Fiscal cliff as constitutional crisis

The news is filled lately with the "fiscal cliff" looming on March 1 and the devastating effects going over the cliff will have on a broad range of public services, such as food inspection, air transportation, and, certainly, financial regulation.  The threat of going over the cliff also has widespread negative implications for the private sector.  I wrote about some of these problems at the end of January.  And we have more recently witnessed financial regulators renewing their pleas to congressional leaders for adequate funding merely to attempt to carry out their missions -- e.g., CFTC Chairman Gary Gensler still trying to inch his meager staff of about 630 toward the 1000 mark.  But a new and deeper issue of the governmental dysfunction represented by the "fiscal cliff" has occurred to me recently and caused me to revisit the matter.

Clearly the spectacle of a legislature that cannot even agree on a budget for the federal government -- which thus has to "close down" (to the extent that can even be done) -- is not new.  There have been brief government closures, and several near misses, in the past.  That threat still exists with the expiration of the current continuing resolution funding the government until March 27.  Failure to fund the government for a new fiscal year is deeply dysfunctional to be sure -- true nonfeasance.  And history is filled with highly beneficial bills that should have become law but did not through such nonfeasance.

But I cannot recall an instance when Congress passed and the President signed a law which all parties knew when it took effect would be positively detrimental to the nation.  This seems to me to be an even deeper level of dysfunction than we have seen before -- malfeasance rather than nonfeasance.  Democratic institutions do not function well in the absence of existential crises.  But when the legislature creates a synthetic crisis in hopes of scaring itself into action, and then fails to avoid the crisis it has created (or moves the date of the disaster ever onward), the level of governmental dysfunction approaches a constitutional crises in which the very structure of the government prevents it from accomplishing its stated purposes ("provide for the common defense and security", etc., etc.).

If you know of other cases when Congress enacted legislation that it knew would be detrimental to the country, have thoughts on my proposition that this is a deeper and more critical level of dysfunction than the usual nonfeasance we previously experienced, or have any other illuminating thoughts on what this means for the viability of our system of government, the administrative/regulatory state, or any similarly lofty matters, please let me know.    

Swapping swaps for futures

The hottest topic of the day is the migration of swaps to the futures market, which appears to have taken regulators somewhat off guard.  The basic idea is that market participants will prefer to use futures contracts that mimic the performance of swaps rather than using the swaps themselves.  The apparent motive behind this migration is the impending regulation of the swaps market, with the imposition of the usual regulatory requirements relating to margin, block size, transaction reporting, central clearing, swap dealer registration, etc.

On January 31, 2013, the CFTC held a public roundtable to solicit input on the benefits and burdens of this migration.  Written comments can be retrieved from the agency website and a video of the day-long session will be available there soon.  The trade press is also providing extensive coverage of the views of scholars and partisans on this matter.

Certain basic principals can easily be agreed upon, regardless of where one's interests may lie.  Opportunities for "regulatory arbitrage" between the swaps and futures systems should, naturally, be eliminated or at least minimized.  The increased burden on "end users" who use swaps to hedge their actual risks in the marketplace should also be held to a minimum, although that will undoubtedly be a non-zero number.

Where the regulatory lines are drawn, and how they are adjusted with experience, will certainly be a matter of intense debate and unavoidable experimentation; much of this is unexplored territory.  But regulators and Congress must keep the broader picture in mind.  Futures and swaps are often, rightly, analogized to insurance policies.  It is less common to recognize the costs of regulation as part of the premium, as real as that cost is.  Dodd-Frank and its implementing regulations are intended to be insurance against catastrophic failure of the national and international financial system.  The "regulatory premium" for that policy will never exactly reflect the corresponding risk in such a complex and dynamic system, but burdens, fair and unfair, must be borne to provide a better system than the one that exploded five years ago.