Regarding your “proposal”, you are aiming your attack at the wrong target.
Several times, you have mentioned (1) the FIFO rule, (2) the rule against hedging, and (3) the 50:1 leverage restriction — all of which you object to, and rightfully so. But, you blame these regulations on the Dodd-Frank Bill, which is not where they came from.
The entire Dodd-Frank Bill could be overturned, and those three regulations would still stand, because they are based on laws enacted prior to Dodd-Frank.
Here is a very brief history:
The CFTC was authorized by Congress in 1974 to regulate commodity futures.
At that time, there was a clear distinction between a spot transaction (meaning a cash transaction completed right now) and any of the various forms of futures transactions. The “rolling spot” transactions (with settlement 2 days out, and daily roll-forward) which we enter into in today’s retail spot forex market did not exist at that time.
During the Congressional debates leading up to the creation of the CFTC in 1974, the U.S. Treasury weighed in, recommending an exclusion for off-exchange forex trading by institutions, and the Treasury recommendation was written into the law. That provision, generally referred to as the “Treasury Amendment”, would become the source of debate and lawsuits for decades, over the extent to which the CFTC had authority over the forex market.
When retail spot forex became widely available to non-institutional players in the late 80’s and early 90’s, the “rolling spot” transaction was offered as a highly-leveraged, “futures look-alike” product which was outside CFTC jurisdiction. The CFTC attempted, for many years, to regulate retail “rolling spot” transactions, but those attempts were consistently challenged in the U.S. courts, by various players in the forex market.
New laws were layered onto the 1974 CFTC Authorization Act — specifically, The Futures Trading Practices Act of 1992, and The Commodity Futures Modernization Act of 2000. The 2000 Act, in particular, established that (1) the CFTC had jurisdiction over retail forex, and (2) only certain financial institutions could act as counterparties (i.e., broker/dealers) to retail forex customers.
The CFTC’s authority over retail “rolling spot” forex transactions was repeatedly challenged in the courts, on the grounds that “rolling spot” forex transactions were not futures contracts, and therefore the CFTC had no jurisdiction over them. In the most notable case, CFTC v. Zelener (2004), the Seventh Circuit Court ruled against the CFTC, and in favor of defendant Zelener, exempting “rolling spot” forex transactions from CFTC jurisdiction. “Rolling spot” forex contracts became known generally as “Zelener contracts”, and that term even appeared in CFTC documents. The court’s ruling in the Zelener case gave cover to the retail forex market in the U.S., for about 4 years.
In 2008, The Commodity Futures Trading Commission Reauthorization Act of 2008 (known as the CRA) (1) defined a new counterparty entity, the Retail Foreign Exchange Dealer (RFED), (2) gave the CFTC authority to regulate these RFED’s, and (3) gave the CFTC authority over “rolling spot” (Zelener) contracts offered by these RFED’s. In other words, the CRA gave the CFTC complete jurisdiction over small, retail players in the forex market — players whose only access to the market was through an RFED (i.e., a retail broker).
Beginning in late 2008 or early 2009, the CFTC began heavy-handed regulation of retail spot forex in the U.S. In a series of steps, the CFTC increased the capital requirements on RFED’s, outlawed FIFO and hedging, and proposed the infamous 10:1 leverage limit on retail forex. All of this was authorized by the CRA, and was implemented prior to the time, or during the time, that the Dodd-Frank Bill was being drafted, debated, and enacted. Dodd-Frank did not enable any of this regulation.
The revision of the leverage limit from 10:1, as initially proposed, to 50:1, as finally enacted, was a political move on the part of the CFTC. The Dodd-Frank Bill had nothing to do with this revision.
It is likely that we would be stuck with FIFO, prohibited hedging, and restricted leverage, even if Dodd-Frank had never been enacted.
The Dodd-Frank Bill is partly responsible for the CFTC’s prosecution of offshore retail forex brokers who have (or had) some “presence” in the U.S., and/or have (or had) U.S.-resident clients. The CFTC cites both the CRA and the Dodd-Frank legislation as their authority to pursue these foreign brokers.
But, in my opinion, the CFTC would be doing what they’re doing to offshore brokers with or without the help of the Dodd-Frank Bill.
Nevertheless, the Dodd-Frank Bill is a nasty piece of work, in many respects, and should be scrapped, in my opinion.
I can’t even guess what the odds might be that Dodd-Frank will be gutted, or repealed. But, it’s not the cause of the problems concerning you.