WASHINGTON — Having successfully ushered Federal Reserve Board Chairman Ben Bernanke's troubled confirmation through the Senate, the Obama administration must soon consider how best to fill other key financial regulatory positions.
By August there will likely be no permanent leader at three regulatory agencies: the Office of the Comptroller of the Currency, the Federal Housing Finance Agency and the Office of Thrift Supervision. At a time when regulators are under intense pressure to toughen oversight of markets and the future of their agencies is unclear, the lack of leadership could have a cost.
"The day-to-day stuff will go on," said Brian Gardner, an analyst at KBW Inc. "But when you're trying to look at the bigger picture, it certainly doesn't help. It gets in the way of agencies effectively participating in the debate."
Joshua Rosner, the managing director of Graham Fisher & Co., said the situation could make it more difficult for the agencies to regulate.
"In a time where the legislature is leaning more and more heavily toward regulators to do the work legislators are unable or unwilling to do, it does increase the regulatory burden," he said.
At the OTS, John Bowman has been the acting director since March 2009. Edward DeMarco took over the Finance Agency on a temporary basis in August and Comptroller of the Currency John Dugan is expected to leave the agency when his term expires in August.
It is not unusual for regulators to come and go. Almost all of the agencies have had acting directors in recent years, but to have three at once is striking, especially as Congress actively debates how to restructure financial oversight.
"I don't think any of us have experienced anything like this in the past," said Edward Kramer, the executive vice president of regulatory programs at Wolters Kluwer Financial Services and a former deputy superintendent at the New York State Banking Department.
Clouding the future for the agencies is the regulatory reform legislation that is being debated on Capitol Hill. With the possibility that the structure of financial oversight may look very different in the near future, the administration is likely to hold off on naming new leaders to the agencies. That is especially the case for the OTS, which is almost certain to be abolished if the reform bill is enacted.
"That one's hanging in limbo," said Bert Ely, an independent consultant in Alexandria, Va. "As long as the OTS is slated for abolition, it becomes a lot easier to do if you have an acting director rather than a director."
But the dynamic is more complex at the OCC. The Obama administration is unlikely to want the agency to go without a permanent comptroller for too long. For one, the most likely candidate to take over on an interim basis — Julie Williams, the current senior deputy comptroller — does not share the administration's views on federal preemption. Moreover, the OCC oversees the largest, systemically important banks; this likely puts it higher on the administration's priority list.
"Given the size of the institutions that you're dealing with at the OCC, it's not the same as the FHFA, for instance, where the government already owns the two companies, and Treasury can step in and help out," Gardner said. "It's not the same as OTS, which has really lost its biggest institutions, and, of course, the thrift industry isn't what it used to be."
But finding someone who will take over an agency that could look dramatically different if it merges with the OTS, as the administration and Congress envision, could be tricky. Candidates for the comptroller's job would likely want reassurance that they will still have a job after the agencies merged and could try to negotiate an agreement that they take over the new agency once it is established. "There will be some discussion of that," Ely said. "Maybe the new appointee would want a commitment that they'd be supported in that position."
Still, others question whether choosing Dugan's successor might be weighed down by the expectations of the new agency. Some said the administration may want a different type of candidate, perhaps with more name recognition, to lead the new agency.
"If you end up with regulatory reform, you have a new regulator coming into power to replace both of those," Rosner said. "It will be the opportunity for a very high-profile appointment."
The future of the Finance Agency, like the government-sponsored enterprises it regulates, is far less certain. It is unclear how long DeMarco plans to remain at the agency. Some in the industry were impressed by a particularly muscular message he delivered to Congress earlier this month.
In a letter to top lawmakers on the House Financial Services and Senate Banking committees, DeMarco indicated there would be at least some limits placed on the ability of Fannie Mae and Freddie Mac to expand their portfolios and effectively said it was up to Congress and the White House to figure out what to do with the GSEs. The conservatorship, which Fannie and Freddie have operated under since September 2008, "cannot be a long-term solution," he wrote. "There are a variety of options available for post-conservatorship outcomes, but the only one that the FHFA may implement today under existing law is to reconstitute the two companies under their current charters."
Ultimately, observers said, it is impossible to find a permanent leader for the Finance Agency until policymakers decide how they want to resolve Fannie and Freddie. Candidates might not flock to the job, because it is uncertain whether the GSEs will be nationalized, privatized, converted into public utilities or something else entirely.
"Until there's some clarity, until the administration really has a viewpoint on what the GSEs look like in the future, why would you take a job running a regulator that might not exist?" Rosner asked.
Also in the background is the future of the Federal Deposit Insurance Corp. and the Treasury Department. Tim Geithner, the Treasury secretary, has seen his stock fall in recent weeks as President Obama has appeared to listen more closely to the counsel of former Fed Chairman Paul Volcker. If Democrats lose significant seats in the House or Senate in the November elections, Obama could be expected to shake up his cabinet, including Geithner.
"Then it's a whole new day," said Cornelius Hurley, the director of the Morin Center on Banking and Financial Law at the Boston University School of Law. "If they lose one or both houses, it's time for serious housekeeping."
At the FDIC, Chairman Sheila Bair's term is slated to expire in June 2011. Bair is a Republican but has made allies with the top leaders of both parties on the House Financial Services and Senate Banking committees. Though the administration could seek to reappoint her, an FDIC spokesman said Bair does not plan to remain at the agency when her term ends. "She plans to serve the remainder of her term as chairman and then will look for other opportunities, perhaps returning to academia or nonprofit work," the spokesman said. "She believes that the type of job she is serving in benefits from fresh thinking and when her term is up, it will be time to step aside."
It is unclear who might succeed Bair, but for her position and others, many are watching Martin Gruenberg, the FDIC's current vice chairman. Gruenberg, a former Senate Banking aide, is seen as a well-placed Democrat who could lead the deposit insurer or other financial agencies.
"Ideologically, he fits with the administration," Ely said. "He's certainly well positioned for anything he wants."