The Quiet Coup

The crash has laid bare many unpleasant truths about the United States. One of the most alarming, says a former chief economist of the International Monetary Fund, is that the finance industry has effectively captured our government—a state of affairs that more typically describes emerging markets, and is at the center of many emerging-market crises. If the IMF’s staff could speak freely about the U.S., it would tell us what it tells all countries in this situation: recovery will fail unless we break the financial oligarchy that is blocking essential reform. And if we are to prevent a true depression, we’re running out of time.

In The Atlantic Monthly, Simon Johnson writes:

One thing you learn rather quickly when working at the International Monetary Fund is that no one is ever very happy to see you. Typically, your “clients” come in only after private capital has abandoned them, after regional trading-bloc partners have been unable to throw a strong enough lifeline, after last-ditch attempts to borrow from powerful friends like China or the European Union have fallen through. You’re never at the top of anyone’s dance card.

The reason, of course, is that the IMF specializes in telling its clients what they don’t want to hear. I should know; I pressed painful changes on many foreign officials during my time there as chief economist in 2007 and 2008. And I felt the effects of IMF pressure, at least indirectly, when I worked with governments in Eastern Europe as they struggled after 1989, and with the private sector in Asia and Latin America during the crises of the late 1990s and early 2000s. Over that time, from every vantage point, I saw firsthand the steady flow of officials—from Ukraine, Russia, Thailand, Indonesia, South Korea, and elsewhere—trudging to the fund when circumstances were dire and all else had failed.

Every crisis is different, of course. Ukraine faced hyperinflation in 1994; Russia desperately needed help when its short-term-debt rollover scheme exploded in the summer of 1998; the Indonesian rupiah plunged in 1997, nearly leveling the corporate economy; that same year, South Korea’s 30-year economic miracle ground to a halt when foreign banks suddenly refused to extend new credit.

But I must tell you, to IMF officials, all of these crises looked depressingly similar. Each country, of course, needed a loan, but more than that, each needed to make big changes so that the loan could really work. Almost always, countries in crisis need to learn to live within their means after a period of excess—exports must be increased, and imports cut—and the goal is to do this without the most horrible of recessions. Naturally, the fund’s economists spend time figuring out the policies—budget, money supply, and the like—that make sense in this context. Yet the economic solution is seldom very hard to work out.

No, the real concern of the fund’s senior staff, and the biggest obstacle to recovery, is almost invariably the politics of countries in crisis.

Typically, these countries are in a desperate economic situation for one simple reason—the powerful elites within them overreached in good times and took too many risks. Emerging-market governments and their private-sector allies commonly form a tight-knit—and, most of the time, genteel—oligarchy, running the country rather like a profit-seeking company in which they are the controlling shareholders. When a country like Indonesia or South Korea or Russia grows, so do the ambitions of its captains of industry. As masters of their mini-universe, these people make some investments that clearly benefit the broader economy, but they also start making bigger and riskier bets. They reckon—correctly, in most cases—that their political connections will allow them to push onto the government any substantial problems that arise.

In Russia, for instance, the private sector is now in serious trouble because, over the past five years or so, it borrowed at least $490 billion from global banks and investors on the assumption that the country’s energy sector could support a permanent increase in consumption throughout the economy. As Russia’s oligarchs spent this capital, acquiring other companies and embarking on ambitious investment plans that generated jobs, their importance to the political elite increased. Growing political support meant better access to lucrative contracts, tax breaks, and subsidies. And foreign investors could not have been more pleased; all other things being equal, they prefer to lend money to people who have the implicit backing of their national governments, even if that backing gives off the faint whiff of corruption.

But inevitably, emerging-market oligarchs get carried away; they waste money and build massive business empires on a mountain of debt. Local banks, sometimes pressured by the government, become too willing to extend credit to the elite and to those who depend on them. Overborrowing always ends badly, whether for an individual, a company, or a country. Sooner or later, credit conditions become tighter and no one will lend you money on anything close to affordable terms.

The downward spiral that follows is remarkably steep. Enormous companies teeter on the brink of default, and the local banks that have lent to them collapse. Yesterday’s “public-private partnerships” are relabeled “crony capitalism.” With credit unavailable, economic paralysis ensues, and conditions just get worse and worse. The government is forced to draw down its foreign-currency reserves to pay for imports, service debt, and cover private losses. But these reserves will eventually run out. If the country cannot right itself before that happens, it will default on its sovereign debt and become an economic pariah. The government, in its race to stop the bleeding, will typically need to wipe out some of the national champions—now hemorrhaging cash—and usually restructure a banking system that’s gone badly out of balance. It will, in other words, need to squeeze at least some of its oligarchs.

Squeezing the oligarchs, though, is seldom the strategy of choice among emerging-market governments. Quite the contrary: at the outset of the crisis, the oligarchs are usually among the first to get extra help from the government, such as preferential access to foreign currency, or maybe a nice tax break, or—here’s a classic Kremlin bailout technique—the assumption of private debt obligations by the government. Under duress, generosity toward old friends takes many innovative forms. Meanwhile, needing to squeeze someone, most emerging-market governments look first to ordinary working folk—at least until the riots grow too large.

Eventually, as the oligarchs in Putin’s Russia now realize, some within the elite have to lose out before recovery can begin. It’s a game of musical chairs: there just aren’t enough currency reserves to take care of everyone, and the government cannot afford to take over private-sector debt completely.

So the IMF staff looks into the eyes of the minister of finance and decides whether the government is serious yet. The fund will give even a country like Russia a loan eventually, but first it wants to make sure Prime Minister Putin is ready, willing, and able to be tough on some of his friends. If he is not ready to throw former pals to the wolves, the fund can wait. And when he is ready, the fund is happy to make helpful suggestions—particularly with regard to wresting control of the banking system from the hands of the most incompetent and avaricious “entrepreneurs.”

Of course, Putin’s ex-friends will fight back. They’ll mobilize allies, work the system, and put pressure on other parts of the government to get additional subsidies. In extreme cases, they’ll even try subversion—including calling up their contacts in the American foreign-policy establishment, as the Ukrainians did with some success in the late 1990s.

Many IMF programs “go off track” (a euphemism) precisely because the government can’t stay tough on erstwhile cronies, and the consequences are massive inflation or other disasters. A program “goes back on track” once the government prevails or powerful oligarchs sort out among themselves who will govern—and thus win or lose—under the IMF-supported plan. The real fight in Thailand and Indonesia in 1997 was about which powerful families would lose their banks. In Thailand, it was handled relatively smoothly. In Indonesia, it led to the fall of President Suharto and economic chaos.

From long years of experience, the IMF staff knows its program will succeed—stabilizing the economy and enabling growth—only if at least some of the powerful oligarchs who did so much to create the underlying problems take a hit. This is the problem of all emerging markets.

Becoming a Banana Republic
In its depth and suddenness, the U.S. economic and financial crisis is shockingly reminiscent of moments we have recently seen in emerging markets (and only in emerging markets): South Korea (1997), Malaysia (1998), Russia and Argentina (time and again). In each of those cases, global investors, afraid that the country or its financial sector wouldn’t be able to pay off mountainous debt, suddenly stopped lending. And in each case, that fear became self-fulfilling, as banks that couldn’t roll over their debt did, in fact, become unable to pay. This is precisely what drove Lehman Brothers into bankruptcy on September 15, causing all sources of funding to the U.S. financial sector to dry up overnight. Just as in emerging-market crises, the weakness in the banking system has quickly rippled out into the rest of the economy, causing a severe economic contraction and hardship for millions of people.

But there’s a deeper and more disturbing similarity: elite business interests—financiers, in the case of the U.S.—played a central role in creating the crisis, making ever-larger gambles, with the implicit backing of the government, until the inevitable collapse. More alarming, they are now using their influence to prevent precisely the sorts of reforms that are needed, and fast, to pull the economy out of its nosedive. The government seems helpless, or unwilling, to act against them.

Top investment bankers and government officials like to lay the blame for the current crisis on the lowering of U.S. interest rates after the dotcom bust or, even better—in a “buck stops somewhere else” sort of way—on the flow of savings out of China. Some on the right like to complain about Fannie Mae or Freddie Mac, or even about longer-standing efforts to promote broader homeownership. And, of course, it is axiomatic to everyone that the regulators responsible for “safety and soundness” were fast asleep at the wheel.

But these various policies—lightweight regulation, cheap money, the unwritten Chinese-American economic alliance, the promotion of homeownership—had something in common. Even though some are traditionally associated with Democrats and some with Republicans, they all benefited the financial sector. Policy changes that might have forestalled the crisis but would have limited the financial sector’s profits—such as Brooksley Born’s now-famous attempts to regulate credit-default swaps at the Commodity Futures Trading Commission, in 1998—were ignored or swept aside.

The financial industry has not always enjoyed such favored treatment. But for the past 25 years or so, finance has boomed, becoming ever more powerful. The boom began with the Reagan years, and it only gained strength with the deregulatory policies of the Clinton and George W. Bush administrations. Several other factors helped fuel the financial industry’s ascent. Paul Volcker’s monetary policy in the 1980s, and the increased volatility in interest rates that accompanied it, made bond trading much more lucrative. The invention of securitization, interest-rate swaps, and credit-default swaps greatly increased the volume of transactions that bankers could make money on. And an aging and increasingly wealthy population invested more and more money in securities, helped by the invention of the IRA and the 401(k) plan. Together, these developments vastly increased the profit opportunities in financial services.


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Not surprisingly, Wall Street ran with these opportunities. From 1973 to 1985, the financial sector never earned more than 16 percent of domestic corporate profits. In 1986, that figure reached 19 percent. In the 1990s, it oscillated between 21 percent and 30 percent, higher than it had ever been in the postwar period. This decade, it reached 41 percent. Pay rose just as dramatically. From 1948 to 1982, average compensation in the financial sector ranged between 99 percent and 108 percent of the average for all domestic private industries. From 1983, it shot upward, reaching 181 percent in 2007.

The great wealth that the financial sector created and concentrated gave bankers enormous political weight—a weight not seen in the U.S. since the era of J.P. Morgan (the man). In that period, the banking panic of 1907 could be stopped only by coordination among private-sector bankers: no government entity was able to offer an effective response. But that first age of banking oligarchs came to an end with the passage of significant banking regulation in response to the Great Depression; the reemergence of an American financial oligarchy is quite recent.

The Wall Street–Washington Corridor
Of course, the U.S. is unique. And just as we have the world’s most advanced economy, military, and technology, we also have its most advanced oligarchy.

In a primitive political system, power is transmitted through violence, or the threat of violence: military coups, private militias, and so on. In a less primitive system more typical of emerging markets, power is transmitted via money: bribes, kickbacks, and offshore bank accounts. Although lobbying and campaign contributions certainly play major roles in the American political system, old-fashioned corruption—envelopes stuffed with $100 bills—is probably a sideshow today, Jack Abramoff notwithstanding.

Instead, the American financial industry gained political power by amassing a kind of cultural capital—a belief system. Once, perhaps, what was good for General Motors was good for the country. Over the past decade, the attitude took hold that what was good for Wall Street was good for the country. The banking-and-securities industry has become one of the top contributors to political campaigns, but at the peak of its influence, it did not have to buy favors the way, for example, the tobacco companies or military contractors might have to. Instead, it benefited from the fact that Washington insiders already believed that large financial institutions and free-flowing capital markets were crucial to America’s position in the world.

One channel of influence was, of course, the flow of individuals between Wall Street and Washington. Robert Rubin, once the co-chairman of Goldman Sachs, served in Washington as Treasury secretary under Clinton, and later became chairman of Citigroup’s executive committee. Henry Paulson, CEO of Goldman Sachs during the long boom, became Treasury secretary under George W.Bush. John Snow, Paulson’s predecessor, left to become chairman of Cerberus Capital Management, a large private-equity firm that also counts Dan Quayle among its executives. Alan Greenspan, after leaving the Federal Reserve, became a consultant to Pimco, perhaps the biggest player in international bond markets.

These personal connections were multiplied many times over at the lower levels of the past three presidential administrations, strengthening the ties between Washington and Wall Street. It has become something of a tradition for Goldman Sachs employees to go into public service after they leave the firm. The flow of Goldman alumni—including Jon Corzine, now the governor of New Jersey, along with Rubin and Paulson—not only placed people with Wall Street’s worldview in the halls of power; it also helped create an image of Goldman (inside the Beltway, at least) as an institution that was itself almost a form of public service.

Wall Street is a very seductive place, imbued with an air of power. Its executives truly believe that they control the levers that make the world go round. A civil servant from Washington invited into their conference rooms, even if just for a meeting, could be forgiven for falling under their sway. Throughout my time at the IMF, I was struck by the easy access of leading financiers to the highest U.S. government officials, and the interweaving of the two career tracks. I vividly remember a meeting in early 2008—attended by top policy makers from a handful of rich countries—at which the chair casually proclaimed, to the room’s general approval, that the best preparation for becoming a central-bank governor was to work first as an investment banker.

A whole generation of policy makers has been mesmerized by Wall Street, always and utterly convinced that whatever the banks said was true. Alan Greenspan’s pronouncements in favor of unregulated financial markets are well known. Yet Greenspan was hardly alone. This is what Ben Bernanke, the man who succeeded him, said in 2006: “The management of market risk and credit risk has become increasingly sophisticated. … Banking organizations of all sizes have made substantial strides over the past two decades in their ability to measure and manage risks.”

Of course, this was mostly an illusion. Regulators, legislators, and academics almost all assumed that the managers of these banks knew what they were doing. In retrospect, they didn’t. AIG’s Financial Products division, for instance, made $2.5 billion in pretax profits in 2005, largely by selling underpriced insurance on complex, poorly understood securities. Often described as “picking up nickels in front of a steamroller,” this strategy is profitable in ordinary years, and catastrophic in bad ones. As of last fall, AIG had outstanding insurance on more than $400 billion in securities. To date, the U.S. government, in an effort to rescue the company, has committed about $180 billion in investments and loans to cover losses that AIG’s sophisticated risk modeling had said were virtually impossible.

Wall Street’s seductive power extended even (or especially) to finance and economics professors, historically confined to the cramped offices of universities and the pursuit of Nobel Prizes. As mathematical finance became more and more essential to practical finance, professors increasingly took positions as consultants or partners at financial institutions. Myron Scholes and Robert Merton, Nobel laureates both, were perhaps the most famous; they took board seats at the hedge fund Long-Term Capital Management in 1994, before the fund famously flamed out at the end of the decade. But many others beat similar paths. This migration gave the stamp of academic legitimacy (and the intimidating aura of intellectual rigor) to the burgeoning world of high finance.

As more and more of the rich made their money in finance, the cult of finance seeped into the culture at large. Works like Barbarians at the Gate, Wall Street, and Bonfire of the Vanities—all intended as cautionary tales—served only to increase Wall Street’s mystique. Michael Lewis noted in Portfolio last year that when he wrote Liar’s Poker, an insider’s account of the financial industry, in 1989, he had hoped the book might provoke outrage at Wall Street’s hubris and excess. Instead, he found himself “knee-deep in letters from students at Ohio State who wanted to know if I had any other secrets to share. … They’d read my book as a how-to manual.” Even Wall Street’s criminals, like Michael Milken and Ivan Boesky, became larger than life. In a society that celebrates the idea of making money, it was easy to infer that the interests of the financial sector were the same as the interests of the country—and that the winners in the financial sector knew better what was good for America than did the career civil servants in Washington. Faith in free financial markets grew into conventional wisdom—trumpeted on the editorial pages of The Wall Street Journal and on the floor of Congress.

From this confluence of campaign finance, personal connections, and ideology there flowed, in just the past decade, a river of deregulatory policies that is, in hindsight, astonishing:

• insistence on free movement of capital across borders;

• the repeal of Depression-era regulations separating commercial and investment banking;

• a congressional ban on the regulation of credit-default swaps;

• major increases in the amount of leverage allowed to investment banks;

• a light (dare I say invisible?) hand at the Securities and Exchange Commission in its regulatory enforcement;

• an international agreement to allow banks to measure their own riskiness;

• and an intentional failure to update regulations so as to keep up with the tremendous pace of financial innovation.

The mood that accompanied these measures in Washington seemed to swing between nonchalance and outright celebration: finance unleashed, it was thought, would continue to propel the economy to greater heights.

America’s Oligarchs and the Financial Crisis
The oligarchy and the government policies that aided it did not alone cause the financial crisis that exploded last year. Many other factors contributed, including excessive borrowing by households and lax lending standards out on the fringes of the financial world. But major commercial and investment banks—and the hedge funds that ran alongside them—were the big beneficiaries of the twin housing and equity-market bubbles of this decade, their profits fed by an ever-increasing volume of transactions founded on a relatively small base of actual physical assets. Each time a loan was sold, packaged, securitized, and resold, banks took their transaction fees, and the hedge funds buying those securities reaped ever-larger fees as their holdings grew.

Because everyone was getting richer, and the health of the national economy depended so heavily on growth in real estate and finance, no one in Washington had any incentive to question what was going on. Instead, Fed Chairman Greenspan and President Bush insisted metronomically that the economy was fundamentally sound and that the tremendous growth in complex securities and credit-default swaps was evidence of a healthy economy where risk was distributed safely.

In the summer of 2007, signs of strain started appearing. The boom had produced so much debt that even a small economic stumble could cause major problems, and rising delinquencies in subprime mortgages proved the stumbling block. Ever since, the financial sector and the federal government have been behaving exactly the way one would expect them to, in light of past emerging-market crises.

By now, the princes of the financial world have of course been stripped naked as leaders and strategists—at least in the eyes of most Americans. But as the months have rolled by, financial elites have continued to assume that their position as the economy’s favored children is safe, despite the wreckage they have caused.

Stanley O’Neal, the CEO of Merrill Lynch, pushed his firm heavily into the mortgage-backed-securities market at its peak in 2005 and 2006; in October 2007, he acknowledged, “The bottom line is, we—I—got it wrong by being overexposed to subprime, and we suffered as a result of impaired liquidity in that market. No one is more disappointed than I am in that result.” O’Neal took home a $14 million bonus in 2006; in 2007, he walked away from Merrill with a severance package worth $162 million, although it is presumably worth much less today.

In October, John Thain, Merrill Lynch’s final CEO, reportedly lobbied his board of directors for a bonus of $30 million or more, eventually reducing his demand to $10million in December; he withdrew the request, under a firestorm of protest, only after it was leaked to The Wall Street Journal. Merrill Lynch as a whole was no better: it moved its bonus payments, $4 billion in total, forward to December, presumably to avoid the possibility that they would be reduced by Bank of America, which would own Merrill beginning on January 1. Wall Street paid out $18 billion in year-end bonuses last year to its New York City employees, after the government disbursed $243 billion in emergency assistance to the financial sector.

In a financial panic, the government must respond with both speed and overwhelming force. The root problem is uncertainty—in our case, uncertainty about whether the major banks have sufficient assets to cover their liabilities. Half measures combined with wishful thinking and a wait-and-see attitude cannot overcome this uncertainty. And the longer the response takes, the longer the uncertainty will stymie the flow of credit, sap consumer confidence, and cripple the economy—ultimately making the problem much harder to solve. Yet the principal characteristics of the government’s response to the financial crisis have been delay, lack of transparency, and an unwillingness to upset the financial sector.

The response so far is perhaps best described as “policy by deal”: when a major financial institution gets into trouble, the Treasury Department and the Federal Reserve engineer a bailout over the weekend and announce on Monday that everything is fine. In March 2008, Bear Stearns was sold to JP Morgan Chase in what looked to many like a gift to JP Morgan. (Jamie Dimon, JP Morgan’s CEO, sits on the board of directors of the Federal Reserve Bank of New York, which, along with the Treasury Department, brokered the deal.) In September, we saw the sale of Merrill Lynch to Bank of America, the first bailout of AIG, and the takeover and immediate sale of Washington Mutual to JP Morgan—all of which were brokered by the government. In October, nine large banks were recapitalized on the same day behind closed doors in Washington. This, in turn, was followed by additional bailouts for Citigroup, AIG, Bank of America, Citigroup (again), and AIG (again).

Some of these deals may have been reasonable responses to the immediate situation. But it was never clear (and still isn’t) what combination of interests was being served, and how. Treasury and the Fed did not act according to any publicly articulated principles, but just worked out a transaction and claimed it was the best that could be done under the circumstances. This was late-night, backroom dealing, pure and simple.

Throughout the crisis, the government has taken extreme care not to upset the interests of the financial institutions, or to question the basic outlines of the system that got us here. In September 2008, Henry Paulson asked Congress for $700 billion to buy toxic assets from banks, with no strings attached and no judicial review of his purchase decisions. Many observers suspected that the purpose was to overpay for those assets and thereby take the problem off the banks’ hands—indeed, that is the only way that buying toxic assets would have helped anything. Perhaps because there was no way to make such a blatant subsidy politically acceptable, that plan was shelved.

Instead, the money was used to recapitalize banks, buying shares in them on terms that were grossly favorable to the banks themselves. As the crisis has deepened and financial institutions have needed more help, the government has gotten more and more creative in figuring out ways to provide banks with subsidies that are too complex for the general public to understand. The first AIG bailout, which was on relatively good terms for the taxpayer, was supplemented by three further bailouts whose terms were more AIG-friendly. The second Citigroup bailout and the Bank of America bailout included complex asset guarantees that provided the banks with insurance at below-market rates. The third Citigroup bailout, in late February, converted government-owned preferred stock to common stock at a price significantly higher than the market price—a subsidy that probably even most Wall Street Journal readers would miss on first reading. And the convertible preferred shares that the Treasury will buy under the new Financial Stability Plan give the conversion option (and thus the upside) to the banks, not the government.

This latest plan—which is likely to provide cheap loans to hedge funds and others so that they can buy distressed bank assets at relatively high prices—has been heavily influenced by the financial sector, and Treasury has made no secret of that. As Neel Kashkari, a senior Treasury official under both Henry Paulson and Tim Geithner (and a Goldman alum) told Congress in March, “We had received inbound unsolicited proposals from people in the private sector saying, ‘We have capital on the sidelines; we want to go after [distressed bank] assets.’” And the plan lets them do just that: “By marrying government capital—taxpayer capital—with private-sector capital and providing financing, you can enable those investors to then go after those assets at a price that makes sense for the investors and at a price that makes sense for the banks.” Kashkari didn’t mention anything about what makes sense for the third group involved: the taxpayers.

Even leaving aside fairness to taxpayers, the government’s velvet-glove approach with the banks is deeply troubling, for one simple reason: it is inadequate to change the behavior of a financial sector accustomed to doing business on its own terms, at a time when that behavior must change. As an unnamed senior bank official said to The New York Times last fall, “It doesn’t matter how much Hank Paulson gives us, no one is going to lend a nickel until the economy turns.” But there’s the rub: the economy can’t recover until the banks are healthy and willing to lend.

The Way Out
Looking just at the financial crisis (and leaving aside some problems of the larger economy), we face at least two major, interrelated problems. The first is a desperately ill banking sector that threatens to choke off any incipient recovery that the fiscal stimulus might generate. The second is a political balance of power that gives the financial sector a veto over public policy, even as that sector loses popular support.

Big banks, it seems, have only gained political strength since the crisis began. And this is not surprising. With the financial system so fragile, the damage that a major bank failure could cause—Lehman was small relative to Citigroup or Bank of America—is much greater than it would be during ordinary times. The banks have been exploiting this fear as they wring favorable deals out of Washington. Bank of America obtained its second bailout package (in January) after warning the government that it might not be able to go through with the acquisition of Merrill Lynch, a prospect that Treasury did not want to consider.

The challenges the United States faces are familiar territory to the people at the IMF. If you hid the name of the country and just showed them the numbers, there is no doubt what old IMF hands would say: nationalize troubled banks and break them up as necessary.

In some ways, of course, the government has already taken control of the banking system. It has essentially guaranteed the liabilities of the biggest banks, and it is their only plausible source of capital today. Meanwhile, the Federal Reserve has taken on a major role in providing credit to the economy—the function that the private banking sector is supposed to be performing, but isn’t. Yet there are limits to what the Fed can do on its own; consumers and businesses are still dependent on banks that lack the balance sheets and the incentives to make the loans the economy needs, and the government has no real control over who runs the banks, or over what they do.

At the root of the banks’ problems are the large losses they have undoubtedly taken on their securities and loan portfolios. But they don’t want to recognize the full extent of their losses, because that would likely expose them as insolvent. So they talk down the problem, and ask for handouts that aren’t enough to make them healthy (again, they can’t reveal the size of the handouts that would be necessary for that), but are enough to keep them upright a little longer. This behavior is corrosive: unhealthy banks either don’t lend (hoarding money to shore up reserves) or they make desperate gambles on high-risk loans and investments that could pay off big, but probably won’t pay off at all. In either case, the economy suffers further, and as it does, bank assets themselves continue to deteriorate—creating a highly destructive vicious cycle.

To break this cycle, the government must force the banks to acknowledge the scale of their problems. As the IMF understands (and as the U.S. government itself has insisted to multiple emerging-market countries in the past), the most direct way to do this is nationalization. Instead, Treasury is trying to negotiate bailouts bank by bank, and behaving as if the banks hold all the cards—contorting the terms of each deal to minimize government ownership while forswearing government influence over bank strategy or operations. Under these conditions, cleaning up bank balance sheets is impossible.

Nationalization would not imply permanent state ownership. The IMF’s advice would be, essentially: scale up the standard Federal Deposit Insurance Corporation process. An FDIC “intervention” is basically a government-managed bankruptcy procedure for banks. It would allow the government to wipe out bank shareholders, replace failed management, clean up the balance sheets, and then sell the banks back to the private sector. The main advantage is immediate recognition of the problem so that it can be solved before it grows worse.

The government needs to inspect the balance sheets and identify the banks that cannot survive a severe recession. These banks should face a choice: write down your assets to their true value and raise private capital within 30 days, or be taken over by the government. The government would write down the toxic assets of banks taken into receivership—recognizing reality—and transfer those assets to a separate government entity, which would attempt to salvage whatever value is possible for the taxpayer (as the Resolution Trust Corporation did after the savings-and-loan debacle of the 1980s). The rump banks—cleansed and able to lend safely, and hence trusted again by other lenders and investors—could then be sold off.

Cleaning up the megabanks will be complex. And it will be expensive for the taxpayer; according to the latest IMF numbers, the cleanup of the banking system would probably cost close to $1.5trillion (or 10percent of our GDP) in the long term. But only decisive government action—exposing the full extent of the financial rot and restoring some set of banks to publicly verifiable health—can cure the financial sector as a whole.

This may seem like strong medicine. But in fact, while necessary, it is insufficient. The second problem the U.S. faces—the power of the oligarchy—is just as important as the immediate crisis of lending. And the advice from the IMF on this front would again be simple: break the oligarchy.

Oversize institutions disproportionately influence public policy; the major banks we have today draw much of their power from being too big to fail. Nationalization and re-privatization would not change that; while the replacement of the bank executives who got us into this crisis would be just and sensible, ultimately, the swapping-out of one set of powerful managers for another would change only the names of the oligarchs.

Ideally, big banks should be sold in medium-size pieces, divided regionally or by type of business. Where this proves impractical—since we’ll want to sell the banks quickly—they could be sold whole, but with the requirement of being broken up within a short time. Banks that remain in private hands should also be subject to size limitations.

This may seem like a crude and arbitrary step, but it is the best way to limit the power of individual institutions in a sector that is essential to the economy as a whole. Of course, some people will complain about the “efficiency costs” of a more fragmented banking system, and these costs are real. But so are the costs when a bank that is too big to fail—a financial weapon of mass self-destruction—explodes. Anything that is too big to fail is too big to exist.

To ensure systematic bank breakup, and to prevent the eventual reemergence of dangerous behemoths, we also need to overhaul our antitrust legislation. Laws put in place more than 100years ago to combat industrial monopolies were not designed to address the problem we now face. The problem in the financial sector today is not that a given firm might have enough market share to influence prices; it is that one firm or a small set of interconnected firms, by failing, can bring down the economy. The Obama administration’s fiscal stimulus evokes FDR, but what we need to imitate here is Teddy Roosevelt’s trust-busting.

Caps on executive compensation, while redolent of populism, might help restore the political balance of power and deter the emergence of a new oligarchy. Wall Street’s main attraction—to the people who work there and to the government officials who were only too happy to bask in its reflected glory—has been the astounding amount of money that could be made. Limiting that money would reduce the allure of the financial sector and make it more like any other industry.

Still, outright pay caps are clumsy, especially in the long run. And most money is now made in largely unregulated private hedge funds and private-equity firms, so lowering pay would be complicated. Regulation and taxation should be part of the solution. Over time, though, the largest part may involve more transparency and competition, which would bring financial-industry fees down. To those who say this would drive financial activities to other countries, we can now safely say: fine.

Two Paths
To paraphrase Joseph Schumpeter, the early-20th-century economist, everyone has elites; the important thing is to change them from time to time. If the U.S. were just another country, coming to the IMF with hat in hand, I might be fairly optimistic about its future. Most of the emerging-market crises that I’ve mentioned ended relatively quickly, and gave way, for the most part, to relatively strong recoveries. But this, alas, brings us to the limit of the analogy between the U.S. and emerging markets.

Emerging-market countries have only a precarious hold on wealth, and are weaklings globally. When they get into trouble, they quite literally run out of money—or at least out of foreign currency, without which they cannot survive. They must make difficult decisions; ultimately, aggressive action is baked into the cake. But the U.S., of course, is the world’s most powerful nation, rich beyond measure, and blessed with the exorbitant privilege of paying its foreign debts in its own currency, which it can print. As a result, it could very well stumble along for years—as Japan did during its lost decade—never summoning the courage to do what it needs to do, and never really recovering. A clean break with the past—involving the takeover and cleanup of major banks—hardly looks like a sure thing right now. Certainly no one at the IMF can force it.

In my view, the U.S. faces two plausible scenarios. The first involves complicated bank-by-bank deals and a continual drumbeat of (repeated) bailouts, like the ones we saw in February with Citigroup and AIG. The administration will try to muddle through, and confusion will reign.

Boris Fyodorov, the late finance minister of Russia, struggled for much of the past 20 years against oligarchs, corruption, and abuse of authority in all its forms. He liked to say that confusion and chaos were very much in the interests of the powerful—letting them take things, legally and illegally, with impunity. When inflation is high, who can say what a piece of property is really worth? When the credit system is supported by byzantine government arrangements and backroom deals, how do you know that you aren’t being fleeced?

Our future could be one in which continued tumult feeds the looting of the financial system, and we talk more and more about exactly how our oligarchs became bandits and how the economy just can’t seem to get into gear.

The second scenario begins more bleakly, and might end that way too. But it does provide at least some hope that we’ll be shaken out of our torpor. It goes like this: the global economy continues to deteriorate, the banking system in east-central Europe collapses, and—because eastern Europe’s banks are mostly owned by western European banks—justifiable fears of government insolvency spread throughout the Continent. Creditors take further hits and confidence falls further. The Asian economies that export manufactured goods are devastated, and the commodity producers in Latin America and Africa are not much better off. A dramatic worsening of the global environment forces the U.S. economy, already staggering, down onto both knees. The baseline growth rates used in the administration’s current budget are increasingly seen as unrealistic, and the rosy “stress scenario” that the U.S. Treasury is currently using to evaluate banks’ balance sheets becomes a source of great embarrassment.

Under this kind of pressure, and faced with the prospect of a national and global collapse, minds may become more concentrated.

The conventional wisdom among the elite is still that the current slump “cannot be as bad as the Great Depression.” This view is wrong. What we face now could, in fact, be worse than the Great Depression—because the world is now so much more interconnected and because the banking sector is now so big. We face a synchronized downturn in almost all countries, a weakening of confidence among individuals and firms, and major problems for government finances. If our leadership wakes up to the potential consequences, we may yet see dramatic action on the banking system and a breaking of the old elite. Let us hope it is not then too late.

Simon Johnson, a professor at MIT’s Sloan School of Management, was the chief economist at the International Monetary Fund during 2007 and 2008. He blogs about the financial crisis at baselinescenario.com, along with James Kwak, who also contributed to this essay.

Interview with Naomi Klein

The Wall Street Bailout Is the Greatest Heist in Monetary History

At wowowow.com, Joan Juliet Buck interviews Naomi Klein:

As all the pieces of all the world’s economy started crashing around our heads, I realized that the person I most wanted to ask about it all was Naomi Klein, whom I had met briefly last year when Laurie Anderson put together a protest evening at St. Anne’s. Naomi Klein’s books, No Logo and The Shock Doctrine, examined the roots of what is happening now. Here’s what she had to say about the present crisis. -JJB

JOAN JULIET BUCK: You must be having some very intense reactions to everything that’s happening right now.

NAOMI KLEIN: It’s an adventure reading the paper every morning.

JOAN: Where does that leave the end of history?

NAOMI: So many of the debates that we were told are over are reemerging. That’s the good part of what’s going on right now. There were so many attempts to arbitrarily claim that ideas about social justice, about economic justice, were finished, and there’s only one model. In The Shock Doctrine I quote Larry Summers, from back in 1991 when he was a honcho at the World Bank. He was talking about the World Bank policies that used to be called The Washington Consensus. And he said, “Spread the truth — the laws of economics are like the laws of engineering. One set of laws works everywhere.” It was all about deregulation, privatization, the market is always best, the market’s always supreme. And there was the feeling of certainty — that we had figured everything out. Summers even said a couple of years later that there are many basic economic ideas that are “passé” — no longer worthy of debate. One of the issues that he listed as over was the idea that government could invest in programs to stimulate the economy. And here he is … right!

JOAN: What does the present moment mean?

NAOMI: It’s created space; there’s new oxygen to propose alternatives. One of the things that I try to show in my book is that these debates were not won on their own merits. They were often won using violence, by actually eliminating the left, in countries in Latin America, and then declaring ideological victory.

JOAN: In The New Yorker, you’re quoted as saying, “This is a progressive moment. It’s ours to lose.” What did you mean?

NAOMI: Capitalism is on trial. And you have an organic, grassroots, sort of spontaneous revolt against the elite – which is actually what we’re hearing with this rage at CEOs, and bonuses and government collusion with the elites. Rage is an opportunity. The rage is there, and the country is seething, the world is seething with rage. The question is, where is it going to be directed? I feel there’s a moral responsibility for the Left and for progressives to provide an alternative in this moment that is moral, that is principled, that is just, that is hopeful, because if we don’t, then that anger is so easily directed at “those damn Mexican immigrants,” at “the first African American president.” So I feel a tremendous sense of urgency. It’s not just, “Hey, our time has come.” It’s, “We’d better get our act together because this anger is going somewhere.”

JOAN: Now, who would the leaders of this Left be?

NAOMI: That is a very complicated question in the United States right now. Pretty much everywhere else in the world, besides maybe North Korea, there’s a really healthy distrust of those in power. You know, people are in the streets in this moment, as well they should be – whether it’s in France or whether it’s in Britain or Iceland. They may have a left-leaning government, like the government of Gordon Brown. But that doesn’t mean they’re giving him a pass. In Britain the choice is very clear. The anger is either going to be directed at the banks or it’s going to be directed at immigrants. I’m not afraid of it being directed at the banks. I’m appalled at news that there’s a 17-year-old girl who is facing jail time for having a few beers and breaking a window at the RBS Bank during the G-20 protests, when not a single banker is going to jail for burning down the global economy. What kind of a system is that? I think we should rally to this young woman’s defense. What you see again and again in Europe is that, in this critical moment, there is an opposition that is organizing with this healthy distrust of power. In the U.S., Obama mania complicates this.

JOAN: You said, talking about the Obama video "Yes We Can," "Now, finally, a politician is making ads that are as good as Nike."

NAOMI: In the ‘90s I wrote a lot about branding and how corporations were tapping into the deeply human need to be part of something bigger than just consumerism. “We’re not just selling sneakers. We’re not just selling laptops. We’re selling transcendence and a connection and community.” That trend actually made me feel hopeful that, actually, we don’t just want things, and all of this expensive market research was telling Microsoft and Starbucks and Nike that what we actually want is to be part of something larger. Even though I thought the phenomenon was culturally insidious, I felt, in many ways, the same sense of responsibility. Like, hey, they’ve done our market research for us, but they’re actually not offering community and political engagement. They’re offering lattes and laptops and running shoes. So it’s actually up to progressive movements to provide the real deal. I do believe that the Yes We Can movement started pretty empty, and it was really tapping into just the deep shame of the Bush years and the desire for something different, and using these very creative marketing techniques where you’re able to project your own longings onto this blank slate.

JOAN: And can Obama provide the real deal?

NAOMI: What gave me hope was that when the economic crisis hit, Obama got serious and his analysis became more concrete. It’s really worth remembering that he started winning the election when Lehman collapsed and he started putting the ideology of Reaganism on trial. He started saying, “This economic crisis is the result of the policies of deregulation and trickle-down economics that have dominated this country.” But he said, “for the last eight years.” That was wrong. And that was part of the problem.

JOAN: Because it’s the last 30.

NAOMI: It’s the last 30 and, you know, that was a piece of intellectual dishonesty that I think has cost us dearly. That was a good electoral line because we all wanted to be able to blame it all on Republicans, because that was a much more sellable election slogan. “Everything was fine in the ‘90s when you had Clinton and we just need to get back to that.” And what that did was gloss over the absolutely central role that Robert Rubin and Larry Summers played in creating this crisis. And lo and behold, they’re back with their protégés in tow. There’s really a shared responsibility, and it’s an argument for more intellectual honesty, more principled stands and fewer strategic calculations. What worries me so much is that it’s fine for politicians to be strategic. But social movements should be principled. They shouldn’t always be thinking about what’s the right strategy, what’s the sellable message, what’s the talking point, because then you end up in a situation like this. Larry Summers is back. Larry Summers was given a pass during the entire election.

JOAN: Is it effective what Obama’s doing? What do you think of it?

NAOMI: If you mean the bank bailout, I think it’s a disaster, crony capitalism at the absolute worst. I think the timing of the release of Larry Summers’s financial records from last year is really interesting. He worked at a hedge fund one day a week and was paid $5.2 million. He was paid $135,000 for one speech to one of the bailed-out banks. And when he got the post he was presented as an egghead academic, as if he wasn’t coming from Wall Street. In fact he wasn’t just working for one bank; he was working for all of them. He collected $8 million in these fees in one year. The question people have been asking about the bank bailout is, “Why is this happening?” And I think part of the answer is that in the United States, there’s so much mythology around the purity of American intentions. There’s always this desire to blame incompetence as opposed to greed. But sometimes things are just what they look like.

NAOMI: Larry Summers and Tim Geithner came up with a plan to bail out the banks that is actually a disguised bailout for the hedge funds — where the government is not bailing out the hedge funds directly because they can’t sell that, but hedging the hedge funds to buy the toxic assets of the banks — instead of nationalizing the banks and breaking them up, which is what needs to happen. This is very different from what FDR had the guts to do. He used that progressive movement, he used the rage at the banks, to pass Glass-Steagall. And there’s no excuse for the fact that there’s been no serious re-regulation of the financial sector. The idea that you would somehow hand out trillions of dollars to the banks and then regulate them months later is crazy. You have the leverage when you’re handing out the money. “You say you want a bailout? Well here are the new rules.” And somehow we’re supposed to believe that the plan is to hand out trillions of dollars to the banks, and then later, once they’ve taken and spent the money, impose new rules. That’s the stupidest plan I’ve ever heard in my life. And I don’t believe these guys are dumb. I think they’re corrupt.

JOAN: Which guys?

NAOMI: Summers. Geithner. It may be legal corruption but I still consider it corrupt. Wall Street funded Obama’s campaign. They funded his Inauguration. They paid huge speaking and consulting fees to some of his closest advisers. What I am calling corruption is better understood as “crony capitalism.” It’s the systematic trading of favors between corporate and political elites to secure wealth and power. And the truth is, most of the time the trading of favors doesn’t even need to be explicit. It’s more that this corporate-political nexus creates an impenetrable culture in Washington, so the hedge-fund managers and bank CEOs are the ones who are in the ears of the Washington policy makers — they are their constituency, their community, the ones saying whether or not a given policy will work. And, of course, the problem is that the voices of regular people are left out.

JOAN: Why is my perception that Obama was funded by the tiny donations?

NAOMI: Because both are true. His campaign was historic in the number of small donations and the grassroots campaigning that brought him to office. But it was also historic in the levels of Wall Street financing. The grassroots movement that brought Obama to power needs to understand that the fight is on, that Wall Street is pushing Obama hard behind the scenes because they feel they have a claim to him. And the appointment of Summers and Geithner were all messages to Wall Street – “Don’t worry, things are not going to change too much.” And the market cheered. For the people who sent the $100 donations and volunteered their time for the Obama campaign, the only way to respond to this is to push hard from the other direction. Because the dynamic where Obama’s grassroots support just cheers him and defends anything he does, while the Wall Street heavy hitters and the defense companies take the gloves and lobby hard for their agenda does not work. The grassroots will lose that battle because they aren’t actually fighting. What they’re saying to Obama is, “You can take us for granted.”

NAOMI: I’m not saying Obama is corrupt. But I’m saying that, so far, what he has actually done is go to great lengths to reassure Wall Street and it’s very much a top-down recovery model, which is the opposite of what he campaigned on. He campaigned on the idea of a bottom-up recovery. Reinvesting in Main Street, reinvesting in manufacturing. That can happen, but only if we demand it, because in Washington the momentum for the status quo is so tremendous. That’s the problem with the bailout. His stimulus package has some very, very good things in it. The news is not all bad. But the problem is that the bank bailout is so bad that it practically cancels everything else out, in the sense that taxpayers have taken on so much risk, so much debt in the interest of bailing out the banks, that they’ve created a crisis down the road which will then be used to justify cutting social security, cutting health care and not making good on those promises. That’s the real concern.

JOAN: You really think that’s going to happen?

NAOMI: I really believe that this bailout is not a bailout for the economy. The best writing about this has been done by Joseph Stiglitz, Paul Krugman, Jeffrey Sachs. These are very, very respected economists. Two of them with Nobel prizes. What’s really shocking to me is that they’re in the position of criticizing from the sidelines, as opposed to being in the administration. This administration is trapped in the kind of thinking that created the crisis and I think it should be just gloves-off criticism on this, because it’s very, very serious. It’s very serious that Joseph Stiglitz has not been invited to play a pivotal role in the administration, that Paul Krugman is seen as too extreme. That’s why Summers matters, because Summers is the gatekeeper. Summers appears to be keeping people away from Obama. He’s defining the terms of the debate, and they are outrageously narrow. I think we should take Stiglitz and Krugman and Sachs at their word on the bailout: It’s worse than we thought. The debts that these banks hold are enough to swallow the country’s entire GDP and then some, if we keep throwing money into that black hole. It happened in Iceland. We just saw a national economy be wiped out by the debts accumulated by private banks.

JOAN: Just start with the Icelandic protests. Why are there no protests in the streets in America?

NAOMI: This comes back to the problems of hero worship. It’s hard to protest your hero. But it’s more than that. It’s also that the virulence of the Right in the United States is so frightening and the problem is that it is the merger of the extreme far right and large corporations, in the form of media conglomerates. So Glenn Beck on Fox or Lou Dobbs on CNN have these unbelievable megaphones to attack Obama, and to spread fear, which makes reasonable people feel that their main political role is to defend the Obama administration against this very frightening right-wing onslaught. It’s understandable but it’s also hard to do that while being in the streets protesting that administration’s bailout – which is what’s happening in Britain, which is what’s happening in France, what’s happening in Italy. I think the problem in the U.S. is that many people who were part of the campaign to get Obama into power now see their role as being kind of an unofficial arm of the administration, with some groups even taking talking points from the White House. It’s a recipe for political failure, because what actually makes space for Obama to do more of what we want him to do is to make him look less radical, by being more radical ourselves.

JOAN: A very good point.

NAOMI: And that’s actually doing him a favor. That’s how political victories were won in the ‘30s and ‘40s, and it’s really the only route. Another obstacle we face are these wild theories about what Obama’s actually planning to do. During the campaign people forgave a lot that they disagreed with by saying, “Well, you know, he has to say that in order to get elected." Or, "When he gets the power he’s going to change his position," which I think is really problematic for progressives, because what you’re actually doing is hoping he’s lying. And we actually want politicians to tell the truth so that we can hold them to their promises on the campaign trail.

JOAN: And now?

NAOMI: Now you have this new level of theorizing where people think maybe Obama’s strategy is to try the free-market bailout model. You know, bailing out the banks, letting them stay private, doing this hedge-fund bailout, so that he can show that it failed, so that he can then do what he really wants to do.

JOAN: Machiavelli.

NAOMI: Yeah, except for one problem: There’s not going to be any money left for the second stage of this supposedly ingenious plan. The bottom line is that we need to get out of trying to imagine what Obama might be thinking and all of his strategizing, and just stand on principle and make principled demands. I do have enough faith in Obama to believe that if he is faced with a mobilized population making clear, principled, radical demands, he will broker a pretty good compromise. But he’s not going to do it while he is just being cheered by his supporters.

JOAN: Given that many people consider that this moment is exposing the fundamental flaws of capitalism, is it a moment for a radical rethinking of capitalism, of economics, of the markets? For a whole new model?

NAOMI: I do think that. I do. That’s both the fear and the promise of this moment. Here’s something else that I thought was really exciting about the protest in London during the G-20 Summit: Most of those activists came out of the environmental movement. They were making connections between the financial crisis and the ecological crisis, the logic of “there’s no tomorrow,” and short-term thinking that underlies both the financial crisis and the climate crisis, and the perpetual-motion machine of economic growth above all else.

It is a real crisis that we’re facing and it goes well beyond the financial markets. The frightening part of this political moment has been watching how the crisis in the financial sector has just swept all of these other issues aside. Do we ever hear about the food crisis? Do we think it’s solved? Do we ever hear about the AIDS pandemic or are we talking about climate change anymore? It can go either way. This crisis can swallow us up in every way. The financial crisis can be the only thing we talk about. It can drink up all of our collective resources. On the other hand it does provide this opportunity because the failures of the economic logic are so clear. When you start making those connections and talking about solutions that are multitasking solutions that address the financial crisis, AND the climate crisis AND the health-care crisis, then people start getting really inspired. So much of what has paralyzed progressive movements over the past 20, 30 years has been this idea of a shrug from government. We can’t do anything collectively. Yeah, sure, that’s a big problem, but we have to leave things to the market, and government isn’t very good at doing anything. That notion of collective impotence has also shattered, along with so many of the other myths.

We’re seeing such incredible government effort that’s being marshaled in order to save the financial system. There’s a sense of possibility about anything right now. Why can’t we have universal health care? Why can’t we have an incredible mass-transit system across the country? You never know what this generation’s going to do with that, because they are not afflicted with what my generation was afflicted with, which was just total indoctrination and Reaganism and this idea that we can’t do anything collectively. That’s also what’s hopeful about what Obama unleashed in his campaign. People felt the tremendous sense of common purpose. And also they got a victory.

JOAN: They did.

NAOMI: When people start winning things, it can go either way. People can just get disillusioned and go, “Well I thought Obama was going to fix everything, and he didn’t. And now I’m never going to do anything ever again. I’m now officially cynical at, you know, 23.” Or, it can be, “Wait a minute. We’ve made history electing this guy who everyone said couldn’t get elected and let’s go make some more history.”

JOAN: Now, a little question about the whole idea of progressive movements that, of course, come out of our parents’ generation and are fueled by Communist ideals — and Communism in our lifetime was revealed to be an unworkable model. So you’re saying the only basis for progressive movements is justice itself?

NAOMI: Well, justice, democracy and also any major new progressive movement is going to have ecology at its very center, which necessarily questions the fundamentals of capitalism, which is based on endless growth. Young people understand that much better than we do, just in their bones — a sense of a feeling of real ecological limits. That, to me, was what was so insidious about the role that Sarah Palin played in the campaign — at this moment, when we’re suddenly, collectively getting in touch with the reality that the resources of the planet are not limitless, that we have a deep challenge to the American dream, to the frontier myth, which is the myth of abundance and wide-open spaces. And just when we’re starting to come to grips with the reality that we have to live within our means, along comes Sarah Palin who says, “Come up to Alaska. It’s the final frontier. We’ve got enough oil and gas and resources to fuel your way of life forever and ever. Drill, baby, drill.” I think it was such an extraordinary moment, the Republican convention of, “No, we don’t have to think about tomorrow.”

JOAN: Right.

NAOMI: That aspect of the role that Sarah Palin played in revising the myth of the frontier hasn’t really been examined enough. What I try to show in the Shock Doctrine is that capitalism and its various spokespeople have always tried to create a false duality between free markets and free people on the one hand, and Communism and enslaved people on the other, as if those are the only two choices available to us. We see that even in the way that the Glenn Becks and the Sean Hannitys and the Bill O’Reillys are immediately casting Obama as a Communist for extremely moderate Keynesian policies. It serves them to pretend there is nothing between extremist market fundamentalism and Communism, to erase everything in the middle.

In tracking the history of this very dangerous right-wing ideology, what was so striking to me was that it was always more dangerous to these right-wing ideologues to have democratic socialism or Scandinavian-style social democracy, rather than iron-rule, Soviet-style totalitarianism. That’s an easy enemy. That’s fun. The Cold War was fun. What is much more challenging for the Right is when people start experimenting with combinations of democracy, socialism and markets. For instance, in Poland, the first Eastern-bloc country to have elections, the party that came to power was Solidarity. And Solidarity’s vision for an alternative was not Reaganism. It was the idea that the factories could be turned into workers’ co-ops. This was Upton Sinclair’s idea in 1934 when he ran for governor of California — all of these abandoned farmlands and factories that are closing should be given to workers to run democratically. And in the rare places where they have been tried — these are the so-called “third ways” — they usually turn out to be some of the best places in the world to live, like the Scandinavian countries, or parts of Northern Italy where you have a large portion of the economy run by co-ops.

JOAN: When I read The Shock Doctrine I got so angry. Has that feeling of frustration that you communicate, of frustration and horror, has that abated a bit for you, or is it worse?

NAOMI: It hasn’t abated. What enrages me more than anything is impunity. I am in a state of rage about the impunity of the elites at the moment. I’m very disturbed by this idea that we just have to keep looking forward, we can’t look backward. That is a declaration in favor of legal impunity for the elites, whether we’re talking about torture, whether we’re talking about the financial crimes that created this crisis, whether we’re talking about what happened under TARP and the first $700 billion. Elizabeth Warren has done such a fantastic job and has raised some very, very deep legal issues about what happened with that money, and there seems to be no desire to prosecute. This brings us back to that 17-year-old girl who broke a window. You can’t have a society where the elites enjoy this flagrant impunity and expect people to respect the rule of law.

That’s why I dwell on Summers. I think that somebody who played a key role in pushing shock therapy economic policy on Russia in the ‘90s, when 72 million people were thrown into poverty, should not be declared a genius. I’ve really been struck recently by the fact that this is such a boys’ club that we’re talking about. Men get sort of deified and their intelligence inflated beyond all reason and evidence — the “maestro” Alan Greenspan and the “oracle” Larry Summers, as he was recently declared in The New Republic — really projecting onto these guys otherworldly intelligence, otherworldly powers. And I’m calling this the “brain bubble” because I actually think it’s more dangerous than the real-estate bubble, and I think it’s more dangerous than the subprime mortgage crisis.

JOAN: It infantilizes the watcher.

NAOMI: It infantilizes all of us because these men are just too smart for us, so that we just have to trust them, no matter how spectacularly and repeatedly wrong they have been. I’ve also been struck by how spectacularly right a few key women have been in this process, and, interestingly, women never get the “brain bubble” treatment.

JOAN: OK, who?

NAOMI: Brooksley Born [chairwoman of the Commodity Futures Trading Commission], who, during the Clinton administration, blew the whistle on the unregulated derivative industry and wanted to regulate it like any other banking sector. For her prescience she was bullied by Rubin and Greenspan and Summers, who’s actually the enforcer of the three. He was the one who called her. They argued that just by talking about the need to regulate derivatives, she was going to create market panic. So not only wouldn’t they consider it, they wouldn’t even let her talk about it. She saw this whole crisis coming. You often hear this: “Well, no one saw this coming.” And that is such a reflection on who these men believe is someone. But there are so many people who saw this coming, and they’re considered nobodies. The only way you get to be a somebody is if you agree with them. Brooksley Born saw it coming. Elizabeth Warren has been an incredible watchdog. Sheila Bair, chair of the FDIC, also had a much more principled and ethical vision of what the bailout should be, in arguing that they should be offering direct aid to homeowners, as opposed to this top-down bailout. I feel like this gender split is not coincidental. There’s a need for more of a feminist analysis in understanding how we got here.

JOAN: As a child you rejected feminism, which your mother supported. What was it about feminism that you initially found so distasteful?

NAOMI: I think it was a combination of just basic boring teenage rebellion and, really, these basic, aesthetic objections.

JOAN: Hairy legs?

NAOMI: Yes. And it’s not that my mom was hardcore in that way, but I didn’t like being policed in any way. I rejected feminism as something that I felt was getting in my way of, you know, wanting to wear what I wanted to wear and do what I wanted to do. I really didn’t like the idea that it would be assumed that I would agree with my parents. It was a combination of just wanting to wear tight jeans and also just not wanting to be bossed around. I was a bit of a brat about it.

But when I was in first-year university at University of Toronto, there was a terrible crime against women that is really not known about outside of Canada. It was a massacre at the University of Montreal, the city where I was born and in which I grew up. A gunman went into an engineering school. At that time there were big debates about why there aren’t more women in engineering and in the hard sciences. And there were people arguing that it’s because women lack the certain intrinsic ability. As an aside, that’s what Larry Summers suggested when he was president of Harvard, which got him in so much trouble. There were other people who were arguing that it was the culture of the schools themselves, and that there needed to be more of an effort to bring women into the sciences. And affirmative action was being practiced at the engineering schools. The vitriol around this was so strong that this gunman, Mark Lepine, got it into his head that he had not gotten into this school because of feminists. He went to an engineering classroom at the University of Montreal and separated the men from the women. He turned to the women and said, “You’re all a bunch of fucking feminists,” and gunned them down. Fourteen women were killed. So it was a crime against women, a crime against feminism.

JOAN: You did a lot of feminist activism starting then, right?

NAOMI: Yes, right away. Because I had grown up with it, it was a bit like, “Oh, I know how to do this,” even though I had always rejected it. The connection between the way that this was being reported on in the media and the way this twisted man incorporated it in his mind was so clear that a whole generation of feminists was created in that moment. The media kept saying, “He’s just a madman. It’s not a crime against women. It’s not about politics.” And this is so familiar. It happens every time, right? We wanted to talk about the fact that we felt it was bigger than just one man, that we were all feeling vulnerable. So we put up some signs around campus saying that we were going to have a meeting to talk about the Montreal massacre. And 900 people showed up. I was asked to chair the meeting. I’d never done any public speaking or done anything like that before. And from then on I was just in this role of leadership. But I always was a writer. I was always writing for the campus newspaper, more than I was leading rallies. I’ve never been comfortable in that role.

JOAN: Is there anything good about globalization?

NAOMI: Yes. There are many good things about internationalism. I consider myself an internationalist, not a nationalist. Globalization is such a slippery term and that’s why I almost never use it. I always say the so-called anti-globalization movement. And in my first book, No Logo, I talk about how we were seeing a rise in anti-corporate activism, and anti-corporate globalization activism. I never just say anti-globalization, because what was exciting about the movement that I was writing about and that I was a part of, that came to world attention in Seattle, is precisely that it was global; that these new technologies, like the Internet, were allowing us to create connections that were absolutely unprecedented between producers and consumers on other sides of the world. What we opposed was the globalization of a specific ideology. It was about an ideology that Larry Summers talks about – privatization, deregulation.

JOAN: What do you think of the branding of social justice and causes like the Red Campaign, which has become a brand? It leaves me completely cold. Do you think it’s effective? Do you think it’s a good redirection of branding and consumerism? Or do you think it’s like a false idea wrapped around a good idea?

NAOMI: Every time I talk about this I get into trouble. What’s interesting about Red is it really hasn’t taken off. There was so much hype about it. And so much marketing. What was so scandalous was comparing the advertising budgets to the actual dollars that went into the Global Fund. Considering the paid and free advertising that this campaign got, I think it’s quite amazing how unsuccessful it was. And I think because a lot of people had that feeling that there was something wrong about the idea of shopping your way out a humanitarian crisis. The message of Red was: You don’t have to change anything about your lifestyle; in fact, we need to just buy more. Like, you’ve got a cell phone, but you don’t have a red cell phone! It was such a hyper-consumerist model, it didn’t resonate with the target market, which was young people, who actually do understand that this idea of limitless consumption is at the core of the problem of global inequality, not the solution.

NAOMI: And my other discomfort with not just Red, but the Make Poverty History branding, is that I really feel that it is — and was — a very real step backward from what was happening before September 11 in the global justice movement, not the anti-globalization movement, but the global justice movement that you saw not just in the protest in North America but in Porto Alegre, Brazil, with the huge World Social Forum, and the Africa Social Forum, and also the Durban World Conference against racism, the UN Conference that happened just before September 11, which was a tremendous forum for African nations and for people of African descent around the world, including in the U.S., to talk about the legacies of colonialism and slavery, to talk about real reparations, and what Africa actually deserves in terms of economic justice, not charity. And what was so exciting about these events is that Africans were actually speaking on their own behalf on the world stage and coming up with some pretty radical demands that actually challenged who owes who. They were talking about how much has been looted from that continent in terms of people and natural resources, and turning the tables on this idea of "we just want your aid, we just want your charity." And when I think back to that time, and then I look to the Gleneagles G-8 Summit and Bob Geldof and Bono talking about saving Africa, it makes my stomach churn. So that’s why I get myself into trouble when I talk about this.

JOAN: Are you too left?

NAOMI: I think we’ve established that, surely! I think the question is too left for what? I mean, I’m not running for office.

JOAN: Shoshana Zuboff wrote about Wall Street’s economic crimes against humanity in BusinessWeek. Do you think these are crimes against humanity?

NAOMI: "Crimes against humanity" has a very specific legal connotation, and I think that some Wall Street firms have been complicit in specific crimes against humanity. But whether the financial crisis is itself a crime against humanity, according to the UN definition, I think we should really be careful with those terms — because they need to have meaning. But I do believe that the Wall Street bailout is the greatest heist in monetary history.

JOAN: Who profits from the heist? From the Wall Street bailout?

NAOMI: This is an unprecedented transfer of public wealth into private hands. And it has been done on completely false pretenses. We were told that when they announced the first $700 billion it was to get the banks to start lending again. And then the banks said, “Oh, actually we’re just going to keep it because it makes us comfortable.” It’s theft. And it’s not mysterious who profits from it.

Who profits from it is exactly who seems to be profiting from it. Who will pay for it are the most vulnerable people in the world. And that’s why, maybe, I wouldn’t call it a crime against humanity. I think it is, honestly, a class war. I think we are seeing a class war, before our eyes, of the wealthiest segment of the population saving themselves and having the most vulnerable, poorest people pay the price – because that’s what it really means to bankrupt the government to save the banks. It means you’re not going to have money for food stamps. You’re already hearing these tragic stories of scholarship programs being cut. I mean, the most vulnerable people are paying for the banks to save themselves from a crisis that they created, and that is so deeply immoral. People should be angry about it, and the anger should be directed where it belongs.

JOAN: One more question, Naomi. You suggested in The Nation a boycott of Israel to end the increasingly bloody occupation. Can you expand on that? You must have caused a shit storm by saying that.

NAOMI: I was actually much more surprised by the amount of support I got for that. Every time you write about Israel you get angry letters. But what surprised me was the number of supportive letters I got, including from Jewish Israelis. I think it was about people’s sense of rage and feelings of helplessness during the Israeli attack on Gaza, a sense that the old ways of putting pressure behind the scenes, lobbying and hoping for the best, and signing a petition weren’t working. I got so many letters from Israelis who had always opposed the idea of sanctions against the Israeli government saying, “Progressives in Israel are beside themselves, and the country is moving hard right on its own.” You have overt racism against Arabs becoming acceptable in public discourse in Israel.

And progressives are ready to try some new tactics because they’re losing this battle. Right now the Israeli government has a sense that no matter what they do in the occupied territories, they’re still going to receive financial support from the West, they’re still going to be able to increase trade with the West. And they’ve had one of the fastest-growing economies of the past decade. A boycott does put pressure on the business community in Israel and on the broader population to put pressure on their own government. That’s what happened in South Africa. Apartheid ended when South African businesses finally had had enough of the boycott, and they turned to de Klerk and said, “This isn’t working for us. We need to negotiate.” And it wasn’t because they opposed Apartheid on principle. It was because it was no longer profitable.

JOAN: I’m reading William Gibson’s Pattern Recognition. Have you read William Gibson? I think that this book is so profoundly influenced by No Logo.

NAOMI: But not enough people have read Pattern Recognition, so they don’t know what we’re talking about. The incredible main character in Pattern Recognition is allergic to logos.

JOAN: Particularly Mickey Mouse and the Michelin Man.

NAOMI: William Gibson didn’t read No Logo that I know of. He just saw the title in the bookstore and that’s where he came up with the idea of a main character who had an allergy to brands. I interviewed him at a literary festival when the book first came out and we talked about this.

JOAN: And he’s the person who brought your thinking into literature, into fiction, in an extraordinary way. And it shows me that the arts can be influenced by political thinking, new political thinking.

NAOMI: Everyone should read Pattern Recognition. It’s brilliant There’s another book that I think did a great job of looking at branding and I don’t think enough people have read it. It’s called Jennifer Government.

JOAN: Jennifer Government?

NAOMI: Yes. By Max Barry. He’s a young Australian writer and it’s a sort of sci-fi thriller set in the near future, where everyone has to take the last names of the corporation they work for. John Nike, things like that, unless you work for the government, in which case your last name is “Government.” So that main character is Jennifer Government. It’s really great. Apparently it was optioned by George Clooney’s company, so I’m hoping it will be made into a film.

JOAN: What are the three things that you see that are the real solid rays of hope now?

NAOMI: I talked about some of them. One of the most interesting meetings I had in recent months was with the workers from the Republic Windows & Doors factory in Chicago, who occupied their factory in December. They were so smart. They had been fired without notice. And it turned out that this had happened because Bank of America had cut off credit to the factory — Bank of America who’d gotten all these bailout funds. They were so smart, the workers and their union, UE, because they went after Bank of America instead of just the owners of the factory. And they turned it into a story about the bailout. All great struggles have to involve storytelling. I thought that was a fantastic example. I’ve been hearing about a lot more cases of these kinds of workplace occupations.

JOAN: Like in Argentina.

NAOMI: This is what I made a documentary about a few years back with my husband. Factories were being closed down in the midst of the economic crisis. There were 200 of them where the workers turned them into democratically run co-ops. This is starting to happen in the economic crisis around the world. I’ve got a little file going of this and one thing that would give me a lot of hope is if we really started talking about this alternative in terms of the newspaper industry.

JOAN: I was just thinking that, and magazines.

NAOMI: We are facing a crisis in journalism and we’ve been talking about impunity, and I’ll tell that when you’ve already got a culture of impunity, the very worst thing that could happen is to lose all of the newspapers. But, you know, this crisis is twofold. The crisis that the industry is facing is a crisis of their corporate control, because many of these newspapers are profitable, they’re just not profitable enough for their owners. Having spent a lot of time in factories that are trying to turn themselves into co-ops and other workplaces, I can tell you that there are some workplaces that are harder to turn into co-ops than others. But having worked at newspapers and worked at magazines, it’s actually a pretty straightforward industry to run, and journalists are pretty good at running it. And once you take out the need to have huge profits, or really profits at all, and when the goal becomes the creation and protection of jobs, but also the providing of a much-needed service, a service that is crucial to democracy, then it actually becomes economically viable. You don’t have to pay the huge bonuses. This is an example of something where you can solve two problems at once because not only could you save newspapers, but I think you’d have better newspapers if newspapers were run by journalists again.

JOAN: But what about the fact that the advertising then vanishes because of the market?

NAOMI: This is why it’s become less profitable. But a lot of the newspapers could still run if their goal wasn’t to make a profit, but the goal was to put out a good newspaper and provide jobs. Because you know what? That’s enough.

JOAN: But there has to be money to run the thing and to pay everyone.

NAOMI: I don’t believe that the model has completely failed. There is still some ad revenue. People are still willing to buy newspapers, they’re just not willing to buy them in the same numbers and buy the number of ads that satisfy shareholders. Another ray of hope is looking forward to the Copenhagen summit on climate change. This is the next big climate summit to come up with what they call the post-Kyoto consensus. And at this point, I think there’s a lot of rightful cynicism about the Kyoto protocol because the whole question of "How are we going to respond to climate change?" was entirely infected by market fundamentalism. Bringing it back full circle to where we started, the ideas that have dominated for the past 30 years have utterly shaped the environmental debate during the Kyoto era. So the idea was to always find “market-based solutions” to climate change, which meant that we couldn’t really legislate, and everything had to be creating market incentives for the private sector to solve the problem for us. And I think that’s a much harder sell today in the context of people rightfully losing faith in the ability of the market to solve our most pressing problems. So I think you’re going to see a lot of very different, non-market-based solutions being proposed ahead of the Copenhagen Summit, which is in December 2009.

JOAN: What’s an example of a non-market solution?

NAOMI: A non-market solution is this idea that I’ve become really interested in. It’s been kicking around academic circles for a while but for the first time it’s being applied, which is the idea of “ecological debt” or “climate debt.” I’ll give you a concrete example. Where this issue is most alive is in Ecuador right now. Ecuador is an enormously resource-rich country, as we know. They have very large oil reserves. But they also have a very, very active environmental movement and a very, very strong indigenous movement, particularly — though not exclusively — in the Amazon. This is one of the most biodiverse parts of the world, quite pristine wilderness. But there’s a lot of oil under the ground, and there’s a huge push to take the oil out of the area I’m talking about, which is called the Yasuni National Park. And there’s a battle that’s been going on, which is really about the limits of growth-based economics. It’s not just about the Right, because in Ecuador there’s a left-wing president, part of what they call the Pink Tide in Latin America. His name is Rafael Correa and he calls himself a socialist. He was originally in favor of extracting the oil and reinvesting the profits in health care and education. He doesn’t want the profits to just fly out of the country, as they have so often in the past. He was going to negotiate a really good deal with the oil company, unlike his predecessors. That was his vision. What’s interesting is that he has come up against tremendous resistance from indigenous groups and from environmentalists in Ecuador saying, “That’s not good enough.” Their slogan is "Leave It in the Ground." They don’t want the oil being extracted. But then you have this problem: Ecuador needs money for health care and education and has been held back by regressive economic policies.

So what’s the solution? They’ve come up with this idea of ecological debt, which basically argues that the rich world, the industrialized world that has created the problem of climate change, knowing full well the science that has been in for a long time, owes an ecological debt to developing countries like Ecuador. What they’re saying is they’re owed an ecological debt because they are living through climate changes, and this is an Andean nation that is already dealing with water scarcity and many of the issues associated with global warming. And so they are proposing to the world, and Rafael Correa has signed on to this idea in theory, that there should be some sort of global fund where we in the rich world are paying them to leave it in the ground and reduce their emissions, particularly because this is a world heritage site and we all need the Amazon. Developing countries shouldn’t have to choose between having money for health care and education and reducing emissions. So it’s a completely different logic. Once again, as with reparations for slavery and colonialism, it turns the world on its head and asks this fundamental question of “who owes who?” — who’s the real debtor and who’s the real creditor?

I think these are the ideas that are going to take off in the next 20 years. And I’ll tell you something. I’ve been thinking about this idea and it definitely ties in with who I’m talking to, because I wrote it down: Who Owes Who. The acronym is W.O.W. It’s a pretty great name for a movement challenging the underlying causes of global inequality. The WOW project, that’s what we need.

The Geithner-Summers Plan is Even Worse Than We Thought

the director of the Earth Institute and Columbia University economics professor Jeffrey Sachs writes:

Two weeks ago, I posted an article showing how the Geithner-Summers banking plan could potentially and unnecessarily transfer hundreds of billions of dollars of wealth from taxpayers to banks. The same basic arithmetic was later described by Joseph Stiglitz in the New York Times (April 1) and by Peyton Young in the Financial Times (April 1). In fact, the situation is even potentially more disastrous than we wrote. Insiders can easily game the system created by Geithner and Summers to cost up to a trillion dollars or more to the taxpayers.

Here's how. Consider a toxic asset held by Citibank with a face value of $1 million, but with zero probability of any payout and therefore with a zero market value. An outside bidder would not pay anything for such an asset. All of the previous articles consider the case of true outside bidders.

Suppose, however, that Citibank itself sets up a Citibank Public-Private Investment Fund (CPPIF) under the Geithner-Summers plan. The CPPIF will bid the full face value of $1 million for the worthless asset, because it can borrow $850K from the FDIC, and get $75K from the Treasury, to make the purchase! Citibank will only have to put in $75K of the total.

Citibank thereby receives $1 million for the worthless asset, while the CPPIF ends up with an utterly worthless asset against $850K in debt to the FDIC. The CPPIF therefore quietly declares bankruptcy, while Citibank walks away with a cool $1 million. Citibank's net profit on the transaction is $925K (remember that the bank invested $75K in the CPPIF) and the taxpayers lose $925K. Since the total of toxic assets in the banking system exceeds $1 trillion, and perhaps reaches $2-3 trillion, the amount of potential rip-off in the Geithner-Summers plan is unconscionably large.

The earlier criticisms of the Geithner-Summers plan showed that even outside bidders generally have the incentive to bid far too much for the toxic assets, since they too get a free ride from the government loans. But once we acknowledge the insider-bidding route, the potential to game the plan at the cost of the taxpayers becomes extraordinary. And the gaming of the system doesn't have to be as crude as Citibank setting up its own CPPIF. There are lots of ways that it can do this indirectly, for example, buying assets of other banks which in turn buy Citi's assets. Or other stakeholders in Citi, such as groups of bondholders and shareholders, could do the same.

Several news stories suggest some grounding for these fears. Both Business Week and the Financial Times report that the banks themselves might be invited to bid for the toxic assets, which would seem to set up just the scam outline above. What is incredible is that lack of the most minimal transparency so far about the rules, risks, and procedures of this trillion-dollar plan. Also incredible is the apparent lack of any oversight by Congress, reinforcing the sense that the fix is in or that at best we are all sitting ducks.

The sad part of all this is that there are now several much better ideas circulating among experts, but none of these seems to get the time of day from the Treasury. The best ideas are forms of corporate reorganization, in which a bank weighed down with toxic assets is divided into two banks -- a "good bank" and a "bad bank" -- with the bad bank left holding the toxic assets and the long-term debts, while owning the equity of the good bank. If the bad assets pay off better than is now feared, the bondholders get repaid and the current bank shares keep their value. If the bad assets in fact default heavily as is now expected, the bondholders and shareholders lose their investments. The key point of the good bank -- bad bank plans is an orderly process to restore healthy banking functions (in the good bank) while divvying up the losses in a fair way among the banks' existing claimants. The taxpayer is not needed for that, except to cover the insured part of the banks' existing liabilities, specifically the banks' deposits and perhaps other short-term liabilities that are key to financial market liquidity.

Cynics believe that the Geithner-Summers Plan is exactly what it seems: a naked grab of taxpayer money for Wall Street interests. Geithner and Summers argue that it's the least bad approach to a messy situation, in which we need to restore banking functions but don't have any perfect ways to do that. If they are serious about their justification, let them come forward to confront their critics and to explain to the American people why the other proposals are not being pursued.

Let them explain the hidden and not-so-hidden risks to the American taxpayer of the plan that they have put forward. Let them explain why they are so intent on saving the banks' bondholders, even the long-term unsecured creditors who clearly knew they were taking market risks in buying Citibank bonds. Let them work with their critics to fashion a less risky and less costly plan. So far Geithner and Summers tell us that their plan is the only option, but without a word of further explanation as to why.

William K. Black on The Prompt Corrective Action Law: Section 1831o

William K. Black, associate professor of economics and law at the University of Missouri in Kansas City writes:

My comments in the Bill Moyers Journal interview about the “Prompt Corrective Action” (PCA) law (adopted in 1991) have sparked considerable comment in the blogsphere.

Here is the portion of the interview transcript that discusses the PCA law:

WILLIAM K. BLACK: Well, certainly in the financial sphere, I am. I think, first, the policies are substantively bad. Second, I think they completely lack integrity. Third, they violate the rule of law. This is being done just like Secretary Paulson did it. In violation of the law. We adopted a law after the Savings and Loan crisis, called the Prompt Corrective Action Law. And it requires them to close these institutions. And they're refusing to obey the law.

BILL MOYERS: In other words, they could have closed these banks without nationalizing them?

WILLIAM K. BLACK: Well, you do a receivership. No one -- Ronald Reagan did receiverships. Nobody called it nationalization.

BILL MOYERS: And that's a law?

WILLIAM K. BLACK: That's the law.

BILL MOYERS: So, Paulson could have done this? Geithner could do this?

WILLIAM K. BLACK: Not could. Was mandated-

BILL MOYERS: By the law.

WILLIAM K. BLACK: By the law.

I first published an article about the PCA law over a month ago entitled: “Why is Geithner Continuing Paulson’s Policy of Violating the Law?” (February 23, 2009).

I was the staff leader for Federal Home Loan Bank Board Chairman Ed Gray’s successful reregulation of the S&L industry. That reregulation provided the tools that allowed the agency to place in receivership many of the worst control frauds. Gray inherited (and for a time supported) a dominant strategy of covering up the scale of the S&L industry’s insolvency. He personally recruited vigorous senior regulators such as Michael Patriarca and Joe Selby to reverse that strategy. The PCA law was adopted largely in response to the enormous cost to the taxpayers of our predecessor’s failed strategy of not closing insolvent S&Ls.

The new law had an impressive start, thanks in great part to the transformed reregulatory spirit. How many readers recall the 1991-92 subprime crisis? It didn’t happen because we took prompt regulatory action against subprime S&L lenders that were following practices (e.g., qualifying borrowers at the teaser rate, offering “neg am” mortgages, etc) that we knew would lead to widespread failures.

The broadcast of Bill Moyers Journal interview has raised enormously the public’s awareness of the PCA. A commentator has responded by arguing that the PCA law does not mandate that the regulators place insolvent banks into receivership. I am delighted that the debate has turned to focus in part on the issue of why virtually all economists and white-collar criminologists believe that it is essential to take prompt regulatory action to resolve failed banks, particularly ones that are insolvent due to “control fraud”, i.e., where the person that controls a seemingly legitimate entity uses it as a “weapon” to defraud. In the financial world accounting fraud is the “weapon of choice.”

Banks owned by holding companies are fully subject to the law

The commentator’s primary concern can be answered briefly because it criticizes a claim I never made. S(he) notes that banking holding companies and insurance companies are not subject to PCA. I did not say that they were. As the interview excerpt shows, we were talking about “[savings] institutions” and “banks” that can be put into “receivership” (I’m going to use “bank” here to refer to any FDIC-insured depository institution.) The FDIC (and if it lacks the funds, the U.S. Treasury) is only legally obligated to pay depositors of FDIC-insured banks up to the deposit insurance limits. The federal banking regulators have receivership powers only over federally insured depository institutions. The FDIC and the U.S. Treasury have no obligation to pay the debts of bank holding companies or insurance companies – and shouldn’t be paying those debts.

The commentator uses this strawman argument (refuting a claim no one made) to imply that the fact that PCA doesn’t apply to bank holding companies means that the federal financial regulators did not have to comply with the PCA law. S(he) lists a series of companies, primarily large bank holding companies (BHCs) and declares that their existence means: “So, pretty much all of the really big players don't fall under the PCA in the first place.” Bank holding companies, of course, are called that because they own banks – and the U.S. banks they own are subject to PCA. The fact that a bank is owned by a holding company is irrelevant to the PCA’s requirements; it provides no immunity from the PCA. BHCs are “really big players” because they own massive banks subject to the PCA. The banks are the “really big players” and they are subject to the PCA law. When we put insolvent banks into receivership their BHCs and affiliates lose all control of the bank. The FDIC has sole control of it.

PCA does not apply to the corporate owners of banks or their non-bank affiliates.
However, the bank subsidiaries are the dominant assets of almost all holding companies that own banks. As such, the failure of the banking within the group is likely to trigger the failure of the holding company.

To sum up the first point: banks are the issue. U.S. banks have FDIC insurance and are subject to the PCA law, regardless of whether they are owned by a BHC. Deposit insurance covers only insured banks, not BHCs, so the FDIC, the Treasury and the taxpayers do not owe any obligation to pay their creditors. If the commentator is worried that BHCs will escape receivership, s(he) need not fear. BHCs and insurance companies such as AIG are subject to the bankruptcy laws, which can be used to block and even “claw back” excessive and fraudulent executive compensation. (Treasury is also requesting Congress to grant it authority to place BHCs and some insurers into receivership.)

The PCA law mandates receivership in these circumstances

The commentator’s secondary argument is that the PCA law does not mandate that deeply insolvent banks be placed in receivership. S(he) points to several discretionary exceptions in the law, but none of the exceptions apply to insolvent banks that cannot be promptly corrected (recapitalized). They must be placed in receivership to comport with the stated purpose and language of the law. Moreover, neither the Bush nor the Obama administration has purported to act in accordance with the inapplicable exceptions.

I will respond to the argument primarily by citing other scholars on the PCA that were writing at an earlier time and in an apolitical context. The scholarly literature on the PCA is fairly extensive and quite consistent. I’ve drawn on Nieto & Wall (2007) (see n. 2) for the quotations in the following discussion (other than statutory language), but other sources do not differ materially on the origins, singular purpose, and provisions of the PCA law.

The PCA law, as I noted in the interview, arose as a corrective to problems exposed during the S&L debacle. The consensus was that the central problem was that regulators, sometimes bowing to political or industry pressure (“regulatory capture”), were delaying placing failed banks into receivership and greatly raising the cost to taxpayers.

The US has a long history with the basics required to implement PCA: binding capital adequacy standards and the ability to take substantial actions against banks that failed to meet the standards. The supervisors had the authority to adopt many of the provisions of PCA using their pre-existing powers if they had so chosen. However, the experience of the 1980s had clearly indicated that US supervisors valued discretionary responses targeted at keeping some banks (especially thrifts and large banks) in operation after they had became financially distressed. (p. 12)

Economists and white-collar criminologists broadly agree that prompt receiverships of failed banks reduce taxpayer costs and systemic risk.

[A]llowing insolvent banks to continue in operation runs the risk that they will accumulate even larger losses leading to even greater market disruption when the bank’s continued operation is no longer tenable. In contrast, if a bank is required to be closed before its losses exceed the bank’s equity and subordinated debt then depositors and other creditors should not be exposed to any loss. Moreover, prompt resolution reduces the probability that more than one systemically important bank will be insolvent at the same time. In sum, a supervisory focus on limiting deposit insurance costs is unlikely to result in significantly higher expected losses due to systemic financial problems and may well result in lower expected costs. (p. 18)

Leaving the senior officers that caused bank failure in control creates particularly severe risks to the taxpayers.

Prompt corrective supervisory action seeks to minimize expected losses to the deposit insurer and taxpayer by limiting supervisors’ ability to engage in forbearance. Along with reducing taxpayer losses, PCA should also reduce banks’ incentive to engage in moral hazard behavior by reducing or eliminating the subsidy to risk-taking provided by mispriced deposit insurance. These potential benefits from PCA appear to have been recognized, as reflected in the increasing number of recommendations to policy makers to introduce PCA type of provisions in their national legislation. Japan, Korea and, more recently Mexico have adopted this prudential policy. (p. 31).

“Moral hazard” can lead to both “reactive” control fraud and wildly imprudent risks. Either can cause a dramatic increase in taxpayer losses. As I explained in the interview, leaving the managers in place that caused the failure also prevents us from obtaining honest evaluation of assets and the criminal referrals that are essential to resolve this crisis.

The PCA law states its sole, express purpose:

(1) Purpose

The purpose of this section is to resolve the problems of insured depository institutions at the least possible long-term loss to the Deposit Insurance Fund. (1831o (a) (1)).

The administration’s duty, under the rule of law, is to administer the law to achieve that purpose. Prompt receiverships “resolve the problems” of insolvent and failing banks “at the least possible long-term loss.”

Because the problem prompting passage of the PCA law was supervisory delay in closing insolvent banks, the law mandated “prompt corrective action.” This, of course, need not mean receivership for troubled banks that can promptly recapitalize themselves by raising equity. The mandate to the regulators is that either the bank or the regulator must promptly correct the capital inadequacy.

In 1991 the Congress moved to limit taxpayer exposure to losses at failed banks with the passage of FDICIA. The PCA provisions of FDICIA create a structured system of supervisory responses to declines in bank capital, culminating in the bank being forced into receivership within 90 days after its tangible equity capital dropped below two percent of total assets. (pp. 11-12)

Note that two percent tangible capital (the point below which a bank is “critically undercapitalized”) is a much higher number than it may appear, for many banks have large amounts of “goodwill” (an intangible) on their books as an asset. The authors emphasize the regulators “forc[ing]” the bank into receivership if it does not promptly restore its capital. They expressly tie these provisions to the PCA law’s intent to combat regulatory forbearance through “mandatory” supervisory intervention.

The key innovation of PCA is that it recommends a reduction of supervisory discretion to exercise forbearance by proposing a series of capital adequacy tranches with a set of mandatory supervisory actions for each of the undercapitalized tranches. Mandatory supervisory actions are intended to override the incentives supervisors would otherwise have to engage in forbearance. (p. 19)

The authors also explain that the PCA law was intended to protect the regulators “independence” from the common political pressures to keep failing banks open by “requir[ing] them to intervene.

The US supervisors did not need political or judicial approval prior to PCA to intervene at a troubled bank or to force an insolvent bank into resolution. The major change in supervisory practice resulting from PCA is that after PCA the supervisors were required to intervene as a bank’s supervisory capital ratios deteriorated. The independence of supervisory action provided to supervisors before PCA is critical to the effective operation of PCA. A system that requires the prior approval of political authorities creates the potential for delay and forbearance in supervisory intervention to the extent that the political authorities do not follow the supervisors´ recommendations. Moreover, if this condition is not met, the requirement of prior political approval reduces the effectiveness of PCA in discouraging banks from taking excessive risk. (p. 22)

If the bank cannot promptly raise capital on its own to return to health it must be placed in receivership. Nieto & Wall explain that such receiverships are the normal U.S. means of dealing with failed banks, lead to the removal of the bank officers that caused the failure, are not remotely akin to “nationalization”, and substantially reduce the cost to the taxpayers.

2.3 Should banks be closed with positive regulatory capital?
Both SEIR [the academic proposal of Drs. Kaufman and Benston that led to the adoption of the PCA law] and PCA call for timely resolution, which is a policy where banks with sufficiently low, but still positive, equity capital are forced into resolution. In the US context, resolution is understood to include: (1) the government assuming control of the failed bank, firing the senior managers and removing equity holders from any governance role, and (2) the government returning the bank’s assets to private control through some combination of sale to a healthy bank or banks, new equity issue, or liquidation. Timely resolution provides two important benefits. First, forcing a bank into resolution while it still has positive regulatory capital truncates if not eliminates the value of the deposit insurance put option, reducing the incentive of the bank’s shareholders to support excess risk taking. Second, timely resolution is critical to limiting deposit insurance losses. If insolvent banks are allowed to continue in operation then the potential losses from failure can be very large. (pp. 20-21)

These mandatory provisions of the PCA law are “critical” to its effectiveness. Note the scholars’ emphasis on the provisions that “require minimum and automatic supervisory action” and subject banks to “mandatory closure” before they become insolvent.

Three aspects of the philosophy underlying SEIR/PCA are critical to its effective operation. First, the primary goal of prudential supervisors should be to minimize deposit insurance losses, a goal which is also likely to result in a reduction in the expected social costs of systemic financial problems.

The PCA policy applied in the US goes beyond those three principles of Basle II in that it limits even further supervisory discretion as to when to forbear from intervening by specifying capital/asset ratios that require minimum and automatic supervisory action.

The third critical part of PCA follows from the first two parts, banks should be subject to mandatory closure at positive levels of regulatory capital ratio. This provides an incentive to banks’ managers to recapitalize the bank or look for a healthy merger partner and, ultimately, contribute to reduce the cost of deposit insurance. (p. 31)

The authors also explain provisions of the PCA law that make its requirements anathema to the bankers that caused the failures (i.e., firing managers and restricting management “bonuses and raises”) and the regulators whose laxity permitted widespread frauds.

No bank may make a capital distribution (dividend or stock repurchase) if after the payment the bank would fall in any of the three undercapitalized categories unless the bank has prior supervisory approval. All undercapitalized banks must submit a capital restoration plan and that plan must be approved by the bank’s supervisor. All undercapitalized banks also face growth restrictions. Significantly undercapitalized banks must restrict bonuses and raises to management. Critically undercapitalized banks must be placed in receivership within 90 days unless some other action would better minimize the long-run losses to the deposit insurance fund. Supervisors are also given a variety of discretionary actions they may take. For example, the supervisors may dismiss any director or senior officer at a significantly undercapitalized bank and may further require that their successor be approved by the supervisory agency. (p. 13)

PCA requires that the inspector general of the appropriate supervisory agency prepare a report whenever a bank failure results in material losses. The report addresses why the loss occurred and what should be done to prevent such losses in the future. A copy of the report is to be provided to the Comptroller General and to any member of Congress requesting the report.21 FDICIA also provides for public release of the reports upon request…. (p. 14)

Recent IG reports of this nature have led to the removal of two of the most senior Office of Thrift Supervision (OTS) leaders. Regulators that place fraudulent banks that they have failed to supervise properly into receivership risk their reputations and careers. One can well understand why senior regulators are so hostile to complying with the PCA law. (As Treasury Secretary, and as a leading colleague of then Secretary Paulson, I have concentrated on Mr. Geithner’s role, but each of the top federal banking regulators is complicit in failing to comply with the PCA law.)

Before the legal minutia, let’s not lose sight of the policy issue

To review the bidding to date: there is a consensus among economists and white-collar criminologists (and senior regulators that have successfully resolved prior crises such as William Seidman, Edwin Gray, and Paul Volcker) that failing banks should be placed promptly into receivership if they cannot recapitalize. So the fundamental question, even if the PCA law was never passed, is what can the nation do to end the disastrous Paulson/Geithner policy of covering up the largest banks’ losses and leaving the CEOs and senior officers that caused their failures, often through fraud, in power? How many of those of us that voted for Mr. Obama believed that they were voting for a continuation of Bush’s failed financial regulatory policies? Given the terrible cost to taxpayers during the early years of the S&L debacle of “forbearance” for failed S&Ls, the horrific failure of Japan’s embrace of the cover up of its bank losses, and the great success of the vigorous reregulation of the S&L industry why would we adopt the failed strategy instead of the proven success? The way we reregulated the S&L industry was not simply an economic success, it was vital to restoring at least some integrity. We insisted on honest accounting, used prompt receiverships, and rooted out the control frauds. This led to over 1000 felony convictions related to the debacle – the greatest criminal justice success in history against elite white-collar criminals.

On to the legal specifics

The commentator argues that the PCA law does not mandate receiverships, citing exceptions to the mandatory language. None of the exceptions apply in the circumstances we are discussing and neither the Bush nor the Obama administration purports to be following such exceptions. Instead, what is occurring is a coverup designed to evade the PCA that relies on abusive accounting to hide the banks’ losses that arose due to mortgage and accounting fraud. There is a certain awful symmetry to thinking that the cure for accounting fraud is greater accounting fraud countenanced, even arguably mandated, by the government. Governmental abuse of accounting makes it far harder to prosecute bank officials that enriched themselves through accounting fraud.

To begin, we need to review the context of the discussion during the interview. Here’s the relevant portion of interview that led to the discussion about the PCA law:

BILL MOYERS: Why are they firing the president of G.M. and not firing the head of all these banks that are involved?

WILLIAM K. BLACK: There are two reasons. One, they're much closer to the bankers. These are people from the banking industry. And they have a lot more sympathy. In fact, they're outright hostile to autoworkers, as you can see. They want to bash all of their contracts. But when they get to banking, they say, ‘contracts, sacred.' But the other element of your question is we don't want to change the bankers, because if we do, if we put honest people in, who didn't cause the problem, their first job would be to find the scope of the problem. And that would destroy the cover up.

BILL MOYERS: The cover up?

WILLIAM K. BLACK: Sure. The cover up.

BILL MOYERS: That's a serious charge.

WILLIAM K. BLACK: Of course.

BILL MOYERS: Who's covering up?

WILLIAM K. BLACK: Geithner is charging, is covering up. Just like Paulson did before him. Geithner is publicly saying that it's going to take $2 trillion — a trillion is a thousand billion — $2 trillion taxpayer dollars to deal with this problem. But they're allowing all the banks to report that they're not only solvent, but fully capitalized. Both statements can't be true. It can't be that they need $2 trillion, because they have masses losses, and that they're fine.
These are all people who have failed. Paulson failed, Geithner failed. They were all promoted because they failed, not because...

BILL MOYERS: What do you mean?

WILLIAM K. BLACK: Well, Geithner has, was one of our nation's top regulators, during the entire subprime scandal, that I just described. He took absolutely no effective action. He gave no warning. He did nothing in response to the FBI warning that there was an epidemic of fraud. All this pig in the poke stuff happened under him. So, in his phrase about legacy assets. Well he's a failed legacy regulator.

BILL MOYERS: But he denies that he was a regulator. Let me show you some of his testimony before Congress. Take a look at this:

| TIMOTHY GEITHNER:I've never been a regulator, for better or worse. And I think | you're right to say that we have to be very skeptical that regulation can solve | all of these problems. We have parts of our system that are overwhelmed by
| regulation.

Overwhelmed by regulation! It wasn't the absence of regulation that was the problem, it was despite the presence of regulation you've got huge risks that build up.

WILLIAM K. BLACK: Well, he may be right that he never regulated, but his job was to regulate. That was his mission statement.

BILL MOYERS: As?

WILLIAM K. BLACK: As president of the Federal Reserve Bank of New York, which is responsible for regulating most of the largest bank holding companies in America. And he's completely wrong that we had too much regulation in some of these areas. I mean, he gives no details, obviously. But that's just plain wrong.

BILL MOYERS: How is this happening? I mean why is it happening?

WILLIAM K. BLACK: Until you get the facts, it's harder to blow all this up. And, of course, the entire strategy is to keep people from getting the facts.

BILL MOYERS: What facts?

WILLIAM K. BLACK: The facts about how bad the condition of the banks is. So, as long as I keep the old CEO who caused the problems, is he going to go vigorously around finding the problems? Finding the frauds?

The context then is Geithner saying that it would cost the taxpayers $2 trillion to bail out the insolvent banks, yet virtually all the banks are reporting they are solvent and “well capitalized.” I noted that both statements could not be true. Geithner has every incentive to understate, not overstate, the cost of bailing out the banks and his $2 trillion estimate is materially lower than most analysts, so there is every reason to believe that the banks are not recognizing at least $2 trillion in losses. We know that the big banks hold a greatly disproportionate share of the worst assets. That means that many, probably most, of the big banks are massively insolvent (because $2 trillion far exceeds what they claim to hold as capital). We know that many large bank stocks (before the announcement of the huge TARP II subsidy for banks) were trading at prices that indicated market expectations that they had suffered massive capital losses and were essentially high risk options capitalizing the value of moral hazard. (Remember, the worst thing we can do is to maximize moral hazard. We are maximizing moral hazard by leaving open insolvent banks under the control of managers that caused the failure, often through fraud.)

If Geithner is right about the scale of the banks’ insolvency many of the large banks have to be hopelessly insolvent, but engaging in accounting fraud to hide that insolvency. That was the context for our PCA discussion. These large banks have not been able to recapitalize. They have been deeply insolvent since, at the latest, March 2007 when the secondary market in nonprime assets collapsed. (If we are fortunate it will never be restored because it was inherently dangerous. If it is it will cause future crises.)

The PCA law is characterized by mandates that the regulators ensure that a bank, well before, insolvency, is recapitalized – promptly. Failing that action, the PCA law requires the regulators to act to correct the problem by selling the bank or putting it in receivership. In the context we are discussing – the deep insolvency of many large banks that means that the law mandates receivership.

Here are the specifics:

Immediately after the “purpose” clause quoted above comes the mandate (“shall”) to act in accordance with that purpose to achieve prompt corrective action:

(2) Prompt corrective action required
Each appropriate Federal banking agency and the Corporation (acting in the Corporation’s capacity as the insurer of depository institutions under this chapter) shall carry out the purpose of this section by taking prompt corrective action to resolve the problems of insured depository institutions.

Well before insolvency, as soon as a bank becomes “undercapitalized”, it must (“shall”) file a plan to promptly restore its capital adequacy and that plan must meet strict standards.

(IV) Capital restoration plan required
(IV) In general
Any undercapitalized insured depository institution shall submit an acceptable capital restoration plan to the appropriate Federal banking agency within the time allowed by the agency under subparagraph (D).
(B) Contents of plan
The capital restoration plan shall—
(IV) specify—
(IV) the steps the insured depository institution will take to become adequately capitalized;
(II) the levels of capital to be attained during each year in which the plan will be in effect;
(III) how the institution will comply with the restrictions or requirements then in effect under this section; and
(IV) the types and levels of activities in which the institution will engage; and


Subsection (C) (1) of the law mandates (“shall not accept … unless”) tough standards on the agency in terms of capital restoration plans it is permitted to approve.

(C) Criteria for accepting plan
The appropriate Federal banking agency shall not accept a capital restoration plan unless the agency determines that—
(i) the plan—
(I) complies with subparagraph (B);
(II) is based on realistic assumptions, and is likely to succeed in restoring the institution’s capital; and
(III) would not appreciably increase the risk (including credit risk, interest-rate risk, and other types of risk) to which the institution is exposed; and
(ii) if the insured depository institution is undercapitalized, each company having control of the institution has—
(I) guaranteed that the institution will comply with the plan until the institution has been adequately capitalized on average during each of 4 consecutive calendar quarters; and
(II) provided appropriate assurances of performance

No deeply insolvent large U.S. bank could provide, “based on realistic assumptions” a plan to return itself to adequate capitalization. That means that the bank is prohibited to pay any bonus or give any raise to any senior executive official.

(4) Senior executive officers’ compensation restricted
(A) In general
The insured depository institution shall not do any of the following without the prior written approval of the appropriate Federal banking agency:
(i) Pay any bonus to any senior executive officer.
(ii) Provide compensation to any senior executive officer at a rate exceeding that officer’s average rate of compensation (excluding bonuses, stock options, and profit-sharing) during the 12 calendar months preceding the calendar month in which the institution became undercapitalized.
(B) Failing to submit plan
The appropriate Federal banking agency shall not grant any approval under subparagraph (A) with respect to an institution that has failed to submit an acceptable capital restoration plan.

Deeply insolvent banks, however, fall into a more severe category under the PCA law. They are “severely undercapitalized,” and the law mandates that the bank or the regulators promptly restore them to adequate capital or place them in conservatorship or receivership (and prohibit a wide range of business activities).

(h) Provisions applicable to critically undercapitalized institutions
(1) Activities restricted
Any critically undercapitalized insured depository institution shall comply with restrictions prescribed by the Corporation under subsection (i) of this section.
(2) Payments on subordinated debt prohibited
(A) In general
A critically undercapitalized insured depository institution shall not, beginning 60 days after becoming critically undercapitalized, make any payment of principal or interest on the institution’s subordinated debt.
(B) Exceptions
The Corporation may make exceptions to subparagraph (A) if—
(i) the appropriate Federal banking agency has taken action with respect to the insured depository institution under paragraph (3)(A)(ii); and
(ii) the Corporation determines that the exception would further the purpose of this section.

(3) Conservatorship, receivership, or other action required
(A) In general
The appropriate Federal banking agency shall, not later than 90 days after an insured depository institution becomes critically undercapitalized—
(i) appoint a receiver (or, with the concurrence of the Corporation, a conservator) for the institution; or
(ii) take such other action as the agency determines, with the concurrence of the Corporation, would better achieve the purpose of this section, after documenting why the action would better achieve that purpose.
(B) Periodic redeterminations required
Any determination by an appropriate Federal banking agency under subparagraph (A)(ii) to take any action with respect to an insured depository institution in lieu of appointing a conservator or receiver shall cease to be effective not later than the end of the 90-day period beginning on the date that the determination is made and a conservator or receiver shall be appointed for that institution under subparagraph (A)(i) unless the agency makes a new determination under subparagraph (A)(ii) at the end of the effective period of the prior determination.
(C) Appointment of receiver required if other action fails to restore capital
(i) In general Notwithstanding subparagraphs (A) and (B), the appropriate Federal banking agency shall appoint a receiver for the insured depository institution if the institution is critically undercapitalized on average during the calendar quarter beginning 270 days after the date on which the institution became critically undercapitalized.
(ii) Exception Notwithstanding clause (i), the appropriate Federal banking agency may continue to take such other action as the agency determines to be appropriate in lieu of such appointment if—
(I) the agency determines, with the concurrence of the Corporation, that (aa) the insured depository institution has positive net worth, (bb) the insured depository institution has been in substantial compliance with an approved capital restoration plan which requires consistent improvement in the institution’s capital since the date of the approval of the plan, (cc) the insured depository institution is profitable or has an upward trend in earnings the agency projects as sustainable, and (dd) the insured depository institution is reducing the ratio of nonperforming loans to total loans; and
(II) the head of the appropriate Federal banking agency and the Chairperson of the Board of Directors both certify that the institution is viable and not expected to fail.
(i) Restricting activities of critically undercapitalized institutions
To carry out the purpose of this section, the Corporation shall, by regulation or order—
(1) restrict the activities of any critically undercapitalized insured depository institution; and
(2) at a minimum, prohibit any such institution from doing any of the following without the Corporation’s prior written approval:
(A) Entering into any material transaction other than in the usual course of business, including any investment, expansion, acquisition, sale of assets, or other similar action with respect to which the depository institution is required to provide notice to the appropriate Federal banking agency.
(B) Extending credit for any highly leveraged transaction.
(C) Amending the institution’s charter or bylaws, except to the extent necessary to carry out any other requirement of any law, regulation, or order.
(D) Making any material change in accounting methods.
(E) Engaging in any covered transaction (as defined in section 371c (b) of this title).
(F) Paying excessive compensation or bonuses.
(G) Paying interest on new or renewed liabilities at a rate that would increase the institution’s weighted average cost of funds to a level significantly exceeding the prevailing rates of interest on insured deposits in the institution’s normal market areas.

Parsing through this legalese yields the following:
• The regulators must place an insolvent bank into receivership or conservatorship
• Normally, this should be done no later than 90 days after becoming “critically undercapitalized”, i.e., well before the bank became insolvent.
• The 90 day limit can only be pushed back if the FDIC and the primary regulator agree in writing that doing so would best serve the purposes of the Act – which is to minimize the cost of resolving the insolvent bank – and “document” that the delay would reduce that cost. To our knowledge, the FDIC and the OCC (the primary regulator of most of the largest banks) have not made such joint determinations for any of the large, deeply insolvent banks. Given the fact that delaying receiverships of deeply insolvent banks typically increases the cost of resolving the failure, it is unlikely that the regulators could provide honest documentation to support a failure to act.
• Even if we were to assume, counterfactually, that they provided such documentation, they would have to place the big insolvent banks in receivership or conservatorship. After being insolvent for 270 days (and many of the big banks will have been insolvent for roughly two years), the regulators can no longer extend the clock. They cannot extend the clock for an insolvent bank beyond 270 days. A “critically undercapitalized” bank’s clock extension can only be extended if it meets each of four criteria:

(I) the agency determines, with the concurrence of the Corporation, that (aa) the insured depository institution has positive net worth, (bb) the insured depository institution has been in substantial compliance with an approved capital restoration plan which requires consistent improvement in the institution’s capital since the date of the approval of the plan, (cc) the insured depository institution is profitable or has an upward trend in earnings the agency projects as sustainable, and (dd) the insured depository institution is reducing the ratio of nonperforming loans to total loans; and


A deeply insolvent bank (recall, that is what we were discussing) has negative net worth. It will also typically fail the other minimum requirements. The bank must meet all four of the requirements. To sum it all up, the interview explained why Geithner’s statements about a $2 trillion bailout cost means that many large banks have to be deeply insolvent. The PCA law mandates that deeply insolvent banks be placed in receivership or conservatorship. The exceptions to PCA’s mandatory closure directives do not apply to insolvent banks. Indeed, it does not appear that the regulators have complied with the provision that delays the requirement to appoint a receiver. The regulators could not, in good faith, invoke that delay provision for a deeply insolvent bank.

The PCA’s Achilles’ heel has always been accounting fraud


Nieto & Wall note the vulnerability of the PCA law to accounting fraud by banks and regulators.

3.4 Accurate and timely financial information
Arguably, the biggest weakness of PCA is its reliance on regulatory capital measures of a bank’s capital, measures which may significantly deviate from the bank’s economic capital. Banks that are threatened by PCA mandated supervisory actions have a strong incentive to report inflated estimates of the value of their portfolios. The extent to which banks are allowed to overestimate their capital under PCA depends in part on the accounting rules and in part on the enforcement of the rules. Thus, if bank prudential supervisors want to preserve their discretion despite the requirements for mandatory actions in PCA, supervisors need only accept a troubled bank’s inflated estimates of its regulatory capital adequacy ratio. In the US, PCA is vulnerable to problems both in the accounting principles and their enforcement. (p. 27)

To the extent that outside auditors are unable or unwilling to force banks to recognize losses in their asset portfolios, PCA depends on the effectiveness of bank examinations by the supervisory agencies. Yet relying on the supervisors to enforce honest accounting creates a contradiction in PCA. PCA is designed to limit supervisory discretion in enforcing capital adequacy, yet PCA will only be fully effective if the bank supervisors use their discretion in conducting on-site examinations to force timely recognition of declines in portfolio value. The vulnerability in enforcement is highlighted by Eisenbeis and Wall’s (2002) finding that deposit insurance losses at failed banks in the US did not decrease as a proportion of the failed bank’s assets after the adoption of PCA as should have happened if the supervisors were following timely resolution. (p. 28)

These are the points I was making in the interview. We need honest accounting and honest asset values. We will not get them if we allow the failed bankers and regulators to remain in charge. They have strong incentives to inflate asset values in order to escape the consequences of PCA. The people of America, however, have a compelling interest in demanding that the government comply with that law and resolve cases at the least cost to the taxpayers.

Secretary Geithner is not simply writing the PCA law effectively out of existence; he is creating an unprecedented (and unauthorized) rival system in place that will maximize fraudulent bank CEOs’ perverse incentives. The transcript of his press conference rolling out the TARP II bill contains two separate references to his creation of “capital insurance” for favored banks.

PRESS BRIEFING
BY
SECRETARY OF THE TREASURY TIMOTHY GEITHNER

U.S. Department of Treasury
Washington, D.C.


8:56 A.M. EDT
But the critical part of that program is to make it clear that they will be able to raise capital from the government if they can't raise in the markets so that they can get through a deeper recession. That will help reduce the odds of a deeper recession, help make sure, again, they can provide a level of lending that will be necessary to support recovery.
****
And a program of insurance -- you could call it capital insurance for the banking system so that banks have the cushion of capital necessary to lend and expand even if the economy goes through a broader -- a deeper recession.
This program is dangerous because it optimizes moral hazard, but it also violates the express purpose of the PCA law to resolve bank problems at the lowest cost to the FDIC and the taxpayers. Providing taxpayer “capital insurance” subsidies to insolvent or troubled banks increases the taxpayers’ costs. TARP II is designed to provide a federal subsidy to insolvent and failing banks.

Additional reading on this subject:

"How to Clean a Dirty Bank", by Andrew Rosenfield, The New York Times, April 5, 2009.