Monday, May 25, 2009

Brooksley Born

Tomorrow's Washington Post contains a big profile of former CFTC chair Brooksley Born. The Post dubs her "the Cassandra of the credit crisis" because of her infamous showdown with Alan Greenspan and Bob Rubin over the OTC derivatives markets in 1998. So was she, in fact, the Cassandra of the credit crisis? Yes and no. My answer is partly "no" for the same reason I thought back in 1998 that the reaction of the industry and (especially) the other regulators was appalling: there was, and still is, a widespread misunderstanding of Born's actions. The conventional wisdom is that Born proposed regulations for OTC derivatives, and was quickly smacked down by the market-worshipping Greenspan and Rubin. That's only half right. It's true that Greenspan and Rubin quickly and publicly smacked Born down, but she never proposed any regulations on OTC derivatives. Born issued a "concept release," which merely asked questions about the OTC derivatives markets. The concept release didn't propose even one regulation, and actually went to great lengths to emphasize that it wasn't proposing any regulations. Despite this, Robert Kuttner recently wrote that "Born distributed for comment a proposed regulation that would have required greater supervision of these so called over-the-counter derivatives." Alan Blinder even went so far as to suggest that he disagreed with Born's non-existent regulatory proposal, writing in his NYT column that "while [Born's] specific plan may not have been ideal, does anyone doubt that the financial turmoil would have been less severe if derivatives trading had acquired a zookeeper a decade ago?" The concept release essentially asked the financial industry for its analysis of the costs/benefits of a broad range of regulatory approaches to OTC derivatives. For some reason, the entire financial industry flipped out. Just look at how much the concept release bent over backwards to emphasize that it was purely informational, and should not be interpreted as a regulatory proposal:

The Commission urges commenters to analyze the benefits and burdens of any potential regulatory modifications in light of current market realities. The Commission has no preconceived result in mind. The Commission is open both to evidence in support of easing current restrictions and evidence indicating a need for additional safeguards. The Commission also welcomes comment on the extent to which certain matters are being or can be adequately addressed through self-regulation, either alone or in conjunction with some level of government oversight, or through the regulatory efforts of other government agencies.
Sound the alarms! Seriously though, we had clients calling the firm all week long flipping out about the concept release—which they usually referred to as "the new OTC derivatives regulations." They were allegedly concerned about the legal status of existing OTC derivatives, even though the concept release clearly stated that any new regulations would be "applied prospectively only," and that:
This release in no way alters the current status of any instrument or transaction under the Commodity Exchange Act. All currently applicable exemptions, interpretations, and policy statements issued by the Commission regarding OTC derivatives products remain in effect, and market participants may continue to rely upon them.
The way that Greenspan, Rubin, Arthur Levitt, and Larry Summers treated Born was particularly appalling. As regulators, they should have immediately realized how benign and non-threatening Born's concept release was. And even if they had substantive disagreements with her, they should never have aired those disagreements in public. The whole thing reeked of sexism. The reason Born was partly the "Cassandra of the credit crisis" is that she warned about exactly the situation the Fed and Treasury found themselves in with AIG. Born's major concern was that regulators had no information about the enormous OTC derivatives markets, and so it was possible that regulators wouldn't be able to see a financial crisis coming. (As chairman of the Fed, which is charged with protecting the "safety and soundness" of the system, Greenspan should have been thanking Born for doing his job for him.) The Fed was caught completely off-guard by AIG's collapse, and, consequently, they literally had less than 24 hours to decide whether to bail AIG out. So it's indisputable that Born was right. I don't think it's completely accurate to say, "if we had listened to Born in 1998, we wouldn't be in this mess," because—and I think Born would agree about this—she never actually proposed any regulations that would have prevented any of the actions that contributed to the crisis. Her whole point was that regulators didn't know anything about the OTC derivatives markets. If Born had been given full access to information on the OTC derivatives markets, there's no guarantee that she, or any other regulator who had access to the information, would have made the right regulatory decisions. On the other hand, she clearly demonstrated an ability to think about systemic risks and possible preventative steps, so it's not totally crazy to think that she would have seen the crisis coming and taken appropriate action. Whatever one thinks about Born's actions in 1998, her refusal to say "I told you so," or to even comment on the record about the 1998 episode, demonstrates a grace rarely seen in modern politics.


Anonymous said...

You're a lawyer. Presumably you understand that the issue Born was raising with that Concept Release was the CFTC's obligation under the law to reconsider its 1993 exemption of swaps contracts from regulation given the huge growth in the industry. The financial industry was objecting to the fact under the pre CFMA Commodities Exchange Act that the CFTC had clear legal authority to regulate swaps as it saw fit.

For more info on this you should read Born's 1998 Congressional testimony:
and the recent Stanford profile where Born comments on the debacle:

The saddest thing about this story is that Born was a regulator who was serious about doing her job well -- and the Concept Release is clear evidence of this. What regulations she would have proposed are unknowable -- because she was prevented from doing the preliminary study that would have allowed her to design suitable regulations!

Economics of Contempt said...

You're right, and I meant to address that in my post, but I somehow forgot.

It's true that the issue the Concept Release raised was whether the CFTC should reconsider its swaps exemption, but then, any CFTC concept release dealing with OTC derivatives would have necessarily raised that issue. If the CFTC wanted to do anything with OTC derivatives, it would have been required to reconsider the swaps exemption. So for that reason, I didn't think the Concept Release's mention of possibly reconsidering the swaps exemption was particularly meaningful.

I'm not sure if this is what you were saying, but I don't actually think the financial industry was seriously disputing the CFTC's legal authority to regulate swaps. Rubin claimed that was his objection, and so did some people in the industry, but in reality they all knew that it wasn't a serious objection. (All the NY law firms, including mine, told them that the CFTC was well-within its jurisdiction.) It's kind of pathetic that Rubin claimed to be relying on a memo by Treasury lawyers that apparently never existed.

I completely agree that Born was a rare serious regulator who just wanted to do the right thing. I was tasked with writing a Client Alert on Born's concept release, so I actually read the whole thing when it was released. And I remember being struck by the sincerity of the concept release. It was clear that Born really was interested in listening to the financial industry's analysis, and figuring out what regulations, if any, would improve OTC derivatives and the broader markets the most.

And for making a sincere effort to do the right thing, she received a humiliating public condemnation from Greenspan, Rubin, and Levitt. It's almost hard to believe that actually happened in real life. But it did.

shtove said...

Thanks for the insight.

The linked article has this:

"Greenspan had an unusual take on market fraud, Born recounted: "He explained there wasn't a need for a law against fraud because if a floor broker was committing fraud, the customer would figure it out and stop doing business with him."

"This made no sense to her. She'd spent much of the 1980s defending clients caught up in a vast conspiracy by two wealthy brothers, Nelson and William Hunt, who duped investors while trying to corner the world silver market.

"After all," Born said, looking back, "I'm a lawyer, and I think the existence of fraud prohibitions is critically important."

"But Greenspan was insistent, she said.

"Finally, he said, "Well, Brooksley, I guess you and I will never agree about fraud." (Greenspan did not respond to requests for comment. Daniel Waldman and Michael Greenberger, both top aides of Born's, were briefed on the lunch at the time and independently confirmed Born's recollection of the conversation.)"

You came down hard on Black a few weeks ago, with his comments about fraud and the scam by an elite. And I missed your reaction to the Cuomo letter.

Any views on this?

Economics of Contempt said...


I came down hard on Black because he was alleging that the government (specifically, the FDIC) was committing fraud in a specific instance, which was just plain untrue. Greenspan was talking about the propensity of brokers (and other market participants) to commit fraud in general. Obviously, Greenspan's extreme-libertarian views were ridiculous, but that doesn't change the fact that Black's statements were obviously untrue.

Regarding the Cuomo letter, I think Lewis' deposition illustrates how difficult it is to rely on the concept of fiduciary duty in financial crises. Lewis knew that pulling out of the Merrill deal would have caused another epic market panic, but going through with the deal was arguably not in his shareholders' best interests. Sometimes you have to set your shareholders' interests aside and do what's best for the financial system. The problem is, there's no case law on this point. That makes some of Lewis' actions appear ethically dubious (e.g., not disclosing information to his shareholders at the behest of Treasury and the Fed), even though every serious person would agree that the right thing for Lewis to do was to put the interests of the global financial system first, even if it meant witholding some information from your shareholders for a few days.

Personally, I don't think directors and CEOs have nearly enough faith in the Business Judgment Rule. They view fiduciary duty as more constricting than it really is. I think the Delaware Chancery courts would easily uphold the BJR in Lewis' situation. Lewis knew that the Merrill deal was going to cost BofA's shareholders a lot of money, but they would have lost a lot more in the financial collapse that pulling out of the Merrill deal would have caused. The BJR was made to protect that kind of decision. (And this assumes the courts would have upheld BofA's decision to invoke the MAC clause in the first place, which is far from certain.)

Peter Blogdanovich said...

I think it's "reeked of sexism". Glad to find you though, via link from Megan McArdle guest hosting Instapundit.

Anonymous said...

The reason why the language is so non-threatening and watered down is so as to not cause markets to move irrationally before a concrete plan has been determined.

Its the way things are done. Larry Summers objected to the concept release with the statement that it may cause a financial collapse (because of fear of regulation changes). No doubt it was written in a way so as to minimize that possibility. Even then it was not acceptable and freaked people out and that says something about Larry Summers.

Anonymous said...

Ayn Rand book was a book for sharks and aparrently our country has folowed her ghastly principles.

Anonymous said...

From everything I have read it would seem we have more to come and that of which we are presently wrestling with could be just the tip of the iceberg.
If finacial institutions, Municipalities, States and Nations are so deep in derivatives "the financial weapons of mass destruction" (Warren Buffet) I dread to ponder what is next? There will be no financial sanctuaries, no place to hide.

Anonymous said...

I am in agreement with the gist of the post and about Born's effort while at CFTC. Considering the fact the Summers, Rubin and Greenspan all opposed her effort in regard to the OTC derivatives which they reacted as typical lobbyist to a proposal and made effort to defeat it by exercising raw naked power to leave the market alone because it is capable of regulating itself. Lastly the CFMA legislation went beyond the PWG's recommendations in regard to OTC derivatives.

We all know what happened and many of the conservatives have admitted that they were wrong about the company's policing itself by exercising strong culture of self preservation and responsibility because they were too busy trying to pump share prices and the bottom line on a quarterly basis when it is should be over the long horizon.

David Larsson said...

Thanks for this post and the follow up: very helpful to those of us playing along at home. My son gets the Stanford alumni magazine, so I read the article noted above last year and was utterly floored by this story. When I think about how Messrs. Greenspan, Rubin, Summers, and Levitt joined together across the ideological abyss to squash this intelligent, thoughtful person like a grape (at what turns out, in hindsight, to be an important moment in our nation's history), I think of that poster, Meetings: None of Us is as Dumb as All of Us.

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