Tag: bankruptcy

Looking Back on Occupy Wall Street

The evening of September 16, 2008, I met Randy Kroszner for dinner at Et Voila in the Palisades just outside of Georgetown. He arrived late explaining that the Fed’s monthly monetary policy meeting had lasted longer than expected. Randy is a Governor on the Board of Governors of the Federal Reserve. The attempt to rescue Lehman Brothers over the weekend had failed and it had declared bankruptcy the day before, so we had a lot of interesting things to talk about. Randy didn’t mention that the Fed had just agreed to lend up to $85 billion to AIG to cover its expected loses on its mortgage related Credit Default Swaps, thus giving the U.S. government a 79.9% equity stake in the insurer in the form of warrants called equity participation notes. When news of the AIG bailout was posted on my phone around 9:00pm during our meal, I asked Randy what in the world was going on. He was reluctant to discuss the topic uncertain whether the source of my news was a leak or an official Fed press release.

The housing bubble had started to deflate in 2007 and homeowners and their mortgage financiers were coming to grips with the reality of significant financial losses. “The DEFs of the Financial Markets Crisis” and “The Big Bailout–What Next?” While the Federal Reserve quickly reacted to inject liquidity into the banking system to compensate for the freezing up of the interbank credit market that followed the Lehman Brothers-AIG shockwaves, the key questions were who would bear these losses and how should they be contained to avoid spilling over to the financial system more broadly.

The Fed, with the help of $700 billion authorized by Congress in the Troubled Asset Relieve Program (TARP), bailed out Wall Street and contained the spread of potential bank failures. It was a scary time for all involved. Looking back from the relative calm of today with criticism of policy actions taken then is a bit unfair but how else are we to learn from experience?

The government actions in 2008 can be broadly stated as: a) providing all of the liquidity the financial sector needed following the Lehman Brothers collapse and financial panic; b) bailing out large banks and other financial institutions that might have been insolvent whether they were or not; and c) leaving underwater homeowners to drown. The first of these—providing liquidity—is universally accepted as a proper function of a central bank and one that the Fed executed well. The other two—bailing out banks but not homeowners—are the subjects of this note. I will review them from both an economic and a political perspective.

The economic rational for bailing out Wall Street was that there was a risk, with very uncertain probability, of the failure of large Wall Street institutions spilling over to and bankrupting other financial institutions holding assets in the failed Wall Street firms. Many of them were foreign (especially German Landesbanks) and no one knew for sure where the contagion might end. By saving Wall Street, the argument went, the government was saving Main Street as well (trickle down). Sheila Bair, then the Chairman of the Federal Deposit Insurance Corporation, among others urged the government to bail out homeowners who were defaulting on their mortgages as well. While different policies of homeowner relief were considered the one finally adopted, Home Affordable Refinance Program—HARP, was modest and left Ms. Bair quite unhappy: “Shortly after Fannie Mae and Freddie Mac announced their new plan, Ms. Bair declared that it was inadequate and pointedly said that the government had spent hundreds of billions of dollars to bail out financial institutions like American International Group, the giant insurer.” “White House scales back a Mortgage relief plan”

From economists’ perspective, bailing out anyone creates a moral hazard. If market players profit from risky bets when successful but expect that the government will pick up the tab when they are unsuccessful, they will take greater (excessive) risks. No one was eager to bail out property flippers (those who bought property with the intention of reselling it at a higher price rather than move in) from their failed gamble. But the same logic applies to those financial firms that lent the mortgage money in the first place or that kept the financing cheap by providing it from the derivatives market of Mortgage Backed Securities, etc. Government policy makers attempted to design their bailouts to minimize the moral hazard they were creating, especially after the foolish and panic driven bailout of Bear Stearns in March 2008. But policy was driven by government’s fear of financial contagion.

The political optics of bailing out mortgage lenders but not homeowners is not good. Why did politicians choose to support one but not the other? Moral hazard is a problem with both. The reality is that Washington politicians were (are) much closer to Wall Street than to Main Street and are thus more sensitive to Wall Street’s concerns. Growing recognition of this fact adds some understanding to the hostile attitudes toward Washington expressed by Trump supporters.

By far the better policy would have been, and in the future is, to stick by the existing rules for bearing losses (our bankruptcy and default laws), i.e. no government bailouts. Our bankruptcy laws and procedures are actually quite good. “Resolving Failed Banks” For starters Bear Stearns shareholders should have lost everything. On the underwater homeowner side, mortgage lenders have always sought to minimize their losses when borrowers are unable to repay according to the original terms of a loan. Often the least cost resolution is for the lender to agree to easier terms and to restructure the loan. Evicting the “owner” and selling the property, especially when it is under water (i.e. valued at less than the mortgage amount), is a costly undertaking and writing down and restructuring the loan is often the least cost approach. However, government driven programs can rarely match the lenders’ ability to restructure loans one by one that can be honored by the homeowner while minimizing the loss to the lender. “Changing direction on bank regulation”

Our government has increasingly attempted to micromanage the private sector, especially the financial sector. This is a mistake. It should establish clear and pragmatic rules for conducting business and for resolving failures (workable bankruptcy laws). “Institutional and Legal Impediments to Efficient Insolvent Bank Resolution and Ways to Overcome Them” Within this broad legal framework, which to a large extent already exists, individual firms would be held accountable for the conduct of their business by their customers and their owners. If they fail, the first losses must fall on the owners (shareholders), who have a greater incentive to do well and have better market information on which to act than do government regulators. This requires a change in attitude and direction of government’s role in our lives.

The Rule of Law

The rule of law is an essential foundation of modern market economies. It increases the prospect and expectation that our individual efforts will be rewarded on the basis of merit (i.e., the success with which we satisfy the public’s wants at prices the public is willing to pay) rather than on the basis of favoritism (i.e., who we know). It introduces an element of certainty (rules of the game) in an otherwise uncertain world upon which to build our entrepreneurial efforts. It is fundamental to our notion of fairness and a protector of our personal freedoms. It is a notion and practice that attracts wide admiration from ambitious and freedom-loving people around the world and to our great benefit brings many of them to our shores.

We have never enjoyed the rule of law fully or perfectly, but our belief in it and our relatively close adherence to it remains critical to our success and the world’s eroding respect. Departures from the rule of law in our dealings with each other at home or abroad, undermine the efficiency of our market economy and diminish our freedom, but more importantly undermine the respect of others and our moral authority, which is almost as important to our place in the world as our military strength. Thus any erosions of the rule of law should be exposed and resisted vigorously.

Two principles of the rule of law are that they must apply to everyone equally (ourselves as well as others) and that the rules can’t be changed retroactively.

Through the Foreign Account Tax Compliance Act (FATCA) and other tax and Anti Money Laundering measures the United States has been increasingly forcing its own laws on other countries and turning banks into policemen to the detriment of the banking system. According to The Economist magazine (6/28/14): “In a piece of extraterritoriality stunning even by Washington’s standards, the new law requires banks, funds and other financial institutions around the world to report assets held by American clients or face a ruinous 30% withholding tax. America is, in essence, using threats to outsource its financial policing. This is working: so far, more than 77,000 financial institutions have agreed to pass information to the IRS. The costs of complying with FATCA are likely to dwarf the extra revenue it raises” Many of the approximately 7 million Americans living abroad are finding it difficult to open bank accounts. “Many have been rejected by foreign providers of banking services, insurance and mortgages because, given the amount of paperwork needed to satisfy Uncle Sam, American clients are simply too much hassle. Foreign firms are less keen to hire Americans because of the extra tax complications. Not surprisingly, the number of Americans renouncing their citizenship has quadrupled since FATCA was hatched…. FATCA’s intrusiveness raises serious privacy issues…. The financial superpower looks ever more a regulatory bully, setting rules it ignores itself.” “America’s new law tax compliance heavy handed inequitable and hypocritical FATCAs-flaws?”

When contracts can’t be honored because a company is not earning enough money, bankruptcy laws provide for a well-defined process for transferring ownership from shareholders to creditors, which includes the priority of creditor claims against the inadequate assets of the failed company. Bank bondholders and other creditors price their credit in light of their place in the cue. It violates the principles of the rule of law to changes these priorities after the fact, but this is exactly what the Obama administration did when it put General Motors into bankruptcy by favoring the United Auto Workers pension fund: “A bedrock principle of bankruptcy law is that creditors with similar claims priority receive equal treatment. In the auto bankruptcies, however, the administration gave the unsecured claims of VEBA [union pension] much higher priority than those of other unsecured creditors, such as suppliers and unsecured bondholders.” “Obama’s UAW Bailout”

The government’s inconsistent and unpredictable treatment of distressed financial institutions in 2007-8, some were bailed out and some were allowed to fail, and the resulting uncertainty about future treatment, has surely contributed to the reluctance of banks to lend and of firms to invest thus slowing the pace of our economic recovery. “The Financial Crisis: Act II”

Sadly the examples of political hypocrisy with regard to the rules of the game are growing. Fortunately there are some signs of push back. The Supreme Court just unanimously overturned as illegal the President’s so called recess appointments of members to the National Labor Relations Board. “Supreme court strikes blow-Obama exceeded authority with recess appointments” The Speaker of the House of Representatives is suing “the Obama administration for its use of executive actions to change laws.” “Boehner confirms lawsuit against Obama executive actions”

The hypocrisy has been non-partisan. Though fully justified, the hypocrisy of the outcry over the IRS’s missing emails related to targeting conservative organizations was exposed fully in Sunday’s Washington Post. Government departments and agencies are required by law to maintain copies of official correspondence (all office emails included). This law has been regularly violated. Examples are “the Bush White House’s destruction of millions of e-mail messages [including those of John Yoo, the Department of Justice lawyer who justified torture] as well as the destruction of pre-investigative files by the Securities and Exchange Commission, including files pertaining to Bernie Madoff and Goldman Sachs.” How has this happened? “Congress has neither appropriated sufficient funds for agencies to implement electronic record-keeping nor added oversight and penalties to the Federal Records Act that would ensure compliance.” “The IRS isn’t the only agency with an e-mail-problem”

Hypocrisy is rendered impotent, hopefully, from exposure. Thus hopefully George Wills’ latest column on the Redskins will be widely read. “The government decided that redskins bothers you” It begins: “Amanda Blackhorse, a Navajo who successfully moved a federal agency to withdraw trademark protections from the Washington Redskins because it considers the team’s name derogatory, lives on a reservation where Navajos root for the Red Mesa High School Redskins.” And the hypocrisy gets worse from there.

For more examples see my “Big brother is getting bigger”