Derivatives and Deregulation:

Financial Innovation and the Demise of

Glass-Steagall
Russell J. Funk
University of Michigan
500 South State Street, #3001
Ann Arbor, MI 48109-1382
e-mail : [email protected]
Daniel Hirschman
University of Michigan
500 South State Street, #3001
Ann Arbor, MI 48109-1382
e-mail : [email protected]
January 4, 2014

Both authors contributed equally to this work. Support for this article was provided
by a grant from the Rackham School of Graduate Studies at the University of Michigan. We thank Mark Mizruchi, Jason Owen-Smith, Greta Krippner, Sandy Levitsky, Sara
Soderstrom, Fred Wherry, Sarah Quinn, Rob Jansen, Fabio Rojas, Chloe Thurston, Kevin
Young, Lindsay Owens, Andrew Schrank, Marty Hirschman, members of the Comparative and Historical Methods and the Economic Sociology Workshops at the University of
Michigan, and audiences at the American Sociological Association (Las Vegas, Nevada)
and Society for the Advancement of Socio-Economics (Madrid) annual meetings for helpful feedback on previous drafts. Max Milstein provided excellent legal research assistance.
All errors are our own.

Electronic copy available at: http://ssrn.com/abstract=2374496

Abstract
Just as regulation may inhibit innovation, innovation may undermine regulation. Regulators, much like market actors, rely on categorical distinctions to
understand and act on the market. Innovations that are ambiguous to regulatory categories but not to market actors present a problem for regulators
and an opportunity for innovative firms to evade or upend the existing order.
We trace the history of one class of innovative financial derivativesinterest
rate and foreign exchange swapsto show how these instruments undermined the separation of commercial and investment banking established by
the Glass-Steagall Act of 1933. Swaps did not fit neatly into existing product
categoriesfutures, securities, loansand thus evaded regulatory scrutiny
for decades. The market success of swaps put commercial and investment
banks into direct competition, and in so doing undermined Glass-Steagall.
Drawing on this case, we theorize some of the political and market conditions under which regulations may be especially vulnerable to disruption by
ambiguous innovations.

Electronic copy available at: http://ssrn.com/abstract=2374496

Introduction
In 1981, the investment bank Salomon Brothers brokered the worlds first
major currency swap. The $210 million deal between IBM and the World
Bank was some two years in the making. In the period leading up to the
deal, IBM had issued bonds denominated in Swiss francs and Deutsche Marks
that it wanted to convert to dollars. Salomon Brothers realized that IBM
could save on transaction costs by avoiding the usual conversion method of
issuing new bonds in dollars. Instead, the bankers at Salomon connected
IBM with a party that had U.S. dollar-denominated bonds on hand and a
hunger for European currenciesthe World Bankand arranged for the two
organizations to swap payment obligations on each others bonds.
Decades later, this deal is widely recognized as the origin of one of the
most important and widespread modern financial innovations (Steinherr,
2000; Tett, 2009). Following the 1981 exchange between IBM and the World
Bank, swaps diffused at a nearly incomprehensible rate. By 1999, the notional value of all outstanding interest rate and foreign exchange swaps was
estimated to be a staggering $58.3 trillionmore than six times the 1999
U.S. gross domestic product.1
Although an investment bank brokered the swap between the World Bank
and IBM, commercial banks like J.P. Morgan were key players in the takeoff
of the market in the 1980s, and pioneered many key innovations in swaps
(Tett, 2009). The heavy involvement of commercial banks in swaps in the
early 1980s is surprising because it preceded the repeal of major regulations
most notably the Glass-Steagall Act of 1933that were designed to limit the
ability of commercial banks to deal in instruments that share many properties of these novel financial products. What relationship was there, if any,
between innovation in swaps and financial regulation?
1

The notional value of a swap is the value of the underlying asset being exchanged.
The market value of a swap is difficult to determine but usually much smaller, on the
order of a few percent of the notional value.

The effects of regulation on innovation, especially in industries that are

subject to heavy government oversight, have long been of interest to social scientists. For example, a prominent stream of research in economics
and public policy focuses on the relationship between regulation and R&D
spending among firms in sectors like manufacturing and drug development
(e.g., Grabowski, Vernon, and Thomas, 1978; Jaffe and Lerner, 2004). Organizational ecologists, likewise, show that deregulation enables and constrains
new product introductions and market entry in finance and related industries (e.g., Haveman, 1993a, 1993b). And in studies of entrepreneurship in
emerging fields like alternative energy, institutional theorists demonstrate
that regulation bears heavily on the process through which new products
come to market (e.g., Russo, 2001; Sine, Haveman, and Tolbert, 2005).
Despite much progress in research on the connections between regulation and innovation, existing studies focus almost exclusively on one side
of this relationnamely, on how regulation influences the process through
which novel products, services, and organizational forms are created and introduced to markets. Far less is known about how innovation, in turn, shapes
regulation.
We suggest that innovations can play a central role in the process of
deregulation. Specifically, we argue that swaps were not a response to the
easing of regulatory controls, but rather a cause. Here, we are inspired by
the insights of Kane (1977, 1981) who emphasized the constant interplay of
the activities of regulated firms and their regulators. Drawing on this idea of
a regulatory dialectic, we show here how innovation in swaps contributed
to the de facto end of Glass-Steagall and, eventually, to its formal repeal.
Swaps were influential in the process of deregulation at least in part because they integrated features of futures, securities, and loans, and therefore
were ambiguous with respect to established regulatory categories. This ambiguity made it difficult for regulators to interpret swaps and led to persistent
battles over jurisdiction and other issues, leaving even those regulators who

were suspicious of these novel financial innovations ill-equipped to respond.

At the same time, swaps were readily interpretable to market actors like commercial banks, who could leverage the ambiguous nature of swaps category
membership by arguing that the instruments were neither futures, securities,
nor loans as convenient when regulators attempted to introduce oversight.
Over time, as more and more market actors began to deal in swaps, the model
of the world that Glass-Steagall was designed to govern changed, rocking the
foundations of the law.
The remainder of this article is organized as follows. First, we provide
an overview of existing perspectives on deregulation. Next, we build on and
extend insights from theories of categorization to develop a framework for
the study of innovation and the process of deregulation. We then present
our data and methods, which we mobilize to offer a novel history of the
interrelationship between swaps and financial regulation. We conclude with
implications of this case for studies of innovation and regulation, categories
and categorization, and the recent history of finance.

Theoretical Perspectives on Deregulation

Deregulation in the United States has been a topic of academic interest since
the 1970s, but little existing research focuses on the role of innovation in
the rollback of government oversight. Here, we briefly review prominent
areas of research on deregulation in order to demonstrate the need for more
systematic analyses of howand under what conditionsinnovation might
contribute to the process of deregulation.
One established strand of scholarship focuses on the ideological and social movement aspects of deregulation. As Prasad (2006) has shown, the
deregulation movement consisted of two major phases that targeted two very
different forms of regulation.2 In the first period, starting in the 1970s, con2

Regulation has been defined very broadly in the literature as any action by the gov-

sumer advocates lobbied for the repeal of economic regulations that were
seen as anti-competitive, and thus productive of monopoly rents and reduced consumer welfare. In the second period, starting in the early 1980s,
the movement was captured by business interests and began to take aim at
social regulations, especially those concerning the environment (e.g., the U.S.
Environmental Protection Agency) and workplace safety (e.g., the Occupational Safety and Health Administration). Scholars understand this second
wave of deregulation as part of the neoliberal agenda for rolling back state
intervention into the affairs of big business, and for increasing the relative
power of business vis-`a-vis labor (Harvey, 2005; Mudge, 2008). In sum, this
first strand of scholarship focuses on the large-scale movement and the social
forces arrayed to produce it, not the day-to-day politics of deregulation. The
actual businesses that were deregulated play relatively little role in the story
apart from their broad lobbying efforts. Thus, innovation is not a central
theme.
A second strand of research digs down into the guts of the policymaking process by focusing on the specific politics of deregulation in various
industries. This research fits within the broader literature on public policy
especially on the role of business interests in policymaking (Hillmann and
Hitt, 1999; Hart, 2004; Baumgartner et al., 2009)and focuses on the more
meso- and micro-level politics of the deregulatory process. Derthick and
Quirk (1985) offer what is still one of the best-documented studies of deregulation, focusing on the air transportation, trucking, and telephone service
sectors. Their analysis highlights the role of economists and economic ideas
in promoting deregulation as a way to enhance consumer welfare and increase
efficiency. Other scholars emphasize more traditional political coalitions and
interactions between legislators, the presidency, regulators, and courts. For
ernment that restricts individual or firm behavior (Meier, 1985). We narrow our focus to
economic regulation, which we define as limitations on the products a firm can offer, the
price at which it may offer those products, or the location where it may do business. We
are primarily interested in deregulation as the elimination of these economic regulations.

example, Garland (1985) highlights the interactions between courts and regulators, and the role of shifting standards of judicial review of administrative
decisions in the process of deregulation.
A few scholars in this tradition focus explicitly on the deregulation of
finance. Meier (1985) compares regulatory struggles across different industries including depository institutions to showcase the importance of
the industrys resources, the level of issue salience, ease of entry into the
industry, and other factors. Recent studies, such as Suarez and Kolodny
(2011), highlight the role of financial industry associations in collectively
lobbying legislators for and against specific financial deregulatory proposals.
Studies of financial deregulation also emphasize the role of cognitive regulatory capture, i.e., the idea that financial regulators became ideologically
committed to a notion of finance as efficient and self-regulating and thus not
in need of strong regulation (Carpenter and Moss, 2013; Kwak, 2013). These
studies pay more attention to the explicitly political actions of firms, but
still bracket those firms actual business practices and exclude them from
systematic analysis. That is, firms enter into the deregulatory process primarily through their lobbying, not through innovation in product offerings
or other normal market activities.

Innovation and the Process of Deregulation

Drawing on the insights of Kane (1977, 1981), we suggest that regulation and
business activities (including innovation) maintain a dialectical relationship.
That is, just as businesses respond to regulation by complying with regulation
(or not), and innovating (or not), regulators and legislators too respond to
changes in the behaviors of business by enforcing existing regulations (or not)
or creating new ones (or not). We argue that innovative activities undertaken
by businesses may be especially important moves in this regulatory dialectic,
ones capable of undermining regulation in the absence of strong efforts by

regulators to uphold the existing rules.

Following from the perspectives on deregulation abovewhich focus attention primarily on deregulation through the passage and implementation
of new legislationthe story of Glass-Steagall in the 1980s appears to be one
of relative stasis with only partial rollbacks. Although finance experienced
significant deregulation in 1980 and 1982 with the repeal of Regulation Q and
the relaxation of restrictions that separated the activities various forms of
depository institutions (e.g., thrifts, credit unions, and traditional commercial banks), the legal barriers between commercial and investment banking
remained (Meier, 1985; Hammond and Knott, 1988). As will be discussed in
detail below, Glass-Steagall was challenged, but no formal repeal was passed
until 1999.3
We argue that beneath this relative stability, changes in the actual business activities of financial firms substantially altered the effects of the law
and catalyzed the process of deregulation. The field of finance underwent
major transformations, and these transformations altered the actual effects
of Glass-Steagall. Like all regulations, Glass-Steagall relied on a particular
theory of what the market was, what kinds of actors were in it, and what
their activities were. Changes in firm behavior, such as the invention and
diffusion of new products, have the potential to vitiate that understanding
of the field and, in turn, disrupt the regulations built on that understanding.
What kinds of innovations are most capable of disrupting regulations?
Clearly, not every innovation poses a significant challenge to the efficacy of
regulatory regimes. Some innovations are actually the intended outcome
of regulations, as when power companies search for more environmentally
friendly ways of generating electricity in response to environmental policy
3

Adding in a more nuanced understanding of the regulatory process that moves beyond
legislation (cf. Su
arez and Kolodny, 2011) draws attention to the opening of an important
regulatory loophole (the Section 20 subsidiary debate, discussed below). This loophole
did not challenge the existing regulatory understandings of commercial and investment
banking, however, but rather allowed commercial banks to own (small) investment banks.

(Jaffe and Palmer, 1997; Taylor, Rubin, and Hounshell, 2005). Here, the
innovations reinforce the vision of the world held by regulators and embedded
in the regulations themselves.
Although all regulations are built on some understanding of the field being
regulated, we theorize that the distance between this conceptual map of the
field and the actual practices of the field is especially important for economic
regulations designed to maintain boundaries between fields. More concretely,
regulations designed to separate kinds of activitysuch as commercial and
investment bankingrely on some model of what constitutes those activities
at a given point in time. Innovations that are ambiguous with respect to these
regulatory categories present problems for regulators, and opportunities for
regulated firms.
Research on categorization generally finds that that innovations, new
products, and organizations are most successful in markets when they are
readily interpretable through the lens of existing categories used by consumers (Hargadon and Douglas, 2001; Hsu, Hannan, and Kocak, 2009; Smith,
2011). Put another way, innovations that are ambiguous to market actors
are often unsuccessful or are at least punished in the market (Zuckerman,
1999; Hsu, 2006; Ruef and Patterson, 2009).
In slight contrast, we argue that ambiguity with respect to regulatory categories may be beneficial to both the market success of innovations and to
their capacity to disrupt regulations. Innovations that do not fit into existing regulatory categories may fall between the cracks of existing regulatory
jurisdictions. To the extent that different activities or kinds of firms are regulated by different regulatory entities, ambiguous innovations are not clearly
the responsibility of any particular regulator. When a regulatory entity does
determine that a particularly activity should fall under its jurisdiction, they
face uncertainty about which rules should apply, and their determinations
are subject to challenge as overreach of their statutory mandate.
Put together with existing findings, we thus argue that innovations are

most capable of vitiating regulations when those regulations attempt to maintain boundaries between different types of activity, and when the innovations
are readily interpretable by end-users but ambiguous with respect to regulatory categories. In what follows, we focus on the role of innovation in swaps
in the disruption of Glass-Steagalls formal separation of commercial and
investment banking through the blurring effect of swaps on the boundary
between the actual practices of commercial and investment banking.

Data and Methods

Historical case studies are important tools for theorizing about the unfolding
of processes over time, and thus are especially suited for understanding the
relationship between innovations and regulations (Hargadon and Douglas;
2001, Eisenhardt and Graebner, 2007). Like many historical cases, we relied on a wide range of primary and secondary, qualitative and quantitative
sources (Jick, 1979). Our efforts were both systematic and opportunistic.
In a process parallel to that of qualitative researchers relying on snowball
sampling, we expanded our data collection around a given event or process
until we reached saturation (that is, when new sources added no new understanding).
Specifically, we began our research with a detailed examination of trade
and general newspapers. We focused initially on American Banker, the trade
newspaper of the banking industry, and the New York Times (NYT ), the
most prominent general newspaper in the United States during our period
and the local newspaper of many key financial institutions. We read every
article in each publication that included the term Glass-Steagall, Banking
Act of 1933, and Gramm-Leach-Bliley and used these articles to identify
relevant events and periods and to generate new search terms (such as Section 20 subsidiary). In total, we collected 4,267 American Banker articles
and 723 NYT articles. We checked NYT coverage against a smaller sample

10

of Washington Post articles (N = 386). Drawing on existing secondary research (especially Tett [2009]), we also identified the history of derivatives as
an important component of the story, and broadened our search to include
swaps and derivatives.
After establishing the general narrative in the trade and general press,
we then dug deeper into key moments of contention. We analyzed court
documents and rulings, regulatory publications, Congressional Research Service reports, company annual reports, and scholarly publications on law and
finance, among other sources. At the helpful suggestion of an anonymous
reviewer, we also re-did our initial systematic reading using the Wall Street
Journal (WSJ ) to see if our analysis of major events would change with the
addition of a new source. We searched the WSJ for Glass-Steagall, interest rate swaps, currency swaps, and related terms from 1979 to 2000.
These searches yielded approximately 2,000 articles.4 These articles helped
us to deepen our understanding of debates about the role of swaps in the
1980s, but did not uncover any substantially new events or causal linkages.
Finally, we analyzed administrative data from the Federal Reserve to verify that smaller commercial banks played a relatively unimportant role, as
suggested by the narratives found in the newspaper accounts. A timeline of
major events in our case can be found in Table 1; the case itself proceeds
thematically rather than strictly chronologically.

Insert Table 1 about here

We mobilize these diverse sources to establish six key empirical claims:

1. Regulators in the 1980s and 1990s were largely favorable to deregulating
finance.
4

Starting in the early 1990s, some articles appear in nearly identical forms across
multiple editions of the WSJ (the Asia edition, the UK edition, and so on). The estimate
of 2,000 includes these near duplicates.

11

2. Swaps were ambiguous with respect to existing regulatory categories.

3. Swaps were a successful innovation, as judged by their dramatic uptake
in the market.
4. Swaps were successful in part because they were ambiguous to existing
regulations.
5. The market success of swaps contributed to the breakdown of distinctions between commercial and investment banks.
6. The breakdown of the distinction between commercial and investment
banks led to the formal demise of Glass-Steagall.
Claims 1-3 take the form of relatively simple empirical assertions, the first
and third of which are already well documented in the existing literature.
Claims 4-6 are more novel, and take the form of causal assertions. Following
Mahoney (2012), we employ the methodology of process-tracing (see also
George and Bennett, 2005; Goertz and Mahoney, 2012). Process-tracing
makes use of the rich within-case data generated through detailed analysis
of a specific case, known as causal-process observations, to establish that the
posited causal explanations are likely to explain the events of the case.

Shifting Contexts of Commercial Banking and

the Seeds of Innovation
In this section, we turn to the early history of Glass-Steagall to demonstrate that the seeds of contemporary financial innovations in interest rate
and foreign exchange swaps can be traced back to regulatory environments
established in the wake of the 1929 stock market crash. For many years,
the rules set forth by Glass-Steagall and related legislation were widely accepted and upheld by both regulators and the financial organizations those
rules were intended to govern. The categories of activity embedded in the
lawi.e., the particular model of the world of commercial and investment
12

bankingremained relatively accurate descriptions of the actual activities of

firms. Beginning in the 1980s, the emergence of alternative forms of financing
weakened the traditional banking business model. Banks first sought to alter
established regulations and expand the scope of their activities through traditional lobbying efforts. As we demonstrate below, when these efforts failed,
incentives to develop innovationsespecially innovations that were ambiguous and ill defined with respect to contemporary regulationincreased dramatically.

Glass-Steagall and the Separation of Commercial and

Investment Banking
In 1929, the United States experienced a massive financial crisis, including
a stock market crash and the subsequent failure of nearly 1,000 banks (Carnell, Macey, and Miller, 2008: 16). The crash led to declining confidence in
financial institutions and bank panics were common for the next four years,
leading to thousands more bank failures. In 1930, Senator Carter Glass of
Virginia proposed legislation that would separate commercial and investment
banking and eliminate securities affiliates (subsidiary organizations used by
commercial banks to avoid existing restrictions on their securities activities).
Glass successfully fought for the inclusion of a plank in the Democratic party
platform in 1932, calling for the severance of affiliated securities companies from, and the divorce of investment banking business from, commercial
banks (quoted in Perkins [1971: 518]).
Glasss legislation went through two years of committee hearings before
eventually passing the Senate in January 1933, two months before Franklin
Roosevelts inauguration. While the Senate focused on the separation of
commercial and investment banking, the House, led by Congressman Henry
Steagall of Alabama, championed the creation of federal deposit insurance,
and did not address Glasss legislation, which stalled pending Roosevelts
arrival.
13

In the beginning of 1933, on behalf of the Senate Committee on Banking

and Currency, Ferdinand Pecora led an investigation into the causes of the
crisis and uncovered extensive abuses by banks. The investigation focused
in part on the conflict of interest presented by banks that were both taking deposits and making commercial loans and underwriting and dealing in
corporate securities (Perino, 2010).5 Pecora exposed extensive abuses by a
prominent New York bank, City Bank (precursor to the modern Citibank),
and its securities affiliate, National City. The investigation uncovered how
National City sold investments to everyday consumers, often contacted because they were depositors at City Bank, without disclosing to them its own
assessments of the worthiness of an offering or other material facts (Perino,
2010: 248). Pecora also showed that the distinction between City Bank and
National City was a legal fictionthe two had the same board of directors,
chairman, and other top management. Thus, when National City pushed investors to buy City Bank stock, the bank was effectively propping up its own
share price. As a result of Pecoras cross-examination, Charles Mitchell, the
Chairman of City Bank and National City, was forced to resign, and Senator
Glasss legislation gained popular support.
In light of the Pecora Commissions findings, Congress passed the Banking Act of 1933 in June. The law merged Congressman Steagalls deposit
insurance bill with Senator Glasss bill separating commercial and investment banking, and thus is commonly known as the Glass-Steagall Act of
1933.
Glass-Steagall mandated sweeping changes to the financial industry (Cohen, 1982; Carnell, Macey, and Miller, 2008; Carpenter and Murphy, 2010).
First, the Act created the Federal Depository Insurance Commission (FDIC),
which insured bank deposits and had the authority to take over failing banks.
5

Carnell, Macey, and Miller (2008: 130) define a dealer as a party that engages in the
business of buying and selling securities for its own account while an underwriter sells
securities for an issuer. . . or buys securities from the issuer with a view to distributing
them to the public.

14

Second, Glass-Steagall capped interest rates through Regulation Q. This

regulation prohibited banks from paying more than a specified rate for interest on savings accounts and from paying any interest at all on checking
accounts, with the aim of preventing ruinous competition for deposits. Third,
and most important to our analysis, Glass-Steagall mandated the separation
between firms that took deposits and made loans (commercial banking) and
firms that underwrote and dealt in securities (investment banking). Sections
20 and 32 of Glass-Steagall prohibited firms involved in taking deposits from
being affiliates (part of the same holding company) or subsidiaries of each
other, and from sharing directors on their boards (interlocks) with firms
engaged principally. . . in the issue, flotation, underwriting, public sale, or
distribution, at wholesale, retail, or through syndicate participation of ineligible securities, meaning corporate debt and equity among other things
(but not government debt, which commercial banks were allowed to continue
to trade). In response, large banks split up their commercial and investment
banking divisions. For example, J.P. Morgan & Company divided into a
commercial bank, J.P. Morgan, and an investment bank, Morgan Stanley, in
1935.
The Glass-Steagall Act has come to be associated mainly with the separation of commercial and investment banking required by Sections 20 and 32.
Thus, for the rest of this discussion, we use Glass-Steagall to refer only to
these provisions unless otherwise specified. Also, we will return to the phrase
engaged principally in the quoted text of the law, as its contested meaning
played an important role in the efforts of commercial banks to enter into the
securities business in the 1980s.
Between the 1940s and the early 1970s, Glass-Steagall remained relatively unchanged. In 1956, the Bank Holding Company Act expanded GlassSteagalls reach to corporations that owned banks, i.e., bank holding companies, to ensure that such a company could not own both commercial and
investment banks. An amendment in 1970 removed an exception for compa-

15

nies that owned a single bank, further entrenching the separation between
commercial and investment banking (Carpenter and Murphy, 2010: 7). In
this period, regulators and legislators worked together to patch holes in the
Glass-Steagall framework, and investment and commercial banks largely acquiesced to the regime.
Following the economic turmoil of the 1970s, the competitive environment of commercial banks shifted dramatically, threatening the profitability of the industry. Non-financial firms began to rely more on their own
internal financial expertise (Zorn, 2004) and on issuing their own debt in
the commercial paper market rather than turning to commercial banks for
loans (Davis and Mizruchi, 1999). Simultaneously, the deregulation of interest rates (Krippner, 2011) and the creation of new savings vehicles like
money-market mutual funds created significant competition for savings deposits, and thus forced banks to pay higher interest rates on deposits (Berger
et al., 1995).6 Improvements in communication technologies and especially
advances in electronic credit scoring and credit records made it easier for foreign banks to compete in the United States. In 1979, foreign banks held less
than a quarter of the amount of U.S. nonfarm, nonfinancial corporate debt as
domestic banks; by 1994, they were roughly equal (Berger et al., 1995). Although commercial banks had fought for a few relaxations of Glass-Steagall
in the 1950s and 1960s, these threats to profitability pushed banks to begin
a struggle for outright repeal in the late 1970s (Davis, 2009: 116; Suarez and
Kolodny, 2011).
In the same period when commercial banks traditional business model
came under increasing pressure from interest rate deregulation, foreign com6

The creation of money-market mutual funds and the increased use of commercial paper effectively expanded investment banks capacity to compete directly with commercial
banks core businesses of deposit-taking and lending. Thus, they could be understood usefully as parallel cases to innovations in swaps that allowed investment banks to partially
erode Glass-Steagall. Here, we treat these developments as part of the history of swaps,
rather than undertaking a full analysis of their own regulatory and market dynamics. We
thank an anonymous reviewer for this point.

16

petition, and the financialization of non-financial firms, banks also encountered new opportunities to push for relaxing regulations. Together, the growing influence of the political right (Gross, Medvetz, and Russell, 2011) and
of financial economics (MacKenzie, 2006) created a regulatory environment
more friendly to deregulation. Specifically, although the status quo prevailed in Congress, regulators questioned the wisdom of Glass-Steagall and
began to agree with banks that the separation of commercial and investment
banks was no longer necessary or wise. Over the next twenty years, commercial banks learned to exploit opportunities in the regulatory arena through
a combination of clever reinterpretations and ambiguous innovations, even
while outright repeal of Glass-Steagall faced significant legislative resistance.

Failure of Early Repeal Efforts

Nearly a dozen measures designed to repeal Glass-Steagall were introduced
in Congress between 1981 and 1999 (New York Times, 1999a), but each
faced a different set of roadblocks.7 In the early period, from 1981 to 1988,
large commercial banks (working through the American Bankers Association
[ABA]) lobbied for a complete repeal, while investment bankers (represented
by the Securities Industries Association, [SIA]), along with other industry
groups, fought to maintain Glass-Steagall.
As early as 1981, commercial bankers organized to eliminate Glass-Steagalls
restrictions entirely (New York Times, 1981). Early repeal efforts picked up
steam quickly, winning a tentative endorsement from the Reagan administration in 1982 (American Banker, 1983a). Powerful congressional Democrats
opposed outright repeal, as did trade associations for investment banks, insurance agents, and community banks. In 1984, SIA president Edward I.
OBrien wrote,
7

See Su
arez and Kolodny (2011) for a more detailed account of the congressional
maneuvering surrounding Glass-Steagall in the 1980s-1990s. Our analysis largely coincides
with their narrative, despite being completed independently and drawing on somewhat
different sources.

17

The repeal of Glass-Steagall. . . is neither compelling, logical, nor

inevitable. The acts demise is advocated almost exclusively by a
handful of large banks. Most corporate executives and, certainly,
individual savers and investors couldnt care less about the issue,
as they already have an almost bewildering choice of financial services, products, and providers to choose from. Repealing the act
would be a radical and ill-conceived notion. (American Banker,
1984)
The SIA maintained this opposition throughout the 1980s, with strong
support from key legislators. For example, in late 1987, in the wake of
the Black Monday stock market crash, the SIA argued that the barriers
between securities and commercial banking had prevented the crash from
rippling outward and causing a larger economic downturn. The staff of New
York Republican Senator DAmato helped distribute buttons proclaiming,
Glass-Steagall Saved U.S. Again (American Banker, 1987). Up through
1988, these forces prevented commercial banks from making significant congressional inroads on a repeal bill.
Although their efforts to gain complete entry into the securities industry
through the repeal of Glass-Steagall were relatively fruitless, in the 1980s
banks did manage to significantly weaken the separation of the two fields.
The next section focuses on one important regulatory reinterpretation that
allowed banks to begin engaging in previously prohibited securities activities. This regulatory reinterpretation did not disrupt the categories of the
marketi.e., commercial vs. investment bankingbut it did allow commercial banks some limited access to previously restricted activities.

Rise of Section 20 Subsidiaries

Although Congress was reluctant to overhaul the venerable Glass-Steagall
Act in the 1980s, most bank regulators felt quite differently. In this section,
we document the partially successful efforts of regulators and banks to work
out a way around Glass-Steagall without enacting legislative changes. As
18

discussed above, Glass-Steagall prohibited affiliations between commercial

banks and companies that were engaged principally in ineligible securities
transactions such as underwriting and dealing in corporate equity (Carpenter
and Murphy, 2010). Commercial banks were permitted to have subsidiaries
which dealt in certain government securities like state and municipal bonds,
and they competed with investment banks in these areas. In the early 1980s,
three large commercial banksCiticorp (New York Times, 1984a), J.P. Morgan, and Bankers Trust of New York (New York Times, 1984b)sought
permission from the Federal Reserve to expand the activities of these subsidiaries to include certain ineligible securities like commercial paper and
mortgage-backed securities. These banks argued that as long as their subsidiaries did less than half their business in such securities they would not be
engaged principally in ineligible activities, and thus would not be in violation of Section 20 of Glass-Steagall. This reinterpretation of Glass-Steagall
would not involve the creation of any new products, and thus did not involve
challenging traditional product categories such as loan or security, but
would allow allow commercial banks to effectively own (smaller) investment
banks.
Reagan administration regulators responded favorably to this interpretation. In 1985, the Justice Departments Antitrust Division weighed in with
the Federal Reserve in favor of the expansion of commercial banks into investment banking activities. Charles F. Rule, Deputy Assistant Attorney
General in the Antitrust Division spoke on behalf of the Justice Department: We believe that the proper interpretation of Glass-Steagall does not
prohibit what Citicorp and Morgan want to do. . . And we also believe that
interpretation is good public policy of free-market competitiveness. (New
York Times, 1985) In 1987, the Federal Reserve Board agreed to allow commercial bank subsidiaries to do up to 5-10% of their business in ineligible
securities, as long as no single bank had more than a 5% share of the total
market for any ineligible security

19

Just one day after the Federal Reserve Board issued its decision, the Securities Industry Association (SIA), petitioned to stop the decision from taking
effect. The SIA argued that the phrase engaged principally should cover
any affiliate created for the purpose of underwriting securities, no matter
how small a share of its total revenue derived from such activities. The case
eventually went to the Court of Appeals for the 2nd Circuit, where the Court
ruled against the SIA, largely upholding the Federal Reserves decision.8 The
Court upheld the 5% gross revenue restriction as a reasonable interpretation
of the statute to which the Court owed deference.9 The Supreme Court
refused to hear the case, and so the 2nd Circuits decision held.
Over the next decade, the Federal Reserve would expand the range of
securities commercial banks were permitted to underwrite, and increase the
cap on the percentage of revenue that Section 20 subsidiaries were allowed
to receive in previously ineligible securities (Federal Register, 1996).10 Commercial banks had significant success in attaining a large market share in
corporate underwritingby 1996, 41 commercial banks had Section 20 subsidiaries (Carpenter and Murphy, 2010), and those subsidiaries underwrote
approximately 20% of corporate debt offerings (Gande, Puri, and Saunders,
1999). And yet, this traditional underwriting business was already seen in
the mid-1980s as decreasingly profitable, in part due to the increased competition, and in part due to the emergence of many new competing financial
products such as swaps (Wall Street Journal, 1984).
The reinterpretation of Glass-Steagall by the Federal Reserve that al8

Securities Industry Association v. Board of Governors of the Federal Reserve System,

839 F.2d 47 (2nd Cir. 1988).
9
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court laid out the logic of judicial deference to regulatory decisions. This logic, now known as Chevron Deference, holds that
when Congress has plausibly given an agency the authority to promulgate a regulation, the
Court should treat the agencys ruling deferentially because the agency presumably has
more technical expertise than the Court, and because the agency (deriving its authority
from Congress) is more directly accountable.
10
An earlier decision had already raised the cap to 10%.

20

lowed commercial banks to enter directly into investment banking offers one
strong piece of evidence for the attitude of the Fed specifically, and regulators
generally, towards the continued separation of commercial and investment
banking. By the late 1980s, most regulators no longer believed that this
separation was necessary, and often went so far as to believe it harmful to
continued American competitiveness in the face of foreign competitiors not
bound by similar restrictions (Wall Street Journal, 1986a). This permissive
attitude of regulators, combined with continued intransigence in Congress,
provided the context in which swaps would become an important innovation.

Ambiguous Innovation and Regulatory Disruption

Since their introduction in the late 1970s and early 1980s, swaps have been
difficult to classify within the categories of established regulatory institutions. As we describe below, swaps are part future, part security, and part
loan. Because they were only part future, part security, and part loan, actors
who dealt in swaps, including commercial banks, could effectively argue that
the instruments were none of the above when convenient. In so doing, established regulations could be evaded. Moreover, swaps challenged the very
categories on which these regulations were premised and thus contributed to
their eventual elimination.

Brave New World of Commercial Banking

Much ink has been spilt about financial derivatives in the wake of the 2008
financial crisis. Derivatives are financial products whose value is somehow
linked to an underlying asset, and they range from the venerable and reasonably well-understood option contract to the much-maligned credit default
swap (Steinherr, 2000; Tett, 2009). Here, we trace the history of two im21

portant derivatives innovations pioneered in the early 1980s: interest rate

swaps and currency swaps (also known as foreign exchange swaps). Unlike
credit default swaps, interest rate and currency swaps have not been blamed
for causing financial instability and are now considered relatively safe and
well-understood. We chart the tremendous success of swaps in the 1980s and
1990s, and argue that part of this market success is attributable to various
forms of tax and regulatory arbitragethat is, that swaps were preferable
to traditional alternatives in part because of their ambiguous regulatory status.11 We also show how commercial and investment banks competed relatively equally in this large market, thus further confusing the boundaries
between the two fields. In the following section, we document the slow and
ambivalent response of regulators to these financial innovations.
Although the first swap transaction was completed in the late 1970s,
their invention remained almost unknown to regulators and market actors
alike until the early 1980s (Price and Henderson, 1984: 3-4). As discussed
in the Introduction, in 1981, Salomon Brothers arranged a widely-publicized
currency swap between IBM and the World Bank (Tett, 2009: 11-12; Sercu,
2009: 240-243). IBM had an excess of Swiss and German-denominated bonds
that had appreciated in value and that it wanted to turn back into U.S.
dollars; the World Bank was interested in issuing bonds in those currencies.
Rather than IBM paying off its bonds and issuing new ones in dollars, the
World Bank instead issued dollar bonds, and the two swapped payments.
IBM would service the World Banks debt in dollars, and the World bank
would service IBMs debt in Swiss francs and German marks.
This currency swap had several benefits for IBM and the World Bank.
First, there were fewer transactions involved. IBM did not have to pay off
its existing bonds and issue new ones, saving it the trouble of issuing a new
bond. Notably then, this swap also denied commercial banks the possibility
11

Swaps are not the only financial innovation whose market success rests on tax or
regulatory advantages. For a more general discussion, see Miller (1986), Tufano (2003),
and Frame and White (2004).

22

of making such a loan and investment banks the opportunity to underwrite it.
Second, by swapping, IBM managed to delay paying capital-gains taxes for as
much as five years (Sercu, 2009: 241). A third benefit, common to all swaps
in the 1980s although less emphasized in the IBM-World Bank deal, was
that the entire transaction was off-balance sheet. Early swaps thus proved
effective at both reducing transaction costs, and evading tax and regulatory
frameworks.
Just as the market for foreign exchange swaps began to take off, numerous banks began arranging interest rate swaps in a single currency. In an
interest rate swap, the counterparties typically swap a floating rate asset
for a fixed interest rate asset. For example, the quasi-governmental Student
Loan Marketing Association (also known as Sallie Mae) used interest rate
swaps in 1982 to help raise floating-rate money to help fund its portfolio of
floating-rate student loans (American Banker, 1983b). Interest rate swaps
allowed companies to alter their exposure to rising or falling exchange rates
or to change the maturity of obligations without having to issue new debt.
Thus, arranging swaps directly competed with the more traditional activities
of dealing and underwriting in corporate equities and debt (Steinherr, 2000).
Swaps of both types took off quickly. Figure 1 shows the growth of the
total notional value of interest rate and foreign exchange swaps contracts
outstanding from 1983 to 2000.12 The data reveal an exponential increase in
swaps activity, from just a few billions dollars in 1983, to around a trillion
dollars in 1986, up to an almost incomprehensible $63 trillion in 2000. Figure
2 shows the notional value of swaps held by commercial banks, as reported
to the Federal Reserve. The pattern here is similar, an exponential increase
throughout the 1980s and 1990s.

12

As noted above, the notional value of a swap is much higher than the market value.
As far as we are able to determine, no historical data exist on the total market value of
swaps from this early period.

23


Insert Figure 1 about here

Insert Figure 2 about here

The reasons for this incredible takeoff in swaps transactions were hotly debated in the business press and finance journals. Smith and colleagues (1986:
24-27) offer a useful summary of four categories of explanation: financial arbitrage, completing markets, exposure management, and, most important
to our analysis, tax and regulatory arbitrage. From its beginnings in the
IBM-World Bank deal described above, swaps produced favorable tax and
regulatory outcomes. Smith and colleagues (1986: 24) describe the benefits
through an example:
The introduction of the swap market allows an unbundling, in
effect, of currency and interest rate exposure from the regulation
and tax rules in some very creative ways. For example, with the
introduction of swaps, a U.S. firm could issue a yen-denominated
issue in the Eurobond market, structure the issue so as to receive
favorable tax treatment under the Japanese tax code, avoid much
of the U.S. securities regulation, and yet still manage its currency
exposure by swapping the transaction back into dollars.
Finance scholars and regulators at the time agreed that swaps boomed
in part because of their favorable regulatory treatment and lack of reporting
requirements, and not just because of their ability to reduce transaction
costs (e.g. Grant, 1985; Wall and Pringle, 1989). Less commented on at the
time was the way that swaps, and other derivatives, complicated distinctions
between traditional commercial and investment banking. Swaps are part
security, part future, and part loan. While investment banks were seen as
especially competent at the trading aspects of swaps, commercial banks had
the advantage in understanding credit riskespecially important given that
24

in a swap, unlike a loan, both sides of the transaction face credit risk (Daigler
and Steelman, 1988). In a traditional loan, the borrower does not have to
worry about whether the lender will default. In a swap, both parties face
potential losses if the other becomes insolvent. Commercial banks had the
techniques and experience needed to assess swap counterparties and high
credit ratings that made them attractive swap parties. Investment banks
came up with new tricks to boost their swap divisions credit ratings to
compete with commercial banks (Wall Street Journal, 1991a).

Insert Figure 3 about here

Insert Table 2 about here

Although data from the early 1980s are scarce, it appears that interest
rate swaps were initially arranged roughly equally by commercial and investment banks. For example, American Banker reported that Morgan Stanley
(an investment bank) and Morgan Guaranty (a commercial bank) were the
most active arrangers of interest rate swaps, together accounting for about
half of all swaps issued in mid-1983 (American Banker, 1983b). In a series
of 1983 articles on the attempts by money-center commercial banks to enter more fully into investment banking, American Banker emphasized the
relative strength of Citicorp (American Banker, 1983c), Morgan Guaranty
(American Banker, 1983d), and Bankers Trust (American Banker, 1983e)
in the new markets for interest rate and currency swaps. Note that these
three banks were also the first to petition to form Section 20 subsidiaries.
Further, these portrayals (and other similar trade press accounts) treat arranging interest rate and currency swaps as a form of investment banking,
and thus treat commercial banks entrance into these market as a challenge
to Glass-Steagall.

25

Some commercial banks initially confined their swap activities to overseas

investment banking subsidiaries, which were largely free of Glass-Steagalls
restrictions. But commercial banks soon realized that swaps were simply not
covered by U.S. regulatory institutions. For example, early in the 1980s, J.P.
Morgan brought its London-based derivatives group to the U.S., as managers had realized, to their utter delight, that there was no explicit provision
in Glass-Steagall against trading in derivatives products (Tett, 2009: 17-18).
By the late 1980s, more data sources are available that demonstrate commercial banks success in the swaps market. In this period, swaps continued to be dominated by a few key players, including several of the largest
commercial banks. Table 2 presents data on 15 top derivatives dealers investigated by the U.S. General Accounting Office (GAO, 1994). At this time,
and to present, interest rate swaps were the largest part of the over-thecounter (OTC) derivatives market. The seven commercial banks account
for almost 70% of the 15 firm total, and 90% of the derivatives business of
commercial banks. Figure 3, drawn again from reports made to the Federal
Reserve, shows that the proportion of all commercial banks using swaps remained quite low, ranging from 2% to 7% before falling back a bit as a wave
of mergers between big banks reduced the number of separate firms engaging in swaps. Our picture of the swaps market in the 1980s-1990s is thus
one dominated by a small number of increasingly large commercial banks in
competition with a small number of prominent investment banks.
Overall, we see here how Glass-Steagall created the conditions of its own
demise. The regulatory framework introduced by Glass-Steagall made swaps
attractive financial instruments; but, as swaps grew in importance, they
blurred the distinction between commercial and investment banking and ultimately destroyed the categories upon which that regulatory framework was
built. While commercial banks faced stiff resistance to a full repeal of GlassSteagall in the legislature in the 1980s, and had only partial success at entering explicitly into impermissible investment banking activities through

26

Section 20 subsidiaries, swaps offered a route into a new, profitable, and

investment-banking like market that was completely outside the scope of
Glass-Steagall, and initially, most other regulatory frameworks. In the next
section, we document the slow, patchwork, and mostly ineffective attempts
by U.S. regulators to tame the swaps market and manage the inherent ambiguities of these financial innovations.

Regulators Meet Swaps

Regulators responded slowly and with uncertainty to the emergence of swaps.
Since the 1980s, scholars and regulators have debated whether swaps should
be treated as securities, futures, insurance, speculation or something else
entirely (Klein, 1986; Olander and Spell, 1986; Romano, 1996; Hazen, 2005).
When regulators did attempt to claim jurisdiction over swaps and add order
and transparency to the market, they were quickly dissuaded by lobbying
efforts and the threat of the market leaving the United States. In this section,
we focus primarily on the back and forth at the Commodity Futures Trading
Commission (CFTC) and its largely failed attempts to define swaps as futures
and force swap trading onto exchanges, thus resolving the ambiguity of swaps
by forcing them into a particular category.
Some of the first regulatory responses came from the Securities and Exchange Commission (SEC) and the Financial Accounting Standards Board
(FASB). In 1985, the SEC sought public comments on a proposed rule to
treat swaps as securities requiring similar disclosure and transparency to
more traditional securities (Wall Street Journal, 1985). In 1986, FASB began similar public deliberations on the creation of rules to bring swaps onto
balance sheets and to standardize valuation practice (Wall Street Journal,
1986b). These rule-making processes bogged down for years, with the result
that derivatives remained off-balance sheets and unregistered as securities
as the market boomed. In 1991, proposed legislation, intended as a partial
repeal of Glass-Steagall, would have clarified the SECs capacity to regulate
27

swaps, and other new securities but it failed to pass (Wall Street Journal,
1991b). As such, the regulatory status of swaps as securities continued to be
murky throughout this period.13
In contrast, the Office of the Comptroller of the Currency (the primary
regulator for some commercial banks) was much more permissive, arguing
in favor of extending the allowed activities of banks to include a wide array
of derivatives contracts (Omarova, 2009). These extensions were relatively
uncontroversial for interest-rate and currency swaps, but more controversial for equity swaps which were less ambiguous violations of Glass-Steagall
(Omarova, 2009: 1069-1072).
Swaps faced their most serious regulatory challenge from the CFTC. In
1987, the CFTC advanced the possibility of regulating OTC derivatives
including swapsas futures and began an investigation into Chase Manhattans derivatives dealing activities (Federal Register, 1987). The CFTC
suggested that OTC derivatives might be unauthorized futures contracts, and
thus legally unenforceable under the 1936 Commodities Exchange Act, which
requires that futures be sold on organized, regulated exchanges. These investigations sent derivatives dealers overseas, which in turn put pressure on the
CFTC to cease its efforts to regulate derivatives lest the United States lose
out on a substantial new financial market (Romano, 1996: 55). In 1989, the
CFTC backed down and issued a regulation exempting most swaps, under
the relatively minimal conditions that the swap not be offered to the general
public (but rather to large businesses, government entities, or sophisticated
and wealthy investors), and that the swap be individually tailored, and thus
not suitable to be traded on an exchange with a unifying market price (Federal Register, 1989).
This 1989 policy statement did not entirely quell fears around issues of
legal enforceability of swaps contracts, and a January 1991 ruling by the
British House of Lords stoked these fears much higher. The House of Lords
13

For a detailed discussion of debates at the SEC, see Russo and Vinciguerra (1990).

28

ruled that British municipalities did not have the authority to enter into
swaps transactions as part of their power to raise fundsfor the House of
Lords, swaps were pure speculation. Thus, the House of Lords voided swaps
contracts with over 75 banks, causing losses to derivatives dealers estimated
at $179 million (Lynn 1994: 308-309). Although this ruling did not directly
affect transactions solely within the U.S., swaps dealers feared that a similar analysis might someday be applied, and pushed for greater legal clarity
on the status of derivatives. After some squabbling between advocates for
the exchanges, who wanted to capture some of the OTC derivatives market
share, and the major banks, who wanted to preserve their unregulated, OTC
character, Congress passed the Futures Trading Practices Act (FTPA) which
specifically authorized the CFTC to exempt swap transactions. The FTPA
also retroactively exempted swaps from state Bucket Shop laws, under
which their legal status could have been challenged as an unauthorized form
of gambling, another source of legal uncertainty in the swaps market. In his
statement on signing the FTPA, President George H.W. Bush made clear
what was at stake:
The bill also gives the Commodity Futures Trading Commission
(CFTC) exemptive authority to remove the cloud of legal uncertainty over the financial instruments known as swap agreements.
This uncertainty has threatened to disrupt the huge, global market for these transactions. The bill also will permit exemptions
from the Commodity Exchange Act for hybrid financial products that can compete with futures products without the need
for futures-style regulation. (Bush, 1992)
In 1993, the CFTC followed through and issued regulations affirmatively
exempting most swap transactions from regulation (Romano, 1996: 56).
The derivatives market continued to expand in the mid-1990s, with heavy
competition between commercial and investment banks (even as those barriers were eroding), and relatively little intervention from federal authorities.
In May, 1998, the market received another scare as the new head of the
29

CFTC, Brooksley Born, issued a concept release, asking a series of questions and suggesting that the CFTC might once again pursue the regulation
of derivatives (Federal Register, 1998). Born argued that derivatives contracts had become increasingly standardized, and thus the 1989 and 1993
exemptions from exchange-trading no longer made sense, and that market
participants themselves were interested in moving to organized exchanges
(United States Congress, 1999). For example, the International Swaps and
Derivatives Association (founded in 1985) had created a master agreement
which increasingly standardized swap contracts and facilitated the emergence
of a secondary swaps market (Wall Street Journal, 1987). Additionally, Born
noted that the CFTC was incapable of exercising its role in preventing fraud
and misrepresentation without any record-keeping requirements (PBS Frontline, 2009).
This concept release brought about a swift reaction from bankers, and
from other financial regulators who were convinced that the regulation of
derivatives was unnecessary. Federal Reserve Chairman Alan Greenspan,
Treasury Secretary Robert Rubin, and SEC Chairman Arthur Levitt all disagreed vocally with both the authority of the CFTC to regulate derivatives
and the need for such regulation. To quell the market, these regulators supported a successful Congressional effort to enact a moratorium on new regulations of the OTC derivatives market (Washington Post, 2009; Stout, 1999:
706-707). Born stepped down from the CFTC in April, 1999, and in 2000,
Congress passed the Commodity Futures Modernization Act, affirmatively
declaring that OTC derivatives would not be regulated as either futures or
securities, and thus ending the possibility of CFTC regulation (Hazen, 2005:
388-395).
Swaps presented a problem for regulators, but also an opportunity. Because of swaps ambiguous position spanning the categories of futures, securities, and loans, regulators who were favorable to financial deregulation
could happily exempt such contracts from existing rules by declaring that

30

swaps were not whatever it was that they were supposed to regulate. Regulators who wanted to bring swaps into an existing framework needed to either
secure new authority from the legislature, or find a compelling justification
for shoehorning swaps into an existing category of regulated activity. Either
way, the process was slow and faced pressure from lobbyists armed with the
threat of moving financial activities abroad. And in the meantime, the swaps
market flourished.

The End of Glass-Steagall

As their popularity skyrocketed, swaps altered the landscape of contemporary banking. Through the use of such contracts, commercial banks were able
to engage in various types of activities that had, for nearly half a century,
fallen under the exclusive control of investment banks. Formal regulation,
on the other hand, was much slower to change. Long after the separation
of commercial and investment banking had been eroded in practice by the
rise of swaps, the text of the law remained and was consequentialthough
increasingly ineffectivefor shaping the business of banking. The categorical
map of the field embedded in the law no longer reflected the actual business
practices of the increasingly unified financial industry. As we describe in
this last section of our case, commercial banks ultimately succeeded in overturning Glass-Steagall, facilitated by the practical blurring of the boundary
between commercial and investment banking brought about by swaps.

Gramm-Leach-Bliley
By 1988, the effective separation between commercial and investment banks
was fast becoming history. The vast new swaps market was open to commercial and investment banks alike, although the two had slightly different
strengths. Section 20 subsidiaries allowed commercial banks to compete,
albeit in a limited fashion, with investment banks in previously prohibited
31

businesses, including underwriting corporate securities. These successful entries into investment banking reduced pressure on commercial banks to push
for a full repeal of Glass-Steagall. As one staffer for Senator Proxmire noted,
Now that banks have gotten quite a lot through the regulatory process, it
would be easy for them to kill a bill that maintained too many restrictions
on their activities (American Banker, 1988a; American Banker, 1988b).
Recognizing the shifting balance of power, in 1989 the Securities Industry
Association backed down from their complete opposition to repealing GlassSteagall, and instead proposed an alternative measure that would partially
repeal the separation between commercial and investment banking, but maintain certain barriers within companies between the two activities (American
Banker, 1989b). The ABA rejected the SIAs proposals as too restrictive,
effectively replacing the Berlin wall with a high-powered electrical fence
(American Banker, 1989b). From 1990-1994, the SIA, ABA and other lobbying groups fought over the specifics of a repeal bill, but made little headway,
in part due to continued resistance from Democrats in the House of Representatives. The 1995 Republican takeover of the House cleared out several
hostile committee chairmen (American Banker, 1995a; Suarez and Kolodny,
2011), but insurance industry lobbyists and the ABA continued to fight over
barriers between banking and insurance, another part of the Glass-Steagall
repeal discussions (American Banker, 1995b). The ABA used its increased
leverage from winning so many regulatory victories to kill partial repeal attempts that imposed too many restrictions on commercial banks activities.
The ABA would wait for a full repeal, and in the meantime commercial banks
would take advantage of the new powers granted to them by regulators to
enter into competion with investment banks.14
14

Although investment banks were less concerned with entering commercial banking
than the reverse, investment banks did fight throughout this period for a repeal bill that
allowed them maximum entrance into commercial banking. That is, investment banks
decided that if the separation between commercial and investment banking was going to
erode, they wanted to ensure complete access to other sides market.

32

In 1998, Citicorp (a commercial bank) and Travelers Group (an insurance company that owned a major investment bank) announced a merger
that would form a company that directly violated Glass-Steagall. Because
Travelers Group was an insurance company, and not a bank holding company, it was able to apply to the Federal Reserve to become a bank holding
company and thus be granted an automatic two year grace period to divest
itself of impermissible activitiesor to get the law changed (Carnell, Macey,
and Miller, 2008: 460). The Federal Reserve approved the petition, and the
D.C. Circuit Court upheld the Feds decision over the objections of the Independent Community Bankers of America.15 It did not matter that the newly
formed Citigroup had no intentions of divesting itself of its impermissible
activities; the provisions of the Bank Holding Company Act gave the new
company a two year grace period.
As divisions between securities firms, insurance companies, and traditional banks continued to weaken (or in the case of Citigroup, collapsed entirely), the three lobbies united behind a proposal to repeal Glass-Steagall.
Reports estimate that in 1997 and 1998 alone, financial firms spent $300 million lobbying for the repeal (New York Times, 1999b). In 1999, Congress repealed the already-weakened separation of commercial and investment banking through the Financial Services Modernization Act, known popularly as
Gramm-Leach-Bliley. Although there were a few hurdles involving privacy
concerns, specifically around medical records held by insurance companies
(American Banker, 1999), and the Community Reinvestment Act (American
Banker, 1998),16 once the major lobbying groups for the investment banks,
commercial banks, and insurance companies signed on to the bill, its passage
was relatively uncontroversial. The final vote in the Senate was 90-8; in the
House, 362-57.
15

Independent Community Bankers of America v. Board of Governors of the Federal

Reserve System., 195 F.3d 28 (D.C. Cir. 1999).
16
The Community Reinvestment Act, an anti-redlining act passed in 1977, encouraged
banks to invest in low-income communities.

33

Financial innovation, specifically the emergence of the market for swaps,

along with with favorable regulatory reinterpretations of existing rules changed
the balance of power inside finance, which produced a political coalition
united around overturning Glass-Steagall.17 By disrupting the effectiveness
of Glass-Steagall, swaps in turn contributed to its eventual formal repeal.
Innovation in day-to-day operations preceded deregulation, and contributed
to the political manuevers necessary to achieve that deregulation.

Coda: The Futurization of Swaps

In 2010, a decade after the Commodity Futures Modernization Act ended the
CFTCs attempts to regulate swaps as futures and two years after a major
financial crisis blamed on unregulated swaps, Congress passed the DoddFrank Act. Among many other provisions, Dodd-Frank required that swaps
transactions be cleared through organized exchanges. Although it is too early
to say exactly how the new rules will affect the market for swaps, one clear
trend has already emerged: swaps dealers have started converting their swap
deals into futures (Bloomberg Businessweek, 2013a). After arguing for two
decades that swaps were not futures, what convinced dealers to futurize
their swaps? Favorable regulatory treatment:
For interest rate swaps and credit default swaps, the CFTC now
requires traders to post margins equal to five days worth of maximum potential trading losses. For comparable futures contracts,
the collateral is one to two days of potential losses. (Bloomberg
Businessweek, 2013a)
The post-Dodd Frank futurization of swaps highlights the difficulty of regulating financial transactions through categorical distinctions. Without con17

It is difficult to say to what extent commercial banks conceptualized derivatives as

a strategy for overturning Glass-Steagall. Drawing on Tett (2009), it seems likely that
derivatives were an emergent strategy for vitiating Glass-Steagalls effectiveness, as part
of commercial banks general strategy of entering into investment banking-like activities in
any way possible.

34

tinual vigilance, market actors may be able to strategically manipulate which

category their activity falls under, vitiating the effectiveness of boundarymaintaining regulation. Finally, that swaps could be futurized provides further evidence for the claim that the innovation of swaps was, at least in
part, successful in the market because swaps were ambiguous to existing regulatory categories rather than because they offered market actors an entirely
new financial product.

Discussion
We began this article by noting that although research on the interconnections between regulation and innovation has a rich history in organizational
theory, existing scholarship focuses largely on one dimension of this relationship. Namely, prior studies attend primarily to the ways in which various
rules and laws designed to restrict the behavior of particular actors influence
the creation and development of novel products, services, and even organizational forms. Put differently, there exists relatively little systematic work
on how innovation shapes regulation. This oversight is problematic for several reasons. Perhaps most importantly, it is difficult to reconcile the largely
static picture of regulation painted by many organizational theories that
address innovation with observations about the relentless interplay of the activities of regulated firms and their regulators (Kane, 1977, 1981). Moreover,
to the extent that innovation shapes regulation, existing studies may mask
an important endogenous process, whereby firms engage in novel activities
that alter the effects of standing rules and laws in ways that subsequently
influence the kinds of innovations they create and develop.
In this article, we worked to develop novel theoretical insights about the
effects of innovation on regulation by showing how, under certain conditions, innovations can play an important role in the process of deregulation.
Specifically, we demonstrated that the creation and diffusion of interest rate

35

and foreign exchange swaps contributed to the demise of Glass-Steagall, a

Depression-era law that, for decades, mandated the separation of commercial
and investment banking activity among U.S. financial firms. Although other
foces like shifts in the global banking industry also weakened Glass-Steagall,
several factors made swaps especially important in this particular process
of deregulation. First, at the time of their introduction, swaps were novel
financial instruments that integrated properties of futures, securities, and
loans, and therefore were ambiguous with respect to established regulatory
categories. This ambiguity led to persistent questions about the appropriate
regulatory responsibilities and made it difficult for regulators who were suspicious of these novel financial innovations to respond. Second, as more and
more market actorsincluding commercial banksbegan to deal in swaps,
the categories baked into the model of the world that Glass-Steagall was
designed to govern began to erode, shaking the very foundation of the law.
Our focus on Glass-Steagall has helped us to derive insights about an
important case of deregulation and to make broader theoretical observations
about one way in which regulations can be shaped by innovation. However,
our reliance on a single case presents a number of limitations that suggest the
need for future research. Perhaps most importantly, our analyses were undertaken in the context of the U.S. banking and financial industry. Although we
believe the basic insights of our approach will be helpful in many empirical
contexts, the details will likely differ in times and places far removed from
the contemporary U.S., as nations differ markedly in their legislative and
regulatory institutions. Thus, our observation about the role of ambiguous
innovations in the process of deregulation is best viewed as an existence proof,
not a strong claim about propensities or pervasiveness. Future work should
attempt to identify the prevalence of this phenomenon in different industrial,
national, and historical contexts. More broadly, because our empirical investigation focused exclusively on the banking and financial industry, we were
unable to clearly disentangle the magnitude of the effects of trends that were

36

happening in the sector as a whole (e.g., the rise of commercial paper and
increasing foreign competition) on the demise of Glass-Steagall from those
that were exclusively attributable to innovation in swaps. Future research
might usefully work to more precisely characterize the potential effects of
ambiguous innovations on the process of deregulation through, for instance,
comparisons across different sectors or by focusing on more narrow regulations that target smaller segments of a particular industry.
Despite these limitations, we believe our analysis has several notable implications for organizational theory, which we discuss in greater detail below.
In closing, we then turn to a brief overview of the novel empirical findings
that emerge from our study.

Implications for Research on Innovation and Regulation

In contrast to existing work, we focused our attention on the consequences of
innovation for the efficacy and long-term stability of regulation. At the most
general level, we claimed that innovations have the capacity to undermine
regulations. The case of swaps and Glass-Steagall serves as an existence
proof for this relatively broad and modest claim. Innovation should thus
be understood as, at least potentially, a previously unrecognized form of
corporate political action, and a move in the regulatory dialectic (Kane,
1977, 1981).
Digging into the details of the case, we can begin to theorize about the
conditions under which innovations are more likely to undermine regulations.
These conditions include the type of regulation being analyzed, the alignment
of political forces capable of maintaining the existing regulatory framework,
and the relative clarity or ambiguity of the innovation vis-`a-vis market and
regulatory categories.
We hypothesize that regulations designed to maintain the boundaries
between categories of activity are particular susceptible to disruption by ambiguous innovations. By boundary-maintaining regulations, we mean rules
37

that prohibit certain kinds of actors from engaging in certain kinds of activities (rather than rules banning or limiting any actor from engaging in
a particular activity). Banks themselves are defined by strong boundarymaintaining regulations that separate banking and banking-related activities
from other forms of commerce (Carnell, Macey, and Miller, 2008). Ambiguous innovationsthose that do not fall into the existing categories of activity
apportioned up by boundary-maintaining regulationsoverthrow the status quo bias that pervades much of the political system, and thus shift
the political burden onto those who would maintain the existing regulatory
framework. In our case, although there was not sufficient political will to pass
legislation overturning Glass-Steagall in the 1980s and early 1990s, there was
also insufficient political will to write new legislation capable of bringing
swaps into the Glass-Steagall framework (that is, defining swaps as either
loans, futures, or securities).
This analysis extends most naturally to the study of other boundary
maintaining financial regulations. For example, financial regulators in the
United States recently implemented the so-called Volcker rule designed to
stop banks from engaging in proprietary trading, an activity traditionally
associated with hedge funds (New York Times DealBook, 2013). Although it
is too early to tell, one might predict that commercial banks will attempt to
innovate around this rule by inventing new activities and products designed
to replicate the effects of proprietary trading. Historically, we can see similar
innovations in the 1960s and 1970s as banks created money market mutual
funds and other instruments designed to evade the Regulation Q ceiling on
interest rates (Frame and White, 2004; Krippner, 2011).
Finally, given that some innovations attribute their success in part to their
capacity to disrupt regulations, we believe scholars should be cautious in generalizing findings and theories about innovation broadly writ to the context
of finance. Less cryptically, scholarship, as well as popular discourse, tends to
assume that innovation is a net social good (Engelen et al., 2010). The fact

38

of an innovations widespread use tends to serve as sufficient warrant of its

social utility. But for innovations that owe their success to tax or regulatory
arbitrage, the link between widespread use and social value is much more
tenuous. For a relatively pure case, consider the brief history of the zerocoupon bond. In 1981, U.S.-based banks discovered a tax loophole that
allowed corporations to issue bonds sold below face value that pay no interest (hence, zero-coupon) and gain substantial tax benefits (Fisher, Brick,
and Ng, 1983). Zero-coupon bonds became immediately popular. When
the tax loophole was closed in 1982, corporations largely ceased to use the
new instrument; the major exception was a similar loophole for zero-coupon
bonds issued in Japan which persisted through 1985 (Finnerty, 1985). Not
all cases are so clear: swaps, for example, continue to be widely used long
after the repeal of Glass-Steagall and the clarification of their tax treatment,
although the recent move to increase transparency in the swaps market has
induced a shift from swaps to futures (as discussed above). Nonetheless, we
believe the capacity for innovations to be successful because of their opacity
to existing regulations should give scholars some pause in their evaluation of
the value of innovations, and especially financial innovations.

Implications for Research on Categorization

Our findings also speak to the growing literature on the importance of categories and categorization. Much research in organizational theory emphasizes
that actors who span multiple categories or otherwise fail to send clear signals
of membership encounter difficulty as [they] face pressure to demonstrate
that they and the objects they produce conform to recognized types (Zuckerman, 1999: 1398-99) and therefore are devalued by market participants relative to their inherent value or usefulness (Hsu, Hannan, and Kocak, 2009).
More recent work extends these earlier findings by showing that whether
ambiguity is good or bad is largely a function of audience. For example,
Pontikes (2012) demonstrates that in the software industry, venture capital39

ists (i.e., market-makers) value ambiguity because it grants flexibility to

the organizations in which they are investing. By contrast, because products, organizations, and other objects with ambiguous category membership
are challenging to interpret and understand, consumers and product analysts
(i.e., market-takers) typically react unfavorably to them.
Building on and extending this recent work, we also find evidence that
category spanning has different implications for different audiences. Despite
their status as part future, part security, and part loan, market participants
had little difficulty making sense of interest rate and foreign exchange swaps,
as evidenced by their dramatic takeoff during the 1980s. Regulators, however,
found it challenging to interpret swaps, at least with respect to established
regulatory categories. Furthermore, in the case of Glass-Steagall, the fact
that swaps were readily interpretable to one set of actors (market participants) but not another (regulators) appears to have made those financial
instruments even more attractive. Put differently, one audience found swaps
to be especially valuable because a different audience could not make sense
of them. Future research on categorization in markets could build on this
insight and attempt to identify the conditions under which market actors not
only value ambiguity, but also leverage it for strategic purposes.
More broadly, research on categorization in markets could benefit from
more explicitly theorizing the consequences of spanning categories that belong to different institutional domains. For example, most existing research
on categorization focuses on market categories, and finds that audiences evaluate market actors in terms of their fit with widely recognized, taken for
granted types. Few studies consider how the dynamics of evaluation identified in prior work might play out, for instance, in the context of regulatory
categories. Our findings suggest that regulatory categories may differ from
more cultural and cognitive ones. Notably, regulatory categories are defined
explicitly in the text of laws, rules, and policies. Although those texts are
subject to reinterpretation over time, as we saw in the case of swaps, whether

40

or not particular regulatory categories are consequential does not hinge on

broad consensus among the members of a field or on the existence of widely
recognized types. In fact, as long as they remain on the books, regulatory
categories can still have consequences, even if the designations lose (or never
even acquired) a taken-for-granted character.

Implications for Empirical Research on Finance

In addition to its theoretical contributions, our analysis adds three insights
to the history of recent financial deregulation. First, most existing work on
the history of modern financial derivatives has not connected the growth of
derivatives to the collapse of Glass-Steagall (e.g. Steinherr, 2000; Hazen,
2005; Tett, 2009). Drawing on previously unexplored data, we demonstrated
that commercial banks and investment banks competed heavily in the early
years of the interest-rate and currency swaps markets. Thus, without any
changes to the text of Glass-Steagall, the effective separation of commercial
and investment banking was eroded throughout the 1980s and 1990s as they
competed in this new market.
Second, our research points to a need to de-center the legislature in studies of financial deregulation, and pay increasing attention to the interactions
of regulators, courts, and financial innovation. Specifically, given the success
of commercial banks at entering into competition with investment banks in
the 1980s and early 1990s through swaps and Section 20 subsidiaries, our
research suggests that scholars interested in the role of financial deregulation
as a cause of the 2008 financial crisis may place too much emphasis on the
formal repeal of Glass-Steagall in 1999. In agreement with the Financial
Crisis Inquiry Commission (2011), we find that Glass-Steagall was largely
ineffective well before the passage of Gramm-Leach-Bliley. Thus, even if the
combination of commercial and investment banking activities in a single business was partially responsible for the crisis (itself a hotly contested claim), we
find that such combinations predated Gramm-Leach-Bliley. More generally,
41

our analysis suggests that scholars interested in financial deregulation should

focus on the link between financial innovation and deregulation, especially
in the presence of regulators friendly to the relaxation of restrictions. Ambiguous innovations, in particular, present regulators the opportunity to not
regulate, and thus produce policy drift (a change in the effect of regulation
in the absence of changes in the formal rules, cf. Hacker and Pierson, 2010).
Third, the history of Glass-Steagall adds greater depth to our understanding of the financialization of the U.S. economy in the 20th century.
In the 1980s, even large financial institutions came in a variety of distinct
forms: commercial banks, investment banks, insurance companies, and so on.
The turn to finance in the 1970s-1990s affected these institutions differently;
for example, the increasing use of commercial paper by non-financial firms
threatened the profitability of commercial bank lending even as the aggregate profitability of the finance sector as a whole grew tremendously (Davis
and Mizruchi, 1999; Krippner, 2011). By the end of the 1990s, however, the
largest of these firms grew more similar as their core businesses began to
overlap, creating what Wilmarth (2009) calls the large, complex financial
institutions that dominate modern finance. Our analysis suggests that this
unification of big finance resulted, in part, from the financial innovations of
commercial banks that intentionally set out to disrupt the boundaries separating different types of financial institutions. These strategies culminated
in an alliance between commercial and investment banks to complete the repeal of Glass-Steagall. Thus, our research suggests that big finance has not
only become more profitable since the 1970s, but it has also become more
politically and economically unified.

42

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51

Notional Value of Swaps

1014
Interest Rate and Foreign Exchange Swaps

Dollars

1013

1012

0
200

8
199

6
199

4
199

2
199

0
199

8
198

6
198

198

1011

Figure 1: Notional value of outstanding interest rate and foreign exchange

swaps over time. The data are drawn from the International Swaps and
Derivatives Association 19872000 market surveys; 19831986 estimates are
compiled by the authors from Watson (1986) and the Wall Street Journal
(1986, 1987).

52

Notional Value of Swaps Held by Commercial Banks

Interest Rate Swaps

Foreign Exchange Swaps

Dollars

1013

199

200

6
199

4
199

2
199

0
199

8
198

198

1012

Figure 2: Notional value of outstanding interest rate and foreign exchange

swaps held by commercial banks over time. The data are drawn from the
Federal Reserve Boards quarterly statistical releases.

53

Proportion of Commercial Banks With Swaps Activity

0.24
0.22
0.2
0.18
0.16
0.14
0.12
0.1
0.08
0.06
0.04
0.02

0
200

8
199

6
199

4
199

2
199

0
199

8
198

198

Figure 3: Commercial bank activity in interest rate and foreign exchange

swaps. The proportions are derived from data reported in the Federal Reserve
Boards quarterly statistical releases.

54

55

1992
1995
19981999
1998
1999
2000

1982
1985
1985
1986
19871988
19871989
1989
19891991

19331980
1981
1981
1982

Year
1933

Event
Glass Steagall enacted, forcing big banks to separate securities (investment banking) activities and commercial banking
activities.
GS remains in force, is updated regularly to account for new activities and new legal forms.
Large US Commercial Banks declare outright war on Glass-Steagall.
IBM and World Bank complete a currency swap arranged by Salomon Bros.
First attempts to weaken GS separations through new legislation die in Congressional committees, opposed by securities
industry and many Democrats.
Reagan administration endorses repeal of Glass-Steagall.
ISDA founded by large commercial and investment banks to monitor and standardize swaps transactions.
SEC first considers regulating swaps by imposing disclosure requirements.
FASB considers creating rules to standardize accounting treatment of swaps.
The Federal Reserve approves creation of S20 subsidiaries, over the protests of the Securities Industry Association.
CFTC considers and eventually declines to regulate swaps as futures.
SIA switches positions, now supports GS repeal.
UK courts void swap agreements between banks and local governments as unauthorized speculation, creating uncertainty
in swap markets and driving business to US.
Congress enacts new legislation specifically allowing the CFTC to exempt swaps from regulation.
Republicans take over the House of Representatives.
Led by Brooksley Born, CFTC reconsiders regulation of swaps. Born is forced out and swaps remain unregulated.
Citicorp and Travelers merge in defiance of GS.
Congress passes Gramm-Leach-Bliley, effectively repealing GS.
Congresses passes the Commodity Futures Modernization Act further enshrining the exemption of swaps from most
regulation.

Table 1: Timeline of Events

Major OTC Derivatives Dealers

$
%
Banks
Chemical Bank Corporation
1,620,819 14.7
Citicorp
1,521,400 13.8
J.P. Morgan & Company, Inc.
1,251,700 11.4
Bankers Trust New York Corporation
1,165,872 10.6
The Chase Manhattan Corporation
886,300
8.1
BankAmerica Corporation
787,891
7.2
First Chicago Corporation
391,400
3.6
Bank Subtotal
7,625,382 69.4
Securities Firms
The Goldman Sachs Groups, L.P.
752,041
6.8
Salomon, Inc.
729,000
6.6
Merrill Lynch & Company, Inc.
724,000
6.6
Morgan Stanley Group, Inc.
424,937
3.9
Shearson Lehman Brothers, Inc.
337,007
3.1
Securities Firms Subtotal
2,966,985 27.0
Insurance Companies
American International Group, Inc.
198,200
1.8
The Prudential Insurance Company of America
121,515
1.1
General Re Corporation
82,729
0.8
Insurance Companies Subtotal
402,444
3.7
Total
10,994,811 100
Table 2: 15 Major OTC derivatives dealers and their notional derivatives
holdings in 1992. Dollar amounts in millions. Percents are of the 15 firm
total, not of all OTC derivatives issued. The seven commercial banks accounted for 90% of OTC derivatives issued by commercial banks in 1992,
while the five securities firms accounted for 87% of OTC derivatives issued
by securities firms. Source: 1992 Annual Reports, compiled by GAO (1994:
36, 188).

56