Bankruptcy is a key feature of capitalism. Firms sometimes are unable to repay what they owe creditors. Financial reorganization has become a fact of life in many industries. TheUnited States is lucky in having a particularly effective way of giving firms a fresh start—Chapter 11 of the bankruptcy code, which has been used repeatedly, for example, by the airlines. Airplanes keep flying; jobs and assets are preserved. Shareholders typically lose everything, and bondholders become the new shareholders. Under new management, and without the burden of debt, the airline can go on. The government plays a limited role in these restructurings: bankruptcy courts make sure that all creditors are treated fairly and that management doesn't steal the assets of the firm for its own benefits.
Banks differ in one respect: the government has a stake because it insures deposits....The reason the government insures deposits is to preserve the stability of the financial system, which is important to preserving the stability of the economy. But if a bank gets into trouble, the basic procedure should be the
same: shareholders lose everything; bondholders become the new shareholders. Often, the value of the bonds is sufficiently great that that is all that needs to be done. For instance, at the time of the bailout, Citibank, the largest American bank, with assets of $2 trillion, had some $350 billion of long-term bonds. Because there are no obligatory payments with equity, if there had been a debt-to-equity conversion, the bank wouldn’t have had to pay the billions and billions of dollars of interest on these bonds. Not having to pay out the billions of dollars of interest puts the bank in much better stead. In such an instance, the role of the government is little different from the oversight role the government plays in the bankruptcy of an ordinary firm.
Sometimes, though, the bank has been so badly managed that what is owed to depositors is greater than the assets of the bank. (This was the case for many of the banks in the savings and loan debacle in the late 1980s and in the current crisis.) Then the government has to come in to honor its commitments to depositors. The government becomes, in effect, the (possibly partial) owner, though typically it tries to sell the bank as soon as it can or find someone to takeit over. Because the bankrupt bank has liabilities greater than its assets, the government typically has to pay the acquiring bank to do this, in effect filling the hole in the balance sheet. This process is called conservatorship. Usually the switch in ownership is so seamless that depositors and other customers wouldn't even know that something had happened unless they read about it in the press. Occasionally, when an appropriate suitor can’t be found quickly, the government runs the bank for a while. (The opponents of conservatorship tried to tarnish this traditional approach by calling it nationalization. Obama suggested that this wasn’t the American way. But he was wrong: conservatorship, including the possibility of temporary government ownership when all else failed, was the traditional approach; the massive government gifts to banks were what was unprecedented. Since even the banks that were taken over by the government were always eventually sold, some suggested that the process be called preprivatization.)
Long experience has taught that when banks are at risk of failure, their managers engage in behaviors that risk taxpayers losing even more money. The banks may, for instance, undertake big bets: if they win, they keep the proceeds; if they lose, so what? They would have died anyway. That's why there are laws saying that when a bank’s capital is low, it should be shut down or put under conservatorship. Bank regulators don't wait until all of the money is gone. They want to be sure that when a depositor puts his debit card into the ATM and it says, "insufficient funds," it's because there are insufficient funds in the account, not insufficient funds in the bank. When the regulators see that a bank has too little money, they put the bank on notice to get more capital, and if it can't, they take further action of the kind just described.
As the crisis of 2008 gained momentum, the government should have played by the rules of capitalism and forced a financial reorganization. Financial reorganizations—giving a fresh start—are not the end of the world. Indeed, they might represent the beginning of a new world, one in which incentives are better aligned and in which lending is rekindled. Had the government forced a financial restructuring of the banks in the way just described, there would have been little need for taxpayer money, or even further government involvement. Such a conversion increases the overall value of the firm because it reduces the likelihood of bankruptcy, thereby not only saving the high transaction costs of going through bankruptcy but also preserving the value of the ongoing concern. That means that if the shareholders are wiped out and the bondholders become the new "owners," the bondholders' long-term prospects are better than they were while the bank remained in limbo, when they were not sure whether it would survive and not sure of either the size or the terms of any government handout.
The bondholders involved in a restructuring would have gotten another gift, at least according to the banks own logic. The bankers claimed that the market was underestimating the true value of the mortgages on their books (and other bank assets). That may have been the case—or it may not have been. If it is not, it is totally unreasonable to make taxpayers bear the cost of the banks' mistake, but if the assets were really worth as much as the bankers said, then the bondholders would get the upside.
The Obama administration has argued that the big banks are not only too big to fail but also too big to be financially restructured (or, as I refer to it later, "too big to be resolved"), too big to play by the ordinary rules of capitalism. Being too big to be financially restructured means that if the bank is on the brink of failure, there is but one source of money: the taxpayer. And under this novel and unproven doctrine, hundreds of billions have been poured into the financial system.
If it is true that America's biggest banks are too big to be "resolved," this has profound implications for our banking system going forward—implications the administration so far has refused to own up to. If, for instance, bondholders are in effect guaranteed because these institutions are too big to be financially restructured, then the market economy can exert no effective discipline on the banks. They get access to cheaper capital than they should, because those providing the capital know that the taxpayers will pick up any losses. If the government is providing a guarantee, whether explicit or implicit, the banks aren’t bearing all the risks associated with each decision they make—the risks borne by markets (shareholders, bondholders) are less than those borne by society as a whole, and so resources will go in the wrong place. Because too-big-to-be-restructured banks have access to funds at lower interest rates than they should, the whole capital market is distorted. They grow at the expense of their smaller rivals, who do not have this guarantee. They can easily come to dominate the financial system, not through greater prowess and ingenuity but because of the tacit government support. It should be clear: these too-big-to-be-restructured banks cannot operate as ordinary market-based banks.
I actually think that all of this discussion about too-big-to-restructured banks was just a ruse. It was a ploy that worked, based on fear-mongering. Just as Bush used 9/11 and the fears of terrorism to justify so much of what he did, the Treasury under both Bush and Obama used 9/15—the day that Lehman collapsed—and the fears of another meltdown as a tool to extract as much as possible for the banks and the bankers that had brought the world to the brink of economic ruin.
The argument is that, if only the Fed and Treasury had rescued Lehman Brothers, the whole crisis would have been avoided. The implication—seemingly taken on board by the Obama administration—is, when in doubt, bail out, and massively so. To skimp is to be penny wise and pound foolish.
But that is the wrong lesson to learn from the Lehman episode. The notion that if only Lehman Brothers had been rescued all would have been fine is sheer nonsense. Lehman Brothers was a consequence, not a cause: it was the consequence of flawed lending practices and inadequate oversight by regulators. Whether Lehman Brothers had or had not been bailed out, the global economy was headed for difficulties. Prior to the crisis, as I have noted, the global economy had been supported by the bubble and excessive borrowing. That game is over—and was already over well before Lehman's collapse. The collapse almost surely accelerated the whole process of deleveraging; it brought out into the open the long-festering problems, the fact that the banks didn’t know their net worth and knew that accordingly they couldn’t know that of any other firm to whom they might lend. A more orderly process would have imposed fewer costs in the short run, but "counterfactual history" is always problematic.
There are those who believe that it is better to take one’s medicine and be done with it, that a slow unwinding of the excesses would last years longer, with even greater costs. Perhaps, on the other hand, the slow recapitalization of the banks would have occurred faster than the losses would have become apparent. In this view, papering over the losses with dishonest accounting (as in this crisis, as well as in the savings and loan debacle of the 1980s) would be doing more than just providing symptomatic relief. Lowering the fever may actually help in the recovery. A third view holds that Lehman’s collapse actually saved the entire financial system: without it, it would have been difficult to galvanize the political support required to bail out the banks. (It was hard enough to do so after its collapse.)
Even if one agrees that letting Lehman Brothers fail was a mistake, there are many choices between the blank-check approach to saving the banks pursued by the Bush and Obama administrations after September 15 and the approach of Hank Paulson, Ben Bernanke, and Tim Geithner of simply shutting down Lehman Brothers and praying that everything will work out in the end.
The government was obligated to save depositors, but that didn't mean it had to provide taxpayer money to also save bondholders and shareholders. As noted earlier, standard procedures would have meant that the institution be saved and the shareholders wiped out, with the bondholders becoming the new shareholders. Lehman had no insured depositors; it was an investment bank. But it had something almost equivalent—it borrowed short-term money from the "market" through commercial paper held by money market funds, which acted much like banks. (One can even write checks on these accounts.) That’s why the part of the financial system involving money markets and investment banks is often called the shadow banking system. It arose, in part, to circumvent the regulations imposed on the real banking system—to ensure its safety and stability. Lehman’s collapse induced a run on the shadow banking system, much as there used to be runs on the real banking system before deposit insurance was provided; to stop the run, the government provided insurance to the shadow banking system.
Those opposed to financial restructuring (conservatorship) for the banks that are in trouble say that if the bondholders are not fully protected, a bank's remaining creditors—those providing short-term funds without a government guarantee—will flee if a restructuring appears imminent. But such a conclusion defies economic logic. If these creditors are rational, they would realize that they benefit enormously from the greater stability of the firm provided by conservatorship and the debt-to-equity conversion. If they were willing to keep their funds in the bank before, they should be even more willing to do so now. And if the government has no confidence in the rationality of these supposedly smart financiers, they could provide a guarantee, though they should charge a premium for it. In the end, the Bush and Obama administrations not only bailed out the shareholders but also provided guarantees. The guarantees effectively eviscerated the argument for the generous treatment of shareholders and long-term bondholders.
Under financial restructuring, there are two big losers. The executives of the banks will almost surely go, and they will be unhappy. The shareholders too will be unhappy, because they will have lost everything. But that is the nature of risk-taking in capitalism—the only justification for the above-normal returns that they enjoyed during the boom is the risk of a loss.
Joseph Stiglitz, a Nobel laureate, is a professor of economics at Columbia University.
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