• Restore the Role of States

    Oct 8, 2009

    alert-button-150The watering down of consumer protection laws over the last several years has not only hurt consumers, but harmed states' ability to respond to financial abuses in both the banking and the non-bank world.

    alert-button-150The watering down of consumer protection laws over the last several years has not only hurt consumers, but harmed states' ability to respond to financial abuses in both the banking and the non-bank world.

    To fix this problem, the Obama administration has proposed creating a Consumer Financial Protection Agency that would write and enforce rules to protect consumers from everything from subprime mortgages to risky credit cards. The trouble is that currently preemption laws allow national banks to follow only federal standards and to override state laws. That is why I wrote a white paper on preemption and regulatory reform for the National Consumer Law Center, where I am a managing attorney.

    Broad preemption of state law is a recent phenomenon; for most of the 150 years since national banks were created, they have complied with state law. For most of this nation's history, consumers have depended on states, not the federal government, to protect them. Even in the banking world, national banks were expected to comply with state law. Only in the last decade or so have federally-chartered depositories been able to ignore state laws with impunity. Restoring the states' role as "first responders" is an essential element of regulatory reform.

    The preemption of state consumer protection laws has harmed consumers and invited abuses. In the mortgage area preemption is a significant cause of the current crisis. In 2006, the peak year of irresponsible lending, national banks, federal thrifts, and their operating subsidiaries made 32% of subprime loans, 40% of Alt A loans, and 51% of interest-only and option ARM loans. A total of over $700 billion in risky loans were made by entities that states could not touch. States were also preempted from regulating any mortgage lender on the very terms that made many mortgages dangerous: balloon payments, negative amortization, variable rates, and other nontraditional terms.

    Credit cards have been no better. The abuses that eventually led to a federal crackdown - bait and switch rate increases, abusive fees, payment manipulations - were allowed to take off and grow due to preemption. And programs designed to induce overdraft fees, which federal regulators watched balloon into a $37.5 billion tax on the very consumers who need those funds the most, were created while federal regulators preempted state laws.

    Meanwhile, the explosion of unaffordable debt that has destroyed many families and the growth of destructive forms of predatory lending have their seeds in preemption and the race to the bottom that preemption triggered.

    Only states provide comprehensive consumer protection. Flexible state laws are critical when gaps in protection or new abuses emerge because states see abuses sooner, react more quickly, and can address local problems before they become national ones. States have the tools and the incentives to enforce their laws and can augment federal resources. At the same time, state laws provide the models for federal law. They are an essential element of our constitutional system of federalism. Exempting some entities from state laws leads to an uneven playing field and inconsistencies that are easily exploited.

    Preemption allows banks to cherry-pick those parts of state laws they need and ignore consumer protections in other parts of those same laws, which undermines our dual banking system. Contrary to the claims of bank lobbyists, restoring the role of states to protect individuals from banking and mortgage abuses will not impede nationwide commerce. Other nationwide corporations comply with state laws, and banks do in many areas. Banks tailor their products to many niche markets and can adapt to state variations. Minor differences do not prevent banks from marketing a standard product.

    Congress can adopt uniform national rules in particular areas, but state consumer protections should not be cleaved off with a meat-ax wholesale. The uniformity achieved by preemption comes at a heavy price. We have a choice: we can have uniformly weak protection, or vibrant consumer protection that uses the strengths of our system of federalism.

    Lauren Saunders is a managing attorney at the National Consumer Law Center.

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  • ND20 Alert: Braintruster Rob Johnson testifies today on derivatives reform

    Oct 7, 2009

    Today, the House  Financial Services Committee is having an important hearing on OCD derivatives. Rob johnson, Director of the Economic Policy Initiative for the Roosevelt Institute, is testifying on the question of systemic regulation of these tricky financial products.

    Today, the House  Financial Services Committee is having an important hearing on OCD derivatives. Rob johnson, Director of the Economic Policy Initiative for the Roosevelt Institute, is testifying on the question of systemic regulation of these tricky financial products. While many on the panel will testify to the impact of derivatives reform harming their business, Johnson will discuss the need to reduce the profitability of unregulated commerce to provide for a transparent and well-capitalized fiancial system.

    Why it matters: Derivatives reform is the key to too-big-to-fail policy. In Johnson's view, it is not possible to shut down a large, insolvent, entangled firm when officials do not know the pattern of, and value of exposures.

    Stay tuned for more ND20 updates.

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  • ND20 Alert: Sept. 9 Supreme Court hearing could give unprecedented power to Corporate America

    Sep 8, 2009

    While everybody is focused on healthcare, something sinister is brewing up in the nation's highest court. What's at stake? Oh, nothing really. Perhaps just democracy as we know it. 

    While everybody is focused on healthcare, something sinister is brewing up in the nation's highest court. What's at stake? Oh, nothing really. Perhaps just democracy as we know it. 

    Back in March, the Court heard arguments in the case of whether "Hillary: The Movie" -- a hatchet piece on the Clintons funded by a conservative group -- could be regulated as a campaign ad. Soon, the attention shifted from the film, and now, the Court could decide whether corporations and unions should be treated differently from individuals when it comes to campaign spending. 100-year-old restrictions on corporations, and 60+-year limits on unions may be tossed in the trashbin.

    Tomorrow, Supreme court justices will hit the bench to decide whether to overrule two prior decisions limiting how corporations and unions can take part in federal campaigns. As Robert Monks pointed out in a recent essay, this unprecedented expansion of corporate influence over American politics is judicial activism on a mind-boggling scale. "The conservative activists of the Roberts Court," writes Monks, "are poised to turn over the American elective process to the tender mercies of Corporate America."

    Justices Kennedy, Scalia, and Thomas have previously stated their desire to strike down prior laws as unconstitutional restrictions on free speech. Chief Justice Roberts and Justice Alito have also questioned the validity of campaign finance laws, citing their fear of government control over political speech. The hearing could completely transform the way political campaigns are conducted.

    In a fascinating twist, liberals have become split into two groups -- those who abhor governmental regulation of political speech (ACLU)  and those who believe that unlimited corporate spending is a threat to democracy (Brennan Center for Justice).

    Stay tuned for commentary from ND20 thought leaders on the hearing and the ongoing liberal debate.

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  • ND20 Exclusive Interview: Jim Chanos warned Brown, Geithner, and others about coming financial crash in 2007

    Sep 1, 2009

    alert-button-150They say they didn't see it coming. They say there was no way they could have known.

    But they were warned. And here's the proof.

    alert-button-150They say they didn't see it coming. They say there was no way they could have known.

    But they were warned. And here's the proof.

    On April 17, 2007, famed short-seller Jim Chanos and other hedge fund managers met under tight security at the World Bank in Washington for the G-8 meeting. Chanos and Paul Singer briefed prominent policy officials about the growing financial instability. They gave irrefutable evidence that a catastrophe was building. They told officials that banks that were about to sink the global economy. They called for decisive action.

    And they were ignored.

    Gordon Brown was there. His presence has sparked a recent uproar in the UK following a radio interview with Chanos. Timothy Geithner was also there. Gillian Tett's best-selling book Fool's Gold outlines the meeting and how Chanos's dire warnings left little impression on the powerful men in the room.

    Robert Johnson, Director the Economic Policy Initiative of the Roosevelt Institute, talks to Chanos about this meeting and its consequences. Complete transcript and audio available.

    Interview Highlights:

    Jim Chanos: ...If you recall, before April of '07 there were some very, very ominous cracks in the walls of finance that occurred. You remember that the Bear Stearns hedge fund blow up occurred in June. So that was still two months away. But we had had in the fall and winter of '06-'07 the first falterings of some U.S. non-bank financials in the subprime area, New Century and others, that had begun to stumble with large amounts of default in recent loans.

    If you recall the peak in loan issuance, I believe, was late-'05 and early-'06 for this area. And then you had in February, late-January and February of '07, HSBC, the big global banking giant, which had bought Household International, a U.S. subprime lender, began to - through experiencing severe deterioration in its U.S. subprime portfolio.

    So there was not just conjecture at this point. There was some sign posts along the road already. Finally, for anybody who was tracking it, the sort of artificial market indices that were set up to track these esoteric debt instruments like collateralized debt obligations, CDO's, and so on and so forth, had begun to crack pretty hard in February, March from par to somewhere, as I recall, par being 100, down to the high 70's or low 80's.

    So already a market indicator of subprime health had already become to deteriorate rather dramatically by the time this meeting occurred.

    Rob Johnson: And you also mentioned in other conversations we've had about this episode that SEC releases, the 10K reports, were indicating some very, very substantial vulnerability among the major financial institutions.

    Jim Chanos: Well, that's what got me very concerned. In the two week period between the end of March '07 and my presentation mid-April, my staff had begun to review the SEC 10K filings, which are the annual reports that companies file at the SEC.

    And for the very first time we were getting a glimpse under the hood like we never had. And which big banks and brokers were telling us how many of their financial assets that were securities were either Level 1, Level 2 or Level 3.

    Those numbers [for] Level 2 and Level 3 were off the charts when my staff looked at them in April of '07. And I think there was a growing sense on the street in that two week period among some reporters that were writing about it and other hedge fund managers that looked at the same things we looked at, that my God, these numbers were far worse than we thought, and the banks were far more leveraged to the most hard to value illiquid assets than we thought.

    Rob Johnson: We actually even saw, as the crisis unfolded, many of them used the mystery of Level 3 assets to mock up valuations to hide their losses elsewhere. I would say we really were in an area that was what you might call pregnant with the possibility of hiding things or misreporting things, but the overall context that you're describing is a system that's way overburdened and very, very vulnerable and potentially gonna drop a big, big bill on the taxpayers shoulders.

    Jim Chanos: ...The lessons that we thought we had learned in 2001 and 2002 from the Enron debacle, which led to Sarbanes-Oxley shortly thereafter, you know, less than three or four years later were being repeated in the banking sector. It's quite remarkable if you think about it.

    Rob Johnson: ...How did the G7 ministers at the time react to your presentation?

    Jim Chanos: Well, I'll preface it by saying that the other manager, Mr. Singer, went first, and I'm sort of glad he did because his firm was actively monitoring some of these esoteric instruments in his hedge fund.

    He traded in them. And his presentation involved the instruments themselves and what I - these structured finance products were sold as AAA safe securities to a large number of people because of their structure and because of the various natures of the accounting and the insurance behind them, which we now know in many cases was written by AIG, by the way.

    And that these were not AAA securities and that the toxic tranches were at this point almost worthless despite what banks might be carrying them on, and that if there's any more deterioration in the residential real estate market, which we now know, of course, there was, that large amounts of securities that people thought were going to be AAA were not going to be.

    And all the assumptions behind this giant structured finance system were suspect, and he gave some examples and then he referred to the HSBC, he referred to these indices cracking. So he sort of set the stage for my presentation which followed his. And mine simply was, "Well, if you believe Mr. Singer, and I do, the problem is not going to be with us, i.e. hedge funds. It's going to be with institutions that you already heavily regulate, the large banks and brokers. Because that's where this stuff resides."

    And I began to recount the numbers that we just talked about a few minutes ago in this call, the Level 2 and Level 3 assets to tangible equity, the stunning amounts of leverage involved in the system, the nature of the accounting of these pieces of paper that was highly subjective, the growth in those Level 2 and Level 3 assets in the past two years, and why this all could easily, if there was any distress in residential real estate or subprime spread to other areas, could cause a crack up in the world's largest financial institutions.

    And, you know, the numbers were what they were. They were irrefutable. So whether you agreed with the conclusion or not was a different matter, but they were what they were. And that's why I sounded the alarm on the banks and brokers. And, I, of course, indicated that as a result of our work we had gone short for our clients, the largest institutions, most of them anyway.

    So I made sure to obviously disclose that. But I felt that on the other hand, the public policy ramifications of pointing this out far dwarfed anything that was gonna happen to my fund or anybody else's for that matter. The fact we were looking at just a giant, giant canyon of capital losses.

    Rob Johnson: Let me, before we talk about the response of the officials, underscore what you just said. You would be viewed by a policymaker as someone who's earning their livelihood from your portfolio, and policymakers are skeptical of listing to market participants because they think the investor is trying to cajole them in a direction that enhances their returns.

    But in this case you're disclosing that you're short these institutions, and you're talking to them, warning them, in a way that could mitigate a crisis and diminish the returns that you would otherwise obtain.

    So in essence, you are talking about public policy here very distinctly from what would benefit you...

    Jim Chanos: I do have four children and I sometimes put other things beyond any financial return, and the size of this problem was so large that, you know, if I wasn't going to sound the alarm bells certainly I figured someone else would, and I was being asked by the U.S. government to come and give a presentation and give my thoughts freely and I took that seriously.

    I thought it was important if we had done this work that we pointed out at this point already some well respected members of the financial press. I'd already written columns about this Level 2, Level 3 assets relative to tangible equity. So it was, I felt, not the first, but it certainly I wasn't going to also abrogate my responsibility and not say anything. In fact, I thought it was that important.

    Rob Johnson: I'm just trying to underscore that they should not see your message as conflicted.

    Jim Chanos: Oh, if they had taken the right policy actions at that point I probably wouldn't have made near the amount of money that I made, nor would my clients. You're absolutely right about that.

    Rob Johnson: Let's talk about how people reacted to you then and then in the aftermath of the meeting. What - without picking on particular policymakers, what - how did they look at you? How did they react? Were they curious? Were they dismissive? How would you describe it?

    Jim Chanos: Well, there was a lot of sort of - you have to keep in mind this was Sunday afternoon. You're at the end of the conference. But I think we were seen probably as much as an annoyance as anything else from people who wanted to catch a plane or get home.

    But there was some uncomfortable paper shuffling. There was sort of, you know, that looking at the ceiling across the table. There was a bit of eye rolling. There's no doubt about that.

    And at the end of my talk the fellow running the meeting asked if there was any questions. There were literally no questions and at that point the Chair of the meeting said, "Well, that's all very interesting and now what do you think about insurance."

    And it was just that complete realization that we've got - it just didn't sink in, the import was not grasped, certainly by the Chair, that they were gonna move on to the next item on the agenda with nary a bit of discussion.

    And then shortly after the meeting ended, a few hours later, there were two central bankers, both EU central bankers who came up to me and with their assistants and we exchanged contact information, and both said they thought that my presentation was very interesting and if I had anything additional please send it to them, and to keep in touch and blah, blah, blah.

    And that was sort of it. I was thanked by the U.S. delegation and we went on our way. And both Paul Singer and I left the room sort of incredulous that the presentation...really elicited no official questions or comments.

    Rob Johnson: And let's take and now look at - we've had a crisis, we have many policy officials, including Gordon Brown, who will attest that there was no way they could have seen it coming, which I would say today's conversation contradicts rather violently.

    And now they've made a series of proposals. You have the G20 reports, the Financial Stability Forum, which is now called the Financial Stability Board, and others are going to meet more. You're going to appoint the Federal Reserve as the systemic regulator.

    It feels to me like we're kind of shuffling the deck chairs. It feels to me like the same people who ignored your presentation are the people who are trying to reassure the public that they have the expertise and if they just talk a little more on the phone or meet a little more frequently that somehow that's gonna solve the problem.

    Am I being too cynical?

    Jim Chanos: I don't... think you're being too cynical at all. The ability of these organizations to move quickly and consult each other is glacial. So in markets that move so quickly and deteriorate so rapidly, you know, the need to call a G20 staff meeting or, you know, convene boards and get everybody together and then, first of all, you know, agree on protocol, and then agree on the principals and then agree on steps. You know, by that time the target in question of their interest might be in smoking ruins.

    ...We're going to have this problem come up again and again, because, in fact, institutions like the large banks and brokers will do their best to both engage in regulatory capture and use whatever accounting rules are open to them legally to obfuscate any problem areas.

    We've seen this time and time again in the banking industry and the brokerage industry in the 20th Century. I see no reason why that won't continue.

    We've already seen a movement toward it in the move - the lobbying by the banks in the spring of '09, this year, to liberalize the mark-to-market rules and make more opaque balance sheets.

    You should think, if anything, we've learned to tighten up the accounting and to make things more transparent so that the Jim Chanos', the Paul Singer's, can make these warnings in the future and point these things out.

    Instead, they've made that job more difficult at the request of the banks. So you've already seen that this is not going to work.

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  • ND20 @netroots_nation kicks off

    Aug 13, 2009

    Just a reminder that we've got a high-powered panel at the Netroots Nation conference today.  Chris Hayes, Maya Rockeymoore and Rob Johnson are at this very moment discussing how to restructure the economy -- and our conventional economic thinking -- to get the country back on track.  You can follow the conversation on Twitter (we're @newdeal20), where Dan Ancona is live-tweeting the event for us.  (Thanks, Dan!)

    Just a reminder that we've got a high-powered panel at the Netroots Nation conference today.  Chris Hayes, Maya Rockeymoore and Rob Johnson are at this very moment discussing how to restructure the economy -- and our conventional economic thinking -- to get the country back on track.  You can follow the conversation on Twitter (we're @newdeal20), where Dan Ancona is live-tweeting the event for us.  (Thanks, Dan!)

    Be sure to send us your questions, on Twitter or in comments here.  We'll be there until 4:15 eastern time.  And thanks for contributing.

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  • Get your questions on the progressive agenda!

    Aug 12, 2009

    peopleWell, ours, anyway. ND20 is at Netroots Nation this week, with hundreds of other creative and devoted progressives brainstorming ways to use technology to advance progressive issues.

    peopleWell, ours, anyway. ND20 is at Netroots Nation this week, with hundreds of other creative and devoted progressives brainstorming ways to use technology to advance progressive issues.

    We need your input. Braintrusters Rob Johnson, Maya Rockeymoore and Chris Hayes are hosting "@FDR: Is there a new New Deal?" tomorrow at 3:00 p.m. If you can't be in Pittsburgh with us, you can follow our live tweeting of the panel. And if you have a question you'd like to pose, or a point you'd like to raise, you can let us now right now, in the comment section here.

    So what'll we be talking about?  Here's the panel description:

    "The current economic crisis makes clear the failures of the “Chicago School” of free market fundamentalism but has not yet illuminated another path forward—one that combines a concern for equity with a desire for growth and one that understands the role of government as not just facilitating markets but regulating them as well. Building on the work of the Roosevelt's Institute's website, NewDeal 2.0 (www.newdeal20.org), the goal of this panel is to further define the principles that should guide a new New Deal. Panelists will serve as a resource for attendees (and those who wish to follow along at home via Twitter), addressing their in-depth questions about the origins and manifestations of our current economic situation. Then, we’ll discuss new ideas for how we should be rebuilding the country's economic architecture in the wake of the crisis."

    And that "addressing in-depth questions about the origins...of our...situation" thing? We're serious about that.

    Fire away with your questions.

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