On June 12, it is likely that junior Democrats in the House will join the majority of Republicans in supporting HR 1256, or the “Swaps Jurisdiction Certainty Act.” The bill would be more aptly titled: “The AIG Bailout Certainty Act,” so we hope that some members decide to vote differently.

This bill allows American banks to escape important public protections built into the Dodd-Frank Wall Street Reform Act, by booking their high-risk swap transactions abroad. Proponents claim the bill helps Wall Street’s competitiveness in the global arena, but in truth, the bill exposes American taxpayers to high-risk gambles and actually exports jobs.

If these offshore swaps deals blow up, as did AIG’s London book of CDS (credit default swaps) in 2008, American (not British) taxpayers will foot the bill.  And because British taxpayers won’t be on the hook, , British supervisors will not have the same supervisory incentive to avoid reckless risks.

Proponents of HR 1256 argue that American banks must remain “competitive” and shouldn’t be burdened with tougher rules than their foreign rivals.  This is deceit of chutzpah dimension.  HR 1256 will encourage U.S.-headquartered banks to employ highly paid traders in foreign jurisdictions with lax oversight, not American traders working in the U.S.  These traders will pay personal income tax not to Uncle Sam, but to those foreign jurisdictions.

• Wall Street banks are not patriots with exclusive allegiance to the stars and stripes. JPMorgan employs 18,000 local bankers in more than 80 countries. Total employment at regional U.S. bank PNC, by comparison, is 20,000.  Of Goldman Sachs 32,000 employees, more than half are foreign nationals working abroad, with 5,300 in London’s Canary Wharf alone. Goldman Sachs describes itself as a “a leading global investment bank.”  Citi operates in 140 countries.
• US bank shareholders are not all Americans, so Wall Street bank profits aren’t exclusively paid to Americans.  Saudi Prince Alwaleed bin Talal is one of Citi’s largest shareholders. (Conversely, some of the largest holders of the UK’s HSBC are American institutional investors.)
• U.S. banks operating in a foreign country pay taxes in that country. Goldman Sachs paid $465 million in payroll taxes in the UK last year. Some banks attempt to record U.S. profits to convenient oversees tax havens.

It might be desirable to help U.S. factories employing U.S. workers remain “competitive” in the manufacture of cars for domestic and export sale. But subsidizing U.S.-headquartered banks with taxpayer-backed federal deposit insurance (FDIC) funding so that their London employees can gamble in Canary Wharf CDS index parlors cannot be justified.

Proponents call the bill the “Swaps Jurisdiction Certainty Act”, implying that traders simply want to know the rules.  However, the CFTC has promulgated nearly all the necessary rules, and provides that “certainty” already.

Technically, the bill would allow U.S. regulators to de-certify a specific nation from overseeing U.S. banks operating there. However, that is only allowed following a joint finding and vote by the Securities and Exchange Commission and Commodity Futures Trading Commission that the nation’s rules are not “broadly comparable.” Given that Wall Street has already blocked regulations in court on technical definitions, “broadly comparable” represents a standard that nearly any set of rules might meet.  Politically, de-certifying a nation will be difficult, and is an empty threat.

CFTC Chair Gensler has said the results of such a bill “blows a hole” in Wall Street reform; we agree.

Bartlett Naylor is the financial policy reform advocate for Public Citizen’s Congress Watch division. Follow him on Twitter at @BartNaylor.

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