The Foxes Guard the Financial Henhouse

Whom is Congress putting in charge of the market for credit-default swaps?

Rep. Stephen Lynch tried to limit banks’ role in credit-swap regulation

Ever since his inauguration, President Obama has confronted charges that he has let proverbial “foxes” stand guard over the financial henhouse. Commodity Futures Trading Commission Chairman Gary Gensler is a former Goldman Sachs partner, and Treasury Chief of Staff Mark Patterson is a former Goldman lobbyist. In both cases, Obama actually tapped ex-foxes: Gensler left Goldman in 1997; Patterson severed ties to the firm in 2008.

Now imagine the uproar if Obama actually allowed Goldman, rather than its ex-employees, to regulate risk in the financial markets. And yet the administration and its allies in Congress are poised to do just that.  The awkwardly named Over-the-Counter Derivatives Markets Act of 2009 would give Goldman and eight other big banks a government-guaranteed oligopoly over the market for credit-default swaps—with a license to set the rules of the road. In effect, the bill would allow a cartel to control trillions of dollars in transactions that entail enormous risk to the financial system as a whole.

If this proposed legislation passes, the big banks will strengthen their grip on a massive chunk of the economy. As of June, the amount of outstanding credit-default swaps totaled $36 trillion—more than two-and-a-half timesthe U.S. gross domestic product. These swaps enable banks, insurers, and hedge funds to bet on whether some institution or individual that owes money—a “reference entity,” in Wall Street dialect—will default on its debt. The reference entity might be a Third World government or a Fortune 500 company. Or, if you have a mortgage or a credit card, the reference entity might be you.

You don’t have to understand exactly how these instruments work in order to be affectedby them. If your bank uses credit swaps to hedge the risk that you won’t repay your loans, then transaction costs in the swaps market indirectly influence your interest rates. And when credit swaps cause a major financial firm to fail, the ripple effects extend far and wide. AIG has used more than $22 billion of federal funds to pay debts arising from its own ill-advised credit-swap bets, which means it has cost each individual taxpayer—on average—$158 to clean up the credit-swaps mess.

To guarantee that the swaps market can run smoothly even if a major player like AIG goes belly up, the Obama administration has introduced OCDMA, as acronym-loving corporate lawyers call the legislation. The bill would require that banks, insurers, hedge funds, and other “major swap participants” conduct credit-swap transactions through a central clearinghouse.

In theory, that’s a good thing, because it provides a safeguard in the event that a single firm fails to pay its credit-swap debts. Until now, if Goldman Sachs wanted to protect itself from the risk that you won’t repay your mortgage, it would find another party to take the opposite end of a credit-swap bet. (AIG and Goldman bet with each other on $20 billion of debt.) Each quarter, Goldman would pay a small fee straight into AIG’s account. If you and a critical mass of other mortgagors defaulted on your debt, AIG would make a lump-sum payment directly to Goldman Sachs.  Under OCDMA, all this would change. Goldman would make quarterly payments to a clearinghouse, which would forward those payments to AIG. If enough mortgagors defaulted, then AIG would compensate the clearinghouse, and the clearinghouse would compensate Goldman.

The crucial point is that the clearinghouse would be on the hook to Goldman even if AIG went bust. Thus the failure of one firm wouldn’t trigger a chain reaction in financial markets because the clearinghouse would be there to backstop the damage.

But there’s a catch in the legislation as it currently stands: OCDMA wouldn’t actually set up any clearinghouses. So in effect, it would require market participants to use the single, privately owned credit-swap clearinghouse that is up and running in the United States right now. It’s called ICE Trust, and it’s managed by an Atlanta-based company called IntercontinentalExchange.

ICE Trust charges a fee to each party that trades swaps through the clearinghouse, and it splits its profits with a nine-bank consortium consisting of a familiar cast of characters: Bank of America, Barclays, Citigroup, Credit Suisse, Deutsche Bank, Goldman, JPMorgan, Morgan Stanley, and UBS. Unless a competing clearinghouse can break ICE Trust’s monopoly, OCDMA will channel trillions of dollars of swaps through a single entity.

So far, critics of OCDMA have focused on the fact that the bill—in its current form—exempts many derivatives deals from the clearinghouse requirement. But perhaps we should worry less about how many derivatives deals won’t go through a central clearinghouse and worry more about how many derivatives deals will. If AIG, which wrote $440 billion in credit swaps, was “too big to fail,” then ICE Trust, which has already written more than $3 trillion in credit swaps, is too big to fail many times over. That might not be such a quandary ifICE Trust carefully monitored its counterparties to make sure not to expose itself to excessive risks. But nine of the 12 members of ICE Trust’s Risk Committee will be employees of the big banks in the consortium. They have an incentive to set rules that maximize the big banks’ profit margins, even if that means more risk for other market actors. These Risk Committee members are real-time foxes, not former ones.

Technically, ICE Trust is not bound by its Risk Committee’s decisions, but the executives in charge of the clearinghouse must consult the Risk Committee before making any major moves. Moreover, the Risk Committee appoints four of the 11 members of the ICE Trust Board and advises in the selection of the other seven. So it seems unlikely that board members will disregard Risk Committee recommendations. In theory, the Federal Reserve, the Securities and Exchange Commission, and the CFTC will all share authority for overseeing ICE Trust, but as last year’s financial meltdown made clear, spreading regulatory responsibility across an array of agencies is about as good as giving it to none of them at all.

The full House and Senate have yet to vote on OCDMA, so there’s still a chance to change the rules. So far, it’s not looking good, though. In mid-October, Rep. Stephen Lynch, D-Mass., attached an amendment to OCDMA that would bar banks from controlling more than 20 percent of voting rights at any clearinghouse, but a House financial services committee spokesman announced one week later that Lynch’s amendment would be stripped from the bill.

Lynch and other lawmakers who want to wrest control of the clearinghouses away from the big banks are battling a powerful constituency. In the aggregate, the firms with seats on the Risk Committee made approximately $30 million in federal campaign contributions last election cycle. But if ICE Trust goes bust, the taxpayers’ tab will be many times that amount. There might be short-term political benefits (read: campaign cash) for legislators who leave the foxes in charge. But if the henhouse catches on fire, the rest of us will get burned.