Of Business Losses and Government Help

In recent days JPMorgan Chase bank announced that it suffered $2 billion in trading losses, and Washington is all a-twitter.  You would think that a government that runs deficits of one and a half trillion dollars would hardly notice any event of $2 billion, but the chattering classes who think that they should have some role in running everything are all chattering about it and how it clearly demonstrates the need for more regulation, i.e. more need for them to be involved in running private businesses.

Mind you, JPMC’s $2 billion loss is a lot of money to you and me, but this does not particularly affect you and me.  JPMC suffered the loss, and given the size of the bank and its earnings (it usually makes somewhere in excess of $4 billion each quarter) it will little affect its bottom line.  JPMC is not asking anyone else to cover its losses, other than its own shareholders, and they will not feel it much if the bank continues to be as well run as it has been.

Ah, but perhaps you are thinking that JPMC got some of that TARP money so involved in the financial panic.  That is true, JPMC was one of the banks whose arms were twisted hard by Treasury Secretary Paulson to take a forced government investment.  Those TARP investments spooked regular, private sector investors, who immediately ran for the sidelines, and the financial crisis was on, propelled (as most are) by bad government efforts to “fix” things.  JPMC did not want the money or need the money and in a few months paid it all back—with substantial interest—as quickly as Congress and the regulators would allow them to.  It reminds me of the elderly gentlemen who finally yielded to family cajoling to take a ride in a stunt plane.  Afterward he thanked the pilot for the two rides, his first and his last.  TARP was such a bad deal for those who received the investments (except for the couple of financial firms that might really have wanted it), that I do not think that any would want a second ride, perhaps not even again at gunpoint.

The recent loss by JPMC, in any event, was one well covered by the bank’s earnings in other of its many lines of business.  Curiously, I do not hear the chattering classes get exercised when each quarter Fannie Mae or Freddie Mac announces several more billions of dollars of losses, losses that they do ask for the Treasury Department to make whole.  Maybe that is because the regulators already run Fannie and Freddie.  Actually, there was a little bit of noise in the past few days when Fannie Mae announced that it had actually turned a profit for the last quarter, the first time in years.

One thing that disturbs me in all of the Washington humbuzzah over JPMC’s trading loss is the implicit notion that there is something wrong about a business losing money on an investment, something wrong enough to call forth a government role.  It seems to me that losses are just as much a sign of a normal market as gains are, that healthy markets have a good share of both.  Nobody seemed to lose money during the housing bubble, no matter what they did, but that was hardly a sign of a healthy market place.

What markets do when they are allowed to is reward good business decisions and punish bad ones, with gains and losses providing some of the most effective means of helping businessmen and their investors understand truly which is which.  JPMC made some bad business decisions and lost money, and the counterparties to those trades made good ones and earned money.  What role can government play in all of that other than to mess it up?

To get government involved in this process rests upon at least two preposterous notions.  First, it suggests that it is somehow the role of government to make sure that businesses do not lose money, otherwise, why all the fuss?  That, of course, was the Soviet business model that did so much to create modern Russia.  Second, and following on the first mistaken notion, it supposes that government officials will know better how to avoid business losses.  Anyone really believe that?  Share with me your examples, and I will pass them on to the Federal budget planners.

Of Public-Private Partnerships and Public Corruption

One of the popular phrases in Washington that makes me cringe every time that I hear it is public-private partnership.   This is a foreign concept, alien to the Declaration of Independence and the Constitution.  The Founders fled from the institution.  It had a rich history in Europe, and our Founders hated it, because it tended toward abuse (as it does today).  They had been methodically abused by it.

One example, the infamous British East India Company was a public-private partnership that engaged in colonization in America and elsewhere (perhaps most notably, India), harnessing the colonies with oppressive collars of monopolies that forced the colonists to do business only through the Company that enjoyed the privileges and powers of the Crown.  Those privileges were used to underpay the colonists for what they produced and sold and overcharge them for what they bought.  Fortunately for America, the Founders became champion smugglers, taking advantage of a land with an extensive seacoast and rich with usable harbors.  The smuggling was fortunate also for Britain, for without it the new British colonies in America would have been strangled in their cribs.

The Boston Tea Party was a colonial revolt against monopoly powers exercised in the name of the British Government by the East India Company.  That this revolt took place in Boston was not unusual, as the power and influence of the Crown-endorsed Companies were stronger in Virginia and other places to the south than they were in New England.  The New Englanders were less accustomed to it and therefore felt its oppressions more keenly.  Crown companies had much less of a role (but were not unknown) in lands settled by freedom-seeking Puritans and Pilgrims.  The Jamestown Colonies were from the beginning Company expeditions.  But the Virginians and many other Americans grew increasingly weary of those public-private partnerships and the corruptions that they fomented.  The wide lands of North America encouraged a freedom that the public-private partnership of Crown and Companies was not able to stifle.

It took royal favor to create the public-private partnerships, and the maintenance of royal favor to continue them.  No surprise, then, that such favor had to be funded by steady payments from the partnership to the government officials possessing power to control the royal favors.  In exchange, government discretion, including the judging of right and wrong, was all too often influenced by what favored the partnership rather than what favored justice.

This was how public-private partnerships were corrupting on a personal level.  They were also corrupting to the State, corrosive of freedom.  In no small degree British freedoms from the King have been built by the power of taxation controlled by Parliament.  With great skill over centuries British Parliaments wielded the power of managing the government purse to win new freedoms from the British Kings.  Since there is money to be made by using government power in public enterprises, however, sovereigns can find ways to cash in on that value and avoid the accountability that comes with having to seek new taxes to pay for their programs.  In the great conflict between the Parliament and King Charles I, the King was long able to avoid resorting to Parliament and acceding to its demands for freedom by funding his operations through the sale of royal privileges to and by reaping revenues from the companies and other public-private partnerships.  He carried it too far and eventually lost his head, but the American Founders did not fail to learn the lesson.

Neither did our modern Presidents, many of whom have revealed a fondness for public-private partnerships as a means to extend government programs and influence, even to the exclusion of congressional and public oversight.  Franklin Roosevelt loved creating government-sponsored monopolies, even while giving many speeches against the evils of monopolies.  Today our economy is riddled with public-private partnerships, large and small, and they as always tend toward abuse. 

At the heart of the recent financial recession was the housing bubble supported by two of the greatest public-private partnerships in American history, Fannie Mae and Freddie Mac.  Created to promote government housing policy without using taxes or appropriations—and thereby escaping public accountability—their government privileges allowed them to borrow all the money they needed at prices little above government rates and use that advantage to drive competition out of the middle of the housing markets that they occupied.

When the housing bubble at last burst, the Treasury’s TARP used a public-private partnership with banks (most but not all of whom were unwilling partners) to push investors out of the banking markets and turn the financial crisis into a financial panic.  Once in office, the Obama Administration embraced TARP, to which they added a trillion dollar stimulus package that accelerated our budget deficit crisis.  The Obama stimulus package was lousy with public-private partnerships, a significant reason why it failed so miserably to stimulate our economy, destroying one or more jobs for each one that it promised to create through government favor.

The Faustian bargain at the core of the public-private partnerships corrupts all involved and touched by them:  the government that creates them, the partners who sell their souls for the advantages, and those disadvantaged by the whole unfairness.  Former Congressman Dick Armey—a foe of public-private partnerships—has often warned that when you partner with the devil, you are always the junior partner.

Of the Spirit of America and the Spirit of Tyranny

Last week I experienced two memorable events, each in its own way pointing to the spirit of America. One, appropriately enough, was called “The Spirit of America,” the annual presentation of the U.S. Army’s Old Guard, headquartered at Fort Myer, in Arlington, Virginia. The program chronicled the history of the Army from its first days in the War of Independence to the present.

There is no reliance upon hyperbole in saying that the U.S. Army has been one of the most effective instruments in the history of mankind for the promotion of freedom. Without the Army, independence would not have been achieved and very likely not even attempted (the Army came into being a full year before the Declaration of Independence).

The very existence of the United States has been a beacon and stimulus to people around the world to strive for and obtain freedom. Would the colonies of Latin America have sought liberty without the successful example of the United States? How significant was the example of America to the struggles of the peoples of Europe to cast off their monarchies? To what extent did Great Britain learn from its painful mistakes administered by the citizens and Army of the United States and provide for a gentler path to liberty for its many colonies around the globe? The Army has been a reliable and effective protector of that beacon of American freedom.

With direct action, the U.S. Army became the essential element that gave force to Abraham Lincoln’s Emancipation Proclamation. Without the victories of the U.S. Army over the rebels who rose up against freedom and constitutional government Lincoln’s Proclamation would have been a scorned piece of paper that offered false hopes to millions laboring in slavery.

In the Twentieth Century the U.S. Army helped bring World War I to its end, the western republics triumphing over the central monarchies. It was the U.S. Army that not only played the central role in defeating the dictators of central Europe and Japan in World War II, but wherever it went the U.S. Army left free republics in its wake, including among the vanquished nations. Again in Korea, Viet Nam, Grenada, and Panama the U.S. Army fought for freedom and against tyranny. Throughout the Cold War the Army—together with the other important branches of the armed services, equally effective instruments of freedom—remained strong and active to protect the free world against totalitarian communism.

This idea did not originate with me. Our grandfathers knew these things. They were commonly understood until recent generations witnessed the armed services and even national defense itself become open questions with left-wing academics seeking to reintroduce into America, and dress in pseudo-intellectual clothes, the exploded Old World programs of tyranny and rule by elites. That the idea of the liberating role of the American military can seem fresh and insightful is a mark of how much the religions of tyranny have found a place in popular media and even in the education supplied in many government schools.

By contrast the spirit of America silhouetted the other event to which I referred. This was the speech of President Barack Obama before a joint session of Congress, outlining his latest plan to restore job creation that has been so effectively undermined by his economic policies. If you reach through the cloud of rhetoric, President Obama’s proposal does not rise above expanding the size of government and raising taxes on successful people and entrepreneurs. That is not the spirit of America.

That is the spirit of the old nations of Europe and Asia from which our forefathers fled to found something entirely different in the New World. That is the spirit where people get ahead by the favor of those in power, and the people in power take what does not belong to them to reward their supporters and hangers on. A leading news story of this week is the scandal of a bankrupt “green” factory that was awarded nearly half a billion dollars by the Obama Administration and used as a television backdrop to announce how government subsidies to “green” industry would pave the road to national prosperity. That idea is today just as bankrupt as the business. It seems that what made this business green was the color of the money that Washington elites poured into it from the U.S. Treasury.

Together the two events demonstrate what the spirit of America is and what it is not. The first is a legacy of personal sacrifice by free soldiers for the freedom of others. The second, the spirit of tyranny, would sacrifice other people for the expansion of government and the power of Washington elites.

Of Financial Panic and Lessons Learned

Late last month I met with a group of German businessmen. They were on a visit to improve international understanding through cross-Atlantic dialog. As you can imagine, they were most interested in how the economy was doing. The German economy is off to a quicker recovery than is the U.S. economy, but in all fairness the Germans have not had to overcome as much government help as we have (during and following the financial panic of 2008)—although they are very worried about having to swim while being chained to drowning economies like Greece and perhaps others of the European community.

Among the specific issues that they asked to discuss was the question, “Have we learned lessons from the recent world economic crisis?” As I pondered that question, I came up with a list of eight lessons that we perhaps have learned. There are certainly others you or I might add, but here are the eight lessons learned that I came up with at the time, in no particular order of priority:

1. Economic and financial models are not as good as advertised. Much of the financial regulatory program of recent years was based upon the notion that regulators and the firms that they regulated had come up with powerful models to identify how well financial firms and the economy were doing, models that could be relied upon to control the economy. In fact, confidence in models was so high, that policymakers were starting to rely upon them to help predict the future. It turns out that economic reality is far more complex than any models, regardless of how powerful the computers are that run them. Once again we have seen that no group of policymakers, regardless of how smart they are or how much information they have, can control the economy any more than they can control the weather, and we should not fault them for failing to do so. We can only fault them for trying.

2. Fannie Mae and Freddie Mac are not the best run companies in the world. This lesson seems so painfully obvious that it is hard to believe that there was a time when people held them out as examples for emulation of corporate and financial management. But that was their reputation. We now know that the government privileges that they enjoyed allowed them to become sloppy in many crucial ways, especially in the management of their financial risk.

3. The biggest risk to the financial system is regulatory risk. Nearly every one of the financial firms that were strongly “persuaded” by policymakers to take government TARP money suffered market and reputational damage from those investments far worse than any financial challenges that they had. Nearly all of the largest recipients of TARP money paid it back as fast as the Congress and the regulators would let them, at a very expensive rate of interest. While a few have complained of these and other regulatory costs, more would if they were not afraid of the danger of being sent to the cornfield if they did, so they just say that it is “all very good” as their highest new costs today come from government regulations.

4. Economic reality always catches up with you, eventually. By the laws of economics, housing prices cannot long continue to exceed the rate of economic and population growth, but during the housing bubble the myth was that housing prices do not go down, at least not by much and not for long. The same was said about oil prices, by the way, as they grew even faster than housing prices. All came down, and all who believed and acted as if they would forever go up paid for expensive lessons. The same lesson is true today about government deficit spending. In spite of economic reality, too many policymakers act as if there is no limit to how much debt the government can put into the market. That false notion will crash on the rocks of economic reality, eventually.

5. Accounting rules, especially mark-to-market rules, are highly pro-cyclical. Accounting rule makers are on a multi-year crusade to force all companies to value practically everything by what you can sell it for in the market place right now. That means that in times of exuberant markets everything will look great and better than it really is, transferring market manias onto the financial books of companies. It also means that in times of panic, all things will look worse than they really are, accounting rules making sure that panic prices are written onto companies’ financial books. Mark-to-market financial rules were the amplifiers that helped puff up the housing balloon, just as they helped feed the subsequent financial panic.

6. You can hide risk, mask risk, but you cannot avoid risk. All economic growth comes from someone taking a risk. There is risk in whether a new invention will be well received in the market place, or whether a new store will succeed in its new location, or whether the new employees will do a good job, and on and on. There is a natural human tendency to want to harvest the rewards of investment without being exposed to its risks. So people try to get others to take that risk, or try to pretend it is not there, but the risk will be there, and the less obvious it is the less likely that people will take precautions to manage it. The biggest problem from the housing boom was that people thought that building houses and lending people mortgages to buy them were riskless, when in fact they are loaded with risk. A variety of things masked that risk. When it finally asserted itself, people who thought that they had made no-risk investments panicked. The same is happening today with people who invest in “no-risk” government securities. You might be able for a time to hide the risk; you cannot avoid it.

7. Bad underwriting is bad. When a lender decides to lend money he first evaluates the ability of the borrower to repay the loan. That evaluation is called underwriting, it is the lender making the determination that the loan is a good investment. Lenders and others will make mistakes: borrowers will get into unforeseen troubles, their new invention might not work as well as thought, their business might face a new and better competitor, some tax or new regulation might eat away anticipated profits. The lender expects that some small portion of loans will run into repayment problems, and the lender plans for that by setting aside reserves for loan losses. But when the lender does not pay attention to the risks that he can see, then he engages in bad underwriting, and no amount of reserves can absorb those losses. Would we have had a housing bubble and then a housing crash if so many mortgages were not provided to people who could not afford the houses that they were buying? Not enough lenders looked carefully enough into that question.

8. Financial firms cannot long offer products that policymakers and the public do not understand. Recent legislation and regulations are aimed at curbing some of the most successful financial products and practices, largely because policymakers and the public do not understand them. In times of financial turmoil, policymakers look for something to do, and one of the first things that they try to do is stop what they cannot understand. The public is vulnerable to the rants of people seeking to deflect criticism from their failings to products or practices that the public does not understand. The credit default swaps market was one of the few financial markets that worked extremely well throughout the recent financial turmoil, never freezing up while other markets pretty much stopped. As another example, bank investments in the securities markets—other than loans—were an important source of diversified income for banks, helping keep banks afloat when bank loans were suffering heavily from people and businesses that defaulted. Recent legislation and regulations are placing heavy new burdens on these profitable activities, and in some cases banning them entirely, because policymakers do not understand them. Financial firms have to be more active in explaining everything that they do, or they will continue to find many of their newest and best financial activities curbed in times of regulatory fear.

As I say, you can probably add to this list, as could I. As I ponder now the question that the German businessmen put to me, the actual lessons that we have learned seem to me less important than whether we will remember the lessons.

Of What Government Knows and What It Will Do

The biggest cause of the lingering financial trouble and the 2008 financial panic has been bad government policy. The markets did not fail. The markets did just what government policies encouraged them to do, namely over-invest in housing while paying little attention to the risks. That created twin bubbles in house prices and in the ways that building houses and buying houses were financed.

When the bubbles burst, the government leadership panicked, and the markets followed their leadership. Treasury Secretary Hank Paulson predicted imminent disaster, and the Federal Reserve rather than playing an independent steadying and calming hand reinforced those predictions (although without the public “fire in the theater” shouting of the Treasury Secretary).

Perhaps the best that can be said about the federal financial leaders during the financial crisis is that they did the best that they knew how to do. The problem was, that they did not know what to do. Each new memoir or retrospective published by one of these financial leaders reveals that they were acting on insufficient knowledge, insufficient information, and most of all insufficient understanding of what was going on. In other words, none of them knew enough to know what to do, and none of them knows enough now.

No one can ever know enough. The economy is just too big; there is too much for anyone but God to know. In an economy as large and diverse as ours, with billions of economic decisions being made all in the same day, it is impossible for anyone to know enough at any one time—of all that is involved—to be able to make the right decisions to control the economy, even if there were someone wise enough to do it.

That problem is not solved by creating a committee to control the economy. While any one person who serves as decision maker will suffer from lack of knowledge and will wear blinders towards the parts of the economy he either does not understand or is not watching at the moment, a committee of people has its own major shortcomings. Not the least of these is the proclivity of any group to be captured by group think, by the members of the group reinforcing each other to form a consensus and not venturing to upset things by questioning or looking beyond the consensus.

That is usually what happens with economic and financial bubbles. A key idea, usually a wrong idea, captures the group imagination. So many people come to believe this idea—like the odd notion that housing prices rarely if ever decline—that they all act on it, building up artificial values that increasingly depart from reality. When there is no government involvement, these bubbles burst soon enough and are resolved pretty quickly. Government leadership can hasten the formation of group think when an idea is part of official policy, and government policies can help to keep it going. Then, because government officials are slow to admit their own mistakes, government policies slow down the quick and natural adjustments that the market provides when the bubbles burst.

Unfortunately for all of us, the new Dodd-Frank financial regulatory legislation increases the power of new government financial czars to try to control virtually any aspect of the financial system that they choose. That error is not diminished by requiring these financial czars to meet together in committee from time to time, in a new Financial Stability Oversight Council (FSOC).

This last week two of the financial czars testified before a commission created to discover what caused the recent financial trouble and to recommend what to do about it (seems that if people were serious about this commission it would have made sense to pass new legislation only after the commission finished its work). One of the commission’s members, John Thompson, asked this question: “Why should we believe that this Council (the FSOC) is going to be uniquely different and keep us out of trouble?” (Donna Borak, “FCIC Presses Bernanke, Bair: Will Dodd-Frank End Bailouts?”, American Banker, September 3, 2010) Good question, but it got a poor answer, basically the observation that government regulators have more authority now. That is akin to saying that I will improve my aim because now I have more ammunition and a bigger gun.

Federal Reserve Chairman Bernanke admitted that even with all the new power given to the federal financial czars it will take political will to use it. “If there’s a lack of political will, there’s probably no solution that is sustainable.” Even were we to believe beyond all experience that any federal regulators or group of federal regulators could possibly know enough, where is the evidence that there would be the political will to break through the regulatory group think? Where would there have been the political will to bring the housing bonanza to a halt, or even to rein in the politically powerful housing giants Fannie Mae and Freddie Mac (which at least the Federal Reserve was seeking to do, against strong opposition from Congress—the stronger political will opposed needed reform)?

You do not need political will, however, if discipline in the markets is not a political decision. Market solutions do not require any political action or the exercise of political will by some federal financial czar or council of czars. No one needs a federal agency to drive down the stock of a badly managed company. Enron was beaten up by the markets long before Congress got around to it. The financial firms that disregarded risks in the housing bubble were put out of business by the markets—except for the firms that the government decided to prop up.

Which highlights the danger we are now in: today, as a result of the Dodd-Frank Act we have a financial system dependent on the government. Every important financial decision has now become a political question for one or more regulators to chew on and manage. Ready or not, here they come.

Of Wall Street and Pennsylvania Avenue

Who wants another financial crisis? To hear the advocates of the Administration’s financial regulation bill, anyone who disagrees with them does.

Let us walk past the discussion of others’ motives, important as they might be. Let us, you and I, agree that we do no want another financial crisis. Or, phrased better, let us agree that we would like to reduce the likelihood of another financial crisis and minimize the extent of crisis when it comes. Anyone believe that there will never be another one? Recognizing that crises will occur and that we will be better prepared to face them by acknowledging and preparing for their possibility, let us consider which approach is likely to work to reduce their frequency and their severity.

Which is more likely to be more effective at reducing the risk of financial crises: government regulators or market discipline? Relying upon experience as a reliable guide, the question is soon answered. Government was all over the most recent crisis. In fact, the most recent financial crisis was fomented by government regulations and stimulated into panic by unwise government actions, all of which worked to shield key players from market discipline. Government housing programs and guaranties led people to ignore the risks of mortgage lending—ignored by borrowers and lenders. Credit rating agencies (CRAs) were able to classify risky mortgage securities as nearly risk-free, shielded by the Securities and Exchange Commission from market pressures to identify risks that the CRAs were paid to find.

The crisis was fanned into a panic after the Paulson Treasury Department (1) orchestrated the bailout of the securities firm Bear Stearns, then (2) subjected investors to a big tease with Lehman Brothers which they at last decided not to bail out, (3) bailed out AIG, (4) bailed out bond investors in Fannie Mae and Freddie Mac, and then (5) demanded from Congress $700 billion for the catastrophic Troubled Asset Relief Program (TARP). None of the TARP money was used to buy any troubled assets. A third of it went to bail out banks that were not in trouble (until they took the Treasury’s shilling) while other billions went to auto companies that were.

So why are the Administration and leaders in Congress on the verge of enacting legislation that will give Washington bureaucrats virtual control of any and all of the financial system at their whim? Could it be that these friends of regulation, who control the lawmaking powers this year, are unwilling to admit their mistakes? Or is it that the friends of regulation see the financial crisis—whatever its cause—as a wonderful opportunity to expand regulatory controls? Or maybe it is just that once you tell a story—that Wall Street caused the financial crisis—you have to carry the story on to its conclusion, however wrong that might be. In either case, the friends of regulation control the megaphones and the levers of power. If they have their way, though, Time will surely tell whether it was a good idea for Pennsylvania Avenue to replace Wall Street as the financial center of America.

Of Financial Reform Promises and Too-Big-to-Fail Firms

One of the many astonishing things about the Obama Administration’s financial regulatory legislation is that it promises so much and delivers so little of what it promises. In fact, in most cases it delivers the opposite of what it promises. Seemingly, the Administration knows what the American people want, so it uses promises of delivering what the people want and what the nation needs in order to enact changes that most Americans will neither want nor like.

As Senators and congressmen prepared to return to their states and districts the Administration published a list of “Top Ten Things You Should Know About Financial Reform.” Presumably this would serve as a guide to politicians giving their Memorial Day stump speeches. I heard one Democrat congressman at the Memorial Day ceremonies in Waterloo, New York. Neither the list nor the legislation found its way into his remarks. Good thing for the congressman, because the legislation as currently written fails on all ten of the “Things” that the Administration paperwork boasts that it delivers.

Let us examine Thing 1:

1) End of Too-Big-To-Fail: If a big financial firm is failing, it will have only one fate: liquidation. There will be no taxpayer funded bailout. Instead, regulators will have the ability to shut down and break apart failing financial firms in a safe, orderly way—without putting the rest of the financial system at risk, and without asking the taxpayers to pay a dime.

Part of that Administration statement is true, but only part of it, and not the most important part. The legislation would provide regulators with the ability to shut down and break apart failing financial firms. Regulators already have that authority today and have been exercising it weekly for the past two years to close down failed banks “without putting the rest of the financial system at risk, and without asking the taxpayers to pay a dime.” Failed non-bank firms have been closed down through bankruptcy proceedings—again, “without putting the rest of the financial system at risk, and without asking the taxpayers to pay a dime.”

The risk to the rest of the financial system and the demand for taxpayer bailouts have all come in the past few years as the federal government has gotten involved to prop up firms that the federal government did not want to fail. Prior to the recent financial crisis, too-big-to-fail was a theory. Treasury Secretary Paulson made it official policy and practice, which policies and practices have been officially approved and adopted by the new Administration.

The new financial regulatory legislation—even while making it easier for financial regulators to break up and unwind failing financial firms—would also give to regulators legal authority to bail them out, prop them up, and have them born again as clean firms, free of the financial encumbrances of all of their sins of the past. In very real and important ways the legislation would take the theory of too-big-to-fail, turned into official practice by the Paulson Treasury Department, and make it the law of the land.

There are several ways that the legislation would provide this service. One important tool is the new explicit ability of the FDIC (which would become the agency for handling not just failing banks but any failing firm that government leaders considered important enough for the FDIC’s care) to treat the investors in a failing firm differently. The FDIC would be explicitly authorized to protect some investors and not protect others, giving special attention to the customers of a firm and those who have lent money to the firm. Shareholders are supposed to be wiped out and the leaders of the firm fired, but the bondholders and counterparties doing business could be protected.

If this sounds familiar, this is exactly how the federal government has been treating housing giants Fannie Mae and Freddie Mac. When the government took them over in late 2008, shareholders were nearly but not entirely wiped out, leaders were let go, but all of the bondholders, counterparties, and investors in debt securities of Fannie and Freddie became 100% protected by the federal government and remain so today. Several other participants in the financial system were “put at risk,” the government’s exercise of discretion to pick winners and losers precipitating the failure of several banks that were holding preferred shares of Fannie and Freddie that the government chose not to protect. The taxpayer has not been protected either, the Treasury deciding last Christmas Eve to allow Fannie and Freddie to receive unlimited federal support, already totaling hundreds of billions of dollars.

Fannie and Freddie are government sponsored enterprises (GSEs). The government subsidy programs for these GSEs would be the new model available for any firm designated as systemically significant by the federal government under this legislation. That is to say, that under this legislation, in place of two GSEs we would have potentially dozens.

There is a price for this attention. Whether a firm wants it or not, under this new legislation, if enacted, any firm could be given the GSE treatment. Once the government considered a firm to be “systemically” important it could be told in as much detail as the government leaders considered necessary exactly how to run its business. No part of the business of the firm would be exempt from the government’s reach. The federal government would become the effective partner of that firm. And as former Congressman Dick Armey once said, when you partner with government, the government is never the junior partner.

Now, ask yourself this real-world question: as senior partner, would the government ever let any of its partner financial firms fail? If, as is the case with Fannie and Freddie, by following government mandates the firm got so deep in the red that action became unavoidable, the federal government would be able to use another powerful tool in the proposed new law: the authority to create a “bridge bank." As the government has been doing with Fannie and Freddie—and as many suspect the government will do to “fix” Fannie and Freddie—government officials could take over the operations of the firm and use this bridge bank authority to protect whichever investors they wished and make others (not leaving out the taxpayer) suffer loss. Through a legal and financial “baptism” administered by the federal high priests of finance all of the sins of the failing firm could be gathered together into one “bad bank” and all of the remaining operations of the firm could emerge as a new firm washed completely clean of bad debts and uncollectible assets. The new firm could then be offered up again—either with the same name or a new one—to investors. Of course, the federal government would likely remain as senior partner, but this would give comfort to investors who, like investors in Fannie and Freddie, were looking for a place to put their money where the government would be expected to protect those investments.

Ending too-big-to-fail? In the Administration proposal too-big-to-fail becomes the law of the land. The Administration’s number one selling point for financial legislation is a very good reason to oppose its bill.

Of Financial Safety and Lost Liberty

Americans are about to lose more of their liberty, in a very big way. Like the oil leaking away from the deep well in the Gulf of Mexico, American financial liberty will be steadily draining off with few ideas on how to stop the leaking once it has begun.

First the housing markets panicked, then the Paulson Treasury panicked, and then the financial markets panicked. Now panic has hit Congress. Ignoring that the housing-financial crisis was set up and fomented by bad government regulatory programs, Congress is on the verge of enacting legislation that will give to government regulators authority to control any financial activity in the United States.

You may think that I am exaggerating a bit here, getting carried away by rhetoric. I wish that I were. Looking at the provisions of the legislation that the Senate is now debating and is scheduled to pass in the near future, I cannot think of a single financial transaction that government agencies would not be able to control. By control, I mean set rules as to how the transaction would be structured, to whom it could be offered, by whom it could be offered, how it could be advertised, how it would be priced, or even whether it could be offered at all.

Let us consider a simple financial service: a home equity line of credit, or HELOC. With a HELOC a customer can borrow money from the bank up to the amount of equity that the customer has in his house. The attractiveness of the HELOC is that you do not have to sell your house in order to use the equity in it to help pay for college, fund needed remodeling, or even start a small business. With the loan backed by the equity in the house, the borrower gets a far lower interest rate than he would without that collateral.

The legislation would create a new, totally independent federal bureau of consumer regulation. This new bureau—headed by a one person consumer czar endowed with power that would make an old Russian despot jealous—could determine, for example, that it would be “unfair” or “abusive” if the amount of money that a customer could borrow under a HELOC were reduced by the bank when the value of the customer’s house declined. I am not making this up. At a recent Federal Reserve meeting self-appointed consumer advocates, who would dominate the new bureau, complained that banks during the housing bust were lowering HELOC amounts for no good reason other than that home prices declined, neglecting that what makes a HELOC affordable is that it is backed by the value of the house. The value of the house goes down, so must the value of the collateral and the loan amount secured by the collateral. The law would not require, however, that the new consumer bureau be guided by common sense.

Other provisions of the proposed law would allow government agencies to break up any company in America, or make it set aside any reserves, or give up any line of business—and allow the agencies to play favorites by acting one way with one company and very differently with another—as long as the agencies claimed that their actions were appropriate to deal with systemic risks. The agencies would be the sole judges of what makes for a systemic risk. Or, to look at the authority another way, the federal financial agencies would be able to define what they consider to be “safe” financial conduct and effectively ban everything else, and steer individuals and businesses into government-identified safe financial activity.

In case the recent financial panics tempt you to think that all of this is a good idea, remember that we have tried this all before, and very recently. The example—housing—is staring us in the face. Maybe policymakers in Washington are too close to it all to notice.

In the housing fiasco, the government determined that mortgages were very safe (as demonstrated by Federal Housing Administration programs that allow homeowners to have a negative equity position on day one of their new government-guaranteed mortgages), that investing in mortgages was safe (hence the creation of government-sponsored Fannie Mae and Freddie Mac, to encourage investment in mortgage securities), that packaging mortgage securities was safe (as demonstrated by AAA ratings for packages of securities, awarded by credit rating agencies that were franchised by the Securities and Exchange Commission), and that housing assets on bank balance sheets were safe and worthy of incentives by regulatory standards that allowed banks to hold relatively little capital for their mortgage loans.

So, given how well the government identified safe financial activity in the housing markets we can expect the government officials to be equally mistaken in identifying other forms of safe financial activity. Even as I write this, government officials are working on new plans to establish rules to require banks to stock up on various types of government debt. These rules are based upon the near-sighted assumption that government debt is safe—ignoring the rising flood of Greek government debt, held back only temporarily by sandbags filled with fiat money from other European governments.

On the wall in my family room I have a framed $500 government bond. Only one coupon from it has been clipped, a semiannual payment for $15 in interest. The next coupon is payable on July 1, 1865, by the government of the Confederate States of America. That coupon and all the rest of the coupons through 1894 remain unredeemed. The proposal by Congress to exchange American financial freedom for the wisdom of government to identify safe financial activity has the crackle of Confederate money.

Of Government Collusion and Market Discipline

There is a lot of noise and confusion about what caused the recent financial panic. The Obama Administration believes that the basic problem is that markets do not work right, people are too dumb to choose for themselves, and that regulatory agencies were not able or were unwilling to keep up with bank shenanigans. Their solution: more of the same, that is, create a variety of new government agencies and bureaus that have the authority to dictate and control any part of or player in the financial system, including control of financial customers large and small (look in the mirror for the definition of financial customer). This neglects the fact that government agencies were the most blameworthy in the recent financial panic. In fact, it is impossible to have a long, sustained economic recession or depression without government policies causing it. (I will save for another day how the policies of the Federal Reserve and the Franklin Roosevelt administration made sure that an economic downturn became a depression lasting for a decade.)

Let me address the first of these points in the Obama administration’s justification for taking over the financial system. First of all let us consider the markets. It is true that the markets did not perform right. That was because government rules, structures, and programs did not allow the markets to perform right. The government guarantees bank deposits, so depositors do not care very much how safe or sound a bank is. Government-sponsored enterprises (GSEs), like Fannie Mae and Freddie Mac, bundle up mortgages into securities that investors assume have little or no risk. The Securities and Exchange Commission (SEC) approves and controls the small number of credit rating agencies, and investors believe that these agencies are right when they give to a particular company or investment their highest credit rating (such as AAA), a rating that is thought to present little or no risk. The SEC has protected these agencies from competition and from market discipline for their errors while providing little in the way of regulatory discipline.

With those and other government protections in place the appearance of risk just about disappeared from the mortgage markets. Different investors have different appetites for risk. It was not the people hungry for high risk returns that fueled the housing bubble. Many of those with the weakest appetite for risk, seeking the safest investments, were drawn to the mortgage markets. In this government-manufactured atmosphere of little or no risk, many mortgage firms, increasingly non-bank mortgage firms, made it more and more possible for people to buy houses that they could not afford. Once the mortgage firm made the mortgage, regardless of the ability of the borrower to repay, the firm sold the mortgage to the GSEs, who sold it on to investors who poured trillions of dollars into what they thought was a safe haven. Then the mortgage firm went on to make more mortgages. Investors were shielded from asking whether the mortgages were any good, that is, whether the person buying the house could actually afford it.

That mispricing of the risk pulled more and more money into mortgages and real estate, driving prices up and up, pulling in more and more investors as the prices rose, until it was impossible to put one more Jack on the house of cards without it tumbling down. People panicked when “safe” investments turned out to be risky. Then the government started panicking, bailing out some firms and not others, changing the rules almost weekly, demanding hundreds of billions of dollars from taxpayers in order to pick financial winners and losers. Investors, not knowing where the government would turn next, panicked some more.

It was government interference in the market that failed, not the markets. Without all of the government camouflage, investors would have insisted on knowing that the mortgage borrowers could afford their houses before funding loans to buy them. Ask yourself this: would we have had the whole housing blow up if people who could not afford to buy houses were not given mortgages? Yet the Obama Administration, even today, is tripping over itself to find new ways to guarantee new mortgages, in many cases especially for people who cannot afford their houses. Where have all the subprime mortgages gone? They have gone to the Federal Housing Administration (FHA), where they have a government guaranty. (Watch what happens to the FHA house of cards in the coming months.) When will they every learn? Oh, when will they ever learn?

Giving more power to the kind of government agencies that helped create these problems hardly seems like the sensible answer. That is what the Obama Administration proposes, though. Instead of controlling the markets with more government interference and masking of risk, more bailouts for firms that should be allowed to fail, more power for some new government bureau to pick winners and losers and to tell people which financial products they can and cannot have, we should be exposing financial players more to market discipline. We should make it harder to hide risk and easier for investors to recognize the risks and allow the markets to charge higher prices for higher risks and lower prices for lower risks.

Market discipline has always been the quickest and surest regulator. It rewards the efficient provider of what the buyers in the market want, and it punishes the incompetent. Very importantly today, the market is stingy about bailouts.

Of Freedom and the Bad Deal

Too many people in this country and elsewhere are making a Bad Deal with their government. Perhaps Americans have been slower to make the Bad Deal, because our nation was founded, and refounded with each new wave of immigrants, by people who were fleeing the Bad Deal in their own countries. The Bad Deal is, we surrender part of our freedom to our government in exchange for a promise that the government will remove from us some of the risks of our bad decisions.

Businessmen make good and bad decisions. With the good decisions, they provide a very popular good or service in exchange for which they make a lot of money. With the bad decisions, people either do not want the good or service or they can find it somewhere else cheaper. The businessman makes less money or may even go broke and lose his investment.

In most countries, that is considered too chaotic and disorganized. That is particularly so when it comes to big businesses. Even where such countries will let small businesses fail, they keep the big businesses propped up.

With the loss of the risk of failure, the benefits of successful risk taking grow anemic. The folks in the government providing the protection from failure demand a piece of the action. In the more clumsily corrupt countries, government officials take bribes or are directly invested in the protected business. In the more sophisticated countries, the process of “sharing” in the prosperity of the protected business is more camouflaged. There are special taxes and fees paid to the government, or the business is guided by the government into activities that benefit the current government leadership and its friends.

The housing loan giants, Fannie Mae and Freddie Mac, are examples of that in our country. They were created by Congress and given special privileges that stifled competition and lowered their costs, allowing their businesses to expand until they became two of the largest companies in the United States. Investors lent them an unending supply of money at very low interest rates on the assumption that the government would never let the companies fail. In exchange, Fannie and Freddie had very elaborate programs for making Congressmen and Senators look good in their districts, with fancy press conferences where Fannie or Freddie officials bragged about all the mortgages supported in the district and how important the Congressman or Senator had been to Fannie’s or Freddie’s success.

Fannie Mae and Freddie Mac gave up significant freedom of decision in their business plans in order to get the government protection. Their experience, though, demonstrates a central problem of the Bad Deal: while the government promises to protect us from consequences of our bad decisions, it does not protect us from bad decisions by government. At last the Fannie Mae and Freddie Mac house of cards tumbled down. It happened when the bad decisions urged on them by their government “friends” left the firms powerless to withstand the swirling winds from the air escaping out of the housing balloon. Fannie and Freddie helped puff up the balloon under government guidance together with other failed government programs. The firms failed, and the government had to take the companies over entirely.

Now the Obama Administration is offering to take over the consumer’s job of making his own financial decisions. They propose a new consumer regulator to stand in the consumer’s place, with the assignment to design all of the financial products that banks and other firms must offer to their customers. Normally customers and financial companies have figured this out among themselves in the market place. The Administration calls these new products (to be designed by a five-man board in Washington) “plain vanilla” products. The Obama Administration believes that simple is better. If you do not want plain vanilla, if you need a loan or a checking account or a savings account or a credit card with some extra features, good luck, because the new agency will be poised to pounce on any financial firm that dares offer it to you. It reminds me of the old Model T Ford. You could get it in any color you wanted, as long as the color was black. Thank goodness Chevrolet came along and offered blue, or we would never have had Mustangs.

Which again is the point: when government makes the decisions, there is little incentive for things to get better. In promising to eliminate your risk, the government does not want to risk some innovation going wrong.

Sure, businesses and consumers making their own decisions make mistakes. Then they learn from their mistakes, pick themselves up, and try again and usually do better. But Fannie Mae, Freddie Mac, the recent financial panic and the coming rise in interest rates and inflation, are a few near-term reminders of how government can make mistakes, real whoppers. Long experience over the centuries has shown that mistakes by the government are the bigger risk. When we accept the Bad Deal and surrender our freedom of action to the government, who will protect us from the government’s mistakes?