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Louis Jacobson
By Louis Jacobson December 4, 2012

Dodd-Frank law upheld pledge, but key regulation held up in court

With passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, President Barack Obama went a long way toward fulfilling his pledge to regulate oil trading and "increase transparency" in the market.

At a sprawling 848 pages, the law is hardly the "simple" one Obama had promised, and even the relevant sections -- which are a small fraction of the whole law -- aren't particularly comprehensible to the layman, either.

But experts told PolitiFact that portions of Title VII of Dodd-Frank -- the section dealing broadly with derivatives and a subset of derivatives called swaps -- address the issues Obama raised in the promise.

Traders of derivatives, as we have noted, enter into agreements to exchange cash or assets over a period of time based on the value of the underlying asset. Until Dodd-Frank, derivatives were traded outside regulated markets and are blamed by some for the Wall Street collapse of 2008.

Title VII of Dodd-Frank empowers the Commodity Futures Trading Commission, a federal agency, to regulate and expand transparency for such transactions. For instance, section 727 specifically requires all swaps to be reported to newly created entities called "swap data repositories." The law defines "swaps" broadly, in a way that would seem to encompass oil trading, experts said.

The law firm Morrison & Foerster LLP called Title VII a "comprehensive and far-reaching regulatory regime on derivatives."

However, the law also grants discretion to the CFTC to draw up specific regulations, and some of these have run into interference. In October 2012, a federal court threw out a key CFTC regulation on "position limits" -- caps on how many derivatives contracts a trader can hold. The rule would cover 28 commodities, including oil and natural gas. The commission is appealing the ruling.

We also need to mention a major caveat: Not everyone agrees that the policy changes undertaken by Dodd-Frank will actually fix the problems Obama claimed to be addressing. In fact, some experts see Obama's pledge as more of an attempt to to satisfy populist urges than to actually improve how financial markets work.

"There is no credible evidence that 'loopholes" in Commodity Futures Trading Commission regulations have ever contributed to the skyrocketing price of oil in world markets," said Lutz Kilian, a University of Michigan economist." The actual cause of the surge in oil prices has been strong global demand from emerging economies."

Ultimately, the Dodd-Frank law did address the issues Obama raised in his promise, but a key implementing regulation is stalled in court, and it's remains unclear how directly the new regulations will address the broader issue of oil prices. On balance, we rate this a Compromise.

Our Sources

By Catharine Richert December 3, 2009

Legislation would strengthen derivatives oversight

President Barack Obama promised to push legislation to close loopholes in the futures trading system.
Before we get into Obama's progress, we'll have to talk derivatives. Instead of trading an actual asset, derivative traders enter into agreements to exchange cash or assets over a period of time based on the value of the underlying asset. Currently, they're traded outside regulated markets and have caused a lot of trouble recently as a result; many financial experts blame the collapse of Wall Street and skyrocketing gas and oil prices on these trades.
The House Financial Services Committee, which oversees the Securities and Exchange Commission, and the Agriculture Committee, which oversees the Commodities Futures Trading Commission, has approved legislation that would crack down on the complicated market. Among other things, the bill would require trades to be processed through a central clearinghouse; cleared swaps would be traded on regulated exchanges and the transactions would be reported publicly. Furthermore, the bill would require the CFTC to set trading limits for physically deliverable commodities -- like oil -- to prevent excessive speculation.
The bill must make its way to the House floor for a vote and head to the Senate after that, where its fate is unclear. Until the bill becomes law, we're moving this promise to In the Works.

Our Sources

Congressional Quarterly, Panel Works Through Amendments to Derivatives Measure, by Kate Davidson and Charlene Carter, Oct. 14, 2009

The House Agriculture Committee, press release on CFTC legislation , accessed Nov. 27, 2009


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