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The Feds Are Coming! The Feds Are Coming!

By Arthur D. Postal

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A survey released last Monday by an accounting firm said retail companies expect their same-store sales for the Christmas season to decline this year compared to last year. They also plan more discounting, and expect that discounters will do well.

The situation for insurance companies and agents, however, is more complicated.

That is because starting Wednesday, with the election of a new president, official Washington will start work on developing a new regulatory scheme for financial institutions.

And, given past history, by Christmas the broad outlines of a bill could be etched in stone. In other words, a survey of insurance lobbyists gives no clear consensus as to whether they will find the equivalent of gold or diamonds–or a shopping spree at the Minneapolis branch of Saks–in their stockings Christmas morning, or a lump of coal.

By the way, as an op-ed piece in last week’s Washington Post by New York Life president and CEO Ted Mathes implied, principles-based reserve accounting, appears “deader than a doornail,” in the words of one experienced industry lobbyist.

In other words, all the material advocating it might be on clearance at your nearby discount store.

The stakes for insurers and agents over the next few critical weeks are enormous. Since the start of the Republic in 1789 insurance has been state-regulated. And, in both 1945 and 1999, Congress restated the supremacy of states in regulating life and property-casualty activities.

That, according to everyone in official Washington, is about to end.

For example, the decision by the life insurance industry to ask Treasury to allow some of its members to participate in the Troubled Asset Relief Program and other parts of the Emergency Economic Stabilization Act of 2008 “absolutely guarantees” a federal role for insurance in the future, according to one industry lobbyist.

“There will be strings attached [to the aid],” the lobbyist said. “It’s absolutely the deal on an optional federal charter, and pulls the needle to the end of the meter on an Office of Insurance Information,” he added.

“Congress will demand it,” he said. “They want regulators to actively monitor the recipients of aid to ensure the money is appropriately spent,” and to do that, he explained, “federal regulators need expertise in insurance issues.”

In effect, he argued, it creates a federal Office of Insurance oversight.

But, that oversight could take many forms.

The variations are endless, which means that industry lobbyists and executives have their work cut out for them.

Joel Wood, senior vice president of the Council of Insurance Agents and Brokers, agreed. “Regardless of whether there is significant additional insurer access to the federal capital, clearly something has to give in the way of regulation,” he said.

“Everything is fluid; will this mean the mere creation of a federal office to monitor insurance issues at 30,000 feet? Will it breathe life into the efforts to establish an Optional Federal Charter?” he asked.

“If so, will such charters be limited to life and commercial insurers, or to the entire marketplace?” he asked. “What about a national guaranty fund?

“And, perhaps most frighteningly, will it lead to a massive overlay of federal regulation with no relief from state-by-state regulatory constraints?” Wood said.

At the same time, this is unlikely to be a drawn-out process.

The leadership in both houses of Congress has already said they hope to move quickly to draft such legislation. They hope to short-circuit the jurisdictional rivalries between committees–and the delay in drafting comprehensive, bipartisan legislation it would create–by naming a special group composed of members of all the committees that have jurisdiction over financial services.

And officials of the Obama camp have already stated they plan to move quickly to designate cabinet members and White House staff so that work can start on drafting legislation designed to tighten financial regulation. Moreover, while they were more circumspect–they read polls, too–the McCain camp is seen as also having laid some groundwork for dealing with an unprecedented financial crisis.

Given past history, such as the thrift bailout law of 1989, the likelihood is that the broad outlines of such legislation will be in place by the end of the year, with introduction of the legislation by the new administration in early February.

There are several other things to keep in mind. In 1989, there were more than 7,300 thrifts; today, there are barely 800.

And, with the problems of American International Group drawing the attention of members of Congress from both sides of the aisle, it might be wise to recall the words of a thrift lobbyist in mid-summer as work was being completed on the bill. “They wanted to regulate the thrift industry in the worst way–and they did,” he said.