"It is far from clear whether the OCC has authority to grant national bank charters to them," wrote Sens. Sherrod Brown, D-Ohio (pictured), and Jeff Merkley, D-Ore.
"It is far from clear whether the OCC has authority to grant national bank charters to them," wrote Sens. Sherrod Brown, D-Ohio (pictured), and Jeff Merkley, D-Ore. Image: Bloomberg News

If Democrats succeed in winning control of the Senate after next week's election, the gavel of the Senate Banking Committee is likely to fall to Sen. Sherrod Brown, a progressive from Ohio who has called on the biggest banks to hold significantly more capital.

Yet community bankers are also holding out hope that Brown — who counts several major regional banks in his home state — will be supportive of regulatory relief, pointing to times he's been willing to make changes to Dodd-Frank and been open to other ideas.

"He understands the need for tiered regulation," said Scott McComb, president and CEO of the $730 million-asset Heartland Bank in Gahanna, Ohio. "In the discussions that I have had with Sen. Brown, he is very sensitive and supportive of the different types of banking charters that are out there and he understands that the balance sheet at a community bank like here at Heartland is not nearly as complicated as" JPMorgan Chase's.

Analysts agree, saying that while Brown is on the liberal end of the Democratic Party, he is willing to compromise when necessary.

"Sen. Brown is a progressive, but he is also a pragmatist," said Isaac Boltansky, an analyst at Compass Point Research & Trading.

In recent surveys, bankers have overwhelmingly favored Republicans keeping control of the Senate, but McComb said a Brown chairmanship would have a silver lining.

"If the Senate were to change hands — if Senator Brown turned out to be the head of the Senate Banking Committee — we could do a whole heck of a lot worse," McComb said.

Following is a guide to Brown's likely agenda should he take the reins of the panel.

Reg Relief

Though it's been largely forgotten, Brown and Senate Banking Committee Chairman Richard Shelby were reportedly close to a deal on regulatory relief at some point last year.

But negotiations broke down late into the process, with each side blaming the other, and a bill never happened.

If Brown takes over the committee, he will likely be dealing with a different Republican leader on the other side, Sen. Mike Crapo, R-Idaho, as Shelby would have to step away from his role as ranking member due to Republican rules limiting the lengths of terms for such positions.

As a result, analysts are optimistic that Brown has wiggle room to cut a deal on regulatory relief — though it would likely be more limited than what banks are seeking.

It is "unclear where his cutoff for community banking is, but certainly for banks under $10 billion, he will very likely try to do something to give them some regulatory relief," said Ed Groshans, an analyst at Height Securities.

But Brown is unlikely to seek significant regulatory changes to help large regional banks from his state, such as the $100 billion-asset KeyCorp in Cleveland, the $70 billion-asset Huntington Bank in Columbus and the $140 billion-asset Fifth Third Bank in Cincinnati.

Many of those banks have been fighting to remove a provision of the Dodd-Frank Act that requires all firms above $50 billion in assets to be automatically subject to more restrictive regulatory measures. Yet it's not clear Brown is sold on such a move.

"He has certainly listened to the concerns of the regionals, but he hasn't crossed the line in terms of advocating for weakening regulations in the name of the regionals," said Marcus Stanley, policy director at the Americans for Financial Reform advocacy group. "I don't think that is a line that he would cross."

Edward Mills, a financial policy analyst and managing director at FBR Capital Markets, said recent Federal Reserve Board changes to annual stress tests for traditional banks between $50 billion and $250 billion in assets also "diminishes the chance there would be further legislative changes to the SIFI threshold, because at that point you are looking at changes to prudential regulations to those institutions."

During panel hearings, Brown has noted that while banks with $50 billion in assets are not systemic in the same sense as money center banks, their failure can still be costly and require strong prudential oversight.

"IndyMac's failures of course had huge consequences for its community, its region and the mortgage market as a whole," Brown said at a hearing in March of last year, referencing the 2008 failure of the $30-billion asset Independent National Mortgage Corp. in California.

Groshans said that when Brown first became ranking member in 2015, many expected him to quickly work to raise the threshold for what constitutes a systemically important financial institution.

"I thought he was going to be more moderate, but I think he is closer to" Sen. Elizabeth Warren. D-Mass., "on a lot of these issues," Groshans said.

Still, many see Brown as willing to make changes to see something enacted, including changes to Dodd-Frank. They point to his support in 2014 for a measure that gave the Federal Reserve Board more discretion to set minimum capital requirements for insurance companies, an issue first broached in Dodd-Frank.

"Keep in mind that the first significant change to the Dodd-Frank Act — an alteration to the Collins amendment — came from a bill proposed and stewarded by Sen. Brown," Boltansky said.

Oliver Ireland, a partner at the law firm Morrison Foerster, said if Brown is the banking chair and the House is still controlled by Republicans — which is the expectation of most pollsters even under the most rosy scenarios for Democrats — the House and Senate "would wind up finding some common ground on limited burden relief."

"There are going to be some technical things here and there they would both be inclined to do," Ireland said.

Wells Fargo

If he becomes chair, Brown is also expected to take a harder look at the phony-accounts scandal at Wells Fargo — and other recent bank missteps.

They note that Brown has hired Robert Roach as an investigator. Before joining the Ohio Democrat, Roach was the chief investigator for former Sen. Carl Levin, D-Mich., who ran the Senate Permanent Subcommittee on Investigations and famously delved into financial scandals including the London Whale, Goldman Sachs' role in the financial crisis and the Enron accounting scandal.

"Brown is going to keep himself very busy with tough hearings on banks, lots of headline risk for banks," said Mark Calabria, a former top Republican Senate Banking aide who is now at the Cato Institute.

That includes a focus on Wells Fargo, which recently settled with regulators after it was revealed that it fired 5,300 employees for opening up roughly 2 million fake accounts in order to meet sales goals.

"The Senate Banking Committee would have just started the process of looking into Wells Fargo and sales practices at other banks," Mills said. "I think the Wells Fargo enforcement action gives a lot of the first six months of the agenda for the committee."

Keeping big banks in the spotlight with oversight hearings could also be a political winner for Brown who is up for reelection in 2018.

"A good part of Brown's chairmanship next year if he is chair is going to be driven by that fact that, he's up," said Calabria, who noted that Brown held onto his Senate seat in 2012 by a narrow majority.

Big-Bank Breakup?

While Brown has expressed sympathy for small and regional banks, he is likely to be far tougher on big banks.

Brown introduced legislation in 2013 with outgoing Louisiana Republican Sen. David Vitter that would have simplified the capital regime for small banks, but forced institutions with more than $500 billion of assets to dramatically increase capital requirements.

The Brown-Vitter bill is unlikely to resurface, but demonstrates Brown's skeptical view of the largest institutions.

Brown's previous support for "break up the banks" legislation would "increase political risk for large banks," Brian Gardner, a policy analyst at Keefe, Bruyette & Woods, wrote in a note to clients.

A reintroduction of Brown-Vitter wouldn't likely clear the Senate, but its existence has already had an impact, analysts said.

"The underappreciated aspect of that is how much political coverage it has given to the regulators to push out much more aggressive" capital requirements than people would have expected, Mills said. "The spirit of the Brown-Vitter bill has become the regulatory framework for the largest institutions in this country."

Exactly how Brown would target big banks as chairman is unclear, but he is likely to key off of Wells and other big scandals.

"The Wells Fargo issue really became a firestorm in D.C. and it's not likely to subside anytime soon," Groshans said. "With Brown as chairman, it opens itself up to new pathways that probably were not on the table under" Shelby.

Brown announced last month that he was crafting legislation that would allow customers harmed by Wells to circumvent arbitration agreements that are often hidden in the fine print in customer contracts.

"Secret arbitration proceedings allowed Wells Fargo to get away with this fraud for far too long already," Brown said in a statement.

He said his legislation would work proactively with a proposal by the Consumer Financial Protection Bureau to end forced-arbitration clauses. Brown's bill would allow customers to sue Wells even if they signed the agreements.

"Giving customers back their right to take Wells Fargo to court gives them the power to ensure they are made whole and helps prevent cases like this in the future," Brown said.

Brown also signed a letter with other Democrats on the committee that would retroactively require firms to make "clawbacks" of executive pay if negligence or poor risk management occurred under the leader's management.

Groshans said Brown may also work with Warren to give the Department of Justice more power to prosecute bank executives.

"The only way that Wall Street will change is if executives face jail time when they preside over massive frauds," Warren said during a September hearing with Wells' then-CEO, John Stumpf. "We need tough, new laws to hold corporate executives personally accountable and we need tough prosecutors who have the courage to go after people at the top."

Brown is also likely to take a closer look at online lenders and financial technology companies, and in an April letter asked the Government Accountability Office to update a 2011 report on the subject.

Overall, Brown is also likely to take cues from Democratic presidential candidate Hillary Clinton, who would likely win that race if Democrats also took the Senate. (Both races hinge on turnout among the Democratic base.)

The Ohio Democrat is likely to embrace much of what Clinton has outlined, including a tougher look at shadow regulation and regulatory relief.

"You kind of go down the list of Hillary Clinton's financial services priorities and you can quickly sketch out the banking committee's agenda under Democratic control," Mills said.

Subscribe Now

Authoritative analysis and perspective for every segment of the mortgage industry

30-Day Free Trial

Authoritative analysis and perspective for every segment of the mortgage industry