"Sorry Mr. Bernanke, there will be no bonus this year."

Your Financial Reform Watch team has reported before on key legislators' misgivings with the administration's plan to make the Fed the systemic risk regulator for so-called "Tier 1" financial holding companies. Those misgivings are holding sway now on Capitol Hill and are beginning to take hold in the administration itself.

Just yesterday, SEC Chairman Mary Shapiro and FDIC Chairman Sheila Bair were the latest to endorse what Shapiro referred to as a “hybrid approach,” one that would significantly strengthen the president’s current proposal of creating a Financial Services Oversight Council, responsible for collecting data and identifying emerging financial market risks for the Fed. Instead, both Shapiro and Bair envision a council of regulators that would work in concert with the central bank. Additionally, Bair recommended that, in order to ensure independence, the chairman of the council should be a presidential appointee subject to Senate confirmation.

On the Senate side, Banking Committee Chairman Chris Dodd (D-CT) and Ranking Member Richard Shelby (R-AL) are both giving voice to concerns about the enhanced role for the Fed. Shelby has been an outspoken critic of giving the Fed such authority from the start, but Dodd’s statements at a committee hearing yesterday that the “new authority could compromise the independence of the Fed when it provides monetary policy,” and that he “expect[s] changes to be made to this proposal," made it clear the Senate is heading in a direction different from the administration's.

The same is true in the House where Financial Services Committee Chairman Barney Frank (D-MA) has thrown his weight behind additional powers for a regulatory council, telling reporters this week that systemic risk oversight powers are “going to be shared authority.”

During House and Senate hearings this week, Federal Reserve Chairman Ben Bernanke listened as members on both sides of the aisle sharply criticized the Fed for its inability to prevent an economic collapse and questioned the wisdom of expanding the central bank’s role beyond its core function of setting monetary policy.

This strong momentum shows that the Fed has still not recovered from its perceived shortcomings at regulating bank holding companies in recent years. In a town where success is measured in the accretion of responsibility, staff, and budget, the Fed is, in effect, being denied a "performance bonus".

Administration Moves Forward on Registering Hedge Funds

Late yesterday afternoon, the Treasury Department released draft legislation that would require advisers to hedge funds, private equity funds, venture capital funds, and other private pools of capital to register with the Securities and Exchange Commission (SEC) if they have more than $30 million of assets under management. In addition to registering, the advisers will be subjected to new reporting, recordkeeping, compliance, and disclosure requirements as well as conflict of interest and anti-fraud prohibitions. In its release, Treasury said,

"The Administration's legislation would help protect investors from fraud and abuse, provide increased transparency, and provide the information necessary to assess whether risks in the aggregate or risks in any particular fund pose a threat to our overall financial stability."

Financial Reform Watch will be tracking this legislation as it moves through Congress.

Treasury:  Proposed Legislatve Language for the Registration of Hedge Funds (PDF

SEC Proposes Amendments To Investment Adviser Custody Rules

On May 27, 2009, the Securities and Exchange Commission (the “SEC”) proposed amendments to Rule 206(4)-2 under the Investment Advisers Act of 1940 (“Advisers Act”) which governs custody arrangements for registered investment advisers (“Rule 206(4)-2”).

The proposed rule, if adopted, would require registered investment advisers that have custody of client funds or securities to undergo an annual surprise examination by an independent public accountant to verify client funds and securities. In addition, unless client accounts are maintained by an independent qualified custodian (i.e., a custodian other than the adviser or a related person), the adviser or related person must obtain a written report from an independent public accountant that includes an opinion regarding the qualified custodian’s controls relating to custody of client assets.

Finally, if adopted, the proposed rule would provide the SEC with better information about the custodial practices of registered investment advisers. The proposed rule is designed to provide additional safeguards under the Advisers Act when an adviser has custody of client funds or securities. Comments on the SEC’s proposal are due to the SEC on or before July 28, 2009.

Excerpt from the Corporate and Securities Update published by Blank Rome LLP, click here to read the full alert.