Bill Black

 

Recent Posts by Bill Black

  • 2011 Will Bring More De facto Decriminalization of Elite Financial Fraud

    Dec 28, 2010Bill Black

    What’s coming in 2011?  We asked thought leaders to share their perspectives on the biggest challenges for the year ahead, along with the changes they’d like to see and the hopes they cherish. Our very own Bill Black takes a hard look at the criminal justice system -- and how financial fraudsters are beating it.

    What’s coming in 2011?  We asked thought leaders to share their perspectives on the biggest challenges for the year ahead, along with the changes they’d like to see and the hopes they cherish. Our very own Bill Black takes a hard look at the criminal justice system -- and how financial fraudsters are beating it.

    The role of the criminal justice system with regard to financial fraud by elite bankers in 2011 is likely to reprise its role last decade -- de facto decriminalization. The Galleon investigation of insider trading at hedge funds will take much of the FBI's and the Department of Justice's (DOJ) focus.

    The state attorneys general investigations of foreclosure fraud do focus on the major players such as the Bank of America (BoA), but they are unlikely to lead to criminal liability for any senior bank officials. It is most likely that they will lead to financial settlements that include new funding for loan modifications.

    The FBI and the DOJ remain unlikely to prosecute the elite bank officers that ran the enormous "accounting control frauds" that drove the financial crisis. While over 1000 elites were convicted of felonies arising from the savings and loan (S&L) debacle, there are no convictions of controlling officers of the large nonprime lenders. The only indictment of controlling officers of a far smaller nonprime lender arose not from an investigation of the nonprime loans but rather from the lender's alleged efforts to defraud the federal government's TARP bailout program.

    What has gone so catastrophically wrong with DOJ, and why has it continued so long? The fundamental flaw is that DOJ's senior leadership cannot conceive of elite bankers as criminals. On Huffington Post, David Heath writes:

    Benjamin Wagner, a U.S. Attorney who is actively prosecuting mortgage fraud cases in Sacramento, Calif., points out that banks lose money when a loan turns out to be fraudulent. An investor in loans who documents fraud can force a bank to buy the loan back. But convincing a jury that executives intended to make fraudulent loans, and thus should be held criminally responsible, may be too difficult of a hurdle for prosecutors. 'It doesn't make any sense to me that they would be deliberately defrauding themselves,' Wagner said."

    Mr. Wagner is confused by his own pronouns: "It doesn't make any sense to me that they would be deliberately defrauding themselves." This direct quotation needs to be read in conjunction with the author's description of his position: "banks lose money" when loans "turn out to be fraudulent." Wagner was responding to a question about control fraud -- frauds led by the person controlling the seemingly legitimate entity who uses it as a "weapon." The relevant "they" is the person looting the bank -- the CEO. The word "themselves" refers not to the CEO, but rather to the bank. The CEO is not looting the CEO; he is looting the bank's creditors and shareholders. Two titles capture this well known fraud dynamic. The Nobel laureate in economics, George Akerlof, and Paul Romer co-authored Looting: the Economic Underworld of Bankruptcy for Profit in 1993 and I wrote The Best Way to Rob a Bank is to Own One (2005). The CEO becomes wealthy by looting the bank. He uses accounting as his ammunition because, to quote Akerlof & Romer, it is "a sure thing." The firm fails (or in the modern era, is bailed out), but the CEO walks away wealthy.

    Here is the four-part recipe for maximizing fraudulent accounting income in the short-term:

    1. Grow extremely rapidly
    2. By making bad loans at high yields
    3. While employing extreme leverage, and
    4. Providing only minimal loss reserves

    A bank that follows this recipe is mathematically guaranteed to report record income in the near term. The first two ingredients in the recipe are linked. A bank in a reasonably competitive, mature market such as home mortgage lending cannot decide to grow extremely rapidly by making good loans. A bank can, however, guarantee its ability to grow rapidly -- and charge a premium yield -- if it lends to the tens of millions of people who cannot afford to own a home. Equally importantly, if many lenders follow the same recipe they will cause a financial bubble to hyper-inflate. Financial bubbles extend the lives of accounting control frauds by making it simple to refinance loans to those who cannot afford to purchase the asset. The longer that delinquencies and defaults can be delayed the more the CEO can loot the bank.

    Note that the same recipe that maximizes short-term fictional income in the near term maximizes real losses in the longer term. Mr. Wagner is unable to understand that accounting control fraud represents the ultimate "agency" problem -- the unfaithful agent (the CEO) enriches himself at the expense of the principals he is supposed to serve and the firm's creditors. Agency problems are well known to white-collar criminologists, economists, lawyers that practice corporate, securities, or criminal law, and financial regulators. Yes, accounting control fraud causes the bank to suffer huge losses. The loans don't "turn out to be fraudulent" -- they are fraudulent when made. The recognition of the losses is delayed when an epidemic of accounting control fraud hyper-inflates a bubble, but the bubble will increase the ultimate losses. Sacramento, California is one of the epicenters of the mortgage fraud that drove the financial crisis, so Mr. Wagner's lack of understanding of fraud mechanisms is particularly harmful.

    Financial regulators are essential to prevent this kind of error by senior prosecutors. The regulators have to serve as the Sherpas for the criminal justice system to succeed against epidemics of control fraud. The FBI cannot have hundreds of agents expert in many hundreds of industries. The regulators have to do the heavy investigative lifting. They have the expertise and greater staff resources. The regulators also have to serve as the guides. Their criminal referrals have to provide the roadmaps that allow the FBI to conduct successful investigations. The regulators played this role successfully at key times during the S&L debacle, filing thousands of criminal referrals that led to over 1000 priority felony convictions. During the current crisis the OCC and the OTS - combined - made zero criminal referrals. None of the federal regulatory agencies appear to have enforced the regulatory mandate that federally insured depositories file criminal referrals - and noncompliance with that requirement was and is the norm. There is no indication that the FBI has demanded that the regulators enforce their rules.

    Absent guidance and support from the regulators, the FBI turned to the worst conceivable source of guidance and support - the trade association of the "perps" -- the Mortgage Bankers Association (MBA). The MBA, predictably, defined its members as the victims of mortgage fraud. The MBA invented a nonsensical definition of mortgage fraud which made accounting control fraud impossible. All fraud supposedly fell into one of two categories: "fraud for housing" or "fraud for profit." The MBA members are, in fact, victims of accounting control fraud. The mortgage banks, however, do not set MBA policy. The CEOs of the mortgage banks determine MBA policy and they are not about to tell the FBI that they are the primary source of the epidemic of mortgage fraud. Similarly, they are not about to make criminal referrals, which might cause the FBI to investigate why some lenders made loans that were overwhelmingly fraudulent. MBA members virtually never made criminal referrals even though they made millions of fraudulent loans. Why don't the victims make criminal referrals and help the FBI protect them from the frauds?

    Why did an industry, home mortgage lending, which had traditionally been able to keep losses from all sources to roughly one percent suddenly begin to suffer 80-100 percent fraud incidence on "liar's" loans? Why would an honest mortgage lender make "liar's" loans knowing that doing so would produce intense "adverse selection" and a "negative expected value"? They would not do so. They were not mandated to do so by federal regulation or law. They were not encouraged to do so by federal regulation or law. They did so because their CEOs decided they would do so in order to maximize fictional income and real bonuses. The CEOs increased the number of liar's loans they made after they were warned by the FBI that there was an "epidemic" of mortgage fraud and the FBI predicted it would cause an "economic crisis" were it not contained. The CEOs increased their liar's loans after the MBA's own anti-fraud experts stated that they deserved the name "liar's" loans because they were pervasively fraudulent and after those experts said that "liar's" loans were "an open invitation to fraudsters." The industry's formal euphemisms for liar's loans were "alt-a" and "stated income" loans. None of this makes sense for honest CEOs.

    The federal regulators have not made any public study of liar's loans. The FDIC and OTS' joint data system on mortgages is an anti-study -- it uses a categorization system that ignores whether the loans were underwritten. This makes the data base useless for studying loans made without full underwriting -- the loans that were overwhelmingly fraudulent and drove the crisis. Credit Suisse reported that mortgage loans without full underwriting constituted 49% of all new originations in 2006. If that percentage is even in the ballpark it indicates that that there were millions of fraudulent loans originated in 2005-2007. It is appalling that the regulators are not studying the facts necessary to understand the crisis and hold the perpetrator accountable.

    Fortunately, the state attorneys general have studied these mechanisms and they have found that it was the lenders and their agents that overwhelmingly (1) prompted the false loan application data and (2) coerced appraisers to inflate market values. An honest lender would never engage in either practice or permit its agents to do so. The federal regulators, however, have spent their passion trying to preempt state efforts to protect borrowers. The federal regulators took no effective action in response to the State AGs' findings.

    The combined effect of these private sector, regulatory, and criminal justice failures has created a set of intellectual blinders that have caused DOJ to mischaracterize the nature of mortgage fraud. Attorney General Mukasey famously dismissed the epidemic of mortgage fraud as "white-collar street crime." He did so in the context of refusing to establish a national task force against mortgage fraud. A national task force is essential in this crisis because of the national lending scope of many of the worst accounting control frauds. Attorney General Holder has maintained Mukasey's passive approach to the elite frauds that drove the crisis.

    The U.S. needs to take three major steps to be effective against the epidemic of accounting control fraud. First, DOJ needs to realize that it is dealing with accounting control fraud. That task is not terribly difficult. The criminology, economics, and regulatory literature -- as well as the data on fraud and analytics are all readily available. The FBI must end its "partnership" with the MBA.

    Second, the regulators need new leadership picked for a track record of success as vigorous regulators and a willingness to hold elites accountable regardless of their political allies. The regulators need to make assisting prosecutions, and bringing civil and enforcement actions, against the senior officers that led the control frauds their top priority. The regulators need to make detailed criminal referrals, enforce vigorously the regulatory mandate that insured depositories file criminal referrals, and prioritize banks that made large numbers of nonprime loans but few criminal referrals. The regulators need to work with DOJ to prioritize the cases. In the S&L debacle we used a formal process to create our "Top 100" priority cases. The regulators need to investigate rigorously every large nonprime lending specialist by creating a comprehensive national data base. We have unique opportunities given the massive holding of nonprime paper by the Fed and Fannie and Freddie to create a reliable data base and use it to conduct reliable studies and investigations.

    Third, the regulators and the DOJ need to partner with the SEC and the state AGs to share data (where appropriate under Grand Jury rule 6e). The federal regulators need to end their unholy war against state regulatory efforts and the SEC needs to end its disdain for the state AGs. The SEC needs to clean up accounting and the Big Four audit firms. The bank control frauds' "weapon of choice" is accounting. The Big Four audit firms consistently gave clean opinions to even the most egregious frauds. Provisions for losses (ALLL) fell to farcical levels. Losses were not recognized. Clear evidence of endemic fraud was ignored.

    What are the prospects for these three vital changes occurring in 2011? They are poor. There is no evidence that any of the three changes is in process. The new House committee chairs have championed even weaker regulation and have not championed the prosecution of Wall Street elites.

    The media, however, has begun to pick up our warnings about the failure of the criminal justice response to the epidemic of fraud. Prominent economists, particularly Joseph Stiglitz and Alan Greenspan, have joined Akerlof, Romer, Galbraith,Wray, and Prasch in emphasizing the key role that elite fraud played in driving this crisis. Even Andrew Ross Sorkin, generally seen as an apologist for the Street's elites, has decried the lack of prosecutions.

    Our best bet is to continue to win the scholarly disputes and to continue to push media representatives to take fraud seriously. If the media demands for prosecution of the elite banking frauds expand there is a chance to create a bipartisan coalition in Congress and the administration supporting prosecutions. In the S&L debacle, Representative Annunzio was one of the leading opponents of reregulation and leading supporters of Charles Keating. After we brought several hundred successful prosecutions he began wearing a huge button: "Jail the S&L Crooks!" Bringing many hundreds of enforcement actions, civil suits, and prosecutions causes huge changes in the way a crisis is perceived. It makes tens of thousands of documents detailing the frauds public. It generates thousands of national and local news stories discussing the nature of the frauds and how wealthy the senior officers became through the frauds. All of this increases the saliency of fraud and increases demands for serious reforms, adequate resources for the regulators and criminal justice bodies, and makes clear that elite fraud poses a severe danger. Collectively, this creates the political space for real reform, vigorous regulators, and real prosecutors.

    Bill Black is a NewDeal2.0 braintruster, an associate professor of economics and law at the University of Missouri-Kansas City, a white-collar criminologist, a former senior financial regulator, and the author of The Best Way to Rob a Bank is to Own One.

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  • Spitzer & Black: Questions from the Goldman Scandal

    Apr 26, 2010Eliot SpitzerBill Black

    money-question-150Spitzer and Black argue that the Goldman revelations underscore the need for serious financial reform.

    money-question-150Spitzer and Black argue that the Goldman revelations underscore the need for serious financial reform.

    For those who have spent years investigating fraud, it was no surprise to hear that Goldman Sachs, the (self-described) jewel of Wall Street, is the latest firm to emerge from the financial crisis with tarnished reputation. According to a lawsuit brought by the Securities and Exchange Commission, Goldman misrepresented to its customers the quality of the toxic assets underlying a complex financial derivative known as a "synthetic collateralized debt obligation (CDO)."

    As you may now have heard, the story involves a pair of Paulsons. As CEO of Goldman, Hank Paulson oversaw the buying of large amounts of CDOs backed by largely fraudulent "liar's loans." When he became U.S. Treasury Secretary, he went on to launch a successful war against securities and banking regulation. Hank Paulson's successors at Goldman saw the writing on the wall and began to "short" CDOs. They realized that they had an unusual, brief window of opportunity to unload their losers on their customers. Being the very model of a modern investment banking firm, they thought that blowing up their customers would be fine sport.

    John Paulson (unrelated), who controls a large hedge fund, also wanted to short CDOs and he, too, recognized that there was a narrow window for doing so. The reason there was a profit opportunity was that the "market" for toxic mortgages only appeared to be a functioning market. It was, in reality, a massive bubble in which ratings and "market" prices were grotesquely inflated. The inflated prices were continuing only because the huge players knew that the prices and races were fictional and were covering it up through the financial equivalent of "don't ask; don't tell." According to the SEC complaint:

    In January 2007, a Paulson employee explained the company's view, saying that "rating agencies, CDO managers and underwriters have all the incentives to keep the game going, while 'real money' investors have neither the analytical tools nor the institutional framework to take action."

    We know from Bankruptcy Examiner Valukas' report on Lehman that the Federal Reserve knew that the "market" prices were delusional and refused to require entities like Lehman to recognize their losses on "liar's loans" for fear that it would expose the cover up of the losses. Valukas reports that Geithner explained to him when interviewed (p. 1502) that:

    The challenge for the Government, and for troubled firms like Lehman, was to reduce risk exposure, and the act of reducing risk by selling assets could result in "collateral damage" by demonstrating weakness and exposing "air" in the marks.

    Goldman and John Paulson worked together. One of the key things to understand about shorting is that it is extremely valuable if other major players short similar targets at the same time. By helping Paulson take advantage of Goldman's customers (the ones that lacked "the analytical tools" to avoid being hosed), Goldman not only earned a substantial fee, but also aided its overall strategy of shorting the toxic paper.

    Goldman created a deal in which John Paulson played a major role in selecting the toxic paper that would underlie the investment. He picked assets "most likely to fail - quickly" and studies show that he was particularly good at picking the losers. At this juncture, there is some dispute as to whether ACA was complicit with John Paulson and Goldman in picking losers (ACA initially invested in the synthetic CDO, but then transferred the risk of loss to German and English taxpayers).

    What isn't in dispute is that Goldman, ACA, and Paulson all failed to disclose to purchasers of the synthetic CDO that it was designed to be most likely to fail. The representation was the opposite: that the assets were picked by an independent entity with their interests at heart (ACA). Goldman claims it's a victim because while it intended to sell its entire position in the synthetic CDO to its customers, it was unable to sell a chunk. One feels the firm's pain. Goldman tried to blow up its customers to the tune of over $1 billion, but were unable to sell them the last $90 million in exposure.

    The Goldman scandal raises several important questions: Did John Paulson and ACA know that Goldman was making these false disclosures to the CDO purchasers? Did they "aid and abet" what the SEC alleges was Goldman's fraud? Why have there been no criminal charges? Why did the SEC only name a relatively low-level Goldman officer in its complaint? Where are the prosecutors?

    In a December New York Times op ed, we, along with Frank Partnoy, asked for the public disclosure of AIG emails and key documents so that we can investigate the deceptive practices exposed by the Goldman case. Goldman used AIG to provide the CDS on most of these synthetic CDO deals (though not the particular one that is the subject of the SEC complaint), and Hank Paulson used tax payer money to secretly bail out Goldman when AIG's deceptive practices drove it to failure.

    The SEC's Goldman fraud complaint points to fundamental problem in the financial sector that has been at the root of the financial crisis -- one that still exists today. The market is not transparent. It has been fraudulently manipulated to enrich managers. Investors lack clear information to make decisions about what they are buying. A continuing absence of real consumer protections makes people like those trying to obtain mortgages before the crash understand that they were, in many cases, being ripped off. According to internal Goldman Sachs e-mails, the company vice president, 31-year old Fabrice Tourre, did not really understand the complex deals he was making. And yet we note that many of these Goldman-style deals were "insured" by AIG. Without transparency, regulators cannot properly see all these kinds of deals in the aggregate. So they can neither stop the fraud nor prevent catastrophic results.

    We applaud the SEC lawsuit, but it will not solve the problem. Unless our financial system is reformed to put adequate protections and checks and balances in place, we can expect this kind of fraud to continue. Financial executives will continue to take risks they do not understand. Those who control the flow of capital will continue to churn out profits with socially disastrous consequences.

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  • Fraud and Failure: Bo Cutter's Indictment of the Finance Industry (Part 1)

    Dec 2, 2009Bill Black

    money-noose-150Bill Black explains how Bo Cutter's defense of Tim Geithner reveals the  fraud and failure that plagued the financial sector  long before the crisis.

    Bo Cutter has presented the best possible defense of Treasury Secretary Geithner.

    money-noose-150Bill Black explains how Bo Cutter's defense of Tim Geithner reveals the  fraud and failure that plagued the financial sector  long before the crisis.

    Bo Cutter has presented the best possible defense of Treasury Secretary Geithner.

    It is a remarkable defense because it is premised on a scathing indictment of Wall Street, theoclassical economics, modern finance, and the sycophants that the financial community installed as anti-regulators. Indeed, Bo's account is sometimes particularly credible because it is a confession. Bo was a managing partner of Warburg Pincus, a major global private equity firm and led President Obama's Office of Management and Budget (OMB) transition team. His defense of Geithner provides so rich a vein of ore that I will mine it in three installments: (1) Bo's indictment of the finance industry, Greenspan, Geithner, Paulson and Bernanke, (2) the martyrdom of Geithner, and (3) Geithner as Bo's Last Action Hero.

    Bo's explanation of Geithner's unique virtues begins the indictment.

    It comes down to this: the combination of brains, guts, calmness, and a willingness to act are virtually non-existent in Washington in any era, but particularly in this one. When you find the combination in a significant cabinet level job, you should value it.

    [T]his crisis was long in coming and it was a totally integrated failure of intellectual traditions, global macro-economic imbalances, government policy making, regulatory supervision, financial sector greed, incomprehensible boards of directors, absences without leave, and breath-taking management short-sightedness. No one and no institution put together an understanding of the set of factors that triggered this particular debacle. Tim [Geithner] is included in this "no one", but so is everyone else.

    I think the last two years have revealed the single largest failure of senior management in the financial sector, and of the board system in American history. I think I am correct in saying that there was not a single independent director in America who stood up on this issue. I do not understand why every board of every institution that failed was not asked to resign immediately.

    Bo's indictment is compelling, but his logic proves a deeper failure. There is no reason to restrict his indictment to "the last two years." The senior managers' and directors' failure did not begin with the recession. They failed throughout the expansion of the bubble, the backdating of stock options, after-hours trading, the collapse of the auction rate securities market, the "epidemic" of mortgage fraud by lenders, the massive scandals of the Enron and Worldcom era, and the savings and loan debacle. The financial sector has been in recurrent, intensifying scandals for decades.

    Bo's arguments require us to focus on at least the last four years (even if he continues to ignore the FBI's 1984 warning that the mortgage fraud "epidemic" would cause a crisis).

    In fact, by 2006 and early 2007 everyone thought we were headed to a cliff, but no one knew when or what the triggering mechanism would be. The capital market experts I was listening to all thought the banks were going crazy, and that the terms of major loans being offered by the banks were nuttiness of epic proportions.

    By early 2006 -- roughly four years ago -- "everyone" agreed "we were headed to a cliff" and that the banks' "major loans" were "nuttiness of epic proportions." An industry whose claimed expertise is the sophisticated evaluation of risk and value universally failed to come remotely close to valuing either. As Bo emphasizes, these were massive errors. These managers got immensely wealthy because -- not despite -- their willingness to make hundreds of thousands of loans that were certain to crash and burn as soon as the bubble ceased to inflate (which it did in 2006). Bo knows them, and Bo says that every independent (sic) director betrayed their fiduciary duties to shareholders. Every senior officer at the major banks failed. Bo portrays them as incompetents, cowards, and moral failures.

    Bo's indictment of his finance peers is even more severe than his portrayal. White-collar criminologists have shown that the lending pattern he describes ("nuttiness of epic proportions" when "everyone" agrees "we were headed to a cliff") demonstrates that the lenders are frauds that have produced an epidemic of accounting "control fraud" (where the persons controlling a seemingly legitimate organization use it as a "weapon"). The FBI began publicly warning of an "epidemic" of mortgage fraud in September 2004, with 80% of the losses occurring when lender personnel were involved in the fraud. The number of criminal referrals for mortgage fraud indicates an annual rate of mortgage fraud in the many hundreds of thousands. The recipe for a lender optimizing accounting control fraud is: (A) grow extremely rapidly, (B) make extremely bad loans, (C) have extreme leverage, and (D) provide minimal loss reserves. (The first two ingredients are related. In a mature product like home mortgages, the optimal way to grow extremely rapidly while increasing yield is to make loans to individuals that cannot repay the loans. The rapidly expanding bubble allows fraudulent lenders to postpone loss recognition by refinancing the bad loans.) Nonprime specialty lenders followed this recipe. The pattern produces guaranteed record accounting profits in the short-term. Because a significant number of lenders follow the same strategy, the result was a hyper-inflated financial bubble followed by an economic crisis.

    The accounting fraud optimization pattern that a lender follows, however, creates two weaknesses that we exploited as S&L regulators during the debacle. The lender must gut its loan underwriting standards and suborn its internal controls. Secured lenders must encourage inflated appraisals. Officers must be disciplined for rejecting bad loans and given bonuses for making bad loans. No honest lender would follow such suicidal practices. Bank examiners can easily, quickly, and precisely identify these perversions of honest, normal underwriting practices. We made closing such lenders our top priority -- while they were still reporting record profits and minimal losses (See: The Best Way to Rob a Bank is to Own One). The economists and lawyers thought that this proved we were insane because they were clueless about accounting fraud. The second weakness is that optimizing accounting fraud requires extremely rapid growth. This provided a quick screening device for identifying likely frauds and a means to force their rapid collapse -- by restricting their growth. Regulators could have targeted these same weaknesses and contained the ongoing crisis. Instead, despite the FBI's early warnings about the fraud epidemic, they functioned as anti-regulators. The FBI has put the matter starkly: it is "irresponsible" to purport to explain the crisis without discussing fraud.

    This post originally appeared on New Economic Perspectives.

    Roosevelt Institute Braintruster William K. Black is an Associate Professor of Economics and Law at the University of Missouri-Kansas City. He is a white-collar criminologist and was a senior financial regulator. He is the author of The Best Way to Rob a Bank is to Own One.

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  • Why is Obama Championing Bush's Financial Wrecking Crew?

    Nov 23, 2009Bill Black

    wrecking-crew-150Bill Black lays out a near-term list of financial priorities. Item #1: Team Obama must be purged of the 'Wrecking Crew' who drove the economy over a cliff.

    wrecking-crew-150Bill Black lays out a near-term list of financial priorities. Item #1: Team Obama must be purged of the 'Wrecking Crew' who drove the economy over a cliff.

    Tom Frank's book, The Wrecking Crew explains how the Bush administration destroyed effective government and damaged our social fabric and our economy. The Obama administration has chosen to reward two of the worst leaders of Bush's crew -- Geithner and Bernanke - with promotion and reappointment. Embracing the Wrecking Crew's most destructive members has further damaged the economy and caused increasing political and moral injury to the administration.

    Last week was a bad one for Geithner and Bernanke. Senator Dodd said that Bernanke's confirmation was no longer a done deal. The House Financial Services Committee revolted against the administration, the Fed, and Chairman Barney Frank. It voted for a strong bill to audit the Fed. Senate Banking Chairman Schumer went to a conference at Columbia University -- where a generation of students salivated at the prospects of Wall Street wealth -- and was overwhelmed by an audience denouncing the continuing stranglehold of the finance industry over successive administrations and the Congress. Neither Barney's blarney nor Schumer's schmooze was any avail before an outraged public.

    The administration promptly secured a column in the Washington Post claiming that the effort to fire Geithner "buoy[ed]" him because, as the subtitle to the article explained: "Even ex-Bush aides sympathetic, sources say." The article didn't note that Geithner is an "ex-Bush" senior official who, with his fellow "ex-Bush aides" (particularly Bernanke and Paulson) produced a chain of disasters: the bubble, an "epidemic of mortgage fraud" by lenders, the Great Recession, and the scandalous TARP and AIG bailouts. Of course they're "sympathetic" to a fellow member of the Wrecking Crew that destroyed effective regulation and turned the nation over to Wall Street. The craziest part of the story is that the anonymous Obama administration flack that spread this anecdote believes that we should support Geithner because his fellow members of the Bush Wrecking Crew empathize with him because they, too, have been criticized for wrecking the economy.

    The Washington Post article then offers a metaphor that serves as an apology for the Bush Wrecking Crew. The metaphor is driving over a cliff: "'Secretary Geithner has helped steer the American economy back from the brink, and is now leading the effort on financial reform,' White House spokeswoman Jen Psaki said." Geithner pushed back against Republicans who questioned his performance, telling them, "you gave this president an economy falling off the cliff."

    You? How about we? Bush's financial Wrecking Crew "gave this president an economy falling off the cliff." Geithner was President of the Federal Reserve Bank of New York from October 23, 2003 until President Obama chose him as his Treasury Secretary. He was supposed to be the lead regulator of many of the largest bank holding companies. His failures as a regulator were a major cause of the "economy falling off the cliff." Bernanke held prominent positions in the Bush administration from 2002 to the end of the administration and failed as a regulator and economist. Geithner and Bernanke failed to regulate even after the FBI publicly warned in September 2004 that (1) there was an "epidemic" of mortgage fraud and (2) it would lead to a financial crisis if it were not contained. Their refusal to take responsibility for the harm they inflicted on our nation as leaders of Bush's financial Wrecking Crew adds to their unsuitability. Rewarding their perennial failures with a promotion and reappointment represents a dereliction of duty by the Obama administration.

    The administration apologists praise Geithner and Bernanke for "steer[ing] the American economy back from the brink." Greenspan, Paulson, Bernanke, and Geithner were the leaders of Bush's financial Wrecking Crew. They were the guys blinded by their pro-Wall Street ideology that drove the car 120 mph down an icy mountain road and lost control of it. They took us to the "brink" of running "off the cliff" and creating the Second Great Depression. The bizarre claim is that we should praise them because they, and Wall Street, only wrecked the economy -- they haven't (yet) utterly destroyed it. Under their metaphor, we're supposed to cheer Geithner and Bernanke because once they finally figured out that they were careening toward the cliff, they decided to sideswipe a row of trees in order to avoid going over the edge. They wrecked the car but they walked away from the crash without a scratch. If your teenager gets drunk, speeds, crashes into a school bus (injuring dozens of kids), and flips the Ford Focus -- but walks away from the crash -- you don't praise him, give him the keys to the family minivan, and have him drive the soccer team to practices. You take all the keys away from him and ground him.

    The Obama administration promoted Bush's architects of the financial disaster and demands that we hail them as heroes. President Bush was ridiculed for saying: "Brownie, you're doing a heck of a job." FEMA administrator Michael Brown stood by while Hurricane Katrina reduced a single large city to ruin. Geithner and Bernanke stood by while scores of large cities were devastated.

    I suggest that we will build on the momentum we've achieved on the Fed audit by making the following issues our near term financial priorities:

    1. Can the Wrecking Crew. Fire the senior leaders of Bush's and Clinton's financial Wrecking Crews and stop treating them as financial experts. President Obama should not reappoint Bernanke as Fed Chairman. He should dismiss Geithner and Summers and cease to take any advice from Rubin. Replace them with the Reconstruction Crew -- people with a track record of getting things right and being effective economists, regulators, and prosecutors. Members of Bush's financial Wrecking Crew run far too many regulatory agencies, often as "Actings." They can, and should, be replaced promptly.

    2. End "too big to fail." These banks are "systemically dangerous institutions" (SDIs). They should not be allowed to grow. They should be shrunk to the point that they no longer pose systemic risk, and they should be subject to vigorous regulation while shrinking. They are too big to manage and too big to regulate. They are ticking time bombs that will cause recurrent global crises as long as they are SDIs.

    3. More white-collar watchdogs. Adopt Representative Kaptur's proposal to provide the FBI with at least 1000 additional white-collar specialists. Senator Durbin and (then) Senator Obama made a similar proposal several years ago.

    4. No more executive compensation looting. End the perverse executive compensation systems that reward failure and fraud. The private sector has made compensation worse since the crisis. Modern executive compensation creates a virtually perfect crime -- "accounting control fraud" (looting a company for personal profit).  Until we fix the perverse incentives of executive compensation we will have recurrent epidemics of fraud and global financial crises.

    5. Kill TARP and PPIP. Use the funds to help honest homeowners that would otherwise lose their homes because of predatory loan terms.

    6. Make the Federal Reserve System public. It is a largely private structure that creates intense conflicts of interest and ensures that it is controlled by the systemically dangerous institutions. We have already decided that such a structure is inherently improper. The Federal Home Loan Bank System was set up along the same institutional lines and suffered from the same conflicts of interest. Congress ordered an end to these conflicts in the 1989 FIRREA legislation. It should end private control of the Fed.

    7. Defeat any proposal to make the Fed the "Uberregulator." The Fed, for inherent institutional reasons, is unsuited to be the "systemic risk regulator." The Fed has never cared about regulation. The Fed cares about monetary policy and (theoclassical) economic theory and research. Regulation is, at best, a tertiary concern. Its economists wrote frequently about systemic risk -- but missed the obvious, massive systemic risk of the financial bubble and the epidemic of accounting control fraud. Its policies intensified rather than restricting systemic risk. Theoclassical economists have no effective theories (or policies) to deal with bubbles or epidemics of accounting control fraud. Greenspan, Bernanke, and Geithner epitomize the Fed's inability to recognize or reduce systemic risk. Their policies consistently increased systemic risk. Greenspan didn't believe that the Fed should act against fraud. Geithner testified before Congress that he had never been a regulator (a true statement - but one that should have gotten him fired rather than promoted). Bernanke praised the subprime loans that caused the crisis and were so often fraudulent.

    8. Ensure a robust CFPA. Sever the Consumer Financial Product Agency portion from the broader (and deeply flawed) regulatory reform bills in the House and Senate and adopt it into law. Revise the broader bill to strip out its many anti-reform provisions.

    9. End the waste of long-term unemployment. Anyone able and willing to work should be employed by the government as an employer of last resort and should help repair our crumbling infrastructure. Paying people to do nothing or allowing them to become homeless (the status quo) is an insane system.

    10. Adopt a $250 billion revenue sharing program. American state and local governments are in economic crisis. They are slashing spending at the worst possible time when their services are most vital and when cutting spending is pro-cyclical and will delay our recovery from the Great Recession. Revenue sharing was a Republican initiative. Republicans and "Blue Dog" Democrats killed the revenue sharing provisions of the administration's proposed Stimulus bill. That was an enormous mistake. The federal government is not like a state government (or a household). It is a sovereign government with its own currency and a central bank. It can - and should - run large deficits during deep recessions, but the states and local governments cannot. Revenue sharing is the ideal answer to the crisis and it is an answer with an impeccable conservative pedigree. State and local governments should come together and demand a program to offset the state and local cutbacks - roughly $250 billion. (The Obama administration's claim that reducing the deficit should be a priority - at a time when unemployment has reached tragic levels - is economically illiterate. It repeats the error that FDR made when he listened to conservative economic advisors and slashed the budget deficit during the Great Depression - causing a surge in unemployment and the extension of the depression. The large federal deficits of World War II reversed the policies of his conservative economic advisors and ended the Great Depression.)

    Roosevelt Institute Braintruster William K. Black is an Associate Professor of Economics and Law at the University of Missouri-Kansas City. He is a white-collar criminologist and was a senior financial regulator. He is the author of The Best Way to Rob a Bank is to Own One.

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  • Animal House Rules: Treasury Proposes to Use DOUBLE SECRET PROBATION

    Nov 2, 2009Bill Black

    keg-party-150Countdown to the next crisis? Bill Black uncovers the dangerous fantasies lurking in the proposed bill to respond to systemically dangerous institutions -- 'ticking time bombs' waiting to explode.

    keg-party-150Countdown to the next crisis? Bill Black uncovers the dangerous fantasies lurking in the proposed bill to respond to systemically dangerous institutions -- 'ticking time bombs' waiting to explode.

    You can never compete with self-parody, and Treasury and the Fed have mastered the art. The proposed legislation to respond to systemically dangerous institutions (SDIs) reveals that the Fed and Treasury are sowing the seeds for the next crisis. But the bill is also wonderfully wacky. The core of the bill is based on the fantasy that the government can (and should) play by Animal House rules and create a secret list of banks that are on "DOUBLE SECRET PROBATION." In the movie, the Dean is enraged at the Deltas -- the fraternity so crazed that it is known as the "Animal House." His first instinct is to place them on probation.

    Greg Marmalard: But Delta's already on probation.

    Dean Vernon Wormer: They are? Well, as of this moment, they're on DOUBLE SECRET PROBATION!

    The Fed and the Treasury propose (1) to create a list of SDIs that (2) will be subject to "heightened prudential standards" and, (3) can receive special federal bailouts when they get in trouble. The bizarre clauses of this proposal are:

    (f) NO PUBLIC LIST OF IDENTIFIED COMPANIES. The Council and the Board may not publicly release a list of companies identified under this section.

    (b) CONFIDENTIALITY. The Committees of the Congress receiving the Council's report shall maintain the confidentiality of the identity of companies described in accordance with paragraph (a)(3) and the information relating to dispute resolutions described in accordance with paragraph (a)(4).

    I'll put aside for a later time discussing the obscenity of proposing that the American people be kept from learning which banks are SDIs and can secretly tap the U.S. Treasury and the Fed for unlimited funds. I'll also mention only in passing the hilarity of Congress proposing that we can successfully create a super secret society of those, including some members of Congress, who will know which banks are on the list - and will never leak.

    Here, I want to emphasize the investor. The drafters have forgotten that the SEC mandates the disclosure of material information to investors. The fact that a bank is on the secret list is extraordinarily important to investors. So, the bill as drafted would create a system in which the banking regulators and Congress must keep the DOUBLE SECRET PROBATION list secret -- but the banks must publicly disclose that they are on the list. Of course, it's possible that the Treasury and the Fed -- you remember, the folks that tell us constantly about their commitment to "transparency" -- are actually so insane that they will propose amending the securities disclosure laws and destroy the entire concept of mandating that publicly traded companies disclose material information to investors.

    Substantively, the proposed bill is harmful and disingenuous. It is harmful because (1) it proposes to allow SDIs to continue to operate even though the Treasury and Fed claim that the failure of any SDI is likely to cause a global economic crisis, (2) it would provide the Treasury and the Fed with unlimited authority to use public funds to bail out SDIs, and (3) it would spread rather than contain systemic risk. It is disingenuous in its elaborate provisions for "prompt corrective action" -- which current law mandates and Treasury and the Fed refuse to apply to SDIs -- and in its repeated assertion that Treasury and Fed would like to do the right things to deal with SDIs, but lack the statutory authority to do so.

    The Fed and Treasury purport to believe that if any of roughly 20 huge U.S. financial institutions were to fail, it would cause a global financial crisis. Let's assume that their fear is accurate. The essential response is to prevent institutions from posing such a systemic risk. No other response can work in the long run (and can work even in the short-run only if we are fantastically lucky). The SDIs are ticking time bombs, some of which have already exploded and helped produce the ongoing crisis. The solution to the problem is straightforward: (1) stop them from growing any larger, (2) shrink them to the point that they no longer pose systemic risk, (3) remove the perverse incentives caused by (deliberately) badly-designed executive compensation programs, (4) require them to review the underlying mortgage loan files (which they have never done), end their use of accounting gimmicks that hide their losses (which they all do) so that we can learn the true financial condition of these extraordinarily dangerous banks and require them to take prompt corrective action to resolve any problems , and (5) prevent them from investing in assets or engaging in lines of business that pose undue risks.

    The Fed and the Treasury and their sister agencies already have ample power to implement each of these five essential responses, but they are doing the opposite. The regulators have sold the largest failed banks to SDIs, causing several of them to grow rapidly. This policy causes SDIs to pose increasingly greater systemic risk. The regulators have not acted to stop perverse compensation systems. The current crisis did not begin a year ago with Lehman's collapse. Many of the large nonprime lending specialists began to fail in 2006 shortly after housing prices ceased rising rapidly. Well over three years later, only the Fed has even proposed to adopt a regulation with any restriction of executive compensation. (Seven SDIs that are recipients of TARP funds are temporarily subject to statutory rules on executive compensation.)

    There are no reports that any agency has ordered a bank to review the underlying loan files or purge the accounting gimmicks so that the management, regulators, and the public can determine the bank's true financial condition. The SDIs are proposing to pay billions of dollars of bonuses on the basis of fictional accounting "income" produced by their political muscle. The FDIC is further inflating this fictional income by encouraging banks to hide their losses on commercial real estate. This is madness. The agencies have allowed SDIs to continue to engage in unsafe lines of business and invest in assets that pose undue risks. The Treasury and the Fed want to recreate the secondary markets in nonprime loans that caused over a trillion dollars in losses and they support legislation that would continue to exempt virtually all of the most dangerous financial derivatives from meaningful federal regulation.

    Treasury and the Fed are playing by Animal House rules when they embrace accounting fraud and the recreation of the secondary market in nonprime mortgage paper as the solution to the crisis that accounting control fraud and that secondary market caused. Remember the portion of the movie where the frat brothers ruin Flounder's brother's (Fred's) car during a road trip?

    Otter: Flounder, you can't spend your whole life worrying about your mistakes! You [fouled] up - you trusted us! Hey, make the best of it! Maybe we can help.

    Flunder [crying]: That's easy for you to say! What am I going to tell Fred?

    Otter: I'll tell you what. We'll tell Fred you were doing a great job taking care of his car, but you parked it out back last night and in the morning, it was gone. We report it to the police. Your brother's insurance company buys him a new car. D-Day takes care of the wreck.

    Flounder: Will that work?

    Otter: Hey, it's gotta work better than the truth.

    Roosevelt Institute Braintruster William K. Black is an Associate Professor of Economics and Law at the University of Missouri-Kansas City. He is a white-collar criminologist and was a senior financial regulator. He is the author of The Best Way to Rob a Bank is to Own One.

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