Senate passes amendment on debit and credit card swipe fees

"Businesses and their customers will be able to keep more of their own money," Sen. Richard Durbin says.
"Businesses and their customers will be able to keep more of their own money," Sen. Richard Durbin says. (Harry Hamburg/associated Press)
By Brady Dennis and Ylan Q. Mui
Washington Post Staff Writer
Friday, May 14, 2010

Retailers won a long-sought victory late Thursday as the Senate approved a measure that would give them more power over the fees they pay to banks each time shoppers swipe a credit or debit card.

The controversial amendment by Sen. Richard J. Durbin (D-Ill.) represents one element of a broader overhaul of financial regulations, but it is a piece that ordinary consumers could feel most directly. It passed 64 to 33, with 17 Republicans joining dozens of Democrats.

The measure allows stores to give customers discounts for paying with cash or using cards with cheaper fees, and it would permit retailers to set price thresholds for accepting credit cards. It also tasks the Federal Reserve with crafting regulations for determining whether swipe fees for debit cards are "reasonable and proportional."

"Small businesses and their customers will be able to keep more of their own money," Durbin said in a statement. "Making sure small businesses can grow and prosper is vital to putting our country back on solid economic footing."

The issue has long been at the top of retailers' legislative agenda. An effort by Durbin to include a similar proposal in credit card reform legislation last year failed amid pressure from the banking industry. Swipe fees have become an increasingly important source of revenue for banks as they grapple with tighter restrictions on overdraft fees and the interest rates they can charge on credit cards.

Retailers say they have little power to negotiate swipe fees with banks, resulting in higher prices for cash-strapped consumers. The National Association of Convenience Stores said its members paid $7.4 billion in swipe fees last year, making it the second-largest industry expense after labor.

"It begins to reverse the hijacking of the U.S. payment system," Mallory Duncan, general counsel for the National Retail Federation, said of Thursday's vote.

Banks large and small aggressively fought Durbin's amendment, even after he agreed to exempt banks and credit unions with less than $10 billion in assets. The Independent Community Bankers of America and the National Association of Federal Credit Unions said the provision could lead retailers to discriminate against their members' higher swipe fees.

In addition, the American Bankers Association expressed concern that the amendment only requires the Federal Reserve to consider the cost of processing purchases when determining whether debit card swipe fees are reasonable and proportional. ABA chief executive Edward L. Yingling said banks also incur substantial operational costs, such as maintaining infrastructure and protecting against fraud, and warned that banks would have to recoup those fees through other means.

"In order for banks to cover their basic costs, it will have to be charged back to the consumer," he said. Meanwhile, "the retailers who have a great benefit from this system will pay almost nothing."

New rating rules

Earlier Thursday, senators dealt a blow to the nation's largest credit-rating agencies, approving tough new rules for the industry and voting to remove the government's formal endorsement of a handful of firms.

Sen. Al Franken (D-Minn.) had taken aim at what he called "staggering conflicts of interest" in the current structure, in which issuers of financial products can shop for the most favorable ratings. Because issuers also pay the ratings agencies for their services, Franken said, the agencies have an incentive to give securities a higher rating than warranted.

"This conflict of interest has cost American investors and pensioners billions and billions of dollars," Franken said, "because supposedly risk-free investments have failed or been downgraded to junk status."

Franken's measure seeks to end the practice of shopping for ratings by creating a clearinghouse regulated by the Securities and Exchange Commission. Financial companies seeking to have a new security rated would be assigned a rating agency by the clearinghouse. Firms could then seek out subsequent ratings on their own, but any discrepancies between the ratings would be made public.

In addition, Franken said, the move would allow smaller ratings agencies -- aside from giants such as Moody's Investor Service, Standard & Poor's and Fitch -- to gain additional business if their ratings prove more reliable.

"It will incentivize accuracy," Franken said Thursday of his proposal. "Imagine that."

Franken's amendment passed 64 to 35 despite opposition from Sen. Christopher J. Dodd (D-Conn.), the architect of the financial overhaul legislation. Ten Republicans voted for the measure.

U.S. approval pulled

In a subsequent vote, lawmakers approved an amendment by Sen. George S. LeMieux (R-Fla.) that would remove the government's stamp of approval for a select group of ratings agencies as the standard for credit worthiness.

Ratings agency officials quickly criticized Franken's amendment, noting that conflicts of interest could exist even if investors or the government paid for ratings rather than banks.

"While we support efforts to further mitigate potential conflicts of interest and have taken several important steps toward this goal, the Franken Amendment could result in a number of unintended consequences," Ed Sweeney, a Standard & Poor's spokesman, said in a statement. "Credit rating firms would have less incentive to compete with one another, pursue innovation and improve their models, criteria and methodologies. This could lead to more homogenized rating opinions and, ultimately, deprive investors of valuable, differentiated opinions on credit risk."

Lawmakers also passed an amendment Thursday from Sen. Susan Collins (R-Maine) that would mandate tighter restrictions on banks and non-bank financial firms placed under the Federal Reserve's watch by a proposed council of regulators.

The measure would direct regulators to impose minimum leverage and risk-based capital requirements on those firms.

More votes on the far-reaching financial overhaul bill are scheduled for Monday afternoon.

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