The Financial Services Council's membership includes financial services providers from every
sector of the industry: banks, securities firms, insurance companies and diversified firms
engaged in financial and nonfinancial activities. Council members compete head to head every
day but share the conviction that fundamental reform of our financial laws is necessary to retain
America's global leadership in financial services.
The legal structure that separates banking from investment banking, insurance, and commercial
activities is outdated and fraught with exceptions. Through regulator and judicial interpretations
of existing law and marketplace pressures, financial services providers are increasingly
competing across industry lines. But our laws limit full competition, restrict consumer choice,
impose unnecessary costs, and dampen innovation, benefiting neither provider nor consumer.
The Senate has a unique window of opportunity to act prior to the close of this session of
Congress. Consolidation of firms and expansion of product offerings, both in the U.S. and
abroad, will continue to take place, with or without legislation. It is important to establish the
regulatory framework that can both grant the flexibility needed by firms to meet the needs of the
marketplace and ensure appropriate supervision of large and complex institutions.
H.R. 10 as passed by the House of Representatives offers a solid legislative foundation from
which the Senate can build. It allows affiliations between all sectors of financial services under a
holding company structure, ensures functional regulation of the subsidiaries, and ensures
umbrella regulation of the holding company.
Most of the industry infighting about affiliation and functional regulation has been settled. The outstanding issues are few and resolvable. They include use of bank operating subsidiaries vs. holding company affiliates, the extent of a commercial investment by a financial services holding company, clarifications on OCC deference over future products, and clarifications over the non-discrimination clauses in the functional regulation of insurance agency activities.
Mr. Chairman and Members of the Committee, I am John G. Heimann, Chairman of Global
Financial Institutions at Merrill Lynch & Co. I am honored to have the opportunity to testify
before this Committee in my capacity as Chairman of the Financial Services Council. The views
I express synthesize my experience as a practicing investment banker, a former bank regulator on
both the state and national level, and as an active participant on matters pertaining to financial
systems of this country and the world. Today I am speaking to you not as a senior executive of
Merrill Lynch, but rather on behalf of the diverse membership of the Financial Services Council.
The Financial Services Council differs from other associations who will come before you to
discuss financial modernization because it represents the views of companies active in all sectors
of the financial services industry. Our membership includes banks, securities firms, insurance
companies and diversified firms that engage in both financial and nonfinancial activities. We
compete head to head every day for the opportunity to serve consumers and investors. But we
share the conviction that fundamental reform of America's financial laws is necessary to allow
U.S. financial services providers to compete fairly and competitively in domestic and
international markets, and to provide to consumers more products with greater convenience,
more innovation, and lower costs.
For more than a decade, we and others both in industry and government have argued that
consumers and markets would benefit by unshackling the financial services industry from an
antiquated legal structure. The provisions of the Glass Steagall and Bank Holding Company
Acts, some of them devised over 60 years ago, were designed in response to a marketplace that
no longer exists. There is a growing consensus in the industry -- and hopefully in this room --
that these rules restrict competition, reduce consumer choice, and are not necessary to protect
consumers or insured financial institutions. Treasury Secretary Rubin testified in 1997 about the
savings to consumers that would result from reform of our depression era financial laws. He
stated that "it would not be unreasonable to expect ultimate savings to consumers of 5 percent
from increased competition in the securities, banking and insurance industry -- as much as $15
billion per year. These savings would be substantially greater if you include costs to companies,
as well as consumers."
The Senate has a unique window of opportunity to pass major financial reform this year, and we
think it imperative that you do so. Unlike years past, wherein we debated this issue on
predictions of rapid changes in the financial markets, you are now addressing this legislation
within a whirlwind of global financial industry consolidation. Over the last year, we have
witnessed our international competitors both consolidate their resources and acquire a number of
American financial institutions. Despite the consolidation occurring in the U.S., most of the
largest financial services companies are today still headquartered outside this country. If our
industry is to remain competitive around the world -- especially as financial reform comes to the
European Union -- we must take steps to maintain the global preeminence of U.S.-based
financial corporations and of our nation's financial markets.
The rapid evolution of banking, securities and insurance will not cease, and modernization will
happen with or without legislation. Whether one likes or dislikes the mergers that are taking
place, it is important to establish the regulatory framework that can ensure appropriate
supervision of large and complex institutions. Should Congress fail to act this year, the
restructuring of the global financial industry will simply proceed while American institutions
remain handicapped by antiquated laws.
The trick in reforming the regulatory framework is ensuring it enhances competition abroad,
while advancing competition here at home. H.R. 10, the bill recently passed by the House,
achieves this balance, strengthening the hand of those of us that compete with foreign financial
institutions here and abroad, granting new opportunities to financial companies here at home,
while enhancing competition and consumer choice. I believe the legislation represents a fair
compromise that instills competitive parity between banks and other financial providers. The
ultimate beneficiaries of this increased competition are consumers, who will have a greater
number of products and services to choose from, in a more convenient forum, and at lower
Most of the industry infighting that has plagued debate on this legislation is resolved. As was
illustrated by consideration of H.R. 10 on the House floor, no one questions the basic reforms
proposed -- that banks and securities firms and insurance firms should be allowed to affiliate.
Though some disagreement on regulation of this new financial holding company remain, the
issues are not many and certainly can be settled. Now is the time to put in place a workable
system that will set the framework for the delivery of financial services in the new century.
Glass-Steagall and the Bank Holding Company Act
Our current financial laws were shaped in an economic era vastly different from today's. They
were created for the America of the Great Depression -- long before electronic banking,
emerging-market funds, or currency swaps were even imagined. But while consumer needs and
the marketplace have changed considerably, the law remains much the same. The central
component of financial modernization is the repeal of sections of the Glass-Steagall and Bank
Holding Company Acts that serve to separate our financial services industry into distinct sectors.
Glass-Steagall and Section 20 Affiliates
In the wake of the stock market collapse of 1929 and deep distrust of our financial sector, it was
felt that the best way to enhance the safety and soundness of banks, and to protect depositors,
was to prevent banks from engaging in securities activities, particularly underwriting. So
Congress enacted amendments to the Banking Act, known as Glass-Steagall, which generally
prohibit banks from underwriting or dealing in securities and from affiliating with firms that
"engage principally" in such activities.
Glass-Steagall contained exceptions to this blanket rule when it was enacted. For example, it
permitted banks to underwrite and deal in U.S. Government bonds and municipal general
obligation bonds. Over the years, the list of exceptions grew as bank regulators became
convinced that securities activities could be conducted without jeopardizing banks, and
additional sources of revenue could enhance bank safety and soundness. Ten years ago, banks
were authorized to establish affiliates known as Section 20 affiliates to engage in securities
activities that were ineligible to be conducted directly by a bank, for example the underwriting of
corporate equity securities. Today, bank holding companies may derive up to 25% of their
revenues from the underwriting activities of Section 20 affiliates, and some of the leading
underwriters are now bank holding companies. There have been 21 acquisitions of U.S.
brokerages by banks since the expansion of Section 20 - and in 9 cases the acquirors were non-U.S. banks. Acquisitions by banks of many of our major securities firms; Alex, Brown --
Wheat, First -- Dillon, Read -- Montgomery Securities -- Oppenheimer & Co., just to name a
few, is possible although the Glass-Steagall Act has not changed.
Bank Holding Company Act
The Bank Holding Company Act of 1956 is the other major law governing the structure of our
financial services system. The Bank Holding Company Act, among many other provisions,
requires that companies that control banks engage only in activities that are "closely related to
banking." This is the law that separates banking from insurance and commerce, and prevents
entities that engage in nonbanking or commercial activities from acquiring banks. In reality,
however, the barrier between banking and other financial and nonfinancial activities has never
been impenetrable. Banks that are owned by individuals and partnerships are not subject to the
Act. Insured financial institutions that are not "banks" under the Act, such as thrifts, credit card
banks, industrial loan companies and grandfathered limited-purpose banks, may be owned by
companies that engage in financial or commercial activities. Until 1970, commercial businesses
could own full-service banks as "unitary bank holding companies", just as they may today own a
unitary thrift holding company.
Just as non-banking financial and some commercial companies have made limited inroads into
the banking business, bank regulators have interpreted existing law in a progressive manner to
allow banks, in addition to the previously discussed securities activities, to expand their
insurance operations. Such regulatory interpretations of existing law, though criticized, are
responses to marketplace developments. Increasingly, financial services providers compete
across industry lines. But true competition is limited by law.
What is the force behind these market developments? The needs of consumers of financial services have evolved and are, in turn, transforming the market. The current regulatory structure was put in place when the range of services available to the consumer, as well as the number of potential providers, was limited. Most financial services were obtained locally, more often than not from a neighborhood banker or insurance agent with whom the consumer was personally acquainted.
In today's marketplace, consumers, investors and businesses are not hesitant to obtain services
from a variety of providers, some locally, and some located in distant states. While many
consumers choose to obtain services from a trusted source with whom they are personally
acquainted, others prefer the convenience of transacting business over the telephone or via the
Internet. Consumers not only have access to financial information 24 hours a day, but can
initiate financial transactions worldwide on a real time basis.
Consumer needs have prompted the development of financial services that were rare or
unknown not long ago -- services like mutual funds, money market accounts, credit cards,
mortgages, individual retirement accounts, home equity loans, stored value cards, and a variety
of products geared to the business owner. Many of these new products are the result of an
increasing level of competition by financial services providers across industry lines, providing
alternatives to services once available only from a single source. Thus, money market mutual
funds were developed by the securities industry to provide an investment opportunity for funds
that consumers were holding in bank accounts. Banks offer loan syndications and private
placements of securities to business clients as an alternative to services offered by securities
firms. Life insurance companies developed single premium annuities to compete with bank
certificates of deposits.
Delivery of these products, that is, serving consumers, is facilitated by increasingly sophisticated
communications and information technology, which in turn create opportunities to handle
information more efficiently and to develop improved products geared to the needs of each
individual consumer and investor. Transaction costs and processing time are declining, while
financial services providers are better able to access information about a customer's total account
relationship in order to offer products best suited to the customer's needs.
But while technology and competition have offered the potential of better products and services,
increased efficiency, and lower costs, the extent to which U.S. financial institutions can take
advantage of these opportunities has been limited by statutory and regulatory constraints. For
financial services firms to function efficiently in today's complex and global economy, our
financial services laws must be revised to parallel the changes in consumer and business
demands and their savings and investment preferences. A new legal framework must recognize
the blurring of distinctions between financial services products, the emergence of new financial
services products, and communications and computer technology by which these products are
made available. And it is imperative that this structure be flexible enough to accommodate
future market developments without building barriers to competition through definitions of what
is and is not a proper business activity for a firm offering financial services.
H.R. 10, the financial modernization bill that recently passed the House, offers a solid foundation for reform from which the Senate can build. It adequately addresses the issues surrounding the market driven integration of financial services. It allows for full affiliation of financial services -- banking, securities and insurance -- under one holding company. It contains a definition of financial that is inclusive and crucial to the development of future financial products. It would allow a bank holding company to bring a new product to market or engage in many new activities without the current cumbersome and time consuming application process. The bill establishes the structure for functional regulation, yet also grants to the Federal Reserve the ability to supervise the holding company as a whole. This gives regulators the tools they need to monitor for safety, soundness, and adherence to consumer protections of banks and their affiliated financial businesses. For bank holding companies the structure is less intrusive than the regulatory structure today. For others in financial services the structure is somewhat more intrusive. Yet the non-bank holding company sectors of the financial services industry accept this level of regulation as a cost of moving forward to modernize the industry.
Unlike years past, when legislative efforts deadlocked due to inter-industry turf fights aimed at forestalling competition, there is no disagreement in the industry about the basic structure of H.R. 10. Faced with the realities of already integrated domestic markets and increased global competition, the acceptance, both within government and industry, of affiliations between the three pillars of the financial services industry with appropriate supervision removes a tremendous barrier to the enactment of meaningful reforms.
Outstanding issues in H.R. 10 are thus limited to three areas: (1) whether activities not eligible
for a bank may be conducted in an operating subsidiary of a bank as opposed to an affiliate
within a holding company; (2) the extent of commercial involvement in the financial services
arena; and (3) a few remaining issues within functional regulation, particularly within the
H.R. 10 as passed by the House would prohibit bank operating subsidiaries from engaging in all
non-agency activities that are not permissible for a national bank to engage in directly. This
position, supported by the Federal Reserve, has been an anathema to the Treasury. Resolving the
issue of the operating subsidiary would be relatively simple if left to the industry, for no sector
vowed to block the bill over the compromise operating subsidiary language that was passed by
the House Banking Committee. However, there are larger forces at play, and this issue has
become a philosophical battle between the two key financial services regulators. Speaking as a
representative of the Council, it suffices to say there are constructs that could move closer to
Treasury's position than that of H.R. 10 in its present form that would be acceptable to most of
the financial services industry yet give banks more flexibility to organize themselves in a manner
best suited for their own business strategy.
The issue of commerce in the discussion of financial services reform is multi-faceted and often
misconstrued. The Financial Services Council has long held the view that artificial barriers
between financial services and other types of commerce are counterproductive. However, the
issue at hand today is much more truncated -- whether a financial holding company should be
allowed to conduct diminimus non-financial activities. We believe that they should.
Let me give you some illustrative examples of what such a commercial investment might look
like. In the late 1980's Teleport Communications Corporation was a small company in the
business of providing businesses with direct access to long-distance communication services,
bypassing local telephone access providers (such as the Bell companies). Teleport would go into
a local market, lay its own fiber cables and offer businesses access to the long-haul network at
favorable prices. At about this time, Merrill Lynch was building its own national
communications network to provide market data and quotes to our branch office system, by
purchasing the same circuits and switching equipment that the long-haul carriers were using.
Teleport was in precisely this business, so we made an equity investment in Teleport in order to
create a close partnership with the company. Ultimately, we acquired Teleport and it became a
subsidiary of Merrill Lynch. The company continued to expand, offering telecom services to
other corporations around the country. Merrill Lynch also transferred to Teleport the
management of a number of our telecommunications assets, such as the telephone system at our
World Financial Center headquarters facility. We chose to divest Teleport in the early 1990's. It
was a profitable business at the time, and Merrill Lynch had accomplished its internal business
objectives and chose to redirect the capital invested in Teleport into other areas of our core
business. The whole Teleport experience highlights the importance of having the flexibility to
engage in nominally commercial activities, particularly those related to technology and
telecommunications, that support and complement our core business.
Other examples include American Express, which publishes magazines of interest to it cardholders -- Food & Wine and Travel & Leisure. Travel & Leisure magazine is complementary to the travel business (an activity permitted within the definition of financial in H.R. 10) and Food & Wine a natural extension of the same customer base. Other financial firms use overcapacity in their back office operations to contract services such as telephone help lines or data processing for commercial firms. These activities may not be strictly "financial", yet they either utilize a financial firm's resources in a manner beneficial to that firm or allow a firm to offer complementary products to its customers. These are the types of activities that should be accommodated for financial holding companies.
Financial firms that are not bank holding companies have never been prohibited from engaging in commercial activities. It exists in the market today, and therefore will exist in the market going forward. H.R. 10, by grandfathering a set percentage of current commercial activities for 10 years, recognizes this fact. But grandfathers make bad economics, freezing a company's ability to make strategic decisions. The H.R. 10 grandfather also restricts cross-marketing, making it impossible for a provider to advertise these adjunct services to its customers. A better first step is to provide some flexibility to financial firms to engage in such complementary activities.
It is the position of the Council that subsidiaries of a financial holding company should be
regulated by those with the greatest experience in assessing risks associated with the activities
conducted by that subsidiary. As financial services products and the technology used to deliver
them become increasingly sophisticated, the advantages of specialized regulation by function
become more acute. This model not only provides competitors with regulatory parity, but
ensures that consumers and investors have the same level of protection and regulatory oversight
regardless of the source from which a product or service is obtained. Though the market may
soon reach a point where products are so interrelated that regulation by function becomes
obsolete, we believe the functional regulation model in H.R. 10 is the right one for the present.
While it may not be readily apparent, industry disagreement over the functional regulation
provisions has in fact largely dissipated. Nearly all of the issues of regulation between the
banking and securities industries have been reconciled. There is general agreement on the
definitions of products and on the bank exemptions from certain securities laws. One securities
regulation issue of particular concern, however, and which is a problem for all financial firms
that offer securities products, is a provision added to H.R. 10 as part of the Manager's
Amendment on the floor. It would require disclosures of mark-ups, fees and commissions of
financial products -- essentially requiring a firm to disclose where it makes its money. We
believe this provision to be anti-competitive as well as nearly impossible to comply with.
The outstanding issues between the banks and the insurance companies are likewise largely
resolved, particularly as it relates to the definition of insurance product. There remains, on the
part of some banks, a desire for clarification regarding the question of OCC deference over future
products. More controversial, yet certainly resolvable, are the remaining issues between the
banks and the insurance agents over the functional regulation of insurance agency activities that
are contained in section 104 of H.R. 10. At this juncture, the issue is not state regulation of
insurance sales -- that is a given. But banks wish to clarify that the state insurance commissioner
cannot discriminate against bank insurance sales or sales by any entity affiliated with a bank.
In concluding, I want to reiterate the urgency of enacting financial services modernization
legislation. The House has, for the first time, passed legislation. For the Senate, this is truly an
historic opportunity to capitalize on House action before the end of the session.
Today's mergers are a response to a rapidly evolving and demanding market. The U.S. financial
services industry must be nimble enough to meet the growing demands of consumers --
individuals, businesses, and public agencies alike. Financial modernization will allow firms to
better serve their domestic customers and meet international competition in an industry that is
vital to the nation's future. But only with Congressional action can an even-handed and
comprehensive structure for the financial services industry be achieved.
Home | Menu | Links | Info | Chairman's Page