risk profiles. So I don't think there is an on/off switch. If you are a $50 billion plain vanilla bank, you need a much lighter touch form of oversight than if you are a complicated institution. And I think having nuance and graduated approaches that are tailored to the risks that firms do or don't pose is the essential thing. Mrs. Capito. Right. But that doesn't exist presently. It is just a threshold and on type of approach, correct? Mr. Barr. In the current structure, it is not just an on/ off switch; there is a graduated approach to regulation. I think that the--the point would be making sure that it is graduated enough and nuanced enough. It is not an on/off switch now. There are higher, more intrusive forms of regulation, of supervision, of capital requirements, of stress testing, of resolution planning that are more stringent at much higher levels of asset size-- Mrs. Capito. Right. Mr. Barr. --than they are for a smaller firm. I think that is good and appropriate. And the question is, I think, can you just make that even more of a graduated nuanced approach? I think there is room to do that. Mrs. Capito. Okay. Mr. Smithy? Mr. Smithy. Thank you. So as we stated in our written testimony, we do believe an arbitrary asset size threshold is inappropriate, as we stated. Our business models are very straightforward. We are simple. We take deposits and make loans. We are not engaged in the range of activities that would lead to a situation where it threatens the U.S. financial system, and so we do believe the arbitrary nature of that threshold is inappropriate. We think a more activity-based approach would give regulators the flexibility to tailor regulation to the risks inherent in each firm. Mrs. Capito. Thank you. Mr. Wallison? Mr. Wallison. If regulators on the FSOC are able to designate nonbank financial institutions as SIFIs, then they ought to be able to do exactly the same thing for banks, and that is not what they are told to do. They have been told to choose an arbitrary number. I might mention that the International Association of Insurance Supervisors made up a methodology for how you judge the riskiness of an insurance company, and they provided that to the FSB, which apparently was never used. But, in any event, what it said is that size is about 5 percent of the question. There are other, much more important questions that don't have anything to do with size. Mrs. Capito. Thank you. I think my time just expired. Excuse me. Chairman Hensarling. The time of the gentlelady has expired. The Chair now recognizes the gentleman from Massachusetts, Mr. Lynch, for 5 minutes. Mr. Lynch. Thank you, Mr. Chairman. Mr. Chairman, I just have a couple of procedural things. I have here a letter from Damon Silvers, he is the policy director and special counsel for the AFL-CIO; a letter from the Americans for Financial Reform; and a white paper by Douglas J. Elliott, a fellow at the Brookings Institution, assisted by William Becker. The title of it is, ``Systemic Risk and the Asset Management Industry.'' I would like to have those entered into the record. Chairman Hensarling. Without objection, it is so ordered. Mr. Lynch. This piece by Douglas Elliott is particularly good. I don't necessarily agree with all of it, but I think it serves the purposes of what we are talking about here today. I think it is an easy question. I want to thank the witnesses. It has been a very helpful discussion. The easy case, I think, is the case of a garden-variety mutual fund. I think there are a lot of aspects that you have all pointed out that acquit the idea of SIFI designation for mutual funds. The revenue stream is fairly stable, they get their money from fees, very low use of leverage, much smaller balance sheets than what we are generally concerned about, very little debt. The share price is published and recalculated each day, and shareholders are free to redeem their shares every day. And, best of all, mutual funds have really allowed average families, average working families, to assemble wealth. It has been an enormous benefit to a lot of American families, and it would be--as Mr. Elliott points out in his paper--a shame if we were to regulate these funds in such a way that destroyed that opportunity for a lot of hard-working families. The tougher question really, and I think, Mr. Barr, you have tried to address this on a couple of occasions, is the question of hedge funds that operate more like banks and that, quite differently, have no limits on leverage. They are not subject to any of the regulations that registered funds are subject to. They can impose very onerous redemption restrictions on investors, and they are exempt from many of the oversight and reporting requirements we have on other funds. In the other case is money market funds that operate in the repo market, and you started to talk about that earlier with the gentleman from Alabama. And those are the tougher questions, because those are examples of the problems that we are trying to get at, but they are ``asset managers.'' So, Mr. Barr, how would you get at the risks that these-- look, some hedge funds don't operate high leverage, but a lot of them do, and there is no limit on the investment strategies that they adopt. They are sort of out there, and we don't know a heck of a lot about them until something goes wrong. How would you address the situation with these hedge funds and with the money market funds that operate in the repo market that we saw runs on previously? Mr. Barr. With respect to money market mutual funds, I am in favor of the SEC using its existing authority to remove the regulatory provisions that permit funds to carry a stable net asset value unless they have capital that deals with the run risk from such a fund. I think that having that option is the preferred policy approach. With respect to hedge funds, the Dodd-Frank Act gave the SEC the authority to collect information with respect to hedge funds, and obviously the FSOC and the OFR also have such authority. And I think having that information on such funds is the primary way of understanding what is going on in that marketplace. If a hedge fund was sufficiently systemically important, the FSOC also has the ability to designate such a firm and to subject such a firm to supervision and capital requirements. In the absence of such a finding, most hedge funds, even highly leveraged ones, can operate and disappear without anyone worrying about it. Mr. Lynch. Yes. What about the money market operating in the repo market where we have had runs before? Mr. Barr. I think that repo market reform directly is probably the most efficient way of getting at that. I think there is much work that can still be done to reduce risk in the triparty market in particular, and the Fed has existing authority to do that. Mr. Lynch. Thank you. I yield back the balance of my time. Chairman Hensarling. The Chair now recognizes the gentleman from North Carolina, Mr. McHenry, chairman of our Oversight and Investigations Subcommittee, for 5 minutes. Mr. McHenry. Thank you, Mr. Chairman. Mr. Barr, you said the OFR's asset management report is not something you would hang your hat on--I think that is what you said a little bit earlier. And I think that is interesting, because the FSOC directed the Office of Financial Research to issue the report, to undertake this. So, this was a directive of the FSOC. And it is interesting because OFR has functioned, as you well know, as basically, a vassal of the Treasury Department, or contained within it and the reporting structure. So, do you think that the research would be better done by independent agencies? Mr. Barr. The OFR can and does have independent authority within the Treasury Department, akin to the kind of independence that the OCC has within the Treasury Department. And I think that it, from at least all intents and purposes, was working with that independence in mind. Do I also think that it would be good for other agencies to look at the sector? Yes, I do. I think there is expertise in other member agencies and the FSOC staff at the SEC and otherwise, and that is healthy for the system. Mr. McHenry. To that end, at the SEC, they put up this report for notice and comment. Do you think that was positive? Mr. Barr. I do. I think that was a very healthy move by the SEC, as they have done with the money market mutual fund report and other efforts. Mr. McHenry. Sure. But the notice-and-comment part of this is not a requirement of the FSOC; is that correct? Mr. Barr. There is a formal process with respect to designation. The issuance of a report-- Mr. McHenry. But they have to follow the Administrative Procedures Act. Mr. Barr. The issuance of a report by any government agency does not usually require, just for the issuance of the report, a notice-and-comment process. I think it is a healthy and useful thing for agencies to do, to put out draft reports and to get comments on it. Mr. McHenry. Do you think FSOC should be under the Administrative Procedures Act? Mr. Barr. It is governed by the Administrative Procedures Act with respect to its work. Mr. McHenry. Should the OFR? Mr. Barr. It is already under the Administrative Procedures Act, but, again, normally the issuance of a report is not the kind of regulatory step that would require a formal process. I think it is healthy and good for regulators for all government agencies when they are issuing a report do so. Mr. McHenry. I appreciate it. Thanks. Mr. McNabb, when the Financial Stability Board has already decided that asset managers are systemically important, so it seems like the FSOC's designation, because we just assume they are going to go forward with this designation of asset managers, it is sort of mindlessly following the FSB on this. So what I don't understand is asset managers being not-- they are not leveraged, so how do higher capital standards actually--how does that actually make sense? Higher capital standards would have absolutely no impact on an asset manager's ability to run its funds. Mr. McHenry. So to actually put bank-like regulations, capital requirements is completely unfitting with what asset managers do. Is that right? Mr. McNabb. That is correct, sir. Mr. McHenry. Okay. Mr. Wallison, you wrote that the designation process will result in one of two things, and let me quote you: ``Either we will have large, successful, government-backed firms that swallow up smaller competitors or we will have large, unprofitable, heavily-regulated giants that are gradually driven to failure by their more nimble and less-regulated competitors. In the former case, small firms are the victims and in the latter case taxpayers will pay for the bailouts.'' So, designation must be the proverbial ill wind that blows no good. Would you concur? Mr. Wallison. It looks that way to me because I was talking there about the question of too-big-to-fail, and many people have said, including the former chairman of this committee, that, well, why is everyone opposing becoming an SIFI if, in fact, it is a benefit if you are too-big-to-fail? And the answer is that nobody really knows what the consequences will be. There may be benefits in the financing that you get, but there may be detriments in the cost of the regulation you have to suffer. And the point I was trying to make in the paragraph that you read is either way, as a public policy matter, it is a bad idea, because either we have firms that are benefited and outcompete those that are not designated as SIFIs or, in the other way, they are hurt by excessive regulation, and as a result they fail and the taxpayers have to come in and bail them out. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Georgia, Mr. Scott, for 5 minutes. Mr. Scott. Thank you very much, Mr. Chairman. First, Mr. William McNabb, let me welcome you to the committee. You are a graduate of the Wharton School of Finance at the University of Pennsylvania, the absolute greatest school of finance and business in the world. Of course, I am graduated from there, and I got my MBA there as well. And we both spent a lot of tough times in Lippincott Library and Dietrich Hall. Welcome. Mr. McNabb. Thank you. Mr. Scott. Let me just ask you this: How do you rank the basic general risk in the market now? Mr. McNabb. Could you be a little bit more specific? Equity markets or the bond markets or-- Mr. Scott. As we look at this, in either market, what do you see as our greatest challenges as far as risk in the market today, whether it is the bond market--maybe the bond market. I will wait for you to assume which of the markets has the greatest risk. But I think it would be helpful to this committee if you could tell us what you see as the top three threats, risks to the market. Mr. McNabb. The largest threat I see to the markets is one that actually hasn't been talked about in any of the discussions, and it is the cyber risk that exists out there. And it is more than just a financial institution risk, it is really a risk to all businesses. When you look at what has happened in the last 18 months where nation-states are getting way more involved in this, that trumps almost anything I have seen in my career. Mr. Scott. Good. While I have the time, I also want to go to you, Mr. Smithy. You referenced Governor Tarullo's speech on prudential regulation in your comments. Why do you think that he seems willing to reconsider some of the existing asset thresholds from regulatory supervision? Mr. Smithy. Thank you. Based on my read of his speech, I think he thinks an arbitrary asset threshold is imprecise in its nature, and he is in favor of more tailored solutions reflecting the differences among firms, and he is in favor of regulation that is commensurate with the risk of each of these firms. And in his comments, I think he believes that an asset- only threshold only subjects firms that do not engage in risky activities to the added burden of regulation. Mr. Scott. Now, correct me if I am wrong, but is it not true that regional banks hold one-fourth of the Nation's total bank deposits? Is that an accurate statement? Mr. Smithy. The 18 banks in the Regional Bank Coalition do hold one-fourth of the Nation's deposits, yes. Mr. Scott. And let me ask you what your greatest concerns are, given the status of the regional banks, as opposed to our much larger banks in relationship to this asset threshold supervision. Mr. Smithy. The cost burden is both direct and indirect. For Regions Bank, which I can speak to specifically, the cost of compliance and regulation has more than doubled over the last 5 years. It is the largest single increasing cost in our operating structure. There are many elements to it that seem unnecessary, given the activities that we are engaged in. A point I would give you is we now have more folks in compliance activities than we do in commercial lending, than commercial lenders at our bank. So, again, I think that speaks to the direct costs of compliance. There are also indirect costs, which are management and board's time and attention focusing on compliance matters and away from serving the needs of our communities and our customers. Mr. Scott. And if I am also clear, regional banks, unlike other size banks, probably do more of asset building and lending to small businesses as a percentage of what you do. Is that correct? Mr. Smithy. That is correct. We serve a lot of smaller and medium-sized markets, much like the community banks. The larger banks, the more internationally active banks tend to focus on larger organizations. So we are an important source of credit for small and medium-sized firms in smaller and medium-sized markets. Mr. Scott. So this asset threshold regulatory supervision issue that you are talking about would have a negative impact on your ability to assist small businesses? It looks like my time is up on that, and the chairman has done it twice. So I take the message. Mr. Luetkemeyer [presiding]. Thank you. With that, the gentleman from California, Mr. Royce, the chairman of the House Foreign Affairs Committee, is recognized for 5 minutes. Mr. Royce. Thank you, Mr. Chairman. I have a question for Mr. Wallison and Mr. McNabb, and I have a question about the now infamous OFR asset management report, a report that even Michael Masters' Better Markets shop called inexplicably and indefensibly poor quality, and today a report that Professor Barr said he would not hang his hat on. And so, as has been referenced, the SEC opened the OFR's report for comment, which gave the public the opportunity to directly point out the flaws and poor analysis in the report. I think this simple but important step by the SEC has raised some serious questions about whether the OFR should be required to follow the same notice-and-comment procedures as financial regulatory agencies. As it relates to reports, is there any good public policy reason to exempt the OFR from providing public notice and comment as the American people expect from other regulators in a system that we are trying to run here that is transparent and open? And is there any good public policy reason to exempt the OFR from consulting with and incorporating changes proposed by prudential regulators, proposed by the safety and soundness regulators? And would you support congressional action to mandate this openness and inclusion of outside expertise? Mr. Wallison? Mr. Wallison. Yes, I think it makes all kinds of sense for these organizations like OFR to make their reports public. The public is paying for those reports, and the other agencies are relying on those reports. It is essential that people know what is in the reports that institutions, agencies are relying on, and the quality of those reports. If the SEC had not put out this report for comment, no one would have realized what a poor quality piece of work it was. The likelihood is the FSOC would have relied on it, might have even stated they were relying on it, and no one would have known that it provided no substantial guidance. So I certainly agree that, with your legislation, that is what should be required. Mr. Royce. Thank you, Mr. Wallison. Mr. McNabb? Mr. McNabb. I would agree with Mr. Wallison. When you look at the consequences of a report like this and the amount of activity that has been created since its release, I think it goes without saying that it should be available to the public and should be available for comment. I think the SEC comment period offered an opportunity for many people who really understand these issues pretty deeply to point out some of the data inaccuracies and the flaws in the report. Mr. Royce. The other aspect of my question was, in terms of the functional regulators, what about the concept of having the OFR, currently exempted from consulting with, what about a mandate for a consultation there where you allow an incorporation of the changes of those who have the responsibility to look at such issues as prudential regulation and so forth? Mr. McNabb. That would make sense to me in that it would lead to a better outcome, a better, more accurate report. Mr. Royce. Thank you. And I was going to ask Mr. Atkins, this issue was raised previously, but not to you directly. So when we are talking about SIFI designation, or as you have termed it ``sci-fi'' designation, and we look at that designation of asset managers, what we are really talking about is something here that lends to the destruction of wealth because of the costs involved. Because of the regulatory burden, the compliance costs that come with it, it is a destruction of wealth, but it is not Wall Street's wealth here. If you think it through, it is wealth held by average Americans, those saving for retirement, those saving for a downpayment, those saving for college tuition. They are going to have a lower return on their investment because of the higher costs. And it is not really justified by a risk in the market, given that the asset managers themselves are controlling or are handling accounts by individuals. Can you explain more clearly why designating asset managers as SIFIs would harm average investors? Do you want to walk through that argument? Mr. Atkins. Thanks for that question. Like you are saying, being designated as an SIFI is not just joining a club or some exclusive club. There are consequences to it, and that is the imposition potentially of a bank capital type of regulatory structure. And like we were saying with asset managers, it is ultimately the investors who bear the burden because, as Mr. McNabb was saying, it is investors' capital, it is 100 percent capital in most cases in mutual funds, it is either on them or on the asset manager. And so it is all inapposite. Mr. Royce. Thank you, Mr. Atkins. Thank you. Mr. Luetkemeyer. Thank you. With that, we will go to Mr. Meeks for 5 minutes, the gentleman from New York. Mr. Meeks. Thank you, Mr. Chairman. Let me just say this first because sometimes I think we forget how we got here in the first place. We created FSOC because it was quite evident that we needed an interagency process to better understand the very complex multisector and multimarket nature of systemically important financial institutions and companies, and to adopt a stronger microprudential approach to financial supervision. And the Financial Stability Board was created to address the lack of coordination of these issues at the global level, as these very large institutions and companies act on a global scale, with global interconnectedness and risk exposures. Furthermore, FSB was meant to deal with harmonization of financial regulations across the global financial markets, and I have often talked about how vital harmonization of rules to ensuring that American banks and companies can compete on a level playing field. This is vital to our economic interests and job creation here in America. And I know that sometimes I have raised concerns also about heightened supervision of insurance companies by the Federal Reserve and the risk of applying banking standards to an industry that operates a completely different business model. But that is not a valid reason to undermine the FSOC designation process, and designation is separate and different from supervision and rulemaking. So my question goes first to Mr. Wallison. Do you think it is wrong for domestic authorities to come together on an international level and cooperate with one another as the FSB and G-20 are demonstrating currently? Mr. Wallison. I don't think it is wrong at all. I think those kinds of consultations should occur all the time, it is very important. It is important here in this country and it is important internationally. The only question is whether these international bodies should take positions that have an effect on our domestic economy, and I am afraid that the positions that they are talking about will have very adverse effects on our economy. Mr. Meeks. Then, would you not say that FSB and the G-20 are playing significant and important roles in terms of seeking the global cooperation and harmonization on financial markets and international banking rules? Mr. Wallison. That isn't my understanding of what the G-20 told the FSB to do. It wasn't just harmonization. They told them to develop reforms to the international system to avoid the next financial crisis. And the FSB has taken that baton and run with it to attempt to designate individual companies that ought to be regulated specially in order to achieve that goal. That isn't the only way to achieve that particular goal. It is the regulators' way of achieving that goal, and that is to get hold of companies and tighten the regulations on them. That isn't necessarily the way that you would ordinarily do it if you were asked to attempt to prevent the next financial crisis. That is, however, how the FSB interpreted the G-20's instructions. Mr. Meeks. Mr. Barr, let me ask you the same two questions. How would you respond? Mr. Barr. I think the role of the G-20 and the Financial Stability Board are absolutely critical in not only harmonizing, but also raising standards internationally, and that is helping to make the U.S. financial system and the global financial system safer. I think that there are probably initiatives that the FSB could take to make its own process more transparent and more regularized that would be helpful. And I should just point out, as I did in my testimony, that the actions that are taken by the G-20 and the FSB are not binding on the United States. The United States makes independent judgments about how to and whether to adopt or adapt international rules, international standards, international designations in the domestic context. And you have seen already lots of examples where the United States has chosen to take a somewhat different course from the international standard-setting bodies, and you see other countries around the world doing that, too, the U.K., Switzerland, and the like. So there is flexibility to approach the domestic regulatory questions independently and in light of our own domestic judgments about risk. Mr. Meeks. I would ask another question, but I only have 15 seconds, and the chairman has a quick hand with that hammer, so I guess I will just yield back the balance of my time. Mr. Luetkemeyer. I thank the gentleman. I don't think it is that quick. We had a little leeway here with a couple of them. But, thank you. With that, the chairman grants himself 5 minutes for questions. My first comment is to Mr. Atkins. I understand your concern with ``sci-fi'' and SIFI, Mr. Atkins. I come from ``Missouree'' or ``Missouruh,'' nobody knows for sure, so I understand your concern. But thank you all for being here today. It is an interesting discussion. As Mr. Smithy indicated, I have a bill that tries to address some of this, as far as the banking institutions anyway. And with that, Mr. Smithy, I have a couple of questions for you. I have here in front of me a chart that actually lists one bank, JPMorgan, and then the next 14, the largest 14 regional banks in size, they only make up as much as what JPMorgan is. And I think this gives you an idea of the relationship and size with regards to the different entities we are talking about. It puts things in perspective. When you are looking at derivative contracts, the top 4 bank holding companies have 76 percent trading assets, 84 percent of the total market, credit default exposure 94 percent, whenever these regional banks have less than 1 or 2 percent of all that. So I think we are looking not only at size, but you are also looking at the size of the risk, the risky activities they are engaged in, and it would seem to me that it would flow that FSOC would take a rather positive view of this. However, that being said, it seems that they have a different idea. And I would just like your comment with regards to that, Mr. Smithy, with regards to how you view, after seeing these statistics and your position on this, where we are at with FSOC. Mr. Smithy. Sir, obviously we do not go through that process currently. We are deemed an SIFI based on asset size alone, which is at the heart of the issue for us. As you point out in that chart, we are traditional lenders. Our sizes in aggregate only rank as large as the largest U.S. bank. But I think more than that, it is the range of activities within which we are engaged. We don't have the complex legal structures that are difficult to resolve in a crisis, we do not engage in securities market making, we are not in trading activities. We are simply traditional lenders. We are simply asking for due process similar to what the nonbanks would go through in determining whether or not the range of activities within which we are engaged would deem us systemic, and that is what we would expect, that the FSOC would put us through a similar process as they do the nonbanks. Mr. Luetkemeyer. Mr. Wallison, I have been in a meeting where you were engaged in discussing this subject as well, and you seem to have a similar opinion to what Mr. Smithy does of institutions. You base it on risk, connectivity, not just asset size. Mr. Wallison. Yes, especially for banks, as I said before. If the FSOC is really able to designate nonbanks as SIFIs, then certainly for banks, they could do the same thing. And so we shouldn't actually set any kind of arbitrary size for these institutions but rather look at their activities and determine whether they could cause an instability in the financial markets if they ran into some sort of financial difficulty. Mr. Luetkemeyer. It is kind of interesting--the gentlelady from New York made a comment a while ago about all the experts on FSOC, yet whenever FSOC made its SIFI designation to Prudential, it disregarded all the insurance experts on the committee. I wonder why? Interesting. It would seem to me that maybe they are trying to justify their existence by doing something rather than allowing the actual existence of facts and data to drive their decisions versus trying to justify their existence. Mr. Scalia, you had made some interesting comments during the course of your commentary. I jotted down in my notes that you made some comments with regards to how most of the decisions of FSOC couldn't pass legal muster from the standpoint that they don't justify what they are doing, there is no transparency, and if you ask them how they could come up with this decision, there isn't a logical or reasoned way to do it that could actually, if this was taken to court, pass muster. Would you agree with that comment of mine or my assessment of your comments? Mr. Scalia. That is accurate. Actually, it was the ranking member who said that what we should expect from an SIFI designation is a strong analytical basis, and I think we all agree, and that is what is so sorely absent. The Prudential decision, for example, it is meant to be a risk assessment, right? We are doing a risk assessment. Well, a risk assessment considers the probability of the event and the magnitude, and neither of those things is determined or even estimated in the decisions that have been issued so far by FSOC. Mr. Luetkemeyer. Okay. Thank you. With that, I will turn next to the gentleman from Texas, Mr. Green. Mr. Green. Thank you, Mr. Chairman. I thank the ranking member as well, and I thank the witnesses for appearing. If you are of the opinion that there should not be an FSOC, would you kindly extend a hand so that I may identify you. I think the record should reflect that Mr. William--is that correct? Mr. Wallison. Wallison. Mr. Green. Wallison, excuse me, my vision is poor, and the distance is quite a ways from me. And who is the other person? Would you speak your name again? Mr. Atkins. Paul Atkins. Mr. Green. Mr. Atkins. The two of you are of the opinion there should be no FSOC at all? Mr. Atkins. As currently constituted, right. Mr. Green. Thank you. And let's go into some other areas now. Do you agree that Prudential was a $1 trillion company in terms of assets, above a trillion? Or is? Mr. Wallison. If you are asking me, I don't know the exact number, but I will accept a trillion. Mr. Green. It wouldn't surprise you to know that it was a trillion? Mr. Wallison. No. Mr. Green. Okay. And let's go to Mr. Barr. Mr. Barr, this company, Prudential, had the right to appeal. Is this correct? Mr. Barr. Yes. Mr. Green. And this is in a Federal court. Is this correct? Mr. Barr. Yes. Mr. Green. And would you just briefly outline the process that allows a Prudential or any company similarly situated to appeal? Mr. Barr. There is a process that is set out by the statute and by the FSOC internal rules and guidance that describes three stages of review--a first stage review, a second stage review, and a third stage review--that ultimately could lead to a provisional determination and a final determination. At the conclusion of a final determination, the affected company has a right to seek review in Federal court of that final determination to assess whether that determination meets the legal requirements for a designation. Mr. Green. Is it fair to say that Prudential, a $1 trillion corporation, has some pretty good lawyers? Is that a fair guess? Mr. Barr. I actually don't know their legal counsel at all. Mr. Green. Would you just guess that a $1 trillion corporation has some pretty good lawyers? Mr. Barr. I have seen terrific lawyering and bad lawyering at all levels of our economy. Mr. Green. I will speak for you. With a trillion dollars, my suspicion is that they can afford some pretty good lawyers. Mr. Barr. I would agree with that statement. Mr. Green. All right, they can afford pretty good lawyers. Is it true that they did not appeal? Mr. Barr. It is true. Mr. Green. Is it true that they had the right to appeal? Mr. Barr. Yes. Mr. Green. If they did not appeal, is it also correct that perhaps they concluded that there was good reason to stay within the system and to abide by the rules and regulations imposed upon it? Mr. Barr. I am not privy to their internal deliberations, and often firms have a complex range of reasons for taking or not taking legal action. So I would rather not opine on what they were thinking. Mr. Green. Is it true that some of your colleagues have opined and concluded that they were not treated fairly? Mr. Barr. I'm sorry, I don't-- Mr. Green. Some of your colleagues on the panel-- Mr. Barr. Oh. Mr. Green. --have concluded that they have not been treated fairly? Mr. Barr. I should maybe let them speak for themselves about that. I understood them to be critical of the FSOC process. Mr. Green. The process. If the process is in some way flawed, would not appeal be a means by which--or if the decision is one that you believe to be inappropriate or unfair, would appeal be an appropriate remedy for you? Mr. Barr. I think that a Federal district court is, generally speaking, a pretty tough and good place to go seek redress if legal procedures have not been followed. My experience is that the Federal courts are quite attentive to failures by regulatory agencies to follow the rules that are set out for them. Mr. Green. And in that process would a Prudential or any entity have an opportunity to have some degree of discovery? Mr. Barr. I haven't looked carefully at what materials were already provided and what would be protected material and not protected material in that context. They would certainly be able to gather and present information about whether the procedures were followed and whether the standards set forth in the statute were met in their case. Mr. Green. Let me just close with this comment. Assuming that Prudential disagreed, and a lot has been said about Prudential, there was the ability and the right to appeal. A $1 trillion corporation which had the ability to hire good lawyers, could have appealed, and did not do so. Mr. Barr. Correct. Mr. Green. I trust the judicial system in this country. I don't always agree with it. And I think that in and of itself gives FSOC some credibility, as well as OFR, because the appeal process is readily available to any company that believes it has a grievance as a result of a decision made by FSOC. Thank you, Mr. Chairman. Mr. Luetkemeyer. With that, we will turn next to the gentleman from New Mexico, Mr. Pearce. Mr. Pearce. Thank you, Mr. Chairman. And I thank each one of you for your presentations here today. Mr. Barr, Mr. Scalia was very precise in his descriptions of the Prudential decision. He says it presupposes severe financial distress with no consideration at all to whether there is any indication that such distress is likely to occur, then relies on a broad unsubstantiated assertion to conclude that material financial distress could pose a threat. Do you have an opinion about that same case that would differ from the observations by Mr. Scalia? Because to me, sitting up here, I find those accusations to be intensely interesting in the process. And so, do you find that not so concerning as he does? Mr. Barr. I have not reviewed in detail the Prudential case to judge item by item what my views of the substantive merits are. Mr. Pearce. Okay, that is fair. Mr. Barr. I would say that the process that the FSOC followed with respect to that decision was an engaging and searching process, at least as it appeared from the outside. I am just judging based on the extensive review process that they engage in, the provisional determination, and then final determination. Mr. Pearce. In your testimony, you indicate that Dodd-Frank was created to create a system of supervision which ensured that if an institution poses risk to the financial system, it would be regulated, supervised, blah, blah, blah. So you lay out the requirements. Are Fannie and Freddie supervised under Dodd-Frank? Mr. Barr. Fannie and Freddie are currently supervised by the FHFA under the authority granted through HERA. Mr. Pearce. Do they come under FSOC? Mr. Barr. I think that one could make a case that they are subject to the same rules as anyone else and that the FSOC should review them. Mr. Pearce. I am taking from your answer that, no, they don't, they are not currently included in the scope of work of the FSOC. Mr. Barr. No, I wasn't saying that, sir. I was saying that I think that under the provisions of the Dodd-Frank Act, the Dodd-Frank Act could provide authorization for FSOC review of those entities. I have no idea whether or not they are separately under FSOC review. Obviously, the FHFA is their current regulator and sits on the FSOC. Mr. Pearce. If I could take the time back, there are many people who think they don't come under the, that they are limited from discussion of those two entities, and definitely they do have the potential, they are big enough size to where they might ought to be considered. Mr. Scalia, you had mentioned in one of your comments that the access to FSOC data is closely guarded. And so my question is, what are the risks if--is that data fairly important in a competitive sense, fairly important to other firms, the data that is being collected? Mr. Scalia. I'm sorry, the question is whether designation is important? Mr. Pearce. No, no, no, whether the access to the data, that data that is collected, is that fairly important data in a competitive sense? Mr. Scalia. Some of the data can be competitive. However, much of the data that FSOC compiles and presumably relies upon in its designation decisions is about markets generally. And there has been discussion about the appeal process, for example. Ordinarily in, say, an appeal process where a record is created before the agency, the parties who are going to be affected get the chance to see that and to provide their views so that they are heard by the decision-maker. But that kind of opportunities is not being provided. Mr. Pearce. But there is not any data that would be critical if it is released? That is my question then. Mr. Scalia. There can be some sensitive data about the individual companies being considered. Of course, there is no reason those companies themselves can't see the data about themselves. But if there were public disclosure of FSOC proceedings, you would want care about that, but there is market economic data that is not sensitive and should be available. Mr. Pearce. Okay. I just wondered if you had a Snowden-type release, somebody goes in and takes everything and releases everything, that is fairly more plausible today than we might have thought it was a couple of years ago. So, it is just this accumulation of financial data I always worry about. Mr. Barr, should the FSOC consider the pension funds? The estimates are that they are trillions overdrawn. They pull money in, distribute money out, so they are kind of a bank in the system. Should the FSOC be looking at pensions? Mr. Barr. I think the FSOC should look at risks throughout the financial system. Whether or not that is in furtherance of some regulatory goal or just to understand risks in the system I think is not the issue, but having the ability of the FSOC to look broadly across the financial sector and to see where risks are arising, I think is important. Mr. Pearce. Thank you. I yield back, Mr. Chairman. Mr. Ross [presiding]. Thank you. The gentleman's time has expired. The gentleman from Delaware, Mr. Carney, is recognized for 5 minutes. Mr. Carney. Thank you, Mr. Chairman. And thank you to all the panelists today. It has been a very interesting discussion. I would like to return to the discussion we had led by the gentleman from Alabama, Mr. Bachus, around whether mutual funds present a systemic risk. During that conversation, Mr. McNabb described the way mutual funds were structured, at least Vanguard was structured and kind of walled off, if you will. And it seemed like there was considerable disagreement among the panelists about whether mutual funds do pose those kinds of systemic risks. And, Mr. Barr, I was wondering what your reaction was to Mr. McNabb's description? I got the impression that you believe that mutual funds oppose those systemic risks. Could you explain to us why you think that is the case? Mr. Barr. I think that asset managers and banks have fundamentally different business models and fundamentally different balance sheets and fundamentally different risks that they face. Mr. Carney. So you agree with me? Mr. Barr. The particular issue that I was addressing was risk to the system from a particular form of mutual fund, money market mutual funds that are able to maintain and promise, in essence, a stable net asset value. And that could-- Mr. Carney. If I may interrupt, because we only have a limited amount of time, so the SEC is dealing with that issue in terms of the floating NAV and they have a whole series of regulations. And I don't know, there has been some discussion and some disagreement on the committee and in the industry about that, but that is moving in a separate way. So do you believe, then, that because those money market funds pose systemic risk that the other mutual funds should be swept in as SIFIs as well or the larger entities that have those mutual funds? Mr. Barr. I think that the presence of risks in the system may or may not be appropriately dealt with by designation. There are lots of other regulatory tools. In the case of money market mutual funds, I think having the ability to either impose capital requirements on stable funds or to float the NAV is an appropriate response that is aside from designation. And similarly, in the asset management field as a whole, there are operational risks that if they are of sufficient concern can be addressed in existing frameworks with or without designation. So I don't think that everything, the risks in the systems hinge on designation or not designation. They are about appropriately tailoring a regulatory response to the risk that you see. Mr. Carney. Fair enough. I would like to move on to the bank designations of SIFI. There are Members on both sides of the aisle here who have been looking at how to differentiate those designations beyond the $50 billion threshold, if you will. In fact, Governor Tarullo, I think last week at a speech at the Chicago Fed, said that he believed that we should take another look at that and maybe firms under $100 billion shouldn't be subject to designation as an SIFI. Mr. Smithy, I assume you would agree with that? There is legislation here many of my colleagues have put forward to differentiate among banks differently than just a $50 billion or a $100 billion threshold. Do you have any thoughts on that? Mr. Smithy. So, again, we would agree that an arbitrary asset-only threshold would not be appropriate. Simply raising it to $100 billion, though, I don't think solves the issue. We would favor a multifaceted approach, which is activity-based, to determine who is indeed an SIFI based on the range of practices within the organization and the risks they pose. Mr. Carney. So the kinds of activities like, for instance, what would it be? There is a bill I think Mr. Luetkemeyer is the lead sponsor on, I am looking at my colleague Ms. Sewell, I believe she is a cosponsor of that bill, that would differentiate based on activities, how risky they might be. Is that what you are talking about? Mr. Smithy. Absolutely. We would expect they would review whether or not you are engaged in significant international activities, trading activities, whether or not your institution is substitutable, and the complexity of your overall organizational structure. Mr. Carney. I have 29 seconds left. Does anybody else have any thoughts on Mr. Tarullo's comment about the $100 billion threshold? Mr. Atkins? Mr. Atkins. Yes, I think that I agree with the panelists here that all of these thresholds are very arbitrary. And so, I think they are actually counterproductive. Mr. Carney. So it is not really the thresholds, it is the activity, in your view? Mr. Atkins. Right. Mr. Carney. Everybody seems to be shaking their head. Mr. Barr, would you agree with that? I think you did. Mr. Barr. I think that within the existing framework you can tailor and graduate the extent of regulatory compliance. I don't think it needs a legislative fix, but I agree that much more nuance could be in the system than is there now. Mr. Carney. Thank you very much, each and every one of you. Mr. Ross. Thank you. The Chair now recognizes himself for 5 minutes. Mr. Wallison, it was interesting to read your opening testimony, and in it you state that FSOC uses the word ``significant'' 47 times in their 12-page statement designating Prudential as an SIFI. And being a litigator for 25 years, I know that when we have ambiguities we try to look at the plain meaning of either the statute or the word to determine what was intended. Based on your extensive legal background, do you have any definition for the word ``significant'' that is being used? Mr. Wallison. No, sir, I have no definition for that. Mr. Ross. I guess my question is, how can these organizations that are under review for SIFIs anticipate whether they are going to be designated as such when we really can't get our hands around what ``significant'' means? As you point out, it is very arbitrary. Mr. Wallison. It is arbitrary, it is not a standard, it is not something that anyone can use to adjust, no firm can use to adjust its activities. There is really no information that is conveyed by that term. Mr. Ross. So not only in the assessment of the organization, but then after the assessment or designation, if you will, other organizations--once Prudential is designated, then how can another insurance company, if you will, act accordingly to make sure that they are not so designated? There is no road map, in other words? Mr. Wallison. There is no road map. I mentioned before that the IAIS, which is an international insurance group, had set up a methodology for making this kind of determination, and they actually put percentage weights on things. That was a very valid way to proceed. That doesn't necessarily mean I agree with it, but it is a valid way to proceed. That was ignored by the FSB. Mr. Ross. So organizations, a company today has no real road map to avoid being designated as an SIFI until it is too late? Mr. Wallison. That is right. Mr. Ross. When we look at the McCarran-Ferguson Act, which I think has been very good for this country for consumers' purposes and regulating insurance based on a State-by-State assessment, don't you foresee that there is going to be some serious conflicts there once an insurance company may be designated as an SIFI in trying to maintain certain capital requirements, either as risk-based capital versus GAAP accounting? How does that help the consumer? Mr. Wallison. This is pretty radical, what we are talking about here, and this is something that has never happened before, and that is that an entire industry will be bifurcated between those that are regulated at the Federal level by the Fed differently. Mr. Ross. Do they keep a separate set of books? Mr. Wallison. In many ways, of course. But differently by the Fed, with different capital requirements from the other similar although smaller institutions that are regulated at the State level. This will be a very difficult thing for-- Mr. Ross. And a very expensive thing. Mr. Wallison. And very expensive. Mr. Ross. Mr. McNabb, just briefly, with regard to the Basel-type approach of capital requirements and applying it to asset managers, aren't we really just not only saying to asset managers what capital they can or cannot reserve, most likely they must reserve, but aren't we also just basically telling them what they can and cannot invest in? Mr. McNabb. I think that is one of the potential consequences of prudential regulation of asset managers, is that we as asset managers could be put in a position of conflict where we are told for ``safety and soundness reasons'' to either invest in something or not invest in something when it is not in the best interests of the shareholders or in the prospectus that we have delivered to the shareholders. Mr. Ross. And don't you foresee that leading to a new cause of action? If your fiduciary responsibility is to your clients, and now we have this regulatory arm telling you what you can and cannot do, and basically who is your obligation to? I guess what I foresee here is, is that once asset managers are brought under this tent, I foresee in some of the creative ways a new cause of action being created that would lead to litigation, and then greatly increase that $108,000 assessment that now is going to be placed over the life of the investment, according to Mr. Eakin. Mr. McNabb. It is a very large concern. Mr. Ross. One last thing, I understand that there is a genuine relationship between risk and return, and they are directly related. The higher the risk, the greater the return. But aren't we, what we are trying to do now is to eliminate any and all risk and as a result lower the return? If we are going to lower the return, how do we anticipate for retirement purposes and, more importantly, addressed for student loans, which is right now the largest liability that this country has? Mr. McNabb. Mr. Chairman, I think you make a good point in that there is a lot of confusion between what I would call idiosyncratic risk, which is the individual risk of a single fund or a single entity, versus systemic risk, and I think to other panelists' points earlier, there has not been a clear definition of what systemic really means versus what we all know is idiosyncratic today. Mr. Ross. Thank you. I see my time has expired. I now recognize the young lady from Alabama, Ms. Sewell, for 5 minutes. Ms. Sewell. Thank you, Mr. Chairman. I want to thank all of our panelists for a very interesting discussion today. I wanted to address my questions to Mr. Smithy. Can you talk to me a little bit about the difference between--in your testimony you talked about a business model of regional banks versus your larger peers, and really making the case that regional banks should be treated differently. Could you elaborate a little bit on that model? Mr. Smithy. Absolutely. So as I stated, we are traditional lenders. We focus primarily on smaller to medium-sized markets, whereas some of our larger bank competitors are in the larger metro markets, would focus on larger companies. We are focusing on small businesses and medium-sized businesses, traditional lending products, and traditional deposit products as well. We are not engaged in complex trading activities, we don't make markets and securities, and we don't have meaningful interconnections with other financial firms, which I think is a key differentiator between us and the larger banks. Ms. Sewell. What about the supervision that you currently have? If you are not designated as systemic, don't you feel that the current supervision model that you are operating under would prevent regional banks from being sort of swept into the same systemic risks? Mr. Smithy. Assuming we would go through an evaluative process such as what is presented in the Luetkemeyer bill, even if we were deemed not systemic, the regulators still have a suite of processes that they put us through, annual stress test, required capital plans, as well as on-site reviews, along with the Basel 3 capital and liquidity rules, that we think would be sufficient for regulation of regional banks in the range of practices in which we are engaged. Ms. Sewell. How do you think the regulators would deal with a regional bank failure in such that compared to sort of what Dodd-Frank would make you do if you were a systemic institution? Mr. Smithy. As you know, the regional banks have recently submitted, at the end of last year, a resolution plan which we think will lay out or will suggest that regional banks are resolvable under the traditional bankruptcy framework, either in whole or in part. I think clearly there is a range of sizes we are talking about here within the coalition. We think that all of the banks' business models within the coalition are fairly homogenous, and so therefore again can be either resolvable in whole in a normal purchase situation or in part and absorbed into competitors across their footprints. Ms. Sewell. Great. Mr. McNabb, I wanted to ask you how you thought the asset managers being designated as SIFIs would affect investors? We have talked a lot about your business model and how it affects asset managers, but what about investors? Mr. McNabb. I think, again, we don't know the exact remedies being designated, but if you look at what has been suggested, costs for investors for those in designated firms or designated funds would go up. And so, again, our estimate was a quadrupling of fees in a couple of our most basic funds. That is going to vary, obviously, firm to firm. I think you are also going to see a situation, though, where the competitive landscape is altered. So if you were to look at the FSB's designation process or at least what they suggested, they named 14 U.S. funds, which comprise roughly 1 percent of the world's market, as being systemically important. And if you are an investor you might ask yourselves, why would I invest in one of those funds when there is a like product where I am not going to be designated and I am not going to have to pay these additional fees and possible resolution costs and so forth? Ms. Sewell. I know that mutual funds are currently subject to comprehensive regulations that serve both to protect the shareholders as well as to reduce the potential for systemic risks. For example, funds have strict limits on your leverage and diversification requirements. Can you discuss how these regulations distinguish mutual funds from other financial institutions and the impact their potential would have on posed systemic risks. Mr. McNabb. Yes. So I think you hit on actually some of the most important points. Transparency is very important and funds are valued every day, so an investor knows what his or her value of the portfolio is. There is little to no leverage in all funds. There are extremely clear reporting requirements and transparency to the end investor. So when you add that up, you have a very heavily regulated product that is really very low risk from a systemic standpoint, not to say that there aren't idiosyncratic risks within each individual fund. Chairman Hensarling. The time of the gentlelady has expired. The Chair now recognizes the gentleman from Kentucky, Mr. Barr, for 5 minutes. Mr. Barr of Kentucky. Thank you, Mr. Chairman. Mr. Scalia, in your written testimony, and in your verbal testimony, you made the point that FSOC's regulations and interpretive guidance have done little to give potentially regulated parties adequate notice of the legal standards that will be applied to them and whether, in view of those standards, they are likely to be designated systemically important, and what changes that they could make in their structure operations so that they are not so designated. Short of abolishing FSOC, what policy recommendations would you offer to Congress to either more clearly define FSOC's standards that they use or what changes could we make to FSOC to provide regulated parties more notice, more concrete notice? Mr. Scalia. I think that deliberations such as this are a valuable step forward. One hopes that FSOC's members are paying attention to the discussion today and will take account of those things. The Dodd-Frank Act itself requires FSOC to consider other risk-related factors beyond those that are enumerated in the statute, and one of those factors plainly is the risk to the company and its customers and shareholders of designation. FSOC hasn't thought about that yet. So I think that much of what would be helpful is in the statute. I did want to briefly talk about the Prudential decision, and there were questions asked earlier of Mr. Barr regarding Prudential's decision not to appeal. There are, as actually Professor Barr I think quite fairly said, a number of different reasons that a company would decide not to take the government to court. That is a big step. But the question shouldn't merely be, well, what opportunity do you have to go to court when the government has made a serious mistake and violated your rights? The mere fact that the government has made a serious mistake and violated your rights is troubling enough. Even when you decide not to seek government recourse, we have this body, as well as the courts, to oversee what agencies are doing, and I think that is an important dynamic regardless of the decision of an individual company not to take the government to court. Mr. Barr of Kentucky. As an administrative law practitioner, what would be helpful in terms of additional direction from Congress in terms of how FSOC operates? Mr. Scalia. I think that the statute as written should be one that FSOC could administer to give much greater respect to participating companies' rights than it gives currently. But that said, I think a significant improvement would be if FSOC considered companies on a broader sort of industry-wide type basis rather than singling them out one by one. Now, I don't think that the statute has to be read to require singling them out one by one, but that is what it is doing, and I think one change to be considered is that. There is proposed legislation to increase transparency. That could be valuable. Perhaps most important, when you look, for example, at both insurance companies and mutual funds, is the problem of FSOC designation resulting in the imposition of bank-based capital standards, which is what Fed Members have indicated necessarily follows. There is legislation pending that would make it clear that is not required, and I think that would be an important change, too. Mr. Barr of Kentucky. I think the fact that former Congressman Frank, for whom the Act was named, said that it was not his intent that asset managers be designated as SIFIs says a lot about the designation process. And as a segue, just a final question to Mr. McNabb. Obviously it is your position that the application of bank-like regulation of mutual funds would not limit systemic risk, but would obviously disrupt capital markets and increase costs for your investors. What is your amplified opinion about what this would do not only to your investors, but to the capital markets and capital formation and the ability of retail investors to provide liquidity to our commercial system? Mr. McNabb. That is a very hard question to completely speculate on, but higher costs, if the cost of capital goes up dramatically--and the mutual funds are roughly 25 percent of the U.S. equity market, so it is a very important source of funding--if that cost of capital goes up dramatically, then by definition, you are going to have slower growth. And if we have slower growth, it is going to create less jobs and so forth. Mr. Barr of Kentucky. Thank you. I yield back. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Illinois, Mr. Foster, for 5 minutes. Mr. Foster. Thank you, Mr. Chairman. And thank you to all the witnesses. It seems to me that the SIFI designation process in principle has the opportunity to take risk out of our system by negotiating the business model for a firm that is under consideration for SIFI designation. So my question, I guess to Mr. Scalia, if you could discuss the actual process that the analytical staff at the FSOC play in the review and designation process, and specifically with respect to the reports that the staff at each agency produces for the voting member and how important the meetings are, and is there a to and fro between the analytical staff from each Council member and the companies under review? Mr. Scalia. I will do my best to describe that process, although part of the challenge is that it is opaque. But the essential process is that a company is told that it is under consideration after a point, is required to submit information, and may submit additional information, and then has opportunities to meet with the staff to make presentations and answer their questions. However, what is not known is what additional information and reports the staff and the members may have access to. Those aren't shared with the company that is under consideration until at earliest when there is what is called a proposed designation decision. Now, once there is a proposed designation decision, a written explanation of some sort is provided to the company which can take an appeal which has been described. But here is what is really unusual. The FSOC members make the proposed designation, and then internally at FSOC, who do you appeal to? The same people. I am not familiar with another legal process like that where a group of people makes a decision against you, and you get to appeal to them to try to persuade them to change their minds. That is not really an appeal. I think at that stage, too, there is a real question of the extent to which the company has access to the data in the reports that FSOC is relying upon. Ordinarily, that would be provided. Mr. Foster. So you wouldn't really characterize it as being a negotiation where the business model could be adjusted. And what I am fishing for is whether potentially some future AIG, they could have said, look, if you stay away from securities lending, stay away from credit default swaps, you are going to maintain a lower level of SIFI designation. But that sort of negotiation, to your knowledge, doesn't really happen here? Mr. Scalia. I am not aware that it has occurred. And this relates in part to the question about clear standards that has been discussed earlier. If there were clear standards, then companies would be able to look at how they are currently doing business and saying, oh, if I change these couple of things, then I wouldn't be supervised by the Fed and have all the added costs for my customers and shareholders. But that opportunity is not present now. Mr. Foster. Now, I sense a lot of enthusiasm from the panel for gradations in oversight and SIFI designation, that having it be an approximately binary thing makes it uncomfortable in a number of ways. And I accept Professor Barr's point that there, in fact, are different levels of oversight depending on the exact nature of the company. But my question is, is there a problem with--there is a bailout mechanism for assessing industry fees to other SIFIs if one of them has to be bailed out, and so is this adequately transparent? I think, when was it, Long-Term Capital had to be bailed out, there was an assessment after the fact of I think 14 different financial services companies chosen somehow, which I think was probably not a very transparent operation, but I was wondering is there a view that there is a lack of transparency for a future assessment when that mechanism is called into play? Anyone? Mr. Barr. Let me just take a first stab. The FDIC is authorized under the statute, required under the statute to provide for the assessment schedule, and so there is a process under which people can comment, provide notice and comment, provide input into that. And so the basic rules of the game I think are able to be reasonably established in advance. The caveat to that is, of course, you don't know in advance whether a particular firm will be subject to resolution, whether that firm will be resolved with the assets that are available to the firm or the FDIC would be required to borrow, and if it borrowed, what that amount would be. Mr. Atkins. I think that is the problem of Section 210(o) of Dodd-Frank where it gives the FDIC huge discretion in this, in the future. And so folks, if they go down the line to designate asset managers, you will have real investors, if they have to pony up capital, then subsidizing the too-big-to-fail banks or whichever institutions fail. Mr. Foster. Which is one of the reasons that companies are kicking and screaming to not be designated because it makes an unknown potential burden on them. Mr. Atkins. And investors are kicking and screaming. Mr. Foster. Right, right. Whereas, a multitiered designation might avoid some of that. Mr. Atkins. And, in fact, one of the problems is, I think, the FSOC has flouted Congress, because Congress in Title I of Dodd-Frank told the FSOC to come up with parameters for this designation process. FSOC basically regurgitated the statute in its rule. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from North Carolina, Mr. Pittenger, for 5 minutes. Mr. Pittenger. Thank you, Mr. Chairman. And I thank you gentlemen for being here today. You have discussed, I know, the heightened prudential standards that we have on insurance companies, but what do you think will happen 5 or 10 years down the road? Give me your perspective of applying these bank-like risk capital requirements to insurance companies. Could we start with Mr. Wallison? Mr. Wallison. One of the problems here, of course, is that we don't have any idea what kinds of standards are going to be imposed eventually by the Fed. The Fed will do the imposing and they have not indicated yet, first of all, whether they are actually bound to do that. They say they are, but we don't know what they mean by that. And then, secondly, after a period of 5 or 10 years, what we might find, and this would be the most troubling thing, is that the ones that are subject to these bank-like capital standards are failing as a result of the fact that they are subject to standards that don't fit with the way an insurance company works. And so, we then have these very large financial institutions that are being driven out of business by their regulatory process. That should be unacceptable. And one of the reasons we should stop this SIFI process is to make sure that the FSOC itself knows what the Fed is going to do when it gets hold of an insurance company or an asset manager, for example. Mr. Pittenger. Mr. Scalia, would you like to comment on that? Mr. Scalia. Just to add to that, that is a central question, and it is one FSOC itself has never asked, much less answered during the designation process, what will result once we designate this company as a consequence of the new regulatory requirements. They haven't been determined, but the Fed has indicated they will be bank standards. The concerns I think are a couplefold. One is the competitive burden, which Mr. Wallison has talked about. It is so extraordinary to take as broad an industry as, say, insurance or mutual funds and pick three or four or five companies in this enormous industry and only treat them to a different regulatory set of requirements. I have not seen that done elsewhere. I believe there is also risk that bank-based standards will just inaccurately reflect the real risk on the books of an insurance company or mutual fund, overstating that risk sometimes, potentially understating sometimes, not providing accurate read back to investors and regulators the way that standards designed for insurance companies already do. Mr. Pittenger. Thank you. We have a diverse economy that I think we all agree is better served by a very diverse financial set of institutions. Are you concerned with the shrinking number of financial institutions? I know we have lost, I think, 1,700 banks in the last couple of years. Do you think that our policies are driving this trend? What would you do to mitigate that? Do you think it makes sense to regulate large internationally active money centers the same way that you are going to regulate smaller banks? Mr. Smithy from Regions? Mr. Smithy. Thank you. So, no, as we have stated, we think it is inappropriate to have the same regulatory framework and the same standards for banks of all sizes, and in fact just establishing an asset-only threshold does not get at the heart of the inherent risk of the banks. We are more in favor of having regulation that is tailored to the specific risks of the banks. So we would not think that is appropriate. Mr. Pittenger. Mr. Atkins? Mr. Atkins. Yes. I think part of the problem that we have with respect to the banks in particular is the huge power of bank examiners and the bank regulators in a very arbitrary and capricious way to deal with banks in their regulatory realm. So I think that is what a lot of us--I was a Commissioner at the Securities and Exchange Commission where things tend to be more transparent, or hopefully so, than as compared to the banking side--I think that is what we are concerned about with respect to this potential designation process. Mr. Pittenger. Mr. Wallison? Mr. Wallison. In my prepared testimony, Congressman, I have a chart which shows that the capital markets and securities business has far outcompeted the banks in financing business. And one of the reasons they are doing that is that the banks are heavily regulated and very expensively regulated so that, as we just heard, more people are involved in the business of compliance than are actually making loans. That is a very troublesome thing and one of the reasons why the banks cannot provide the kind of financing that is much more efficiently provided by the capital markets. Mr. Pittenger. It is troubling when the only jobs you create are compliance officers. Thank you. I yield back my time. Chairman Hensarling. The Chair now recognizes the gentleman from Illinois, Mr. Hultgren, for 5 minutes. Mr. Hultgren. Thank you, Mr. Chairman, and I am banking on the concept that the last shall be first one day. First, I want to address this to Professor Barr. Earlier, I know you said to Mr. Bachus that you think congressional oversight of FSOC would jeopardize its ``independence'' and therefore-- Mr. Barr. Could I just correct that? Mr. Hultgren. First of all, I disagree with that concept. I wondered if you would extend that rationale to other financial regulators. Should we stop all oversight of the Fed, the SEC, the OCC? Why should FSOC be beyond accountability to my constituents? Mr. Barr. Oh, I completely agree that it should be subject to full and complete congressional oversight. My response to Mr. Bachus was to his suggestion about whether a Member of Congress should participate in FSOC meetings. And my comment was that participation by Members of Congress in FSOC meetings would undermine Congress' independence in exercising exactly the kind of oversight that you are doing today and that I think is absolutely critical to a functioning democracy. So I am 100 percent in favor of the oversight you are exercising on the FSOC and on the other financial regulatory agencies. Mr. Hultgren. I appreciate you clearing that up. So you do support accountability and transparency and oversight there. Let me get on to some other things because I have some other questions I want to ask here quickly. I know throughout the hearing today we have discussed FSOC's SIFI designation authority, which lets the FSOC impose a costly regulatory regime upon certain financial institutions. Unfortunately, I see that this largely unchecked authority will end up hurting Main Street instead of protecting it because it imposes unnecessary regulatory costs upon institutions that really pose no systemic risk to our financial system. I want to ask about the structure of the FSOC itself and if it requires regulators to rule on topics in which they really have no expertise. One of the reasons that Congress delegates the task of regulation to independent regulatory agencies is that we expect the agencies to use their expertise and experience to tailor regulations that are effective and appropriate to meet specific needs without being unduly burdensome. I wonder, is the FSOC structure consistent with this expectation and does the FSOC structure give appropriate deference to experience and expertise? Maybe I will just start with Mr. Wallison, if you have a thought on that? Mr. Wallison. I think that the Prudential case shows precisely the question you are asking is a problem. The two members of the FSOC who were insurance specialists and experts and are not employees of the Treasury Department dissented from the decision in the Prudential case, but it was voted overwhelmingly to designate Prudential. And who voted for that? It was bank regulators and it was regulators of other kinds of financial institutions, none of whom knew anything about what regulation of an insurance company would entail. In addition, they dissented because they thought that the standards that were imposed for the designation were also wrong. And, again, nobody paid any attention to them. So if we are going to have regulators, we want them to be specialists, we want them to understand the industries they are regulating fully, and here we have a set of regulators who can't possibly understand all of the nuances of the individual industries that come before them. Mr. Hultgren. I want to try and ask one last question in my minute left. As everyone knows, last September the Office of Financial Research released a study on the risks associated with the asset management industry. This study achieved instant notoriety here in Washington as it was criticized by almost everyone. Better Markets, which is not normally thought of as a bastion of deregulatory zeal, pointed out the inexplicably and indefensibly poor quality of the work presented in the report. In particular, most observers believed it largely ignored the extensive regulation of mutual funds that exist already and focused on dozens of hypotheticals about remote risks that are extremely unlikely ever to happen. My question is, what happens if the FSOC implements the logic of this flawed study and designates certain asset managers as SIFIs? Mr. McNabb, I know that this hearing has focused on how asset managers help everyday Americans. The problem is that people look at a company like BlackRock, which has around $4 trillion assets under management, and don't think that it provides a Main Street service. I wonder if you could explain why it does? Mr. McNabb. Far be it from me to talk about one of our largest competitors, but I will attempt to do the best I can. Mr. Hultgren. Sorry about that. Mr. McNabb. BlackRock manages nearly $2 trillion in mutual funds of that $4 trillion, and those mutual funds, much like ours or Fidelity's or T. Rowe Price's or any of the other big firms that you are familiar with, serve Main Street. Collectively, the mutual fund industry serves 95 million investors, roughly one out of every two households. BlackRock also manages very large amounts of pension funds, which benefit everyday workers. Mr. Hultgren. My time is pretty much up. And you would say other companies are in that similar situation of providing that service to Main Street? Mr. McNabb. Totally. Mr. Hultgren. With that, I yield back, Mr. Chairman. Thank you. Chairman Hensarling. The time of the gentleman has expired. There are no other Members present in the queue, so I would like to thank our witnesses for their testimony today. The Chair notes that some Members may have additional questions for this panel, which they may wish to submit in writing. Without objection, the hearing record will remain open for 5 legislative days for Members to submit written questions to these witnesses and to place their responses in the record. Also, without objection, Members will have 5 legislative days to submit extraneous materials to the Chair for inclusion in the record. This hearing stands adjourned. [Whereupon, at 1:08 p.m., the hearing was adjourned.] A P P E N D I X May 20, 2014 [GRAPHIC] [TIFF OMITTED]