The first Volcker Rule loophole?

Former Federal Reserve Board Chairman Paul Volcker testifies during a hearing before the Financial Institutions and Consumer Protection Subcommittee of Senate Banking, Housing and Urban Affairs Committee May 9, 2012. 

The federal government was officially closed Tuesday because of Washington’s snowstorm, but that didn’t keep five federal agencies from finalizing the Volcker Rule, part of the Dodd Frank financial reform law designed to keep banks away from risky investments.  The rule itself is about 70 pages -- but there are almost 900 pages of preamble. 

And that's what lawyers like Oliver Ireland, a partner at Morrison and Foerster, are parsing. 

"I will spiral into the rule," he says. 

He's searching for for what some call loopholes. He prefers to call them exclusions. 

"I’m going to be looking for things that it’s not covering and where it was probably too broad to begin with," he says.

Things like what kinds of bank trades the rule applies to.  It’s designed to keep banks out of the kind of trouble that helped cause the financial crisis. But at the same time, regulators didn’t want to crimp the financial markets or make it more expensive to borrow money. So they made the rules really flexible, says Joel Telpner, a partner at Jones Day. 

"These issues are so complicated that it’s impossible for regulators to anticipate every concern that’s going to arise,” he says.

Critics say that flexibility was baked into the rule by bank lobbyists. Lobbyists and lawyers aren't the only ones pouring over thick stacks of paper. So is Marcus Stanley, who is with the consumer group Americans for Financial Reform. 

"If you open this rule to any random page you’re going to see words like reasonable, as necessary," he says. "Words that require judgment by the regulators.” 

Stanley says there need to be limits on how flexibly the rules are implemented. Otherwise, he says, banks will find loopholes and, in his words, blast them wide open. 

About the author

Nancy Marshall-Genzer is a senior reporter for Marketplace based in Washington, D.C. covering daily news.

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