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Abstract

Introduction: On December 16, 2014, Congress enacted the Consolidated and Further Continuing Appropriations Act, 2015 (Act) to fund the federal government through the 2015 fiscal year and forestall an imminent government shutdown.1 However, the content of this legislation was not limited exclusively to the allocation of funds; the Act controversially amended several provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).2 In a section now known as the “Yoder provision,”3 the Act amended section 716 of Dodd-Frank, which originally required certain financial institutions to “push-out” certain swap transactions to outside institutions that were not covered by federal insurance or surety programs.4

This Article discusses the implementation and impact of the Yoder provision on derivative finance and analyzes whether the provision creates an excessive fiscal liability for taxpayers. Part II of this Article discusses the initial implementation of Dodd-Frank’s swaps “push-out” provision and analyze its importance in preventing government subsidization of losses that ensue from private financial transactions. Part III further examines the Act, specifically the Yoder provision, and explains the application of the Act’s amendments to section 716 of Dodd-Frank. Part IV argues that the Act’s amendments to Dodd-Frank expose American taxpayers to significant financial liability by allowing covered depository institutions (CDIs) to participate in a larger variety of swaps transactions.

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