Cost-Benefit Analysis Could Be the New Regulatory Roadblock


A House-passed bill that would require the Securities and Exchange Commission to parse the cost-benefit breakdowns of its rules could signal a broader trend in curbing regulations through number crunching, according to several financial analysts.

Cost-benefit analyses — which say regulators should justify the price tags of their rules — have been pitched for years by those who consider financial regulations vague and excessive. While currently not a statutory requirement for the SEC, proponents say the approach could gain traction under a unified Republican government focused on dismantling the 2010 Dodd-Frank law.

On Thursday, the House passed H.R. 78 mostly along party lines: 243-184. In addition to requiring a cost-benefit analysis for all new rules, it would require the SEC to zero in on the exact problems a rule seeks to solve and identify possible alternatives. The measure says regulations should be easily understandable, and it would require the SEC to revisit its rules every five years.

The same day, the House passed H.R. 238, which would impose similar requirements on the Commodity Futures Trading Commission. Lawmakers passed the bill 239-182.

The SEC currently conducts economic analyses of its rules voluntarily, an SEC official said Tuesday, citing agency guidance from 2012. The bill would make a specific cost-benefit breakdown a requirement.

Industry experts who favor the change said in interviews that they hope the bill targeting the SEC can pave the way for Trump’s pick for SEC chairman, Jay Clayton, to revisit several Dodd-Frank regulations. Those industry participants want to stop regulatory advocates from justifying any financial rule as necessary by comparing its burdens on the industry to the fallout of a theoretical systemic financial crisis, according to a former SEC staffer who spoke on background.

Matthew Beck, spokesman for the Investment Company Institute, said in an email Wednesday that ICI is reviewing the bill. “ICI has long advocated for a robust examination of the economic impact of regulation, at the SEC and elsewhere,” he wrote.

Republicans and many financial industry participants see the legislation, sponsored by Rep. Ann Wagner (R-Mo.), as a way to ensure targeted rules are deployed only to address tangible problems that have measurable outcomes.

Democrats say cost-benefit analysis allows for the dismantling of regulations and gives companies too much influence over the regulatory process. Outgoing SEC Chair Mary Jo White criticized the legislation as burdensome and “needlessly detailed” in a speech Tuesday.

Rep. Maxine Waters (D-Calif.), the ranking member of the House Financial Services Committee, decried the bill during floor debate Wednesday. She said it “would enable the Trump administration to easily repeal important Dodd-Frank rules by tilting the SEC’s decisions towards what is best for industry, and worse, what enriches the president-elect and his cronies.”

Public Citizen, a left-leaning advocacy group, has suggested that agencies should use cost-benefit analysis as a guiding tool, but not a definitive driver of regulatory action.

The SEC’s economic analyses are already rigorous, said Amit Narang, regulatory policy advocate at Public Citizen, in a Tuesday interview. The House bill could make the agency’s analyses vulnerable to industry litigation. The proposed change, he said, “transforms it from one of the many factors the SEC considers when determining when and how to regulate, to the dispositive factor, the decisive factor.”

Morning Consult