Don’t “Screw Joe The Plummer”: The Sausage-Making of Financial Reform

This Article examines agency-level activity during the preproposal rulemaking phase—a time period about which little is known despite its importance to policy outcomes—through an analysis of federal agency activity in connection with section 619 of the Dodd–Frank Act, popularly known as the Volcker Rule. By capitalizing on transparency efforts specific to Dodd–Frank, I am able to access information on agency contacts whose disclosure is not required by the Administrative Procedure Act and, therefore, not typically available to researchers.

I analyze the roughly 8,000 public comment letters received by the Financial Stability Oversight Council in advance of its study regarding Volcker Rule implementation and the meeting logs of the Treasury Department, Federal Reserve, Commodity Futures Trading Commission, Securities and Exchange Commission, and Federal Deposit Insurance Corporation prior to the Notice of Proposed Rulemaking. This analysis reveals significant public activity, but also a stark difference in investment by financial institutions versus other actors in influencing Volcker Rule implementation. It further reveals a greater unity of interest among financial market participants than suggested by press reports and the provision’s legislative history. Finally, the data shed light on the efficacy of the notice and comment process as a means for federal agencies to engage the general public and solicit relevant information in advance of rulemaking.