Legal Commentary

The Financial Crisis II-Becker

By becker

In considering what needs to be done to improve the functioning of the financial system, it is necessary to distinguish steps to avoid a major depression in the near term from long run reforms of the financial system. The Paulson Plan naturally concentrates on the very real short run emergency. I first discuss this plan and other suggestions, and then briefly consider long-term reforms.

The Treasury's announced insurance of all money market funds carries considerable moral hazard risks, but it has not aroused much controversy. The Paulson Plan goes much further and involves purchases from banks of up to $750 billion of assets that have uncertain worth. I say uncertain worth since there is essentially no market for many of these assets, and hence no market pricing of them. The government hopes to create this market through using reverse auctions. In these auctions, banks would offer their assets at particular prices, and the government would decide whether to buy them. This part of the Plan has been heavily criticized because it gives great discretion to the Treasury Secretary since the total value of the assets that would be purchased at this point is not known. In addition, many are repelled by the intention to bail out companies and their executives who made decisions that got the companies into trouble. There is also much concern about the moral hazard consequences for the future behavior of banks if they are led to expect to get rescued by the government when their investments turn sour.

While I find helping these banks highly distasteful, moral hazard concerns should be put aside temporarily when the whole short term credit system is close to a complete collapse. However, the proposed Plan does indicate, as I suggested in an earlier post (April 28, 2008), that the $29 billion bailout of the bondholders of Bear Stearns in March was a mistake. It probably did have a moral hazard effect by encouraging Lehman brothers and other investment banks to delay in raising more capital because they too expected to be helped if times got much worst.

The agreement apparently just reached between Congress and the White House does allow the government to purchase distressed assets up to about $700 billion- I would have preferred a considerably smaller initial limit. It does have a provision for Congressional oversight of the Treasury's use of the funds, whatever that is worth, and has several other features as well. For example, it includes pay limits for executives whose firms seek government help. That is too much micromanagement of the operations of these banks, even though no one can think much of executives who led their banks into such a mess.

I am also not enamored of the apparent provision that gives the government an equity stake in some banks that they help if these banks should prosper. It is unwise to allow governments in general to have equity interests in private companies, particularly if this equity gives them voting rights on company policies. Perhaps inevitably, this did occur in the AIG bailout. Many examples in recent history, such as the current Alitalia fiasco, show that political interests outweigh economic ones when governments have partial ownership of alleged private companies.

The agreement appears to require the government to use their new ownership of distressed mortgage-backed securities to reduce home foreclosures. Homeowners as well as bankers should have known that the insanely good times in the housing and mortgage markets could not last forever. However, consumers are less well informed about financial matters and housing pricing than are the supposed expert executives at banks. Helping homeowners also uses taxpayers money, but in a way that would generally aid people with modest to moderate incomes. Indirectly, moreover, it would also help banks by increasing the value of the mortgage-backed securities they hold.

One suggested supplement to the Paulson Plan is to require investment banks and other financial institutions to raise additional capital now, so that they have resources to start widespread lending again. Such a requirement would be unwise since banks that can raise capital readily are already doing so, as illustrated by Warren Buffet's investment in Goldman Sachs, and Mitsubishi's purchase of a stake in Morgan Stanley. Were such a requirement imposed, weaker banks might cut their lending even further in the attempt to increase their liquid capital. Milton Friedman and Anna Schwartz argue convincingly in their Monetary History of the United States that the Fed's raising of reserve requirements for commercial banks during the mid-1930s contributed to a prolonging of the Great Depression. For it induced these banks to further contract their lending in order to gain the liquid assets that were removed by higher reserve requirements.

The main problem with the modern financial system based on widespread use of derivatives and securitization is that while financial specialists understand how individual assets function, even they have little understanding of how the whole incredibly complex financial system operates when exposed to various types of stress. In light of such ignorance of the financial system's mode of operation, it is difficult to propose long-term reforms. Still, a few seem reasonably likely to reduce the probability of future financial crises. The capital requirements of banks relative to assets might be increased, so that the highly leveraged ratios of assets to capital in financial institutions during the past several years would become less common. Possibly a minimum ratio of capital to assets should be imposed by the Fed on investment banks and money funds. As much as possible, the measure of capital should be market, not book, value, such as the market value of publicly traded shares of banks. My discussion last week indicated that book value measures badly missed the plight of Japanese banks during their decade-long banking crisis of the 1990s.

The government should as quickly as possible sell Freddie Mac and Fannie Mae to fully private companies that receive no government insurance or other help. These two giants did not cause the housing mess, but in recent years they surely greatly contributed to it, partly through Congressional pressure on them to increase their purchases of sub prime loans. They owned or guaranteed almost half of the $12 trillion in outstanding mortgages with less than $100 million of capital. The housing market already has excessive amounts of government subsidies, such as from the tax exemption of interest on mortgages, and should not have government sponsored enterprises that insure mortgage-backed securities.

Finally, the "too big to fail" approach to banks and other companies should be abandoned as new long-term financial policies are developed. Such an approach is inconsistent with a free market economy. It also has caused dubious company bailouts in the past, such as the large government loan years ago to Chrysler, a company that remained weak and should have been allowed to go into bankruptcy. All the American auto companies are now asking for handouts too since they cannot compete against Japanese, Korean, and German carmakers. They will probably get these subsidies, even though these American companies have been badly managed. A "too many to fail" principle, as in the present financial crisis, may still be necessary on hopefully rare occasions, but failure of badly run big financial and other companies is healthy and indeed necessary for the survival of a robust free enterprise competitive system.

Full post as published by Becker-Posner Blog on September 28, 2008 (boomark / email).