Can intrusive regulation or a “clearinghouse” manage the unmanageable?
06.13.09
Today. The Rule of Law or the Rule of Money. It may be time to choose sides.
We take a Demand Side look at regulation in financial markets, with contributions from William Cohan, author of the new book House of Cards, and from Adam Leviton, Associate Professor of Law at Georgetown.
That comes after a few short notes of news.
U.S. consumer sentiment rose in June — to 69 from 68.7 in May. Calculated Risk, our favorite source for news, says right now consumer sentiment is still very weak. He suggests that consumer sentiment is a coincident indicator - it tells you what you pretty much already know. Not so. It is volatile, but leading. Consumers said in November 2007 that the U.S. was already in recession or likely to go there. Economists, ever the lagging indicator, got to fifty percent predicting recession about May 2008.
Consumer confidence in a typical recession lies in the 60 to 80 range. In good times under Reagan it was in the 90 to 100 range. Clinton saw long periods in this range, but also the 1997-2000 period in the 100 to 110 range. After 2000, it has been very volatile, beginning at 100 but bouncing down to 80 and back, spending most of the time between 80 and 90 until it collapsed in mid-2007.
Retail Sales in May: On a monthly basis, retail sales increased 0.5% from April to May (seasonally adjusted), but sales are off 10.8% from May 2008 . Much of the one-month April-May increase was due to higher gas prices.
Under old news, take another look at the mortgage market through the chart on the blog. ARMS, option Arms and Alt-A’s will not see the peak of resets and recasts until 2011. The outlook for housing is dreadful, absent the demand side remedies we have suggested.
And from the Fed: The Beige book announcement : “reports from the twelve Federal Reserve District Banks indicate that economic conditions remained weak or deteriorated further during the period from mid-April through May. However, five of the Districts noted that the downward trend is showing signs of moderating. Further, contacts from several Districts said that their expectations have improved, though they do not see a substantial increase in economic activity through the end of the year.”
All news is abbreviated from our favorite blogger, Calculated Risk.
Now.
The response to recent the financial collapse from the Federal Reserve and Treasury displays how completely the nation’s politics have come under the rule of the banks and financial houses.
Nothing is more emblematic of the systemic collapse than the bailout of AIG. To quote maintain order unquote the government took on hundreds of billions of dollars in private contracts, credit default swaps. By taking on, what I mean is paying off.
Those were not regulated or organized by the government. They did not come under the purview of the government. The primary reason they were outside government jurisdiction and oversight was the insistence and direction of the very parties who engaged in the great majority of them. Yet these are the very parties that the government, led by Fed Chairman Ben Bernanke, made whole.
The issue is now whether to create government regulation for credit default swaps. The likelihood that a clearinghouse rather than an exchange will be the forum for trading these contracts clarifies the issue. These are not securities by any standard. They are contracts. Every dollar we paid to backstop AIG, the chief seller of these contracts, went to fulfill an obligation we were not responsible for. You might think we would now have the right to look at these contracts. Sorry. Secret.
Ben Bernanke has been given high marks for aggressive action, but here with assistance from the Treasury he has gone renegade, leaving the rule of law and acknowledging the rule of money. Bernanke’s chief interest is, by whatever means possible, to make certain the banking institutions do not fail. His academic work and intellectual capital is invested in the premise that the Great Depression could have been avoided if the banking institutions had been saved. I am not a scholar of the Depression, but it does not take too much knowledge of history to know that the banks of that era — National City and the rest — were no better than the current crop. Saving them would likely have done no more good than saving the megabanks of today in zombie form has done.
Bernanke is testing his theory in real time with our economic future and that theory is coming up thorns.
The public’s interest should be to reform the banking structure and function so it works, not bail out the big institutions, their officers and shareholders. This supply side welfare is destined to fail. Compare to GM and Chrysler. Liabilities and prospects are not so much different in proportion between the auto makers and Bank of America, Citi or American Express, yet the official path forward involved a lot more front-end sacrifice for the car makers. Too bad Ben Bernanke does not serve Big Auto.
Even now, after the indirect bailout through the AIG back door, which simply gave money to banks involving no obligation to repay, and after immense loans and guarantees from the Fed, the largest banks have left the business of productive lending, and are now in the business of gouging their current customers and maximizing the spread between borrowing from the U.S. central bank — us — at zero percent and lending to us at as high a level as possible, keeping in mind we are guaranteeing against our default.
This policy has little to do with rebuilding the common economy and is only a further burden on demand side recovery. It is as Joseph Stiglitz says corporate welfarism.
An increase and strengthening of effective demand is the only route to economic recovery. Muddling through as financial houses attempt to recoup their losses may satisfy enough among the powerful to be politically viable, but economically it is disaster. It is a disaster for tens of millions of people in this country and many more across the globe. By “politically viable” here, I mean it may not cost those in power their seats. In a larger sense of “politically viable,” it is not, because it is capture of government by the corporate oligarchy and hence a defeat for representative democracy.
There are many who say this has already happened. I am among them. But this is a new level, where the rule of money, not of law is so egregious that it amounts to an explicit capture of the state.
Which brings us back to today’s subject: Regulation.
Our principle for regulation at Demand Side is to structure markets and avoid additional intrusive inspection of market participants. We can leave that to current laws on fraud and abuse. All the time being aware that any restrictions are only the first shot in a game where the object of the participants is to discover a way around the restrictions.
What does it mean to structure the market?
First, What is the market?
The Market is nothing more, at its root, than the event of purchase and sale. The product sold at this moment can be specified and standardized. The venue of sale and conditions for inspection can be declared. The terms of sale, warranty and so on can be standardized. This market can be structured, made transparent and efficient.
The market, more abstractly, is sometimes taken to be the general condition of supply and demand. The market for transistors or the market for legal services, for example. Neither this abstraction, nor the market participants are the market itself. Also outside the market are the so-called externalities that afflict us and that we’ve argued should be internalized into the market by steps to bring their costs into the event of purchase and sale.
Mr. Market, the one who speaks to all the analysts, who then relay to us “The Market is saying,” “The Market wants … “ and so on, does not exist or speak in a way other than by the purchase-sale event.
Regulation should standardize products — apples should be graded, toasters forced to show they are electrically sound, automobiles built to appropriate standards, mortgages not fraudulent, derivatives be of such specifications that they can be traded like stocks and bonds.
A Financial Products Safety Commission with some other title that I don’t have at hand has already gotten preliminary approvals. This is good.
With respect to market participants, Regulation should content itself with the New Deal stricture that participants not be so large they control the market by monopoly power. They can also not be too big to fail. Companies that are too big have escaped the gravitational pull of Market discipline. Or they have become quasi planets themselves and threaten to pull the economy out of any stable orbit.
If regulation concentrates on what can and cannot be sold, in what venues it can and cannot be sold, then there is no problem with transparency, because government is describing the product not asking the seller to disclose. Concern that financial innovation will be discouraged is misplaced, particularly in the rubble of the economy that innovation has produced.
There is no need for elaborate innovative financial products. Hedging is a term straight out of gambling. It refers to complicated bets, not investment. Innovation is good in real products. Innovations in pricing are what has turned mortgages and mortgage securities into toxic paper.
Enough for today.
Revisiting Ben Bernanke on the way out, however. Once W’s chief economist, Bernanke was chosen by the financial industry to regulate them because he was devoted to the industry, not because he had any intention of acting on behalf of the public to manage the industry. The Fed has control of monetary policy — one-half of economic policy. It is the central bank, owned by their constituent private banks. Well outside control by representative government, the Fed and Bernanke are operating on the dictum Big Banks First.
It is a recipe for disaster. It cannot work. It can only burden the economy and legitimate finance — to the detriment of all.
There is a very interesting interview on this subject by Andrea Orr at the Economic Policy Institute web site under the title Too complex to regulate? Link online.
http://www.epi.org/analysis_and_opinion/entry/too_complex_to_regulate/#When:18:45:12Z
It begins quote:
Lawmakers seeking to prevent a repeat of the greatest financial meltdown since the Great Depression are considering ways to impose tighter regulations on big investment banks, where trading of credit default swaps and other derivatives reached unsustainable levels, helping bring the economy to the brink of disaster in 2008. Although they are commonly described as a form of insurance against defaults on home mortgages, the credit default swaps sold by A.I.G. and other firms became so widespread and complex over the past decade that it became almost impossible for the banks themselves, let alone outside regulators, to sort out the real value of these popular investments or assess the risk.
The rise in trading of derivatives … also underscores how far so many banks have strayed from what should be their main mission of providing lending to individuals and small businesses to help support growth in the general economy. Critics note that derivatives trading escalated to a rapid back-and-forth exchange of paper certificates where the value often had little connection to real economic activity.
If “Too Big to Fail” and “Too Connected to Fail” have become the slogans justifying the repeated government bailouts of some major banks and insurers such as A.I.G., these firms’ continued resistance to tighter government restrictions might be summed up as “Too Complex to Regulate.”
That complexity is neither necessary nor useful,
The interview features Robert Johnson, who previously served as managing director of Soros Fund Management and as chief economist for the Senate Banking and Budget Committees; and Sony Kapoor, a former investment banker who now heads a think tank concentrating on rethinking Development, Finance, and Environment.
One sample question:
Q. The trading of derivatives and credit default swaps, which are at the core of the current economic instability, are often presented as something that is too complex for the average person to understand. Why?
Johnson: They (the banks) make things hard to understand so they cannot be easily copied, which enables them to charge a higher profit margin. Complexity in and of itself doesn’t help them avoid regulation, but their declaration of instruments such as credit default swaps as stock when they are actually insurance contracts was a misnaming designed to avoid regulation.
Kapoor: Wall Street has a very strong incentive to make things as complex as possible. Complexity is used as a tool to fool regulators and to avoid tax. You set up new subsidiaries, you make new products that haven’t been addressed by regulations. Regulators are very hard-pressed to get any information. …
See the rest online
For further context we turn now to Adam Leviton, Associate Law Professor at Georgetown, here exerpted from NPR’s Fresh Air, speaking nominally to the question of credit cards.
LEVITON
Adam Leviton
And an additional note from William Cohan, author of the new book House of Cards, A Tale of Hubris and Wretched Excess on Wall Street. Cohan also authored the best selling The Last Tycoons.
COHAN
William Cohan
And now something completely different.
We leave you with the observation that oil and some commodities are spiking back up again. Is this Goldman Sachs going back to the well or a spontaneous new financial bubble? Whatever it is it is not supply and demand for the real product. Oil or whatever.
Here we have the view of Gerard Minack from Morgan Stanley Australia.
MINACK
For those of you who don’t speak fluent Australian, I’ll translate the key point.
“Look at the commodiites and look at the commodities where there are futures exchanges behind them, I.E. non-commercial players can get a hand on the price. Voila!”
Voila indeed, a new bubble.