Citizen Action Monitor

Former head of government financial regulatory agency gives her take on culture of collusion and greed among megabanks

Now a citizen activist, Sheila Bair explains how ordinary citizens can end up on the hook for bankers’ fraudulent trading practices

No 524 Posted by fw, July 17, 2012

“[To this day] the special interest lobbying is, in a calculated way, [still] trying to slow down reform, complicate reform, water reform down. And the public loses interest, they become cynical about if the regulators in Washington can fix any of this and they don’t exert counter political pressure to get meaningful reforms in place.”Sheila Bair

As the former chairperson of the Federal Deposit Insurance Corporation, Sheila Bair is well qualified to explain the roots of the egregious banking fraud that can end up costing the public big bucks. She recently appeared on Moyers and Company to talk about greedy bankers gaming the system for personal profit. And now this same banking industry, abetted by avaricious politicians, has the unmitigated gall to try to sabotage reform efforts.

Click on the title link below to watch the complete 27:40-minute video of Moyers’ interview and to access a full transcript of the show. Alternatively, watch the opening 9 minutes of Bair’s interview on the embedded video. Under the video is my abridged transcript of substantial segments of the interview. Subheadings are added to facilitate quick browsing of main ideas.

Sheila Bair on Keeping Banks Honest, Moyers and Company, July 13, 2012


Bill Moyers’ introduction

Sheila Bair [is] a hero to many of us for her long fight for an honest and accountable banking system. After years working on Capitol Hill, at the Treasury Department, the New York Stock Exchange and the Commodity Futures Trading Commission she was appointed by President George W. Bush to head the Federal Deposit Insurance Corporation, the FDIC.

Now as Senior Advisor to the Pew Charitable Trusts, Sheila Bair has just organized a private group of financial experts called the Systemic Risk Council. Its mission: to prevent the banking industry from scuttling the reforms created by the Dodd-Frank Act and hopefully prevent another crash. [So I hope we can be a source of information too for people who are confused about what we believe are the appropriate reforms that need to get done, reforms that will help them. And I think the public education function of this group is going to be very important]. She has a book coming out in late September about the need for reform called Taking the Bull By the Horns.

How traders colluded in gaming Libor’s interbank interest rates in order to line their own pockets

When you borrow money there’s something called an interest rate which is your cost of borrowing money and there are different mechanisms for setting what that interest rate should be. And one of them is something called Libor [London Interbank Offered Rate]. And we are discovering now that a lot of unscrupulous people were manipulating that interest rate apparently to line their own pockets. And that is something that should be severely punished.

Libor always troubled me. There’s always been judgment associated with what some people call a fudge factor, there’s always been judgment associated with Libor, the Libor survey. You were supposed to look at various factors, what your recent transactions were, what other transactions are, what the market conditions are. You can use judgment. You don’t have to tag it exactly to a transaction.

But using judgment, and have a potential bias in judgment is profoundly different from open collusion with other banks to lowball or highball the rates to profit. I mean, these emails quite acknowledge that they were trying to manipulate the rate to benefit their trading position. And what’s ironic is the trading desks of these banks were probably hurting the part of the bank that does the bread and butter lending.

Because if they were lowering their interest rate that would reduce the interest rate on loans, a lot of loans that the lending part of the bank conducts to benefit the trading desk. So they were even hurting themselves internally by doing this.

There are real world consequences to gaming Libor

There are absolutely real world consequences to this. There are counterparties through all these swap transactions which are what they were trying to manipulate, and those counterparties were being hurt by it, absolutely. [For example, in Baltimore, as unemployment climbed and tax revenue fell the city laid off employees and cut services in the midst of the financial crisis. Its leaders now say the city’s troubles were aggravated by bankers’ manipulation of this key interest rate linked to hundreds of millions of dollars the city had borrowed].

It’s shocking. It should be punished very severely. And I think there probably is going to be more information coming out about it so I think it’s just starting, I don’t think it’s over.

The problem with current punishment actions is that it’s the shareholders who end up paying the fines. But it’s the traders and top management who should be made to pay out of their own pockets

Another thing that troubles me about all the enforcement actions that are brought — and there haven’t been enough of them — but they generally, just, they tag the shareholders, right? So Barclays Bank, the shareholders ultimately pay this. There should be punishment of these traders and higher up in management depending on how high it went. There should be, not only clawbacks of compensation but severe civil monetary penalties against the individual traders. Make them pay out of their own pocket. It doesn’t — it’s not much of a deterrent for them if their bank’s paying for it — the consequences of their mistakes — not them personally. So I hope there is more of that. There should be certainly be more civil actions against the individuals and there may be criminal activity involved here too.

Emerging evidence reveals a culture of collusion and greed among banks too big to fail, of doing anything to make a buck

Well, I don’t think we know all the facts yet. But certainly we do know that from 2005 to 2008 there were documented instances of Barclays’, according to Barclays, traders colluding with other banks to influence the Libor rate. I think just that by itself shows a culture of greed, of people feeling they’re above the law, above ethical standards, basically justifying anything to make a buck. And I don’t think– I don’t want the government setting interest rates, I don’t want that at all.

Warning signs about Libor as early as 2008 would not have been ignored had there been more robust regulation

But I do want government regulation of how the market sets interest rates. And there were red flags about Libor back in 2008 and then the simple fix would have been to say that if you submit a rate to Libor it has to be based on an actual transaction that you actually borrowed money at that rate not your best guess, you know, today what I’m going to pay. ‘Cause the process itself opened itself up to abuse and then it completely spiraled out of control. So that, you know, that’s one of the main thing’s that’s frustrating about this crisis.

The fix wasn’t done because the political will and fortitude to make it happen weren’t there

So many of the problems, the fixes were so obvious and we just didn’t have the political will and fortitude to just tell the banks, “You’ve got to stop doing it this way. You’ve got to, you know, start basing this on an actual transaction.” The fix was not hard, it was just never done.

We lost our way in the mid-2000s when we left the banks to themselves

Well, I think we lost our way in the mid-2000s between free markets and free-for-all markets. We forgot that you need some basic rules and standards to regulate financial markets. We deferred too much to bank judgment. Libor is one example where we left it to banks to themselves to set important benchmarks.

And we still don’t have the political will and fortitude to tell the banks to start doing business differently

So we need to rein that back in. And the things that worries me is that Washington, notwithstanding all of this we still, and this horrible crisis and the horrible economic devastation that it has wreaked on so many individuals, we still don’t have the political will and fortitude to get tough and say, “You can’t do it this way anymore. I’m sorry if you’re making money this way, but this is not a good, safe way to make money. You need to stop these types of activities.” All the reform is still just around the edges. We just don’t seem to have the fortitude to stand up to these banks and tell them they need to start doing business differently, profoundly differently.

Yet nothing’s changed — Special interest lobbying is still busy trying to obstruct banking reform as public cynicism deepens

Where’s the anger? That’s right, I know. I think I worry that the public is getting cynical. I think there’s been one of the reasons I started the Systemic Risk Council is I feel the special interest lobbying is in a calculated way trying to slow down reform, complicate reform, water reform down. And the public loses interest, they become cynical about if the regulators in Washington can fix any of this and they don’t exert counter political pressure to get meaningful reforms in place. [A Gallup survey done last year reported that Americans’ trust in banks is down to an all-time low of 18 percent. And a recent Pew research survey reports only 22 percent of Americans have faith in the government in other words to do this, people don’t trust the financial industry and they don’t trust the government to do the right thing in regulating the industry].

Government regulatory oversight failed to prevent banks from gambling with government-backed funds

I think there’s a real problem at OCC [Office of the Comptroller of the Currency]. They are the main regulator for the largest banks. I think there’s a very difficult cultural issue at the Office of the Comptroller of the Currency in terms of whether they protect the public or whether they protect the banks. If they’re trying to protect the banks they’re going to miss things because their perspective is going to be wrong.

…these banks have huge government exposure with all their insured deposits. The OCC in particular has a fiduciary obligation to protect the government purse, to protect the government exposure from these insured deposits. And the JP Morgan Chase trading, that was being done with excess deposits. That they were playing around with insured deposit money.

And yes, they have enough shareholder capital to absorb the losses, so this is not going to be an event that costs the government money. But it’s problematic because these are clearly inappropriate risks that we’re taking with government-backed funds that should never have happened. Never should have happened in the bank and the OCC should not have let it happen.

When regulators do try to get aggressive, Congress bats them down or cuts their funding

I think the political money is corrupted. The Congress, I think in fairness to regulators, when regulators try to get too assertive they frequently get batted down by Congress. We’re seeing it now in the CFTC [Commodity Futures Trading Commission] again, the derivatives regulator, that is the one that unearthed this Libor scandal and is working very hard to tame the derivatives market which is a terrible source of systemic risk. And the House is trying to whack back their appropriations so they won’t have enough money to carry out their responsibilities.

The Orwellian factor – the logic of financial reform discussions is turned upside down: good is bad

I don’t understand it. I think, you know, when in Dodd-Frank one of the chapters in my book is called “The Orwellian Debate.” And it’s about the way financial reforms, the discussion about financial reforms were turned completely upside down. So things that would help stabilize the system were transformed into things that would hurt, you know, people when it was just the opposite.

You get this now trying to raise capital standards. Banks need to put more of their own money at risk. That would help tame risk taking if they stopped using so much borrowed money and used more of their own money in their operations. That’s what raising capital is all about.

But the banks say, “Oh, you raise capital it’ll hurt our ability to lend. It’s going to raise, you know, costs for your mortgage or whatever.” That’s nonsense. But you know, say it often enough it becomes true. So I think there’s been a calculated effort to confuse the dialogue, to confuse the public about what is in their interest to do. And people who know and understand these markets really need to stand up and speak the truth and let people know what needs to be done.

Beginning in 2008, free market capitalism became “taxpayer-bailout crony capitalism”

Well, we did not have a free market in 2008. I am sorry, but we had crony capitalism in 2008 and 2009. We bailed out basically anybody over $100 billion. We said the taxpayers are going to make sure you don’t fail no matter how stupid you were. So that’s not free market. And I think as a Republican I view myself as a markets-oriented person. I don’t ever want to go back to that kind of situation again.

Here’s Orwellian logic: “I’m all for free markets but I don’t want the market to punish mismanaged corporations”

There are important new authorities in Dodd-Frank that will make sure we don’t do bailouts again, that mismanaged banks do go into a bankruptcy-like process where they and their shareholders and their creditors take the losses, where their boards lose their job, their managers lose their job, their salaries are clawed back. That is all in Dodd-Frank. And so for people to say, “I’m a market-oriented person,” but not want the market to punish mismanaged institutions, that — again that’s Orwellian. That’s just upside-down. That’s not a market. You have to suffer the consequences of your mistake if you have a market.

The organizational structure of megabanks is too complex to comprehend, therefore difficult to break up

One thing that regulators could do as part of the — one of the things Dodd-Frank required is for these large banks to submit what we call living wills, so they’re basically breakup plans. So if you get into trouble how can the government break you up and sell you off in an orderly way without broader systemic ramifications?

The problem is these banks have thousands of legal entities. The organizational structure itself is so complex, I’ve heard people call it a poison pill. How can you break them up? You can’t even figure out how they’re organized or structured. So simplifying those legal structures and dividing up the legal structures in accordance with business lines to facilitate a breakup I think would be very good market information to get out there.

Shareholders of megabanks are not getting a good return on their investment

Shareholders are getting frustrated. The megabanks do not deliver good returns at all and they may well be — I think they are worth a lot more if they were broken up into pieces. But again shareholders cannot be empowered to break them up if they can’t figure out what the organizational structure, how to do it. This is going to be a terrible consequence for Barclays’ shareholders, I can only assume. And again, you know, the risk management controls, the internal controls are so much more challenging when you’re dealing with an institution of this size and complexity. Break them up, you know, have a commercial bank, have an investment bank, have a broker dealer. It’s a lot easier to manage.

We need basic rules, enforcement when people break the rules, and consequences for those responsible, not the taxpayers, customers and shareholders

I view myself as a capitalist. I know that’s a bad word these days. But I do believe in capital markets if they’re appropriately regulated. You need some basic rules and the rules need to make sure that when people do stupid things they suffer the consequences, not the taxpayers, not their customer, they, they suffer the consequences. And that’s the kind of system I would like for us to have again. And I do care about that deeply. I care about our markets and I want them to function correctly again, but they’re not functioning correctly now.

To follow Sheila Bair in her new role with the Systemic Risk council…

Go to the website and you can find a link to the SRC, the Systemic Risk Council. And we will be putting there our Call to Action. And our press release and our members and our Call to Action is all on the website. We’ll be making additional pronouncements over the coming weeks and those will all be publicly released and go on our website as well. So I hope we can be a source of information too for people who are confused about what we believe are the appropriate reforms that need to get done, reforms that will help them. And I think the public education function of this group is going to be very important.

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