Hearing on Financial Services Modernization


Prepared Testimony of Mr. Scott Sinder
Representing the
Independent Insurance Agents of America


10:00 a.m., Thursday, February 25, 1999

Mr. Chairman, and members of the Committee, my name is Scott Sinder. I appear today on behalf of the insurance agents of America, and their employees -- nearly 1,000,000 men and women who work in every part of the United States. These people are represented by the Independent Insurance Agents of America, Inc. (IIAA), the National Association of Life Underwriters (NALU) and the National Association of Professional Insurance Agents (PIA), on whose behalf I testify today and for whom I serve as outside counsel. Their members sell and service all lines of insurance.

INTRODUCTION

First, Mr. Chairman, let me thank you for holding this hearing today and for giving IIAA, NALU and PIA this opportunity to present their views.

We are appearing before you today to comment on the draft "Financial Services Modernization Act of 1999" that you began circulating on February 16. Before proceeding with my comments, I must commend you for the great effort that you have expended in attempting to forge a viable approach to financial services reform. we greatly appreciate the opportunities that you and your staff have given us to informally comment upon your proposals and to offer suggestions.

As you know, Mr. Chairman, we have in the past advocated that the traditional separation between the banking and insurance industries should be maintained. During the consideration of financial services reform proposals last term, however, we for the first time came to your Committee prepared to support financial services modernization in the form of affiliations between banking, securities, and insurance entities. The market is evolving even in the absence of new legislation and today more than ever before agents are entering into an increasing number of relationships with members of the banking and securities communities. We can accept formal affiliation relationships, however, only if there is clear functional regulation of the insurance activities of every entity, and only if insurance consumer protections are addressed. My comments will focus on why we believe that your proposal does not accomplish this objective and why the insurance agents must therefore oppose the bill.

As an initial matter, however, it should be understood that the monumental shift in our position on the expansion of insurance sales powers has not come easily. As small business people, we are painfully aware that, as a practical matter, such affiliations will be a one-way-street. That is, the average insurance agency is not going to be in the position to acquire a bank; the acquisition will run the other way. But we are convinced that we can not only survive, but thrive, in such a new world. True competition can work and consumers will benefit, however, only if the rules of the game establish a level playing field for all participants. It is that which we seek.

The historic change in our position on affiliations has been prompted by marketplace and political reality. The Supreme Court's decision in Barnett Bank of Marion County, N.A. v. Nelson(1) holding that the Section 92 power(2) granted to town-of-5000 national banks to act as insurance agents preempts State laws that would otherwise prohibit such conduct, coupled with the Comptroller of the Currency's ever-broadening interpretations of Section 92, effectively vitiate the separation between the industries. And Congressional inaction to reign in the OCC's creation of new policy by administrative fiat has exacerbated the situation.

At the same time, the Barnett decision has created a great deal of uncertainty regarding who has regulatory authority over bank sales of insurance and what is the extent of any such authority. This uncertainty is undermining the efforts of all of the participants in the insurance sales arena -- insurance companies, insurance agents, banks and State regulators -- to move the insurance industry into the twenty-first century. The contents of this statement will therefore focus not on whether financial institutions should be permitted to affiliate with insurance providers -- we do not oppose such relationships -- but on the need for the functional regulation of all members of the financial and insurance industries. Especially in the insurance context, we believe that it is essential that all insurance activities continue to be regulated at the State level -- where they have been regulated for nearly two centuries -- subject only to the restriction that no State may actually or constructively preclude any entity or its affiliate that has been authorized under Federal law to engage in the business of insurance from exercising such powers. In championing this approach, we recognize the pressing need for eliminating the barriers that still exist between the banking, insurance and securities industries so that members with roots in all three sectors will better be able to serve the needs of their customers. We believe, however, that this concern also mandates ensuring that consumer choices are well-informed and freely made and, in the insurance context, state regulators have been the virtually exclusive protectors of such interests since the creation of an insurance industry in this country. Any bill that is ultimately enacted must ensure that their authority and expertise in the regulation of the business of insurance is not overturned or undermined in any way as other industries become more heavily involved in providing insurance services.

This Statement is divided into three parts: Part I explains why the regulation of insurance activities of everyone should be left to the States; Part II discusses the current need for the clarification of insurance regulatory powers; and Part III explains why the agents believe that your proposal would impose tremendous impediments to viable state regulation of the insurance activities of financial institutions.

I. Regulation of the Business of Insurance Should be Left to the States

Because no insurance licensing and regulatory scheme exists at the federal level, the only available regulators of the participants in the insurance industry are the States themselves. Some national banks, however, appear to believe that they are exempt from at least some of the governing insurance regulations in States in which they are currently engaging in the business of insurance. Although the OCC has recognized that State laws generally apply to national bank sales of insurance, it also has emphasized that national banks need not comply with State laws that interfere with their activities. Without the creation of a federal regulatory authority or a reaffirmation of the absolute right of States to regulate such insurance activity, the scope of this "exemption" will remain unsettled and national banks may be free to engage in the business of insurance without significant oversight.

Given the sophisticated insurance licensing and regulatory structure developed exclusively at the State level over the past 200 years and given the current climate disfavoring the creation of more federal regulatory authority (especially when it is duplicative of current State efforts), reaffirmation of the right of States to regulate the insurance business appears to be the only viable solution. Such reaffirmation is required to ensure that all entities involved in the insurance industry are on a level playing field; to ensure that they are all subject to effective consumer protection requirements; and to ensure that the insurance-buying public has consistent assurances of quality.

Any such reaffirmation would not be new or radical. To the contrary, it merely would build upon and clarify a federal policy that has been in place for over 200 years that States have virtually exclusive regulatory control over the insurance industry. Indeed, up until 1944, it was universally understood by everyone (including Congress) that Congress has no constitutional authority to regulate the business of insurance. This changed with a single Supreme Court decision issued that year. Congress responded immediately by enacting the McCarran-Ferguson Act, which "restore[d] the supremacy of the States in the realm of insurance regulation."(3)

McCarran's statement of federal policy could not be more clear: "The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business."(4) Given the States' historical expertise in the realm of insurance regulation and the absence of any such expertise at the federal level, there does not appear to be any compelling reason for abandoning this traditional policy approach.

At a time when Congress is seriously considering empowering States in a myriad of areas, Congress should not strip the States of their authority to regulate in a business arena that has been within their virtually exclusive domain throughout this country's fruitful history.

The States are the only logical choice for comprehensive regulation of insurance. Although there are uniform national concerns in this industry as in many others, in uncountable ways, insurance involves concerns of an intensely local nature. The concerns in Texas, for example, with hundreds (if not thousands) of ranchers and farmers and its sprawling urban areas, are very different than the insurance issues raised in Maryland, with its coastal resort communities, urban center, and manufacturing concerns.

The public has a substantial interest in the continued functional regulation of insurance by the States, regardless of who is conducting the activities. Because of the social need for insurance and its importance to the public, the underwriting and sale of insurance has become one of the most highly regulated professions today. By their regulation, the States ensure that those who engage in the business of insurance are qualified to do so, remain appropriately qualified, offer sound insurance products, and comply with reasonable safeguards for the protection of consumers. This entire body of State insurance statutes and regulations is frequently revised and updated to address evolving regulatory issues and to ensure comprehensive consumer protection. Preservation of the applicability of these State regulations is essential because, at least at the current time, no comparable regulations exist at the federal level and no federal regulator has expertise in this arena.

I

  1. The On-Going Need for Clarification

In March 1996, the Supreme Court issued its decision in Barnett. The Supreme Court's central holding was that Section 92 preempts State laws that prohibit national banks from selling insurance, pursuant to their Section 92 authority. In the course of rendering this decision, however, the Supreme Court, relying exclusively on previous decisions that had analyzed the permissible scope of state regulation of national bank banking powers, also acknowledged that "[t]o say this" -- to say that Section 92 preempts State laws that would otherwise prohibit small-town national banks from selling insurance -- "is not to deprive States of their power to regulate national banks, where (unlike here) doing so does not prevent or significantly interfere with the national bank's exercise of its powers."(5) Permitting affiliations would, of course, make clear that States may not prevent affiliations but such an authorization would not necessarily shed any light on what regulatory efforts might be deemed to "significantly interfere" with the activities of these affiliated entities. We believe that State laws and regulations that do not actually or constructively -- that is, directly or indirectly -- prohibit such affiliations cannot be deemed to "restrict" or "significantly interfere" with them.

A request for comments issued by the OCC on January 14, 1997 dramatically illustrates the conundrum.(6) The question at the heart of the OCC's consideration is whether any provisions of the State of Rhode Island's "Financial Institution Insurance Sales Act" ("Rhode Island Act")(7) which governs the insurance activities of financial institutions should be deemed preempted by Section 92. An anonymous Requestor that asked the OCC to consider this issue contends that five of the provisions included in the Rhode Island Act "discriminate" against national banks and significantly interfere with the exercise of their Section 92 powers.(8)

The Rhode Island Act was supported by a bipartisan group of state legislators. Indeed, it was agreed to by a significant portion of the State's banking industry. As reflected in the Rhode Island Governor's statement upon signing, the Act is designed to level the playing field. None of the provisions at issue actually or constructively preclude national banks from engaging in the business of insurance in any way, and none of the challenged provisions impose different requirements on national banks than those imposed on any other financial institution engaging in the sale of, or in the solicitation for the purchase of, insurance products.(9)

The OCC, however, apparently believes that these provisions may "significantly interfere" with a national bank's exercise of its Section 92 powers, although the agency has not articulated the standard by which any such significant interference will be measured.(10) Indeed, based on the OCC's supplemental request for comments on the issue, it appears that the OCC is prepared to impose its own views of how best to legislate on the States. Not only is the OCC inquiring whether the Rhode Island provisions prevent or significantly interfere with national banks' insurance sales activities, the OCC is asking whether there are "better" means that the State might have chosen to effectuate its policy goals. This is clearly beyond the OCC's legitimate role as banking regulator. It is the role of legislators -- and in this context, State legislators -- to determine how best to effectuate public policy, not the OCC.

During the first round of comments, numerous members of Congress expressed their belief that it was inappropriate for the OCC to attempt to preempt any State insurance laws. No member voiced the opposite view. Nevertheless, the OCC labors on, possibly prepared to opine that these state law provisions -- enacted on a bipartisan basis by state legislators with the agreement of significant representatives of the banking industry in the State -- should not be applied to national banks. Interestingly, the Rhode Island law has been in force now for over two and a half years and all players seem to be functioning remarkably well.

The question whether any of the provisions of the Rhode Island Act may be preempted is not an isolated one. Sixteen other States have enacted laws that seek to regulate bank involvement in insurance sales activities,(11) another seven have acted by regulation,(12) and at least six other States are now considering legislation to regulate bank sales of insurance. At least another six to ten states have maintained laws regulating bank involvement in insurance sales activities for decades as they have historically permitted their state-chartered banks to engage in such activities. And, in the meantime, the OCC is meeting with State insurance regulators intimating that it is prepared to preempt any laws or regulations that it views as going to far. There is thus an intense need to clarify the scope of the States' regulatory authority in this area.

Such clarification would benefit everyone involved. State legislators and regulators would clearly understand the bounds of their authority, and disruption of the legitimate state legislative process would be avoided. Both the insurance and the banking industries would be relieved of the uncertainty that currently permeates and, to large part, stifles the business. And the OCC would be freed of the burden of making piecemeal determinations of whether individual state laws are or are not preempted.

III. The Basis of the Agents' Opposition to the Current Proposal

Although your proposal contains some positive statements that would appear to generally preserve the functional regulation of insurance, the preemption standard you would impose would essentially forbid any State from enacting laws or regulations that considered any consumer protection concerns unique to the financial institution context. It is our understanding that your working draft of Section 104(b) -- the core preemption provision that applies to the regulation of activities, including insurance sales -- states as follows:

A State may not, by statute, regulation by statute, regulation, order, interpretation, or other action prevent the conduct of any activity, directly or indirectly, by an insured depository institution, or a subsidiary or affiliate thereof, by itself, or in conjunction with any other person, as authorized or permitted by this Act and the amendments made by this Act, where the State action has the practical effect of discriminating, either intentionally or unintentionally, against any person based upon its affiliation with an insured depository institution, or against any insured depository institution, due to the institution's status as an insured depository institution.

As we read the core preemption standard, then, it would preempt any State action that "prevents or restricts" a financial institution's insurance sales powers in a manner that "has the practical effect of discriminating" against a financial institution. As noted at the outset, we agree that one of the bedrock principals of this bill is that the insurance sales activities authorized by the bill cannot be prohibited. Because, however, all regulation is by definition a restriction, and because the term discriminating means by definition differentiating, any state action that has the practical effect of treating a financial institution differently from other insurance agents would be preempted. In this way, banks would have more protection from differential treatment than any constitutionally protected class, including racial minorities. This standard would thus practically ensure the preemption of consumer protections regulating bank sales of insurance products that already are in place in approximately thirty (30) states that are designed to ensure that consumers are well-informed and free to choose to purchase insurance products adequate to address their insurance needs.

This standard is simply unacceptable. It would practically ensure the preemption, for example, of the laws of the sixteen States that have enacted provisions that require the physical site of insurance sales activities within a bank to be separate and distinct from other banking activities; of the eight States require bank insurance sales personnel to be separate from other bank personnel; and of the nine States that prohibit financial institutions from soliciting the purchase of an insurance policy from a customer who has a loan application pending. Such provisions are designed to alleviate the coercive pressures -- both explicit and implicit -- that often times arise when consumers are applying for loans for which the purchase of an insurance product also is required. Other provisions that have been enacted include provisions that address the confusion issues that arise when financial institutions that sell federally-insured products also offer uninsured insurance products and provisions that prohibit discrimination against non-affiliated agents. Under the preemption standards you have outlined, these provisions and many others would be inapplicable to national banks.

To make the bill viable from our perspective, it cannot dictate this result. Instead, it must clarify the proper preemption standard and eliminate the so-called "non-discrimination" provision. In addition, the bill must ensure that the opinons of both state insurance and federal banking regulators are given equal consideration in any litigation between the two regarding whether a state insurance requirement is preempted. Finally, if the preemption standard cannot be clarified in the manner we suggest, then, at a minimum, the safe harbor provisions included in other proposals must be inserted here and expanded.

Clarify the Appropriate Preemption Standard. In any financial services reform legislation finally adopted, this Committee must reiterate that every entity that engages in the underwriting or sale of insurance is bound by state law regulating that activity and such State laws may be preempted only if they actually or constructively prohibit national banks or bank-affiliated entities from exercising their federally authorized insurance powers. This is the clarification of the Barnett standard we seek. More specifically, we believe the preemption standard applicable to insurance sales activities set forth in Section 104(b)(2) must be revised. Although the bill rightly makes clear that insurance sales activities shall be functionally regulated by the States, that requirement is subject to the Section 104 preemption standards. We suggest that the current draft language be replaced with a clear statement that the only limitation on the States' manner regulation be that they cannot actually or constructively prevent national banks' insurance sales activities. This is, in our view, the import of the line of Supreme Court cases that led to the Barnett decision. This is the level of "interference" the Supreme Court had in mind when limiting the States' authority, since preemption generally requires an actual conflict between state and federal law.

Eliminate the "Non-Discrimination" Language. As noted above, the draft Section 104(b) prohibits States from distinguishing in any way between financial institutions and other entities -- and from enacting provisions that have a greater effect on financial institutions than on other entities -- in regulating the sale of insurance products. As over 25 States and the OCC itself have previously recognized, however, the sale of insurance products by financial institutions creates unique problems that require consumer protections tailored for the financial institution context. These laws are not "anti-competitive." Indeed, they expressly recognize that banks are in the business to stay. But they attempt to create a level playing field between bank and non-bank insurance agents and brokers, and to protect consumers from potential abuse. Banks' access to cheap funds, FDIC-insured status, and control over credit, puts them in a position not held by others in the insurance industry. For this reason, many States believe provisions regulating bank sales of insurance are necessary to prevent coercion and confusion and to protect customer privacy.

Indeed, as the OCC itself recognized when it published an advisory letter to provide guidance to national banks on insurance and annuity sales activities,(13) there are many instances in which "discriminatory" regulation (in the sense of treating banks differently than non-banks) is appropriate and necessary. Consequently, there is no basis on which to argue that the type of "discrimination" present in consumer protection provisions such as those contained in the Rhode Island Act are per se illegitimate.(14)

In working on these laws at the state level, agents have negotiated with all interested parties -- banks, insurance companies, securities firms. Michigan's law, enacted almost six full years ago, is the product of negotiations between the banks and the agents. West Virginia's law, enacted two years ago, is the product of negotiations that included not just the banks and the agents, but insurance companies as well. The process has been no different in the other twenty-two States. As long as the legislation makes clear that States may not prohibit the exercise of authorized insurance sales powers, there should be no need to bar state legislatures and governors from implementing bank-specific solutions designed to address consumer protection concerns that may arise when such powers are exercised.

Clarify That The Opinions of State Insurance Regulators Are Entitled To Consideration In Court Reviews of State Insurance Laws. In addition, any bill that is enacted must ensure that the viability of regulatory provisions already in force in many States would not be put into jeopardy by according the OCC exclusive consideration when a court confronts the question whether a challenged provision should be preempted because it "interferes" with a national bank's exercise of its insurance sales powers. The OCC simply has no expertise in the regulation of the business of insurance. Moreover, the OCC has repeatedly demonstrated that the expansion of national bank powers is at the forefront of its concerns. This preoccupation has led the OCC to interpret a small exception to the general prohibition on national bank sales of insurance that authorizes national banks located and doing business in places with populations not exceeding 5,000 inhabitants as allowing national bank agents to sell from anywhere so long as they are headquartered in a small-town bank office and to sell to customers located anywhere without any geographic restriction whatsoever. For these reasons, we believe that OCC interference with State regulation of the business of insurance -- and exclusive consideration of OCC opinions regarding such regulation -- is inappropriate. The Courts are well qualified to determine whether State regulations prevent or significantly interfere with a national bank's exercise of its insurance sales authority and requiring or implying that the OCC is entitled to special deference over and above that accorded state insurance regulators on such questions is therefore unacceptable.

Strengthening The Safe Harbor Provisions. Finally, if the preemption standard is not clarified in the manner we suggest and the default "significant interference" standard employed in Barnett is utilized, we believe that the current list of safe harbors must be strengthened. Consumer protection provisions that are at the heart of the regulation of banks sales of insurance in many states -- requiring separation of banking and insurance personnel and activities, for example -- have been excluded from the list of consumer protections that are automatically deemed to be permissible. That exclusion jeopardizes the application of many such provisions and may undermine the regulatory scheme of many States that have been designed to address many of the unique issues that arise when banks -- in their unique position controlling federally insured credit capital -- also engage in the business of insurance.

CONCLUSION

The financial services mechanism H.R. 10 seeks to establish must function in the real world. That can only be accomplished if there is true functional regulation. We believe that virtually everyone in Congress supports such functional regulation. The task is to implement it effectively. The affiliations contemplated by the various financial services reform proposals are exciting and probably necessary. But there must be a level playing field for everyone in the industries involved. Small business concerns cannot be swept away by the resulting mergers of the bigger players. And, most importantly, the interests of consumers that state insurance regulators have been exclusively charged with protecting for decades must remain at the forefront.

It is clear that the absence of sufficient regulatory authority over national banks -- or any other entity -- that is active in the insurance arena is a problem. Neither the Comptroller nor any other federal regulator possesses the necessary expertise to regulate the vast intricacies of the insurance business or of financial institutions' participation in that business. For this reason, and for the reasons delineated at length above, IIAA, NALU and PIA urge this Committee to recommend enactment of legislation that clarifies that all entities that engage in the business of insurance -- including national banks and any other entity in a new financial services holding company -- are bound by state law regulating those activities; such State laws are preempted only if they actually or constructively prohibit the exercising of federally authorized insurance powers; and the opinions of state insurance regulators are entitled to consideration during any court review of such questions. This would maintain the status quo by ensuring that the States remain the paramount regulatory authority for the insurance industry. Without enactment of such legislation, the emerging regulatory void in portions of this industry will continue to fester. The primary victims if such a bill is not enacted will inevitably be the consumers who are confronted by the unregulated participants in the essential but highly complicated business of insurance.


Notes:

1. 116 U.S. 1103.

2. 12 U.S.C. § 92.

3. United States Dep't of Treasury v. Fabe, 113 S. Ct. 2202, 2207 (1993).

4. 15 U.S.C. § 1012(a).

5. Barnett, 116 S. Ct. at 1109.

6. See 62 Fed. Reg. 1950 (Jan. 14, 1997).

7. See R.I. Gen. Laws §§ 27-58-1 et seq.

8. 62 Fed. Reg. at 1951.

9. The challenged provisions generally prohibit the tying of banking and insurance; generally require that a financial institution's loan and insurance businesses be physically segregated; generally prohibit financial institution employees with loan or deposit-taking responsibilities from soliciting and selling insurance; require that loan and insurance transactions be completed independently and through separate documents; and prohibit usage of nonpublic customer information without the written consent of the customer. See id.

10. Remarkably, the OCC first sought comments on the preemption of the Rhode Island Act before the State Insurance Department had finalized regulations that would implement the statute. We, among others, pointed out the prematurity of the OCC's request. Apparently recognizing its error, the OCC recently reopened the comment period to permit consideration of the finalized regulations. It is only in light of those regulations that the meaning of the statute can be ascertained.

11. Arkansas (House Bill 2070 (1997)); Colorado (House Bill 97-1175 (Colorado Rev. Stat. §§ 10-2-601 et seq.)); Connecticut (Public Act No. 97-317 (Connecticut Gen. Stat. § 36a-775)); Illinois (House Bill 586 (1997) (The Illinois Insurance Code Article XLIV)); Indiana (House Enrolled Act No. 1241 (1997) (Indiana Code §§ 27-1-15.5-8 et seq.)); Kentucky (Kentucky Laws Ch. 312 (H.B. 429) (1998) (Ky. Rev. Stat. § 304)); Louisiana (House Bill No. 2509 (1997) (La. Rev. Stat. 22:3051 - 3065)); Maine (S.P. 439 - L.D. 1385 ((9-A Maine Rev. Stat. Ann. §§ 4-401 et seq.)); Massachusetts (Senate 1948, Bill No. MA97RSB (May 15, 1998)); Michigan (House Bill No. 5281 (1993) (Mich. Compiled Laws § 500.1243)); New Hampshire (House Bill 799 (1997) (N.H. Rev. Stat. Ann. §§ 406-C et seq.)); New Mexico (House Bill 238 (43rd Legislature, 1st Sess.) (New Mexico Stat. Ann. §§ 59A-12-10 et seq.)); New York (Bill No. 5717-B (July 18, 1997) (New York Banking Law § 14-g; New York Insurance Law §§ 2123 and 2502) (sunsets July 18, 2000)); Pennsylvania (House Bill 1055 amending the Act of May 17, 1921 (P.L. 789, No. 285), Printer's No. 1985 (June 9, 1997), 40 Penn. Stat.); Texas (House Bill No. 3391 (1997) (Texas Insurance Code Article 21)); and West Virginia (H.B. 2198 (March 14, 1997) (W.V. Code Chapter 33)).

12. Florida (Dept. of Insurance Rules 4-224.001 - 4-224.014); Georgia (Rules and Regulations of the Office of the Commissioner of Insurance Chapter 120-2-76 (adopted February 17, 1997)); Maryland (Advisory Letter Issued by the Insurance Commissioner and the Commissioner of Financial Regulation on October 31, 1996); Mississippi (Executive Memorandum issued by the Commissioner of Banking and Consumer Finance on May 13, 1997); Ohio (Department of Insurance Rule 3901-5-08); Vermont (Insurance Division Bulletin 117 (June 13, 1997)); and Wyoming (Chapter 16 of the Rules of the Division of Banking).

13. See OCC Advisor Letter AL 96-8 (October 8, 1996).

14. Absolutely nothing in the Barnett decision, or its precedents, supports the argument that a State cannot regulate national banks in a manner that distinguishes them from non-banks.



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