ESTABLISHMENT SEEKS A FEDERAL CHARTER, THE

“Although the National Association of Insurance Commissioners (NAIC) has been working for years to create a modernized and uniform state regulatory system, such a system has not yet been achieved and seems unlikely to be realized in the near future. Under these circumstances, an optional federal chartering system for insurance companies seems to be an idea whose time has come,” according to Wallison.

For many years, the AEI beat an incessant drum urging the transfer of regulatory jurisdiction from the federal government to the states. In a report released in early March 2006, the AEI espoused the creation of an optional federal charter for insurers.
Traditionally, the AEI has used the following modus operandi:

1) Identify stringent federal rules

2) Urge transfer of authority to the states

3) Threaten any state jurisdiction that actually uses the authority with an industry boycott.

Reversal

The AEI reverses itself with the call for federal insurance oversight. Without drawing attention to the policy reversal, the think tank explains its flip flop by blaming the states for not deregulating fast enough after the 1999 repeal of the Glass-Steagall Act of 1933.

One can quibble with the extent of competitive change that occurred after the repeal of the venerable act, which established legal firewalls between the three financial services sectors, helping to rebuild the American financial system after its collapse in 1929. Decades of seriously damaging court decisions and Federal Reserve Board rulings had weakened the Glass-Steagall Act so much that competition among banks, insurers and life insurance companies was already rampant by the time the act was repealed. As early as April 7, 1998, the financial historian Ron Chernow told The New York Times, “[The Act] is so riddled with loopholes at this point that it is effectively dead-Congress just refuses to give the last rites and bury it.”

The true change brought on by repeal related to the ability of financial institutions from one sector to own an institution in another sector. Investment and commercial banks have been hesitant to buy or establish insurance companies that are not subject to the subservient world of banking supervision. Ownership and not competition seems to be inhibited.

It is important to note that the AEI points toward the notoriously docile Office of Comptroller of the Currency (OCC) when it discusses an optional federal charter. By highlighting the OCC, the AEI is very clear that the national framework that it is now advocating should not be loaded down with consumer protections or enforcement mechanisms.

As Wamson points out, the banking lobby proposed an optional federal charter even when it was clear that the Congress would repeal the Glass-Steagall Act. This new competitive environment forced insurance companies and their associations to consider the advantages of a new regulatory framework; and at an AEI conference in June 1999, the American Bankers Insurance Association-an affiliate of the American Bankers Association-proposed the idea of an optional federal charter for insurance companies.

President Clinton did not sign the repeal legislation until November 12, 1999, so it’s difficult to see how the proposal responds to the post-repeal market.

The “Fetcher Bill” phase

The AEI report seems to be part of a growing campaign to revive the optional federal charter legislation. Many observers expect legislation to be introduced this year, but no one expects its passage.

Opponents of the optional federal charter proposal still rally behind the banner of the State Modernization and Regulatory Transparency (SMART) Act. This proposed legislation may actually be introduced this year as well. Once again, no one expects this legislation to pass.

Regular readers of this column will recognize the elaborate ruse being carried out with the introduction of each piece of insurance legislation. The old name for such legislation is “Fetcher Bills.” While they cannot pass, members of Congress can use the legislation to attract campaign donations from interested parties.

A major shift

Still, the move by the AEI should not go unnoticed by those who support a streamlined but effective system of state insurance regulation. The AEI is not an industry trade association that sends out cheerleading press releases for membership consumption. The AEI is a think tank that melds policy development and political action into one powerful force. At times it serves as a government in waiting. Proposals honed by the AEI result in laws, insurgencies and wars. The AEI is not just any think tank.

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