Although regulatory reform was expected to clear one hurdle to enactment on Wednesday, with the House poised to approve the final legislation, the bill's ultimate fate remains a cliffhanger as Senate leaders announced they would not consider it until after the Fourth of July recess.
The Senate's inability to complete the bill this week left it unclear if Democrats had the necessary votes to approve the final legislation and whether more trouble could develop during the break.
While Sen. Susan Collins, R-Maine, said she would support the bill, Sen. Scott Brown, R-Mass., said he had not yet decided whether a budgetary maneuver added late Tuesday satisfied concerns he had with the legislation. Democrats hope to keep Brown's support in order to reach the 60 votes necessary to move to final passage.
"Anybody that tells you that they have it all figured out probably does not have much sense," said Donald Ogilvie, the chairman of the Deloitte Center for Banking Solutions. "I don't think they have the votes there for a real quick vote."
In the wake of Sen. Robert Byrd's death, Democrats hold just 58 seats and at least one of two Democrats who opposed the bill last time — Sen. Russ Feingold — has said he will not switch his vote.
Of the four Republicans who voted for the bill during debate last month, only Collins had committed to supporting the final legislation.
"While the bill is not what I would have written and contains some provisions that I oppose, on balance I believe that it will lead to stronger financial institutions, curb the abuses that led to the near collapse of our financial markets, and improve financial oversight by creating a council of regulators to identify products, practices, and financial institutions that pose a systemic risk to our economy," said Collins in a press release. "Based on my initial review of the final version of the conference report, I am inclined to support it."
But Brown of Massachusetts, whose concerns over the proposed bank tax forced lawmakers to reopen the conference committee and make changes to the bill, remained noncommittal.
"I appreciate the conference committee revisiting the Wall Street reform bill and removing the $19 billion bank tax," he said. "Over the July recess, I will continue to review this important bill."
The tax was removed by the conference committee late Tuesday, and replaced with provisions that would end the Troubled Asset Relief Program three months early and raise the required level of Federal Deposit Insurance Corp. reserves .
In order to pass the bill, Democrats must secure at least three more votes, and it was unclear how Sens. Olympia Snowe, R-Maine, and Chuck Grassley, R-Iowa, who previously supported the bill, will vote.
Speaking on the Senate floor on Wednesday, Senate Banking Committee Chairman Chris Dodd said there was nothing more he could do.
"I've done everything I know how to do to satisfy my colleagues. I don't know what more I could have done," he said. "After the July recess we will vote on the financial reform measure."
Dodd told reporters Tuesday after reconvening the conference that he believed he had the 60 votes necessary to pass the bill but acknowledged things could change.
"Obviously, until they actually cast the vote you never know," he said.
Analysts tracking the bill said that they still ultimately expect the bill to become law, but said that leaving the legislation pending over a recess allowed opportunities for new problems to arise as lobbyists and observers continue to unearth new details in the 2,300 page bill.
"There is always a risk in trying to hold tough votes on a controversial bill over a recess," said former Sen. John Sununu in an interview. "The climate can change. People are going to continue to find things they weren't fully aware of in a 2,000 page bill."
Other analysts agreed.
"This is a huge bill and those of us who actually read the bill are discovering things and saying 'whoa, I didn't know that was in there,'" said Ogilivie. "I know there is a lot of lobbying against it by the American Bankers Association and others to reopen it and make changes."
Michael Bleier a partner with Reed Smith LLP, questioned whether Snowe and Grassley will support the final bill.
"There are still some questions," he said. "Are they still going to be able to hold the other Republicans too? They haven't said anything. You just don't know."
Democrats could also persuade either Feingold or Sen. Maria Cantwell, who opposed the bill last month, to change their votes.
Joseph Engelhard, a senior vice president with Capital Alpha Partners, said Democratic leaders might be able to convince Cantwell to vote for cloture, a process that requires 60 votes and limits debate on the bill, and leave her free to oppose the bill on final passage, which requires only a simple majority.
"Assuming for a moment worst case scenario and Brown is a 'no,' which I don't think is likely, and Byrd's seat is not filled, the best bet for Democratic leadership is to get Cantwell to vote 'yes' on cloture and 'no' on the entire bill," he said. "That is something that the Senate Democratic leadership is hard at work at right now. When you are just short one or two votes -- that would be really critical."
Bleier said momentum still pointed to completing the bill even if the path to getting there was uncertain.
"Politically both parties recognize that they have to get something passed. They can't go to the election and say nothing's been passed," he said. "There will be a bill."
This story has been reprinted with permission from American Banker.
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