William K. Black was a federal regulator during the Savings and Loan crisis and appears in Michael Moore's 'Capitalism: A Love Story'
I get President Obama's "regulatory review" plan, I really do. His game plan is a straight steal from President Clinton's strategy after the Republican's 1994 congressional triumph. Clinton's strategy was to steal the Republican Party's play book. I know that Clinton's strategy was considered brilliant politics (particularly by the Clintonites), but the Republican financial playbook produces recurrent, intensifying fraud epidemics and financial crises. Rubin and Summers were Clinton's offensive coordinators. They planned and implemented the Republican game plan on finance. Rubin and Summers were good choices for this role because they were, and remain, reflexively anti-regulatory. They led the deregulation and attack on supervision that began to create the criminogenic environment that produced the financial crisis.
The zeal, crude threats, and arrogance they displayed in leading the attacks on SEC Chair Levitt and CFTC Chair Born's efforts to adopt regulations that would have reduced the risks of fraud and financial crises were exceptional. Just one problem -- they were wrong and Levitt and Born were right. Rubin and Summers weren't slightly wrong; they put us on the path to the Great Recession. Obama knows that Clinton's brilliant political strategy, stealing the Republican play book, was a disaster for the nation, but he has picked politics over substance.
I explained in a prior column how the anti-regulators made the crisis possible and caused the loss of over 10 million jobs.
Anti-regulation proved to be a profoundly negative sum "game" in the financial sphere. Both principals -- the home borrower and the lender -- lost (negative Pareto optimality). The unfaithful "agents," however, made out like bandits.
Effective financial regulation is essential to protect honest firms and consumers from the frauds -- it is distinctly positive sum. The primary purpose of financial regulation is to limit fraud. President Obama, Summers, and OMB do not understand this fundamental aspect of financial regulation -- limiting fraud. Consider this portion of the President's letter:
This is the lesson of our history: Our economy is not a zero-sum game. Regulations do have costs; often, as a country, we have to make tough decisions about whether those costs are necessary.
Voluntary transactions should be positive sum -- both parties are typically made better off. Fraud causes negative sum transactions. Regulators are the "cops on the beat" in finance. If cheaters prosper, then "private market discipline" drives honest firms and officers out of the marketplace. Vigorous financial regulation is essential to the effective prosecution of elite criminals. Many of the best financial regulations impose virtually no cost. The traditional underwriting rules, for example, would have been exceeded by any honest, competent bank. Indeed, the rules reduced costs to honest firms. The rules imposed material costs only on dishonest managers -- and that reduces costs to hones firms and managers. Net, underwriting rules produce enormous net-benefits. That is equivalent to saying that they have a negative cost. The underwriting rules designed primarily to reduce fraud also reduce losses from incompetence, unrecognized risk, and mistake. This means that financial rules designed primarily to reduce fraud are essential to convert the negative sum (fraudulent) transactions that would prevail absent regulation into positive sum (honest) transactions. Because fraud can impose severe "negative externalities," this transaction-based analysis dramatically understates the net cost savings of effective safety and soundness regulation.
Obama's proposal and the accompanying OMB releases do not mention the word or the concept of fraud. Despite an "epidemic" of fraud led by the bank CEOs (which caused the greatest crisis of his life), Obama cannot bring itself to use the "f" word. The administration wants the banks' senior officers to fund its reelection campaign. I've never raised political contributions, but I'm certain that pointing out that a large number of senior bank officers were frauds would make fundraising from them awkward.
President Obama's explanation for his regulatory review program warrants detailed analysis in multiple columns. He decided to place it in the Wall Street Journal as a symbol of his efforts to placate Wall Street (only two sentence of his letter refer to small businesses).
My first column discussing his regulatory review program focuses on gaps in financial "safety and soundness" regulation. This is an area I lived, research, write about, and teach. (If you look at my bio you will see that public administration experts write about my experiences as a regulator.) Obama entitled his letter: "Toward a 21st-Century Regulatory System." Where have we heard that mantra before? When President Clinton signed the Gramm-Leach-Bliley Financial Services Modernization Act of 1999 Larry Summers proclaimed that the GLB Act was "a major step forward to the 21st century."
Clinton's two great deregulatory failures were the GLB Act and the Commodities Futures Modernization Act of 2000 (CFMA). The CFMA deliberately created a regulatory "black hole" for credit default swaps (CDS) by removing the CFTC's authority to regulate CDS and a regulatory black hole in the trading of energy derivatives that helped Enron's cartel produce the California energy crisis of 2001. The titles of both of these deregulatory acts included the word "modernization" and the great lie was that the acts they were repealing were archaic. The claim was that we needed a regulatory system designed for the 21st-Century. Summers, Obama's principal economic advisor, framed Obama's latest deregulatory foray.
Summers and Rubin remain unwilling to admit that their anti-regulatory financial policies were disastrous. Here's what Obama said in late 2008 about the decisive role that anti-regulatory dogma played in causing the ongoing financial crisis.
"John McCain has spent decades in Washington supporting financial institutions instead of their customers," [Obama] told a crowd of about 2,100 at the Colorado School of Mines. "So let's be clear: What we've seen the last few days is nothing less than the final verdict on an economic philosophy that has completely failed."
Obama's subtitle is designed to illustrate stupid regulation: "If the FDA deems saccharin safe enough for coffee, then the EPA should not treat it as hazardous waste." The example is supposed to be self-evident, clearly only regulators could do something so stupid. But the facts are inconvenient to Obama's scorn -- and this is his shining example, the best that the scores of OMB staff that review thousands of regulations could come up with to support this major administration initiative. This is the dumbest rule they found. Obama's statement about saccharin may seem logical, but it is not. Animal studies originally showed that saccharine was carcinogenic in doses that a heavy consumer might experience. The EPA, therefore, classified the disposal of large amounts of saccharine as toxic. Subsequent studies are now interpreted as showing that saccharine is unlikely to be carcinogenic at such dosage levels. The EPA's classification of saccharine as a hazardous substance for waste disposal purposes based on its carcinogenic effects in small doses was logical. The logic does not work automatically in reverse. An ingredient can be safe to consume by an individual consumer in extremely low doses yet hazardous in far larger doses. To sum it up, the supposedly dumb rule Obama chose as his lead example did not kill any meaningful number of jobs, was based on the best science then available, and wasn't dumb.
Consider the overall logic of Obama's approach to regulation. Under his logic during the campaign, the imperative need was to end the anti-regulatory dogma that was the disastrous product of "an economic philosophy that has completely failed." When he became President, however, Obama placed Summers and Rubin, the leading Democratic Party purveyors of that completely failed philosophy, in charge of the administration's financial regulatory policies. The administration's policies are largely anti-regulatory. The most important indicators of this point are the things not in the President's regulatory review program. Obama says that the lack of financial regulation made possible the financial crisis, but his regulatory review program does not require the administration to search out areas of inadequate regulation. Here is the closest Obama comes: "Where necessary, we won't shy away from addressing obvious gaps...." Huh? The vital task is to find the non-obvious gaps. Why, two years into his presidency, has the administration failed to address "obvious gaps"? The administration does not need Republican approval to fill obvious gaps in regulation. Even when Obama finds "obvious gaps" in regulatory protection he does not promise to act. He will act only "where necessary." We know that Summers, Rubin, and Geithner rarely believe that financial regulation is "necessary." Even if Obama decides it is "necessary" to act he only promises to "address" "obvious gaps" -- not "end" or "fill" them.
In the financial sphere, Obama has allowed "obvious gaps" to persist and, by listening to Summers' continued embrace of an "economic philosophy that has completely failed" he has even made the gaps worse. Obama's regulatory review program does not promise to fix any of the anti-regulatory actions taken or allowed to fester and grow under his administration. I provide twelve specific examples of these obvious gaps in financial regulation which have persisted and grown during this Obama's first two years in office. (There are more than a dozen gaps, but it is premature to address some of them, e.g., Basel III, the Volcker rule, and the new consumer financial protection agency, because there is so much uncertainty about the rules that will emerge.) The gaps addressed here are those where Obama has not even proposed to take an action that could prove effective.
The "Dirty Dozen"
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