FHLBs—Mission and Possible Improvements

Based on long experience and extensive study of various systems of housing finance and of financial systems generally, I respectfully offer the following thoughts on the mission of and possible improvements in the Federal Home Loan Banks (FHLBs).

Mission

I think the mission of the FHLBs is to support, in key words of the Federal Home Loan Bank Act, “sound and economical home finance,” by linking sound home finance nationwide to the bond market.  FHLBs’ principal activities should always be clearly tied to this mission, which should benefit tens of millions of mortgage borrowers throughout the country.

FHLB member institutions should be those which provide sound and economical home finance.  As markets evolve over time, which types of institutions are eligible membership should adapt to appropriately reflect this evolution.  For example, as commercial banks, originally excluded from FHLB membership, largely supplanted savings and loans in home finance, they were logically made eligible for FHLB membership by the Financial Institutions Reform, Recovery and Enforcement Act of 1989.

In my view, the FHLBs should take minimum credit risk, and all the credit risk of the mortgages they link to the bond market should be borne in the first place by the FHLB member financial institutions.  This is true of both FHLB advances, in which all the underlying assets stay on the books of the member, and for the fundamental concept of the FHLB Mortgage Partnership Finance program, in which the mortgage loan moves, but a permanent credit risk “skin in the game” stays for the life of the loan with the member institution, where it belongs.  Note that this is the opposite of selling loans to Fannie Mae and Freddie Mac, in which the lending institution divests the credit risk of its own customer that results from its own credit decision.

Since the mission of the FHLBs is sound and economical home finance, their subsidizing affordable housing projects is secondary. In an economic perspective, these programs may be seen as a tax on the FHLBs, and in a political perspective, a tactic which allows members of Congress the convenience of creating subsidies without having to approve or appropriate the expenditures.

FHLBs without doubt have important benefits from their government sponsorship.  These benefits should primarily go to supporting sound and economical home finance provided by member institutions throughout the country.  

In the “mission” discussions, we can usefully distinguish between two groups of FHLB beneficiaries.  First are those who have also have skin in the game through having put their own money at risk by capitalizing, funding or financially backing FHLB operations.  They are the stockholder-members, the bondholders, and the U.S. Treasury.  Second are those who only receive subsidies from the FHLBs.

Suggested Improvements

1. The FHLBs should be given the formal power to issue mortgage-backed securities, provided these securities are always designed so that serious credit risk skin in the game remains with the member institutions.  This would give the FHLBs a very important additional method to carry out their mission and would be a long-overdue catching up with financial market evolution.

2. The Federal Home Loan Bank Act should be amended specifically to authorize the FHLBs to form a joint subsidiary to carry out functions best provided on a combined, national basis.  The participating FHLBs should own 100% of this joint subsidiary.  This addition to the FHLB Act is needed because of the requirements of the Government Corporations Control Act of 1945, enacted when the U.S. Treasury still owned some FHLB stock.  It has not owned any for 70 years, but the 1945 statutory requirement is still there.

3. The prohibition of captive insurance companies from being FHLB members should be promptly withdrawn.  In my view, this was not only a mistake, but inconsistent with the FHLB Act, which has provided from July 1932 to today that “insurance companies” in general, with no distinctions among them, are eligible for FHLB membership.  I believe that any change to that required Congressional action, which was not taken.  Any insurance company, including a captive insurance company, which provides sound and economical home finance should be eligible for FHLB membership.

I hope these ideas will be helpful for the ongoing success of the FHLBs.

Respectfully submitted to the Federal Housing Finance Agency, August 23, 2024

William Isaac Announcements: October 28, 2022

October 28, 2022

My good friend, Alex Pollock and his colleague, Paul Kupiec, co-authored an article on the Federal Reserve, which was just published by The Hill. The legislation creating the Consumer Financial Protection Bureau required the CFPB to be headed by a single individual instead of a bipartisan board governing most independent agencies such as the FDIC, the SEC, the FTC. Moreover, the CFPB receives its funding from the Federal Reserve Board instead of being funded by Congress. A Federal Court recently ruled – I believe correctly – that these governance arrangements are unconstitutional. Alex and Paul address these issues and go on to note that the Federal Reserve is hardly in position to fund the CFPB. I highly recommend this article to you.

• The Fed is in the red: Should it still pay CFPB’s bills? By Alex J. Pollock and Paul Kupiec published by The Hill on October 26, 2022

The article can be found at williamisaac.com. Be safe and be well.

The Fed is in the red: Should it still pay CFPB’s bills?

Published in The Hill with Paul Kupiec.

The Fifth Circuit Court of Appeals just ruled that the Dodd-Frank Act’s requirement that the Federal Reserve pays the expenses of the Consumer Financial Protection Bureau is unconstitutional. This important ruling adds to another problematic aspect of the CFPB’s funding scheme — the Federal Reserve no longer has enough earnings to cover the $692 million in checks the CFBP writes each year.

The CFPB’s 2022 “Budget Overview” states that “The CFPB’s operations are funded principally by transfers … from the combined earnings of the Federal Reserve.” But in the fall of 2022, this is not true. There are no such earnings, the Fed is losing money. Making the Fed pay the CFPB’s expenses simply makes those losses larger. It also keeps the CFPB’s expenses out of the federal budget deficit where the court ruling says they rightly belong.

Former Fed Chairman Ben Bernanke has just been awarded the Nobel Prize in economics, but the policy of quantitative easing he championed has left the Fed with market value losses of monumental proportions. We estimate that the Fed’s balance sheet as of mid-October suffers from a $1.3 trillion mark-to-market loss. That is 30 times the Fed’s total capital of $42 billion. To put the size of this loss in perspective, it is nearly equal to Spain’s GDP and larger than the GDP of Indonesia.

The Fed says these mark-to-market losses are not an issue, they are “merely” unrealized losses. It does not include them in the asset valuations or the capital it reports on its financial statements. Since the Fed does not intend to sell any of its underwater investments, it says there is no danger it will experience a cash loss. While the Fed can feign indifference to a $1.3 trillion market value loss on its investment portfolio, imagine your reaction if you opened your 401(k) statement and saw a very large unrealized loss. 

As short-term interest rates increase, the Fed is experiencing both unrealized mark-to-market losses and cash operating losses. Both will continue because of the Fed’s massive interest rate mismatch. The Fed’s investment portfolio has a net position of about $5 trillion of long-term fixed-rate investments, much of them with remaining maturities of more than 10 years. These investments are funded with floating rate liabilities. The Fed is the financial equivalent of a $5 trillion 1980s-vintage savings and loan. When short-term interest rates rise, its profits naturally shrink and then turn into losses.

We estimate that, in round numbers, for each 1 percent that short-term interest rates increase, the Fed’s annual net income falls by $50 billion. Since the interest rate on the Fed’s floating rate liabilities has increased by 3 percent (so far) in 2022, the Fed is now posting substantial losses and will continue to post losses going forward.

In May, we estimated that the Fed would begin losing money when short-term rates exceed 2.7 percent. With the last FOMC rate increase, the Fed is now paying about 3.1 percent on bank reserve balances so the Fed’s operating profits should already be in the red. A comparison of the Fed’s Oct. 19, H.4.1 Report with its report from mid-September shows that, over the past month, the Fed has accumulated an operating loss of about $5 billion. The loss appears in Table 6 in the account, “Earnings remittances due to the U.S. Treasury.” On Oct. 19, the account is negative, which means the Fed is now losing money.

A loss of $5 billion in a month annualizes to a loss of $60 billion. At current short-term interest rates, not only are there no Fed profits to cover the checks CFPB will be writing, but the Fed’s annual operating loss is on a path that will soon exceed the Fed’s total capital. If these operating losses were booked into retained earnings, as required by Generally Accepted Accounting Principles, within a year, the Fed would report negative capital. In other words, using normal accounting standards, the Fed will soon be technically insolvent.

But unlike the banks it regulates, the Fed will not report negative capital and it won’t go out of business as its losses continue to accumulate. In its accounting statements, the Fed will offset operating losses dollar-for-dollar by debiting an intangible (better said, an imaginary) asset account called a “deferred asset.” As long as the Fed has a deferred asset balance, which may be for years, it will make no payments to the Treasury. In the meantime, the Fed will print money to pay its bills, further contributing to inflation.

If interest rates continue to increase, as nearly everyone expects, Fed losses will grow. The Fed’s total cash losses could easily grow to $100 billion or more over time — maybe a lot more — before rates decline. Ironically, the more the Fed fights inflation by increasing short-term interest rates, the bigger its own loss becomes.

From its inception in 1913, the Fed has been structured to make profits from its money printing monopoly and required to send most of its profits to the Treasury to reduce the federal deficit. But today the Fed’s short-funded quantitative easing investments have resulted in losses that exceed its seigniorage profits.

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Accounted for properly, Fed losses increase the federal deficit that ultimately must be paid by future taxes — but Fed losses are currently not counted in federal deficit estimates. As the next Congress considers Fed reforms, it should also require that Fed operating losses also be included in the federal budget deficit.

While the CFPB’s expenses are clearly federal government expenditures, they are currently not counted in the federal budget and have hitherto been set by an unelected CFPB director and evaded congressional appropriations by making the Fed pay the CFPB’s bills. If the Fifth Circuit’s ruling prevails, these expenditures could be put into a normal democratic process, set by the elected representatives of the people in a constitutional fashion, and no longer be increasing the Federal Reserve’s already embarrassingly large losses.

Alex J. Pollock is the co-author of the newly published “Surprised Again!—The Covid Crisis and the New Market Bubble,” and a senior fellow at the Mises Institute.  Paul Kupiec is a senior fellow at the American Enterprise Institute.

Biden’s Appointments Speak to an Extremist Agenda

Published in TownHall.

Perhaps the most outrageous example of the president’s extremist appointments was his nomination of Saule Omarova to head the Office of the Comptroller of the Currency. A graduate of Moscow State University on the Lenin Personal Academic Scholarship, Omarova tweeted in 2019, “Until I came to the US, I couldn’t imagine that things like gender pay gap still existed in today’s world. Say what you will about old USSR, there was no gender pay gap there. Market doesn’t always 'know best.'” In an academic paper Omarova’s advocated that “central bank accounts fully replace — rather than compete with — private bank accounts.” It’s disturbing that a person who spent much of her academic career deriding capitalist institutions and advocating for unprecedented government management of the economy, was nominated for such a critical economic position. At least the nation can be thankful that Omarova withdrew her nomination in December – as many moderate Democrats made clear they could not support her nomination.

Read the rest here.

An Incredibly Misguided Nomination for Comptroller of the Currency

Published in Real Clear Markets:

The Biden administration has certainly made the most misguided nomination for Comptroller of the Currency in history with its nominee, Saule Omarova. Professor Omarova has published proposals displaying deep ideological commitments which make her obviously unacceptable for this key responsibility in the banking system. Even after this has become apparent, the Biden administration has very surprisingly not withdrawn her name and a Senate Banking Committee hearing on the nomination has been scheduled for this week, November 18.

Concerning this hearing, every Democratic senator on the Banking Committee should be asked in public:

- Do you subscribe to the proposals published by Professor Omarova?  

- Do you support taking all deposits away from private banks?   

- Do you support making the Federal Reserve in charge of "economy-wide credit allocation"? 

- Do you support making the Federal Reserve a deposit monopoly?  

- Do you support having the New York Federal Reserve Bank short investments it [somehow] decides are too expensive and buy to boost the price of investments it [somehow] decides are too cheap?  

- Do you support giving the government seats on privately owned companies' boards of directors, with the government having "disproportionate voting power"?  

All these remarkably unwise and naive proposals are explicitly made in her published articles.

Honorable Senators:  If you support these proposals, you should stand up and say so out loud, so everybody can hear you.  If you don't support them, you should obviously vote No on this nomination.

More on the Vision of Biden’s Pick to Regulate the Nation’s Banks

Published by the Cato Institute:

Now, Alex Pollock, the former deputy director of the U.S. Treasury’s Office of Financial Research, has taken a careful look at some of Omarova’s other writings. Some of the work will seem quite familiar, but most of it exposes ideas that are even more fundamentally opposed to a free enterprise system and the American system of government.

Biden's radical Treasury nominee in her own words

Published in The Hill.

In an incomprehensible act, President Biden has nominated as comptroller of the currency Saule Omarova — a law school professor who thinks that banks should have their deposit business taken away and transferred to the government, the Federal Reserve should be the monopoly provider of retail and commercial deposits, the Fed should perform national credit allocation, the Federal Reserve Bank of New York should intervene in investment markets whenever it thinks prices are too high or too low (shorting or buying a wide range of investments accordingly), the government should sit on boards of directors of private banks with special powers and disproportionate voting power, new federal bureaucracies should be set up to regulate financial regulators and carry out national investment policy and in general, it seems, has never thought of a vast government bureaucracy or a statist power that she doesn’t like.

What follows is a collection of such particularly unwise proposals in Professor Omarova’s own words, which might be appropriately called “Omarova’s Little Book.” 

“On the liability side” of the banking system, Professor Omarova “envisions the ultimate ‘end-state’ whereby central bank accounts fully replace — rather than compete with — private bank accounts,” according to her 2020 paper, “The People’s Ledger: How to Democratize Money and Finance the Economy.”

“On the asset side,” she “lays out a proposal for restructuring the Fed’s investment portfolio and redirecting its credit-allocation power…leaving the asset side free to serve as the tool of the economy-wide credit allocation.”

In short, “the key is…eliminating private banks’ deposit-taking function and giving the Fed new asset-side tools of shaping economy-wide credit flows,” the proposed regulator of national banks writes.

At this point, it is already unnecessary to proceed any further, but we will.

In the paper, “The ‘Too Big To Fail’ Problem,” Omarova suggests “an expansion of the Federal Reserve’s so-called ‘open market operations’…to encompass trading in a wide range of financial assets. … If, for example,  a particular asset class — such as mortgage-backed securities or technology stocks — rises in market value at rates suggestive of a bubble trend, the FRBNY trading desk would short these securities.” 

“The FRBNY trading desk would go long on particular asset classes when they appear to be artificially undervalued.” 

Also, a “National Investment Authority” would be “charged with developing and implementing a comprehensive strategy of national economic development.” 

In “The Climate Case for a National Investment Authority,“ she said "The NIA will act directly within markets as a lender, guarantor, market-maker, venture capital investor and asset manager. … It will use these modalities of finance in a far more assertive and creative manner.”

These ideas will perhaps strike you, as they do me, as exceptionally naïve.

Meanwhile, in “Bankers, Bureaucrats, and Guardians: Toward Tripartism in Financial Services Regulation,” Omarova proposes creating a “Public Interest Council,” which “would have a special status … outside of the legislative and executive branches." The Council "would comprise…primarily academic experts [!]" and "it would have broad statutory authority to collect any information it deems necessary from any government agency or private market participant and to conduct targeted investigations.”

On top of that, in “Bank, Governance and Systemic Stability: The ‘Golden Share’ Approach,” she recommends a “new golden share mechanism” which would give “the government special, exclusive and nontransferable corporate-governance rights in privately owned enterprises.”

“As a holder of the golden share, the government could have disproportionate voting power with respect to the election of the company’s directors and various strategic decisions,” reads the paper.

“This ability to affect directly a private firm’s substantive business decisions — without holding a controlling economic equity stake — is a particularly promising feature of the golden share,” Omarova thinks. Do you?

While considering this quite remarkable nomination, any member of the Senate Banking Committee who personally supports these proposals of Omarova should boldly hold up their hand and then speak in their defense. It seems hard to believe there would be many hands.

House Report on Consumers First Act

Published by the House Financial Services Committee.

In the 115th Congress, the Committee held a hearing entitled “A Legislative Proposal to Create Hope and Opportunity for Investors, Consumers and Entrepreneurs,” on April 26 and April 28, 2017. Testifying were Mr. Peter J. Wallison, Senior Fellow and Arthur F. Burn Fellow, Financial Policy Studies, American Enterprise Institute; Dr. Norbert J. Michel, Senior Research Fellow, Financial Regulations and Monetary Policy, The Heritage Foundation; The Honorable Michael S. Barr, Professor of Law, University of Michigan Law School; Mr. Alex J. Pollock, Distinguished Senior Fellow, The R Street Institute

Pollock participates in a discussion with Professor Mark H. Rose

Hosted by the American Enterprise Institute.

R Street Distinguished Senior Fellow Alex J. Pollock took part in a March 27 panel at the American Enterprise Institute to discuss economic historian Mark Rose’s new book, “Market Rules: Bankers, Presidents, and the Origins of the Great Recession.” Other panelists were Rose himself, Richard Sylla of the National Bureau of Economic Research and moderator Paul H. Kupiec of AEI.

The Inescapably Political World of Banking and Finance

Published in Law & Liberty.

Banking always involves political economy, as professor Mark Rose observes, or as we might more precisely say, political finance. This is the central lesson of Rose’s Market Rules. The book nicely shows how banking and politics have been constantly intertwined in the United States over the 50 years beginning in the 1960s, as much bigger banks have been created and the banking system has consolidated. (Although today there are 5,477 banks and savings associations in the United States, in 1950 there were 19,438.)

The book’s anecdotes of forceful personalities of American banking history, both those in the business and those in government during the times it covers, are engaging, at least to those of us in the trade, and fun to read. In addition, its theme has much broader application than the text suggests: namely to all countries in all times. As banking scholars Charles Calomiris and Stephen Haber have concluded, all banking systems reflect deals between bankers and politicians, which they call “the Game of Bank Bargains.” The study of this idea in their book, Fragile by Design—The Political Origins of Banking Crises and Scarce Credit(2014), covers a number of countries in detail and a long history going back to the 17th century. This gives us a wider framework in which to view the arguments and events related by Rose and reinforces his local variations on the theme that banking is politically entwined.

However, unlike Fragile by Design, don’t read Market Rules for economic or financial concepts or for careful economic or financial arguments. They aren’t there. Likewise, don’t read it for theoretical insights into politics or banking systems. Its discussion of political finance is journalistic, with a left-of-center slant. The book displays a pronounced bias against markets and competition, repeatedly dismissing them as “market talk.” “Citing markets” is characterized as a “rhetorical obsession.” There is throughout a positive bias for governments and for government control.  Discussing the financial crisis bailouts, for example, Rose reflects that “For that moment at least, government authority and prestige were in the ascendance”—just the way he likes it. Still, the book’s rendition of banking debates and developments is interesting and useful, describing how the economically critical banking sector evolved over five decades.

A more balanced view of banks and governments than the book conveys would stress that both banks and governments are made up of human beings, and that both demonstrate the aspirations, insights, and achievements always mixed with the failures, mistakes and hypocrisy natural to mankind. We should not be surprised that these same attributes appear in their interaction and the deals they make with each other. Moreover, both banks and governments often make big mistakes at forecasting the economic and financial future and cannot know what the long-term results of their own actions will be.

We naturally observe this mix of strengths and weaknesses in all parties in the course of banking history. Nothing human is perfect, or even close. The pursuit of profit, subject to competition and innovation, will on average get much better economic results for the people than will the pursuit of bureaucratic power using the government’s monopoly of force and coercion. Rose is right, however, that in banking we always find some combination of the two.

Market Rules brings out in what remarkable fashion banking times and ideas change, and how what seems like a great issue at one point, becomes difficult to remember at some later point. In discussing the Hunt Commission, appointed by President Richard Nixon to consider how to improve the American financial system, the book says:

Hunt and his commissioners determined not to explore in detail the boldest question of all, which is whether the nation needed a separate and distinct group of S&Ls [savings and loans] and another group of separate and distinct commercial banks.

That was the boldest question of all? It seems hard for us to believe, but in 1970, the S&Ls were a political force to be reckoned with. They had their own powerful trade association, the U.S. League for Savings, and their own cheerleading regulator, the Federal Home Loan Bank Board. Those names are probably unfamiliar, because both have long since disappeared and been merged into the respective banking organizations. Of course, at the time of this debate, the 1980s collapse of the S&L industry was more than a decade in the future.

The Hunt Commission did propose numerous reforms, but “criticism of Hunt’s report arrived hard and fast,” Rose relates. One of the commissioners arose “to denounce the ‘blurring of distinctions between financial institutions.’” “Blurring of distinctions” hardly sounds like a stirring battle cry, or even a clear thought, but since it really meant “protect me from competition,” it was.

A similar thought arose in the 1990s: “Large and small bankers alike feared that insurance companies like State Farm would purchase a thrift [S&L] charter and use it to offer bank services.” In Rose’s phrase, this was a “horrifying prospect.” By now, State Farm has operated its S&L, which is called State Farm Bank, for two decades. I have an account there. It doesn’t seem too horrifying.

Another big battle of past years was that over the then well-known “one-quarter point.” To any readers under the age of 50: does that mean anything to you? Probably not. The context is that in the 1960s and 1970s, the U.S. government practiced national price fixing for the interest rates that banks and S&Ls could pay on deposits. The point of this 1930s idea was to limit competition, so that deposit banking was a cartel with the government as cartel manager. The “quarter point” meant that the price fixing rules allowed the maximum rate the S&Ls could pay to be 0.25 percent higher than what commercial banks could pay their depositors.

As the book relates, “Insiders knew the government’s ability to determine interest rates paid to savers by its official name, the Federal Reserve’s Regulation Q,” commenting that it was “curiously named.” So it was, but famous in banking at the time. I well remember an old banking lawyer explaining to me that “Reg Q,” as it was called, was a permanent and unchangeable part of the American banking system. A bad prediction, as it turned out, since Reg Q has now disappeared from the memory of all but financial historians. Nonetheless it was a big deal in its day.

The book further explains: “In 1966, President Johnson and the Congress approved the Interest Rate Control Act, which authorized S&L executives to pay a higher rate of interest to savers than banks paid them. Nervous S&L officers had urged this action.” Rose does not mention that they had urged it because the government’s interest-rate fixing had brought on the Credit Crunch of 1966. “Federal Reserve officers in turn approved a 0.25 percent differential.” Then S&Ls were “passionate in defending the regulation…as a vital protection to their firms and to American home construction.”

Passionate? Vital? A quarter-point? Reg Q? Times change.

One of the most instructive examples of intertwined finance and government is the history of Fannie Mae and Freddie Mac. Fannie and Freddie played a large role in inflating the disastrous housing bubble of the 2000s. The most important thing about them is that they were government-sponsored, government-promoted and government guaranteed, while having their stock privately owned—a fundamental conflict which turned out to have bankrupting results. Fannie and Freddie were known by the acronym, “GSEs,” for “government-sponsored enterprises.” In 2008, they also became majority government-owned.

But in its less than one-page treatment of them, Market Rules describes Fannie and Freddie as “privately owned firms,” without mentioning their GSE status or the tight political connections and political clout they enjoyed in their glory days. Fannie was a Washington bully, including attacking the individual careers of those who dared to criticize or oppose them, and inspired genuine fear. James Johnson, its 1990s CEO and a highly influential political insider and operator, presided over a huge institution which seemed at the time an unstoppable colossus, both financial and political. Although he is a most impressive example of its main thesis, he rates not even a mention in the book.

Many other interesting characters do appear. Featured roles are given to James Saxon, William McChesney Martin, Wright Patman, Walter Wriston, Arthur Burns, Bill Simon, Hugh McColl, Don Regan, Gene Ludwig, Robert Rubin, Phil Gramm, Sandy Weill, Paul Volcker. If you are interested in political finance but you don’t know who all these gentlemen are, you should. Also appearing is a whole series of U.S. presidents from John Kennedy on.

Of everybody in this history, my favorite is James Saxon, the comptroller of the currency from 1961-1966, who on Rose’s telling got the whole ball rolling of introducing more competition into a financial system previously designed to suppress competition.

“Saxon, often intemperate in his public language,” Rose writes, “asserted that investment bankers’ control of revenue bonds constituted a ‘full-fledged monopoly.’” To be exact, it was an oligopoly, but of course Saxon was basically right.

“In March 1964, Saxon told members of the Senate Banking Committee that the Federal Reserve’s regulation of the interest rates that banks paid savers amounted to price fixing.” Rose comments primly, “Presidential appointees did not speak in that fashion about the Federal Reserve.” My reaction is, “Saxon was absolutely right!”

Being right may not be popular: Saxon “had thrown state-chartered bankers into a more competitive environment, which they resisted.” And Saxon had “encouraged powerful enemies” who demanded his ouster. Rose does not like him either and writes with satisfaction of how President Lyndon Johnson declined to reappoint him in 1966, so that “Saxon returned to anonymity.” Like we all do, but it seems to me he had a great run.

In conclusion, as this book illustrates with lots of examples, political finance it is.

When my successor as president of the Federal Home Loan Bank of Chicago asked me for advice, I told him, “Remember that this job is 50 percent banking and 50 percent politics.” That seems to sum it up.

Is Dodd-Frank oversight council still relevant?

Published in American Banker.

“The biggest thing on FSOC’s to-do list is to designate Fannie Mae and Freddie Mac as the SIFIs they so obviously are in fact,” said Alex Pollock, distinguished senior fellow of finance, insurance and trade at the R Street Institute. “If Fannie and Freddie are not SIFIs, then no one in the world is a SIFI.

Is the Senate banking bill a big win for Wall Street? Yes and no

Published in Politifact.

Phone interview with Alex Pollock, senior fellow with the R Street Institute, March 15, 2018

Did Congress just settle for less than best plan to reform housing finance?

Published in The Hill.

House Financial Services Committee Chairman Jeb Hensarling (R-Texas) has long worked to move the American housing finance sector toward private and competitive markets and away from the distortions and disasters of government guaranteed debt with huge risks to taxpayers.

His previous policy direction, exemplified in his sponsorship of the Protecting American Taxpayers and Homeowners Act, was the correct one, both economically and philosophically. But up against the many well placed interests that feast on subsidies from the government dominated system, it could not succeed politically. The history of American mortgage lending should make us modest as a country. Our housing finance system has collapsed twice in the last four decades, first in the 1980s then again in the 2000s. We should certainly try to do better going forward.

Now Hensarling, working across the aisle with John Delaney (D-Md.) and Jim Himes (D-Conn.), has introduced a discussion draft of the Bipartisan Housing Finance Reform Act, which he hopes will prove a “grand bargain” to create a “sustainable housing finance system for the 21st century” after 10 years of a stalemate in Congress. But central to this new proposal is vastly increasing the government guarantee of mortgage backed securities by using Ginnie Mae, a wholly owned government corporation whose liabilities deliver the full faith and credit of the United States. Thus, the government and taxpayers would explicitly guarantee virtually the whole secondary mortgage market.

Has Hensarling given up on his principles? No, but he has decided that, with the best choice unavailable, he will settle for what may be the second best, arguing that it would be an improvement from where we are and where we have been stuck for a decade. The new bill requires private capital to bear a junior position in mortgage credit risk, taking losses ahead of Ginnie Mae, which is to say, ahead of taxpayers. It abolishes the federal charters of Fannie Mae and Freddie Mac, while allowing them to become private credit risk takers, among other such private institutions. It also allows the Federal Home Loan Banks to aggregate mortgage loans for their members. I especially like this last idea because my team developed it while I was running the Chicago Home Loan Bank.

Consider the following series of options. The best choice is a primarily private and competitive housing finance system, but it cannot happen politically. As a second best choice, a system is proposed that uses big government guarantees, but fits in as much private risk bearing and competition as it can. A third choice would be a bad decision to stay where we are now, with Fannie and Freddie perpetually in conservatorship but dominating the housing finance system nonetheless. Finally, the worst choice is to return to the old and failed Fannie and Freddie model.

Given where we are, is it better to wish for the best and never get it, or try to move toward a second best option, which might be politically feasible? This second best strategy is understandable and reasonable. But is the structure proposed in the new bill actually the second best available? That is debatable. For example, when it comes to the key idea of having private capital bear the principal credit risk, the bill unfortunately misses an essential principle that the best place for the junior credit risk to reside is with the institution that made the loan in the first place. That is the party with the most knowledge of the credit and the only one with direct knowledge of the borrower. Keeping the credit risk there provides by far the best possible alignment of incentives for a sound housing finance system. It also spreads the credit risk bearing across the country.

This is demonstrated by the unquestionably superior credit performance through the financial crisis of the mortgage portfolio built on this principle by the Federal Home Loan Banks in their mortgage partnership finance program, the first loan of which was completed by the Chicago Home Loan Bank in 1997. The risk principle in this program provides more than 20 years of instructive experience to draw on in moving toward a better housing finance system for the United States, even if, as Chairman Hensarling has concluded, we cannot attain the best.

Governments could take bitcoin out of circulation

Published in the Financial Times.

Nima Tabatabai asks about bitcoin, “can financial regulators control this emerging digital monetary asset?” ( Letters, May 18). The answer is they can. If a government sets its mind on it, it can tax, punish and regulate any monetary asset out of circulation. In the 1860s, Congress put a 10 percent tax on state bank notes to prevent their competing with the new U.S. national bank notes. State banks survived by expanding deposits, but state bank notes as a currency were gone. In the 1930s, the U.S. government, formerly on the gold standard itself, made it illegal for its citizens to own gold or denominate payments in it. Violating the prohibition was made a crime punishable by a fine of $10,000 or 10 years in prison. In the 1960s, the U.S. government simply refused to honor its explicit promise to redeem paper silver certificates with the silver dollars which were certified as “payable to the bearer on demand.” Thus U.S. dollar bills convertible to silver ceased to exist as a currency.

What might governments do to bitcoin or its holders or users? That depends on how threatened by it they feel.

S. 2155 won’t end finreg debate, but it’s an important first step

Published in Real Clear Markets.

S. 2155 won’t end finreg debate, but it’s an important first step

The U.S. House reportedly will move next week to take up and pass a modest financial regulatory reform bill already approved by the Senate – S. 2155, the Economic Growth, Regulatory Relief and Consumer Protection Act.

This is not the fundamental reform of the bureaucracy-loving Dodd-Frank Act of 2010 one might once have hoped for, nor is it the much broader reforms proposed by the House Financial Services Committee in its Financial CHOICE Act. But everyone agrees the current political reality is that the latter bill cannot be enacted, while the current bill is a step forward that can actually be taken. A modest step forward is better than standing still.

Small banks and credit unions, defined in the bill as those with assets of less than $10 billion, will be the principal beneficiaries of its reforms, by reducing their compliance burdens with onerous regulations that were inspired by the political emotions of 2010 in the wake of the financial crisis. These lenders are less than 0.5 percent the size of JPMorgan Chase. The costs and burdens of complex and opaque regulation are disproportionately heavy for them.

Community banks and credit unions are enthusiastic supporters of the bill and its expected enactment will be an important victory for them. Small banks represent the vast majority of all banks. There are 5,670 federally insured depository institutions in the United States. Of these, 5,547 or 98 percent, have assets of less than $10 billion. On a still smaller scale, 4,920, or 87 percent of all banks, have assets of less than $1 billion, which makes them less than 0.05 percent the size of JPMorgan.

Among other regulatory de-complexification, the bill would provide small banks the option to have a high and simple leverage capital requirement (tangible equity as a percentage of total assets) replace the complicated risk-based capital calculations arising from the international negotiations known as the “Basel” rules (named after the city in Switzerland). It provides for this ratio to be set in a range of 8 percent to 10 percent. The similar idea of the CHOICE Act specified 10 percent. If combined with a simple liquidity requirement, this is an excellent idea.

A key improvement in the bill is that, for small banks, residential mortgage loans they make and keep for their own portfolio would be considered “qualified mortgages” for compliance with the Dodd-Frank Act. This recognition is essential; when a bank keeps the mortgage loan and all its risks, putting up its own capital as “skin in the game,” it is in a different financial world from those who make the loan and forthwith sell it, passing all the risk to somebody else. Much of the regulatory motivation of the Dodd-Frank Act was trying to deal with the moral hazard of the “originate and sell” mortgage model. That the “skin in the game” model is fundamentally different should have been obvious all along, but better late than never. A sad irony is that the “originate and sell model,” with the flaws that later became so evident, was strongly pushed by government policy, subsidies and regulation.

This regulatory reform bill is pretty complex. In draft form, it is 192 pages long, with many provisions devoted to particular constituency concerns, as you might expect from something that needed a bipartisan deal to get through the Senate. You might say it displays Madisonian balancing of competing concerns of interest groups (or as Madison would have put it, “factions”). Everybody cannot like everything in it.

A sampling of its various provisions includes:

• For big banks, increasing the level at which they are automatically considered “systemically important” from $50 billion to $250 billion in assets—subject to regulators’ ability to overrule in particular cases.

• A special deal on the leverage capital requirement for banks whose principal business is custody of assets (there are only a couple of them).

• More favorable treatment of investment grade municipal bonds for purposes of big bank liquidity requirements. In addition to helping big banks, this is naturally very popular with issuers of municipal securities.

• A regulatory simplification for closed-end mutual funds.

• A break on the treatment of certain brokered deposits, useful to some small banks.

• Easier treatment of some riskier commercial real estate loans. This is popular with real estate developers, of course. Since commercial real estate is often at the center of banking busts, this may be the most dubious of all the bill’s provisions.

• A choice for federal savings associations to have regulatory treatment just like national banks. This is a natural step in the gradual disappearance of a separate savings and loan industry. It is now hard to remember that a special savings and loan industry was in former days considered an important national financial priority.

• Not to be forgotten is an additional taking of the Federal Reserve Banks’ retained earnings, to help reduce the budget deficit.

And numerous other special provisions, displaying that the bill is indeed a product of a democratic legislative processes.

Taking the bill all in all, it should be enacted. But it should by no means be the end of regulatory reform. The House has a lot of ideas for additional steps, many with bipartisan support. We’ll see if anything else happens.

Elizabeth Warren is really sad because the CFPB is ignoring her

Published in The Daily Caller.

Senator Elizabeth Warren (D-Mass.) has unintentionally provided great entertainment with an op-ed published last week in The Wall Street Journal. Her essay decries how terrible indeed it is that her political child, the Consumer Financial Protection Bureau (CFPB), is free of Congressional control — exactly as it was designed to be by the Dodd-Frank Act. Moreover, and much worse, under a new director, the CFPB now has no interest in paying attention to her!

To Senator Warren, this is outrageous. To any detached observer, it is funny.

The irony of Senator Warren’s plaint and of her frustration with her discovery that the bureaucratic agency of whose independence from Congress she was a prime author, is beyond the control of any senator, is delicious. The CFPB is beyond even that most basic of all checks and balances, the congressional power of the purse. This is exactly as intended by the Democratic congressional majorities which created it and gave it the power to simply dip into public funds without Congressional approval or appropriation. It does this by helping itself to money out of the Federal Reserve’s income, which is economically equivalent to dipping into the Treasury’s general fund.

That this independence now operates to frustrate Senator Warren is wonderful poetic justice. The irony, the poetic justice and the entertainment were not lost on the readers. In a day, they provided over 800 comments to the WSJ’s website, the vast majority of which enjoyed making similar points.

Here are some sample comments and excerpts:

“This article is the poster child of ‘be careful what you wish for.’ All her screaming cannot change the fact—she created an agency that cannot be controlled by elected officials—and now she is on the other side of that coin.”

“A Democrat creates and weaponizes a bureaucracy only to see her opponents take charge of it. Hoist on your own petard, eh?”

“Amusing to hear Warren rant about how the agency she helped create to be unaccountable to Congress, is now unaccountable to her!”

“Oh please, Ms. Warren. You purposely designed the CFPB to be above oversight. Your sour grapes that your creation in now in Republican control is amusing indeed.”

“In short, the CFPB was designed to be an unaccountable agency led by a single dictatorial director. That was fine with Warren when it was run by Richard Cordray, who aligned it with her. Somehow, things have changed now that the CFPB isn’t being run by one of her ideological cronies.”

“Testifying before Congress had absolutely no effect on Richard Cordray. The CFPB was specifically told its charter did not include consumer auto loans. But that did not stop him.”

“Wow, she was largely responsible for creating this monster and now that it doesn’t behave exactly as she would like, she whines.”

“This is rich. Warren intentionally created the unconstitutional agency with no accountability in order to protect it from changes in Congress that could threaten it. Now they’re not doing what she wants. Such a hypocrite.”

“Now the shoe is on the other foot and the GOP has the chair, and the sky is falling.”

“To see her most prized possession emasculated while she whines powerlessly is such sweet poetic justice.”

And so on.

All this suggests three questions that Senator Warren really should answer:

1. Does she now support requiring Congressional appropriations for the CFPB?

2. Does she now support governing the CFPB with a bipartisan board, rather than a single, authoritative director?

3. Does she see herself — as others see her — sufficiently to understand how funny her article is?

Glass-Steagall never saved our financial system, so why revive it?

Published in The Hill.

The Banking Act of 1933 was passed in an environment of crisis. In March of that year, all of the nation’s financial institutions were closed in the so-called “bank holiday,” which followed widespread bank runs over the prior months.

Sen. Carter Glass, D-Va., a chief author of the bill and senior member of the Committee on Banking and Currency, was determined not to “let a good crisis go to waste.” Though he did not like the proposals from Chairman Henry Steagall, D-Ala., for federal deposit insurance, he agreed to support it on the condition that the legislation include Glass’ own pet idea that commercial banking be separated from much of the securities business.

It was poor policy from the start, but it took more than six decades to get rid of it. Now some political voices want to revive it. Financial ideas — like financial markets — have a cycle. Reviving Glass-Steagall would be an action with substantial costs, but no benefits. Its primary appeal seems to be as a political slogan.

Not having Glass-Steagall had nothing to do with the housing bubble or the resulting financial crisis of 2007 to 2009, except that being able to sell failing investment banks to big commercial banks was a major advantage for the regulators. And not having the law, in fact, had nothing to do with the crises of Glass’ own time, including the banking panic of 1932 to 1933 and the Great Depression.

Meanwhile, having Glass-Steagall in force did not prevent the huge, multiple financial busts of 1982 to 1992, which caused more than 2,800 U.S. financial institution failures, or the series of international financial crises of the 1990s.

While Glass-Steagall was in place, it required commercial banks to act, under Federal Reserve direction, as “the Fed’s assistant lenders of last resort,” whenever the Fed wanted to support floundering securities firms. This happened in the 1970 collapse of the commercial paper market, which followed the bankruptcy of the giant Penn Central Railroad, and in the “Black Monday” collapse of the stock market in 1987.

The fundamental problem of banking is always, in the memorable phrase of great banking theorist Walter Bagehot, “smallness of capital.” Or, to put the same concept in other words, the problem is “bigness of leverage.” So-called “traditional” commercial banking is, in fact, a very risky business, because making loans on a highly leveraged basis is very risky, especially real estate loans. All of financial history is witness to this.

Moreover, making investments in securities — that is, buying securities, as opposed to being in the securities business — has always been a part of traditional commercial banking. Indeed, it needs to be, for a highly leveraged balance sheet with all loans and no securities would be extremely risky and entirely unacceptable to any prudent banker or regulator.

You can make bad loans and you can buy bad investments, as many subprime mortgage-backed securities turned out to be. As a traditional commercial bank, you could make bad investments in the preferred stock of Fannie Mae and Freddie Mac, which created large losses for numerous banks and sank some of them.

Our neighbors to the north in Canada have a banking system that is generally viewed as one of the most stable, if not the most stable, in the world. The Canadian banking system certainly has a far better historical record than does that of the United States.

There is no Glass-Steagall in Canada: all the large Canadian banks combine commercial banking and investment banking, as well as other financial businesses, and the Canadian banking system has done very well. Canada thus represents a great counterexample for Glass-Steagall enthusiasts to ponder.

In Canada, there is now a serious question of a housing bubble. If this does give the Canadian banks problems, it will be entirely because of their “traditional” banking business of making mortgage loans — the vast majority of mortgages in Canada are kept on banks’ own balance sheets. If the bubble bursts, they will be glad of the diversification provided by their investment banking operations.

To really make banks safer, far more pertinent than reinstating Glass-Steagall, would be to limit real estate lending. Real estate credit flowing into real estate speculation is the biggest cause of most banking disasters and financial crises. Those longing to bring back their grandfather’s Glass-Steagall should contemplate instead the original National Banking Act, which prohibited real estate loans altogether for “traditional” banking.

Among his other ideas, Glass was a strong proponent of the “real bills” doctrine, which held that commercial banks should focus on short-term, self-liquidating loans to finance commercial trade. His views were reflected in the Federal Reserve Act, which, as Allan Meltzer has described it, had “injunctions against the use of credit for speculation” and an “emphasis on discounting real bills.” This approach which does not leave a lot of room for real estate lending.

If today’s lawmakers want to be true to Sen. Glass, they could more strictly limit the risks real estate loans create, especially in a boom, and logically call that “a 21st century Glass-Steagall.”

Even without Durbin Amendment repeal, Congress should pass the CHOICE Act

Published by the R Street Institute with Clark Packard.

House Financial Services Committee Chairman Jeb Hensarling, R-Texas, has done the yeoman’s work of putting together a host of fundamantal conservative reforms in the CHOICE Act. Although repeal of the Durbin amendment would have been a positive, pro-market reform, Congress should pass the bill even if this repeal is not included.

The most important provision of the bill allows banks the very sensible choice of maintaining substantial equity capital in exchange for a reduction in onerous and intrusive regulation. This provision puts before banks a reasonable and fundamental trade-off: more capital, less intrusive regulation. This is reason enough to support the CHOICE Act. Its numerous other reforms also include improved constitutional governance of administrative agencies, which are also a key reason to support the bill.

Accountability of banks

The 10 percent tangible leverage capital ratio, conservatively calculated, as proposed in the CHOICE Act, is a fair and workable level.

A key lesson of the housing bubble was that mortgage loans made with 0 percent skin in the game are much more likely to cause trouble. To be fully accountable for the credit risk of its loans, a bank can keep them on its own balance sheet. This is 100 percent skin in the game. The CHOICE Act rightly gives relief to banks holding mortgage loans in portfolio from regulations that try to address problems of a zero skin in the game model – problems irrelevant to the incentives of the portfolio lender.

Accountability of regulatory agencies

The CHOICE Act is Congress asserting itself to clarify that regulatory agencies are derivative bodies accountable to the legislative branch. They cannot be sovereign fiefdoms, not even the dictatorship of the Consumer Financial Protection Bureau. The most classic and still most important power of the legislature is the power of the purse.  The CHOICE Act accordingly puts all the financial regulatory agencies under the democratic discipline of congressional appropriations. This notably would end the anti-constitutional direct grab from public funds that was granted to the CFPB precisely to evade the democratic power of the purse.

The CHOICE Act also requires of all financial regulatory agencies the core discipline of cost-benefit analysis. Overall, this represents very significant progress in the governance of the administrative state and brings it under better constitutional control.

Accountability of the Federal Reserve

The CHOICE Act includes the text of The Fed Oversight Reform and Modernization Act, which improves governance of the Federal Reserve by Congress. As a former president of the New York Federal Reserve Bank once testified to the House Committee on Banking and Currency: “Obviously, the Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to.” That is entirely correct. Under the CHOICE Act, such reviews would happen at least quarterly. These reviews should include having the Fed quantify and discuss the effects of its monetary policies on savings and savers.

Reform for community banks

A good summary of the results of the Dodd-Frank Act is supplied by the Independent Community Bankers of America’s “Community Bank Agenda for Economic Growth.” “Community banks,” it states, “need relief from suffocating regulatory mandates. The exponential growth of these mandates affects nearly every aspect of community banking. The very nature of the industry is shifting away from community investment and community building to paperwork, compliance and examination,” and “the new Congress has a unique opportunity to simplify, streamline and restructure.”

So it does. The House of Representatives should pass the CHOICE Act.

The Fed must be held accountable and the CHOICE Act will make it so

Published in The Hill.

This week, the House Financial Services Committee passed Chairman Jeb Hensarling’s Financial CHOICE Act. Most of the public discussion of this bill is about its changes in banking regulations, but from a constitutional point of view, even more important are the sections that deal with the accountability of regulatory agencies and the governance of the administrative state.

Accountability is a central concept in every part of the government. To whom are regulatory agencies accountable? Who is or should be their boss? To whom is the Federal Reserve, a special kind of agency, accountable? Who is or should be its boss? To whom should the Consumer Financial Protection Bureau (CFPB) be accountable? Who should be its boss?

The correct answer to these questions, and the answer given by the CHOICE Act, is the Congress. Upon reflection, we should all agree on that. All these agencies of government, populated by unelected employees with their own ideologies, agendas, and will to power — as vividly demonstrated by the CFPB — must be accountable to the elected representatives of the people, who created them, can dissolve them, and have to govern them in the meantime. All have to be part of the separation of powers and the system of checks and balances that is at the heart of our constitutional order.

But accountability does not happen automatically: Congress has to assert itself to carry out its own duty for governance of the many agencies it has created and its obligation to ensure that checks and balances actually operate.

The theme of the Dodd-Frank Act was the opposite: to expand and set loose regulatory bureaucracy in every way its drafters could think of. It should be called the Faith in Bureaucracy Act.

In the CHOICE Act, Congress is asserting itself at last to clarify that regulatory agencies are derivative bodies accountable to the Congress, that they cannot be sovereign fiefdoms — not even the Dictatorship of the CFPB, and not even the money-printing activities of the Federal Reserve.

The most classic and still most important power of the legislature is the power of the purse. The CHOICE Act accordingly puts all the regulatory agencies, including the regulatory part of the Federal Reserve, under the democratic discipline of Congressional appropriations.

This notably would end the anti-constitutional direct grab from public funds which was originally granted to the CFPB — which was designed precisely to evade the democratic power of the purse. It is sometimes objected that appropriations “inject politics” into these decisions. Well, of course! Democracy is political. Expansions of regulatory power are political, all pretense of technocracy notwithstanding.

The CHOICE Act also requires of all financial regulatory agencies the core discipline of cost-benefit analysis. It provides that actions whose costs exceed their benefits should not be undertaken without special justification. That’s pretty logical and hard to argue with. Naturally, assessing the future costs and benefits of any action is subject to uncertainties — perhaps very large uncertainties. But this is no reason to avoid the analysis — indeed, forthrightly confronting the uncertainties is essential.

The CHOICE Act also requires an analysis after five years of how regulations actually turned out in terms of costs and benefits. This would reasonably lead — we should all hope it will — to scrapping the ones that didn’t work.

Further Congressional governance of regulatory agencies is provided by the requirement that Congress approve major regulatory rules — those having an economic effect of $100 million or more. Congress would further have the authority to disapprove minor rules if it chooses by joint resolution. This is a very effective way of reminding everybody involved, including the Congress itself, who actually is the boss and who has the final responsibility.

On the Federal Reserve in particular, the CHOICE Act devotes a title to “Fed Oversight Reform and Modernization,” which includes improving its accountability.

“Obviously, the Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to,” once succinctly testified a president of the New York Fed. Under the CHOICE Act, such reviews would happen at least quarterly.

In these reviews, I recommend that the Federal Reserve should in addition be required to produce a Savers Impact Statement, quantifying and discussing the effects of its monetary policies on savings and savers.

The CHOICE Act requires of new regulatory rules that they provide “an assessment of how the burden imposed … will be distributed among market participants.” This good idea should by analogy be applied to burdens imposed on savers by monetary actions.

By my estimate, the Federal Reserve has taken since 2008 over $2 trillion from savers and given it to borrowers. The Federal Reserve may want to defend its sacrifice of the savers as a necessary evil — but it ought to openly and clearly quantify the effects and discuss the economic and social implications with the Congress.

In sum, the CHOICE Act represents major improvements in the accountability of government agencies to the Congress and ultimately to the people. These are very significant steps forward in the governance of the administrative state to bring it under better constitutional control.

CHOICE Act would be major progress for financial system

Published by the R Street Institute.

Mr. Chairman, Ranking Member Waters and members of the committee, thank you for the opportunity to be here today. I am Alex Pollock, a senior fellow at the R Street Institute, and these are my personal views. I have spent more than four decades working in and on banking and housing finance, including 12 years as president and CEO of the Federal Home Loan Bank of Chicago and 11 years focused on financial policy issues at the American Enterprise Institute, before joining R Street last year. I have experienced and studied many financial crises and their political aftermaths, starting when the Federal Reserve caused the Credit Crunch of 1969 when I was a bank trainee.

My discussion will focus on three key areas of the proposed CHOICE Act. All deal with essential issues and, in all three, the CHOICE Act would create major progress for the financial system, for constitutional government and for financing economic growth. These areas are accountability, capital and congressional governance of the administrative state.

The CHOICE Act is long and complex, but there are a very large number of things to fix—like the Volcker Rule, among many others– in the even longer Dodd-Frank Act.

A good summary of the real-world results of Dodd-Frank is supplied by the “Community Bank Agenda for Economic Growth” of the Independent Community Bankers of America. “Community banks,” it states, “need relief from suffocating regulatory mandates. The exponential growth of these mandates affects nearly every aspect of community banking. The very nature of the industry is shifting away from community investment and community building to paperwork, compliance and examination.” I think this observation is fair.

The Community Bankers continue: “The new Congress has a unique opportunity to simplify, streamline and restructure.” So it does, and I am glad this committee is seizing the opportunity.

In November 2016, Alan Greenspan remarked, “Dodd-Frank has been a—I wanted to say ‘catastrophe,’ but I’m looking for a stronger word.” Although the financial crisis and the accompanying recession had been over for a year when Dodd-Frank was enacted, in the wake of the crisis, as always, there was pressure to “do something” and the tendency to overreact was strong. Dodd-Frank’s something-to-do was to expand regulatory bureaucracy in every way its drafters could think of—it should be known as the Faith in Bureaucracy Act. This was in spite of the remarkably poor record of the government agencies, since they were important causes of, let alone having failed to avoid, the housing bubble and the bust. Naïve faith that government bureaucracies have superior knowledge of the financial future is a faith I do not share.

Accountability of the Administrative State

Accountability is a, perhaps the, central concept in every part of the government. To whom are regulatory agencies accountable? Who is or should be their boss? To whom is the Federal Reserve, a special kind of agency, accountable? Who is or should be its boss? To whom should the Consumer Financial Protection Bureau be accountable? Who should be its boss?

The answer to all these questions is of course: the Congress. We should all agree on that. All these agencies of government, populated by unelected employees, must be accountable to the elected representatives of the people, who created them, can dissolve them and have to govern them in the meantime. All have to be part of the separation of powers and the system of checks and balances which is at the heart of our constitutional order. This also applies to the Federal Reserve. In spite of its endlessly repeated slogan that it must be “independent,” the Federal Reserve must equally be accountable.

But accountability does not happen automatically: Congress has to assert itself to carry out its own duty for governance of the many agencies it has created and for its obligation to ensure that checks and balances actually operate.

The CHOICE Act is an excellent example of the Congress asserting itself at last to clarify that regulatory agencies are derivative bodies accountable to the Congress, that they cannot be sovereign fiefdoms—not even the dictatorship of the CFPB, and not even the money-printing activities of the Federal Reserve.

The most classic and still most important power of the legislature is the power of the purse. The CHOICE Act accordingly puts all the regulatory agencies, including the regulatory part of the Federal Reserve, under the democratic discipline of congressional appropriations. This notably would end the anti-constitutional direct grab from public funds which was originally granted to the CFPB—and which was designed precisely to evade the democratic power of the purse. It is sometimes objected that appropriations “inject politics” into these decisions. Well, of course! Democracy is political. Regulatory expansions are political, all pretense of technocracy notwithstanding.

The CHOICE Act also requires of all financial regulatory agencies the core discipline of cost-benefit analysis. It provides that actions whose costs exceed their benefits should not be undertaken without special justification. That’s pretty logical and hard to argue with. Naturally, assessing the future costs and benefits of any action is subject to uncertainties—perhaps very large uncertainties. But this is no reason not to do the analysis—indeed, forthrightly to confront the uncertainties is essential.

The CHOICE Act also requires an analysis after five years of how regulations actually turned out in terms of costs and benefits. This would reasonably lead—I hope it will—to scrapping the ones that didn’t work.

To enhance and provide an overview of the regulatory agencies’ cost-benefit analyses, the CHOICE Act requires the formation of a Chief Economists Council, comprising the chief economist of each agency. This appeals to me, because it might help the views of the economists, who tend to care a lot about benefits versus costs, balance those of their lawyer colleagues, who may not.

Further congressional governance of regulatory agencies is provided by the requirement that Congress approve major regulatory rules—those having an economic effect of $100 million or more. Congress would further have the authority to disapprove minor rules if it chooses by joint resolution. This strikes me as a very effective way of reminding everybody involved, including the Congress itself, who actually is the boss and who has the final responsibility.

Taken together, these provisions are major increases in the accountability of regulatory agencies to the Congress and ultimately to the people. They are very significant steps forward in the governance of the administrative state and bringing it under better constitutional control.

Accountability of the Federal Reserve

A word more on the Federal Reserve in particular, since the CHOICE Act devotes a title to “Fed Oversight Reform and Modernization” (FORM), which includes improving its governance by Congress. In a 1964 report, “The Federal Reserve after Fifty Years,” the Domestic Finance Subcommittee of the ancestor of this committee, then called the House Committee on Banking and Currency, disapprovingly reviewed the idea that the Federal Reserve should be “independent.” This was in a House and committee controlled by the Democratic Party. The report has this to say:

• “An independent central bank is essentially undemocratic.”

• “Americans have been against ideas and institutions which smack of government by philosopher kings.”

• “To the extent that the [Federal Reserve] Board operates autonomously, it would seem to run counter to another principle of our constitutional order—that of the accountability of power.”

In my view, all these points are correct.

The president of the New York Federal Reserve Bank testified to the 1964 committee: “Obviously, the Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to.” That is entirely correct, too.

Under the CHOICE Act, such reviews would happen at least quarterly. I would like to suggest an additional requirement for these reviews. I believe that the Federal Reserve should be required to produce a Savers Impact Statement, quantifying and discussing the effects of its monetary policies on savings and savers.

The CHOICE Act requires of new regulatory rules that they provide “an assessment of how the burden imposed…will be distributed among market participants.” This good idea should by analogy be applied to burdens imposed on savers by monetary actions. By my estimate, the Federal Reserve has taken since 2008 more than $2 trillion from savers and given it to borrowers. The Federal Reserve may defend its sacrifice of the savers as a necessary evil—but it ought to openly and clearly quantify the effects and discuss the economic and social implications with the Congress.

Accountability of Banks

Let me turn to accountability in banking, under two themes: providing sufficient equity to capitalize your own risks; and bearing the risk you create—otherwise known as “skin in the game.”

The best-known provision of the CHOICE Act is to allow banks the very sensible choice of having substantial equity capital—to be specific, a 10 percent or more tangible leverage capital ratio—in exchange for reduction in onerous and intrusive regulation. Such regulation becomes less and less justifiable as the capital rises. As I testified last July, this is a rational and fundamental trade-off: More capital, less intrusive regulation. Want to run with less capital and thus push more of your risk onto the government? You get more regulation.

It is impossible to argue against the principle that there is some level of equity capital at which this trade-off makes sense for everybody—some level of capital at which everyone, even habitual lovers of bureaucracy, would agree that the Dodd-Frank burdens are superfluous, with costs higher than their benefits.

But exactly what that level is, can be and is, disputed. Because banking markets are so shot through with government guarantees and distortions, there is no clear market test. All answers are to some degree theoretical, and the estimates vary—some think the number is less than 10 percent leverage capital—for example, economist William Cline finds that optimal bank leverage capital is 7 percent—or 8 percent to be conservative. Some think it is more—15 percent has been suggested more than once. The International Monetary Fund came up with a desired risk-based capital range which they concluded was “consistent with 9.5 percent” leverage capital—that’s pretty close to 10 percent. Distinguished banking scholar Charles Calomiris suggested “roughly 10 percent.” My opinion is that the fact that no one knows the exactly right answer should not stop us from moving in the right direction.

All in all, it seems to me that the 10 percent tangible leverage capital ratio, conservatively calculated, as proposed in the CHOICE Act is a fair and workable level to attain “qualifying banking organization” status, in other words, the more capital-less onerous regulation trade-off. The ratio must be maintained over time, with a one-year remediation period if a bank falls short, and with immediate termination of the qualifying status if its leverage capital ratio ever falls below 6 percent—a ratio sometimes considered very good. All this seems quite reasonable to me.

The CHOICE Act mandates a study of the possible regulatory use of the “non-performing asset coverage ratio,” which is similar to the “Texas ratio” from the 1980s. The point is to compare the level of delinquent and nonaccrual assets to the available loan loss reserves and capital, as a way of estimating how real the book equity is. This study is a good idea.

To be fully accountable for the credit risk of your loans, you can keep them on your own balance sheet. This is 100 percent skin in the game. One of the true (not new, but true) lessons of the housing bubble was that loans made with 0 percent skin in the game are much more likely to cause trouble. So Dodd-Frank made up a bunch of rules to control the origination of mortgages which feed into a zero skin in the game system. These rules are irrelevant to banks that keep their own loans.

The CHOICE Act therefore gives relief to banks holding mortgage loans in portfolio from regulations which arose from problems of subprime securitization, problems alien to the risk structure and incentives of the portfolio lender.

Accountability for Deals with Foreign Regulators

A challenging issue in the governance of the administrative state are deals that the Treasury and the Federal Reserve are alleged to have made with foreign regulators and central bankers, is in the context of their participation in the international Financial Stability Board (FSB). These deals have been made, the suggestion is, outside of the American legal process, and then imported to the United States.

Were there any such deals, or were there merely discussions?

We know that the FSB has publicly stated that it will review countries for “the implementation and effectiveness of regulatory, supervisory or other financial sector standard and policies as agreed by the FSB.” As agreed by the FSB?  Does that mean a country, specifically the United States, is supposed to be bound by deals made in this committee?  Did the American participants in these meetings feel personally committed to implement some agreements?

We also know that there is a letter that would shine light on this question: a September 2014 letter from Mark Carney, the governor of the Bank of England and chairman of the FSB, to then-Treasury Secretary Lew. This letter allegedly reveals the international discussions about American companies, including it is said, whether Berkshire Hathaway should be designated a systemically important insurer (an idea not politically popular with the Obama administration). A Freedom of Information Act request for the letter has previously been denied by the Treasury, which admits, however, that it exists.

I believe that Congress should immediately request a copy of this letter as part of its consideration of the “International Processes” subtitle of the CHOICE Act. While at it, Congress should request any other correspondence regarding possible agreements within the FSB.

The international subtitle rightly requires regulatory agencies and the Treasury to tell the Congress what subjects they are addressing in such meetings and whether any agreements have been made.

Accountability for Emerging Financial System Risks

The CHOICE Act makes a number of positive changes to the structure and functions of the Financial Stability Oversight Council (FSOC). Here I would like to suggest a possible addition.

I believe the responsibility for reporting to Congress on identified emerging financial system risks should be clearly assigned to the secretary of the Treasury. As the Chairman of FSOC, the secretary is in charge of whatever discussions are required with regulatory agencies, the Federal Reserve or foreign governments.

Forecasts of the unknowable financial future are hard to get right, needless to say, but I believe a unified, single assignment of responsibility for communications with Congress of the best available risk assessments would be a good idea.

Thank you again for the chance to share these views.