Analysis and Commentary by Roosevelt Fellow Mike Konczal

In light of the increasingly good news about the launch of the Affordable Care Act, I wanted to write about what experts think should be next on the health care front. Particularly with the implosion of the right-wing argument that there would be something like a death spiral, I wanted to flesh out what the left’s critique would be at this point. Several people pointed me in the direction of the original bill that passed the House, the one that was abandoned after Scott Brown’s upset victory in early 2010 in favor of passing the Senate bill, as a way forward.

Here’s the piece. Hope you check it out.

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Many people are pointing to the police violence unfolding in Ferguson, Missouri as part of a “libertarian moment.” Dave Weigel of Slate writes “Liberals are up in arms about police militarization. Libertarians are saying: What took you so long?” Tim Carney of the Washington Examiner notes that the events in Ferguson bolster the claim that we are experiencing a libertarian moment because “libertarianism’s warnings today ring truer than ever.”

It will be a great thing if the horror of what is going on builds a broader coalition for putting the excess of the carceral state in check. But I also think that Ferguson presents a problem for libertarian theory about this situation in particular and the state in general. Their argument is a public choice-like story in which the federal government is the main villain. But this will only tell a partial story, and probably not even the most important one. And, as the deeper story of the town is told, the disturbing economics of the city look similar to what the right thinks is the ideal state. Let’s take these in turn.

Bottom-Up Militarization

People on the right are telling a story where the problems of the police are primarily driven by the federal government. As Rand Paul said: “Not surprisingly, big government has been at the heart of the problem.” Big government here is strictly a federal phenomenon though, one where “Washington has incentivized the militarization of local police precincts.” Paul Ryan’s comment on Ferguson is telling: “But in all of these things, local control, local government, local authorities who have the jurisdiction, who have the expertise, who are actually there are the people who should be in the lead.” (h/t Digby) The culprits in these criticisms are usually programs, accelerated after the start of the War on Terror, that give military surplus to local police.

But rather than just a top-down phenomenon of centralized, federal bureaucrats, the police violence we see is just as much a bottom-up, locally-driven affair. “Militarized” police equipment didn’t shoot Michael Brown, or kill Eric Garner in a chokehold. And aggressive police reactions to protests haven’t required extensive military equipment over the past 40 years.

As Tamara Nopper and Mariame Kaba note in the pages of Jacobin, the idea that there is suddenly a “militarized” police force here betrays that the militarization began in the 1960s in response to the urban crisis. And even though militarized dollars have flowed to all parts of the country, it is in black urban areas where the equipment has been deployed in an aggressive manner by local authorities. And militarization isn’t just about equipment, but about the broader framework of mass incarceration and zero-tolerance, order-maintenance policing.

You can see the consequences of this through simple polls. As Dorian Warren notes, “Because for black Americans, what Sen. Paul disparages as ‘big government’ is actually the government we trust most…blacks are the least likely [racial and economic group] to trust their local governments.” Though these military equipment programs, which give away all kinds of odd things, are a serious problem and should be curtailed, they should be placed within the context of a criminal justice system that is punitive towards minorities and is among the most expansive in the world.

This has political consequences. Democrats have been weak on criminal justice issues. But for several years Blue Dog Democrats, lead by Jim Webb, have pushed for reform. But Webb’s big bill to bring together non-binding suggestions for reform, the National Criminal Justice Commission Act, wasn’t blocked by centrist Democrats. It was blocked by libertarians and conservatives. Most Republicans, including Tom Coburn and Rand Paul, voted against it on the basis of “states’ rights.” Commentators on the right found the arguments dubious and scandalous, but this will become more and more of an issue if the problem is just one of the federal government.

The Right-Wing Dream City

If you are a libertarian, you probably have two core principles when it comes to how the government carries out its duties. The first is that people should pay taxes in direct proportion to how much they benefit from government services. The government is like another business, and to the extent it can provide public-like goods the market will not, people should pay only as much as they benefit from them. Taxes should essentially be the individual’s price of “purchasing” a government service.

You also probably want as much of what the government does to be privatized as possible. Government services provided by private firms use the profit motive to seek out efficiencies and innovation to provide the best service possible. But even if it doesn’t, the right’s public choice theory tells us that private agents will do a better job tending to services because of the essential impulse of the public state to corruption.

So what do we see in Ferguson? It’s becoming clear that there’s a deep connection between an out-of-control criminal justice system and debt peonage. As Vox reports, “court fees and fines are the second largest source of funds for the city; $2.6 million was collected in 2013 alone.”

These fines that come from small infractions will grow rapidly when people can’t afford to pay them immediately, much less hire lawyers to handle the complicated procedures. So you have a large population with warrants and debts living in a city that functions as a modern debtors’ prison. This leads to people functioning as second-class citizens in their own communities. And as Jelani Cobb notes in the New Yorker, this debtor status keeps many citizens of Ferguson off the streets, not protesting or acting as political agents.

How did we get here? As Sarah Stillman noted in a blockbuster New Yorker story, this is referred to as an “offender-funded” justice system, one that aims to “to shift the financial burden of probation directly onto probationers.” How? “Often, this means charging petty offenders—such as those with traffic debts—for a government service that was once provided for free.”

As Stillman notes, this process has grown alongside state-level efforts to privatize probation and other incarceration alternatives by replacing them with for-profit companies. (Missouri is one of many states that does this.) There are significant worries that this privatized probation industry has severe corruption and abuse problems. Crucially, their incentive is less rehabilitation or judging actual threats to the public, and more to keep people in a permanent debt peonage. The state, in turn, gets funded without having to raise any general taxes.

Having people who “use” the criminal justice system pay for it strikes me as pretty close to the libertarian vision of how taxes should function. And having state power executed by private, profit-seeking entities is the logical outcome of how they think services should function. I’m sure that a libertarian would say that they are against this kind of outcome, though it’s not clear to me how taxation and services along these lines couldn’t do anything other than lead to punitive outcomes. (Perhaps people versed in public choice theory should apply it to what happens when you put public choice theories into practice.)

This is yet another way in which the growth of market society is wedded to the growth of a carceral state. But thinking through this issue can lead you to interesting places. If you think that this offender-funded system is unfair because the poor don’t have the ability to pay for it, you are basically 90% of the way to an argument for progressive taxation. And if you think private parties using coercive power invites abuse, abuses that should be checked by basic mechanisms of democratic accountability, you are also pretty close to an argument for the modern, professionalized, administrative state. Welcome to the team.

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Before it was anything else, the neoconservative movement was a theory of the urban crisis. As a reaction to the urban riots of the 1960s, it put an ideological and social-scientific veneer on a doctrine that called for overwhelming force against minor infractions — a doctrine that is still with us today, as people are killed for walking down the street in Ferguson and allegedly selling single cigarettes in New York. But neoconservatives also sought, rather successfully, to position liberalism itself as the cause of the urban crisis, solvable only through the reassertion of order through the market and the police.

(Image by Jamelle Bouie.)

Edward Banfield was one of the first neoconservative thinkers who started writing in the 1960s and ’70s and was a prominent figure in the movement, though he isn’t remembered as well as his close friends Milton Friedman or Leo Strauss, or his star student James Q. Wilson. Banfield contributed to the beginning of neoconservative urban crisis thinking, the Summer 1969 “Focus on New York” issue of The Public Interest, which began to formalize neoconservatives’ framing of the urban crisis as the result of not just the Great Society in particular but the liberal project as a whole.

In his major book The Unheavenly City (pdf here), Banfield set the tone for much of what would come in the movement. Commentary described the book as “a political scientist’s version of Milton Friedman’s Capitalism and Freedom” at the time. It sold 100,000 copies, and gathered both extensive news coverage and academic interest.

The Unheavenly City’s most infamous chapter is “Rioting Mainly for Fun and Profit.” Fresh off televised riots in Watts, Detroit, and Newark, Banfield argued that it was “naive to think that efforts to end racial injustice and to eliminate poverty, slums, and unemployment will have an appreciable effect upon the amount of rioting that will be done in the next decade or two.” Absolute living standards had been rising rapidly. For Banfield, this was entirely the result of market and social forces rather than the state, and the poor, with their short time-horizons and desire for immediate gratification, would largely be left behind and always be prone to rioting. Today’s classic, if often implicit, repudiations of poor people’s humanity were clearly expressed here.

Rather than political protests or rebellions, Banfield argued that riots were largely opportunistic displays of violence and theft. He broke down four types of riots: (1) rampages, where young men are simply looking for trouble and act out violently; (2) pillaging, where theft is the main focus, and the riot serves as a solution for a type of collective action problem for thieves; (3) righteous indignation, where people act against an insult against their community; and (4) demonstrations, which are neither spontaneous nor violent but instead designed for a specific political purpose.

Banfield argued that the poor mainly engaged in the first two types of riots. Righteous indignation riots were a feature of the working class, because the “lower-class individual is too alienated to be capable of much indignation.” Demonstrations were largely the focus of the middle and upper classes, as they ran organizations and were able to make coherent claims on the state.

At this point Banfield’s text reads like a list of cranky, armchair reactionary observations about riots. It received considerable blowback at the time. What was innovative, for a neoconservative agenda, was where he put the blame. Young men will be young men, the text seems to suggest. The problem is what enables them to riot.

The initial perpetrators included the media, whose neutral (or even sensationalistic) coverage “recruited rampagers, pillagers, and others to the scene.” They also made the rioting more dangerous by expanding the knowledge base of the rioters. The larger academic community was also at fault since, to Banfield’s ear, “explaining the riots tended to justify them.” Upper-class demonstrators were also responsible for raising expectations of what the poor could demand from the state and from society writ large.

But according to Banfield, the core problem was modern liberalism, and in an interesting way. The big issue was the “professionalism” and bureaucratization of city services. The rioters had nothing to fear from the police, who were blocked from exercising their own judgement on the ground by an administrative layer of police administrators. In the logic that would form the basis of Broken Windows policing, the poor learning “through experience that an infraction can be done leads, by an illogic characteristic of childish thought, to the conclusion that it may be done.” And potential rioters were learning this because “the patrolman’s discretion in the use of force declined rapidly” with the growth of the modern liberal state.

Returning, therefore, to a “pre-professional” model of policing is one of the stated goals of Broken Windows. As James Q. Wilson explained in the 1982 Atlantic Monthly article that popularized the topic, “the police in this earlier period assisted in that reassertion of authority by acting, sometimes violently, on behalf of the community.”

Before the modern liberal state of accountability and due process, the police force wasn’t judged by “its compliance with appropriate procedures” but instead by its success in maintaining order. Since the 1960s, “the shift of police from order maintenance to law enforcement has brought them increasingly under the influence of legal restrictions… The order maintenance functions of the police are now governed by rules developed to control police relations with suspected criminals,” writes Wilson. According to this theory, order is preserved by the police out there, acting in the moment against minor infractions with a strong display of force, not by liberal notions of accountability and fairness.

This neoconservative vision that started in the 1960s and continues into today doesn’t just inform local arguments about policing, but rather the entire policy debate. So much of the debate over the (neo)conservative movement emphasizes suburban warriors, or evangelicals, or the Sun Belt, or the South. But as Alice O’Connor demonstrates in her paper “The Privatized City: The Manhattan Institute, the Urban Crisis, and the Conservative Counterrevolution in New York,” there was a distinct urban character to this thinking as well. Rather than a crisis of race relations, police violence, poverty, or anything else, rioting and the broader urban crisis were framed by the neoconservative movement as a crisis of values and culture precipitated by liberalism.

The broader urban crisis, in this story, hinges not on structural issues but on personal morality and behavior that can be restored by the extension of the market. Crime and urban “disorder” fit right next to social engineering and failing state institutions as a corrupt legacy of the liberal project and its bureaucratic, administrative governing state. Only the conservative agenda, as O’Connor puts it, of “zero-tolerance law enforcement, school ‘choice,’ hard-nosed implementation of welfare reform, and the large-scale privatization of municipal and social services” is capable of dismantling it. Only through the market, individual responsibility, and freedom from government “interference” can order result from the restoration of “political and cultural authority to a resolutely anti-liberal elite.” This legacy harnesses police excess to the triumph of the market. And as we see, it will be hard to dislodge one while the other reigns supreme.

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I’m excited to tell you about The Score, a new monthly economics column page in The Nation magazine, that I’ll be writing with Bryce Covert. Each month will have a lead essay based on a chart, along with sidebars of information related to the economy as a whole. Check it out in print if you can, because the formatting of the page itself is very sharp.

It will also be online, and our first column on wealth inequality went up this week. Given so much interest in wealth inequality (it is the basis of the two best works from the left in 2014), what would a wealth equality agenda look like?

The Nation also recently launched The Curve, a great blog on the intersection of feminism and economics, spearheaded by Kathy Geier. It’s great to see The Nation moving in this direction, and I hope you check it all out!

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Cato Unbound has a symposium on the “pragmatic libertarian case” for a Basic Income Guarantee (BIG), as argued by Matt Zwolinski. What makes it pragmatic? Because it would be a better alternative to the welfare state we now have. It would be a smaller, easier, cheaper (or at least no more expensive) version of what we already do, but have much better results.

Fair enough. But for the pragmatic case to work, it has to be founded on an accurate understanding of the current welfare state. And here I think Zwolinski is wrong in his description in three major ways.

He describes a welfare state where there are over a hundred programs, each with their own bureaucracy that overwhelms and suffocates the individual. This bureaucracy is so large and wasteful that simply removing it and replacing it with a basic income can save a ton of money. And we can get a BIG by simply shuffling around the already existing welfare state. Each of these assertions are misleading if not outright wrong.

Obviously, in an essay like this, it is normal to exaggerate various aspects of the reality in order to convince skeptics and make readers think in a new light. But these inaccuracies turn out to invalidate his argument. The case for a BIG will need to be built on a steadier footing.

Too Many Programs?

Zwolinski puts significant weight on the idea that there are, following a Cato report, 126 welfare programs spending nearly $660 billion dollars. That’s a lot of programs! Is that accurate?

Well, no. The programs Zwolinski describes can be broken down into three groups. First you have Medicaid, where the feds pay around $228 billion. Then you have the six big programs that act as “outdoor relief” welfare, providing cash, or cash-like compensation. These are the Earned Income Tax Credit, Temporary Assistance for Needy Families, Supplemental Security Income, Supplemental Nutrition Assistance Program (food stamps), housing vouchers and the Child Tax Credit. Ballpark figure, that’s around $212 billion dollars.

So only 7 programs are what we properly think of as welfare, or cash payments for the poor. Perhaps we should condense those programs, but there aren’t as many as we originally thought. What about the remaining 119 programs?

These are largely small grants to local institutions of civil society to provide for the common good. Quick examples involve $2.5 billion to facilitate adoption assistance, $500 million to help with homeless shelters, $250 million to help provide food for food shelters (and whose recent cuts were felt by those trying to fight food insecurity), or $10 million for low income taxpayer clinics.

These grants go largely to nonprofits who carry out a public purpose. State funding and delegation of public purpose has always characterized this “third sector” of civil institutions in the United States. Our rich civil society has always been built alongside the state. Perhaps these are good programs or perhaps they are bad, but the sheer number of programs have nothing to do with the state degrading the individual through deadening bureaucracy. If you are just going after the number of programs, you are as likely to bulldoze our nonprofit infrastructure that undergirds civil society as you are some sort of imagined totalitarian bureaucracy.

Inefficient, out-of-control bureaucracy?

But even if there aren’t that many programs, certainly there are efficiencies to reducing the seven programs that do exist. Zwolinski writes that “[e]liminating a large chunk of the federal bureaucracy would obviously…reduce the size and scope of government” and that “the relatively low cost of a BIG comes from the reduction of bureaucracy.”

So are these programs characterized by out of control spending? No. Here they are calculated by Robert Greenstein and CBPP Staff.

The major programs have administrative costs ranging between 1 percent (EITC) and 8.7 percent (housing vouchers), each proportionate to how much observation of recipients there is. Weighted, the average administrative cost is about 5 percent. To put this in perspective, compare it with private charity. According to estimates by Givewell, their most favored charities spend 11 percent on administrative costs, significantly more than is spent on these programs.

More to the point, there isn’t a lot of fat here. If all the administrative costs were reduced to 1 percent, you’d save around $25 billion dollars. That’s not going to add enough cash to create a floor under poverty, much less a BIG, by any means.

Pays for Itself?

So there are relatively few programs and they are run at a decent administrative cost. In order to get a BIG, you’ll need some serious cash on the table. So how does Zwolinski argues that “a BIG could be considerably cheaper than the current welfare state, [or at least it] would not cost more than what we currently spend”?

Here we hit a wall with what we mean by the welfare state. Zwolinski quotes two example plans. The first is from Charles Murray. However, in addition to the seven welfare programs mentioned above, he also collapses Social Security, Medicare, unemployment insurance, and social insurance more broadly into his basic income. If I recall correctly, it actually does cost more to get to the basic income he wants when he wrote the book in 2006, but said that it was justified because Medicare spending was projected to skyrocket a decade out, much faster than the basic income.

His other example is a plan by Ed Dolan. Dolan doesn’t touch health care spending, and for our purposes doesn’t really touch Social Security. How does he get to his basic income? By wiping out tax expenditures without lowering tax rates. He zeros out tax expenditures like the mortgage interest deduction, charitable giving, and the personal exemption, and turns the increased revenue into a basic income.

We have three distinct things here. We have the seven programs above that are traditionally understood as welfare programs of outdoor relief, or cash assistance to the poor. We have social insurance, programs designed to combat the Four Horsemen of “accident, illness, old age, loss of a job” through society-wide insurance. And we have tax expenditures, the system that creates an individualized welfare state through the tax code.

Zwolinski is able to make it seem like we can get a BIG conflict-free by blurring each of these three things together. But social insurance isn’t outdoor relief. People getting Social Security don’t think that they are on welfare or a public form of charity. Voters definitely don’t like the idea of scratching Medicare and replacing it with (a lot less) cash, understanding them as two different things. And social insurance, like all insurance, is able to get a lot of bang for the buck by having everyone contribute but only take out when necessary, for example they are too old to work. Public social insurance, through its massive scale, has an efficiency that beats out private options. If Zwolinski wants to go this route, he needs to make the full case against the innovation of social insurance itself.

Removing tax expenditures, which tend to go to those at the top of the income distribution, certainly seems like a good way to fund a BIG. However we’ll be raising taxes if we go this route. Now, of course, the idea that there is no distribution of income independent of the state is common sense, so the word “redistribution” is just a question-begging exercise. However the top 20 percent of income earners will certainly believe their tax bill is going up and react accordingly.


Zwolinski is trying to make it seem like we can largely accomplish a BIG by shuffling around the things that state does, because the state does them poorly. But the numbers simply won’t add up. Or his plan will hit a wall when social insurance is on the chopping block, or when the rich revolt when their taxes go up.

The case for the BIG needs to be made from firmer ground. Perhaps it is because the effects of poverty are like a poison. Or maybe it will provide real freedom for all by ensuring people can pursue their individual goals. Maybe it is because the economy won’t produce jobs in the capital-intensive robot age of the future, and a basic income will help ensure legitimacy for this creatively destructive economy. Heck, maybe it just compensates for the private appropriation of common, natural resources.

But what won’t make the case is the idea that the government already does this, just badly. When push comes to shove, the numbers won’t be there.

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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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To emphasize a point I made yesterday, we need to think of ending Too Big To Fail (TBTF) as a continuum rather a simple yes-no binary. The process of failing a large financial firm through the Orderly Liquidation Authority (OLA) can go very well, or it could go very poorly. It’s important to understand that the recent GAO report, arguing that the TBTF subsidy has largely diminished, is incapable of telling the difference.

What would make for a successful termination of a failed financial firm under OLA? To start, bankruptcy court would be a serious option as a first response. Assuming that didn’t work, capital in the firm is structured in such a way that facilitates a successful process. There’s sufficient loss-absorbing capital both to take losses and give regulators options in the resolution. There’s also sufficient liquidity, both within the firm due to strong new capital requirements and through accountable lender-of-last-resort lending, that prevents a panic from destroying whatever baseline solvency is in the firm. As a result, less public funding is necessary to achieve the goals.

Living wills actually work, and allow the firm to be resolved in a quick and timely manner. The recapitalization is sufficient to repay any public funding without having to assess the financial industry as a whole. There’s no problems with international coordination, and the ability of the FDIC to act as a receiver for derivatives contracts is standardized and clear in advance, reducing legal uncertainty.

That’s a lot! And it’s a story about what could go right or wrong that is becoming more and more prevalent in the reform community [1]. Let’s chart it out, along with the opposite happening.

Again, from the point of view of the GAO report, these are identical scenarios. Both would impose credit losses on firms. Thus the GAO’s empirical model, scanning and predicting interest rates spreads to imply credit risk, picks up both scenarios the same way. Whether OLA goes smoothly or is a disaster doesn’t matter. But from the point of view of taxpayers, those trying to deal with the uncertainty and panic that would come with such a scenario, and the economy as a whole, the bad scenario is a major disaster. And we are nowhere near the point where success can be taken for granted. Tightening the regulations we have is necessary to making the successful scenario more likely, and the apparent lack of a subsidy should not distract us from this.


[1] Note the common similarities along these lines in the critical discussion of OLA from across the entire reform spectrum. You can see this story in different forms in Stephen Lubben’s “OLA After Single Point of Entry: Has Anything Changed?” for the Unfinished Mission project,  the comment letter from the Systemic Risk Council, Too Big to Fail: The Path to a Solution from the Bipartisan Policy Center, and the “Failing to End Too Big to Fail” report from the Republican Staff of the House Committee on Financial Services.

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The GAO just released its long-awaited report on whether Wall Street receives an implicit subsidy for still being seen as Too Big To Fail (TBTF). I’m still working through the report, but the headline conclusion is that “large bank holding companies had lower funding costs than smaller ones during the financial crisis” and that there is “mixed evidence of such advantages in recent years. However, most models suggest that such advantages may have declined or reversed.”

For a variety of reasons, whether this subsidy exists has become a major focal point in the discussion about financial reform. The Obama administration wants the headline that TBTF is over, and the President’s opponents want to argue that Dodd-Frank has institutionalized bailouts. Hopefully this GAO report puts that “permanent bailouts” talking point to rest.

More generally, however, I find that there are three problems with this emphasis on a possible Wall Street subsidy in the financial reform debate:

The first is that it makes it seem like the bailouts were the only problem with the financial sector. Let’s do a thought experiment: imagine that in September 2008, Lehman Brothers went crashing into bankruptcy and…nothing happened. There was no panic in interbank lending or the money market mutual funds. The Federal Reserve didn’t do emergency lending, and nobody suggested that Congress pass TARP. There was nothing but crickets out there in the financial press.

Even if that had happened, we’d still have needed a massive overhaul of the financial system. Think of all the other things that went wrong: Wall Street fueled a massive housing bubble that destroyed household wealth and generated bad debts that have choked the economy for half a decade. Neighborhoods were torn apart by more than 6 million foreclosures while bankers laughed all the way to the bank. A hidden derivatives market radically distorted the price of credit risk and led to the creation of instruments designed to rip off investors. Wall Street failed at its main job — to allocate capital to productive ends in the economy. Instead, it went on a rampage that did serious harm to investors, households, and ultimately our economy. 

TBTF is the most egregious example of the out-of-control financial system, and it’s a major problem that needs to be checked. But if emphasized too much, it makes it seem as if the problem is only how much damage a firm can do to the economy when it fails. In fact, the problem is much broader than that, and solving it requires transparency in the derivatives market, consumer protections, accountability in the securities Wall Street makes and sells, a focus on actual business lines, and regulation of shadow banking as a whole, not just last rites for individual firms.

This is important because the second problem is that some will take this report as evidence that reform is just right, or has even gone too far. And scanning the coverage, I see that the commentators who are applauding the GAO’s conclusions are often the same people who have said that, for instance, liquidity rules in Dodd-Frank have gone too far, or that the Volcker Rule should be tossed out. This is even as the GAO points to these provisions as necessary reforms.

We can debate whether a subsidy for failing banks exists or how big it is, but the goal of regulation should not be to fine-tune that number. The subsidy is only a symptom of much larger problems with the financial system, and the point of regulation is to build a system that works. 

Finally, the third issue is that emphasizing the subsidy makes us think of ending TBTF as a binary, check-yes-or-no, pass-fail kind of test. Again, there are political reasons for this emphasis, but TBTF isn’t a switch that can be flipped on or off. Addressing the problem is an ongoing process that will be carried out through the Orderly Liquidation Authority (OLA), and that process can be either more or less robust.

It’s good that the financial markets have confidence in the OLA, but the FDIC is still crafting the living wills and the details of how they will be implemented. Major questions and challenges still remain. For instance, a rule has not yet been written to determine how much unsecured debt firms are required to carry. And conservatives are already floating the idea that a successful OLA would be a “bailout” anyway

The success of an orderly liquidation process will depend on many different factors, but we should think of it not as a binary, but as a continuum — a continuum on which one end has more capital and slimmer business lines to protect taxpayer dollars and keep the risks contained, and the other end has us crossing our fingers and hoping that the aggregate damage isn’t too bad. [UPDATE: See more on this point from me here.]

The GAO report is welcome news. We’ve made progress on the most outrageous problem with the financial sector. But that doesn’t mean the work is done by any means.

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Paul Ryan released his anti-poverty plan yesterday, and lots of people have written about it. Bob Greenstein has a great overview of the block-granting portion of the plan. I’m still reading and thinking about it, but in the interest of answering the call for constructive criticism, a few points jump out that I haven’t seen

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Live at The New Republic, I have a piece describing Year Four of Dodd-Frank, which celebrates its birthday this week. The news coverage of the past year has had a “stuck, spinning its wheels” argument to it. I argue that this past year saw some major and important advancements, directions on where to go next, and also made what will be the biggest challenges going forward very clear. I hope you check it out.

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