Three Election Thoughts: The Failed All-In Repeal Strategy, Warren, and Three-Strikes

Nov 7, 2012Mike Konczal

The Consequences of the Conservative All-In Repeal Strategy: The attacks on Nate Silver have been fun to watch, but David Frum took the most heat for calling how this would all play out back in 2010. I really hope his Waterloo post, which made the case, will be on the radar of academics studying this era decades from now. Frum:

The Consequences of the Conservative All-In Repeal Strategy: The attacks on Nate Silver have been fun to watch, but David Frum took the most heat for calling how this would all play out back in 2010. I really hope his Waterloo post, which made the case, will be on the radar of academics studying this era decades from now. Frum:

Conservatives and Republicans today suffered their most crushing legislative defeat since the 1960s. It’s hard to exaggerate the magnitude of the disaster...Legislative majorities come and go. This healthcare bill is forever. A win in November is very poor compensation for this debacle now...No illusions please: This bill will not be repealed. Even if Republicans scored a 1994 style landslide in November, how many votes could we muster to re-open the “doughnut hole” and charge seniors more for prescription drugs? How many votes to re-allow insurers to rescind policies when they discover a pre-existing condition? How many votes to banish 25 year olds from their parents’ insurance coverage? And even if the votes were there – would President Obama sign such a repeal?

What's interesting to me is how the conservative movement followed an "all-in repeal" strategy since summer 2010. The think tanks didn't prioritize the parts of Obamacare and Dodd-Frank that they wanted to see removed and replaced with something else, and political agents didn't try to force changes in exchange for concessions on other priorities.

It was almost as if they didn't accept that the laws were the actual laws of the land. The major conservative think tanks all focused on either the unconstitutionality of the bills, hoping the Supreme Court would save them (this goes for Dodd-Frank as well), or wrote only in terms of repeal. During the primaries, every Republican presidential candidate promised to repeal Dodd-Frank and repeal Obamacare, and almost nobody said anything about what would go in their places. Romney famously was vague about how he'd replace Dodd-Frank and Obamacare. As such, there's been no signaling or mobilization on priorities for how conservatives should try to change these laws.

Part of this is a function of how the movement has been mobilizing itself. If Obamacare is an Ayn Rand horror story of socialists nationalizing the health-care industry, well, 10 percent less socialist horror is still a nightmare. If Eric Cantor went and, say, offered Obama a debt ceiling raise or a second stimulus in exchange for putting the CFPB's budget under Congress's control or pulling back parts of Obamacare, he'd likely have his head ripped off by the base. This also might be because the conservative movement is out of ideas, something that has become painfully obvious in its responses to the Great Recession.

But either way, Obamacare and Dodd-Frank will be here for a generation now.

More Reasons to Celebrate Elizabeth Warren: Besides all the other reasons to be happy about Elizabeth Warren winning her Senate seat, there are two additional policy reasons to consider. Conservatives and lobbyists are focused on removing the CFPB's funding, single directorship, and sole focus on consumer financial protection. Republicans have explicitly stated that they'll block any director until these changes are made. Warren, who came up with the idea for the agency and fought for its creation, will understand how important the mission and the legal structure for how the agency is funded and organized are, and fight for that as well.

Another important financial reform issue is that people are still nervous about how resolution authority, or the FDIC forcing a major financial firm to fail, will work in practice. Warren is one of the major experts on bankruptcy law -- she's the third most cited scholar on bankruptcy law in the country -- and also would like to see Too Big To Fail ended, so I believe she can work productively with FDIC to implement a resolution regime best capable of handling the problem.

California Overwhlemingly Votes to Ease Three-Strikes Law, Other States Legalize Marijuana18 years after it was first passed, California looks to ease its three-strike law by a 20-point margin. When people study how the United States differs from the rest of the world in terms of incarceration policy and how we manage to have a significantly higher prison population than other countries, mandatory penalties for those who have a prior (recidivists) is a major driver.

As the University of San Francisco School of Law’s Center for Law and Global Justice wrote in their report, “Cruel and Unusual: U.S. Sentencing Practices in a Global Context,” all of the major policy differences between the United States and other countries -- "life without the possibility of parole, 'three strikes' laws, consecutive sentences, mandatory minimums, juvenile justice laws, dual sovereignty, and non-retroactive application of ameliorative law" -- are all anti-rehabilitation policies.

Let's go to the section of that report on three-strikes laws:

The most infamous example of a stringent habitual offender law is California’s three strikes law, which provides a sentence of 25 years to life for anyone convicted of a felony who has committed two prior serious or violent offenses. While the public pushes for “the worst of the worst” to be taken off the streets, the reality is that most third strike convictions are for non-violent felonies: fifty-four percent of third strike commitments under California’s three strikes law were for drug, property, and other non-violent crimes...

Virtually all of the countries surveyed for this report provided some type of increased penalty for recidivists. What distinguishes the United States from the rest of the world, however, is the lack of judicial discretion in sentencing schemes aimed at recidivists and the length of sentences that result...This leaves only 21% of countries, including the United States, that require a mandatory increased punishment for an offender with prior convictions.

For fun, what are those other countries that also have three-strike like laws?

Not the best company. Remember, these laws were designed to limit the power of judges and increase the power of prosecutors, a core part of the conservative assault on liberalism in the space of incarceration policy. This is a major change, likely to impact many other states for the better.

Meanwhile, Colorado and Washington voted to legalized and regulate marijuana use. As of right now, Attorney General Eric Holder has not publicly stated if the Feds will try to interfere with these new laws, like they threatened to do to California's proposal (which failed to pass). President Obama and Holder have a real opportunity to let states experiment with ending the failed War on Drugs as we know it, or an opportunity to keep a moral crime going indefinitely by federal preemption. Nicole Flatow has an excellent overview of the legal issues at Think Progress.


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What Explains Wall Street's Shift Away From Obama: Fat Cat Comments or Dodd-Frank?

Nov 1, 2012Mike Konczal

In an interesting column on President Obama as the last of the "New Democrats" presidents, Michael Lind brings up the idea that the financial sector has permanently moved away from Democrats. "In 2012, most Wall Street donors, offended by Obama’s mild criticism and alarmed by the support shown by many Democrats for Occupy Wall Street, have swung their support away from the Democrats to the Republicans. It is unlikely that most of them will ever come back.

In an interesting column on President Obama as the last of the "New Democrats" presidents, Michael Lind brings up the idea that the financial sector has permanently moved away from Democrats. "In 2012, most Wall Street donors, offended by Obama’s mild criticism and alarmed by the support shown by many Democrats for Occupy Wall Street, have swung their support away from the Democrats to the Republicans. It is unlikely that most of them will ever come back. In the aftermath of the Great Recession, moderate as well as progressive Democrats are going to emphasize deficit reduction through tax increases far more than even moderate Republicans...Any such reform will cut deeply into the incomes of many Wall Street rentiers whose 'progressivism' extends only to cost-free support for gay rights and abortion rights."

It'll be interesting to see if the political coalitions permanently shift in this manner. One reason for a shift is if Wall Street is leaving President Obama less for rhetorical reasons and more for economic and regulatory ones, especially when it comes to Dodd-Frank, which Democrats will continue to defend and Republicans will look to overturn.

When people discuss why Wall Street has turned against President Obama, it is usually a story about personalities and ego. Obama once said, “I did not run for office to be helping out a bunch of fat cat bankers on Wall Street,” and that particularly stung them. Or maybe Obama is terrible with fundraising and managing the egos of rich donors. Or maybe it runs deeper psychologically. As an investor who voted for Obama in 2008 told Gayle Tzemach Lemmon, "There is just this feeling across the financial services community, across the business community, that this guy hates us."

There is a lot to the lost feeling of proper stewardship over the economy, but as Matt Yglesias points out, it likely goes beyond the fat cats line. These conversations almost always put Dodd-Frank in the far background, even though it is a major reform of the financial sector that will reduce Wall Street's power and profits. Let's look at a few reforms.

Derivatives. One of the goals of Dodd-Frank is to bring transparency and standardization to the derivatives markets by requiring derivatives to go through a clearinghouse with pricing transparency. According to the FT's Michael Mackenzie and Tracy Alloway in "Swaps profits threatened by Dodd-Frank," "Analysts at Standard & Poor’s expect an annual drop in revenues for large dealers of between $4bn and $4.5bn once rules that include...mandatory central clearing of OTC swaps are fully implemented... But for smaller broker dealers and others, the future looks brighter as competition potentially opens across the OTC arena."

In the article, CFTC chairman Gensler recognizes "all [the] benefit[s] from the lower costs and greater pricing information of a more transparent, accessible and competitive swaps market.” But not everybody actually does. Those who cornered the market pre-reform lose out on rents they were collecting from dominating the information in the market. Dodd-Frank is tackling the market in a way that expands access and transparency and reduces the pricing power of powerful incumbents. That's fantastic, unless you are one of those incumbents who will lose billions of dollars.

Interchange. Even the little things challenge the power of the financial sector over the real economy. Take interchange, the fees the financial sector charges to the real economy for using debit and credit cards. That now resembles a public utility after Dodd-Frank, which rationalizes the system in much the same way that personal checks were rationalized by the Federal Reserve in the early 20th century. S&P estimates that "the Durbin Amendment's immediate financial impact for the banking industry is a $6.5 billion to $7 billion annual reduction in debit card-related revenue... Bank of America, JPMorgan Chase, and Wells Fargo have absorbed the majority of these losses, considering the size of their debit card businesses relative to peers." This balances the playing field between the real economy and the financial sector while taking away a powerful set of contracts the banks were using to squeeze merchants.

CFPB. Meanwhile, consumer financial protection used to be the orphan mission of 10 different agencies, a number that encourages race-to-the-bottom regulatory arbitrage, none of which had the incentives to build expertise in this area or directly fight for consumers over other mission priorities. Now that mission is squarely placed in the CFPB, an agency whose funding and organizational structure is designed to prevent capture. The CFPB is already successfully going after illegal and deceptive practices at places like American Express, Discover, and Capital One, winning damages in the hundreds of millions of dollars. The financial sector is noticing that there is now an agency designed to enforce accountability.

(One might note that hedge funds don't fall under these requirements, yet they are very mad. Some of that is the result of the push to remove special tax breaks, which is a direct economic issue. Some might be the result of other financial regulations.)

These are just items with visible price tags, so it doesn't include things like the Volcker Rule, extra-prudential regulations of larger and riskier firms, trying to tackle the ratings agencies, the presumption that the FDIC will need to resolve and liquidate large firms and will require those firms to prepare for that event, and the other new regulations of the financial sector. With billions of dollars a year in profits on the line in repealing Dodd-Frank (and with those who benefit from regulation dispersed across the entire economy), it isn't surprising that we are seeing a lot of donations go to those saying they will substantially weaken reform. And the GOP is specifically targeting these kinds of reforms.

Notice that though these regulations have a large price tag, they aren't "soak the rich" or "let's get the fat cats" regulations. They are all designed to make the financial markets run better by bringing transparency, a level playing field, and accountability to the system. We haven't seen how they'll be fully implemented, and a lot is still at risk even without a Republican victory in the presidental election. But right now there are billions of reasons Wall Street should want to stop the Democratic Party and Dodd-Frank beyond hurt feelings.

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Worried About TBTF Banks? Ignore Romney's Attacks in the Debate.

Oct 5, 2012Mike Konczal

The big question is not whether to dismantle Dodd-Frank, but whether it gets implemented correctly.

Wednesday's presidential debate had a relatively detailed discussion of the Dodd-Frank financial reform bill. From a transcript, this is how President Obama described what the bill does:

The big question is not whether to dismantle Dodd-Frank, but whether it gets implemented correctly.

Wednesday's presidential debate had a relatively detailed discussion of the Dodd-Frank financial reform bill. From a transcript, this is how President Obama described what the bill does:

We said you've got -- banks, you've got to raise your capital requirements. You can't engage in some of this risky behavior that is putting Main Street at risk. We've going to make sure that you've got to have a living will so -- so we can know how you're going to wind things down if you make a bad bet so we don't have other taxpayer bailouts. [...] And, you know, I appreciate and it appears we've got some agreement that a marketplace to work has to have some regulation. But in the past, Governor Romney has said he just want to repeal Dodd- Frank, roll it back.
And so the question is: Does anybody out there think that the big problem we had is that there was too much oversight and regulation of Wall Street? Because if you do, then Governor Romney is your candidate. But that's not what I believe.
The sleepy delivery aside, this is a good description. I would have liked to seen a reference to the CFPB ("cops on the beat protecting consumers") and derivatives reform ("making sure our financial markets are transparent"), since they are both under serious attack from conservatives. But it's not bad for a high-level overview.
What was Mitt Romney's critique of Dodd-Frank?
One is it designates a number of banks as too big to fail, and they're effectively guaranteed by the federal government. This is the biggest kiss that's been given to -- to New York banks I've ever seen. This is an enormous boon for them....We need to get rid of that provision because it's killing regional and small banks. They're getting hurt.
Let me mention another regulation in Dodd-Frank. You say we were giving mortgages to people who weren't qualified. That's exactly right. It's one of the reasons for the great financial calamity we had. And so Dodd-Frank correctly says we need to have qualified mortgages, and if you give a mortgage that's not qualified, there are big penalties, except they didn't ever go on and define what a qualified mortgage was.
It's been two years. We don't know what a qualified mortgage is yet. So banks are reluctant to make loans, mortgages. Try and get a mortgage these days. It's hurt the housing market because Dodd-Frank didn't anticipate putting in place the kinds of regulations you have to have. It's not that Dodd-Frank always was wrong with too much regulation. Sometimes they didn't come out with a clear regulation.

First off, as Adam Levitin notes, the reason that we don't have a QM definition is because that requires having a CFPB director. And who has been blocking a CFPB director consistently from the beginning? Senate Republicans. President Obama had to recess appoint a director in order to get this rule started, much to the chagrin of Republicans. So it is a bit much to block the nominee necessary to start the agency and then complain the agency isn't getting things done.

That said, there are two major complaints here. The first is that Dodd-Frank's "resolution authority" and regulations for systemically important financial institutions (SIFI) are a "wet kiss" to the banks, and the second is that qualified mortgages are holding up the financial market. Let's take them in turn.

SIFI and Too Big To Fail

Part of Dodd-Frank's approach involves creating a graduated system of regulatory burdens for risky financial firms, combined with special resolution authority powers housed at the FDIC to resolve these firms when they fail. This gets attacked by conservatives, an attack Mitt Romney reiterated, because, they believe, it has three problems: (1) it picks a handful of winners, (2) protects those winners from competition through regulations that have no teeth, and (3) gives a signal to the market that these firms will be bailed out again in the future.

To address complaint (1), all bank holding companies with $50 billion or more in consolidated assets are included without a necessary designation, and systemically important financial institutions (SIFI) are included as well after a determination process. So it isn't just the top five firms, but instead the 35 plus that are all larger in size. If it were an advantage to be declared systemically important, SIFI financial firms would be fighting to get the designation. By all accounts they are not, and indeed they are fighting against this status.

For (2), it makes sense that they are fighting the designation because Dodd-Frank requires more capital and includes more requirements for riskier firms. Take Sec. 165, which requires "large, interconnected financial institutions" to be subject to "prudential standards...more stringent than the standards and requirements applicable to nonbank financial companies and bank holding companies that do not present similar risks to the financial stability of the United States."

Or Sec. 171, which requires that capital requirements scale with "concentrations in market share for any activity that would substantially disrupt financial markets if the institution is forced to unexpectedly cease the activity." The idea is that if a firm wants to get bigger or engage in riskier activity, the normal prudential requirements to hold more capital and plan for a failure should scale as well.

For (3), the question is whether it will work or whether the market will think there will be endless bailouts. As I've described at length elsewhere, the resolution authority in Dodd-Frank is designed to precommit against bailouts. You need three institutions to approve resolution, who must consider the decision with a bias toward the market and the bankruptcy code. If there's a liquidation, the FDIC has to wipe out shareholders, hit creditors, fire management and board members, and can't buy equity in the firm to keep it alive. The problem we face isn't Dodd-Frank, but Congress and the executive branch passing "TARP: Part Two."

So how is the market reacting? Jennie Bai, Christian Cabanilla, and Menno Middeldorp of the Federal Reserve Bank of New York wrote a great paper recently that used "Moody’s KMV credit default swap (CDS) implied probability of default to gauge changes in the market perception of the risk that senior bondholders will not be completely repaid." (Disclosure: In the past, I worked at Moody’s KMV, a well regarded credit risk firm founded as KMV by three old-school quants, as a financial engineer. As a result, I'm biased towards their probability of default methodologies as a metric.)

What did they find?

Using the results from this regression and the shift in Bloomberg resolution news over our sample, we estimate that the anticipated and actual changes in resolution regime have increased the CDS market’s expectations of default by approximately 20 basis points, which is around a fifth of the average CDS-implied default probability for G-SIFIs in March 2012. While this doesn’t necessarily mean that markets are no longer pricing in any possibility of government support, it does suggest that the new laws have resulted in the CDS market taking into account the view that senior bondholders run a higher risk that they’ll need to share in the costs of bank resolution.

The market is starting to price in the risk that senior bondholders at risky, major financial firms will take hits, and those risks are priced in alongside movements in the resolution authority law. Given that the rules aren't completed yet and that there are additional ways to bolster them, this is a good sign. Mitt Romney's attack on the overall plan embodied in Dodd-Frank isn't the right approach for people serious about tackling Too Big To Fail. The problems we should be worried about are whether there is a good implementation of the law and if it is sufficient for taking down a major firm.


In addition to Adam Levitin's piece, you should read John Griffith and Julia Gordon of Center for American Progress, writing over at Think Progress, who have a piece on the QM issue.

We’re thrilled to hear Romney give such a full-throated defense of the ability-to-repay rule. It’s a welcomed about-face from his recent calls to repeal Dodd-Frank and dismantle the Consumer Financial Protection Bureau, the federal agency that’s responsible for enforcing the rule. That said, Romney has a few key facts wrong.

As Romney points out, the ability-to-repay rule has not yet taken effect as regulators are still defining the “Qualified Mortgage” exemption. But the Republican candidate neglected to mention that the final rule isn’t due until January 2013 — a deadline regulators appear to be on pace to meet. The Consumer Financial Protection Bureau submitted its proposed rule back in April and is currently hashing through public comments.

Romney seems to imply some sort of negligence or malfeasance from the Obama administration that is preventing the rule from being completed. Alas, no scandal here. The Dodd-Frank law is actually quite clear about what type of loan should be considered a “Qualified Mortgage.” The loan must be well-underwritten with verified income, employment, and debt information. Loan payments can’t exceed a certain percentage of the borrower’s net monthly income. The loan can’t contain risky feature like negative amortization, interest-only payments, or balloon payments. The list goes on.

It's a shame the debates didn't include anything on foreclosures or the housing market more generally, but the Dodd-Frank discussion was a pleasant surprise.

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The GOP's Zombie Dodd-Frank Would Lose the Core Logic of Financial Reform

Sep 20, 2012Mike Konczal

Republicans might not repeal Dodd-Frank outright, but they'd eliminate the system of rules that make it work.

Republicans might not repeal Dodd-Frank outright, but they'd eliminate the system of rules that make it work.

It was just announced that Tim Pawlenty will become the head of the bank lobbying group Financial Services Roundtable. The powerful financial lobbying group, which represents groups like JP Morgan and Bank of America among other big financial sector players, appears to be aligning itself more closely with the Republican Party and betting on the idea that Republicans will control at least part of Congress. But what do they want? Earlier in the year, I argued in Washington Monthly that they'd like to repeal the core parts of financial reform.

Recently, Phil Mattingly had an article at Bloomberg Businessweek about how the GOP and Mitt Romney would approach Dodd-Frank. This is with a hat-tip to Reihan Salam who notes that this article "has confirmed something I’ve heard from well-informed insiders" and makes additional arguments [1]. So it seems well-sourced.

Mattingly's argument is that it is unlikely that the Republicans will outright repeal Dodd-Frank. "Instead, President Romney would likely try to give the financial industry something it wants more: a diluted financial reform law that would relax restrictions on some of its most profitable—and riskiest—investments but maintain enough government oversight to give the banks cover."

So what would the Republicans try to dilute and remove? Mattingly:

"Wall Street wants to loosen rules governing the swaps market, which generated $7 billion in revenue in the first quarter of 2012, according to government records. The banks would also get rid of restrictions on bank investment in private equity and hedge funds, pare back the power of the new federal consumer protection agency, and block the Volcker Rule, which bars banks from trading with money from their own accounts, a practice that can put customer deposits at risk. [...]

Wall Street doesn’t oppose everything in the law. Banks support the “resolution authority” that spells out how and when the government can seize and wind down struggling banks before they catastrophically fail."

So they want to go after derivatives rules (swaps), the Volcker Rule and the related law on restrictions on hedge fund investments, and also the CFPB. It's important to understand this isn't like removing random parts of the bill, as strict as they may be, but is instead gutting the core logic of the law. It's the equivalent of Republicans saying they'd keep the Obamacare bill, but stop the exchanges, remove the individual mandate, and lose the ban on pre-existing conditions while getting rid of the means-tested subsidies and Medicaid expansion. We'd understand that all of the parts of this system are interconnected and inseparable; the ban requires everyone to be in the market, which requires subsidies and well-developed markets.

Let's make sure we understand how derivatives, the Volcker Rule, and the CFPB all work together. Imagine that we're car engineers, and we want to design a car and road system so that if the car crashes, it does so as safely as possible. There are four things we can do. We can put airbags and seatbelts in the car and other cars so that when it does crash the damage is limited and controlled. We can design the car with things like a brake override system so that if it hits a rough patch the driver can keep control of it and make it less likely to crash.  We can put some speed limits on the road, as well as clear traffic signals to guide cars from running into each other. And we can have some protection for pedestrians, like cops watching for DUIs or barriers to prevent cars from driving into crowds of people. Easy, right?

Now let's think of Dodd-Frank. There are the legal powers that deploy to resolve a firm if it fails, like an airbag, which are called resolution authority. This allows the FDIC to take down a failed financial firm as if it were a bank, subject to serious rules and restrictions.  And, like requiring certain car features, there are specific policies for large, systemically risky financial firms, like enhanced capital requirements, limits to investments in risky hedge-funds, and the Volcker Rule, which are designed to make it less likely for a firm to crash.

Dodd-Frank also introduces speed limits and rules of the road in the financial sector, designed to make the system as a whole less likely to crash or spiral out of control when a panic does happen. One primary place it does that is through derivatives regulations. And "cops on the beat" is the metaphor for the Consumer Financial Protection Bureau.

So there's Dodd-Frank law to allow a firm to fail, law to make it less likely a financial firm fails, laws to prevent the interconnected financial markets from going into crisis if a firm does fail, and law to gives consumers a representative in dealing with the regulatory field. This is like thinking of Dodd-Frank as a system of deterrance, detection, and resolutiion, a related model we've developed elsewhere.

If Wall Street and the Republicans are looking to seriously gut the Volcker Rule, derivatives, and the CFPB, then they're looking to gut the entire logic of the bill. Interestingly, they are less interested in "resolution authority," the legal process to fail a financial firm. This is evidently no problem with everything else removed, perhaps because they believe congressional bailouts will then happen. This should remind us that resolution authority is strengthened and made more credible by other strong regulations, including things not in Dodd-Frank, like size caps or Glass-Steagall. Preventing these diluations is crucial to building a regulatory system for the financial sector that works in the 21st century.

[1] Reihan notes that banks "also understand that [Dodd-Frank] favors incumbents over new entrants, particularly incumbents with the legal acumen and lobbying resources to shape the emerging regulatory regime. My strong preference, very much in line with conservative and libertarian sensibilities, would be for a financial reform that would aim to facilitate rather than stymie entry."

I'd like to see more on how Dodd-Frank as blocking new firm entry works. While this is a generic complaint of regulations in general, I'm not sure in what ways it applies to Dodd-Frank. Parts of Dodd-Frank actually are designed to scale up with size and risk, e.g. Sec. 171 requires capital requirements to scale with "concentrations in market share for any activity that would substantially disrupt financial markets if the institution is forced to unexpectedly cease the activity," which is not for new entries. The idea is to hold larger and riskier firms to tougher standards and higher capital, which is regulation that scales with size.

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On the Occupy/Strike Debt "Debt Resistors'" Manual

Sep 14, 2012Mike Konczal

People have been talking a lot about the one-year anniversary of Occupy Wall Street. There is special interest with the movement's turn to organizing around the idea of debt as a "connective thread" for the 99%. The most recent issue of The Nation has two articles on the topic, with Astra Taylor witing "Occupy 2.0: Strike Debt" and David Graeber writing "Can Debt Spark a Revolution?"

People have been talking a lot about the one-year anniversary of Occupy Wall Street. There is special interest with the movement's turn to organizing around the idea of debt as a "connective thread" for the 99%. The most recent issue of The Nation has two articles on the topic, with Astra Taylor witing "Occupy 2.0: Strike Debt" and David Graeber writing "Can Debt Spark a Revolution?"

There's a Strike Debt/Occupy Wall Street group, and they have put out a Debt Resistors' Operations Manual, which is embedded here at the end of this post and available at that link as a pdf. You can pick up a hard copy of the document tomorrow, Saturday, in Washington Square Park from 10:30 a.m. till 7:30 p.m. and at Judson Church from 7:30 p.m. till 9:30 p.m.

Reading it, I agree with Yves Smith's assessment that it "achieves the difficult feat of giving people in various types of debt an overview of their situation, including political issues, and practical suggestions in clear, layperson-friendly language." You should read her review in its entirety, and check it out for yourself. I want to talk a little bit about it from a different angle, noting how each half of the book builds out a new direction for Occupy.
Over the summer, Jodi Dean argued that debt would be a difficult connective thread to pull off for a political movement. It's too individualized, too prone to viewing people as failed market agents, too moralized, and it can mimic unhelpful reactionary arguments against the welfare state and the government. I know people involved in organizing homeowners, especially underwater and deliquent homeowners, and I can say that these are all very accurate problems. Beyond that, nobody likes their identity as a struggling debtor. People can take pride in their role as workers, as citizens, and as numerous other things organizers can build on, but debt is a real challenge. The failure part runs deep.
So there's a couple of interesting things in the Strike Debt booklet that I think are useful as a political statement. The first half of the book is about the major types of consumer debt -- medical, housing, education, and credit card -- as well as the credit scoring agencies. And the book places runaway consumer debt in the context of larger institutions that are failing to meet the needs of the population.
The medical debt chapter calls for universal health care, the student debt chapter calls for free public colleges, and the credit card chapter is titled "The Plastic Safety Net," directly alluding to weakness in income maintence and basic income support. The credit scoring chapter points out how these debts, and your ability to pay them, are tied to your ability to gain access to basic needs like utilities, phone lines, and health care.
These are all essential goods for our lives, and we choose the institutions that will deliver them. They can be publicly provided, based in principles of social insurance, decommodification, and access independent of wealth. Or they can be provided in individualized ways, ones that replace social insurance with self-insurance through individualized, large debt loads, while also working to the benefit of private agents.
But these are both choices. And this focus on debt is a way of understanding the wrong choices we've made as a society in providing for these goods, and who benefits and who loses from them. People should understand their debts as part of a system's design, rather than its failure. If developed, it could turn into a powerful statement for the commons and for a more progressive and social democratic approach to all of these topics.
It also approaches the 1 percent issue in a new way. Instead of a lot of arguments about the just deserts of the richest, the 1 percent and the "financialized" sectors of the economy are those who profit from inserting themselves between social goods and those who desperately need them. The second half of the book focuses not on individual debts but structures that benefit creditors. From municipal debt to the "expensive to be poor" areas of fringe finance to debt collection and bankruptcy, there's a whole series of institutions that work against debtors, the poor, and civic infrastructure.
Here the banks aren't just nefarious agents taking too much of the pie; they are the people overcharging the poor to be able to cash a check or otherwise engage in trade. They are the people ignoring the Fair Debt Collection Act, harassing your family on old debts they bought on the cheap. And they are the ones privatizing municipal structures, collecting the gains while socializing the losses. And that's a new way of understanding the 1 percent's power, and how to resist it, and ultimately overcome it in the kind of world we want to build, which is a major step forward.
As Astra Taylor wrote in her Nation piece, "As individuals, many of us are in debt because we have to borrow to secure basic social goods—education, healthcare, housing and retirement—that should be publicly provided. Meanwhile, around the world, debt is used to justify cutting these very services, even as the game is further rigged so that the 1 percent continues to profit, raking in money from tax cuts, privatization schemes and interest on municipal and treasury bonds."
Will it be enough to spark a genuine political movement? Who knows. But it is a document worth your time, and the issues it brings up will hopefully form a core narrative of all future political struggles.

Occupy Wall Street/Strike Debt: The Debt Resistors' Operations Manual


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The Problem of Committing Against Bailouts

Aug 22, 2012Mike Konczal

Economist Robert Stein had a recent post at the American Enterprise Institute about ending Too Big To Fail (h/t James Pethokoukis). His major advice, which frames the rest of his argument, is that "Ideally, the federal government would end Too Big To Fail (TBTF) by credibly pre-committing not to bailout large financial firms when they run into trouble."

Economist Robert Stein had a recent post at the American Enterprise Institute about ending Too Big To Fail (h/t James Pethokoukis). His major advice, which frames the rest of his argument, is that "Ideally, the federal government would end Too Big To Fail (TBTF) by credibly pre-committing not to bailout large financial firms when they run into trouble."

There's some other problems with the piece [1], but I want to run with this statement. The implication is that the Dodd-Frank financial reform act doesn't do such things. Let's take a second and document what Dodd-Frank does in terms of pre-committing to avoid bailing out a large financial firm, and where the problems with such a process could really occur.

Federal Reserve: Dodd-Frank strips out previous language from the Federal Reserve Act that was used to execute the (unpopular) emergency lending facilities (Sec. 1101). The Federal Reserve can no longer use its 13(3) powers to, in "unusual" circumstances, provide support for an "individual, partnership, or corporation." That language has been removed, and replaced with "program or facility with broad-based eligibility.” Dodd-Frank explicitly writes into the Federal Reserve Act that "any emergency lending program or facility is for the purpose of providing liquidity to the financial system, and not to aid a failing financial company." Going further it writes "The Board shall establish procedures to prohibit borrowing from programs and facilities by borrowers that are insolvent."

Provided we want the Federal Reserve to act as a lender-of-last-resort, this is a proper way to do it. At one point, even Richard Shelby seemed to think these reforms were the right approach.

Activating Resolution Authority: Now let's look at what is required to activate an orderly-liquidation action, or what is often called resolution authority. This is the FDIC taking over a failing financial institution and winding it down. If you've seen movies where two people need to turn their key to activate a nuclear weapon, then you'll understand that there's a three-key mechanism for resolution authority (Sec. 203).

The Treasury Secretary, after consulting with the President, needs to determine whether resolution is an appropriate path for a firm, one where "the failure of the financial company and its resolution under otherwise applicable Federal or State law would have serious adverse effects on financial stability in the United States." The Treasury Secretary then needs the recommendation of 2/3rds of the Board of Governors, as well as 2/3rds of FDIC (with the SEC replacing the FDIC for brokers and dealers, and the Federal Insurance Office for insurance companies), to approve going forward with resolution. So you have three institutions who have to turn their keys for resolution to go, institutions including both independent regulators and people with politicial accountability.

What should guide the recommendation for the Board of Govenors and the FDIC? Their written recommendation requires "an evaluation of the likelihood of a private sector alternative to prevent the default of the financial company" as well as "an evaluation of why a case under the Bankruptcy Code is not appropriate for the financial company." The default setting in the law is that the private sector alternative is always better to government action, and that the Bankruptcy Code is always better than resolution. This is consistent with the logic of those who want the government to pre-commit to as little action as possible.

Executing Resolution Authority: If the FDIC starts to resolve a failing financial company using its liquidation powers, what strict, legal limitations does it have to follow? There's a section titled "Mandatory Terms and Conditions for all Orderly Liquidation Actions" (Sec. 206) that can give us a start. If there's a liquidation, the FDIC has to wipe out shareholders if necessary ("ensure that the shareholders of a covered financial company do not receive payment until after all other claims and the Fund are fully paid") and hit creditors ("ensure that unsecured creditors bear losses in accordance with the priority of claim provisions").  The government isn't allowed to redo TARP or AIG and buy equity in the firm to keep it alive ("not take an equity interest in or become a shareholder of any covered financial company or any covered subsidiary"). The FDIC can't act for "the purpose of preserving the covered financial company."

They also have to fire management ("ensure that management responsible for the failed condition of the covered financial company is removed") and fire board members ("ensure that the members of the board of directors...are removed") by law. There's explicit legal language to allows FDIC to claw back compensation (Sec. 210, "may recover from any current or former senior executive or director substantially responsible for the failed condition of the covered financial company any compensation received during the 2-year period preceding"). It's difficult to imagine a firm really excited about going through such a procedure.

The Problem: Dodd-Frank goes out of its way to pre-commit against further bailouts. The problem with pre-committing against bailouts isn't Dodd-Frank; it's that the financial sector broadly will be too unstable and that Dodd-Frank won't have sufficient reforms in place to keep that in check. Remember the bailouts of 2008 were the results of GOP-appointed Hank Paulson, GOP-appointed Sheila Bair and GOP-appointed Ben Bernanke, all with the support of a Bush White House-sponsored EESA, going to Congress and asking that an emergency bill be passed to allow for TARP. Dodd-Frank cannot prevent that from happening again no matter what its precommittments are. No law can prevent Congress from acting in such a way. The best that can be done is set up the basic legal structures of the financial industry to make it so it isn't prone to collapse and abuses, and when there is failure to make sure losses are allocated in a fair way.

[1] Stein also proposes that "One way to signal this intent would be phasing out deposit insurance, a cornerstone of the government’s involvement in 'safeguarding' the financial system." Mark Calabria at Cato has called for capping deposit insurance access from its current 10 percent to 5 percent as anti-TBTF policy; Tim Carney and Matt Yglesias like this idea as well.

Let's graph out the size of major financial institutions in both their deposit and non-deposit dimensions, using a chart I use to help explain the SAFE Banking Act that would Break Up the Banks:

If we had to place Lehman Brothers or Bear Stearns, the shadow banks that caused the market panic, the shadow banks that need to be folded under traditional banking regulations, on this graph, it would clock in more like Morgan Stanley than Wells Fargo. You could proceed with such a 5% cap on deposit liabilities - though Treasury would tell you that it just forces banks to go into the more prone-to-panic and poorly regulated non-deposit/repo market for funding, as you can see from Bank of America above - but it would regulate Wells Fargo more than it would regulate firms like Citigroup, Goldman Sachs or Morgan Stanley, or the firms where the focus should be.

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What's the Best Liberal Case Against Principal Reduction?

Aug 21, 2012Mike Konczal

Binyamin Appelbaum has an article in the New York Times about the administration’s terrible response to the housing crisis.

Binyamin Appelbaum has an article in the New York Times about the administration’s terrible response to the housing crisis. The administration “tried to finesse the cleanup of the housing crash, rejecting unpopular proposals for a broad bailout of homeowners facing foreclosure in favor of a limited aid program — and a bet that a recovering economy would take care of the rest.” This has several responses, including David Dayen at firedoglake, as well as Ezra Klein writing about the administration's response from a balance-sheet recession and housing point of view. That got a response from Dean Baker arguing that this balance-sheet recession point of view, and the subsequent focus on mortgage debt reduction, is a distraction from better policy.

With President Obama pushing for a wider refinancing plan and the debate over refinancing and principal reduction back in the headlines due to the book Bailout and the fight over the GSEs, it might be useful to formalize the best liberal case against principal reduction. It'll give us a set of arguments to wrestle with so that we can then work backwards toward better arguments. So what is the best case? I see three broad arguments.

1. Wealth Effect Means It Doesn't Matter

This is the approach Dean Baker takes, and I think it is influential among many liberal wonks. The housing crashed destroyed a lot of housing value, leaving us feeling poorer, which means we spend less. An important way to understand this argument is that if every house during the housing bubble was paid for with cash instead of a mortgage, and we had the same housing bubble and crash but no mortgage debt overhang, our recession and slow recovery would look virtually identical. Reducing housing debt in our situation won't help the economy as a whole (though it will help the individuals involved), because housing debt hanging on the economy isn't the drag.

Foreclosures are still bad in this argument (and Dean has been at the forefront of fighting against foreclosures), but they only need to be stopped in the sense that all bad things should be stopped; housing crisis policy will help some and hurt some, but it isn't a check on the recovery. It is not necessary and isn't effective in getting us back to full employment.

I think there are some empirical problems with this argument. The elasticities people are finding are an order of magnitude bigger than realistic expectations. Declines in housing prices are nonlinear against wealth distribution. Something else is in play. See this interview or this paper for more on these arguments. The administration seems to be moving in this balance-sheet direction. Let's say we reject this wealth effect argument -- should we change policy?

2. Fiscal and Monetary Uber Alles

Christina Romer would say no. She, like many, would argue that housing debt is probably a drag on demand, but we should respond to it with fiscal and monetary stimulus. She would stay out of the policy in the purple circle above, which is the mapping I use around here to approach how people think of the recession. Romer, from September 2011:

[One argument is that the] bubble and bust in house prices has left households burdened with too much debt. Until we deal with this problem — perhaps by providing principal relief to the 11 million households whose mortgages are larger than the current value of their homeswe’ll never get the economy going.

The premise of this argument is probably true: recent evidence suggests that high debt is holding back consumer demand. But it doesn’t follow that the government needs to directly lower debt burdens to stimulate job growth.

Recent research shows that government spending on infrastructure or other investments raises demand even in an economy beset by over-indebted consumers. Another effective approach is to aim tax cuts and government payments at households that would like to spend, but can’t borrow because of their debt loads (such as the poor and the unemployed).

History actually suggests that the “tackle housing first” crowd may have the direction of causation backwards. In the recovery from the Great Depression, economic growth, which raised incomes and asset prices, played a big role in lowering debt burdens. I strongly suspect that fiscal stimulus will be more cost effective at speeding deleveraging and recovery than government-paid policies aimed directly at reducing debt.

There's a general critique of the president's stimulus program that argues it was too focused on tax cuts instead of long-term investments, which have a better bang for the buck. The same critique can be used on spending money on principal reduction. It's money that by definition isn't spent (it was already spent), so you need second-order effects for it to go. We'd prefer just giving people money (tax cuts) over principal reduction in the same sense that we'd prefer infrastructure over tax cuts.

And one doesn't need to be a conservative worried about helping the "losers" or someone who is uncomfortable with the fairness of mortgage debt reduction to think there are better ways to spend this money. Consider having $250 billion dollars to spend, one benchmark put forward as the amount of money that could have been spent from TARP. You could hand it out in some manner to pay off underwater debts, perhaps a matching scheme with the banks. That wouldn't reduce overall mortgage debt that much because there is a lot of it.

Meanwhile, with $250 billion dollars, you could build 5,000 miles of high-speed rail. You could fund universal pre-K for a decade. You could take the 13 million people unemployed under the traditional unemployment measure and give them a basic income of almost $10,000 for two years. You could build infrastructure, create social goods designed to foster egalitarianism, or tackle poverty. These are all better investments for us to make, plus they build a better society and they get us to full employment faster. Tackling mortgage debt produces none of these benefits.

When Geithner's argued against principal reduction, saying that it would be "dramatically more expensive for the American taxpayer, harder to justify, [and] create much greater risk of unfairness," he followed it up by saying "The whole foreclosure crisis across the country now is really driven by what happened to unemployment and what happened to the income of Americans. The best things we can do now to help mitigate that risk is to help get the economy. growing again, bring unemployment down as quickly as we can, put people back to work." I view that as in line with Romer's argument.

By itself, I think this is correct. But one important response to that is that principal reduction can often pay for itself, especially in situations where a borrower is at risk. A lender will want a consistent, if lower, payment stream rather than to take ownership of an abandoned house in a depressed market. As Lew Ranieri said, "You are almost always better off restructuring a loan in a crisis with a borrower than going to a foreclosure." So it is good economics, especially in a distressed market. Another response is that few people propose just giving money away, but instead want to tie it to some sense of risk and reward, or reaccounting of the banks' balance sheets. So how does that play out?

3. Upsides and Downsides

One reason giving away money to pay off underwater debts is a bailout, and thus politically unpopular, is that there would be a disconnect between who absorbed the costs on the downside and who gains the potential value from the upside. If taxpayers just paid off mortgage debts, banks and homeowners would gain a windfall that isn't directly shared with taxpayers. One way to deal with this is either to force creditors to eat a cost upfront -- they absorb the downside and then can benefit from the upside. The other is for taxpayers to gain from the upside, usually through the mass purchase and/or refinancing of mortgages. Let's look at the first way.

Why aren't bank servicers doing writedowns? There's a mix of bad incentives and poor resources that result in bad practices. The administration hasn't been aggressive with using financial fraud, like the range of practices including robosigning and documentation fraud, to force reform here, instead focusing on removing legal liabilities from the banks. Maybe that task force will someday do something, but from my read even sympathetic observers think it was a wasted opportunity. 

But even if policy is centered on forcing servicers to clean up their fraud, there's a lot of creditor free-riding in ad hoc debt writedowns that becomes problematic. Is writing down first mortgages good policy even if junior mortgages, often held by the biggest banks, are untouched? If home equity lines of credit are acting as a last line of income maintenance and credit for households in this weak recovery, is it wise to push policy to extinguish them to adjust first mortgages? If you wipe out both, isn't that a giant transfer to other creditors like auto lenders, private student loans, and credit card companies? Should we be concerned about moral hazard from the debtor's side? You need some mechanism to coordinate and bind the collective behavior of creditors while preventing free riding and also bringing in impartial adjudication, which is a traditional function of bankruptcy. Bankruptcy reform was famously not pushed by the administration, and to me that was its biggest mistake.

The other approach to avoid a bailout is for the government to gain a share of the upside for taking on the downside. This is one reason writedowns for the GSEs make sense: we gain the upside, as we own the GSEs, and we're already on the hook for the downside, so the risk on the downside isn't a "bailout" but prudent policy.

When it comes to dealing with the broader housing market, a lot of the programs proposed, like revitalizing HOLC or Senator Merkley's plan on refinancing, would have taxpayers put up money but gain in the upside. Even the IMF is now encouraging the United States and other countries to investigate bringing back something like an HOLC. The two counter-arguments would be that HOLC still had a high redefault rate, a rate that would have a lot of people crying foul. The second is the problem of what to pay for the mortgages. Recent attempts to use eminent domain to purchase mortgages at below-market rate in order to compensate taxpayers for absorbing these risks in a terrible market also have a lot of people crying foul.

My general thought is that moral hazard can be a problem, but the misery and wasted lives of mass unemployment is a much bigger problem. That said, bankruptcy and these government programs eliminate most moral hazard concerns. Bankruptcy can be done in such a way to hit homeowners as well; for the government program you'd want people to be trying to take advantage of them. That's why so many people have been shocked that the administration hasn't pushed on either.

What I find interesting is that all these articles about what could have been done with housing take the way TARP played out as given. But starting a HOLC program, rebooting the broken servicing model, or otherwise writing down mortgage principal would have been significantly easier if the banks were put into a receivership in early 2009. TARP policy, which was to protect the banks' balance sheets at all costs, worked counter-productively, putting administration resistence to enacting even the lowest-hanging policy fruit. Receivership would have cost more upfront, but it would have been significantly easier to tackle these problems. There is a major debate to have on this topic.


Mike Konczal is a Fellow at the Roosevelt Institute. Follow or contact the Rortybomb blog:


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Paul Ryan Really Doesn't Like Dodd-Frank

Aug 13, 2012Mike Konczal

Beyond thinking Dodd-Frank generally was a bad bill, he's voted against most of its individual pieces.

The entirety of Romney's plan for financial reform in the wake of the 2008 crisis is contained in the following sentence: "Repeal Dodd-Frank and replace with streamlined, modern regulatory framework." One might argue that this is vague enough to cause some of the dreaded economic policy uncertainty, but either way it is very unclear about what exactly financial regulation should involve.

Beyond thinking Dodd-Frank generally was a bad bill, he's voted against most of its individual pieces.

The entirety of Romney's plan for financial reform in the wake of the 2008 crisis is contained in the following sentence: "Repeal Dodd-Frank and replace with streamlined, modern regulatory framework." One might argue that this is vague enough to cause some of the dreaded economic policy uncertainty, but either way it is very unclear about what exactly financial regulation should involve.

This might change with Paul Ryan. Not only is Ryan well known for his wonky style, but he voted for TARP, the Wall Street bailout. He also went to the floor of the House and asked his fellow Republicans to vote for TARP. One would imagine he would think that the status quo is flawed if he had to vote for TARP to save the economy. Alas, Paul Ryan voted against the Dodd-Frank Wall Street Reform and Consumer Protection Act, the major financial regulatory response to the crisis.

(It might be worth noting that Public Citizen did an analysis that found that House members who voted for TARP and against Dodd-Frank, a club Paul Ryan belongs to and consists mostly of Republicans, received three times as much campaign money from the financial industry as those that voted the opposite in both cases. As Zach Carter pointed out in an analysis back in 2010, of the 60 Republican House members who voted for TARP and against Dodd-Frank, Paul Ryan received the ninth highest donation from the financial industry in 2010, with a haul of at least $531,500 for the year.)

So Paul Ryan is against Dodd-Frank as an overall bill. He also seeks to repeal it in his budget. But what does Ryan think of the individual parts of Dodd-Frank? One could be opposed to Dodd-Frank as a whole while still thinking individual parts are good ideas. In order to isolate that question, we can look at a series of Dodd-Frank amendments Ryan voted on, as well as subsequent actions and statements.

Consumer Protection: While the bill that became Dodd-Frank was going through the House, Ryan voted to scrap the Consumer Financial Protection Agency and replace it with a plan proposed by the Chamber of Commerce. Right before Dodd-Frank came up for a vote in the House, there was an amendment proposed by Rep. Walt Minnick (D-ID) to replace the CFPA with a council of existing regulators. According to reports from the time, this was modeled off suggestions from the Chamber of Commerce. The amendment failed, though Paul Ryan voted for it. Beyond concerns of accountability or funding of the CFPB, Paul Ryan would likely rather see the entire thing go.

Derivatives Regulation: Part of Dodd-Frank requires that derivative contracts trade through a clearinghouse. We don't have a clear vote from Ryan that shows what he thought of derivatives at the time, but he did vote against the Lynch amendment. Stephen Lynch (D-Mass) proposed a simple amendment stating that a financial firm can't own more than 20 percent of a derivatives clearinghouse to prevent conflicts of interest. Later, Ryan also voted to delay the implementation of derivative regulations for one year in June 2011, signaling he doesn't approve of the aggressive derivatives reforms people like Gensler are championing at the CFTC. This contrasts him sharply with someone like John Hunstman, who had very strong derivatives reform as part of his broad, serious financial reform ideas during the Republican primary.

Resolution Authority: Ryan voted for the repeal of resolution authority -- indeed, he sponsored the legsliation to repeal it. Resolution authority, or orderly liquidation authority, is a new set of legal abilities that allow the FDIC to take over and wind down a failing financial firm. When Barney Frank says that his bill actually has a death panel in it, he's referring to this part.

We can get a bit specific with why Ryan likely did this. In his Path to Prosperity, Ryan makes two points in argument against resolution authority. The first is that it "intensifies the problem of too-big-to-fail by giving large, interconnected financial institutions advantages that small firms will not enjoy." As Barney Frank and others point out, there's not evidence that banks are actively seeking to be designated as systemically risky. The general read is that business are going out of their way to avoid that designation, even restructuring away from risky activities. Which is the point.

The second critique is that "Federal Deposit Insurance Corporation (FDIC) now has the authority to access taxpayer dollars in order to bail out the creditors" and will presumably use it, preserving Too Big to Fail. Depending on who is talking, this usually refers to either the FDIC’s ability to provide “an immediate source of liquidity for an orderly liquidation, which allows continuation of essential functions and maintains asset values” or its ability to repay creditors.

Dodd-Frank requires that the FDIC's responsibilities include ensuring "that unsecured creditors bear losses in accordance with the priority of claim,” that shareholders receive nothing "until after all other claims and the Fund are fully paid" and that any losses remaining afterward that could impact Treasury are repaid through assesments on systemically risky financial institutions. In order to avoid situations like AIG, the FDIC is explicitly prohibited from taking "an equity interest in or become a shareholder of any covered financial company or any covered subsidiary" during resolution. Management has to be fired. Taxpayer money is recouped and bailouts avoided.

Title II is built to avoid looking like a bailout, self-consciously so. If the critique is about the powers to differentiate payments, those powers, as Douglas G. Baird and Edward R. Morrison noted about the powers, look like critical vendor orders or other parts of bankruptcy powers. By all accounts the FDIC rules are being written in this manner.

Bankruptcy: Speaking at a town hall, Ryan has seemingly proposed modifying the bankruptcy code, perhaps in line with plans from the Hoover Institute, in order to handle financial firms. (He also seemed to endorse the Volcker Rule in that town hall, but I haven't seen that from him anywhere else.) This would mean the FDIC would lose the special powers it has been given, which are believed to be important for resolution, including advance planning and living wills, debtor-in-possession financing and liquidity, making payments to creditors based on expected recoveries, keeping operations running, having graduated regulations based on size and riskiness, the ability to transfer qualified financial contracts without termination, and the ability to turn up or down regulations going into a potential resolution based on prompt corrective action. If that is the plan, and those powers are unnecessary to tackle TBTF, Ryan should spell it out more clearly.

At the same time, Ryan has proposed policies that were already in or based on Dodd-Frank. He has told CNBC and Ezra Klein that he was interested in using Luigi Zingales' approach to taking down a financial firm as outlined in a National Affairs article. This approach uses credit default swap measures, a financial derivative designed to gauge the risk of collapse, to judge when to take a financial firm into an orderly liquidation.

As I noted at the time, this is a form of resolution authority. It is specifically a form of prompt corrective action, which requires regulators to go ahead and collapse a firm based on market signals instead of regulator judgement. For it to work, you'd need legal powers to carry out a resolution, which Ryan has voted against, as well as sufficient regulation of dervatives to make sure the price signal is clear, which Ryan also voted against. And it seems to stand in contrast to the bankruptcy approach he has talked about elsewhere.

At this point there are some allusions to specifics in what Ryan talks about when it comes to taking down a large financial firm, though it often contradicts itself. But he hasn't offered anything specific on derivatives, consumer financial protection, insurance, securitization, ratings agencies, and the shadow-banking industry more broadly -- all of which would be up for grabs if Dodd-Frank was repealed under the Path to Prosperity.

Mike Konczal is a Fellow at the Roosevelt Institute. Follow or contact the Rortybomb blog:


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A Year After S&P's Rating Downgrade, US Treasuries Trade 1% Lower

Aug 5, 2012Mike Konczal

On August 5th, 2011, one year ago today, S&P downgraded the United States from AAA to AA+. This was four days after Congress voted to raise the debt ceiling. S&P did this because they didn't like the politics of the debt ceiling, implicitly blaming the Republicans' aggressive threat of a default on the national debt to obtain their political goals.

On August 5th, 2011, one year ago today, S&P downgraded the United States from AAA to AA+. This was four days after Congress voted to raise the debt ceiling. S&P did this because they didn't like the politics of the debt ceiling, implicitly blaming the Republicans' aggressive threat of a default on the national debt to obtain their political goals. "The political brinksmanship of recent months highlights what we see as America's governance and policymaking becoming less stable, less effective, and less predictable than what we previously believed." And they did this because they wanted to nudge Congress to make big, Grand Bargain type changes. S&P was worried that, in the aftermath of the debt ceiling agreement, "new revenues have dropped down on the menu of policy options" and "only minor policy changes on Medicare and little change in other entitlements" would potentially be achieved in the near future.

Analysts at Treasury quickly noted, after reviewing the numbers, that S&P made a $2 trillion dollar mistake, which dramatically overstated the medium-term debt levels of the United States that were their economic justification. S&P stood by their downgrade while admitting the error.

The United States losing its AAA rating was a political shock. The verdict was quick from the center and the right - this would be incredibly harmful to the United States' ability to deal with its national debt. When S&P first brought up the possibility of the downgrade in July, the centrist think tank Third Way highlighted that "S&P estimates that a downgrade would increase the interest rates on U.S. treasuries by 50-basis points," and urged "Congress and the Administration [to] come together and pass a 'grand bargain' that will put us on a sustainable path and avoid a credit downgrade."

After the downgrade Mitt Romney noted that “America’s creditworthiness just became the latest casualty in President Obama’s failed record of leadership on the economy. Standard & Poor’s rating downgrade is a deeply troubling indicator of our country’s decline under President Obama."

Those are two empirical predictions. Did the downgrade increase interest rates on U.S. Treasuries 50-basis points? Would you go further and describe our creditworthiness itself as a casualty?

Here's FRED data on Treasury 10 years:

They are down a little over 1 full percentage point, from 2.58 percent to 1.51 percent. If you want to consider the baseline the 3 percent interest rates from right before the downgrade, or the 2 percent interest rates that happened afterwards, then rates are down either 1.5 or 0.5 percentage points. That's a major decline in the borrowing cost of the United States. One can't find the increase in rates in this market. Counterfactuals are difficult - perhaps S&P is correct, and 10-year Treasuries would be closer to 1 percent had there been no downgrade.

But that seems unlikely. Here's a previous link discussing ratings agencies' internal research finding that they consistently overstate the default risk of government debt. The ratings agencies can add value in thin markets with little history, or as a means of a coordinating research and action among market participants. But the United States' debt market is one of the most liquid, traded, researched and transparent markets in the world, and it seemed doubtful the ratings agencies were going to add much information with their downgrade. A year later the downgrade appeared to have been irrelevant to United States' borrowing costs. To the extent that they were relevant they signaled and reinforced a further move away from potential stimulus for the economy, which collapsed demand and drove even more money into government bonds and the interest rate down to 2 percent almost right away. But either way, low interest rates on US debt continues their downward march. Contrary to S&P, the financial markets are calling for a larger deficit, not a smaller one.

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Can We Start the Merkley Plan Now Using TARP (And Bypass a Dysfunctional Congress)?

Jul 30, 2012Mike Konczal

Senator Jeff Merkley (D-OR) has just released a new housing plan for dealing with the mortgage crisis by refinancing underwater mortgages titled "The 4% Mortgage: Rebuilding American Homeownership." This plan would create a Rebuilding American Homeownership (RAH) Trust, modeled after the HOLC plan in the Great Depression. It would buy out underwater mortgages for three years, then wind down while managing its mortgage portfolio.

Senator Jeff Merkley (D-OR) has just released a new housing plan for dealing with the mortgage crisis by refinancing underwater mortgages titled "The 4% Mortgage: Rebuilding American Homeownership." This plan would create a Rebuilding American Homeownership (RAH) Trust, modeled after the HOLC plan in the Great Depression. It would buy out underwater mortgages for three years, then wind down while managing its mortgage portfolio. Underwater mortgages would have three payment options, including a 15-year 4 percent interest rate plan to help rebuild equity, a 30-year 5 percent plan like a standard mortgage, and a two-part plan that splits the loan into a first mortgage equal to 95 percent of the home's current value and a "soft second" for the rest. Here are links to the summarythe full plan and a YouTube video introduction.

I think it is a great plan. Felix Salmon is also a "huge fan" of the plan and has a description of several of the positive features. Many will probably react to it like Matt Yglesias, who, after discussing the positive parts of the plan, notes that the "chances of Congress actually doing this are slim to none."

But what if this plan didn't need Congress? What if the Executive Branch could do this right now, on its own?

There is interest is moving forward. Senator Merkley told David Dayen that he was hoping that "pilot programs for RAH operating in several states between now and the end of the year." Treasury Secretary Timothy Geithner said that he'd be willing to try to "find legal authority and resources to -- to test [the RAH] on a pilot basis."

The report notes three potential homes for the plan: (1) FHA, (2) Federal Home Loan Banks system, or (3) the Federal Reserve. Of those, FHA seems like a potential place to launch the plan immediately. As the report mentions, "FHA already implements the FHA Short Refi program as one of the government's foreclosure prevention programs." What if the administration took the FHA Short Refi program and replaced it with what is needed to run the RAH? To launch this right away by replacing FHA Short Refi with the Merkley plan you'd need authority and cash, and FHA Short Refi has both.

Why does FHA Short Refi have the authority to implement this plan? FHA Short Refi plan is a part of TARP designed to deal with the housing crisis by modifying underwater mortgages. When Dodd-Frank passed in July 2010, special language was put in to limit the creation of new programs or initiatives under TARP. However, this project exists as part of that already-existing housing priority, and those programs can be modified. These programs are modified all the time to try to make them work better. HAMP, for instance, was modified earlier this year.

FHA Short Refi was designed to "enable lenders to provide additional refinancing options to homeowners who owe more than their home is worth." So it looks like it has the authority to act and change its mission structure from Short Refi to the Merkley plan, provided that Treasury's lawyers (I believe) approve of the changes.

FHA Short Refi also has moneyAccording to SIGTARP's quarterly report to Congress from July 2012, Treasury had allocated $8.1 billion for FHA Short Refinance.

How many mortgages have been modified under the FHA Short Refi program since it started? "As of June 30, 2012, there have been 1,437 refinancings under the program." Less than 1,500 mortgages in the country have gone through this program. How much money has been spent? "Treasury has pre-funded a reserve account with $50 million to pay future claims and spent $6.6 million on administrative expenses." Less than $57 million dollars. Given $8.1 billion dollars to spend on helping the housing market, less than 0.7 percent of it has been allocated, impacting less than 1,500 people.

That's a bit mind-boggling, but the failure of FHA Short Refi to either impact homeowners, help the economy or use its resources could be the genesis for the success of the RAH. FHA can provide the baseline funding for the part of the mortgage that isn't underwater, while the additional resources necessary to ensure the additional funding for the underwater part of the mortgage can come from this FHA Short Refi. That $8 billion could be used to insure the other part of the mortgages involved, which would then be sold off in a new bond. Amplified in this way, that $8 billion dollars could be used to backstop tens of billions of dollars of new mortgages.

At that point funding would end, but we'd have a sense if it was working or not. And if that $8 billion can insure $100 billion dollars worth of underwater debt, between 10 and 18 percent of underwater debt could be refinanced. If it is successful, there will both be a good empirical argument for continuing with additional funding and a political coalition of other underwater homeowners who would want to participate. If it is a failure, then it is a good opportunity to end it right there.

With that in mind, it might be useful to remind ourselves why this plan is important as an economic matter. Most of the recent research finds that underwater mortgage debt is strongly linked with weak consumption, high unemployment, and sluggish wage growth - our economy is stuck in a "balance-sheet recession." The blockage of prepayment has created a windfall for creditors in a weak economy with low interest rates; as Felix Salmon notes "the CBO is saying that if we paid off current bondholders at 100 cents on the dollar, they would lose as much as $15 billion...They’re basically taking unfair advantage of the fact that homeowners are locked into above-market mortgage rates" and can't prepay or refinance their mortgages.

Beyond creating a hangover effect on aggregate demand and basic unfairness, underwater mortgages also blunt the ability of monetary policy to do its full job. Even Federal Reserve Chairman Ben Bernanke believes this is happening. Here's Bernanke at a press conference from last November:

One area where monetary policy has been blunted, the effects have been blunted, has been the mortgage market where very tight credit standards have prevented many people from purchasing or refinancing their homes and therefore the low mortgage rates that we’ve achieved have not been as effective as we had hoped. So, monetary policy maybe is somewhat less powerful in the current context than it has been in the past but nevertheless it is affecting economic growth and job creation.

That’s Fed speak for underwater mortgage refinancing being a major boom to boosting demand, which helps the economy as a whole, even people who have no mortgage or debt but are stuck in a terrible jobs market. Given how interested the Federal Reserve is in this blocked channel for the efficiency of monetary policy, I hope they are considering how they can play a role in this.

All in all, Merkley has put together an excellent plan and I believe we have the means to do it. It provides new stimulus while amplifying already existing monetary stimulus, plus it contains a measure of fairness between creditors and everyone else. When can we start?


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