Rejection of Fed Interchange Fee Caps Roils Debit Business

“We urge the Federal Reserve to pursue all legal means to mitigate the harm this decision will cause to consumers, community banks and all institutions that provide financial services to local communities. The Durbin Amendment and the court’s interpretation will have disastrous consequences for the institutions affected and the communities they serve. This result must be reversed”, Frank Keating, President of the American Bankers Association, said in response to U.S. District Judge Richard Leon’s rejection of the Durbin Amendment, yesterday morning.

Ridiculing the Fed, Judge Leon pointed out brusquely, “The Fed didn’t have the authority to set a 21-cent cap on debit-card transactions. The Board has clearly disregarded Congress’s statutory intent by inappropriately inflating all debit card transaction fees by billions of dollars and failing to provide merchants with multiple unaffiliated networks for each debit card transaction”.

In his 58-page ruling Judge Leon argued that the cap must go lower, cutting deeper into the $16 billion dollars in revenue that large banks usually reap from the fees. “The Fed’s current implementation of the Durbin amendment has cost banks about half the $16 billion they once made from debit-card swipe fees each year. They take in an estimated $40 billion from credit card swipe fees, which are unaffected by the Fed rule”, Madeline Aufseeser, Senior Analyst, Aite Group LLC, calculated. She added, “If the Fed responds to the ruling by reverting to its original proposal of 12 cents per transaction, revenue for the top 50 credit-card issuers who use Visa and MasterCard networks and have assets over $10 billion would drop to $4.3 billion per year.”

Visa, the dominant player setting the interchange fees, saw its share price plunge the most since December 2010, falling as low as 10.7 percent in New York trading and closing down 7.5% at $177,01. The same shares shot up more than 10 percent, topping the S&P 500, after the final cap was unveiled in 2011 and surprised the business by being almost twice as high as the Fed’s earlier draft proposal.

Judge Leon warned, ‘The Fed has months not years to re write the rule in the light of this decision’.

A central argument that encompasses this debate is that swipe fees, under the Durbin Amendment, must be “reasonable and proportional” to the incremental cost of a transaction. The Dodd-Frank legislation which adopted the Durbin Amendment does not clarify whether the caps should reflect ‘other costs’ incurred by card issuers. The banks hence press for the caps to rise to reflect other costs.

Judge Leon argued that the Fed wrongly interpreted the statue on these costs. “The Fed decided the statute was silent on what other costs could be included in the calculation, and then moved to resolve that ambiguity by including those other costs. How convenient,” Leon remarked. “The statute and the legislative history demonstrate that Congress intended the swipe fee caps to reflect only the costs associated with an individual transaction, not any other costs”, he remarked.

He further added in a statement, “The Fed’s 2011 decision to bend to the lobbying by the big banks and card giants cost small business and consumers tens of billions of dollars and did not do enough to rein in the anti-competitive, anti-consumer practices of Visa and MasterCard”.

In November 2011, National Retail Federation, the Food Marketing Institute and NACS, formerly the National Association of Convenience Stores filed a lawsuit stating the merchants would be substantially harmed by the fees the Fed set under the Durbin Amendment. “The board’s final rule permits banks to recover significantly more costs than permitted by the plain language of the Durbin Amendment and deprives plaintiffs of the benefits of the statute’s anti-exclusivity provisions,” the retailers argued in their complaint.

Refuting the retailers claim, Senator Durbin insisted that small businesses and their customers will be able to keep more of their own money as a result of the amendment and it would make sure businesses would grow and prosper. ‘This is vital to putting our country back on solid economic footing’, he said in a statement.

Citing a recent push by European Union to cap the charges, Mallory Duncan, Senior Vice President and General Counsel of the National Retail Federation, which brought the case, pointed out that opposition to swipe fees is growing world-wide, “The rest of the world is beginning to understand that this is a game Visa, MasterCard and the banks are playing,” she said in an interview.

The law may have been squarely aimed at big banks, but small banks have paid a price in the bargain.

Chairman Ben Bernanke had said on several occasions that he was worried about how the new rule would affect small banks. He maintained the cap aimed to strike a balance between retailers, banks and consumers but left the door open for future changes. “The Fed would continue to monitor the consequences of the new caps and “assess whether the statute and the rule are accomplishing their intended goals”, Bernanke noted in a statement after the Amendment was passed.

Leon’s ruling echoes the voices of the retailers that have been fighting against the law since November 2011.

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US Judge rejects Fed’s Durbin Amendment

‘The Fed didn’t have the authority to set a 21-cent cap on debit-card transactions’, U.S. District Judge Richard Leon in Washington, rejected the Dodd-Frank imposed rules governing ‘swipe fees’, in a ruling today morning.

In his 58-page ruling, Leon asserted, “The Board has clearly disregarded Congress’s statutory intent by inappropriately inflating all debit card transaction fees by billions of dollars and failing to provide merchants with multiple unaffiliated networks for each debit card transaction”. The rule would however remain in place pending new regulations or interim standards.

Visa -9.91(-5.18%), one of the predominant players setting the interchange fees, saw its share price plunge as news of Leon’s ruling hit the markets. The same shares shot up more than 10 percent, topping the S&P 500, after the cap was unveiled in 2011.

The Durbin Amendment that approved a 21-cent limit on swipe fees – half of the average swipe fee of 44 cents – went into effect on October 1st, 2011. It was slammed on the Dodd-Frank Wall Street Reform and Consumer Protection Act at the eleventh hour in an attempt to move a step closer to the retailers’ legislative agenda. Instead, it ignited a spark of unrest among varied stakeholders of the financial services industry.

In November 2011, National Retail Federation, the Food Marketing Institute and NACS, formerly the National Association of Convenience Stores filed a lawsuit stating the merchants would be substantially harmed by the fees the Fed set under the Durbin Amendment, a provision of the Dodd-Frank legislation. “The board’s final rule permits banks to recover significantly more costs than permitted by the plain language of the Durbin Amendment and deprives plaintiffs of the benefits of the statute’s anti-exclusivity provisions”, the retailers argued in their complaint.

Refuting the retailers claim, Senator Richard Durbin insisted that small businesses and their customers would be able to keep more of their own money as a result of the amendment and it would make sure businesses would grow and prosper. ‘This is vital to putting our country back on solid economic footing’, he said in a statement.

The law may have been squarely aimed at big banks, but small banks have paid a price in the bargain.

Chairman Ben Bernanke spoke on several occasions expressing fear about how the new rule would affect small banks. He maintained the cap aimed to strike a balance between retailers, banks and consumers but left the door open for future changes. “The Fed would continue to monitor the consequences of the new caps and assess whether the statute and the rule are accomplishing their intended goals”, Bernanke noted in a statement after the Amendment was passed.

Leon’s ruling today echoes the voices of retailers who have been fighting against the law since November 2011.

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CFPB tangles with Bankers over Big Data

“Do they need the reams and reams and reams of data we’re having to provide to them? Don’t we have to find a healthier balance here?” Susan Faulkner, Senior Vice President, Bank of America, implored at the Conference of Consumer Bankers Association in Phoenix, early this year.

Faulkner is not alone in her plea. Bankers across the industry find the information gathering by the CFPB a vexing new regulatory burden. It adds another layer of bureaucracy to U.S. banking regulation, in their view. The U.S. Chamber of Commerce in a letter to Richard Cordray, Director, Consumer Financial Protection Bureau, charged the CFPB with misusing the regularly scheduled examinations of banks to demand huge amounts of data requests that instead should be made by rule or order. David Hirschmann, Head of Chamber’s Centre for Capital Markets Competitiveness hollered, “Bureau’s data requests have been often unfocused, overly inclusive and not coordinated with other regulators.”

Richard Riese, Senior Vice President, Centre for Regulatory Compliance at American Bankers Association has taken a more optimistic view and noted, “The bureau’s examiners are new to the field and over time will learn to be more focused. I think both sides will evolve in the process and we’ll get to some efficiencies.”

Two sources, on condition of anonymity, said that the procedures used by the Consumer Bureau are far different from those typically used by the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corp. While the two regulators have seldom deviated from using consumer finance examinations at larger banks, the consumer bureau demands data from multiple banks on grounds of consumer-protection issues even if the issue arises in a single institution.

If you’ve reached this point in the column you probably have a burning question: What kind of data is the CFPB collecting that has the potential of infuriating so many in the banking community?

Good question.

One hundred thousand negative reports have been filed so far with the Consumer Bureau against banks; close to 450 companies are being closely watched as a result of the complaints, anonymous information of about 10 million consumers is being thwarted; a deep repository of consumer finance data, including credit card information and checking account overdrafts from nine banks is being created; records of credit card add on products – credit monitoring and debt cancellation are being collected; a mortgage database with Federal Housing Finance Agency that will integrate consumer credit information with loan and property records is being built.

While Mr. Snowden would not be impressed, it is this overwhelming list that has provoked the ire of banking executives.

The mining of such massive pools of information ought to bring questions of privacy into the picture.

“Any agency compiling massive amounts of data has to consider that you can use bits that are not personally identifiable and put them together,” David Jacobs, Consumer Protection Counsel, Electronic Privacy Information Centre, said in an interview. He further explained that by aggregating information it collects or buys, the bureau complies with federal privacy laws. It will have to ensure that data it releases doesn’t add up to a fuller picture.

Sendhil Mullainathan, Former Assistant Director for Research at the Consumer Bureau and Professor of Economics at Harvard University, in an interview with Bloomberg argued that researchers have no interest in specific individuals. “No researcher needs to know about any one person,” he said. “Just the opposite. They need to know about thousands of people.”

He further asserted, “The agency is committed to protecting the privacy of consumer information and doesn’t collect personally identifiable data such as social security numbers. It’s credible to say that within the next year, CFPB will be the best place for consumer finance data.”

Joan Claybrook, former Head, National Highway Traffic Safety Administration compared the CFPB’s data collection efforts to the transport agency’s early warning database on auto safety defects that in her view helped warn against fatalities.

Making an argument for data collection, Mullainathan, argued, “The consumer bureau should play the kind of role in consumer finance that the Federal Reserve does in macroeconomics, continually collecting unemployment data so analysts can dive deeper into the subject at any time.”

In a recent hearing on Tuesday, 9th July, before the House Financial Services Committee, one of CFPB’s top official was asked to specify the number of Americans the agency had gathered the financial data on. The official failed to put a precise number to the question and in the bargain earned the skepticism of the committee. Furthermore, with its enthusiasm around publicizing consumer complaints, the CFPB is being seen as an adversarial regulator.

“To me the bottom-line around any questions surrounding the CFPB is that, CFPB is supposed to be an evidence-based policy maker and rule maker and one of the necessary inputs for doing evidence based policy making is data. I am not saying it’s efficient but it is a necessary input”, reasoned Jonathan Zinman, Academic Director, US Households Finance Initiative, in an interview with PYMNTS.com.

He further argued that the point in question is whether the CFPB is collecting any data or asking financial institutions for data that they don’t necessarily need to supply to other regulators. “That seems like a germane question to me. Is CFPB actually increasing the regulatory burden of such institutions?”

Zinman further pointed out that with regard to compliance and reporting costs, CFPB would only be adding to reporting costs if it is asking for data that the financial institutions are not already providing to other regulators.

Katherine Porter, Professor of Law at University of California spoke to PYMNTS.com and explained that the CFPB is currently getting data from several places and how we think about relative costs and benefits depends on what we are talking about. She reasoned, “So if it [CFPB] is buying the same data as the industry buys and the capital market buys then I think it is good. I think being a supervisory body and supervising is a rigorous process. This is an industry where we want to see that consumers are being protected, laws are being followed and capital markets are stable. Data collection as a part of that can help the CFPB better understand the business that it is supervising.”

“You cannot study consumer credit in a vacuum. Data collection gives the context to interpret what’s going on”, she asserted.

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Bitcoin, in search of a legal status

“Bitcoin is not the only digital currency, nor the only successful one. Gamers on Second Life, a virtual world, pay with Linden Dollars; customers of Tencent, a Chinese internet giant, deal in QQ Coins; and Facebook sells Credits. What makes Bitcoin different is that, unlike other online (and offline) currencies, it is neither created nor administered by a single authority such as a central bank”, The Economist recorded in its report on Mining Digital Gold, on 13th April earlier this year.

Bitcoin is a virtual currency used as a form of payment with a decentralized system and without a central issuer. Neither does it require the endorsement of any authority to open an account or make a transaction, nor does any authority have the power to confiscate Bitcoins or prevent users from transacting. A peer-to-peer computer network made up of users’ machines, similar to a file-sharing system and the audio-visual chat service, Skype underpins it. The computers mathematically generate the virtual currency through a procedure called mining, a number crunching task that makes it progressively difficult to mine Bitcoins over time and limits the total number that can be mined in a day to around 21 million. It is set up to sort of simulate gold, which is similarly limited in quantity and increasingly scarce. This in a gist, explains the fundamentals of Bitcoin.

After starting in 2010, Bitcoin has earned several advocates by 2013. Michael Sivy, a Chartered Financial Analyst and a former securities analyst for an independent stock research firm noted in his column, The real significance of the Bitcoin Boom and Bust, for Time, “The scale of the recent boom-and-bust has been staggering indeed. At the start of the year, a Bitcoin was worth $13.51. Earlier this week, it traded as high as $266. And on Thursday, it plummeted to less than $100, as one of the exchanges where Bitcoins are traded closed temporarily. This would be comparable to the exchange rate for the British pound soaring from $1.62 (where it was on Jan. 1) to $31.90 and then falling back to $12.”

The creation and transactions of Bitcoin are controlled by a concept called crypto-currency that standardizes, protects and promotes the use of Bitcoin money. The Bitcoin Foundation further elaborates, “As a non-political online money, Bitcoin is backed exclusively by code. This means that— ultimately—it is only as good as its software design. … Cryptography is the key to Bitcoin’s success. It’s the reason that no one can double spend, counterfeit or steal Bitcoins. If Bitcoin is to be a viable money for both current users and future adopters, we need to maintain, improve and legally protect the integrity of the protocol.”

The departure from central banks and monetary authorities makes Bitcoin an interesting option for those who fear the aggressive expansionary policies of the central bank. In an interview with The Telegraph in the UK, Warren Buffett condemned Bernanke’s monetary policy and pointed out that those who parked their money in cash equivalents or short term US Treasuries had missed the party over the last nine months as Wall Street rocketed to all-time highs. “It’s brutal. I don’t know what I would do if I were in that position”, he told Ambrose Evans-Pritchard, International Business Editor at The Telegraph.

Weak support for the central bank’s position on monetary policy through the ongoing financial crisis has lead to increased demand for gold and other ‘safe havens’ and a fertile ground for “virtual gold” to take root. “Bitcoin, rather than fixing the value of the virtual currency in terms of those green pieces of paper, fixes the total quantity of cyber currency instead, and lets its dollar value float. In effect, Bitcoin has created its own private gold standard world, in which the money supply is fixed rather than subject to increase via the printing press”, Paul Krugman, Economist and Professor at Princeton, noted in his column, Golden Cyberfetters. Of course, unlike gold, which has a natural limit, Bitcoin ultimately follows rules set by humans it would seem.

The payment system in Bitcoin involves reallocating a coin in the various registers from the payer to the payee. Each user has an electronic wallet and a key pair that does not require identification by any national regulator or financial institution. It is attractive for those that prefer anonymity whether for political reasons or for criminal activities. Just like cash, except its electronic.

Among the less-attractive features of Bitcoin is that transfers in the Bitcoin system are irrevocable and the wallet and key pair is the only way to access Bitcoins. If the key pair is lost, the coins are inaccessible and are lost. While the Bitcoin transaction is free, the users pay to acquire Bitcoins either from an intermediary or through a market. There might be a commission involved or a fee to complete the transaction.

Bitcoin also does not support any central registers to record the transactions. Instead, there are a series of records, synchronized across a peer-to-peer network, of the entire history of Bitcoin transactions that can be used to check which wallet and key pair a given coin was last transferred. A large number of copies of the register are kept across the network and this proves helpful since there is little incentive or gain for any particular register keeper to falsify the record. In addition, creating a false competing record of equal or longer detail than the others can be mathematically very difficult. However, an inherent risk is that the number and quality of record keeping nodes are likely to diminish over time since the voluntary register keepers will get tired of the effort involved and for-profit nodes will become uneconomic as the mining of coins becomes harder.

The wiki page on Bitcoin suggests that the protocols and rules underlying Bitcoin are public domain. Security is not based on secret codes and protocols or private networks but a distributed system that makes fraud difficult and uneconomic. However, it also accepts that a flaw in the protocols may be discovered at a future time allowing for additional coins to be created or the transaction record to be surreptitiously altered.

Currently several questions around the legality of Bitcoins, or at least how they are being used, are being raised.

Circulatory property rights sits on top of the list. Unlike other forms of intangible private property, Bitcoins are not recognized by any international treaty or domestic legislation. This undermines its legal status. Additionally, there is not a clear issuer or party responsible for creating, distributing and honoring Bitcoins. The Bitcoin Foundation oversees this, where a loose collection of individuals operate the system. Unlike most payment systems, the participants are not bound by a set of central rules.

“At their core, most payment facilities rely on contracts to set out the rights and responsibilities of each party. Legislation, common law and industry codes also have some impact. That is, the contracts do not set out exhaustively the rights and responsibilities of each party. Alan Tyree, at the University of Sydney, Faculty of Law, elaborates on the ambiguity of the participants’ roles and responsibilities.

Besides cash, currently most payment facilities operate on the basis of accounts kept by trusted intermediaries. There are however differences in the character of more centralized payment facilities like cheque accounts and less centralized facilities like anonymous smart cards. Different regulatory and policy issues are also likely to arise with different payment systems. Bitcoin is a decentralized account based payment system without an issuer or central counterparty that involves the circulation of valuable rights transferred irrevocably by electronic order.

Regulatory issues embracing Bitcoin range from financial services regulation and banking regulation to currency regulation and legal tender. The United States has a complex and fragmented legal framework and regulatory structure governing payment services. Article 4A of the Uniform Commercial Code, adopted by most US states, regulates various issues of non-cash payments, the revocability of payments and the rights and obligations of funds transfer. The Official Commentary on Article 4A however also states that it is deliberately limited to funds transfers through the banking system and excludes payments via remittance dealers and other arrangements. This implies that is does not include virtual currencies like Bitcoin.

The US Treasury Financial Crimes Enforcement Unit (FinCEN), in its Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtual Currencies, suggests that persons carrying on a business of brokering Bitcoins or running an organized exchange will be regulated as financial services firms, but not the user.

Bitcoin participants may not require licensing under the US banking regimes but taking deposits and making loans denominated in Bitcoin currency will call the attention of US regulators. Another compelling point of contention in the regulatory space around Bitcoins is that they are not legal tender and are unlikely to be so in the short-medium term.

Several aspects of Bitcoin stand in question and its long term viability is debatable but it has proved the concept of a decentralized non-issued electronic currency and has given reason to believe that virtual currencies could have a future. At present, the commercial and contractual laws that apply to financial intermediaries and market operators will apply to participants of Bitcoin.

Ryhs Bollen, Senior Associate at RMIT University, Australia, in his paper, Best practice in the regulation of non-cash payment services, argues that a well designed and proportionate legal and regulatory regime will support user confidence in, and therefore growth of, innovative payment systems such as virtual currencies. Supporting Bollen, Supriya Singh, Faculty at RMIT University, in her research, Designing for Money across Borders, puts it articulately, “There is nothing inherent in a piece of paper, a plastic card or electronic information that converts it into money. Money is money only when it is trusted that it will be honoured in your networks of use and exchange. Creating and protecting trust therefore becomes a crucial issue in the regulation of payment services.”

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The Fire that Durbin Amendment lit, never doused

The Durban Agreement and the Durbin Amendment have one thing in common. They are both working towards an ideal climate. The former regulates carbon emissions and hopes to reach a global climate agreement; the latter regulates interchange fees and hopes for a universal agreement on a fair climate for financial services.

Signed into Law on July 21, 2010, the Durbin Amendment to the Dodd-Frank Act, introduced by Sen. Richard J. Durbin, ignited a spark of unrest among varied stakeholders of the financial services industry. The amendment was slammed on the Dodd Frank Wall Street Reform and Consumer Protection Act at the eleventh hour in an attempt to move a step closer to the retailers’ legislative agenda. This year, the amendment completes its third year.

Through this amendment, the Federal Reserve decided to reduce the fees that merchants pay banks when consumers use their debit cards. It was entitled as ‘Reasonable Fees and Rules for Payment Card Transaction’ and prescribed standards for ‘reasonable’ interchange fees, that are payable to certain debit card issuers.

In a statement that Wednesday morning in 2010, Sen. Durbin said, “Small businesses and their customers will be able to keep more of their own money.” He added, “Making sure small businesses can grow and prosper is vital to putting our country back on solid economic footing.”

In essence, the Amendment pits two critical players in the financial battlefield against each other – businesses and banks.

Payment services companies, the two predominant players being – Visa and MasterCard, set the interchange fees, but financial institutions that issue the debit cards reap most of the gains generated from the fees. American businesses, as a result, are forced to pay high debit interchange fees, reducing their profit margins and leading to higher retail prices for consumers.

Payments service companies only earn a percentage of each transaction they facilitate but the more debit cards are issued, the more profits they earn. Here, a good bait for the payments services to throw at financial institutions is to offer the highest interchange fees, since it will bring the highest return for banks.

Note here, that by setting a higher interchange fee, the purpose of the payments service companies is to win banks, not necessarily consumers.

This partly explains the highly uncompetitive payments services market where 80% of electronic transactions are dominated by Visa and MasterCard. National electronic service companies like PayPal and Discover have made significant attempts to break through this monopoly, but it continues to remain a work-in-progress.

Section 1075 of the Dodd-Frank Act, which is the Durbin Amendment, added a new section 920 to the Electronic Fund Transfer Act (EFTA). The new section seeks to define an amount of interchange fee that is reasonable and proportional to the cost incurred by the issuer. It charges the Fed with the duty to oversee the debit interchange rates are directly related to the debit transaction costs.

In its most recent study, the Fed capped debit interchange fees for large banks at twelve cents, substantially lower than the national average of 44 cents per debit transaction. This is likely to result in a loss of billions for American banks.

There is some solace however for banks and credit unions holding under 10 billion dollars in consolidated assets. The Durbin Amendment exempts them. This exemption is viewed by some as a political act to go after large banks that receive billions of dollars of taxpayer’s money.

Besides cracking down on big banks, the amendment also intends to infuse more competition into the electronic payments services industry. The underlying goal being that more competition will lead to lower interchange fees. The Amendment requires issuers to issue debit cards of atleast two unaffiliated networks. Unlike the exemption on interchange fees, there is no exemption on this for small banks and credit unions.

Sandwiched between the payment services companies and the big banks, the merchants have struggled over the years to raise their profit margins from retail sales. The Durbin Amendment took recognition of that and explicitly allowed merchants to offer discounted prices for certain types of financial transactions and even refuse to accept debit cards for small purchases. This is a welcome relief for small business, that most often suffer the impact of interchange fees, due to the lack of economies of scale.

Meanwhile, the fierce fight continues between the banking institutions and businesses.

Banks accuse the Durbin Amendment for allowing a way for avaricious businesses to earn more profit at the expense of community banks and consumers; businesses argue and charge the amendment for allowing Wall Street executives to earn more profit at the cost of small businesses and consumers.

In a Senate Banking Committee, Sheila Blair, Chairman at Federal Deposit Insurance Corporation, remarked, “the likelihood of this hurting community banks and requiring them to increase the fees they charge for accounts is much greater than any benefit retail consumers may get.”

The question looms large: Is this Amendment really just a mere transfer of wallets from big bankers to big businessmen?

On May 23, 2013, the Board of Governors of the Federal Reserve released an analytical study on the Impact of Regulation II on Small Debit Card Issuers. This study draws on Regulation II of the Durbin Amendment that makes it mandatory for every debit card issuer, irrespective of size, to have at least two unaffiliated networks on every debit card.

While small debit card issuers are exempt from the Durbin amendment on interchange fees, they are not exempt from network exclusivity. The point of contention here is that networks do not establish separate interchange fee for exempt issuers, thus undermining the effectiveness of such an exemption.

The study highlights three issues in particular. One is the issue of having separate interchange fee schedules for exempt and covered issuers. It was observed in 2012, that networks provided a higher average interchange fee to exempt issuers than non-exempt issuers. The second issue at hand looks at the change in exempt-issuer interchange fees since the implementation of interchange fee standard on non-exempt issuers. It highlights that in 2009, the average interchange fee for all issuers was 43 cents. “For the first three quarters of 2011, before the interchange fee standard took effect, exempt issuers received an average of 44 cents per debit card transaction. The average interchange fee per transaction received by exempt issuers has returned to the 2009 level of 43 cents since the implementation of the interchange fee standard”, the study reports.

The third issue relates to changes in exempt-issuers’ interchange revenues. In 2012, the exempt issuers received $7.4 billion in total debit card interchange revenue, compared with approximately $5.3 billion in debit card interchange revenue in 2009, according to the study.

Some of the other issues pointed out by the study are the evidence of discrimination against cards issued by exempt issuers and the cost to small issuers of adding a second unaffiliated network. While the Fed conducted a survey with the community commercial banks, credit unions and thrifts, the responses were voluntary and conditioned on the willingness and ability of participants. Hence they cannot be considered representative of the overall experience of small issuers but they do highlight that the regulation has had potential effects on small issuers.

To seek further clarity of the impact of the amendment on banks, issuers and consumers, several economists are still conducting research. According to one such study that is still a work-in-progress, it has been observed that the overall interchange reduction increased the market capitalization of merchants by a far greater margin than it decreased the market capitalization of banks. It was also noted that the cost to merchants for taking payments on debit cards declined while the effective cost to issuers for providing debit card services to consumers increased by a corresponding amount.

The critical question is whether consumers gained more from cost savings passed on by merchants in the form of lower prices and better services, than what they lost from cost increases passed on by banks, in the form of higher prices or less service.  Some economists estimate that the consumers lost more on the bank side than they gained on the merchant side.

In the fourth quarter of Economic Review 2012, Fumiko Hayashi in his report titled, ‘The New Debit Card Regulations’, concluded that the regulatory and legal changes imposed on the debit card industry had diverse effects, with several distinct implications for market competition among card networks and card-issuing banks.

“Most card networks have set two separate interchange fee schedules: one for regulated banks, conforming to the new caps on interchange fees for those banks, and a separate one for exempt banks. Although the card networks can still set interchange fees as they see fit for exempt banks, the regulatory and legal changes have created new incentives that exert downward pressure even on the exempt banks’ fees”, Hayashi revealed.

On observing the changes in market shares among debit card networks over the past two years, competition had risen among debit card networks. A good example of increased competition among the network for merchants is the decline of Visa’s market share, especially in the PIN debit card market.

“Regulated banks have seen their interchange fee revenues fall while exempt banks’ revenues have remained roughly the same, on average. Regulated banks’ new incentives are likely to drive marked changes in their product promotion efforts as they encourage customers to shift from signature debit to PIN debit and from debit card use to other payment methods”, the report stated.

Among some anticipated consequences is the propensity of competition to rise between the regulated and exempt banks and within the exempt group. The nature of competition within the regulated banks has changed as a result of the amendment but whether that is likely to rise is yet to be established. According to Hayashi, “Regulated banks may no longer seek to attract customers by offering rewards, but they now have more incentive to compete for customers by reducing or eliminating the fees associated with checking accounts and debit cards”.

By raising the level of competition among card networks and by shrinking the fees charged to merchants, the regulators seem satisfied with their interventions. What unnerving for the rest of us is the unintended consequences.

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Regulators stab Deloitte : Beware! Banks, Consultancies

“People want to know that regulators are looking out for the American public, not the banks,” Sen. Elizabeth Warren, D. Mass asserted at the Senate Banking subcommittee hearing on April 11, 2013. The agenda was to review banks’ use of independent consultants to complete the foreclosure review. Instead, the hearing whipped the regulators.

Warren wasn’t alone in her indignation. Sen. Sherrod Brown, chairing the financial institutions subcommittee hearing, argued that regulators had failed to identify uniform standards governing their actions.

Clearly, the hearing had gone awry. Officials from the Office of the Comptroller of the Currency (OCC) and the Federal Reserve Board soon came to the realization that the complexity of the undertaking had been greatly underestimated. One close look at the number of institutions, the number of consultants, the number of borrowers and the number of decision points involved in the hearing will give anyone a rough estimate of the unusually complex task, the committee was faced with.

“Why didn’t the OCC handle the loan reviews itself instead of forcing banks to hire their own consultants?”, Sen. Jack Reed, D-R.I. questioned the regulators, urging them to hire their own consultants. “I think you’ve got to have a new process. And I think if the process requires modification of federal rules and regulations, then that’s something the OCC and the Fed should immediately demand of us. Because essentially what you describe is a core activity of the OCC — stopping the wrongdoing of regulated institutions and protecting consumers”, he added.

In response, Daniel Stipano, Deputy Chief counsel at the OCC appealed to the lawmakers to give the OCC the power to seek sanctions against independent contractors.

Two months and a week later, the New York State Department of Financial Services declared that it is fining Deloitte Financial Advisory Services $10 million as part of a settlement stemming from its anti-money laundering advisory work with Standard Chartered bank. In addition, the regulator banned Deloitte from working for New York – chartered banks for one year. The consulting firm was also found guilty of disclosing confidential information about other clients to Standard Chartered.

Whether the Senate Banking subcommittee hearing provoked this or whether this is a desperate attempt by the regulators to reaffirm their commitment towards cracking down on money laundering, what does this really mean for banks and the consulting firms?

The one-year ban on consulting for state-chartered banks applies to the smallest of Deloitte’s four units, Deloitte Financial Advisory services. It does not apply to Deloitte Consulting or any other divisions of the auditor. It is also possible for Deloitte to terminate the ban earlier if it puts in place the state’s new rules for financial consultants.

The crackdown by the New York state department will probably not be lethal for Deloitte but it will cast a dark shadow on its fintech consulting business. The ban might be limited in scope, nevertheless it harms the reputation of Deloitte, and is likely to provoke the banking community to take more responsibility in choosing its consultants and red flags the consultancies who are rather liberal in their reporting practices.

Deloitte was involved in committing fraud, damaging the security of the banking system and affecting national security according to New York State. These, by any accord, are not small consequences of an allegedly cavalier attitude and will have a spillover effect on industry-wide reputational risk. Regional and community banks will surely consider the settlements before signing new contracts with Deloitte, vendor management will be scrutinized and new business will be hard to come by for Deloitte. The number of banks directly barred from using Deloitte’s consulting service are significant: they include some of the largest – Goldman Sachs and Bank of New York Mellon, in addition to more than 4,000 other financial institutions including credit unions and insurance companies and New York units of foreign banks.

Taking the cue from Deloitte’s case, the DFS now proposes an explicit code of conduct for consultants to ensure their independence and make it easier to monitor them. This includes absolute disclosure around the financial work they’ve done and to be in a position to certify the final report to regulators as their own work, in addition to maintaining records of all recommendations that don’t get included in the final report and developing policies on complying with confidentiality rules.

The silver lining around this dark cloud of regulation is likely to be a sense of clarity around best practices for consultancies. This would eventually improve the battered reputations of consultancies and give them the credibility they desperately need. But, it is hard to know whether this will be too late for some: Deloitte could be a harbinger to other consultancies being sent for some quality time in Siberia.

This is also just the start of DFC superintendent, Benjamin Lawsky’s crackdown on big banks that now need to take compliance far more seriously than they have been. This could prove disruptive for banks if other states follow New York and choose to issue their own set of regulations. Banks would need to put together contingency plans to prepare themselves for such a crackdown on consultancies.

Another aspect worth the notice is how many top banking regulators have crossed the bridge to sit on the other side of the grass. Ex-banking regulators now run a shadow network between banks and regulators, a kind of ex-regulator omnibus, that at times even substitutes the financial industry supervisors. They assume themselves to be auxiliary, private sector regulators, and blur the line between consultants and regulators, creating a conflict of interest.

The community that forms this shadow network includes former senior officials from the OCC, the Federal Deposit Insurance Corporation, the Treasury Department, the Federal Reserve System, the Securities and Exchange Commission and foreign regulatory bodies. This “revolving door” could be blamed for the unhealthy relationship between the government and the private sector.

Some however, argue that such private sector regulators serve the broader public interest by producing manageable regulation and spirit-of-the-law compliance. Given that a number of banks frequently get themselves into woes with their regulators and don’t have the internal expertise to fight their case, private regulators are not likely to go out of business anytime soon.

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CFPB cracks down on overdraft fees

Around 11:45 pm, on a Friday night in 2011, Jay Leno gave me a fit of giggles as he mocked Bank of America’s plans to charge consumers a monthly debit card fee of $5, in his classic late night television series, ‘The Tonight Show’.

The episode remained etched in my memory for it is seldom that the banking industry becomes the subject of satire in a late night television show.

The report released on June 11th, Tuesday by the Consumer Financial Protection Bureau (CFPB) reaffirmed the satire. The regulatory body is gearing up again to criticize the US banking industry for charging overdraft fees that generated close to $32 billion in revenue, in the US alone.

The rigmarole around overdraft fees is not new. It repeats itself every year, and every once in a while the regulators decide they must pull up their socks and attack the banking industry in the interest of the public. Fair enough and good cause, perhaps, if one could be sure that these efforts would lead to constructive outcomes.

The Dodd Frank financial overhaul law in 2010 created the Consumer Financial Protection Bureau to act as an advocate of consumer interests. Back then, the Fed required banks to give consumers the right to opt-in to overdraft protection for debit card purchases. This came to be called Regulation E. At the same time, the Credit Card Accountability, Responsibility and Disclosure Act required that consumers opt-in to the services. Nevertheless, by the end of 2011, 16% of all consumers had enrolled in overdraft protection plans, and 22% of new account holders opted-in to the plans. That was a surprise to those who thought consumers wouldn’t want to opt in.

Despite the relatively low opt-in rates, overdraft and non sufficient fund fees, these fees made up 61% of banks’ total consumer deposit service charges in 2011.

While one could certainly question some of the practices the banks take with overdraft charges, the banking industry is struggling to turn around its P&L accounts amid the recovery from the 2009 financial crisis. In the absence of this revenue source, $32 billion as I said, banks will be compelled to take to other measures for increasing their revenue which may result in higher annual fees. In the absence of overdraft fees, consumers might have to pay fees for returned checks, late fees and it could eventually affect their credit reports.

And these fees aren’t all bad. The overdraft service acts as a short-term loan for consumers and is a convenient way to raise cash quickly. According to Richard Hunt, President and Chief Executive of the Consumer Bankers Association, “New rules by CFPB could push some consumers to use unregulated industries with riskier and costlier alternatives such as payday lenders, check cashers or pawn shops”.

The probe into overdraft fees could prove costly for small banks in particular, that consider this an important source of revenue growth. Over the years, charges have seen a shift with 12% of banks charging less than $20 per overdraft. This is up from 7.4% in 2008 and 1.3% from 2011. Bank of America and Wells Fargo are the exception in this case and charge $35 for every over drawn item.

Richard Cordray, CFPB’s Director, clarified in a conference call that the agency is not out to ban the product entirely, but to deal with numerous concerns with industry practices. “What is marketed as overdraft protection can in some instances, put consumers at greater risk of harm”, he said.

An aspect that has attracted private class action litigation and regulatory actions, also raised by CFPB, is the question of when charges are posted to the accounts. Some banks post ATM, debit and check transactions in the order they happen and some put them at the top of a day’s transactions that allows them to subject more transactions to overdraft fees.

In its report, CFPB continues to argue for daily caps on the number of transactions that become eligible for overdraft protection and hopes to bring uniformity to overdraft protections. However, similar attempts like the review of overdraft practices in February 2012 and the introduction of legislation in May 2012 have only rubbed the surface of overdraft fees without outlining uniform ground rules for the banks to follow.

Overdraft fees, given their nature and impact, will always invite the ire of consumers and regulators alike but with a slow recovery and low interest rates, what is the alternative source of revenue generation for banks? Cracking down on banks for overdraft fees is justifiable provided the alternative path is clearly defined and really makes consumers better off.

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Economic paralysis grips Europe

No prescription seems to arrest the decline of Europe. No single prescription, at least.

A capsule for solidarity, a tablet for a banking union, syrup for a deeper political and monetary union and an injection for sustainable and inclusive growth, sit neatly in the pillbox and the finest of practitioners have failed to prescribe the right mix of pills to cure the deeply infected Europe.

On 25th February 2013, The Centre for Global Economic Governance, (CGEG) at Columbia University, New York invited the practitioners themselves to prod on the diagnosis and detail best practices in a discussion on the Future of Europe.  Ambassador Anne Anderson, Permanent Representative of Ireland to the United Nations; Kemal Dervis, Vice President and Director, Global Economy and Development, The Brookings Institution; George A. Papandreou, Member of Parliament and Former Prime Minister of Greece; George Soros, Chair, Soros Fund Management LLC; Nobel Laureate, Joseph Stiglitz and Jan Svejnar, Director, CGEG, sat on the same side of the stage to share their opposing views.

Lee C. Bollinger, President of Columbia University set the stage for discussion and in his opening remarks said, “I think all of us really want to hear how Europe is going to evolve, I would just say that someday I would like to have a job where all you do is say, ‘we will do whatever it takes’ and then the whole world relaxes and everything goes on from there”.

Svejnar invited Anderson to open the discussion with her thoughts.

“I am a committed European, intellectually and emotionally”, Anderson said. “At the same time I do not consider myself any kind of cheerleader for the European project”.

She added, “I want to make two points in my short ten minutes here today, and the first is that I genuinely believe that Europe will regain the momentum despite the current political difficulties, and secondly, I think my own country, Ireland, is going to contribute to it”.

According to Anderson the political and the economic are inextricably interwoven.“At each stage where there has been a significant leap forward in Europe, you find that same interweaving of the political and the economic. And indeed the dream of the euro, when Kohl and Mitterrand had it, it was essentially a political response to the changed map of Europe”, she said.

While it is true of the past, the past is hardly the prologue to the future. It is not just a euro crisis that engulfs Europe rather an existential crisis. Anderson believes that despite the difficulties there will always be a political imperative that will continue to drive us forward.

“You have got to look at the bigger story that is out there today, it is the changing, evolving nature of global power, the redistribution of power. Despite the setbacks and difficulties that they are encountering, the reality is that Asia, Latin America, Africa are on the rise, and for Europe it is a question of innovating, integrating or declining”.

For Anderson the first step would be to retool institutionally. ‘We started doing that with the Lisbon Treaty and that will have to be further worked through. We have other big issues, for example, we talk so much, and it is true, about the need to connect with our citizens, democratic legitimacy, and democratic accountability: very, very real issues’, she said.

Anderson recognized the euro problem as urgent. She accepted that in the past, there had been mis-steps and mis-diagnosis but also believed that despite the wrong decisions, the European Central Bank was now stepping up to the plate. Taking the example of the European Stability mechanism, she pointed towards a banking union and referred to it as the biggest financial firewall in the world.

Explaining the situation in Ireland, Anderson said, “I think you all know the arc and the narrative for Ireland: the years of, the great years of the Celtic Tiger, the phenomenal growth, the property bubble, the banking crisis that became a sovereign debt crisis, the bail out, the austerity and now, thankfully the glimmer of recovery. And I do not want for a moment to underestimate the difficulty and the hurt in Ireland: It is very, very real. But at the same time, the trend is positive. We have got our competitiveness back in a really significant way, the competitive costs are down, our exports are doing very well, foreign investment is doing exceptionally well, we are back in growth – it is very, very modest but it is real, it is growth”.

Going forward, Anderson suggested two ways  – One, accepting national responsibility through all the austerity measures and the second being European solidarity.

“After all solidarity is what Europe is about, but there is an even more particular onus for solidarity in this case, because if the Irish banks borrowed heedlessly and fecklessly perhaps as some of them did, then there were banks who loaned to them who were equally heedless in their loaning, and the fact that the Irish government behaved so responsibly in its response to taking on the bank debt on the shoulders of the Irish taxpayer. Had we not behaved so responsibly the repercussions would have been enormous all over Europe”, Anderson said.

The way forward in Anderson’s view is an accommodation between taking national responsibility, facing up to it and at the same time assertively making the claim for European solidarity.

Disagreeing with Anderson’s optimism, Philosopher and Economist, George Soros stepped in and said, “I happen to disagree with your optimism. I am afraid that the European Union is in an existential crisis. The problems of the euro have already transformed the European Union from what it was originally conceived, into something radically different because it was meant to be a voluntary association of equals and today it is difficult to escape from obligation where the debtor countries are subordinated to the dictates of the creditor countries and have effectively been relegated to second class membership. And I think this is politically not acceptable”.

Soros breaks down the financial problems into a sovereign debt problem, a banking problem, a balance of payments problem and a competitiveness problem.  He points out to the complexity of the course of events that have been largely influenced by misconceptions, misunderstandings and the sheer lack of understanding of this complexity.

Soros believes the Maastricht treaty was a flawed design as it created a currency union without a political union.

He added, “The euro had several other deficiencies of which the architects were not aware. For instance, it assumed that imbalances would only come from the public sector because the markets were supposed to correct their own excesses. But actually the euro problem really came from the private sector, the banking sector. But that is not the most serious. The most serious deficiency is that the member countries by transferring their seignorage rights to the European Central Bank were actually indebted in a foreign currency, which they did not control and that raised the prospect of default, because normally a developed country would never default on its debt because it could print money. But the members could not do that and that is where I would say the central problem lies”.

Soros explained that at the time when the euro was introduced it was assumed that the government bonds were riskless and the banking authorities did not require commercial banks to hold any reserves against the risk. At the time, the European Central Bank accepted all the government bonds on equal terms at the discount window and this created a perverse incentive for the commercial banks to buy up the government bonds exactly of the weaker countries, which were at the beginning, selling and offering a higher yield because of the risk premium than the others. The banks thus got loaded up with the debt of the weaker countries.

“Even then the markets did not particularly react. It was only when Greece announced that the previous government had misstated the deficit, and it was much larger than it was expected, that’s when the markets suddenly woke up to the possibility that Greece may default. And then they raised the risk premium not only on Greek bonds but on all the weaker countries, with a vengeance”, Soros explained.

He continued, “And that created both a sovereign debt crisis and also a banking crisis because the banks were so heavily loaded with those debts. The result has been that we have gone from crisis to crisis and Germany did the minimum that was necessary to preserve the euro, but no more, and that is what maintained the crisis condition that is now four years old”.

According to Soros the underlying problems are of two kinds:  One is a political problem that Germany is in the driver’s seat. While Germany does not dictate policy, no European policy can be proposed without first gaining the approval of Germany. The second impelling problem is the fact that Germany is imposing austerity on Europe, which is considered a wrong policy move by several economists. Soros explained that you have to shrink the deficit in order to shrink your debt. However, the debt is a ratio of the accumulated debt to the GDP, and if one reduces the budget, one also reduces the GDP. In the conditions that currently prevail, of insufficient demand, the so-called fiscal multiplier is more than one. In other words, if the budget deficit is reduced by one euro, the GDP falls by more than one euro.

Soros asserted, “I think the situation is going to continue to deteriorate and I think and expect perhaps after the German elections there will be a change in German attitudes. Europe is today an outlier in maintaining this orthodox financial policy. Major countries are engaged in quantitative easing: Japan is the latest convert. And quantitative easing is in a way another way of indirect currency devaluation. The decline in the yen and in the sterling is actually going to affect German exports. So by the time of the elections, I think Germany will also be in a recession”.

Dervis, Vice President at the Brookings Institution added his point of view and said, “Europe is a great political project, an incredibly successful political project, creating a zone of peace in a continent that not only tore itself apart, but the world with it. And I think there is tremendous and justified resistance against anything that deeply threatens that project”.

He added, “The essential problem itself has not been resolved. Unemployment in the Eurozone is now close to 12%; In Greece and Spain, it is over 25%. Youth unemployment in many countries is between 30 percent and 50 percent. The social suffering is terrible. And I think it is a kind of reflection on the world we live, in that, financial markets can celebrate while vulnerable people can suffer as much as they do in large parts of Europe today. So I do not believe at all that the problem is solved”.

Soros condemned that during an imbalance the whole burden falls on the deficit countries that maximizes the cost and it would be much easier if the surplus countries helped. He insisted that both the deficit country and the surplus country should help.

“The country in the world with the largest current account surplus is Germany. Moreover, if you aggregate northern Europe, both the Eurozone countries and the Scandinavian countries into one geographical group, the surplus of these northern European countries is bigger than US $500 billion. So this is one issue that will have to be addressed. As long as the northern Europeans do not pursue a more expansionary policy at home and do not reduce their own surplus, it is an imbalance, a very serious imbalance”, Soros said.

Soros argued for a political will to further integrate Europe. “You cannot have a common currency without much stronger integration of overall economic policy, fiscal policy, budgetary policy, banking regulation – the banking union has in principle been decided on – so there is this need, if one really wants to overcome the crisis to integrate the Eurozone much more. There is also the need, and I agree there very much with George Soros, that the macro-economic policy has to change: The degree of austerity is counterproductive; there is need for structural reforms of course also; and there is need for supply side measures in the Southern countries”, he said.

According to Soros, there has to be a degree of sovereignty sharing in the Eurozone that is considerably more than what existed in the past or exists today.

Soros proposed that going forward, Eurozone should be divided into two groups of countries within the larger European Union: the Eurozone moving towards quasi-federalism with a lot of sovereignty sharing, and then another group of countries, including the United Kingdom, Sweden and others that will remain part of the single market and will participate in common defense and security policy, common foreign service and allowing Europeans to work and live anywhere in the EU. The latter group will, however, not engage in the degree of sovereignty sharing that the Eurozone would.

“This will require a fundamental restructuring and reinvention of the institutions. You already have the Euro Group and ECOFIN of finance ministers. You will need to have a European Parliament that meets, in a way, in two groups : the large European Parliament meeting on the Pan-European Union affairs, and then a smaller version”, Soros suggested.

Speaking of Turkey, he added, “I think in the second group, with Sweden, with Norway, with some others, and with the United Kingdom, there is a place for a very large European country that Turkey is, that can add dynamism, more rapid growth, and more favorable demographic structure to the whole of Europe”.

Nobel Laureate and Co-Chair of the Committee on Global Thought and the Co-Founder, Joseph Stiglitz shared his views on the economic imperatives and said, “Like everybody else I do think the political project was well intended. I will spend most of my time talking about the economics. Economics is the dismal science and Europe is giving us really a field day for depression because Europe is in a recession, and many countries in Europe are in depression and we should be aware of that. If you look at where the GDP is, the declining GDP in Italy, which is not one of the crisis countries, it is as deep as in the Great Depression. There is an enormous amount of destruction of human capital going on. And what this portends for the future of Europe, I think, is not positive”.

Stiglitz stressed that this disaster was man-made and the man-made disaster had four letters : the euro. “The euro project is a great project. But when they went from a political project that had trade, that had an attempt to integrate and create a single market, to create a single currency before the political framework was created, that was what invited the disaster that followed”, he said.

Despite his skepticism, he felt Europe could work. However it would need deeper economic reform than has been talked so far. The fundamental need was for structural reform, but not structural reforms within the European countries instead structural reform of Europe, and of the Euro framework.

“Part of the problem was that before, as the euro was being created there was a failed analysis of what was going to be needed to make this diverse group of countries work. So when you have a misconception at the beginning and a failed misdiagnosis as time goes on, not a surprise that things have not worked out very well. And continually what they say is: we have to have a stronger enforcement, more austerity. Austerity is part of the problem; it is part of the reason that Europe is in a recession now. It is not the solution, it is part of the problem, and this failed mindset is really an inherent part of the difficulty”, Stiglitz argued.

Stiglitz made four recommendations: the first called for further integration, one that requires a fiscal union, in the form of Eurobonds or ECB borrowing.

The second was the need for a banking union. ‘Exacerbating the problem of austerity is that with a single market, money flows around everywhere very easily and money is leaving the banking systems of the countries that are in crisis. Backing any countries’ banks is the country’s government. The credit default swaps of the sovereigns and the credit default swaps of the banks are highly correlated. So as money leaves banks, the banks cannot lend and the country gets further down. So you need a banking union. What you need is common deposit insurance, common supervision and common resolution’, Stiglitz said.

The third recommendation urged for a growth strategy and the fourth insisted on industrial policies to enable countries as divergent as in Europe to ‘catch up’.

“Finally, I agree with Kemal, you need adjustment inside Germany – wage increases. Internal devaluation, which is the strategy that Germany is recommending, forcing the burden on other countries, has never worked. The euro was intended to bring the countries of Europe together; it was a political project. But in fact what it is doing is to divide Europe. And the tensions are very very clearly there, it has been described by the other speakers. There is, right now, as I see it, insufficient solidarity to make it work. So in my mind, to save Europe, to save the European Union, it may be necessary to sacrifice the euro”, Stiglitz asserted.

George Papandreou, former Prime Minister of Greece from 2009 -2011 and a member of parliament since 1981 gained fame as ‘the Prime Minister who implemented austerity measures’. He joined the panelists and explained his point of view, “When I was elected, I was elected on a mandate, certainly not of austerity, but of change. That was the mandate; actually it was a slogan, “either we change or we sink”, which rhymes in Greek. We knew that we really needed deep reform. In the end my first priority became, because of the situation after revealing that our deficit was not 6%, as the previous government had misstated, but 15.6%, that I had to do everything I could to keep the country from bankruptcy and exiting the euro”.

Papandreou while being a pro-European also accepted that not enough had been done so far and there was a lot more work to be done. He, however, maintained his confidence in the collective strength of the European Union.

Papandreou swiftly moved on to clarifying three myths. “The first myth was that this was a Greek problem, so therefore the whole burden of the solution of course would be on Greece”, he said. Papandreou insisted that on looking up the OECD statistics, it was clear that Greeks work the hardest compared to all European Union countries.

The second myth that Papandreou referred to was that even after a year, the Troika – the IMF, the ECB and the Commission, felt that Greece would not be able to access the markets in 2012. “Now, if Greece is the problem, then Greece again is the problem there. Well, so that was another myth. I say it is a myth because again, the OECD in 2012 proclaimed that Greece was the number one reformer amongst all OECD countries”, said Papandreou.

He continued, “So there are issues, which have been mentioned here which need to be seen, first of all, which are not particularly Greek. I do not say we did not have our problems, and I always say that we had our first responsibility to change our country and reform our country”.

Papandreou points out to the other issues with the Eurozone structure, the lack of oversight of the Commission itself; the ECB and its single-mindedness around inflation and employment and the lack of competitiveness with other parts of the world. He points out to the fact that Europe does not have much of a growth policy. He insisted that this is not just an internal problem and one that needs to be worked on together by all the Eurozone countries.

“The final myth is austerity versus reform. I will just read what Martin Wolf said yesterday in the Financial Times: “austerity and reform are the opposite of each other. If you are serious about structural reform, it will cost you upfront money”. Now he was talking about the Eurozone and the austerity programs, and now more money of course would mean more time, would mean more money for reforms”, he said.

According to Papandreou, a more effective political strategy would be to come up with a Eurobond through which one could intervene in the markets. He pointed out to another major flaw, in that, it allowed the market fears to push us around and to dominate the whole political and economic debate.

“Now I would say that of course there is a bittersweet outlook around Europe. There is the good and the bad. First of all, if we look at Europe the bad side, the bitter side is that GDP results are quite dismal. There is no really long-term growth strategy. We are not pooling our strengths as we fear of pooling our risks; and I think we have already pooled our risks, now is the time to pool our strengths, and we would be able to calm the markets and do so in a better way”, said Papandreou.

He continued, “We need the political discourse. Secondly we need a growth strategy. Third, we need a program for the unemployed. We need further integration, which in the end means further centralizing our decision making, whether it is in fiscal policy, banking union, economic, or social policy. But that also means we need to democratize our European institutions. And therefore, we cannot simply hand over to some bureaucracy in Brussels. Finally, I think we need to rethink this whole austerity program and prioritize deep reform”.

Tying together the varied, diverse and constructive recommendations put forth by the members of the panel, Jan Svejanar, Director, Centre for Global and Economic Governance at Columbia University emphasized on the political will to find the right solution.

“My main thesis is that the European Union is likely to survive. I think that the Eurozone also, although with somewhat lower probability. Europe as a whole is rich, and so it is a question of political will to find the right solution. Temporarily the situation has calmed down, which is very good. It gives an opportunity to carry out some of the reforms. The question is will they be carried out? And importantly will growth return? Because right now the situation is very difficult in the sense that the European Union is stagnant economically, and the Eurozone is declining and expected to decline”, Svejnar said.

Svejnar pointed out that the exit by Greece and others was unlikely and that new members would enter into the Eurozone as well as the European Union. He categorized the barriers to the solution as economic, political and social and said, “The austerity is reaching political and social limits in many of the countries. There is economic nationalism in the sense that the rich core countries are unwilling to pay for what they see as the prolificacy of the periphery countries. There is the merciless debt accumulation arithmetic that was mentioned, that as GDP declines, debt over GDP is growing even if debt itself is not growing. So the question is what will happen, and what we see in policy makers in Europe is that decisive steps are deferred unless they are really pressed by a crisis-type situation to take some steps. So I think that is really the weakness right here”.

Svejnar said that there was a possibility of an exit of the United Kingdom from the European Union and referred to it as the big issue that would be forthcoming in the next couple of years. He outlined the German issue – Germans being less willing to subsidize other countries – as the another ‘big’ issue.

“In terms of the future development, I think it is important to realize that Europe has incredible potential. It is a continent, which is the largest economy in the world. Because there are still quite a few inefficiencies, by eliminating those Europe can really move ahead, so it has considerable potential. The problem is the upfront austerity that is facing many of these countries”, he said.

The threats to the instability, according to Svejnar, are related to weak GDP and steps like the downgrade of the UK economy add to the uncertainty and the instability. “Should there be a slowdown in the US or in the world economy, that would have further, unfortunate repercussions on Europe”, Svejnar concluded.

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Does democracy enhance or inhibit good governance?

Does democracy enhance or inhibit good governance? The question sits conspicuously in the minds that gathered on the 15th floor of the School of International and Public affairs at Columbia University on March 4th to launch, The Governance Report 2013.

As enchanting is the view of New York from the floor, equally disquieting is the acceptance of a lack of sound governance measures by some of the most renowned voices in the room. The Governance Report 2013 makes a departure from the otherwise complacent approach towards the issue; the panelists assert impelling arguments for action.

Jan Svejanr, James T. Shotwell Professor of Global Political Economy and Director of the Center on Global Economic Governance introduces each of the panelists and sets the floor for Helmut K. Anheier, Dean of the Hertie School of Governance to elaborate on the details of the Governance Report 2013.

Anheier begins by elaborating on the definition of governance. “Governance is all about how well we manage public problems. From identification of a problem to formation of a policy”, Anheier said.

He further explained that the report has two over arching themes – one deals with the notion of sovereignty and the other with finance. He urged the audience to think as to why so few of today’s global issues are being settled.

“The conditions of governance have changed – becomes clear once we take seriously the notion of interdependence”, Anheier pointed out. “The interdependence has reached a new quality and we still have to catch up with the new reality of a pronounced interdependence of nation states. It is no longer a matter of states alone; it’s a matter of international co-operations, large scale insurance funds, investor funds and NGO’s. There are many more actors involved than have been in the past”, he asserted.

The Governance Report 2013 identifies critical areas in governance and summons urgent action. The first chapter questions the sovereignty paradox and how sovereignty is practiced under these new situations of governance. ‘If you have pronounced interdependence between nation states, the old notion of sovereignty may no longer suffice’, Anheier signaled.

He continued, “There is a cacophony of governance innovations to talk of but hardly any frameworks to accommodate them. A new way of addressing public problems and tracking the performance of government systems lies at the crux of innovation itself. The next crisis is certainly going to come. Are we better prepared or are we as ill-prepared as we were five years ago?”.

Premised on key government requirements of averting the risk of dual markets and state failure while correcting fairness deficits, the report argues for externality management and actively accepting policy interdependence.

Anheier identifies liquidity versus moral hazard; accountability versus effectiveness and domestic politics versus international commitments as the key trade-offs and argues for responsible sovereignty. “This is not to say that governments should give up their sovereignty. It is not to say that the old model is dead and no longer applies. The report argues that you just need to be smarter in the way you exercise it. As an independent state in an interdependent world, you have many more options than you normally think you have for strengthening your own sovereignty”, Anheier explained.

This changes the way innovation is perceived. Which governance innovations can actually contribute? Are we governing ourselves different from the way we were governing ourselves, 10-20 years ago? Raising these pertinent questions, Anheier delves further into a range of innovations at the local, national and international level.

Anheier calls for discovering better ways of vetting and disseminating governance innovations. He uses examples of Chiang Mai initiative, Norwegian Pension Fund, Debt brake, social impact bonds, open government partnerships and mySociety to substantiate his argument for governance innovation. Even if these innovations are put into place, measuring performance is critical and for that, a new generation of governance indicators are needed. Governance readiness, governance performance and innovation capacity are three indicators that the Governance Report suggests.

“We have identified a new system that aims to look at performance across sectors – transnational governance, national governance and city governance. With that we can answer some questions about governance performance”, he stresses.

‘The wider purpose is not to just publish a good report; we want to kick off a debate’, Anheier said, before asking Shanker Satyanath, Associate Professor of Politics, New York University to elaborate on the trade-offs involved in recovering from a crisis.

‘The first trade-off is between liquidity and moral hazard’, Satyanath said. “We need a quick injection of funds to address a crisis. Inevitably, political logic drives who receives money. Giving money has the potential to generate a moral hazard and further distort the recovery”, Satyanath explained.

Accountability and effectiveness; and domestic politics and international commitments qualify as the other two daunting trade-offs. ‘In order to be effective, we need to resolve the crisis very quickly. But how does one combine being both timely and accountable? There should be a global regulator to whom banks should report to but to whom should the regulator be accountable to?’, Satyanath urged the audience to deliberate. Further elaborating on the third trade-off, he said, ‘Politicians understandably want to maximise domestic support but policies focused on a domestic audience will often clash with international commitments and international commitments are needed to prevent the next crisis”.

When the crisis is in full flow there are more incentives to contribute but when the crisis is over, the incentives for co-ordination fail and the incentives for defect become greater. It is this cycle that Satyanath stresses, is critical to break.

Ira M. Millstein, Director of Columbia Law School steps into the debate. “We are not going anywhere with this unless, we find a good interconnection between the private sector and the state. Our problem today is not to waste the crisis. Politicians and corporates have not picked up on this crisis. If anything, it is getting worse, not better”, Millstein said, at the outset.

Millstein uses the example of the Asian crisis to stress on the urgency of this interconnection between the corporates and the state. “In the area of too big to fail which is what we are all worried about, we are still in a position of not having solved the problem. We had hoped that one theory would be resolution of failing institutions. The only problem is that it doesn’t work nationally; it can only work internationally”, he added.

Building up on this, José Antonio Ocampo, Professor of Professional Practice and Director of the Economic and Political Development Concentration said, “We cannot simultaneously pursue democracy, national determination and global policy. We have to do one of the three”.

Ocampo spots the importance of enhancing the management of cross-border spillovers and promoting resource and issue orientation. However, he recognises policy interdependence as the most important. While the rise of emerging powers has been a very strong force for change, Ocampo acknowledges that it has made the old powers less willing to share global leadership.

Reasserting the theme of interdependence, Katharina Pistor, Michael I. Sovern Professor, Columbia Law School said, “I wish the authors of the finance chapters [in the Governance report] would have pushed the interdependency issues further. I find financial regulation and the fiscal parts too disjunct. They are clearly interdependent”.

“Interdependencies are manifested not necessarily in horizontal and flat environments. They are manifested in a deeply hierarchical fashion. Some get bailed out and others don’t whether these are states or entities”, she argued.

Pistor stressed that financial markets also have to grapple with deep uncertainty, and when we put uncertainty, liquidity and volatility together, there is a high propensity for a similar crisis to repeat itself. In a system that is spilled on high volatility or liquidity, Pistor speaks of two types of interventions that must be repeated – either we provide new liquidity or we suspend other ways by law.

In reference to the recent crisis, Pistor said, ‘On one hand, we have free capital flows and on the other, we are allocating the responsibility for the liquidity crisis, where the banks are being chartered – for example, subsidiaries. But these are often subsidiaries of parent banks and parent banks, push capital into the subsidiaries to expand credit in the markets that they are operating in. When these subsidiaries go belly up, the host countries have to deal with the liquidity crisis. These kind of structures reinforce the liabilities that rest in different countries of the world, that have to be brought into the political economy of our financial system’.

“We need to focus more on the politics of financial regulation”, Ailsa Roell, Professor of Corporate Finance, School of International and Public Affairs at Columbia University asserted as the mic is handed over to her. “I am going to focus more on domestic policy issues. The international issues concern me but not so much as sovereign issues”, she added.

“The determinants of public policy performance are legitimacy, efficacy and effectiveness. I’d like to focus on effectiveness as defined in that framework. In the context of US financial regulation, there are lots of problems and problems with regulatory capture have never been worse”, Roell pointed out.

Roell uses the example of the Securities and Exchange Commission to elaborate on her argument. ‘So why is the regulator so weak? One is the politics of it. Its budget is subject to congressional co-creation. The SEC should be funded in a different way not directly by Congressional appropriation but by a charge on the industry it regulates’, Roell argued.

In reference to the Basel 3 regulations, Roell speaks of the sovereign crisis. ‘The issue of concern is the impact on bank lending. Not everybody agrees that it is a good idea to tighten these standards so much. The implementation has been delayed and weakened. It is going to shift lending to the shadow banking sector. Shadow banking will rise, which is to say that instead of banks giving loans, we will see hedge funds give funds to emerging markets, securitising them into CDO’s and possibly selling them on. This is an unintended side effect of Basel 3’, Roell explained.

Reaffirming the critical nature of governance innovation, Robert C. Lieberman, Interim Dean, School of International and Public Affairs, said, “Think about innovation as a form of institutional change. This is one of the key problems in thinking about governance in the global context. How do stable institutions, more or less, stable practices, or sets of practices or equilibria, produce enduring and significant policy change or governance change? This is what policy analysts have grappled with in the last generation or so. One to which we don’t have a clear set of answers”.

Lieberman points out that the broader problem is accounting for institutional change. He stresses that the challenge of globalisation means that there is no such thing as exogenous shock anymore. Everything that happens is now endogenous.

“One is the connection between ideas, ideas about change, new policies, new government procedures and structures. But, even the best ideas about how to change practices and how to change governance structures run into sets of practices that privilege or empower particular actors, who have a stake in the old way of doing things. So, any account of governmental innovation, that wants to be general, has to think about this problem. How to take entrenched ways of doing things, or fixed institutions and induce them to change?”, Lierberman asserted making an impelling argument for institutional change.

The report and the discussion leaves everyone with a purpose : to translate their knowledge and understanding of the world to potentially transform the sort of government reforms they would like to see.

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A European crisis for GM

The third quarter earnings for General Motors reflects a change in most variables but an incorrigible consistency in one. It has failed to reverse close to $15 billion in cumulative losses that GM’s European operations have been plagued with since 1999.

Third quarter earnings fell 14% largely arising from record losses in Europe. Vehicle sales in the region dropped significantly with a pre-tax loss of $478 million, from $292 million, a year ago. A large chunk of this loss is making its way into GM through the restructuring of its principal European brand, Opel in Germany. Over the quarter, Opel and its dealers have cut vehicle inventory by more than 100,000 cars, slowed production and improved sales at dealerships, in addition to seeing job cuts of 2300 out of a projected 2600 workers in 2012. The staff reductions are set to continue through 2015.

From the time GM was bailed out by the government, its European business has been on a constant decline. Fixing Opel and returning the division to profitability has been difficult. Despite large-scale cuts, factory closings and efforts to better align production and market share, it has brought no respite to the continuing losses. Shorter workweeks, better inventory management and fewer bottlenecks have however made some headway in reducing costs. The full year losses in Europe spanning across 2012 are in the range of $1.5 billion and $1.8 billion. The region is expected to break-even on an operating basis by mid-decade while sales are expected to fall between 4% and 5%.

GM’s net income fell from $1.73 billion a year ago, to $1.48 billion in the third quarter. In contrast, global revenue increased from $36.7 billion to $37.6 billion this quarter. Pre-tax income went down from 2.19 billion last year to $1.82 billion in the third quarter. Profit for the quarter ended at $1.83 billion or 89 cents/share compared with $2.11 billion or $1.03 a share, a year earlier. The company however, beats analyst’s expectations, making 93 cents/share above expectations of 60 cents and revenue of 2.3% to 37.57 billion, beating expectations of $35.7 billion.

China through Australia, international operations have provided the biggest boost to the quarter. Strong operating profits in Asia and South America gave an impetus to most of the financial hit. Largely powered by Chinese operations, the international divisions earned a pre-tax income of $689 million, compared with $365 million, a year earlier. Operating profit of $689 million compared with $365 million was reported. GM’s China joint ventures contributed $414 million, up from $376 million, a year ago. The South American unit swung to a profit of $114 million compared with a loss of $44 million, a year ago.

GM’s sharply higher cash flow is a welcoming change for investors. Automative cash flow rose from $1.3 billion, a year ago to $3.1 billion. The gain is a result of higher pre-tax income and fewer adjustments for cars coming off as leases.

The plummeting numbers at its European operations have however affected the price of GM shares, which are directly linked to investor patience. Despite replacing Opel’s boss twice since last year, no drastic solution seems to have come through, besides some modest cutbacks and a cost-sharing pact with Peuguet-Citroen.

According to Morgan Stanley, an investment bank, Opel’s losses in the next 12 years could be even higher than those in the past 12. Based on Opel’s continuing cash-burn, and its long-term pension liabilities, the bank’s analysts put a value of minus $17 billion on the European operation, which means that it is reducing GM’s share price by about $10.

“We used to be way behind the others, and it is still bloody out there, but we are getting some wins and we are seeing some green shoots in the mud. This company used to build cars without dealer orders and we aren’t doing that anymore’, says Stephen Girsky, Former Vice Chairman of GM’s Adam Opel European unit articulating the current state of operations at the unit.

Morgan Stanley suggests that GM would be in a better situation if it agrees to lose the European operation. The investment bank argues in favour of Daimler and BMW, for choosing to cut off from Chrysler and Rover, respectively and maintains that both firms benefited from cutting their losses -implicitly suggesting, it is time for General Motors to get rid of its European operations and do the right thing.

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