Archive for August, 2010

Links 8/31/10

ACLU Sues U.S. Over Targeted Killing of Citizens Bloomberg

NC farm produces emerald shaped into massive gem Associated Press (hat tip reader John M)

British Airways No Longer Forcing Women to Sit Next to Children Flying Solo Helaine Olen. Hah, I had this done to me once.

Climate Skeptic Bjørn Lomborg Reverses Himself on Climate Change Firedoglake

Broken Politics, Bubble Pricing, Environment, and Agriculture Joe Costello

How the Germans Are Hurting the Recovery Noam Schreiber, The New Republic

Dragon could get burnt Sydney Morning Herald (hat tip reader Crocodile Chuck)

Backlash over China curb on metal exports Ambrose Evans-Pritchard, Telegraph (hat tip reader Don B)

China to Job-Seeking C.E.O.’s: Come Work for Us Michael Wines, New York Times (hat tip reader Don B)

Lehman Derivatives Records a `Mess,’ Barclays Executive Says Bloomberg (hat tip Economics of Contempt). There have been rumors about this, but this report if anything is even worse than the scuttlebut.

US pay law branded ‘logistical nightmare’ Financial Times. Ahem, the lady doth protest WAY too much.

BOJ Is `Too Little, Too Late’ in Tackling Yen, Nakahara Says Bloomberg

Beware those who think the worst is past Carmen Reinhart and Vincent Reinhart. A short recap of their Jackson Hole paper.

Antidote du jour:

Picture 5

William Black: Theoclassical Law and Economics Makes the Law an Ass

By William K. Black, Associate Professor of Economics and Law at the University of Missouri-Kansas City and author of The Best Way to Rob a Bank is to Own One

One of the great advantages of blogs is spurring informative debate. The debates also tend to morph as commentators develop their arguments. I want to address the initial and the morphed debate that Yves’ column kicked off: The Continued Stealth Takeover of the Courts. Yves warned that corporate CEOs are making concerted efforts to direct political contributions in a manner designed to elect judges that will champion CEOs’ interests. Note that I stress that the person that controls the corporation, typically the CEO, is the key actor and that the CEO commonly maximizes what he believes will be his interests at the expense of the corporation and its shareholders, creditors, and employees. This harms the nation. Yves’ blog prompted responses that eventually morphed into a debate about the role of law and economics in judicial decision making and discussion of what students are being taught in law and economics.

I have taught five multidisciplinary courses at the University of Missouri – Kansas City that integrate law, economics, criminology, finance, regulation, political science, and accounting. One of those courses is law and economics. My spouse, June Carbone (a professor at UMKC Law), and her co-author Naomi Cahn discuss the role of elected v. appointed judges in their recent book Red Families v Blue Families. You can see why we are interested in these debate topics.

The Supreme Court’s Citizens United decision allows businesses to make unlimited political contributions to judges and politicians. When judges are elected, the need for these contributions inherently turns judges into politicians. Sympathetic judges are corrupt businesses’ most valuable allies. Corporations and their senior officials can commit civil or criminal wrongs with impunity if their case is assigned to a friendly judge. The Robber Barons often had judges on their payrolls. Judges can serve a corporation as both a shield and a sword. They can declare statutes and regulations unlawful. They can issue favorable decisions when corporations sue their critics, which can intimidate, tie up, or even bankrupt the critics.

The fact that corporations are “investing” so heavily in getting pro-business judges elected demonstrates that their CEOs believe that the election of friendly judges will increase their incomes and decrease the risk that they will ever be sanctioned. It’s a business decision – not a decision based on which judicial candidate would be more qualified or better serve justice. CEOs want to win cases when doing so would be unjust and contrary to the law, which is why they hire top attorneys and make the contributions necessary to elect judges they believe will be allies. The empirical evidence in Texas shows that judicial elections and contributions produces perverse dynamics. One study showed that hiring the former law firm of a Texas Supreme Court justice markedly increased the chances that the Texas Supreme Court would exercise its discretion and hear your appeal from an adverse decision. Hiring the former law firm of the Chief Justice of the Texas Supreme Court produced an even greater chance of having one’s appeal heard.

Yves noted that the Chamber of Commerce was leading the effort to elect CEO-friendly judges. The Chamber is one of the points of intersection in the discussions about electing judges and whether law and economics has played a perverse role in causing catastrophic policy, regulatory, and judicial blunders. The Chamber distributed a plan for a hostile takeover of university departments of economics and finance (and the courts and the media) proposed by Lewis Powell (the soon to be Supreme Court Justice). Extremely conservative “law and economics” proved to be central to this effort. The law and economics movement began as a non-ideological approach to explaining and aiding judicial decision-making. The scholars leading the movement had diverse views. The Olin Foundation transformed law and economics into an ultra ideological field dominated almost exclusively by passionate opponents of government “interference” in “free enterprise.” Olin specialized in creating well-funded positions in academia for scholars that had an “Austrian” approach to economics. Austrian economics has, generally, become more extreme since its formative years when Hayek warned that mixed economies (e.g., the U.S. and Europe) were inevitably consigned to the Road to Serfdom. Here is how the National Review praised the Olin’s takeover of the field:

Law and Economics: The John M. Olin Foundation has devoted more of its resources to studying how laws influence economic behavior than any other project. The law schools at Chicago, Harvard, Stanford, Virginia, and Yale all have law-and-economics programs named in honor of Olin. “You should not forget that without all the work in Law and Economics, a great part of which has been supported by the John M. Olin Foundation, it is doubtful whether the importance of my work would have been recognized,” said Ronald Coase, who won the 1991 Nobel Prize in economics.

In addition to these centers specializing in law and economics, Olin created scores of endowed chairs at a wide range of universities. Some of these are in economics departments and others are in law. Olin also indirectly funded the “boot camps” at which U.S. judges were taught Austrian economics as if it were undisputed science. The academic journals in law and economics are dominated by virulent opponents of regulation. The textbooks used to teach law and economics treat economic theory as having demonstrated conclusively the folly of most government actions purportedly designed to help the public. (I say “purportedly” because Austrians almost always claim that the government intervention was really designed to benefit a special interest rather than a substantial portion of the public.)

Here are two examples that illustrate how false, but so influential and harmful these Austrian nostrums have become through teaching falsified economics to thousands of lawyers. Austrian law and economics is based on suppositions that have long been known to be false. Dickens famously had Mr. Bumble (in Oliver Twist) respond to being informed that the law supposed him to be responsible for his wife’s behavior by remarking that if the law supposed such an absurdity then “the law is a ass.” The dominant law and economics text on corporate law for years was by Easterbrook and Fischel. Judge Easterbrook is a colleague of Judge Posner on the 7th Circuit and Fischel was for a time Dean of the University of Chicago’s law school. They assert that “a rule against fraud is not an essential or even necessarily an important ingredient of securities markets” (1991: 283). Their book was written after Professor Fischel, as a consultant to three of the most notorious control frauds of the 1980s, tried out their theories in the real world – and found that they failed catastrophically. Fischel praised the worst frauds. Fischel & Easterbrook did not disclose to their readers that their theories were falsified in the real world. Note how extreme their claim was, the utter certainty of the claim, and the lack of any data supporting the claim – a claim they knew to be false. The taught students that, in the context of securities, we did not need:

1. Any laws against securities fraud
2. The FBI and the Department of Justice
3. The SEC
4. Any rules against fraud
5. Any ability to bring civil suits

Fraud is impossible because securities markets are “efficient” and act as if they were guided by an “invisible hand.” Markets cannot be efficient if there is accounting control fraud, so we know (on the basis of circular reasoning) that securities fraud cannot exist. Indeed, when Easterbrook and Fischel try to explain why the securities markets automatically exclude frauds their faith-based logic becomes even more humorous. They claim that honest securities issuers send one or more of three “signals” of honesty to guide investors to purchase their securities – and that only honest firms can send any of these three signals.

1. Hire a top tier audit firm
2. Have their CEO own a substantial amount of stock in the company
3. Cause their firm to have extreme leverage

In reality, accounting control frauds “mimic” each of these signals and each signal aids their frauds. Easterbrook and Fischel’s ideas are not merely wholly ineffective against accounting control fraud – they are outright criminogenic. That is why Fischel praised the real world accounting frauds when he was a consultant. Each of the three massive accounting control frauds that Fischel praised sent each of these three signals – and they sent them years before Easterbrook and Fischel wrote their book and made claims they had seen repeatedly falsified by Fischel’s fraudulent clients without warning their readers.
Note the continuing damage that these three law and economics dogmas about “signaling” honesty had in the current crisis. Regulators continued to treat professionals as if they were “independent” and provided expert judgments on which regulators should rely. Basel II, for example, reduced capital requirements dramatically if the rating agencies gave a high rating to a toxic mortgage derivative. Economists, criminologists, and reality had long falsified the claim but theoclassical law and economics never challenges its foundational dogmas.

Easterbrook provided a classic example of faith-based law and economics’ misplaced faith in private professionals in a decision that prompted Robert Prentice’s wonderful article: The Case of the Irrational Accountant: A Behavioral Insight into Securities Fraud Litigation (2000). The plaintiff alleged that he was the victim of a securities fraud that the outside auditor had aided. Easterbrook’s opinion stated that the plaintiff should not be allowed to engage in discovery designed to support this claim because it would be “irrational” for an audit firm to aid a securities fraud. Easterbrook’s logic is so irrational on so many different levels that it proved a treasure trove for Professor Prentice. In the interest of space, consider only four aspects of why Easterbrook’s logic fails. First, Easterbrook is the one who co-authored the textbook claiming that serious securities fraud cannot occur. That makes him someone that cannot admit that fraud exists. He certainly doesn’t want plaintiffs finding facts demonstrating fraud. Second, the same textbook claimed that only honest corporations could hire a prestigious audit firm. He premised this (long falsified) dogma on the claim that it would be irrational for an audit firm to give a clean opinion to a control fraud. If the plaintiff had been allowed discovery and demonstrated the falsity of this dogma it would falsify Easterbrook’s entire thesis. Third, theoclassical economics rests on even more fundamental dogmas – economic actors are supposed to act rationally and almost entirely to maximize their self-interest. Empirically, even economists have long known what non-economists have always known – these dogmas are often false. Why should a plaintiff not be permitted to discover evidence that accountants act irrationally? Fourth, Easterbrook assumes away reality even if we assume rational behavior. The “auditor” acts through humans called audit partners. Audit partners gain income, power, and status within the firm primarily by bringing in large clients. Accounting control frauds understand this and select audit partners that will give them clean opinions. They also put prospective audit partners in competition with each other to intensify the “Gresham’s” dynamic that turns market forces perverse and causes bad ethics to drive good ethics out of the profession. Top economists had explained why this dynamic explained why S&L accounting control frauds had consistently hired top tier audit firms and been able to get clean opinions from them despite the fact that their financial statements were fraudulent.

As James Pierce, Executive Director of the National Commission on Financial Institution Reform, Recovery and Enforcement (NCFIRRE) explained:

Accounting abuses also provided the ultimate perverse incentive: it paid to seek out bad loans because only those who had no intention of repaying would be willing to offer the high loan fees and interest required for the best looting. It was rational for operators to drive their institutions ever deeper into insolvency as they looted them.

The National Commission on Financial Institution Reform Recovery and Enforcement (NCFIRRE) (1993), reported on the causes of the S&L debacle. It documented the distinctive pattern of business practices that lenders typically employ to optimize accounting control fraud.

The typical large failure was a stockholder-owned, state-chartered institution in Texas or California where regulation and supervision were most lax…. [It] had grown at an extremely rapid rate, achieving high concentrations of assets in risky ventures…. [E]very accounting trick available was used to make the institution look profitable, safe, and solvent. Evidence of fraud was invariably present as was the ability of the operators to “milk” the organization through high dividends and salaries, bonuses, perks and other means.

The top tier audit firms knew that the “typical large failure” “invariably” involved fraud by senior S&L executives, who used “every accounting trick available” in order to create fictional income in order to aid the executives’ looting of the S&L. These lenders followed a distinctive pattern – deliberately making bad loans – that was rational only for accounting control frauds. The unique pattern that optimized fraudulent accounting income was simple for an auditor to spot. The S&L accounting control frauds always hired top tier audit firms and virtually always succeeded in getting clean opinions for fraudulent financial statements. That was supposed to be impossible under Easterbrook and Fischel’s theories. NCFIRRE explained the “agency” problem that Easterbrook and Fischel missed.

[A]busive operators of S&L[s] sought out compliant and cooperative accountants. The result was a sort of “Gresham’s Law” in which the bad professionals forced out the good.

Theoclassical law and economics scholars continued to chant the second signaling dogma – though falsified throughout the S&L debacle and Enron era accounting control frauds – throughout the nonprime mortgage era. They asserted endlessly that modern executive compensation “aligns” the interests of the CEO with the shareholders’ interests. The reality was that it frequently magnified the long-standing misalignment of those interests. That is the key point of Akerlof & Romer’s classic article – the CEO profits by using accounting fraud to loot the bank that he controls. He arranges his executive compensation to be extremely large and based primarily on short-term reported accounting profits. Akerlof and Romer explain why accounting fraud is a “sure thing”— mathematically guaranteed to report extreme (albeit fictional) profit in the short-term. The combination of accounting control fraud (“blessed” by a top tier audit firm’s clean opinion) and deliberately misaligned (anti) “performance pay” is that the CEO is guaranteed to become wealthy – immediately. Moreover, by using seemingly normal executive compensation bonuses to become wealthy he coverts large amounts of firm assets to his personal benefit while minimizing the risk of prosecution. The result of a strategy that employs deliberate adverse selection in lending is typically a bankruptcy that wipes out the shareholders. No greater misalignment of the interests of the CEO and shareholders is possible than that caused by modern CEO compensation. Modern executive and professional compensation are often criminogenic, yet theoclassical economists strive even now to preserve the ability of CEOs to loot through perverse executive compensation.

The third “signaling” dogma, however, is never discussed today by theoclassical law and economics scholars. The Austrians generally ignore the endemic accounting control fraud (their heroes have always been business cowboys) in their explanation of why we suffer recurrent, intensifying financial crises. The Austrians love to blame the Federal Reserve and “easy money” for producing low interest rates. The Austrians claim this led to excessive leverage, and blame the global crisis on extreme leverage. It is inconvenient to this new meme to recall that the extreme law and economics scholars used to light candles to leverage and chant its praises as a unique signal of honesty. Accounting control frauds do optimize fictional accounting income by engaging in extreme leverage. The leverage is a tactic of the accounting control frauds that drive modern crises, not the cause of the crisis. Because accounting control fraud produces exceptional reported income it is easy for the frauds to borrow enormous amounts (lenders virtually break down the frauds’ doors in their eagerness to lend). The more money an accounting control fraud borrows, the greater the sums the CEO can loot.

Michael Milken was the original high priest of the extreme leverage dogma and the claim that it signaled honesty (Fischel was his acolyte). Milken was, of course, an expert at signaling honesty while practicing control fraud. His time in prison only increased his hate for U.S. government “interference” in “free markets.” The Milken Institute, therefore, now commissions articles about the ongoing crisis that emphasize (in huge fonts):

From Main Street to Wall Street, one common thread runs through all facets of this story: excessive leverage.

http://www.milkeninstitute.org/pdf/Riseandfallexcerpt.pdf (p. 9)

That’s right – the fraud whose entire junk bond business model at Drexel Burnham Lambert rested on the dogma that corporations had too much capital and needed to massively increase their leverage (e.g., through LBOs) is now running an institute whose scholars claim that (far lesser) leverage that modern U.S. banks employ is the primary cause of global catastrophe. Of course, there’s no mea culpa by Milken admitting that his earlier dogma was false.

The fact that, empirically, accounting control fraud is a severe problem is no barrier to theoclassical law and economics ignoring control fraud. I invite readers who have taken law and economics and corporate law classes to inform me whether their textbooks discussed Akerlof and Romer’s article: Looting: The Economic Underworld of Bankruptcy for Profit. Akerlof was awarded the economics version of the Nobel Prize in 2001 and Romer is also a brilliant economist. Neither Easterbrook nor Fischel is an economist. Akerlof and Romer’s article explains how the managers that control a firm use accounting fraud to create a “sure thing” of fictional profits. The managers get rich, the firm dies. Akerlof & Romer provide theory, data, and real world examples. The lawyers that seek jobs at the financial regulatory agencies are the lawyers most likely to have taken law and economics and corporate law courses in which Easterbrook & Fischel’s claims were treated as objective science. In my experience, it is vanishingly rare for them to even be aware of Akerlof & Romer’s work or the work of white-collar criminologists documenting and explaining accounting control fraud.

When regulators believe that control fraud is impossible – they make control fraud certain by eviscerating regulation and supervision. The most infamous recent example of this is Alan Greenspan (like Fischel, a former consultant to the most infamous S&L control fraud – Charles Keating’s Lincoln Savings). Greenspan refused to believe that fraud could occur in financial markets. He refused to take any effective regulatory steps against what the FBI had warned him (in 2004) was an “epidemic” of mortgage fraud even though they correctly predicted that it would cause a “crisis.” The Fed had unique regulatory authority under HOEPA to regulate all mortgage lenders.

Law and economics has, for over two decades, been dominated by theorclassical economic dogmas that have proved false. These dogmas are premised on an ideological hate for regulation – even by democratic governments. The Olin Foundation did not buy the souls of the economists and lawyers to whom it provided fellowships and endowed chairs. It simply selected true believers for its largess. It knew how desperately eager universities were to raise funds. There are now tens of thousands of law and economics graduates that have taken a class in theoclassical law and economics. They were taught that theoclassical economic assertions (often falsified decades ago) were objective facts devoid of ideological content. They have been taught that economics has proven that regulation is unnecessary, hopeless, and harmful. Some students accept this dogma as revealed truth, but many reject it. (If your goal as a professor is to indoctrinate students you should prepare for a life of disappointment.) Few economics, business school, or law students have been introduced to effective regulation or economic/finance theories that have proven to have predictive strength. It is the non-ideologues we need to reach and inform them about the reality-based alternative to the faith-based version of economics they were taught.

What to Make of Banks’ Hesitance to Lend to Environmentally Dubious Projects

The New York Times reports on a welcome development: some banks are getting cold feet about lending to projects that are legal but still produce environmental damage:

After years of legal entanglements arising from environmental messes and increased scrutiny of banks that finance the dirtiest industries, several large commercial lenders are taking a stand on industry practices that they regard as risky to their reputations and bottom lines.

The article does note that in some cases, there may be less to this than meets the eye. Some banks may simply be using good citizenship as a cover for exiting businesses in which they are not competitive. Although the article emphasizes pressures applied by various environmental groups on a wide range of issues, this does not seem a sufficient proximate cause.

It seems instead that the banks in question are recognizing that the lines are shifting in this area and that concerns about global warming and resource scarcity mean the odds are high that taxes or more restrictive regulations may be imposed that could have a significantly detrimental impact on the profit of companies that engage in questionable practices (the Times story clearly mentions the financial considerations but does not present them as central). Thus while the Times presents the banks as reluctant cops, it might be more accurate to see them as leading indicators, since they have the most to lose if wrong footed by changes in government policies on environmental damage.

Thus the banks’ growing caution is a sign that more stringent environmental protection standards are indeed likely in the years to come

NYT Story on Wall Street’s Fallout with Obama Misses the Dead Bodies

Andrew Ross Sorkin has a rather curious piece up today at the New York Times in that it purports to explain why the banking industry is up in arms about Obama, yet buries and/or omits some key issues.

It’s pretty well known that big financial firms have been throwing their weight around, no doubt encouraged by how successful that strategy has been throughout Obama’s tenure. So throwing another tantrum might be a shrewd strategy. Sorkin reports:

Daniel S. Loeb, the hedge fund manager, was one of Barack Obama’s biggest backers in the 2008 presidential campaign…

So it came as quite a surprise on Friday, when Mr. Loeb sent a letter to his investors that sounded as if he were preparing to join Glenn Beck in Washington over the weekend.

“As every student of American history knows, this country’s core founding principles included nonpunitive taxation, constitutionally guaranteed protections against persecution of the minority and an inexorable right of self-determination,” he wrote. “Washington has taken actions over the past months, like the Goldman suit that seem designed to fracture the populace by pulling capital and power from the hands of some and putting it in the hands of others.”

So why this type of volte face? As Sorkin tells us:

Mr. Obama was viewed as a member of the elite, an Ivy League graduate (Columbia, class of ’83, the same as Mr. Loeb), president of The Harvard Law Review — he was supposed to be just like them. President Obama was the “intelligent” choice, the same way they felt about themselves. They say that they knew he would seek higher taxes and tighter regulation; that was O.K. What they say they did not realize was that they were going to be painted as villains.

Yves here. Please. Are you going to seriously tell me big financial players are up in arms because Team Obama occasionally calls them bad names? That explanation is so obviously bogus as to call for a look for the real reason. There’s a much more straightforward explanation, and it’s called “follow the money.”

The key omission from this story is the name Rahm Emanuel. Rahm, a former partner at Wasserstein Perella, was particularly effective at fundraising from private equity funds and hedge funds.

So re-read this key phrase: ” They say that they knew he would seek higher taxes and tighter regulation; that was O.K.” But what the article buries in plain sight is the fact that the plans to tax hedge and PE funds carried interest at ordinary income tax rates, rather than a preferential capital gains tax rates, has the 2 and 20 crowd seeing red. And in case you had any doubts, there was no justification for this special treatment in the first place. Loren Steffy of the Houston Chronicle noted (hat tip Independent Accountant) provides a deft skewering:

Dear IRS: Please note that beginning this year, I am no longer earning an income. From now on, I am compensated through what I like to call column interest. It isn’t pay. It’s a capital gain that I receive in exchange for providing about 2,000 words a week to this newspaper. Please lower my tax rate accordingly. hey, you can’t blame me for trying. After all, a similar strategy has worked for years for money managers at hedge funds and private equity firms. … The private investment community is decrying the move as a massive tax increase, is if oblivious to the fact that it’s enjoyed an unfair tax break for years. … Let’s set aside the rather silly notion of private equity as an engine of job creation–most buyouts result in big job cuts–and focus on the inequality. Private equity managers typically collect a 2 percent annual fee on assets in the fund, which is taxed as income. They also scoop up 20 percent of their funds’ annual profits, which is known as carried interest. … Profit-sharing plans for just about everyone else are taxed as income. … Tax law is a murky world, but one basic principle of our tax code is that people who perform similar jobs for similar pay should receive similar tax treatment. That’s not the case in the investment world.

Sorkin does mention Steve Schwarzman’s infamous outburst (“likened the administration’s plan for taxes on private equity to ‘when Hitler invaded Poland in 1939.’”) but does not indicate the fact that this is the major reason for the falling out among Obama’s former backers. It’s one thing to raise taxes generally, the big boys can stomach that. But it’s quite another to raise taxes in a way that targets them. (And note, by the way, that this measure failed, but the industry was still deeply offended at this show of disloyalty).

Similarly, Sorkin later argues for the reasonableness of the revolting businessmen:

Mr. Loeb’s views, irrespective of their validity, point to a bigger problem for the economy: If business leaders have a such a distrust of government, they won’t invest in the country. And perception is becoming reality.

Just last week, Paul S. Otellini, chief executive of Intel, said at a dinner at the Aspen Forum of the Technology Policy Institute that “the next big thing will not be invented here. Jobs will not be created here.”

Yves here. This is patently ridiculous and disingenuous. First, Sorkin chooses to overlook that Otellini’s comments about inventions and jobs is based on his throwing in his weight with the venture capital industry, which was one of the groups that fought the proposed taxes on carried interest. The argument, implicitly is that the VC industry would shrink or disappear were there no carried interest tax break, and that we’d therefore see much less new business formation.

Both those ideas are questionable. Yes, the VC business as it is currently constituted might shrink, but a lot of angel investors do deals as principals or with small syndicates. One can as easily argue with so many people now possessing Wall Street experience, we’d likely see capital move through new channels to small ventures.

But more important, the idea that VC is critical to new business growth is complete urban legend. Amar Bhide, in the first systematic study of successful new ventures, determined that VC contributes very little to the funding of new businesses, even the most successful ones (his proxy was the Inc. 500).

Second, the line that Sorkin parrots from big businesses, “Be nice to us or we’ll quit investing,” is also bunk. Guess what? As we’ve indicated, big businesses were net disinvesting even during the corporate-friendly Bush Administration. And to the extent they are leery of investing now, far and away the biggest reason is macro uncertainty. It’s awfully hard to plan if you aren’t sure whether the outlook is for inflation or deflation. But businesses will cavil like crazy about government intervention because it is one of the few variables they might be able to influence.

And it’s also remarkable that Sorkin can treat the self-serving and misleading canard, “We’re mad that Obama is treating us like bad guys” seriously. For anyone at the TBTF firms, it’s patent rubbish. The firms got overt and back door bailouts so they could shore up their equity capital, and what do they do? Pay a big chunk of government-provided largesse out to themselves in record 2009 bonuses. It’s one of the most blatant acts of looting on record, and the industry deserves every bit of scorn the authorities can muster dumped on its head.

Why Are NACA’s Innovative Mortgage Modification Marathons Below the Radar?

I’m a bit mystified, given the abject failure of various government-devised “save the mortgage borrower programs,” that the Neighborhood Assistance Corporation of America’s mortgage mod marathon’s aren’t getting more coverage, and that limited media attention may be contributing to falling turnouts at its events. It’s telling that a Google News search confirms that the best recent story on this US program comes in the UK’s Guardian:

… For five days, the Neighbourhood Assistance Corporation of America (Naca), a not-for-profit organisation, is working round the clock to help homeowners hang on to their houses. More than 12,000 people have signed up in advance and more than 20,000 are expected to turn up, travelling from as far afield as California, Georgia and Maryland….

Inside, hundreds of loan advisers sit behind trestle tables. They are colour-coded: Bank of America workers wear red, Citigroup are in blue and Wells Fargo are in black. Even the moribund government-supported refinancing giants Fannie Mae and Freddie Mac are here, but their budgets don’t run to natty coloured clothing.

Borrowers go through orientation and financial counselling sessions. Then, for the luckier applicants who can show a steady income, the loan advisers have the power to reduce interest rates or even write off a proportion of loans.

Yves here. What the Guardian does not state clearly enough is that NACA, working with borrowers, does the part that has been a stumbling block for servicers: it works through a borrower’s finances to determine viability on an individual basis. From NACA’s website:

NACA has developed the industry standard in utilizing technology for mortgage counseling, processing and underwriting. While other lenders employ software to underwrite loans using risk-based pricing that considers only the applicant’s credit score, debt ratios and loan-to-value, NACA utilizes customized, state-of-the-art technology which enables NACA to engage in character-based lending. NACA has developed a proprietary software system called NACA-Lynx™ that stores, manages, and manipulates the information and documentation necessary for NACA’s underwriting. This software allows for consideration of a Member’s overall circumstances and incorporates their own explanations of credit history in order to make a character judgment on their ability to make the mortgage payments. NACA-Lynx is a totally paperless mortgage counseling, processing and underwriting system. No other system exists that compares to the sophistication and comprehensive nature of the NACA-Lynx.

The NACA-Lynx is a web-based system. Thus, all of NACA’s offices are able to access the system via the NACA data center seven days a week, 24 hours a day with real-time updating. The data center is equipped with servers in a storage area network and utilizes off-site back-up and redundancies for all equipment. Each NACA staff person has a computer with a high speed processor, a multi-function scanner/printer/copier, and a large screen, high-resolution LCD monitor for easy viewing by both the staff person and the Member as the work is done in the NACA-Lynx.

A NACA staff person would scan the Member’s documents into the NACA-Lynx and return the original documents to the Member without NACA needing them or copies for its files. In addition, the Member can fax or e-mail their documents directly into NACA’s data storage using an individualized, dynamically generated NACA Cover Sheet bearing their unique ID number. Members fax their documents toll-free to NACA’s fax server at 1-877-FAX-NACA (1-877-329-6222). The Member’s ID is read by the fax server using optical character recognition software and then automatically routed into the Member’s pending file. A NACA staff person assigned to the file is notified of the incoming document via e-mail and transfers the document from pending status into the Member’s permanent file by reviewing the document and completing some basic data entry.

Florida, where an event is taking place ought to be ripe grounds for this sort of program, with the Mortgage Bankers Association reporting that one in nine homes in the state is at risk of foreclosure this summer. Yet participation at this event fell short of expectations despite being held in one of the mortgage crisis epicenters and being open to borrowers from all over the country. As the Palm Beach Post reports:

About 8,200 households had sought help from the Neighborhood Assistance Corp. of America through Monday afternoon, fewer than the non-profit group had expected.

NACA, which works with homeowners to get lower monthly mortgage payments through loan modifications, began 24-hour-a-day counseling sessions Friday morning at the Palm Beach County Convention Center.

The Boston-based company will be at the convention center until 8 p.m. today when it will end its second five-day visit to West Palm Beach.

About 24,000 people attended the first event in February, with 16,097 loans receiving a modification.

Yves here. As noted at the top of the post, this program seems to be very much underpublicized. I did find some reports in Florida papers, but virtually none outside the state. I’m wondering whether readers have any informed guesses as to whether the shortfall for the latest event was merely a one-off, a function of lack of press, or an indicator of borrower issues (inability to organize needed paperwork? proof that only a few are willing to expend effort to save a deeply underwater mortgage? general defeatism given all the deserved bad press about government mortgage mod programs?)

Links 8/30/10

Spinal Fusion Devices: What’s the FDA Hiding? Howard Brody (hat tip reader Francois T)

Japan resort draws men with virtual girlfriends PhysOrg

US colonel blasts PowerPoint bureaucracy in Afghan HQ The Register (hat tip reader John M)

How panhandlers use free credit cards The Star (hat tip reader John D)

Obama’s Old Deal Michael Hirsh, Newsweek

Free market has turned us into ‘Matrix’ drones Independent (hat tip reader John D)

China Defends Control of Rare Earth Exports as Move to Protect Environment Bloomberg. Reader John D notes that this is a tad Orwellian.

Corruption, institutions, and firm productivity Donato de Rosa, Nishaal Gooroochurn, Holger Görg, VoxEU

US consumers split into two camps Financial Times

Fed admits: Money is a spreadsheet Lambert Strether

The Age of Mammon Jim Quinn

Antidote du jour. What I should be doing:

Picture 3

Guest Post: Modern Monetary Theory — A Primer on the Operational Realities of the Monetary System

By Scott Fullwiler, Associate Professor of Economics at Wartburg College

At its core, there are two parts to Modern Monetary Theory (MMT). The first is a description of how the monetary system actually works, mostly focusing upon interactions between the central bank, the treasury, and the financial system, though this part also requires a very thorough understanding of the Minskyan-related literature of many MMT’ers (I note this because so many critics of MMT ignore or not aware of the vast MMT literature on financial instability and reforming the financial system). The second is a set of policy proposals that arise from this description and is largely outside the scope of this particular post but which can be found in any number of MMT publications and blogposts (and, again, including the sizeable MMT literature on reforming the financial system).

Of critical importance to most of MMT’s description of the monetary system is its elaboration of the system’s operational realities, which for MMT’ers generally means three things:

First is the accounting logic of real-world transactions. Any relevant theory simply must be consistent with real-world accounting as a very basic criteria, and furthermore it is just this sort of base level understanding of accounting that is quite often absent from economic theories and how both the public and policymakers discuss and understand economics. In other words, our focus on accounting is anything but trivial in the current environment—it’s like the adage about being able to crawl before you walk, and as such it’s no wonder that the economics profession as a whole continues to trip over itself when it comes to understanding the monetary system.

Every transaction in a real-world economy affects financial statements of those engaged, and if an economic theory or a posited model is not consistent with how real-world financial statements are affected, then the theory is inapplicable. A typical example used by MMT’ers is a framework used in mainstream economics, the so-called loanable funds market. It posits a demand for loanable funds and a supply of loanable funds available for the macroeconomy, and contains classic supply-demand curve assumptions from goods markets, thaT higher prices (in this case interest rates) will elicit more “supply” (as in investors will divert more funds from other uses, such as risky venture investments, and make them available for lending). This model is simply inapplicable to our current monetary system in which empirical studies have demonstrated that banks create loans “out of thin air” without the requirement of prior reserve balances or deposits to “fund” the loan’s creation. Completely contrary to the loanable funds model, in fact, the vast majority of bank liabilities have been created by banks simply growing their balance sheets through loans and asset purchases. Similarly, there are macroeconomic accounting identities, such as the often-cited sector financial balances equation in which the domestic private sector’s net saving of financial assets is by definition equal to the government sector’s deficit and the current account balance (see here, here, and here for further discussion). MMT’ers understand very well that an accurate understanding of accounting is not in itself a theory.

The second part of operational realities is the tactical logic for operations necessary to achieve particular, fundamental ends given a particular monetary regime. Different monetary regimes have different operational realities—the currency issuer has a different operational reality from currency users; a central bank under a gold standard has different operational realities than a central bank under flexible exchange rates. The tactical logic of operations as employed by MMT’ers is (a) general, in the sense that the purpose is to consider a “pure” fiat system under flexible exchange rates, or a state government that is a currency user, and so forth—in a general sense, not specifically referring to any particular nation or state, and (b) particularly concerned with a hierarchy of authority and thus a hierarchy of “money”.

Regarding (a), for example, it is recognized that under a monetary regime other than gold standards or currency boards, the central bank is able to expand its balance sheet to enable smooth functioning of the retail and wholesale payments systems. Even in this case, though, the operational logic of interbank markets means that for the central bank to achieve its target rate in the absence of interest on reserves at the target rate, it must offset any changes occurring to its own balance sheet (i.e., an increase in currency that by accounting identity drains bank reserve accounts) that are inconsistent with banks’ desired reserve holdings at the central bank’s target rate. As for (b), it is recognized that different monetary regimes leave institutions occupying different spaces within the hierarchy of money—a currency-issuer government under flexible exchange rates sits at the top of the hierarchy, whereas under a gold standard or a currency union its place would be lower in the hierarchy.

The third aspect of operational realities is what is not possible given the accounting and the tactical logic. A good example here is the traditional money multiplier model that assumes central banks target reserve levels or the monetary base in order to target a monetary aggregate via a money multiplier. But the money multiplier gets both the accounting logic and the tactical logic of the monetary system wrong. For the former, as noted above, loans create deposits and the creation of more bank liabilities does not require that banks hold more reserve balances; banks do use reserve balances to settle payments and meet reserve requirements, but the quantity of reserve balances held for these purposes is mostly unrelated to growth in monetary aggregates. For the latter, absent interest on reserves at the target rate, a central bank would not be able to achieve its target rate if it employed the money multiplier model and tried to directly target reserves (and, by extension, the monetary base, as again according to tactical logic of the monetary system the currency component of the monetary base is set by the public’s portfolio preferences). Instead of the money multiplier, a proper understanding of the operational realities of the monetary system demonstrates that central banks—as monopoly suppliers of reserve balances to the banking system—must set an interest rate target (or, in the case of the Fed during 1979-1982, an operating range for the target rate) but can only directly target the quantity of reserves if the target rate is set equal to the central bank’s remuneration rate on reserves.

While there is over 20 years of MMT literature published in books, refereed journals, and in working papers available all over cyberspace (though most can be found at CFEPS, CofFEE, the Levy Institute, and MoslerEconomics) it’s only recently that we began blogging, and it is clear that many commenters on MMT-related posts are largely unaware that this extensive literature exists and serves as the basis for our blogposts that are by necessity less detailed. Indeed, over the past 10-15 years, I have personally waded through all of the publications from various official sources on the (relevant-to-MMT aspects of the) monetary system’s functioning that I could get my hands on and have found nothing that is inconsistent with how MMT describes it. We have had numerous conversations with individuals responsible for Fed operations, Treasury operations, and relevant parts of the financial system, and cannot recall any significant disagreements there, as well. It is interesting to note that an increasing number of neoclassical economists are publishing research describing the monetary system in a manner consistent with MMT (without appropriate attribution, usually), though these descriptions have yet to make their way into neoclassical models of the macroeconomy.

Particularly where the operational realities of the Treasury’s actions are concerned, blogposts by MMT’ers can be met with dissenting comments. A good deal of this is because the MMT understanding of the operational realities of the monetary system is completely counter to that of the neoclassical economics that most learn. But another reason is that a number of people appear to confuse the MMT description of the operational realities of the monetary system with procedures self-imposed by existing laws and/or regulations.

A case in point is a paper by Stephanie Kelton titled “Can Taxes and Bonds Finance Government Spending?” This paper is a classic in the MMT literature first published in 1998. The main points of Kelton’s paper are entirely related to operational realities of the existing monetary system: (1) Given the accounting logic of the Fed’s balance sheet, changes to the Treasury’s account affect the quantity of reserve balances circulating—that is, government spending creates reserve balances, taxes and bond sales destroy them; (2) Given the tactical logic of the Fed’s operations to achieve an interest rate target, flows to/from the Treasury’s account must be offset; (3) Consistent with the tactical logic of the Fed’s operations, calls/adds to/from the Treasury’s tax and loan system are universally understood to be monetary operations to minimize the influence of flows to/from the Treasury’s account on the Fed’s operations—essentially reducing the complexity of the Fed’s daily operations, particularly given the Treasury’s assumed superior ability to forecast its own account balance; (4) Bond sales are much like calls from the tax and loan accounts—monetary operations—since if the Treasury doesn’t sell bonds, the Fed must to be able to hit its fed funds rate target; (5) Given the hierarchy of money, it is not the Treasury that needs the reserve balances to spend—indeed, as Kelton put it, the very act of paying taxes (when the taxpayer’s bank settles with the Treasury) or purchasing a Treasury security is also the “destruction” of reserve balances, while (6) the act of government spending is the creation of reserve balances.

Having said that, MMT’ers are keenly aware that governments can and do write laws that their treasuries’ operations be legally bound in certain ways. For instance, the Fed is constrained by law to only purchase Treasury securities in the “open market,” is thereby forbidden from directly lending or providing overdrafts to the Treasury. In other words, “specific” cases can and do differ from the “general” case MMT’ers describe for a sovereign currency issuer under flexible exchange rates in the sense that self-imposed constraints specify particular operations. But, this does not mean that the operational function of the Treasury’s bond sales to aid the Fed has changed—to the contrary, with or without legal prohibition of overdrafts for the Treasury’s account, either the Fed or Treasury must offset flows to/from the Treasury’s account to achieve the Fed’s target rate (with the caveat that interest on reserve balances can potentially eliminate this necessity).

The overarching point here is to recognize who sits at the top of the hierarchy of money for a given monetary regime. Since under flexible exchange rates it is the currency issuing government, self-imposed constraints are simply that—self-imposed and not operational. For MMT’ers, concerns that a nation cannot “afford” to put idle capacity to use through tax cuts or appropriately targeted spending (i.e., NOT bailouts of the financial system or pet political projects—MMT’ers dislike those as much as anyone) are akin to a person with his/her shoes tied together concerned that he/she can’t run. Indeed, it is the very fact that such self-imposed constraints can be and have been disregarded in the past when it has been deemed desirable (e.g., the law requiring that the Fed only purchase Treasury obligations in the open market has been periodically relaxed) that demonstrates who is in charge—as Marshall Auerback recently put it, particularly where fiscal actions, such as military appropriations in a time of war, are deemed important, “we don’t go to China to give them a line-item veto for what we can and can’t spend. We just spend the money.”

The self-imposed constraint for a sovereign currency issuer is thus clearly quite different from the constraints on, say, households or firms or even state governments, which truly do not operationally or otherwise have the ability to issue a non-convertible currency—these entities can most definitely find themselves in the metaphorical position of having their shoes tied together and no ability to run, or walk for that matter, as the constraints are obviously not merely self imposed. This is not the case for the sovereign-currency issuer—if it pretends that its self-imposed constraints are of the same character as operational constraints on households or state governments, the result can be involuntary unemployment, retirees below the poverty line, military defeat, and so forth. In other words, while the ability to “just spend the money” is recognized in times of war or when a financial bailout is deemed necessary (by politicians, at least), MMT’ers want it to be just as obvious when the issue at hand is involuntary unemployment, crumbling infrastructure, children or retirees living below the poverty line, a major city devastated by natural disaster, and so forth. Please note that this is not to say that such a government should always spend simply because it can operationally—that would be ridiculous—but, rather, that there is no such thing as it not being able to ”afford” to put idle capacity to work; the appropriate constraint to consider is whether there is idle capacity in the first place, while also recognizing the obvious point that not all fiscal actions are equally efficient.

This all leads me to the often noted MMT point that “spending comes before tax revenues are received or bond sales.” If one expands this a bit to include loans from the Fed, then this statement is absolutely correct in terms of the operational realities of the monetary system. That is, according to both the tactical and accounting logics, taxes credited to the Treasury’s account and the settlement of Treasury bond auctions can only occur via bank reserve accounts, while the original source of banks’ balances in their reserve accounts can only be previous government deficits (which are net credits reserve accounts) or loans from the Fed (repos, loans, purchases of private securities, or overdrafts—note that an outright purchase of a Treasury security by the Fed to add reserve balances requires a previous government deficit). Therefore, it very much is the operational reality that for taxes to be paid or bonds to be settled, there has to have been previous government spending or loans from the Fed to the non-government sector, and this is true whether or not the Fed is legally prohibited from providing overdrafts.

However, the statement that “deficits or Fed lending logically precede tax payments and bond sales” should not be interpreted as “MMT’ers think there is no legal obligation that the Treasury have balances in its account before it spends or are otherwise ignoring the existing law prohibiting Fed overdrafts for the Treasury.” As I noted above, it is clear that the Fed cannot legally provide overdrafts to the Treasury, and every MMT’er does in fact understand this—the key is to understand what “deficits or Fed lending logically precede tax payments and bond sales” does and does not mean. That is, when MMT’ers say the latter, they are effectively saying “deficits or Fed loans logically precede taxation and bond sales as an operational reality of the monetary system” (the general case), and this and the statement “the Treasury must have positive balances in its account prior to spending under current law” (the specific case) are in fact not mutually exclusive. Both can be and are true—the government can and does require itself through its own self-imposed constraint to obtain credits to its own account at the Fed that were created via previous deficits or Fed lending before it spends again.

Finally, to fully understand the operational realities associated with the Treasury’s account at the Fed, it must be recognized that the lowest rate the Treasury would reasonably expect to pay on the national debt in the case of overdrafts on its account would be the Fed’s target rate. Operationally, the Fed would have to pay interest on reserve balances at its target rate or otherwise offer its own time deposits at competitive rates in line with the current and anticipated target rates to drain the reserve balances and achieve its target rate (in the case that the remuneration rate on reserve balances is below the target rate or even zero), both of which reduce the Fed’s profits returned to the Treasury and act functionally like debt service for the Treasury. The situation is unchanged even if the Treasury deficit spends via a “helicopter drop” of pure cash or coins, since the private sector will deposit the vast majority in banking accounts, and banks will return excess vault cash to the Fed in exchange for reserve balances.

One can then think of three different degrees or “forms” (to borrow the taxonomy used by financial economists in describing the efficient markets hypothesis) related to deficits and interest on the national debt for a currency issuer under flexible exchange rates. The “strong form” deficits would be where the Treasury has an overdraft or similar at the Fed and interest on the national debt is essentially at the Fed’s target rate or on average a bit higher if the Fed issues time deposits to drain reserve balances. While the “strong form” is operationally “pure,” it is again obviously not current law in the US. The “semi-strong form” deficits would be where the Treasury is not provided with overdrafts and must issue its own securities to have positive balances in its account before spending again while the securities issued—given their zero-default-risk that results from operational realities and the fact that any “constraint” on the Treasury is self-imposed—mostly arbitrage with the Fed’s target (for short-term Treasuries) and the expected target rate (for longer-term Treasuries) aside from some technical effects (like convexity) and some demand/supply issues (like maturity and liquidity at different maturities). Examples of the “semi-strong form” would be here and here. The “weak-form” deficits would consider that bond markets might at some point choose to repudiate even a currency-issuer’s debt with zero default risk (the “semi-strong form” does, too, but presumes the effect is temporary as arbitrage relationships would over-rule at least in the medium-term), but recognizes that the Fed always has the ability to set the market rate on Treasuries as long as it is willing to buy all quantities offered at its bid price (and has no operational or even legal constraint for doing so). Examples would be the Fed’s “Operation Twist” or the Fed prior to the Treasury Accord, or in the non-currency issuer case, consider how the recent EMU crisis quickly faded once the ECB began purchasing the debt of troubled member nations.

All three forms, while different in degree, agree that the interest on the national debt for a sovereign currency issuer under flexible exchange rates is a policy variable—not a market-set rate—or at the very least could be if the government so desires. And note that this is the case whether or not the Treasury receives overdrafts at the Fed. In other words, since the outcome is roughly the same in all three cases, it really doesn’t matter if the Treasury receives overdrafts in its Fed account or not—if it can sell its debt at roughly the Fed’s target, then there is no economically meaningful difference from the Treasury’s perspective between the government enabling itself to obtain an overdraft and the government forbidding itself from doing so. That self-imposed “constraint” is really not a constraint at all even if it is never abandoned.

ProPublica Asserts “First” on CDO Manager Shenanigans When Bloomberg, Mason/Rosner, and This Blog Have Prior Reports

It’s often the travail of a blogger, and small media generally, to have its story picked up by bigger fry without acknowledgment. But it’s one thing when a writer suspects having made a contribution to another’s story (there is, after all, the possibility of parallel inquiries bearing fruit on different timetables); quite another to have firm grounds for knowing a journalist was aware of your work.

I’m of two minds in writing this post. ProPublica has gone to some lengths to publicize CDO abuses, which we have long considered to be central to the crisis, yet not to have gotten sufficient attention because, well, CDOs are hard. Complexity, opacity and leverage, branded as “innovation,” have served the financIal services industry well, often to the detriment of customers and taxpayers. Yet many accounts of the crisis, in classic drunk under the streetlight fashion, have tended to focus on phenomena that are comparatively easy to understand. So we and ProPublica are on the same side in this process, that of trying to unearth bad practices in the hopes of supporting other efforts to curb them.

But we are puzzled at how chary ProPublica is in giving credit to aligned efforts. This wouldn’t be so troublesome were they not making bold claims about their own work. Their latest release is on CDO managers, a topic which has come under increasing focus. Note the section we have highlighted from their latest piece:

A ProPublica analysis shows for the first time the extent to which banks — primarily Merrill Lynch, but also Citigroup, UBS and others — bought their own products and cranked up an assembly line that otherwise should have flagged.

“First time” is a strong claim. It can be read as referring narrowly to a the particular study commissioned by ProPublica. But the problem is that there are prior efforts, with real analytical underpinnings, that have covered this terrain.

Consider this section from a May 2007 paper by Joe Mason and Josh Rosner, “Where Did the Risk Go? How Misapplied Bond Ratings Cause Mortgage Backed Securities and Collateralized Debt Obligation Market Disruptionsm” an article we have pointed to repeatedly:

Without investors willing to purchase the last classes of securities – typically, about 10 percent of the securities sold – the prior classes bear the risk. If the prior classes are not willing to bear the risk, the other 90 percent of the mortgage pool cannot be funded, that is, the mortgage originator cannot sell the loans. Hence, the last classes of securities are providing about 10:1 leverage for the structure of RMBS, so that every dollar of lower-tranche RMBS supports about $10 of higher-tranche RMBS.

Specific types of CDOs have arisen that specialize in holding such risky classes of securities have become popular in recent years, providing a great deal of funding for lower-tranche RMBS at that 10:1 leverage ratio…. the 90 percent of the RMBS structure above the lower-tier (junior) tranches cannot be sold until those 10 percent lower-tier (junior) tranches are sold. Because the 90 percent of higher-tier (senior) securities in an RMBS cannot be sold without selling the 10 percent of lower-tier (junior) securities first, even a small decline in CDO funding of mezzanine RMBS investments relative to the total RMBS market can have a large effect on RMBS funding, and therefore consumer mortgage funding…

This early work admittedly does not provide a percentage estimate of RMBS sold to CDOs, but the flip side is that Mason and Rosner had found the dead body in the room, that CDOs were keeping the subprime market going and would be a crucial point of failure, BEFORE the CDO market had started to implode.

And in May of this year, Jody Shenn of Bloomberg came up more spadework on the role of CDO managers, focusing on three CDOs, Neo, 888, and Octonian underwritten by Merrill and managed by Harding, headed by Wing Chau. Harding was a de facto captive CDO manager of Merrill but was presented as independent. Note that ProPublica focuses on these same two deals in its account:

Neo CDO Ltd. was a complex construction. More than 40 percent of its holdings were slices of collateralized debt obligations sold by Merrill, according to Moody’s Investors Service and data compiled by Bloomberg. Many of those were CDOs made up of other CDOs backed by bonds linked to home loans. About one-sixth of Neo was invested in junk-rated debt….

Managers such as Chau were at the center of a financial machine that pumped out more than $200 billion of mortgage- linked CDOs in the months before the subprime crisis spread. They picked the securities that went into CDOs and held themselves out as independent agents. Now potential conflicts of interest and questions about what banks disclosed have drawn regulators’ attention….About two-thirds of his [Chau's] business came from Merrill, according to Bloomberg data.

Shenn’s article also discusses, with data, the troubling relationship between Merrill and Citigroup CDOs, in what appears to be mutual backscratching masked by complicit managers like Harding, another focus of the ProPublica story.

As we alluded at the outset, ProPublica cannot claim to be unaware of the work on CDO managers that Tom Adams has published on this blog. He had lunch with Jake Bernstein and Jesse Eisinger in April, the week after publishing a post entitled “The Myth of Insatiable Investor Demand.” The piece was in response to the testimony of Citigroup officials before the FCIC as they tried to excuse their failures by blaming continued investor demand for the CDOs. Despite the common perception in the mainstream media and the insistence of the Citi executives, third party investors were not demanding more CDOs. In reality much of the demand came from other CDOs the banks were creating and from the banks themselves. As a result, the meme of “investor demand” was an illusion, the same one noticed by Mason and Rosner in 2007, and the banks and CDO managers were clearly to blame for failing to police for deflating market well before it ultimately collapsed.

Not surprisingly, the lunch conversation included considerable discussion of the dubious role of CDO managers.

While we are pleased to see the depth of reporting that Pro Publica has dedicated to issues that we have long felt were poorly understood by regulators, law makers and the investing public, we are troubled by not simply a lack of attribution, but an effort to deny (the “first time” claim) the substantial efforts others have made on this topic. We’ve also found evidence of other patterns of collusion and market manipulation not covered in ProPublica’s piece. This matters because those reading ProPublic’s assertion of the definitiveness of its work might be dissuaded from looking for other reports on this topic.

We are hopeful that even though Goldman has settled with the SEC on the Abacus transaction, the ProPublica article, which is detailed and written to engage lay readers, will bring renewed interest among the mainstream media, regulators, lawmakers and even private litigants on the problematic practices of the banks and CDO managers. These are issues near and dear to our hearts. As we wrote,

[R]iskier and riskier loans were being originated at effectively lower costs for issuers with little outside feedback. In one big happy family among the mortgage issuers, CDO managers and CDO investors, there would have been little motivation to worry about increasing risk or wider spreads. They were all keen to keep the great fee machine rolling.

We remain puzzled as to why ProPublica seems loath to acknowledge aligned efforts, particularly when we are working towards the same objective. We commented on it regarding ProPublica’s Magnetar story, where they were presumably in the awkward position of having invested substantial effort in a story, then to have an independent party beat them to the punch by six weeks, and unearth critical details (the structure of the deals and most important, their systemic impact) which were absent from their investigation. We we far from the only parties to notice a repeat; we received sympathetic e-mails from journalists and readers, the funniest being from John C. Halasz, “You’ve been, er, retro-scooped once again.”

Giving credit to people who have made a contribution to your efforts is the norm in academia and blogging. Why are journalists, particularly ones with established reputations, so reluctant to do the same?

Why Germany’s Rebound Is Not Such Good News

Wolfgang Munchau has an intriguing piece at the Financial Times debunking the idea the Germany’s recent peppy growth numbers are as salutary as Mr. Market seems to believe.

Part of his message isn’t necessarily all that surprising, and comes towards the end of the article:

….it is important to keep some perspective and not draw false inferences from the 9 per cent annualised growth rate during the second quarter. If you look at the period since the beginning of the financial crisis, Germany’s economic performance has been dismal. If you compare levels of gross domestic product between Germany and the US since the crisis, you find the US significantly outperformed Germany during that period. That situation may still be reversed if the US were to go into a double-dip recession. But the best judgment we can make now is that of Christine Lagarde, the French finance minister, in her recent interview in the Financial Times: Germany is recovering faster this year because it contracted faster last year, when GDP fell by 5 per cent. So far, this looks like classic dead-cat bounce.

However, the early part of the article discusses in some detail the fact that Germany has been able to run what amounts to an undervalued currency within the Eurozone:

One of the weirder experiences for anyone who lives in the eurozone is a visit to a German supermarket. I had the pleasure the other day, and found the general price level there to be a little over half of what it is in Belgium, Italy or Spain. This, of course, is just an unscientific guess. I also found price differences of some 30 per cent when comparing certain categories of goods on various Ebay sites in the eurozone.

These differences go some way to explaining the eurozone’s divergent economic performance, and give a pointer as to what to expect in the future. The really intriguing aspect of the divergences is not how they happened, but why they are not correcting themselves. We know how they happened: Germany entered the eurozone at an uncompetitive exchange rate and embarked on a long period of wage moderation. Macroeconomists would say Germany benefited from a real devaluation against other members. But while real exchange rates tend to move around, one would not normally expect extreme misalignments to be persistent. In this case, one would expect Spanish and Italian consumers to abandon their expensive retail stores and swamp German internet sites with mail order purchases, especially for durable goods. Eventually there would be some price realignment.

It is not happening.

You would also expect some pressure for realignment from the labour market. As the German export sector returns to full capacity, one would expect wage costs to rise by more than the eurozone average.

This is not happening either.

Yves here. Memo to self: buy on Germany’s eBay to do your part to help correct intra-Eurozone imbalances.

In all seriousness, it hadn’t occurred to me, and I suspect that it hadn’t occurred to most Americans, that the Eurozone as a trade area is much less integrated than the US. While the US does have substantial wage differentials for the same job, they are explained to a considerable degree by taxes and differences in living costs. And tales of Poles migrating en masse to the UK would lead one to believe that labor mobility would lead to a reduction in wage disparities, which would cycle back to both production costs and consumer demand. But this process is more limited than one would think:

While adjustment of the product side is prevented by an imperfect single market, adjustment on the labour market side is prevented by a complete absence of market integration. You would expect German workers to seek higher wages outside the country. But this is not happening, as the European labour market remains almost perfectly fragmented. That means German wage moderation can persist uncorrected for a long time. Nominal wages are effectively frozen, and are set to rise by only small percentages in the next few years.

Munchau then returns to a crucial point: that Eurozone imbalances (meaning Germany running a persistent trade surplus with the rest of Europe, which in turn requires some countries to consume and borrow, will continue:

This will make the economic adjustment for Spain, Portugal or Greece even more difficult than it already is. Those persistent imbalances, much more than the build-up of debt, are my deep cause of concern about the long-term health of the eurozone.

But from a German perspective, this strategy boosts growth in the short term. It is, of course, a beggar-thy-neighbour strategy.

This is not pretty, and there appears to be no end in sight. Expect more Eurozone stresses.

Links 8/29/10

The Moneyless Man: How Did Mark Boyle Spend A Year Without Spending A Dollar? Huffington Post (hat tip reader Francois T)

Congress may sneak through Internet ‘kill switch’ in defense bill Raw Story

Test Failure Economic Policy Institute

Bankers Told Recovery May Be Slow New York Times

The Fed Is Still Clueless About Bubbles and So Is the WSJ Dean Baker

Have We Underestimated Chinese Consumption? Michael Pettis

At the heart of the matter Financial Times

The Case for Reviving Revenue Sharing New York Times

China Begs, Borrows, Steals American Know-How Peter Navarro, Bloomberg

The Billionaires Bankrolling the Tea Party Frank Rich, New York Times

Antidote du jour:
Picture 1

Japan’s Experience Suggests Quantitative Easing Helps Financial Institutions, Not Real Economy

A few days ago, we noted:

When an economy is very slack, cheaper money is not going to induce much in the way of real economy activity.

Unless you are a financial firm, the level of interest rates is a secondary or tertiary consideration in your decision to borrow. You will be interested in borrowing only if you first, perceive a business need (usually an opportunity). The next question is whether it can be addressed profitably, and the cost of funds is almost always not a significant % of total project costs (although availability of funding can be a big constraint)…..

So cheaper money will operate primarily via their impact on asset values. That of course helps financial firms, and perhaps the Fed hopes the wealth effect will induce more spending. But that’s been the movie of the last 20+ years, and Japan pre its crisis, of having the officialdom rely on asset price inflation to induce more consumer spending, and we know how both ended.

Tyler Cowen points to a Bank of Japan paper by Hiroshi Ugai, which looks at Japan’s experience with quantitative easing from 2001 to 2006. Key findings:

….these macroeconomic analyses verify that because of the QEP, the premiums on market funds raised by financial institutions carrying substantial non-performing loans (NPLs) shrank to the extent that they no longer reflected credit rating differentials. This observation implies that the QEP was effective in maintaining financial system stability and an accommodative monetary environment by removing financial institutions’ funding uncertainties, and by averting further deterioration of economic and price developments resulting from corporations’ uncertainty about future funding.

Granted the positive above effects of preventing further deterioration of the economy reviewed above, many of the macroeconomic analyses conclude that the QEP’s effects in raising aggregate demand and prices were limited. In particular, when verified empirically taking into account the fact that the monetary policy regime changed under the zero bound constraint of interest rates, the effects from increasing the monetary base were not detected or smaller, if anything, than during periods when there was no zero bound constraint.

Yves here This is an important conclusion, and is consistent with the warnings the Japanese gave to the US during the financial crisis, which were uncharacteristically blunt. Conventional wisdom here is that Japan’s fiscal and monetary stimulus during the bust was too slow in coming and not sufficiently large. The Japanese instead believe, strongly, that their policy mistake was not cleaning up the banks. As we’ve noted, that’s also consistent with an IMF study of 124 banking crises:

Existing empirical research has shown that providing assistance to banks and their borrowers can be counterproductive, resulting in increased losses to banks, which often abuse forbearance to take unproductive risks at government expense. The typical result of forbearance is a deeper hole in the net worth of banks, crippling tax burdens to finance bank bailouts, and even more severe credit supply contraction and economic decline than would have occurred in the absence of forbearance.

Cross-country analysis to date also shows that accommodative policy measures (such as substantial liquidity support, explicit government guarantee on financial institutions’ liabilities and forbearance from prudential regulations) tend to be fiscally costly and that these particular policies do not necessarily accelerate the speed of economic recovery.5 Of course, the caveat to these findings is that a counterfactual to the crisis resolution cannot be observed and therefore it is difficult to speculate how a crisis would unfold in absence of such policies. Better institutions are, however, uniformly positively associated with faster recovery.

But (to put it charitably) the Fed sees the world through a bank-centric lens, so surely what is good for its charges must be good for the rest of us, right? So if the economy continues to weaken, the odds that the Fed will resort to it as a remedy will rise, despite the evidence that it at best treats symptoms rather than the underlying pathology.

Why Basel III is No Magic Bullet

There’s been an interesting dialogue between Streetwise Professor and Deus ex Macchiato on the matter of the practical impact of the pending Basel III rules, which will rejigger, in a pretty significant way, bank capital requirements (see here and here for details). The reason Basel III matters is that the Treasury has been touting it as the remedy for all the things that didn’t get done in the financial reform hoopla: if the banks are forced to have “enough” capital (query what “enough”) is, and better liquidity buffers, the likelihood of a financial crisis will be lower.

As an motherhood and apple pie statement, it’s hard to argue with that sort of thing, but making it operational is quite another matter. And here’s where the chat between Streetwise and Deus comes in. Per Streetwise Professor:

Risk-based capital requirements are like a regime of price controls, in this instance, risk price controls. If some risks are mispriced, and particular, priced too low, all affected institutions face the same incentives to take on those particular risks. The more institutions that fall under the capital regime, the more institutions that will take on these underpriced risks. That’s why I am very leery of global capital regimes, a la Basel. If they screw up the prices–and screw them up they will, with metaphysical certainty–the effect of the perverse incentives will be global…

This is a story about relative prices. In a risk based capital regime, some risks are mispriced relative to others. Banks load up on those mispriced risks. Since all face the same distorted pricing signal, they tend to trade the same way. They held more capital than they were required to, but that provided a false sense of security because the required levels of capital did not accurately reflect the risks.

There is, in fact, dysfunction in the financial system. That dysfunction, in the first instance, is the result of the deadly combination of implicit and explicit guarantees that stoke moral hazard, and woefully inadequate and scarily expansive capital requirements that are intended to make it difficult for banks to exploit that moral hazard, but fail to do so.

Let’s examine this a bit further. It’s important to recognize that the mispricing of risk under Basel II was a significant contributor to the global financial crisis. Eurobanks, which were subject to Basel II rules as of 2006, entered the crisis with lower capital levels than their US counterparts. Moreover, many engaged in a particular form of capital arbitrage that played a direct role in stoking the credit bubble, which was holding the AAA rated tranches of CDOs and insuring them (usually in part) to further reduce the amount of capital they had to hold. So the concern is valid.

Even with the likely (in Streetwise’s view, inevitable) mispricing of risk, the impact might not be as significant as he contends if the capital levels for the underpriced risk was still high enough. In other words, I’m not certain I buy the strong form of the “crowded trades” argument, a risk based capital regimes is inherently flawed. And Streetwise effectively concedes that point:

The capital required against certain instruments (government debt being another example) was too small relative to the true risks of those instruments. So too many banks loaded up on them.

But from a practical standpoint, his concerns are valid. The unrecognized crowded trade problem only make matters worse. Even if the authorities were to come up with a sound program, the crowding in the strategies that were cheap on a relative basis would make them riskier, and hence the render the required capital levels insufficient.

Let’s face it, the notion that we are going to have adequate private sector equity in the banking system anytime soon, if ever, is a fantasy. The way that Fannie and Freddie have stepped in to become become virtually the only mortgage issuer/securitizer, with the obvious aim of propping up the housing market and bank balance sheets, is a highly visible example of the extent of back door support to undercapitalized banks. Team Obama is of course trying to divert public attention from the continuing high level of support and regulatory forbearance via its continued iMission Accomplished “Paid back the TARP” three card monte.

Richard Smith did a bit of quick and dirty math to determine what it would take to adequately capitalize the shadow banking system:

Let’s just ignore the liquidity issue for the moment, and ignore the variety of business models of the various kinds of shadow bank, and require the shadow banks to put up a not very demanding 5% capital cushion and regulate to that, somehow. Assume, for simplicity, that we want to keep all that lovely shadow banking activity going and that shadow banks’ assets are identical in size to their liabilities; that 5% capital cushion would then be 5% of $8-16Trn. That’s between $400Bn and $800Bn of capital to raise.

Or, perhaps more likely, our shadow banks take 50% losses on 15% of their loans that they never never want to do again (the CDO bonanza, etc), and then need 5% equity on the rest. That way our shadow banks would need $925-$1,850 billion in equity. Which is impressive, but fair enough: the traditional banking system has about $1.3Trn of equity, and we know the shadow banking system is the same size, or somewhat bigger, and more prone to runs. Why, pray, should it not at least be capitalized to the same level, either by new capital, or by shrinkage?

Yves here. It is politically unacceptable to make banks raise that much capital. Not only would the firms howl blood murder, but policymakers are unwilling to take the economic hit of a quick or even attenuated return to sounder practices. So we have state subsidies of various sorts like ZIRP standing in.

That further means we have a continuing moral hazard problem. Basel III can’t solve the problem because despite the officialdom’s fantasies to the contrary, they simply won’t get enough equity into the system. That might not be as terrible as it sound if the authorities were willing to admit that and were using other approaches to monitor and reduce risk, in particular, much more aggressive regulation, and far more intervention on pay practices.

In the stone ages of investment banking, when firms were partnerships, it would have been unheard of to take on a lot of moderately long-dated, risky, illiquid, bespoke, hard to value assets and fund them in short term where they’d be exposed to rollover risks. Similarly, in those days, the major players all held a lot more in capital than was required by regulators (reg cap was regarded as overly permissive but constraining in certain circumstances, so it still needed to be managed). Investment banks were cautious not only because the partners had unlimited liability (they could lose everything) but also because they most if not all of their wealth tied up in the firm and could access it only gradually after departing, as younger partners bought them out over time. That forced them to maintain modest lifestyles relative to their net worth and to be concerned about the long term viability of the franchise.

We have a massive agency problem in the financial services industry. The crisis was a textbook case of looting. The major firms are now more powerful by virtue of being bigger and fewer, and official denials to the contrary, are in a better position to loot than before. The belief that higher capital requirements can be the mainstay of solving this problem is wishful thinking.

Links 8/28/10

Apologies for thin links, need to be on a very early flight.

Scientist: World’s helium being squandered UPI (hat time reader John M)

Double strike ‘killed dinosaurs‘ BBC

Good Bernanke commentary. Mr. Market wants to believe:

El-Erian: How to read Bernanke’s speech FT Alphaville

Bernanke is neutral, with dovish tinges Gavyn Davies

Really What Bernanke Said Is That He Doesn’t Have What It Takes To Fix The Economy Joe Weisenthal

Driving Me Crazy Tim Duy

Widespread Fear Freezes Housing Market Joe Nocera, New York Times

GDP revised down Jim Hamilton, Econbrowser

What Banks Can Learn from VCs Paul Kedrosky

Antidote du jour:

Picture 21

What is the Proper Libertarian Response to Concentrated Corporate Power?

A question for readers: in many lines of commerce, large firms often enjoy significant cost and/or revenue advantages relative to smaller players. Over time, these industries tend to evolve to a format where many of the most successful enterprises are very large organizations. These firms typically wield considerable power relative to players smaller than they are, such as employees, suppliers, and customers, and often seek to influence governments. Moreover, many fields of enterprise have considerable barriers to entry, which further entrenches the position of powerful incumbents.

How do libertarians propose to respond to the power of large enterprises?

Summer Rerun: Rating Agencies Created Incentives to Issue Paper More Profitable for Them to Rate

This post first appeared on November 16, 2007

A colleague was so kind as to send me the text of a speech given at the Graham & Dodd breakfast a few weeks ago by David Einhorn, CEO of hedge fund Greenlight Capital.

The speech has gotten play only in some personal-investment-oriented blogs like Seeking Alpha and Naked Shorts. Even though they are fine sites, it’s nevertheless a shame the speech hasn’t gotten broader interest. First is that most of the commentary focused on the general thrust of his argument but failed to pass on key bits of information that are likely to be news to most readers. The second it that there is still a considerable gap between what market participants know compared to legislators, regulators, economists and commentators. Yet somehow the industry types get a serious hearing when they reach an audience (i.e., when they are lobbying), but when people with insight but no axe to grind have something to add to the debate, too often it gets short shrift.

It was sobering for me to learn a few things from the speech. On the one hand, as someone who is not in the marketplace (and lacks access to a Bloomberg terminal), I am in the same position as a journalist: I am only as good as my sources. But on the other, some of the things that I picked up seemed fundamental, yet I haven’t seen them either in the press or the academic articles I’ve read.

Einhorn tells us that the securitization process is flawed (“securitization is a mediocre idea” is the nicest thing he had to say about it) and that the rating agency role is in need of root and branch reform. The entire speech is very much worth reading, and his comments are pointed and insightful. However, he does not fully draw out the implications of what he found.

The rating agencies’ role was even more deeply compromised that most commentators recognize. Their practices made it cheaper to issue the very sort of paper that is was most profitable for them to rate. They did it by letting the creators and sellers of structured credit products play on the popular perception and regulatory fiction that all AAAs are created equal, when in fact, the more complicated the paper was (and therefore more costly to rate) the more risk it was allowed to carry in each rating class.

Some key observations:

The credit problems we have are experiencing are not the result of subprime contagion, but of charging too little for risk-bearing. There was concern in some quarters about systemically low credit spreads, yet participants were confident liquidity would always the abundant. Einhorn believes that the complacency about risk was at least partly due to the securitization process, in which most investors looked heavily to the ratings in their evaluation process.

But just as some animals are more equal than others, so to are ratings:

Consider municipal bonds. According to S&P’s long-term data the 10 year default rate on an A rated municipal bond is 1%, while a corporate bond’s default rate is 1.8%, and a CDO’s is 2.7%. An A rated muni has the same change of default as and AA/AA- rated corporate and a AA+ rated CDO. When municipal bonds default the expected recovery rate is 90% compared to 50% on corporates and CDOs.

This isn’t an accident. About a decade ago, Moody;s said, “No matter what types of instruments the ratings apply to, no mater where the issuer resides, and no matter what the currency or market in which the security is issued, Moody’s ratings are intended to have the same relative meaning in terms of expected credit loss.”

Without much fanfare, the rating agencies abandoned this process…..Instead, for each type of bond, they use a different rating scale with a different so-called “idealized default rates” for each rating. The idealized default rate for a municipal bond at a given rating is less than the idealized default rate for a corporate bond, which is less than the idealized default rate for an asset backed security which is less than the idealized default rate for a CDO….

Nomura Securities pointed out that hypothetically, if you took an AA+ rated asset backed security and repackaged it all by itself and called the repackaged instrument a CDO, it becomes AAA because the CDO has a higher idealized default rate than the asset backed security.

Einhorn points out that the rating agencies’ fees are correlated with their willingness to look the other way with credit losses. CDOs carry the highest fees, ABS next, and regular corporate ratings are cheaper still. But of course, the agencies will argue that the more complex structures are more labor intensive to rate and therefore warrant higher charges.

Regardless, this system, of higher idealized default rates for securitizations has the effect of promoting securitizations. And the higher idealized default rates promoted CDOs.

For a financial institution, the very fact that the loans with the same loss profile will get a higher rating in an ABS than if they sit on their balance sheet means that it is uneconomic for them to keep them on their balance sheet (note that this is independent of the traditional impetus for securitization, namely, the cost of deposit insurance). The rating agencies have stacked the deck via their rating process to make it even cheaper to securitize assets than it would be if investors knew the true exposure to loss.

Now mind you, we are NOT saying that securitization would not have happened without the rating agencies gaming the scorecard. Back in the early 1980s, when AAA still meant AAA, McKinsey was showing its banking clients charts illustrating how securtization had a significant cost advantage relative to traditional lending (message: investment banks are and will continue to eat your lunch). But the rating agencies’ actions played a significant role in the underpricing of risk, and almost certainly made the ABS and CDO markets larger than they would have been with proper risk measurement and disclosure.

A number of observers have criticized investors for being so dependent of rating agencies. Aside from regulatory requirements that mean many investors need to consider rating in their evaluation process, Einhorn gives us another reason: at least as far as structured credits were concerned, the rating agencies had far better information about the deal than end investors:

Have the rating agencies developed an expertise in analyzing these structures? Perhaps, but more pertinent, they are the only ones who can evaluate them, because they are the only ones with the detailed information about the structures. The underwriters give the rating agencies much more information that is contained in the prospectus. In their evaluation of corporate credits, rating agencies are exempt from regulation FD. This means that they can receive confidential information not available to other market participants. This is kind of like a confessional where the priest delivers a public opinion on the extent of your virtues or sins – and your spouse has to guess what a AAA or BBB means about your fidelity.

In the recent crisis, the rating agencies say they shouldn’t be held accountable for their opinions because they are…..nothing more than journalists engaged in free speech. What would it be called if you paid a leading publication to do a story on you and you could putt it before press if it were unflattering? Funny, that is not free speech but “for-profit speech.” According to the rating agency party line, if people disagree, they are free to ignore the ratings. However, a credit rating is not an ordinary opinion. It is a “special” opinion – an insider opinion, because it is based on a different information set. I can’t replicate a rating analysis because I am not privy to the information. Therefore, I am not on an equal footing to be able to decide whether I agree or disagree with a rating agency. Since they know more than I do, the presumption has to be to agree. The rating agencies are structurally set up to have “insider opinions.” They just don’t want legal liability for having issued conflicted and flawed insider opinions.

Incidentally, this lack of information has made it harder for the market to find a clearing price of distressed pieces of structured deals. Without enough information in the market – other than a credit rating – it is hard for informed buyers and sellers to know what to do, once the credit rating comes into doubt.

There is not justification in the credit markets for having the rating agencies have access to deal structure information that is kept secret from investors. The only party that appears to benefit is the investment banks, who might have some structuring tricks they’d like to keep secret from their competitors. By contrast, there is an argument for rating agencies and analysts having access to corporate information of a strategic nature that they would be loath to reveal publicly. But equity analysts lost their Reg FD exemption and the world did not fall apart. There is far less justification for a Reg FD exemption of any kind in the debt business. Einhorn argues that the information that rating agencies possess should be made public.

A final tidbit from Einhorn:

In early September, a senior Moody’s executive….at a small private dinner….said, “Moody’s would never lower the credit ratings of a financial guarantor, because that would put the guarantors out of business.”