Court's Ruling Deals Dodd-Frank Another Blow
NEW YORK ( TheStreet) -- One news item getting surprisingly little airplay is Friday's ruling from Judge Robert Wilkins blocking the U.S. Commodities Futures Trading Commission from implementing new position limits rules in derivatives. It is surprising because this "little" ruling will set back Dodd-Frank reforms another six months at the very least, but even worse, call into question all of the new financial reform.
In short, the federal judge ruled that the CFTC did not pass his test of proving that position limits were necessary before imposing them -- in other words, the judge was unconvinced that position limits would do anything to stop financial speculation driving prices up in commodity markets, particularly, but not limited to the oil markets.
By ruling against the CFTC and for the Securities Industry and Financial Markets Association and International Swaps and Derivatives Association complainants -- represented mostly by investment banks like Goldman Sachs, Morgan Stanley, JP Morgan and other trading firms -- not only has the judge threatened the tools of the CFTC uses to regulate its markets, it has threatened the motivations for Dodd-Frank entirely.
So this is a big deal and leaves the CFTC in a very strange place. What can they do now to try and save their reputation, regulatory power and their mandate from Dodd-Frank? One thing they can try and do is rewrite their position limits rules to try and get inside the judge's idea of what is "necessary and appropriate," a process that will take at least six months and possibly more with limited chance of success.A second option would be to abandon many of the tools that the CFTC customarily uses to regulate the futures markets, including position limit, margin and transparency requirements, and seek a new set of mandates from the government. Both of these options are more than unpalatable -- they are nearly impossible. The last option is the obvious but equally daunting one: Appealing the judge's ruling. Without an overturning of this ruling, however, it is unclear how the CFTC can enforce its mandate of oversight over the futures markets given to it by the Dodd-Frank law. It is much more likely that the entire effort will be left on the scrap heap of history, and investors will again be forced to ask where the oversight was when the next derivative/futures/swaps financial crisis arrives. In light of this ruling, it is becoming clear that the banks and traders have won their long battle and continue to notch victories in turning much of the Dodd-Frank legislation into a toothless and weak paper tiger. And that will lead to a far easier path to a fresh financial crisis, and bad news for everyone. Follow @Dan_Dicker This article is commentary by an independent contributor, separate from TheStreet's regular news coverage.
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