The problem of how to deal with very large and failing financial firms is as old as the privately-owned Bank of England’s problems in 1797, when it prevailed upon the British government to permit it to suspend payments in specie (coin) to its note holders. It was carefully analyzed by the British economist Henry Thornton in 1802. He saw a role for central bank "bailouts" so long as the rescued institution was solvent (e.g. facing a depositor panic that was based on erroneous fears).
The bailout problem has bedeviled banking regulators in the United States for decades, most prominently (before the current financial cycle) in the case of Continental Illinois in 1984. Only 10% ($4 billion) of its funding base was in insured deposits. But everyone, including bondholders, got all their money back.
Despite the Continental precedent, up until recently the Federal Reserve, the FDIC and other U.S. banking regulators have been careful to ensure that a reasonably high degree of “constructive ambiguity” existed to try keep bankers and creditors focused on sound banking practices. Lehman Brothers was allowed to fail. In the past 12 months, however, all the old rules have been thrown out and replaced with massive bailouts and federal guarantees on nearly every kind of short-term borrowing that exists.
Now comes the Obama Administration's proposal for another way to deal with the problem - and it's a very flawed approach: establish a "Tier 1" category of very large regulated financial firms.
Such firms would be chosen by the Federal Reserve Board on the basis of their potential to “pose a threat to global or U.S. financial stability or the global or U.S. economy during times of economic stress.” They would be subjected to more stringent standards than other financial firms.
The Tier 1 concept would apply to any “financial company” with more than $10 billion in assets, $100 billion in assets under management or $2 billion or more in gross annual revenue. In other words, very large insurance and investment companies, finance companies, and hedge funds, among others, are to be herded into the Tier 1 corral.
In effect, Tier 1 firms would be designated “too big to fail” and become a protected class. All their liabilities (except the shareholders’ investment) would be guaranteed by the Federal government. Depositors, bondholders, and transaction counter-parties need not concern themselves with the financial stability of the Tier 1 firms they are doing business with. “Let the regulators worry about that” is the message.
The proposed legislation tries to inject a shred of uncertainty by requiring a bankruptcy hearing if a firm becomes “critically under-capitalized.” But the whole purpose of the Tier 1 concept is to make sure this never happens and, even if it does, the only parties at risk are going to be shareholders.
Why “Tier 1” is Bad Policy. Maintaining a sufficient degree of uncertainty about government support for specific financial institutions (“constructive ambiguity”) is a critically important incentive for financial firms to act prudently – historically, even more important than regulatory restrictions on capital and bank operations.
When the uncertainty level is low, e.g. government bailout probabilities are high, we end up with imprudent lending (the “moral hazard” problem) and massive government bailouts – Fannie Mae and Freddie Mac being today’s prime examples.
By making it 99.9% certain that creditors of the largest financial firms will not be allowed to lose their investment, smaller firms will suffer an even greater competitive disadvantage. (Small banks are already seriously disadvantaged by the largest banks' free ride in the deposit insurance system - as in the case of Continental.)
Tier 1 makes analytical sense only if the promised “more stringent” standards on capital and liquidity ratios cost Tier 1 firms more than they gain in lower funding costs. Trying to make the cost of such standards equal to the value of the funding subsidy – across a myriad number and variety of financial institutions via regulatory fiat - will only result in a massive and counterproductive web of paperwork and bureaucratic intrusions. And it will lead to the establishment of a lobbying powerhouse (“The Tier 1 Toughs”?) that would make sure their clients came out ahead.
A Better Way Forward. While there are many debatable aspects to the Administration’s package of financial reform regulation, the Tier 1 concept has the highest probability of major, adverse and unintended consequences.
Already the working assumption in financial markets today is that every “very large” financial institution will be supported. While the Administration’s recent refusal to assist CIT Financial (a $75 billion finance company) helps to distinguish “large” from “very large,” the Tier 1 concept needs to be totally abandoned.
Instead of Tier 1, all banking firms (including finance companies and government-sponsored agencies, such as Fannie Mae) should face a relatively seamless series of increasingly higher capital requirements as they grow in size. Regulators should continue using “constructive ambiguity” (e.g. the possibility of large firms' bankruptcy and losses to their creditors) as a way to encourage prudent management - and to offset any tendency by managers to invest in increasingly risky assets as their capital requirements grow.
Nonbanking institutions, such as insurance and investment companies as well as hedge funds, should be excluded from the new regime. No substantive evidence has been advanced that demonstrates these institutions, as a group, need to be included; AIG was an outlier, already subject to federal regulatory oversight.
Final Note. Unfortunately, rather than focusing on the implications of Tier 1, Congressional and media attention has been directed at relatively minor turf fights among federal regulatory agencies - and Treasury Secretary Geithner’s irritation about what is going on in the back of the bus.
It's time for all the players to pay attention to the dangerous economic and political consequences of establishing a "protected class" of mega financial firms.