Would regulation stop the mistakes of rating agencies that contributed to the 2008 crisis?

I remember watching The Big Short and feeling great indignation at the S&P employee who told Steve Carell that rating agencies were pressured into issuing unreasonably high ratings because they were beholden to their customers. If true, this represented an unbelievable moral hazard, which is often cited as the reason for the failures of the ratings agencies–and as a reason for regulating these agencies.

However, more in-depth research and consideration reveals that this answer is incomplete and, in many ways, incorrect. Claire Hill, a law professor at the University of Minnesota Law School and director of the Institute for Law and Rationality, clearly and convincingly critiques this simplistic explanation by recognizing market influences and proposing alternate causes, which also means that if we are looking to avoid a future crisis, we need to look to alternative solutions to the regulatory measures that we currently employ. I don’t think it could be said better than she does in her abstract:

Why did rating agencies do such a bad job rating subprime securities? The conventional answer draws heavily on the fact that ratings are paid for by the issuers: Issuers could, and do, “buy” high ratings from willing sellers, the rating agencies.

The conventional answer cannot be wholly correct or even nearly so. Issuers also pay rating agencies to rate their corporate bond issues, yet very few corporate bond issues are rated AAA. If the rating agencies were selling high ratings, why weren’t high ratings sold for corporate bonds? Moreover, for some types of subprime securities, a particular rating agency’s rating was considered necessary. Where a Standard & Poor’s rating was deemed necessary by the market, why would Standard & Poor’s risk its reputation by giving a rating higher (indeed, much higher) than it knew was warranted?

Finally, and perhaps most importantly, giving AAA ratings to securities of much lower quality is something that can’t be done for long. A rating agency that becomes known for selling its high ratings will soon find that nobody will be paying anything for its ratings, high or low.

In my view, that issuers pay for ratings may have been necessary for the rating agencies to have done as bad a job as they did rating subprime securities, but it was not sufficient. Many other factors contributed, including, importantly, that rating agencies “drank the Kool-Aid.” They convinced themselves that the transaction structures could do what they were touted as being able to do: with only a thin cushion of support, produce a great quantity of high-quality securities. Rating agencies could take comfort, too, or so they thought, in the past – the successful, albeit short, recent history of subprime securitizations, and the longer history of successful mortgage securitizations.

“Issuer pays” did not so much make the rating agencies give higher ratings than they thought were warranted as it gave the agencies a “can do” mindset regarding the task at hand – to achieve the rating the issuers desired, working with them to modify the deal structures as needed. That the issuers were paying motivated the agencies to drink the Kool-Aid; having drunk the Kool-Aid, the agencies gave the ratings they did. My account casts doubt on the efficacy of many of the solutions presently being proposed and suggests some features that more efficacious solutions should have.

I very much recommend reading the full article, which gives more nuance and information about the weaknesses of proposed solutions for rating agency mistakes or malfeasance. This should also be food for thought concerning the general perspective we should have in examining “market failures,” as there are often market feedback systems that mitigate problems, and turning to regulation by reflex can cause unintended harm or even miss the mark entirely.


Reference: Hill, Claire. “Why Did Rating Agencies Do Such a Bad Job Rating Subprime Securities?” University of Pittsburgh Law Review (2010): 10-18. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1582539.

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A Common Conservative Fallacy

I believe folly serves liberals better than it serves conservatives. Our way is the rational way while liberals tend to rely on their gut-feelings and on their sensitive hearts which make them comparatively indifferent to hard facts. That’s why they voted for  Pres. Obama. That’s why they voted for Mrs Bill Clinton against all strong evidence (known evidence, verifiable, not just suppositions) of her moral and intellectual unsuitability. That’s why many of them still can’t face emotionally the possibility of buyer’s remorse with respect to Mr Obama. That’s why they can’t collectively face the results of the 2016 election. So, conservatives have a special duty to wash out their brains of fallacy often.

It’s the task of every conservative to correct important errors that have found their way into fellow conservatives’ mind. Here is one I hear several times a week, especially from Rush Limbaugh (whom I otherwise like and admire). What’s below is a paraphrase, a distillation of many different but similar statements, from Limbaugh and from others I listen to and read, and from Internet comments, including many on my own Facebook:

“Government does not create jobs,”

and

“Government does not create wealth (it just seizes the wealth created by business and transfers it to others).”

Both statements are important and both statements are just false. It’s not difficult to show why.

First, some government actions make jobs possible that would not exist, absent those actions. Bear with me.

Suppose I have a large field of good bottom land. From this land I can easily grow a crop of corn sufficient to feed my family, and our poultry, and our pig, Gaspard. I grow a little more to make pretty good whiskey. I have no reason to grow more corn than this. I forgot to tell you: This is 1820 in eastern Ohio. Now, the government uses taxes (money taken from me and from others under threat of violence, to be sure) to dig and build  a canal that links me and others to the growing urban centers of New York and Pennsylvania. I decide to plant more corn, for sale back East. This growth in my total production works so well that I expand again. Soon, I have to hire a field hand to help me out. After a while, I have two employees.

In the  historically realistic situation I describe, would it not be absurd to declare that the government gets no credit, zero credit for the two new jobs? Sure, absent government tax-supported initiative, canals may have been built as private endeavors and with private funds. In the meantime, denying that the government contributed to the creation of two new jobs in the story above is not true to fact.

Second, it should be obvious that government provides many services, beginning with mail delivery. Also, some of the services private companies supply in this country are provided elsewhere by a branch of government. They are comparable. This fact allows for an estimation of the economic value of the relevant government services. Emergency services, ambulance service, is a case in point. Most ambulances are privately owned and operated in the US while most ambulances are government-owned and operated in France. If you have a serious car accident in the US, you or someone calls a certain number and an ambulance arrives to administer first aid and to carry you to a hospital if needed. Exactly the same thing happens in France under similar circumstances. (The only difference is that, in France, the EM guy immediately hands you a shot of good cognac. OK, it’s not true; I am kidding.)

In both countries, the value of the service so rendered is entered into the national accounting and it does in fact appear in the American Gross Domestic Product for the year (GDP) and in the French GDP, respectively. The GDP of each country thus increases by something like $500 each time an ambulance is used. Incidentally, the much decried GDP is important because it’s the most common measure of the value of our collective production. One version of GDP (“PPP”) is roughly comparable between countries. When the GDP is up by 3,5 % for a year, it makes every American who knows it, happy; also some who don’t know it. When the GDP shrinks by 1%, we all worry and we all feel poorer. If the GDP change shrinks below zero for two consecutive quarters, you have the conventional definition of a recession and all hell breaks lose, including usually a rise in unemployment.

Exactly the same is true in France. The government-provided French ambulance service has exactly the same effect on the French GDP.

Now think of this: Is there anyone who believes that the equivalent service supplied in France by a government agency does not have more or less the same value as the American service provided by a private company? Would anyone argue that the ambulance service supplied in France, in most ways identical to the service in America, should not be counted in the French GDP? Clearly, both propositions are absurd.

Same thing for job creation. When the French government agency in charge of ambulances hires an additional ambulance driver, it creates a new job, same as when an American company hires an ambulance driver.

By the way, don’t think my story trivial. “Services” is a poorly defined category. It’s even sometimes too heterogeneous to be useful (not “erogenous,” please pay attention). It includes such disparate things as waitressing, fortune-telling, university teaching, and doing whatever Social Security employees do. Yet it’s good enough for gross purposes. Depending on what you include, last year “services” accounted for something between 45% and 70% of US GDP. So, if you think services, such as ambulance service, should not be counted, you should know that it means that we are earning collectively about half to three quarters less than we think we do. If memory serves, that means that our standard of living today is about the same as it was in 1950 or even in 1930.

Does this all imply that we should rejoice every time the government expands? The answer is “No,” for three reasons. These three reasons however should only show up after we have resolved the issue described above, after we have convinced ourselves that government does provide service and that it and does create real jobs, directly and indirectly. Below are the three questions that correspond to the three reasons why conservatives should still not rejoice when government enlarges its scope. Conservatives should ask these three questions over and over again:

1 Is this service a real service to regular people or is it created only, or largely, to serve the needs of those who provide it, or for frivolous reasons? Some government services fall into this area, not many, I think. Look in the direction of government control, inspection, verification functions. Don’t forget your local government.

Often, the answer to this question is not clear or it is changing. Public primary and secondary education looks more and more like a service provided largely or even primarily to give careers to teachers and administrators protected by powerful unions. It does not mean that the real, or the expected service, “education,” is not delivered, just that it’s often done badly by people who are not the best they could be to provide that particular service; also people who are difficult or impossible to replace.

2   Is this particular service better provided by government or by the private sector? Is it better provided by government although the provision of the service requires collecting taxes and then paying out the proceeds to the actual civil servants through a government bureaucracy? That’s a very indirect way to go about anything, it would seem. That’s enough reason to be skeptical. The indirectness of the route between collecting the necessary funds and their being paid out to providers should often be enough to make government service more expensive than private, market-driven equivalent services. Note that the statement is credible even if every government employee involved is a model of efficiency.

The US Post Office remains the best example of a  situation where one would say  the private sector can do it better.

Only conservatives dare pose this question with respect to services one level of government or other has been supplying for a long time or forever. The Post Office is inefficient; if it were abolished, the paper mail would be delivered, faster or cheaper, or both. Some paper mail would not be delivered anymore. Many more of us would count it a blessing than the reverse. While there is a broad consensus across the political spectrum that children should be educated at collective expense, there is growing certitude that governments should not be in the business of education. In many parts of the country, the public schools are both expensive and bad. Last time I looked, Washington DC was spending over $20,000 per pupil per year. Give me half that amount and half the students or better will come out knowing how to read, I say. (It’s not the case now.)

3   This is the most serious question and the most difficult to answer concretely: Does the fact that this service is provided by government (any level) have any negative effect on our liberties? This is a separate question altogether. It may be that the government’s supply of a particular service is both inefficient and dangerous to freedom. It may be however that government supply is the most efficient solution possible and yet, I don’t want it because it threatens my freedom. As a conservative, I believe that my money is my money. I am free to use it to buy inefficiently, in order to preserve liberty, for example. I am not intellectually obligated to be “pragmatic” and short sighted.

To take an example at random, if someone showed me, demonstrated beyond a reasonable doubt, that Obamacare would reduce the cost of health care without impairing its quality, if that happened, I would still be against it because of the answer I would give to the third and last question above.

I don’t want a any government bureaucracy to make decisions that are ultimately decisions of life and death on my behalf. The possibility of blackmail is too real. Even thinking about it is likely to make some citizens more docile than they otherwise would be. So much power about such real issues must have a chilling effect on the many.

The rule of thumb is this: Every expansion of government reduces individual freedom. That’s true even if this expansion creates and efficient and effective government agency, say, a real good Post Office we don’t even know how to dream of. And this is not an abstract view. The well-intentioned and in other ways laudable recognition of homosexual marriage was followed in short order by threats and fines against a hapless baker who declined to bake a cake for a gay wedding. We must keep in mind at all times that, of course, the power to fine, like the power to tax, is the power to destroy.

An efficient but ethically objectionable government service is not something I worry much about, in the case of Obamacare specifically, by the way. It is inefficient, ineffective and dangerous to individual liberty all at once.

Conservatives don’t do enough to proclaim that their opposition to big government has an ethical basis, that it’s a moral position independent of the quality of big government. This silence makes if easy for liberals to caricature conservatives as just selfish grouches who don’t want to pay taxes.

Most of the time, I don’t want to pay taxes because I don’t want to be forced. I would gladly give away twice the amount of my taxes if there were a way to do it voluntarily instead of paying taxes.

I am so opposed to this kind of force that I think even the undeserving and obscenely rich should not be despoiled by the government. It’s an ethical position, not a pragmatic one. And, it sure cannot be called “selfish.” (WTF!)

Another example of double-speak: This is what happens when Time Warner Cable is forced to compete

This is what happens when Time Warner Cable is forced to compete

Such a laughable headline when government regulations are what caused the cable/telecom monopolies in the first place.

“This report admits that in the days when cable was challenging airwave broadcasters, regulators “did not hesitate to grant exclusive franchises to cable operators”4. It speaks specifically of a long history of successful regulatory lobbying by the cable industry. This report claims that lobbying of regulators resulted in a variety of tactics to deter competition (p. 35). It claims that regulators protected and favored cable incumbents for years. Licensing policies have directly or effectively barred competition in many local markets (p. 44). Such practices are no longer official, but cable companies still succeed in enlisting the help of regulators to bar direct competition (p. 44). Incumbent cable companies have also gotten regulators to use “level playing field laws” to increase the costs of entering the cable market (p. 45). Cable companies have also saddled new competitors with disproportionate shares of subsidies for public education and government programming (p. 45). The cable industry has also succeeded in getting the FCC to quash new competitors with prices for leased access no competitor “could pay and remain commercially viable” (p. 47).”

Much like the drug law argument I talked about last week this is another example of people lauding governments for solving problems that the government itself is responsible for.  We need to look beyond the double-speak and identify the underlying issues at hand.  In this case government privilege granted to favored corporations.

FATCA closes Americans’ Foreign Bank Accounts

by Fred Foldvary

When the USA adopted the 16th Amendment to the Constitution a century ago, did the people understand that this would deprive Americans world-wide of foreign banking services? Americans thought that the income tax would just grab the money from the rich, but they did not understand that the income tax would tax everybody else more. All that is needed to equalize wealth without damage to the economy is to stop government subsidies, but this requires an economic sophistication that so far has eluded most people.

Inherently, an income tax yields an incentive to cheat, as the government depends on reporting. So the Internal Revenue Service has to monitor financial accounts to prevent tax evasion. Gradually, the IRS has extended its reach into accounts, first within the USA, and now into the foreign accounts held by American citizens.

No other country has imposed such costs and mandates on foreign accounts as the USA. So ironically the “land of the free” has the least economic freedom for its citizens abroad. The Foreign Account Tax Compliance Act (FATCA), enacted in 2010 requires foreign financial institutions to make reports on American accounts. Foreign financial institutions with American customers are required obtain a Global Intermediary Identification Number. FATCA requires foreign financial firms to identify their U.S. account holders, to disclose the account holders’ names, social security or other tax IDs, addresses, and the accounts’ balances, receipts, and withdrawals. For some accounts, the foreign bank is required to withhold some of the interest paid to the account, and send it straight to the IRS. This US law overrides the privacy laws of the foreign countries.

US law is thus legislating not only within US territory but throughout the whole world. If a financial firm does not comply, the IRS will tax 30 percent of its US-sourced income. The IRS is also busy laying out the legal infrastructure for enforcing this law with agreements with foreign governments for data sharing. Governments world-wide are signing on, because they too face the problem of tax evasion when they tax income that can hide.

FATCA does not just affect fat cats. Many foreign banks are now refusing to provide Americans with bank accounts and are closing the accounts of Americans, who are now also unable to obtain mortgages and insurance abroad. Americans are increasingly giving up their US citizenship in order to be able to work or retire abroad.

The US economy depends on international trade and global finance, with many Americans working abroad for US and foreign firms. Six million Americans live outside the territory of the USA. If Americans can no longer have foreign bank accounts, because the costs to the banks are too high, they will be so hampered that fewer Americans will be willing to live abroad, and this will hurt American enterprise.

Since the US government cannot directly impose laws on foreign lands, many foreign firms will sell their US affiliates and stop holding assets within the USA, thus putting themselves beyond the control of the US government. The overall cost to the US economy of FATCA may be much greater than the increase in tax revenue from reduced tax evasion. Also, those who seek to evade income taxes will find other ways. High taxes induce tax evasion, and enforcement drives evasion into other channels. How successful are US drug laws in stopping the smuggling in of drugs, and how successful have US immigration restrictions been at preventing illegal immigration?

Another consequence of greater reporting of American accounts is the increased risk of identity theft and theft of money from accounts. The greater the reporting, the greater the revelation of data that can be stolen.

It is no use seeking to repeal FATCA. The regulation of accounts, no matter how costly, follows from the income tax being, as Henry George put it, a tax on honesty. The taxation of wealth that can hide and flee requires strict and costly reporting and enforcement. The only effective remedy is to tax something that will not flee, hide, or shrink when taxed. A tax on land value cannot be evaded, and if that were the only tax, there would be no need to impose costs on finances.

Cognitive Blocks and Libertarianism

Last year Brian Gothberg, who was lecturing at a summer seminar I attended in 2009, left the following comment in response to a post about media coverage and Austrian economics:

I think there’s a perceptual or cognitive block, that simply makes it hard for many people to see government activity in the foreground of the story, as an actor which actively and (often) arbitrarily changes outcomes. It reminds of the recent Brian Greene programs on cosmology on PBS. In one, he compares the treatment of space, through most of scientific history, as simply being the unadorned theater stage, upon which the truly interesting things actually happen. It’s only later that Einstein (using Riemann’s math) described space as having positive, unambiguous characteristics. After Einstein brought space itself into the foreground, you could make statements about particular things that space did do, and other particular things that space did not do.

Another example: at a gathering of friends with children, my wife and I were observing a small boy (3-ish) who kept biting the other children. When it came to tears, parents would come in and intervene, and scold him. Later, we watched the same parents — who were baffled at the boy’s biting — laugh and giggle as the father playfully bit his son. Apparently, nobody had ever brought the father’s behavior into the foreground, for their scrutiny, as a possible influence on the son’s problem. Sometimes, the obvious does stare people in the face. I think that the way we describe the role and actions of government, in the press and schools, goes a long way to explain this cognitive block. Libertarianism is nothing like common sense; not nearly.

I was reminded of this as I read the following 2008 piece by Roger Lowenstein in the New York Times, where he documents the regulatory regime that was built by the state in the years leading up to the Great Recession. Check this out: Continue reading

The Volcker Rule

Paul Volcker is a man of considerable stature, and not just because he’s six feet, seven inches tall. He gained a reputation for courage and plain talk as chairman of the Federal Reserve System under Presidents Carter and Reagan because he broke the back of the 1970s inflation. He did so by (mostly) sticking to a tight monetary policy even though that meant sky-high interest rates and sharp back-to-back recessions before the economy could enter its vigorous recovery. Now 84, he has enjoyed a comeback in recent years as an adviser to President Obama. His Volcker Rule, prohibiting proprietary trading by banks, was heralded as one way of preventing a repeat of the recent financial crisis, and it became part of the Dodd-Frank Act signed into law in July 2010.

Dodd-Frank’s full title, incidentally, is the Wall Street Reform and Consumer Protection Act. Like most current legislation its name reflects hoped-for outcomes, not its actual provisions. Reading the act (the PDF is available here) is not for the faint of heart. There are 16 titles consisting of 1,601 sections for a total of 848 dense pages. Only a lawyer could love sentences like this:

Any nonbank financial company supervised by the Board that engages in proprietary trading or takes or retains any equity, partnership, or other ownership interest in or sponsors a hedge fund or a private equity fund shall be subject, by rule, as provided in subsection (b)(2), to additional capital requirements for and additional quantitative limits with regards to such proprietary trading and taking or retaining any equity, partnership, or other ownership interest in or sponsorship of a hedge fund or a private equity fund, except that permitted activities as described in subsection (d) shall not be subject to the additional capital and additional quantitative limits except as provided in subsection (d)(3), as if the nonbank financial company supervised by the Board were a banking entity.

Volcker initially outlined his proposal in a three-page memorandum. It came to life as Section 619 of Dodd-Frank, expanded to 11 dense pages. This section is supposed to prevent banks from buying and selling securities for their own accounts, in contrast to brokering customer trades. It also prohibits banks from holding interests in hedge funds or private equity funds or from sponsoring such funds. These prohibitions are supposed to lessen the need for future bailouts like those that were provided to financial institutions in 2008 and 2009. Continue reading

Making Whistle-Blowing Pay

The federal bureaucracies are hard at work churning out rules to implement the Dodd-Frank financial “reform” act. In May the Securities and Exchange Commission announced rules for its new whistleblower program, which rewards individuals who provide the agency with “high-quality tips that lead to successful enforcement acts.”

The minimum amount of recovered funds that can earn a reward is $1 million, but the sky’s the limit on the upside. The whistleblower gets to keep 10 to 30 percent of the amount collected, including fines, interest, and disgorgement of ill-gotten gains. We’re talking about big game here, with awards conceivably topping $100 million.

Eric Havian, an attorney with a law firm that represents whistleblowers, noted in an interview with the San Francisco Chronicle’s Kathleen Pender that the securities laws cover a “huge category of bad conduct,” such as illegal insider trading, cooking the books, market manipulation, stock option back-dating, false or misleading disclosures, and the deceptive sales of securities. Almost anything potentially can be illegal, and these vaguely defined offenses leave much room for government mischief. As for insider trading, this is a practice that does little harm and may actually provide benefits to small investors. (See my January/February 2011 Freeman article, “Inside Insider Trading.”)

If corporations felt they needed limits on insider trading or other conduct to attract shareholders, they could write prohibitions into their bylaws so that violations, if not settled internally, could be remedied under civil law. Continue reading