Progress, Yet No Progress: The Two Lines of Defense Against Too-Big-To-Fail

By Mike Konczal |

It’s been a week of whiplash when it comes to the issue of Too Big To Fail (TBTF). First the GAO released a report saying that it is difficult to find any bailout subsidy for the largest banks, implying that there’s been progress on ending TBTF. Then, late Tuesday, the FDIC and Federal Reserve released a small bombshell saying that the living wills submitted by the 11 largest banks “are not credible and do not facilitate an orderly resolution under the U.S. Bankruptcy Code.” These living wills were designed to make sure that banks could fail without causing chaos in the economy, and this report implies TBTF is still with us.

One of them has to be wrong, right? In order to understand this contradiction it’s important to map out where the actual disagreement is. Doing so will also help explain how the battle over TBTF will play out in the near future.

So look – a large, systemically risky financial firm is collapsing! Oh noes! What has happened and will happen?

There are two levels of defense when it comes to ending this firm. The first is through a bankruptcy court, and the second is through the FDIC taking over the firm, much like what it does to a failing regular bank. The next several paragraphs give some technical details (skip ahead if your eyes are already glazing over).


As you can see in the graphic above, before the failure, regulators will have failed to use “prompt corrective action” to guide the firm back to solvency. These are efforts regulators use to push a troubled firm to fix itself before a collapse. For example, if bank capital falls below a certain point, the bank can’t pay out bonuses or make capital purchases in order to attempt to make it more secure.

Once a failure happens, there are two lines of defense. The default course of action is putting the firm in bankruptcy, similar to what happened with Lehman Brothers. Why might this be a problem for a major financial firm? The Bankruptcy Code is slow and deliberate, when financial firms often need to be resolved fast. It isn’t designed to preserve ongoing firm business, which is a problem when those businesses are essential to the economy as a whole. It can’t prevent runs by favoring short-term creditors. There is no guaranteed funding available to keep operations running and to help with the relaunch. And there are large problems handling the failure of a firm operating in many different countries.

With these concerns in mind, Dodd-Frank sets up a second line of defense. Regulators can direct the FDIC to take over the failed firm and do an emergency resolution (OLA), like they do with commercial banks. In order to active the OLA, there’s a comically complicated procedure in which the Treasury Secretary, the Federal Reserve Board, and the FDIC all have to turn their metaphoric keys.

OLA, particularly with its new “single point of entry” (SPOE) framework, solves many of the problems mentioned above. OLA comes with a line of emergency funding from Treasury to facilitate resolution if private capital isn’t available, as it likely won’t be in a crisis. OLA would also be able to prioritize speed, as well as protect derivatives and short-term credit, stopping potential runs. SPOE, by focusing its energy at the bank’s holding company level, also helps to deal with coordinating the failure internationally. However, OLA would be executed by administrators instead of judges, and it could put taxpayer money at risk. (More on all of this here.)


The Contradiction

So, what is the battle over? How are we making progress yet also making no progress?

All the innovation in the past 18 months in combating TBTF has taken place at the second line of defense. When Sheila Bair, for instance, says there’s been significant progress in ending taxpayer bailouts, or the Bipartisan Policy Institute releases a statement saying adopting an SPOE approach has the potential to eliminate TBTF, they are referencing the progress that is taking place at this second line of defense.

But there’s no progress at the first line of defense. The living wills that regulators found insufficient are, by statute, part of the first line of defense. Dodd-Frank says that if the living will “would not facilitate an orderly resolution of the company under title 11, [Bankruptcy]” then the FDIC and the Fed “may jointly impose more stringent capital, leverage, or liquidity requirements, or restrictions on the growth, activities, or operations of the company.” They purposefully didn’t drop the hammer in their announcement, instead telling the banks to go back to the drawing board rather than enforcing stricter requirements. But they can get as aggressive as they want here. 

So the FDIC and the Fed are drawing a line in the sand here – the first line of defense needs to work. The regulators call out the banks for their “failure to make, or even to identify, the kinds of changes in firm structure and practices that would be necessary to enhance the prospects for orderly resolution.” So making this line of defense work will not be a trivial endeavor.

If the first line of defense doesn’t work, why don’t we just rely on the second line? Thomas Hoenig, Vice Chairman of the FDIC and an aggressive opponent of TBTF, released a statement accompanying the regulators’ release, specifically saying that they would not find this argument convincing. It’s worth noting how clear he is about this:

“Some parties nurture the view that bankruptcy for the largest firms is impractical because current bankruptcy laws won’t work given the issues just noted. This view contends that rather than require that these most complicated firms make themselves bankruptcy compliant, the government should rely on other means to resolve systemically important firms that fail. This view serves us poorly by delaying changes needed to assert market discipline and reduce systemic risk, and it undermines bankruptcy as a viable option for resolving these firms. These alternative approaches only perpetuate ‘too big to fail.’”

That’s a strong statement that they are going to hold the first line.

Note here that the GAO results could still stand. The market’s lack of a subsidy could reflect the second line of defense. Or it could reflect that even if they both fail, Congress, which is gridlocked, would not pass a bailout. It’s not clear what would happen if a major bank failed, but the market is right not to assume the banks are permanently safe.


It will be interesting to see how this shakes out. Those who think reform didn’t go far enough like the idea of fighting on the first line, because there is significant leeway to push for more systemic changes to Wall Street. To get a sense of the stakes, Sheila Bair told Tom Braithwaite back in 2010 that she would break up an institution that couldn’t produce a credible living will.

This will also animate the Right, but in a different way. From the get-go, their preferred approach to TBTF was just to create a special new bankruptcy code Chapter, removing any type of independent regulatory administrative state like the FDIC from the issue. It’s not clear if they’ll support regulators pushing aggressively to restructure firms so they can go through the bankruptcy code as it is written right now.

The administration appears to be silent for now. It’s also not clear whether it will see this as a second bite to get higher capital requirements, or if they is happy enough with the second line of denfense as it is. If the second is true, that would be unfortunate. The banks remain undercapitalized and too complex for bankruptcy, and regulators have a responsiblity to make sure each line of defense is capable of stopping the panic of 2008.

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Mike Konczal is a Fellow with the Roosevelt Institute, where he works on financial reform, unemployment, inequality, and a progressive vision of the economy. His blog, Rortybomb, was named one of the 25 Best Financial Blogs by Time magazine. Follow him on Twitter @rortybomb.