262 pages of 11,000 page conference report – 4 minutes
In the waning days of the 106th Congress and the Clinton administration, Congress met in a lame-duck session to complete work on a variety of appropriations bills that were not passed prior to the 2000 election. There were other, unmet pet priorities of some lawmakers that were under consideration as well. One of those pet priorities was a 262-page deregulatory bill, the Commodity Futures Modernization Act (H.R. 5660). Tucked into a bloated 11,000 page conference report for the Consolidated Appropriations Act of 2001 (H.R. 4577) as a rider, with little consideration and no time for review, this bill would be viewed only eight years later as part of the failure of our political system abetting a financial storm that brought the world to its knees. While the final language of the Commodity Futures Modernization Act was available approximately 24 hours before consideration began, the conference report that included the bill was introduced only four minutes before final consideration commenced.
The saga of the Commodity Futures Modernization Act begins in 1998. At the time, the economy was booming, stocks soared, and new instruments of trading were found to make more money while evading the oversight of regulatory bodies. Two of those growing instruments were financial derivatives and credit-default swaps. As these new financial instruments emerged a debate began over whether or not to regulate them.
The chairman of the Commodity Futures Trade Commission (CFTC) Brooksley Born issued a first call for her regulatory commission to have power to oversee financial derivatives. While previous legislative attempts had been made earlier, Born’s efforts were the most direct and threatening to the financial industry. During an April 1998 meeting of the President’s Working Group on Financial Markets, Federal Reserve chairman Alan Greenspan, Clinton Treasury Secretary Robert Rubin (and later Secretary Larry Summers), and Securities and Exchange Commission (SEC) chairman Arthur Levitt opposed Born’s efforts and attempted to derail her.
Soon afterwards, Born released a “concept” paper with ideas of what regulation of derivatives and swaps could look like under the CFTC’s oversight authority. The response to Born’s paper was swift. The financial industry and government officials responded fiercely in opposition to Born’s ideas. Greenspan, Summers, and Senate committee chairmen all criticized her and her proposals.
In the midst of this debate Long Term Capital Management (LTCM), a major hedge fund employing some of the top economists, collapsed. LTCM was highly over-leveraged and held a big portfolio of swaps. In the end, during the government organized bailout of the company, LTCM recorded a loss of $1.6 billion on swaps alone.
Born felt that an unregulated derivatives market that spawned the LTCM bailout could “pose grave dangers to our economy.” In the end, Born lost her battle and, in May 1999, asked to be replaced as CFTC chairman. The new chairman, William Rainer, was more amenable to the positions of industry leaders and the major government officials Summers, Greenspan, and Levitt. Later that year, the President’s Working Group on Financial Markets released a report calling for “no regulations” of derivatives and swaps and began crafting a program to make that possible. Meanwhile in Congress, lawmakers were still up-in-arms over Born’s attempts to regulate the financial derivatives market and began working to pass their own set of deregulatory language.
Leading the charge in Congress were Sens. Phil Gramm (R-TX) and Richard Lugar (R-IN) and Rep. Thomas Ewing (R-IL). In May of 2000, Rep. Ewing introduced his Commodity Futures Modernization Act. While Ewing’s bill sailed quickly through the House, it stalled in the Senate, as Sen. Gramm desired stricter deregulatory language be inserted into the bill. Gramm opposed any language that could provide the SEC or the CFTC with any hope of authority in regulating or oversight of financial derivatives and swaps. Gramm’s opposition held the bill in limbo until Congress went into recess for the 2000 election.
Throughout the better part of the year Gramm, Lugar and Ewing worked with the President’s Working Group on Financial Markets—most specifically, Treasury Secretary Summers, CFTC Chairman Rainer and SEC Chairman Levitt—to strike a deal on the bill.
Little attention followed Congress as the contentious 2000 presidential election was stuck in a stalemate as lawyers and khaki-clad protesters fought over the Florida recount to decide whether Gov. George W. Bush or Vice President Al Gore would be the next president.
During a lame-duck December session, while the media was focused on the recounts and court cases, Gramm and Ewing sought to strike a compromise on the Commodity Futures Modernization Act. The day after the Supreme Court ruled in favor of Gov. Bush, December 14, Ewing introduced a new version of the Commodity Futures Modernization Act. On December 15, with little warning or fanfare—aside from the overshadowed discussions on the floors of Congress—the new, compromise version was included as a rider to the Consolidated Appropriations Act for FY 2001, an 11,000 page omnibus appropriations conference report.
HedgeWorld Daily News, a trade publication for hedge funds and one of the few news outlets following the bill, stated, “Details of the final language are not immediately available. Congressional aides said Sen. Gramm did succeed in getting additional language protecting the legal certainty of swap, especially those traded by banks, which are the main users of the products.”
The final language, which the public was hardly aware of, contained some new sections not in the original Ewing bill that, for all intents and purposes, exempted swaps and derivatives from regulation by both the CFTC, which had already implemented rules that it would not regulate swaps and derivatives, and the SEC. Also, hidden within the bill was an exemption for energy derivative trading, which would later become known as the “Enron loophole” – this loophole would provide the impetus for Enron’s nose dive into full blown corporate corruption.
On December 15, at 4:48 pm, the conference report containing the Commodity Futures Modernization Act was introduced. At 4:52 pm, the House began consideration of the report. The House approved the legislation 292-60 and the Senate cast a voice vote in favor. The bill was signed by President Clinton on December 21.
For more on the consequences of the Commodity Futures Modernization Act see this Sunlight blog post.