The Volcker Rule in Practice: Its Impact, Reception, And Evolving Profile

Established as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Volcker Rule’s restriction of banks and financial companies from participating in proprietary trading was conceived of as a response to the systemic institutional failures that are commonly noted to be partially responsible for the financial crisis of 2008. Over its short and contentious lifetime, the Rule has been widely praised by some as a necessary step toward limiting unsustainably risky corporate investment practices, and widely vilified by others as being poorly drafted, impracticably restrictive, and only tenuously connected to the crisis precipitating its enactment. The conspicuous disunity among participants in this discussion reflects, in part, the difficulty of measuring the direct impact that the Volcker Rule has had since its enactment, particularly given the complexity of the investment activities the Rule attempts to regulate and the dearth of conclusive statistics indicating which phenomena are accurately attributable to the Rule’s interference. 
Through a survey and analysis of the public’s input and assessment of the Volcker Rule and its more recent development, this Note explores how administrative processes have fared in giving an adequate voice to the various viewpoints of affected private citizens, businesses, and public entities. Ultimately, this Note argues that the Volcker Rule’s surprisingly modest evolution to date is overshadowed by charged rhetoric, vast information gaps, and unbalanced regulatory feedback rather than substantive bilateral exchange—a phenomenon frustratingly typical of the democratic processes in the context of complex financial reform. This Note concludes by offering reflections on the Volcker Rule’s evolution to date and what the data examined has to say about the successes and shortcomings of the lawmaking processes driving that evolution forward.

THE VOLCKER RULE IN PRACTICE: ITS IMPACT, RECEPTION, AND EVOLVING PROFILE Jordan Schiff* Established as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Volcker Rule's restriction of banks and financial companies from participating in proprietary trading was conceived of as a response to the systemic institutional failures that are commonly noted to be partially responsible for the financial crisis of 2008. Over its short and contentious lifetime, the Rule has been widely praised by some as a necessary step toward limiting unsustainably risky corporate investment practices, and widely vilified by others as being poorly drafted, impracticably restrictive, and only tenuously connected to the crisis precipitating its enactment. The conspicuous disunity among participants in this discussion reflects, in part, the difficulty of measuring the direct impact that the Volcker Rule has had since its enactment, particularly given the complexity of the investment activities the Rule attempts to regulate and the dearth of conclusive statistics indicating which phenomena are accurately attributable to the Rule's interference.
Through a survey and analysis of the public's input and assessment of the Volcker Rule and its more recent development, this Note explores how administrative processes have fared in giving an adequate voice to the various viewpoints of affected private citizens, businesses, and public entities. Ultimately, University. My sincerest thanks to Professor Kathryn Judge, whose expertise, thoughtful assistance, and patient guidance were indispensable to the research and writing of this Note. Additional thanks to the editorial staff of the Columbia Business Law Review for their thoughtful comments and diligent attention to detail in preparing this Note for publication. Finally, I dedicate this Note in sincerest gratitude to my family-especially my wife, Elianne, and my children, Noah and Clara-for their undying love, patience, and support.
this Note argues that the Volcker Rule's surprisingly modest evolution to date is overshadowed by charged rhetoric, vast information gaps, and unbalanced regulatory feedback rather than substantive bilateral exchange-a phenomenon frustratingly typical of the democratic processes in the context of complex financial reform. This Note concludes by offering reflections on the Volcker Rule's evolution to date and what the data examined has to say about the successes and shortcomings of the lawmaking processes driving that evolution forward.

I. INTRODUCTION
One of the most controversial provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank" or "the Dodd-Frank Act") is the so-called "Volcker Rule." 1 The Volcker Rule largely prohibits banks and certain non-bank financial companies from participating in proprietary trading and retaining ownership interests in hedge funds or private equity funds, thereby curbing these entities' engagement in high-risk speculative trading and limiting the comingling of commercial and investment banking activity generally. 2 Named after its original proponent, former Chairman of the Federal Reserve Paul Volcker, the Rule represents a significant shift away from the hands-off, free market approach of the 1990s and early 2000s 3 back toward the Glass-Steagall Act's cautious, hands-on approach to financial regulation. 4 The Volcker Rule has been praised and criticized from a variety of angles during its short lifetime. Supporters of the Rule emphasize the role overreliance on leveraged financing and risk-laden hedging played in creating the 2008 economic crisis, 5 arguing that the Rule's broad regulatory mandate and sweeping compliance requirements constitute a necessary step toward limiting dangerous corporate investment practices, eliminating conflicts of interest in the handling of consumer assets, and generally shoring up the stability of the U.S. banking industry. 6 Opponents of the Rule note that there are mixed opinions as to the extent of the role that proprietary trading and hedging played in causing the financial collapse of 2008; 7 highlight the broad ambiguities in the Rule's statutory and regulatory schema, which threaten to both undercut and overreach the Rule's intended impact; 8 and point to the DODD-FRANK ACT AND ITS (UNINTENDED) CONSEQUENCES 10 (2010) (characterizing the Volcker Rule as "a throwback to New Deal legislation that made it illegal to conduct commercial and investment banking under the same umbrella"); S. Burcu Avci et al., Eliminating Conflicts of Interests in Banks: The Significance of the Volcker Rule, 35 YALE J. REG. 343, 363-68 (2018) (presenting data in support of the thesis that "enforcing the Volcker Rule would . . . help contain some of the current conflicts of interest in the banking system resulting from the elimination of Glass-Steagall restrictions"). 5 See, e.g., FIN. CRISIS INQUIRY COMM'N, THE FINANCIAL CRISIS INQUIRY REPORT xix (2011) (concluding that "a combination of excessive borrowing, risky investments, and lack of transparency put the financial system on a collision course with crisis"). 6 See Avci et al., supra note 4, at 363-68; Nester, supra note 2, at 3062 ("Those in favor of the Rule cite concern for the dangers associated with a further deregulated banking industry, given the risks associated with proprietary trading."). 7 See, e.g., John C. Coffee, Jr., The Political Economy of Dodd-Frank: Why Financial Reform Tends to Be Frustrated and Systemic Risk Perpetuated, 97 CORNELL L. REV. 1019, 1073-74 (2012 (finding "almost no evidence that proprietary trading was responsible for the failure of any financial institution in the 2008 crisis"). 8 See, e.g., Eugene A. Ludwig, Assessment of Dodd-Frank Financial Regulatory Reform: Strengths, Challenges, and Opportunities for a Stronger Regulatory System, 29 YALE J. REG. 181, 188-95 (2012) (observing that "[t]he Volcker Rule . . . suggest[s] a misunderstanding of the importance of trading activities in modern finance in several ways," and "risk[s] making banks less safe . . . by using wide-ranging prohibitions and convoluted undesired, unintended effects the Rule has ostensibly already begun to generate, including massive compliance costs, decreased U.S. market liquidity, and the handicapped productivity of U.S. banks on the international stage. 9 The conspicuous disunity among participants in this discussion reflects, above all, a shocking scarcity of data as to the Rule's effectiveness. As noted by Professor Kimberly Krawiec, measuring the direct impact of the Volcker Rule is difficult given the complexity of the investment activities it attempts to regulate. 10 This complexity, Professor Kraweic argues, results in widespread confusion as to which phenomena are accurately attributable to the Rule's interference. 11 Thus, in conducting her own study of the Volcker Rule, Professor Krawiec opted to perform an analysis of the Rule's inputs rather than its output, focusing especially on the original promulgation of the regulations implementing the Rule. 12 While Kraweic's piece offers an acute portrayal of the construction of the original Volcker Rule, her research and analysis was carried out before the original promulgation of the Rule in January 2014, 'solutions' where the supervisor's targeted interventions are more appropriate"). 9 See, e.g., Arthur S. Long et al., The Final Volcker Rule: Highlights and Principal Differences from the Proposal, 42 SEC. REG. L.J. 161, 162-64 (2014) (predicting that "[t]he substantial compliance costs necessary to ensure that permissible market-making activities do not become prohibited proprietary trading will likely reduce the breadth of U.S. market-making activities . . . [and] result in reduced liquidity . . . and higher costs for customers"); Ryan Bubb & Marcel Kahan, Regulating Motivation: A New Perspective on the Volcker Rule, 96 TEX. L. REV. 1019, 1020-22 (2018) (noting that the Volcker Rule's "define-and-ban approach both entails high compliance costs and creates the risk of under-and over-deterrence"). 10 See Kimberly D. Krawiec, Don't 'Screw Joe the Plummer': The Sausage-Making of Financial Reform, 55 ARIZ. L. REV. 53, 56 (2013). 11 See id. See also SEC. & EXCH. COMM'N, ACCESS TO CAPITAL AND MAR- KET LIQUIDITY 8 (2017), https://www.sec.gov/files/access-to-capital-and-market-liquidity-study-dera-2017.pdf [https://perma.cc/2XS5-F5MS] (highlighting reasonable alternative causes for data suggesting lowered market liquidity, including the "crisis-induced changes in dealer assessment of risks" as well as "the effects of a low interest rate environment"). 12 See generally Krawiec, supra note 10; Kimberly D. Krawiec & Guangya Liu, The Volcker Rule: A Brief Political History, 10 CAPITAL MKTS. L.J. 507 (2015). and thus fails to capture any of the Rule's subsequent regulatory modification and development. Without engaging in an immersive study of the same scale, this Note endeavors to emulate Krawiec's basic research methodology, reapply it to establish a deeper understanding of the Volcker Rule's recent development, and contribute to an ongoing conversation about the systemic shortcomings of administratively crafted financial regulation in general. 13 Through surveying the public's input and assessment of the Volcker Rule as originally presented, this Note investigates the roots of today's partisan dialogue about the Rule, considers which aspects of the Rule are most important to affected private citizens and public entities, and explores how available administrative processes succeed or fail in giving a voice to participants and onlookers alike. Ultimately, this Note contends that the Volcker Rule's relatively moderate evolution is overshadowed by the politicized response of the general public, which has exposed the insufficiency of the democratic processes driving it. Due to its dependence on regulatory implementation, the complexity of its subject matter, and the various inferences that may be reasonably drawn as to its effectiveness, the Volcker Rule tends to function as a 13 See, e.g., Coffee, Jr., supra note 7, at 1028-29 (noting that because "[f]inancial regulation is inherently opaque[] and the public lacks . . . visceral identification with the key values in play," reform legislation with heavy dependence on administrative execution is especially vulnerable to curtailment once "the public's attention turns elsewhere and business interest groups reestablish their usual dominance over the technical policy implementation process"); Roberta Romano, Regulating in the Dark and a Postscript Assessment of the Iron Law of Financial Regulation, 43 HOFSTRA L. REV. 25, 56 (2014) (arguing that in light of "the stickiness of the status quo in the U.S. political framework" as contrasted with the dynamism of the financial industry, procedural reform is necessary to prevent reactionary financial regulation with unintended consequences which cannot easily be undone); lightning rod for charged rhetoric and unbalanced regulatory feedback, rather than a conductor of bilateral substantive exchange.
This Note will proceed as follows: Part II provides context as to the Volcker Rule's origins and design, including an overview of the Rule's legislative history, statutory and regulatory makeup, and evolution over the past three years. Part III reviews various perspectives on the Volcker Rule's merits, outlines what are generally viewed as the pros and cons of the Rule, and summarizes the viewpoints of commentators as to the impact of the recent changes made to the Rule. Part IV examines the political polarization that has influenced the Volcker Rule's development by surveying the statements of congresspeople involved in the Rule's statutory revision and reviewing the responses of public commenters to agency notices of proposed rulemakings. Part V concludes by offering reflections on the Volcker Rule's evolution and the lawmaking processes that have driven that evolution forward.

II. BACKGROUND TO THE VOLCKER RULE: WHERE DID IT COME FROM, AND WHAT DOES IT DO
Our analysis begins with an overview of the Volcker Rule's origin, design, and development. Section II.A surveys the historical context that led to the Rule's adoption; Section II.B discusses the Rule's structure and content; and Section II.C reviews the substantive updates that have been made to the Rule since its enactment.

A. Brief Theoretical and Legislative History
While the Volcker Rule's origins are most directly interwoven with the history of the financial crisis of 2008 and the Dodd-Frank Act, 14 the Rule's underlying conceptual framework and attendant controversiality date as far back as the 14 Pub. L. No. 111-203, 124 Stat. 1376(2010. See also SKEEL JR., supra note 4 (tracing the legislative development of Dodd-Frank to the financial crisis of 2008 and contextualizing the introduction of the Volcker Rule as part of that process).
New Deal economic reforms that were enacted after the stock market collapse of 1929. 15 The legislative ancestry of the Volcker Rule is specifically traceable to the Glass-Steagall Act of 1933 ("Glass-Steagall"), 16 a law intended to combat the structural weaknesses in the U.S. banking industry that were exposed during the Great Depression 17 by "provid[ing] for safer and more effective use of bank assets . . . [and] prevent[ing] self-dealing and conflicts of interest." 18 To this end, Glass-Steagall introduced reforms calculated to stake out a division between commercial and investment banking activities 19 and deter conflicts of interest between banks and consumers 20 -both essential goals that the Volcker Rule would later be designed to achieve. 21 Taken together, these reforms prohibited investment banks from taking consumer deposits while banning commercial banks backed by newly offered federal deposit insurance from investing in the securities market. 22 Despite causing a near-immediate impact in the U.S. banking industry, Glass-Steagall was never as effective as it was designed to be. 23 The failure of Glass-Steagall is partially attributable to a loophole in the statute that exempted bank 15 See, e.g., Avci et al., supra note 4, at 344-63 (offering a thorough background of the legislative history and context of the Volcker Rule). 16  holding companies from the Act's restrictions on permitted institutional relationships between commercial depository and investment banks, which was quickly exploited through the structural proliferation of holding companies designed to circumvent the Act's limitations. 24 Additionally, administrative "turf battles" fueled by foreign and domestic market competition in the decades following World War II also dampened the Act's effectiveness. 25 After suffering gradual rollbacks between the 1960s and 1990s, Glass-Steagall's death knell finally sounded in 1999 when the Gramm-Leach-Bliley Act 26 expanded the permitted affiliations between depository and investment institutions and introduced allowances for commercial banking and securities trading activities within the same corporate structure. 27 The debate surrounding Glass-Steagall's division of investment and commercial banking activities was revived when the financial crisis of 2008 sent shockwaves through the U.S. economy. 28 In reaction to the catastrophic domino effect observed in the securities markets in 2008, many blamed banking organizations and U.S. financial regulatory organizations 24 See id. at 353 ("By incorporating under a [bank holding company], banks could enjoy much of the benefits of being an investment bank without running afoul of Glass Steagall while also creating the relationships and conflicts the Act aimed to remedy."). See also Saule T. Omarova & Margaret E. Tahyar, That Which We Call a Bank: Revisiting the History of Bank Holding Company Regulations in the United States, 31 REV. BANKING & FIN. L. 113, 121 (2011) ("The Glass-Steagall Act of 1933 . . . did not impose any specific legal restrictions on the activities of business entities that owned or controlled commercial banks."). 25 See Avci et al., supra note 4, at 354-56. 26 Pub. L. No. 106-102, 113 Stat. 1338(1999 (codified as amended in scattered sections of 15 U.S.C.). 27 See id. at 1341-51. See also Glass-Steagall Act, Practical Law Glossary, Item 5-507-8468 (West 2019); Gramm-Leach-Bliley Act (GLBA), Practical Law Glossary, Item 7-501-3428 (West 2019) (explaining that the Gramm-Leach-Bliley Act "created a new type of bank holding company, the financial holding company (FHCs), which can engage in a broader range of business activities so long as they are financial in nature"). 28 See Lehmann, supra note 16, at 179 ("In the eyes of some observers, [the lifting of Glass-Steagall's primary restrictions by Gramm-Leach-Bliley] was one of the major factors that ultimately led to the financial crisis.").
for failing to curb systemic risk and ensure that responsible investment practices were adhered to by market participants. Specifically, critics contended that "proprietary trading had distracted banks from their fiduciary obligations to clients, as well as from their core function of 'safe[ly] and sound[ly providing] long-term credit to families and business enterprises.'" 29 The federal government's legislative response to the 2008 crisis attempted to strike a balance between aid and reform, cobbling together a plan that both jumpstarted the struggling financial services industry and held it accountable by introducing major changes to the regulations that govern market actors. The Volcker Rule emerged in the post-crisis legislative debate as both "a modern-day Glass-Steagall Act" 30 and "a major concession to populist criticism," 31 built upon the hypothesis that "systemically important banking institutions should be restricted in undertaking proprietary activities that present particularly high risks and serious conflicts of interest.

B. Statutory and Regulatory Design
Introduced at section 619 of the Dodd-Frank Act, 33 the statutory Volcker Rule is codified as an amendment adding a new thirteenth section to the Bank Holding Company Act of 1956 ("the BHCA"). 34 Cumulatively, the Rule prohibits "banking entities" from engaging in proprietary trading 35 as well as sponsoring or owning hedge funds and/or private equity funds. 36 The Rule subjects "nonbank financial companies" 37 that engage in either proprietary trading or sponsor or own interest in hedge funds and/or private equity funds to specified capital requirements, 38 and authorizes various administrative agencies to implement these requirements through promulgating regulations. 39 The broad legislative goals Congress envisioned in passing the Volcker Rule included 33 Dodd-Frank Act, Pub. L. No. 111-203, § 619, 124 Stat. 1376, 1620-1631(2010. 34 70 Stat. 133 (codified as amended at 12 U.S.C. § § 1841-52 (2018)). 35 See 12 U.S.C. § 1851(h)(1) (2018) (defining "banking entity" to mean "any insured depository institution [,] . . . any company that controls an insured depository institution, or that is treated as a bank holding company for purposes of section 8 of the International Banking Act of 1978, and any affiliate or subsidiary of any such entity"); § 1851(h)(4) (defining "proprietary trading" to mean "engaging as a principal for the trading account of [a] banking entity or nonbank financial company supervised by the Board in any transaction to . . . acquire or dispose of[] any security, . . . derivative, . . . [or] contract of sale of a commodity for future delivery, any option on any such [instrument], or any other security or financial instrument that the appropriate Federal banking agencies, the Securities and Exchange Commission, and the Commodity Futures Trading Commission may . . . determine"). 36 See § 1851(a)(1). 37 See § 5311(a)(4)(A)-(C) (defining "nonbank financial company" to mean any domestic or foreign company "other than a bank holding company, The first of the Rule's eight subsections introduces a general prohibition on banking entities' engaging in proprietary trading as well as limitations on nonbank financial companies that engage in such trading. 41 Next, the second and third subsections authorize administrative agencies to implement the Rule's restrictions through rulemakings, and identify the deadlines by which these regulations were initially scheduled to be released. 42 In turn, the following three subsections set forth the contours of the Rule's restrictions and procedural requirements in greater detail by (1) delineating investment activities permitted to be engaged in by banking entities, such as the trade of government-issued securities, 43 and the exchange of securities instruments "in connection with underwriting or market-making-related activities," 44 (2) directing the issuance of compliance and "anti-evasion" measures designed to ensure that the Rule is appropriately and uniformly carried out, 45 and (3) discussing restrictions on lawful business relationships between banking entities and applicable 40 § 1851(b)(1). 41 See § 1851(a)(1)-(2) ("Unless otherwise provided in this section, a banking entity shall not . . . engage in proprietary trading; or . . . acquire or retain any . . . ownership interest in [,]  funds. 46 Finally, the last two subsections provide a disclaimer as to how Congress intended the Rule to be interpretatively constructed 47 and define important terms within the Rule's statutory text. 48 The Volcker Rule was immediately controversial. While some saw the Rule as a victory against big business and an important safeguard against the recurrence of future financial crises such as the one that had just occurred, 49 many from within the business community feared the broadness of the Volcker Rule's statutory language and how it may be construed by regulatory agencies. 50 In addition to questioning the underlying wisdom of the Rule's policy and the tenuous theoretical connection between the 2008 financial crisis and the Rule's restricted investment activities, 51 opponents noted that the statutory text of the Volcker Rule contains a number of ambiguities susceptible to harmful interpretation and application. 52 Subsequent to the passage of Dodd-Frank in July 46 See § 1851(f) (prohibiting banking entities which sponsor, advise, manage, organize, or offer hedge or private equity funds from entering into "covered transactions" with that fund or any subsidiary hedge fund or private equity fund). 47 Evolving Threats, 48 HARV. J. LEGIS. 515, 538-39 (2011). 50 See, e.g., Brissette, supra note 2, at 241 (noting that "the [Volcker] Rule takes away a significant type of investor for hedge and private equity funds, and for funds that rely in large part on banking entities, the Rule may be a death sentence"); Ludwig, supra note 8, at 194 ("While bank deposit taking and lending activity is important to the U.S. economy, in today's marketplace, financial institutions' business customers must utilize capital markets to meet their financial needs . . . . By restricting trading activities, the Volcker Rule risks inhibiting U.S. competitiveness in global financial markets and banks' ability to innovate and stay relevant."). 51 See, e.g., Avci et al., supra note 4, at 358-59; Nester, supra note 2, at 3076-84. 52 See, e.g., Brissette, supra note 2, at 246 (noting that the Volcker Rule's "vague [statutory] language may . . . allow banks to make minimal adjustments to their proprietary trading groups in order to comply with the 2010, lobbyists and concerned citizens across the political spectrum petitioned the administrative agencies tasked with implementing the Volcker Rule in an attempt to influence how the final Rule would look and operate. 53 After a series of delays, many requests for public comment, and over 18,000 comment submissions, 54 the original regulatory version of the Volcker Rule was published in the Federal Register in January 2014 and went into effect the following year. 55 Notwithstanding the complexity of the activities they govern, the joint agency regulations that implement the Volcker Rule take up a relatively formidable 271 pages in the Federal Register. 56 Comprised of six sections, these regulations delineate the Rule's prohibitions against banking entities' ownership and sponsorship of hedge funds and/or private equity funds, as well as their engagement in short-term proprietary trading of securities instruments and options on behalf of Rule," thereby exploiting "potential loopholes . . . to engage in alleged speculative activity"). 53  their own corporate accounts. 57 Additionally, the regulations specify the activities of banking entities that are exempted from the Rule's prohibitions and limitations, including "market making, underwriting, hedging, trading in certain government obligations, and organizing and offering a hedge fund or private equity fund." 58 The first section of the regulations as published in the Federal Register defines important terms, reviews the Volcker Rule's statutory authority, and presents a joint agency statement of the Rule's scope and purpose. 59 Next, the second section of the regulations itemizes the Rule's restrictions on proprietary trading activity and lays out a framework that requires certain banking entities to produce a quantitative accounting of their trading affairs. 60 The third component of the regulations details the Rule's restrictions of ownership interests in "covered funds," such as hedge and private equity funds, and delimits exemptions and exceptions to those restrictions. 61 The fourth component describes the substantial compliance programs banking entities must maintain to ensure the proper functioning of the Rule and its restrictions, including "written policies and procedures, internal controls, a management framework, independent testing of the compliance program, training, and recordkeeping. Finally, Appendices A and B of the regulations complement and reinforce sections two through four by specifying both the quantitative trading statistics that banking entities must report externally and the minimum programmatic standards that banks must maintain internally. 63

C. Statutory and Regulatory Development
Despite President Trump's forceful promise to "do a number on Dodd-Frank," 64 relatively few substantial changes have been made so far to the Volcker Rule during the current presidential administration. However, a 2018 law entitled the Economic Growth, Regulatory Relief and Consumer Protection Act ("the EGRRCPA") 65 effectively amended the statutory text of the Volcker Rule at section 13 of the BHCA and directed administrative agencies to update their Volcker-related regulations accordingly. 66 As a result of this law, a number of mechanical updates to the Volcker Rule have been promulgated through the formal notice-and-comment procedure. These updates were approved in their final form in July 2019. 67 The EGRRCPA was the culmination of a broader effort spearheaded by the Trump Administration to amend the Dodd-Frank Act writ large. In response to a February 2017 63 See id. at 5,797-800, 5,800-04. 64 See, e.g., Pete Schroder, Trump: We Will Do A 'Big Number' to Dodd-Frank, HILL (Jan. 30, 2017), https://thehill.com/policy/finance/316879trump-we-will-do-a-big-number-to-dodd-frank  70 There, in a subsection titled "Improving the Volcker Rule," the Treasury Department proposed that Congress introduce an exclusion for small institutions "whose failure would not pose risks to financial stability," refine the Rule's proprietary trading prohibition and market-making exemption, simplify the Rule's overly broad restrictions on covered funds, and generally downscale the extensive requirements of the Rule's mandatory compliance program. 71 The EGRRCPA, passed the year after the Treasury reports were issued, has instituted several of these recommendations. 72 Namely, the law raised the asset threshold at which banks trigger increased regulation under the Volcker Rule in the form of mandatory internal "stress tests" from $50 billion to $250 billion; 73 carved out an 68 See Exec. Order No. 13772, 82 Fed. Reg. 9,965 (Feb. 3, 2017). 69 See , (2017), https://www.treasury.gov/press-center/press-releases/Documents/A-Financial-System-That-Creates-Economic-Opportunities-Asset_Management-Insurance.pdf [https://perma.cc/4KWQ-3D4Y]. 70  exemption for banks with less than $10 billion in total assets; narrowed the scope of applicable "banking entities" subject to the Rule's prohibitions; 74 and loosened the restrictions on name-sharing between banking entities and associated hedge and private equity funds. 75 The rulemakings made in the wake of the EGRCCPA have gradually weakened the Volcker Rule's restrictions and eased the standards for how the Rule is to be implemented. A notice of proposed rulemaking published to the Federal Register in July 2018 described the planned amendments as intending "to provide banking entities with clarity about what activities are prohibited and to improve supervision and implementation of section 13 [of the BHCA]." 76 In support of this goal, the first of these joint agency revisions exempts "community banks"i.e., commercial banking companies with holdings consisting of no more than $10 billion in total assets and trading assets amounting to no more than five percent of total assets 77 -from the Rule's restrictions over proprietary trading and relationships with private equity and hedge funds. 78 These modified rules additionally specify that qualifying investment advisers may share names with associated funds so long as "the investment adviser is not, and does not share the same name [as] . . . an insured depository institution, a company that controls an insured depository institution, or a company that is treated 74  prong; 85 (3) expanding the circumstances under which banks may rely on the Rule's hedging exemption from its general prohibition on proprietary trading; 86 and (4) streamlining the data reporting requirements to which banking entities are subject in an attempt to reduce compliance costs. 87 Although some warn that these changes "limit[] the scope of the Volcker [R]ule so significantly that it no longer will provide meaningful constraints on speculative proprietary trading by banks," 88 the revisions themselves are not nearly as dramatic as initially advertised, and "largely leav[e] intact the most controversial provision that bans big banks from making risky trades with federally-insured deposits." 89

III. PERFORMANCE AND REASSESSMENT: PUBLIC PERCEPTION OF THE VOLCKER RULE
This Part pivots from a review of the Volcker Rule's content to discuss the perceived impact the Rule has had since going into effect. Section III.A begins by highlighting the perspectives of various commentators as to whether the Rule has achieved its desired ends. Section III.B then reviews the arguments in favor of a strong Volcker Rule, while Section III.C discusses the arguments in favor of rolling back its statutory and regulatory mandate.

A. Perceived Effects and Public Reception
Many studies reach conflicting conclusions as to the impact the Volcker Rule has had on the U.S. banking industry and the national economy at large. Research has not yet conclusively demonstrated whether the Volcker Rule actually "works," and reports as to the Rule's consequences remain mixed. 90 Short of isolating the Volcker Rule's direct impact, however, much can still be said about the indirect or secondorder effects that the Rule has caused in the years since its enactment. Both the public's reception of the final Volcker Rule and the general perception of its performance over the past four years have been decidedly contentious and have weighed toward partisan pronouncements rather than nuanced assessments.
Part of what has muddied the public's perception of the Volcker Rule is the absence of uncontroversial data as to its performance. Indeed, "[s]pecifics on how much Dodd-Frank cost the banking industry in general . . . are inconsistent and difficult to quantify." 91 For example, one article argues that while "[i]ncreasing the safety and soundness of banking entities and the U.S. financial system is an important goal[,]" evidence suggests that the Volcker Rule merely "imposes substantial costs on U.S. financial stability while doing little to account for this goal." 92 Similarly, another more recent study "find[s] no evidence of the [R]ule's intended reduction in the riskiness of covered firms' trading in corporate bonds [,]" and instead presents empirical evidence in support of the conclusion that the Rule has "increased the cost of the liquidity provided by covered firms [,] . . . has not decreased the liquidity risk exposure of covered firms [,] . . . [and] has decreased the 90 See Awrey & Judge, supra note 13, at 6 (observing that despite administrative processes which "implicitly assume that policymakers . . . understand the system they are regulating and how that system will respond to a given intervention," the sheer complexity and dynamism of modern finance results in "policymakers inevitably operat[ing] with an incomplete understanding of how the financial system works and how it will respond to regulatory intervention" With respect to the public's reception of the Volcker Rule, one need only survey media coverage of the Rule's development and concurrent agency press releases to observe that even detailed assessments of the Rule tend to be one-sided. One commentator summarizes this phenomenon in noting that "[b]eyond simply the media, political rhetoric oftenthrough what are perhaps mischaracterizations calculated to achieve political ends-sensationalizes or caricaturizes key points surrounding financial reform." 98 Predictably, observes another article, many left-leaning politicians, financial regulatory agencies, and members of the general public "typically employ pro-Volcker Rule arguments, which generally focus on proprietary trading's role in the financial crisis and its inherent risk," whereas "many economists and law professors have voiced displeasure with the Rule['s] . . . ambiguity [,] . . . offthe-rack promulgation, and . . . creation of illiquidity in bond markets." 99 The polarized nature of public opinion concerning the Volcker Rule is perhaps most effectively illustrated by surveying agency commissioners' statements weighing proposed changes to the Rule. On the one hand, statements arguing against rollbacks to the Volcker Rule often make sweeping claims. For example, one recent statement issued by CFTC Additionally, pro-Volcker statements often resort to emotional appeals when characterizing the Rule's importance by emphasizing "the families and businesses whose wellbeing would be threatened by another financial crisis" 101 and the "ordinary American investors" who are "kept up at night . . . wondering why they should trust a financial system that upended their lives a decade ago." 102 Still others explicitly characterize the Rule as a success without citing supporting evidence, warning that proposed changes to the Rule "would help undo the framework that has helped avoid another financial crisis." 103 On the other hand, statements arguing on behalf of proposed rollbacks to the Volcker Rule hardly display more attention to detail, describing the Rule as "among the most well-intentioned but poorly designed regulations in the history of American prior rule." 106 Specifics aside, reports like these leave readers wondering whether they all refer to the same rule.

B. Perspectives in Favor of the Rule and Its Strong Enforcement
Many organizations, journalists, scholars, and private citizens have expressed their approval of the Volcker Rule and have vocally opposed proposed rollbacks of its mandate. Broadly, these arguments generally agree on several premises: first, that the Rule curtails problematic investment practices; second, that the way in which the Rule affects those practices is reasonable and mostly effective; and third, that the negative effects of the Rule are either inconsequential or necessary. In practice, these arguments adopt one of two general stances: either (1) that the investment practices restricted by the Volcker Rule are in fact among those which caused the financial crisis of 2008; or (2) that the investment practices restricted by the Volcker Rule are sufficiently related to those which contributed to the financial crisis of 2008 to justify their restriction.
Arguments of the first sort-articulated by proponents of the Volcker Rule in Congress, administrative agencies, the media, government watchdog organizations, and the general public 107 -take a strong stance and generally contend that the Rule is necessary to correct the specific flaws exposed by the Great Recession. While conclusive data as to the causes of these failures remains sparse, 108 several studies have highlighted irresponsible and unrestricted proprietary trading as among the factors that led to the 2008 financial crisis. 109 These studies have been widely cited by proponents of the Rule's enactment and enforcement. In Congress, Senators Jeff Merkley and Carl Levin, both early proponents of the Volcker Rule, 110 expressed this viewpoint in 2011, arguing that proprietary trading by banks and bank holding companies "played a critical role in the recent global financial crisis and subsequent recession." 111 Administrative officials have echoed the stance. For instance, former SEC Commissioner Luis Aguilar wrote that although "several factors combined to cause the financial crisis, proprietary trading by major financial institutions was a key contributor to that crisis." 112 More recently, Commodity Futures Trading Commission Commissioner Rostin Behnam objected to regulatory revisions to the Volcker Rule in part because the proposed changes would "encourage a return to the risky activities that led to the financial crisis, and perhaps further consolidate trading activity into a few institutions." 113 Perhaps unsurprisingly, Paul Volcker himself adopted this argument in expressing his concerns about revisions to the 108 See supra note 90 and accompanying text. 109  Volcker Rule, claiming that "the new [R]ule amplifies risk in the financial system, increases moral hazard [,] and erodes protections against conflicts of interest that were so glaringly on display during the last crisis." 114 Members of the media and pro-Volcker political action groups also regularly employ this line of argument. In a 2017 comment letter, the nonprofit organization Public Citizen wrote a scathing review of the EGRRCPA-inspired rollbacks to the Rule, noting specifically that "[p]roprietary trading figured at the center of the financial crisis." 115 Market watchdog Better Markets likewise premised its comments on the assertion that "[t]he Volcker Rule['s] ban on proprietary trading by banking entities was included to address one of the root causes of the 2008 financial crisis." 116 Better Markets' comment letter went on to opine on this basis that "[w]eakening the Volcker Rule threatens to neutralize one of the single most important financial reforms incorporated in the Dodd-Frank Act to ensure our largest banks remain stable and our entire economy is protected from another financial crisis." 117 Some in the mainstream media similarly report that the proposed revision "opens the financial system back up to the abuse and risky behavior that crippled the U.S. economy a decade ago . . . at a time when financial firms are posting record profits." 118 Another editorial report cynically retorted that "Congress is picking apart the Dodd-Frank Act of 2010 just in time for the 10th anniversary of the Great Recession, the type of economic conflagration the law was supposed to prevent." 119 The second type of pro-Volcker argument takes a more qualified approach to the Volcker Rule's importance and indispensability. Rather than premising their stance on an assertion of the connection between the Rule and the specific failures that led to the 2008 financial crisis, arguments of this sort contend that the businesses practices the Rule is designed to check are problematic enough on their own to warrant their restriction. For example, one pro-Volcker scholar admits that "[a] causal relationship between such proprietary trading and the financial crisis is . . . difficult to establish," and acknowledges that "it is easier to assert that proprietary trading exacerbated the impact of the crisis." 120 Similarly, in a statement of dissent to the final regulatory revisions of the Volcker Rule, SEC Commissioner Allison Herren Lee qualifies that "[t]he Volcker Rule is complex [and] . . . could do with some simplification and clarity," before contending that "we can just as easily achieve simplicity and clarity with a plainly defined but appropriately broad scope and stronger compliance requirements." 121 Many such arguments build upon acknowledgements that "[p]rudence would argue for waiting until we have tested how the new framework performs through a full [credit] cycle before we make judgments about its performance." 122

C. Perspectives Against the Rule and in Favor of Rollbacks
Arguments against the Volcker Rule and its strong enforcement also take a variety of forms. While some argue against the Rule's necessity, many arguments in favor of rollbacks endorse the Rule's essential goal and existence in some form. Broadly, opponents of a strong Volcker Rule tend to 119  point to the mixed evidence as to how related proprietary trading and hedging were to the financial crisis of 2008; the problematic regulatory ambiguities that threaten to over-or undershoot the Rule's intended impact; and the various undesired, unintended public and private costs that the Rule is likely to cause. Commentators who most aggressively argue against the Volcker Rule contend that the Rule is fundamentally flawed in principle and ought to be repealed entirely. Many individuals who espouse this viewpoint cite data indicating that "[p]roprietary trading did not cause the financial crisis [of 2008,]" and argue that as a result "[t]he justification for banning proprietary trading for [even] large banks is dubious at best." 123 In particular, some express fears that "reducing the amount of capital banks can legally put into hedge and private equity funds will hurt these funds, especially funds that rely extensively on their significant connections with banking entities." 124 Others challenge the wisdom of reinstituting Glass-Steagall's division between banking functions, contending that this division no longer captures a relevant distinction in contemporary financial markets. 125 For example, one commentator recently noted that: Proprietary trading has moved to less-regulated businesses . . . . The result is likely to be an increase in overall risk-taking, absent market or regulatory restraint. . . . In short, even if proprietary trading is no longer located in banks, it may now be conducted by less-regulated entities that affect banks and banking 123  activities. . . . [As a result] [b]anks . . . will continue to be exposed to proprietary trading-perhaps less directly, but now also with less regulatory oversight, than before. 126 Complementing these perspectives, several institutional commenters responding to agency notices of proposed rulemakings ("NPRMs") have recommended that ideally "[t]he Volcker Rule should be repealed" wholesale, and only in the meantime should regulatory agencies enact "revise[d] rules to mitigate [its] harmful effects on the economy." 127 Even more recently, a similarly strong stance was adopted by SEC Commissioner Hester Peirce, who contended that the Rule's "immense administrative complexities . . . discourage banking entities from engaging in market-making and hedging activity" and "impose significant compliance costs on bank-affiliated brokerdealers and investment advisers," thereby "deterring critically important economic activities." 128 In contrast to these strict perspectives, most anti-Volcker arguments take a more nuanced form, generally agreeing to the Rule's merits in principle and acknowledging the virtue of its essential premise while arguing that its current construction is inherently flawed. Many of these arguments highlight the lack of evidence as to the Rule's practical success along with the problematic ambiguities within the Rule's regulatory  (Sept. 21, 2017), https://centerforcap.wpengine.com/wp-content/uploads/2017/09/CCMC-Comment-of-Volcker-Rule.pdf [https://perma.cc/QWX2-D22F] ("CCMC continues to support the repeal of section 619 by Congress. However, absent such repeal, we believe that it is incumbent on the Agencies to make significant revisions to the Volcker Rule."); Competitive Enterprise Institute, supra note 123 ("While we believe that Congress should repeal the Volcker Rule in its entirety, we applaud the OCC's efforts to revise the rule to ease the regulatory burden-particularly on smaller banks-consistent with the framework of the statute . . . .").
128 Press Release, Peirce, supra note 105. framework. With respect to the latter issue, one article explains that among the major areas in which the Rule lacks clarity are the precise definition of what constitutes a "trading account" and the hazy distinction between prohibited proprietary trading activity and permitted market-making activity. 129 As to the former issue, several recent studies call for revisions to the Volcker Rule by casting doubt upon its practical effectiveness. One of these studies finds "no evidence of the rule's intended reduction in the riskiness of covered firms' trading in corporate bonds," 130 while another finds that "attempt[s] to separate legitimate and acceptable market-making from speculative and risky market-making is not productive" and yields significant costs in terms of weakening the liquidity of the U.S. corporate bond market. 131 The nonprofit organization Financial Services Roundtable also adopts this type of argument in commenting although that its constituent members "appreciate that the Rule was enacted to limit threats to the safety and soundness of large bank holding companies resulting from excessive risk taking in certain trading and funds activities," in practice "the regulation implementing the Rule overreaches" insofar as it "restricts client-oriented activities that do not pose a material risk to the safety and soundness of institutions subject to the Rule, or the broader financial system." 132 Similarly, in a statement delivered in 2018, SEC Chairman Jay Clayton justified rollback proposals by arguing that "to effectively implement the Volcker Rule, one size does not fit all and its terms should reflect [the agencies'] collective experience . . . to help make the Volcker rule work in a more efficient manner, consistent with the purposes of the statute." 133 The Office of the Comptroller of the Currency ("the 129 Nester, supra note 2, at 3079. 130  OCC") released a statement the following year upon the approval of the regulatory revisions to the Volcker Rule, expressing fundamentally the same message. Specifically, the OCC's statement explained that while "the limits and protections put in place by the prior version of the 'Volcker Rule' remain to ensure inappropriate risk practices do not recur [,]" the revised regulations still make "substantial progress [in] eliminating ineffective complexity and addressing aspects of the rule that restrict responsible banking activity." 134

IV. INPUT AND OUTPUT: WHOSE FEEDBACK IS DRIVING THE VOLCKER RULE'S DEVELOPMENT?
This Part transitions from the survey of the Volcker Rule's public reception to an analysis of the civic input that propelled the Rule's development. Section IV.A surveys the public statements that were submitted in response to the Rule's legislative revision, and Section IV.B reviews data from the notice-andcomment procedures that have taken place attendant to the Rule's ongoing regulatory evolution. Section IV.C then discusses what this data demonstrates about existing lawmaking processes as applied to financial regulation in general.

A. Review of Public Commentary to Statutory Updates
The passage of the EGRRCPA has been said to "show a bipartisan recognition that, in certain ways, Dodd-Frank can be rejiggered and [made] more risk-focused." 135 Nonetheless, while statutory revisions to the Volcker Rule were backed by much-touted bipartisan support, 136  statements, commentaries, and statistics surrounding the enactment of the EGRRCPA reveal a process fraught with more conflict than agreement. That the Republican-spearheaded EGRRCPA bill emerged from the Senate with the support of seventeen moderate Democratic Senators reflects, to some extent, a spirit of cooperation. 137 By settling for more modest goals than those publicly advertised by the Trump Administration and sought by more hardline Republicans, 138 Senator Mike Crapo managed to garner backing from a sufficient number of Democrats in the Senate to pass the bill. 139 Although the Senate bill displayed "more modest ambitions" than it otherwise might have, 140 it comes as little surprise that centrist voices in both the Democratic and Republican camps emerged as the bill's standard-bearers. 141 https://www.wsj.com/articles/how-congress-rolled-back-banking-rules-in-arare-bipartisan-deal-1527030512  8,2018), https://www.law360.com/articles/1020030/print?section=banking [https://perma.cc/F3S8-AT6C] ("'What this bill is trying to do is recognize that, of course, after the financial crisis there was a regulatory exposure that we needed to address,' [Republican Senator Thom] Tillis said. 'The problem is we simply went too far or, at least, with the passing of time we now know that we can claw back those regulations on certain banks . . . .'"); Tracy & Ackerman, supra note 136 ("'Too big to fail had become too small to succeed,' [Democratic Senator Heidi] Heitkamp said."). See also Erica Werner & Renae Merle, Senate Passes Rollback of Banking Rules Enacted After Financial Crisis, WASH. POST (Mar. 14, 2018), https://www.washingtonpost.com/business/economy/senate-passes-rollback-of-post-financial-crisis-banking-rules/2018/03/14/43837aae-27bd-11e8-b79d-f3d931db7f68_story.html [https://perma.cc/W2FG-23JH] (reporting that "for the first time since Trump became president, the divisions lurking within the Senate Democratic Caucus burst into full view, with [liberal Democrats] leading vehement opposition to the bill, even as supporters-While the Trump White House characterized the legislation as enacting mere "common-sense reforms," 142 the liberal wing of the Democratic party, led by Senators Sherrod Brown and Elizabeth Warren, denounced the bill as "[going] too far to help an industry posting record profits" and even criticized Democratic supporters of the bill by name in a fundraising email. 143 In a statement, Senator Warren dubbed the law the "Bank Lobbyist Act" and warned that it threatened to "peel away vital safeguards we put on large banks after the financial crisis." 144 Reactions from the general public were similarly varied and stratified along party lines. Predictably, Wall Street watchdog groups criticized the EGRRCPA as "unnecessary[,]" "potentially dangerous[,]" and "a giveaway to bank lobbyists," 145 while business community lobbyists like the American Bankers Association praised the bill as an "important step toward bringing much-needed regulatory relief to help banks better serve their customers and communities." 146 Similarly, whereas some editorials congratulated policymakers for "scal[ing] back their priorities to maintain support for a compromise[,]" 147 others excoriated them for "ignoring the past" in loosening "rules intended to keep [banks] from self-destructing again." 148 Still others characterized the law as a "modest, targeted package of changes" while prudently acknowledging that its ultimate success or failure "may not be so much a including Democrats up for reelection in states Trump won-supported it with equal vigor"). 142  ." 149 Although, as is the case with nearly all legislative developments, a detailed assessment of public opinion is hard to come by, data collected from a Gallup poll conducted immediately after the EGRRCPA passed suggests a similar divide. As of Fall 2018, the Gallup poll reflected that Republicans were becoming less likely to complain of too much financial regulation, Democrats were becoming more likely to complain of too little financial regulation, and the percentage of the public that held the opinion that too much financial regulation exists was at its lowest since 2008. 150

B. Survey of Public Contribution to Regulatory Updates
An examination of administrative rulemaking procedures opens a window of insight into the substance and dialogue of legal development unavailable through evaluation of the text of a regulation. As Professor Krawiec observes, "the informal notice and comment process seeks a pluralist goal of facilitating engagement opportunities for broad segments of society, including individuals and firms, as well as public and private interest groups." 151 In practice, however, administrative rulemaking is also less publicly visibile, less likely to "attract challenges from political entrepreneurs," and at least as vulnerable to the pressure of political lobbyists as legislative lawmaking, thus offering a unique opportunity for affected industry members to "forc[e] regulators to trim their sails." 152 With an eye toward exploring these dynamics, this Section surveys data from the notice-and-comment rulemakings that have driven the Volcker Rule's regulatory evolution to better understand the public's role in its development. 152 Coffee, Jr., supra note 7, at 1028.
The Administrative Procedure Act mandates that federal administrative agencies follow a process called notice-andcomment rulemaking by publishing notices of proposed rulemakings and soliciting public input on the proposed rulemakings prior to promulgating new regulations or updating existing regulations. 153 The final joint agency regulations implementing the Volcker Rule were adopted in 2014, and until the writing of this Note, only three Volcker-related NPRMsall promulgated within the past three years-proposed revising the regulations that directly implemented the Rule originally. 154 The first of these three NPRMs was published by the OCC in August 2017, entitled "Proprietary Trading and Certain Interests in and Relationships with Covered Funds (Volcker Rule)" ("the 2017 NPRM"). 155 The 2017 NPRM solicited public comments "to assist in determining how the final rule implementing section 13 of the Bank Holding Company Act . . . should be revised to better accomplish the purposes of the statute . . . [and] suggest[] improvements in the ways in which the final rule has been applied and administered to date." 156 The second of these NPRMs, published in July 2018 and titled "Proposed Revisions to Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds" ("the 2018 NPRM"), was released jointly by the five administrative agencies in charge of implementing the 153 See 5 U.S.C. § 553 (2018). 154

See Rules and Proposed Rules, Prohibitions and Restrictions on Proprietary
Trading, REGULATIONS.GOV (2020), https://www.regulations.gov/searchResults?rpp=50&so=DESC&sb=post-edDate&po=0&s=%22Prohibitions%2Band%2BRestrictions%2Bon%2BPro prietary%2BTrading%22&dct=PR%2BFR&pd=12%7C01%7C13-01%7C01%7C20 [https://perma.cc/97XZ-RKM3]. See also infra Appendix A, Figure 2 (displaying data on the meetings held between administrative agencies and institutional commenters prior to amendments to the Volcker Rule between 2017 and early 2020). 155 163 and a mere eighteen public comments were received in response to the 2019 NPRM. 164 Of the comments submitted in response to the 2017 NPRM, nearly ninety-nine percent were identical form letters sent by private citizens in opposition to the Volcker Rule rollbacks. 165 Another thirty comments sent in response to the 2017 NPRM were short original letters sent by private citizens, all but one of which expressed general opposition to the proposed rollbacks. 166 Fifty-six comments were letters sent by various businesses and political action organizations, all but five of which argued in favor of the proposed rollbacks. 167 Of the comments submitted in response to the 2018 NPRM, over ninety-six percent were identical form letters sent by private citizens in opposition to the proposed rollbacks. 168 Sixty-two comments to the 2018 NPRM were short original letters sent by private citizens, all but two of which expressed opposition to the proposed rollbacks, 169 and seventy were comment letters sent in by businesses and political action organizations, all but eight of which argued in favor of the proposed rollbacks. 170 Finally, one comment to the 2018 NPRM was a letter send by a member of Congress, expressing opposition to the proposed rollbacks. 171 Of the comments submitted in response to the 2019 NPRM, eight were short original letters sent by private citizens, all but one of which opposed the proposed rollbacks; 172 nine were letters sent by various businesses and political action organizations, all of which argued in favor of the proposed rollbacks; 173 and the last was from a member of Congress, which expressed support for the proposed rollbacks. 174 The vast majority of the comments submitted by private citizens read similarly and raised the same few points. Nearly all of these private citizen comments contained sentences that implored administrative agencies to "strengthen our laws against using taxpayer-backed deposits on risky investments." 175 Some also shared personal snapshots of difficulties experienced during and after the financial crisis of 2008, 176 while others expressed incredulity or anger at the perceived greediness of banks and financial companies. 177 Several public comments also expressed anger at the apparent ignorance of the administrative agencies to the danger posed by rolling back the protections of the Volcker Rule. 178 Whereas some private citizens made general suggestions, which recommended 176 See, e.g., Arline Taylor, Comment Letter on Proposed Revisions to Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds (Oct. 11, 2018), https://www.regulations.gov/document?D=OCC-2018-0010-0096 [https://perma.cc/AN8J-CEBD] ("My husband and I are in our mid 70's, worked from the age of 16, lived within our means and invested wisely so that we could retire with enough to be comfortable. In 2008 we were preparing to sell our modest home that we had lived in for 35 years . . . and then the 2008 crash wiped out half of our IRA! Ten years later we are close to back to where we were before the crash. Our plans to downsize were put on hold -we cannot take another crash!"); and can work only part time now. I will never be able to make those losses up. It is unfair to make taxpayers who have lost so much also have to pay for bailouts."). 177 See, e.g., Dave Kisor, Comment Letter on Proposed Revisions to Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds (Oct. 11, 2018), https://www.regulations.gov/document?D=OCC-2018-0010-0094 [https://perma.cc/JR55-S9TQ] ("Wall Street Banksters will do anything they want, as they have learned the federal government will bail them out of any jam. They'll gamble with our money, lose and when the customers are in the poor house, the banksters will just say it happens and then lobby for more money to gamble away . . . ."). 178  retaining the old Glass-Steagall framework, 179 increasing "transparency around how the Volcker Rule has been implemented," 180 and "implement[ing] banker pay reforms . . . to cut back risky behavior by banks," 181 exceedingly few private citizens made reference to any specific provisions of the Rule. 182 Many of these comments were premised explicitly on the insistence that banks are inherently bad actors that caused the most recent financial crisis and must be safeguarded against. 183 In contrast to the comments received from private citizens, feedback submitted by institutional commenters suggest a much higher degree of engagement with the details of both the existing Volcker Rule and the proposed changes to it. Among the recurrent themes of these comments are "the need to fully implement limits on the extraterritorial application of the Volcker Rule, so that it focuses on risks to the U.S. financial system and U.S. banking entities"; 184 the necessity of streamlining compliance requirements, including through the proposed regulation's three-tiered model for reporting requirements; 185 the benefit of tightening and clarifying the scope of in, and Relationships With, Hedge Funds and Private Equity Funds (Oct. 11, 2018) prohibited proprietary trading to align the regulatory standard with the underlying statutory intent behind the Rule; 186 and the desirability of adding exclusions to the definition of "covered funds." 187 Institutional comments opposing rollbacks-coming almost exclusively from nonprofit watchdog organizations-cited statistics in their comments that indicated that proprietary trading played an important role in causing the 2008 financial crisis, 188 raised specific concerns as to the ways in which the proposed reforms "double[] down on the already self-regulatory nature of the current Volcker Rule," 189 and cautioned against altering the definitions of "banking entity," "covered fund," and "proprietary trading" to be more flexible than they already are. 190 In addition to feedback received through public comments, the five relevant administrative agencies also conducted meetings with representatives from various interested organizations. 191 Altogether, fifteen meetings are reported to have occurred between the OCC and such parties between 2017 and early 2020 relating to proposed changes to Volcker Rule regulations, all of which are memorialized in summary memoranda published by the agency and docketed along with the NPRM associated with each meeting. 192 Fascinatingly, of the nearly forty organizations reported to have attended these meetings, all are recognizably members or representatives of the banking and investment business communities, and not a single one came out against rolling back the Volcker Rule's regulatory mandate. 193 Instead, every one of these institutions discussed with the relevant administrative agencies specific  " 197 This being said, the distribution of "efficacious participation" in the Volcker rulemaking process is hardly encouraging.
Indeed, procedural statistics from the Rule's administrative development reflect both stark polarity and unbalanced industry influence. While the reaction to the Rule's legislative development tends to eschew detail for either broad commendation over the very achievement of bipartisan compromise or broad disapproval of Congress's reckless deferral to the interests of banking lobbyists, 198 evidence from the Rule's regulatory development reveals a much sharper distinction between the viewpoints expressed by private citizens and those expressed by organizational and institutional commenters. For one thing, nearly all institutional commenters tended to argue in favor of the proposed Volcker rollbacks, whereas nearly all private citizen commenters tended to argue against the rollbacks and in favor of maintaining and strengthening the original regulatory Rule. 199 For another, private citizens' comments tended to be much less sophisticated than institutional comments: not only did the vast majority of private commenters submit prewritten form letters rather than original comments, 200 but nearly all of these submissions were less than a page in length, spoke in broad terms, and demonstrated a limited understanding of what the Rule does and how the agencies proposed to change it. 201 Finally, the available data reveals that the pro-Volcker perspective was not represented in meetings with administrative agencies, facially evidencing a disproportionate lobbying influence of financial companies in the Rule's regulatory development. 202 On the whole, the data from both private agency meetings and the public comment forums suggests a glaring if not unsurprising imbalance: members of the business community tend to be both in favor of Volcker Rule rollbacks and far better-positioned than the general public to offer substantive feedback promoting their regulatory interests. This phenomenon is likely not a coincidence, but a direct product of the demographical and political orientations of the financial industry as distinguished from those of the public. Professor John Coffee commented on this relative positioning by noting that while "United States investors and shareholders are . . . dispersed, disorganized, and . . . [e]asily distracted by other important issues . . . the financial services industry is well organized, focuse[d] on the issues that most affect it, and . . . incentive[d] to maintain a powerful lobbying presence." 203 Indeed, it seems logical that the actors most directly affected by financial regulation are also those most likely to encounter its problems and be incentivized to lobby for pragmatic solutions. Knowing this, it ought to be of little surprise that administrative agencies are more likely to consider the nuanced feedback of expert sources rather than big-picture pushback from removed watchdog organizations and private citizens.
What is more, the complexity of the Volcker Rule's subject matter, the unified political front presented by the business community, and the superior financial sophistication of financial industry participants all suggest a more fundamental problem with administrative rulemaking processes as applied to the development of effective financial regulation. As Sunstein puts it, "[if] the purpose of the public comment process . 202 See infra Appendix A, Figure 2. 203 Coffee, Jr., supra note 7, at 1021. See also CROLEY, supra note 197, at 132 ("[B]usiness or industry interests participate in agency decisionmaking processes significantly more than other, broad-based types of interests, especially as measured by the frequency and volume of their participation.").
. . is to allow We the People . . . to participate [in rulemaking,] . . . then intelligibility and clarity are indispensable, and complexity is a fatal problem." 204 In the context of complex financial regulations such as the Volcker Rule, however, clarity comes at a premium. Far from the democratized process that notice-and-comment procedure is theoretically meant to be, the administrative procedure behind the implementation and development of the Volcker Rule acts as a sort of "bar to entry," soliciting meaningful input from a privileged minority of sophisticated commenters while flying over the heads of the less informed with complex prompts, weighted language, and technical terminology. 205 Ultimately, the complexity of the Volcker Rule's subject matter and the discrepancy of relevant technical knowledge between the affected business community and the general public skews the debate to the point where only the pro-business, pro-rollback side is adequately able to formulate a coherent and impactful argument. This in itself may explain why constituents of the business community have invested so much more than proponents of the Volcker Rule into arranging direct meetings with regulatory agencies, why administrative agencies themselves seem to be much more interested in meeting with these parties than with the Rule's proponents, and why the net result of these efforts has been the implementation of proactive rollbacks.
Notwithstanding the bleakness of these takeaways, it is important to qualify this picture by noting another, more subtle observation evident from our review of the Volcker Rule's evolution. Building on the premise that "in the long term, smaller, better-motivated interest groups will likely dominate 204 SUNSTEIN, supra note 151, at 89. 205 See, e.g., Public Citizen, supra note 115, at 1-2 ("[W]e protest the tenor of this request [,] [whose] abiding theme . . . is that Volcker Rule should be diluted. [This] request for comment is glutted with loaded argument [suggesting that] . . . [t]he Comptroller is merely obliging the Administrative Procedures Act perfunctorily before consummating the Trump administration's stated goal of rolling back this reform."); Letter from Jeffrey Merkley, supra note 30, at 2 (criticizing the lack of "data or analysis . . . provid[ing] support to many of the significant policy changes included in the [NPRMs][,]" without which "many of the more than 1,000 questions posed [therein] are not readily answerable . . . except perhaps by the banking industry itself").

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VOLCKER RULE IN PRACTICE 791 over the majority," some scholars predicted nearly a decade ago that "interest-group politics [would] produce a major downsizing in the Dodd-Frank Act, both by way of administrative implementation and legislative revision." 206 In hindsight, it is apparent that this expectation was fundamentally correct, but also that this change has occurred more slowly and moderately than anticipated. Specifically, the input submitted by affected entities in general opposition to the Rule reflects a surprising effort by the business community to facilitate the development of a workable regulatory standard rather than eliminating the Rule entirely. While some financial industry constituents continue to argue that the Volcker Rule ought to be eliminated wholesale or reduced dramatically, 207 the evidence surveyed herein indicates that most of these entities are submitting practical proposals that would change the way in which the Rule functions. 208 In other words, even though popular input regarding the Volcker Rule continues to come from predictable sources and break down along politicized lines, discourse about the Rule is no longer about whether the Rule should exist, but about how it ought to be administered efficiently. From this perspective, the moderate development of the Volcker Rule despite the vitriolic polarity of the current political environment unexpectedly reflects more cooperation than the façade of popular rhetoric would suggest.

V. CONCLUSION: A MISUNDERSTOOD WORK IN PROGRESS
Our review of the legislative and regulatory development of the Volcker Rule over the past three years gives rise to several concrete observations. First, it seems that behind the superficialities of political posturing, many people do not actually know what the Volcker Rule is or does, let alone how the Rule practically affects the economy. In particular, an 206 Coffee, Jr., supra note 7, at 1023, 1027. 207 See supra notes 123-28 and accompanying text. 208 See supra notes 129-34 and accompanying text, See also infra Appendix A, Figure 2. examination of the administrative notice-and-comment process behind the continued development of the Volcker Rule shows that most private citizen commenters demonstrate little to no understanding of how the Rule functions and what it is designed to do, whereas almost all sophisticated comments come from a small group of affected banks, credit unions, and advocacy organizations. 209 Popular input concerning the Rule's merits and if or how it ought to be changed tends to come, by and large, from unsurprising sources and break down along predictably politicized lines. 210 The roots of this partisan dialogue appear to reach beyond the financial crisis of 2008 as far back as the Glass-Steagall Act itself, and reflect differing schools of financial regulatory thought as much as political polarity and popular vitriol. 211 Second, a survey of studies and articles written about the practical impact of the Volcker Rule indicates that many of the predictions made as to the prospective impact of the Rule have not yet come to fruition. 212 Potentially due to reasons ranging from the immense complexities of the financial system to the dearth of relevant data on point, research findings published to date do not lend conclusive statistical support to either the fatalistic concerns of Volcker Rule opponents or the optimistic anticipations of Volcker Rule proponents. 213 Third, the data examined herein indicates that Professor Krawiec's procedural critique remains as relevant to the later stages of the Volcker Rule's regulatory development as it has proven to be to its earlier stages. 214 Driven unevenly by the influential suggestions of business community constituents rather than results-based evidence and the input of the general public, the Volcker Rule's stilted evolutionary process appears in many ways to be representative of problems that plague the enactment of American financial regulation in 209 See supra notes 175-95 and accompanying text. 210  general. If the aim of notice-and-comment rulemaking is indeed to "supply a corrective" 215 to regulatory assessments, then the fact that most regulators and market actors operate with "a lens colored by an outdated understanding of the financial system" 216 seems to translate inevitably into disproportionate representation of knowledgeable business insiders foiling the administrative democratization of financial regulatory reform. Fourth and finally, despite the polarizing rhetoric that has persisted since the Volcker Rule's original enactment, substantive discourse about the Rule has shifted somewhat from the plane of pro-or-con to the dimension of how-and-why. In other words, even those politicians and affected entities that have vocally opposed the Rule have worked over the past several years to facilitate the development of a workable regulatory standard, rather than merely eliminating the Rule wholesale. 217 In this sense, recent changes to the Volcker Rule surprisingly reflect more cooperation than the frontage of political bombast alone would suggest: although its proponents and opponents disagree on much, the Volcker Rule may yet be on track to better achieve its intended goals, rather than abandoning them entirely. Discussed "(1) the accounting-based definition of trading account, (2) proposed revisions to the metrics reporting requirements, (3) proposed revisions to the marketmaking exemption, and (4) proposed revisions to the