So Professor Stigler, is it fair to say "Regulatory C-A-P-T-U-R-E" ?

Writing for Bloomberg, Matthew Leising discusses a plan by the U.S. Treasury to regulate over-the-counter derivatives in "Geithner Adopts Part of Goldman, JPMorgan Plan for Derivatives."

"The U.S. Treasury's plan to regulate the over-the-counter derivatives market outlined by SecretaryTimothy Geithner on May 13 contains recommendations similar to those made by Goldman Sachs Group Inc., JPMorgan Chase & Co., Credit Suisse Group AG and Barclays Plc three months earlier.

The banks sent the Treasury a plan written in February titled "Outline of Potential OTC Derivatives Legislative Proposal," saying the Federal Reserve should extend capital and margin requirements to companies and hedge funds that trade in the $592 trillion unregulated market, according to a document obtained by Bloomberg News and confirmed by the Treasury. Energy companies, corporations and hedge funds don't face such requirements now, while banks do under central bank oversight.

"The banks appear to wish to maintain the intra-dealer market and raise barriers to new entrants to keep the OTC business as compartmentalized as possible and to protect their profitable market conditions," said Brad Hintz, an analyst at Sanford C. Bernstein & Co. in New York. "The Street's lobbyists appear to be asking for a ‘club' structure in OTC trading."

On May 13, U.S. officials called for increased oversight of over-the-counter derivatives to reduce risk to the financial system. Derivatives contributed to the failures last year of Lehman Brothers Holdings Inc. and American International Group Inc., leading to the seizure of credit markets and causing more than $1.4 trillion in writedowns and losses amid the worst financial crisis since the Great Depression.

‘Little Impact'

The Treasury hears from many interested participants while crafting policy, said spokesman Andrew Williams. Derivatives are contracts whose values are tied to assets including stocks, bonds, commodities and currencies, or events such as changes in interest rates or the weather.

"This proposal had little impact on our final result," he said. "Our proposal calls for dramatically increased transparency and the enhancement of regulatory powers to prevent market manipulation that go well beyond anything in that draft."

Bruce Corwin, a spokesman for Zurich-based Credit Suisse, and Goldman Sachs spokesman Michael DuVally declined to comment on the bank draft. Representatives from JPMorgan, located in New York with Goldman Sachs, and London-based Barclays didn't immediately return calls and messages for comment left after normal business hours.

‘Robust Regime'

Geithner sent a proposal to Congressional leaders on May 13 laying out his plan to police the unregulated market where swaps based on interest rates, currencies, commodities and a company's ability to repay debt are traded.

"All OTC dealers and other firms who create large exposures to counterparties should be subject to a robust regime of prudential supervision and regulation," the proposal said. These included "conservative capital requirements," "reporting requirements," and "initial margin requirements."

The bank-written plan, dated Feb. 13, said the systemic regulator "shall promulgate rules" requiring "capital adequacy," "regulatory and market transparency" and "counterparty collateral requirements."

"Better the devil you know than the devil you don't," said Robert Webb, a finance professor at the University of Virginia in Charlottesville, describing the bank's preference for their current regulator.

Shifting Views

The banks sought sole authority for the Fed over the market and limited the role of the U.S. Securities and Exchange Commission and the Commodity Futures Trading Commission, according to the document. The three agencies currently share information in the $28 trillion credit-default swap market.

Geithner's proposal didn't specify what agency or combination of agencies should oversee the market.

The Obama administration favors the Fed becoming the new systemic risk regulator to oversee financial companies that could pose a danger to the banking system, according to participants in a May 8 White House meeting.

While the central bank has been favored to take the job since a proposal by former Treasury Secretary Henry Paulson last year, lawmakers and some regulators have shifted away from that view. Federal Deposit Insurance Corp. Chairman Sheila Bair and SEC Chairman Mary Schapiro earlier this month recommended that a council of regulators assume the role. Geithner's plan goes further in many aspects than what the banks laid out in their draft.

No Clearing Requirement

The Treasury Secretary is proposing mandatory guaranteeing of private contracts with clearinghouses for standardized OTC contracts such as interest-rate swaps or indexes of credit- default swaps and increased electronic trading to improve price transparency for customers. He also wants required reporting of positions and trades.

The bank proposal doesn't endorse clearing of OTC derivatives. In annotations to the draft it states "Note that the proposed outline does not propose any specific OTC derivatives clearing requirement." It also says reporting requirements on trade data should be made to regulators "upon request."

Webb said any regulation over the market should be applied evenly. "It's not clear requiring everyone to have the same capital requirements is necessary," he said. He added that banks have worked closely with the Fed for many years.

"You're going to see some close ties between the industry and the regulator," he said."

Rob Johnson is a Senior Fellow and the Director of the Project on Global Finance at the Roosevelt Institute.