Wall Street Swindled Local Governments, Too. Here’s How They Can Get Their Money Back.

Sep 17, 2014Saqib Bhatti

Predatory lenders drove municipal governments and taxpayers into debt with risky interest rate swap deals that may have violated federal regulations.

The story of how Wall Street banks steered unsuspecting homebuyers towards complex mortgages with hidden risks and hidden costs has been well-documented. In fact, the typical sales pitch for adjustable-rate mortgages was premised on the false notion that home values never fall and that borrowers could refinance their loans before interest rates jumped.

Predatory lenders drove municipal governments and taxpayers into debt with risky interest rate swap deals that may have violated federal regulations.

The story of how Wall Street banks steered unsuspecting homebuyers towards complex mortgages with hidden risks and hidden costs has been well-documented. In fact, the typical sales pitch for adjustable-rate mortgages was premised on the false notion that home values never fall and that borrowers could refinance their loans before interest rates jumped.

Less widely understood is the fact that a very similar story played out with cities, states, and other municipal borrowers that were also steered into predatory interest rate swap deals riddled with hidden risks and hidden costs. Banks pitched these deals as a way for municipalities to save money on bond issuances: instead of issuing a traditional bond that had a fixed interest rate, they could take out a cheaper variable-rate bond that had an adjustable interest rate, but use a swap to protect against the risk of interest rate spikes.

Under this structure, municipalities made fixed-rate payments to banks on their swap deals, while the banks gave them back a variable-rate payment that was intended to offset the interest rate that the municipality had to pay its bondholders. The idea was that this would allow borrowers to get a “synthetic fixed rate” on their debt that was cheaper than what they would have to pay on a comparable conventional fixed-rate bond.

However, there were numerous risks embedded in these deals. For example:

  • The variable interest rate that the banks paid to the municipality could fall short of the rate that the municipality owed bondholders, creating a shortfall.
  • These deals contained many termination clauses that would allow the banks to cancel the deals and charge municipalities tens or even hundreds of millions in termination penalties.
  • Rather than rising, interest rates could crater, causing the net payments on the swap deals to skyrocket and leaving the municipalities unable to take advantage of the low-interest environment unless they terminated their swaps and paid hefty termination penalties.

Even though banks tried to downplay or dismiss these risks in order to push interest rate swaps, all of them materialized in the aftermath of the 2008 financial crisis:

  • When interest rates on a type of variable-rate bond known as an auction rate security shot up, the bank payments on the corresponding swaps could not cover those payments, and cities and states across the country were stuck paying double-digit interest rates to bondholders.
  • When Lehman Brothers filed for bankruptcy and defaulted on its swap payments with municipalities, it triggered termination clauses on the bank’s swaps. In an ironic twist, cities and states actually had to pay penalties to Lehman because of the way the termination clauses were written.
  • When the Federal Reserve slashed interest rates in response to the financial crash, it also drove down variable rates on swaps, causing the net payments on the swaps for cities and states to soar and preventing taxpayers from enjoying any of the benefits from the low rate environment.

As a result, municipalities across the country have been hit with large bills to Wall Street at the same time that they are trying to close record budget shortfalls amid the biggest economic downturn in 80 years. The Detroit Water and Sewage Department is shutting off water to families who have missed just a couple of payments on their water bill so that it can pay off more than $500 million in termination penalties on its swaps. The City of Chicago is now paying $72 million a year on its swaps as a result of the low interest rates, even as entire neighborhoods on the south and west sides of the city fall into disrepair. The school district in Chicago is paying another $36 million a year on swaps, while the Board of Education is invoking budget problems to justify the largest mass school closing in national history. In Wisconsin, the state is now paying $25 million a year on its swaps and making catastrophic cuts to state healthcare programs. These are just a few examples of a trend cropping up everywhere in the U.S.

It is no accident that the same communities that were disproportionately targeted for predatory mortgages are also bearing the brunt of these predatory municipal finance deals. Across the country, working class communities of color are disproportionately impacted by cuts to public services, and austerity measures serve to exacerbate the crisis in those communities in particular.

Luckily, there is something that public officials can do to stop the bleeding. Under Rule G-17 of the Municipal Securities Rulemaking Board (MSRB), a federal regulator charged with protecting the interests of municipal borrowers, banks that pitch deals to public officials must “deal fairly” with them. According to the MSRB, this means that they “must not misrepresent or omit the facts, risks, potential benefits, or other material information about municipal securities activities undertaken with the municipal issuer.” In other words, they must not downplay the risks associated with deals like interest rate swaps, and they must not mislead public officials about the likelihood of such risks materializing. The banks must ensure that public officials truly understand the risks of the deals they enter into.

This is a burden that was not met in the typical swap transaction. As a rule, bankers highlighted the upside and minimized the potential downside in pitching these deals. This was in violation of MSRB Rule G-17 and municipalities like Chicago and Detroit have legal recourse to potentially win back hundreds of millions from Wall Street. Cities, states, and other municipal borrowers can pursue these legal claims by filing for arbitration with the Financial Industry Regulatory Authority (FINRA).

The Baldwin County Sewer Service, a privatized utility in Alabama, successfully used a similar legal argument earlier this year to win back its swap payments and get out of its deals without any termination penalties. The total value of the award was approximately $10 million. The potential claims could be many magnitudes higher for cities and states that had significantly greater swap exposure.

However, officials in municipalities with swaps need to act fast, because time may be running out. FINRA has a six-year eligibility period on these claims. Because many of the risks associated with swaps materialized in October 2008, when interest rates plummeted as a result of the federal response to the financial crisis, it is possible that the clock could run out on these claims as early as October 2014. Public officials like Mayor Rahm Emanuel in Chicago and Governor Scott Walker in Wisconsin should act now to potentially recover millions for their constituents before it is too late.

Saqib Bhatti is a Fellow at the Roosevelt Institute and Director of the ReFund America Project.

Image via Thinkstock

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Daily Digest - September 16: It's Time to Rethink the Purpose of Corporations

Sep 16, 2014Rachel Goldfarb

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The Overpaid CEO (Democracy)

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Time Warner Cable Internet Outage Affects Millions (Vanity Fair)

Kia Makarechi speaks to Roosevelt Institute Fellow Susan Crawford, who says that lack of competition and oversight leads to problems like yesterday's Internet outage on the East Coast.

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The Sorry State of Bank Apologies (ProPublica)

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Caught on Tape: What Mitch McConnell Complained About to a Roomful of Billionaires (The Nation)

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Daily Digest - August 25: The Mortgage Crisis, Act 2

Aug 25, 2014Rachel Goldfarb

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You Thought the Mortgage Crisis Was Over? It's About to Flare Up Again (TNR)

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You Thought the Mortgage Crisis Was Over? It's About to Flare Up Again (TNR)

With a large number of mortgage relief measures scheduled to end in the coming year, David Dayen says that many foreclosures will seem as though they were only deferred from 2008.

Why the Robots Might Not Take Our Jobs After All: They Lack Common Sense (NYT)

Neil Irwin reports on MIT labor scholar David Autor's new paper, which argues that robots can't handle common-sense decision making, so they'll only be able to replace certain kinds of jobs.

  • Roosevelt Take: Autor presented a version of this scenario in his video speculation for the Next American Economy project.

Middle Class is Excluded from America's Economic 'Recovery' (The Guardian)

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Daily Digest - August 5: Basic Needs Shouldn't Need to Be Bought

Aug 5, 2014Rachel Goldfarb

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The Real Solution to Wealth Inequality (The Nation)

Click here to subscribe to Roosevelt First, our weekday morning email featuring the Daily Digest.

The Real Solution to Wealth Inequality (The Nation)

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A University President Gave up $90,000 to Give His Minimum Wage Workers a Raise (Vox)

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Will Syracuse Become New York's Second Economic Capital?

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Daily Digest - July 23: It's Been a Good Year for Financial Reform

Jul 23, 2014Rachel Goldfarb

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Ignore the Naysayers: Dodd-Frank Reforms Are Finally Paying Off (TNR)

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Ignore the Naysayers: Dodd-Frank Reforms Are Finally Paying Off (TNR)

The past year has seen important successes, like higher capital requirements, writes Roosevelt Institute Fellow Mike Konczal, and the next steps for financial reform are getting clearer.

We’re Arresting Poor Mothers for Our Own Failures (The Nation)

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Obama to Sign Bill Improving Worker Training (Time)

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Dr. Strangelove and the Halbig Decision

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What Will the American Economy Look Like 26 Years From Today?

Jul 21, 2014Bo Cutter

Earlier this summer, the Next American Economy project brought together 30 experts from various disciplines to envision tomorrow's economic and political challenges and develop today's solutions. Find out what they had to say.

Participants in our recent convening speculated:

Earlier this summer, the Next American Economy project brought together 30 experts from various disciplines to envision tomorrow's economic and political challenges and develop today's solutions. Find out what they had to say.

Participants in our recent convening speculated:

“The post-WWII model of full-time, permanent employment proved itself the historical aberration we predicted: in 2040, only 12 percent of the American workforce is directly employed by corporate enterprises or government departments, and the average length of time spent on any one job is under six months.”

“New platforms and services will spring up to solve the problems of the micro-gig economy using distributed, peer-to-peer models of social insurance that will be hyper-local, but not based on geography. They will be based on the micro-niche identities that we build online -- accountants for bacon. Latinos who play Dungeons & Dragons. What have you.”  

“In the late '20s, the Know Everything Party assumed their final national political victories of mandating every American household be limited to three robots, one 3D printer, and own a minimum of three guns would be enough to secede and be left alone. After 15 years of explosive growth in income and wealth inequality, unimaginable to us in 2014, it all came to a head in our second Civil War, or what historians are calling the Bloodless War.”

Guided by the belief that we are on the precipice of fundamental and lasting economic change, the Next American Economy project gathered a group of 30 academics, business leaders, organizers, and technologists, and asked them to envision the long-term economic and political future of the United States. We gave our participants free rein to be bold in their speculations – to deviate from data, the conventional wisdom, or even their own expert opinions. The goal was not to predict the future, but to debate a series of critical questions: (a) Are we at an inflection point in the nature of innovation and technological change? (b) How will the rise of cities change the geography of economic activity? (c) How will economic trends alter the nature of work and employment? (d) Is the trend of widening income inequality likely to continue or stagnate?

What followed was a series of prescient, thoughtful, and often hilarious three- to four-minute speculations on topics ranging from the gig economy to the future of finance, from imminent civil war to the transformation of Google into a car company, and many more. Each speculation on its own could foster a day of debate and a sea of responses. For this reason, we will release one video speculation a day for the next three weeks, starting with David Autor’s description of economic polarization.

Our recent meeting was a first step toward our broader goal of identifying the trends likely to shape the future in order to identify the policy interventions needed to ensure the best possible outcome. The group identified key topics for further investigation and also found some areas of broad consensus.

  • 79 percent of participants believe “technological change will persist and will be big enough to disrupt business-as-usual."

  • 42 percent believe “a new paradigm of work is emerging and will change the nature of jobs for a large percentage of the population” and an additional 29 percent believe “a new paradigm has already emerged and you East Coast intellectuals are way behind the times.”

  • A total of 74 percent believe that even if an entrepreneurship booms leads to productivity growth it will not lead to job creation.

  • Nearly half (48 percent) believe that if inequality trends continue, the political backlash will be so extreme that our current system will change drastically in the next 25 years.

You can learn more about our project and find our forthcoming research on our website.

Roosevelt Institute Senior Fellow Bo Cutter is Director of the Next American Economy project. He was formerly a managing partner of Warburg Pincus, a major global private equity firm, and served as the leader of President Obama’s Office of Management and Budget (OMB) transition team. He has also served in senior roles in the White Houses of two Democratic Presidents.

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Daily Digest - July 15: Privatization Gets Marked 'Return to Sender'

Jul 15, 2014Rachel Goldfarb

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Staples, Postal Service to End Plan for Mini Post Offices in Stores (WSJ)

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Staples, Postal Service to End Plan for Mini Post Offices in Stores (WSJ)

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Daily Digest - July 14: Local Actions Hold the Line for Labor

Jul 14, 2014Rachel Goldfarb

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Why Volkswagen Agreed to UAW Local at Its U.S. Plant (USA Today)

G. Chambers Williams III explains the decision to create a local union at the Chattanooga VW plant despite the United Auto Workers' narrow loss in a February worker vote.

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Why Volkswagen Agreed to UAW Local at Its U.S. Plant (USA Today)

G. Chambers Williams III explains the decision to create a local union at the Chattanooga VW plant despite the United Auto Workers' narrow loss in a February worker vote.

U.S. Deficit Continues to Shrink (MSNBC)

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Tracy Morgan Sues Walmart Over Deadly Crash in New Jersey (NYT)

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New Study: Lobbying Doesn't Help Company Profits—But It's Great For Executive Pay (MoJo)

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State and Local Pensions: A Progress Report (Market Watch)

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Port Drivers Take on Low Wages in an Industry Built on a Lie

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Detroit's Revitalization Funds Could Re-Empower Residents, Too

Jul 9, 2014Dominic Russel

Through participatory budgeting, Detroit could bring its resident's hyper-local expertise to the revitalization process.

Through participatory budgeting, Detroit could bring its resident's hyper-local expertise to the revitalization process.

The city of Detroit is suffering. It has the highest unemployment rate of the nation’s largest cities at 23 percent, the highest poverty rate at 36.4 percent, and has been listed by Forbes as America’s most dangerous city for five years in a row. As a result of its shrinking population, the city needs $850 million worth of blight removal and cleanup. On top of this, Detroit had an estimated $18 billion in debt in 2013, which caused the state of Michigan to essentially force the city to declare bankruptcy in a desperate attempt to save it.

Detroit urgently needs funding for any revitalization efforts. One source that the city receives each year is in Community Development Block Grants (CDBG) from the federal government. The grant is one part of the funding that the federal department of Housing and Urban Development (HUD) distributes to metropolitan cities. The CDBG is the portion that must go to community development projects, including the rehabilitation of residential and non-residential buildings, the construction of public facilities and improvements, and more. CDBG budgeting also must include a mechanism for citizen participation.

Detroit’s current method for allocating CDBG funds is broken, as evidenced by both their inability to completely distribute funding and the lack of citizen involvement in the process. Each year from 2010 to 2012 the city failed to spend a portion of their CDBGs, nearly causing the federal government to recapture money and diminish future grants. Again in 2014, the city is making a last-minute amendment to their CBDG plan, reallocating $12 million to avoid a recapture. This was necessary, in part, because the city allocated funds to programs that no longer exist. The main citizen participation program is the Neighborhood Opportunity Fund (NOF), in which service organizations apply for funding from the CDBG. This process, however, is limited to organizations and leaves no outlet for individual residents. In fact, individuals have only one public hearing annually for the entire HUD program. The interests of residents are not effectively being channeled into spending. All of this adds up to a system in need of reform.

Detroit has the opportunity to use CDBGs to develop a more citizen-involved allocation process. This can be achieved by creating a participatory budgeting (PB) program, which empowers citizens to allocate a portion of their own government resources and has been recognized by the United Nations as a “best practice” for local governance. A Detroit model could be based off programs in Chicago and New York City. These programs include a series of workshops where residents brainstorm ideas and elect community representatives who turn the ideas into full proposals. Residents then vote on the proposals, and the winning projects are put into action.

In Detroit, the city’s Planning and Development Department can ensure projects conform to HUD guidelines and lead outreach. The department would target traditionally underrepresented viewpoints by aiming outreach at neighborhoods with low- and moderate-income residents, using public schools for outreach to students and parents, and locating meetings and voting stations in areas that are accessible for underrepresented groups. A PB process has the potential to engage Detroit residents and better utilize their hyper-local knowledge to allocate CDBG funding.

On the night Detroit Mayor Mike Duggan was elected in 2013 he said, “Detroit’s turnaround will not occur until everyday Detroiters are involved in this effort.” He has the opportunity to create a clear path to this community involvement for all Detroiters by using participatory budgeting to determine how to spend a portion of the city’s federal grants. Not only would this make Duggan’s dream a reality, but it would reform an antiquated allocation process that has nearly cost the city millions of dollars.

Dominic Russel, a Michigan native, is a rising sophomore at the University of Michigan and is a Summer Academy Fellow interning at the Roosevelt Institute | Campus Network as the Leadership Strategy Intern.  

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