There was no record keeping requirement imposed on participants in the market. There was no reporting. We had no information ~ Brooksley Born, chairperson of the Commodity Futures Trading Commission (8/26/1996 to 6/1/1999) referring to the over the counter derivatives market, as quoted from the 10/20/2009 Frontline Documentary, "The Warning".
In my previous article I examined the Financial Services Modernization Act of 1999, a piece of deregulatory legislation which contributed to the housing bubble, which lead to the collapse of our financial system. That, however was the only the first of two free market anti-regulation bills that we can blame for the crisis.
To recap: The first bill was The Financial Services Modernization Act of 1999 (also known as the Gramm-Leach-Bliley Act or GLBA) repealed the portion of the Glass-Steagall Act which prohibited any one institution from acting as any combination of an investment bank, a commercial bank, and/or an insurance company. Bill Clinton signed GLBA, even though every Senate Democrat (save one) voted against it.
The second piece of anti-regulatory legislation was the Commodity Futures Modernization Act of 2000 (CFMA). It continued an exemption of OTC derivatives from regulation that began with the passage of the Futures Trading Practices Act of 1992 (signed by George H.W. Bush).
Additionally, CFMA settled a 1998-1999 dispute wherein the Commodity Futures Trading Commission (or CFTC; then chaired by Brooksley Born) attempted to regulate the OTC derivatives market - and was thwarted by Alan Greenspan and Robert Rubin (see Frontline's excellent Documentary, "The Warning" for more information regarding the dispute). The act also exempted credit default swaps from regulation.
Initially CFMA passed in the House, but later died in the Senate, which did not vote on the measure. Later, then-Senator Phil Gramm took the bill, cosponsored by Senator Richard Lugar (R-IN) and written with the help of financial industry lobbyists, and slipped it into a $384-billion omnibus spending bill, which passed the Senate and was signed into law by President Clinton on 12/21/2000.
The July/August issue of Mother Jones reveals that "few lawmakers had either the opportunity or inclination to read [Gramm's] version of the bill", and that "nobody in either chamber had any knowledge of what was going on or what was in it".
In addition to exempting them from regulation by the CFTC, CFMA overrode any state legislature from treating OTC derivative transactions as gambling or otherwise illegal, even though they are and should be.
Definition, Derivative: A derivative is a financial instrument that is derived from some other asset, index, event, value or condition (known as the underlying asset). Rather than trade or exchange the underlying asset itself, derivative traders enter into an agreement to exchange cash or assets over time based on the underlying asset.
Definition, Over-the-counter: OTC, or off-exchange trading is to trade financial instruments such as stocks, bonds, commodities or derivatives directly between two parties. It is contrasted with exchange trading, which occurs via facilities constructed for the purpose of trading (i.e., exchanges).
University of Maryland Law School Professor Michael Greenberger explains the role OTC derivatives played in the financial crisis...
|MG: ...discipline in the market has disappeared because what banks do with their loans now is they make the loan, and then they sell the loan to third parties. Third parties essentially buy stock in the loan. The loans are bundled into a basket, offered to the world, they buy stock in it. Owning that stock is not a derivative because you're an actual owner of the loan.|
What happened in our situation, especially when the mortgage lenders wanted to take risks with subprime loans - that is, people who did not have the likelihood to pay them off - is that people were so excited about the possibility of making money off this, that they ran out of the actual mortgages and securities in the mortgages. So what the banks decided to do was to create bets on whether or not the mortgages would be paid off. They were synthetic securities. That is to say, you didn't own anything, but you were betting that the borrower would pay the mortgage off".
If you purchase a Mortgage Backed Security you have a actual asset backing up your investment. The value of the asset may go down and you may end up losing a lot of money, but you won't lose all your money. If, on the other hand, you purchase a "synthetic" security and the mortgage isn't paid off, the security you purchased is worth absolutely nothing (a "toxic asset" valued at zero).
Wall Street was betting big that the subprime mortgage holders would pay off their loans, which they knew was a risky proposition. In order to hedge their bets Goldman Sachs (and the other financial houses that wanted to buy these things) purchased credit default swaps from AIG (and other large insurers).
A credit default swap (CDS) can be thought of as a kind of insurance because it is a "contract in which the buyer of the CDS makes a series of payments to the seller and, in exchange, receives a payoff if the credit instrument (typically a bond or loan) goes into default (fails to pay)". Although, unlike with ordinary insurance, the "buyer of a CDS does not need to own the underlying security or other form of credit exposure".
According to Wikipedia "the modern Credit Default Swaps were invented in 1997 by a team working for JPMorgan Chase", and they "became largely exempt from regulation by the U.S. Securities and Exchange Commission (SEC) with the Commodity Futures Modernization Act of 2000".
AIG agreed to issue the swaps, viewing the proposition as a license to print money. The securities Goldman wanted to "insure" were rated AAA, which means they were as safe as US government bonds (Wikipedia says "In practice, government bonds are treated as risk-free bonds, as governments can raise taxes or print money to repay their domestic currency debt").
Only after the crash did the SEC say something about the conflict of interest which arises when the issuer of the security pays to have it rated (The "issuer pays" model). An 8/27/2009 article from Law.com explains, "rating agencies have a financial interest in generating business from the firms that seek the rating. A low rating might affect future business". I guess that never occurred to AIG. Whether or not it occurred to Goldman Sachs they had succeeded in eliminating most of their risk.
And, because the Mortgage Backed Securities and the derivatives based on those securities paid a return of five to nine percent while Governmental bonds were currently at a worldwide historical low of one percent or less, the banksters decided to purchase as many as they could as fast as possible. Whether the securities were real or synthetic, it didn't matter because all they had to is pay an "insurance premium" and some other dupe assumed all the risk.
|Michael Greenberger: It's one thing for us to have an economic problem because people can't pay their mortgages, and money is lost to the lenders or the whole economy for real problems here, but, I believe three times as much money is being lost not because people really lost their mortgages. Because three times the value of the loss of the mortgage is a bet that's been placed by wealthy institutions or wealthy individuals.|
In other words, three times as many synthetic securities were created as real asset backed securities. Goldman Sachs didn't see the problem though, it wasn't as if they were operating without a safety net - all their securities were insured! However, when it came time for AIG to pay up - they didn't have the money. AIG's equity at the time of the collapse was 200 billion, but they owed 400 billion! (The quote from the preceding paragraph and this figure are both excerpted from the same YouTube video I linked to earlier.)
Goldman Sachs was not, however, that worried about not getting paid. Because they were "to big to fail", and because their ex CEO (and current Fed chairman) was in position to ensure they were "bailed out". Ben Bernanke let Goldman Sachs competitor Lehman Brothers go under, while he deigned to save AIG who just happened to owe Goldman 14 billion dollars.
Treasury Secretary Timothy Geithner claims that the bailouts weren't designed to to help Goldman Sachs, but I'm not buying it. It was because of Tim Geithner that Goldman Sachs received the full amount they were owed, instead of the 40 cents on the dollar that had been previously negotiated.
I think what this shows is that it wasn't the collapse of the housing market that that crashed the financial sector so much as all the unregulated gambling the banksters were engaging in, made possible by two major pieces of "free market" deregulation legislation. Near the height of the market the value of all the subprime mortgages in the US was estimated to be 1.3 trillion (and obviously not everyone with a subprime mortgage defaulted), so why has our government committed us to forking over 12.2 trillion of our (or our grandchildren's) dollars to the banksters?
The Community Reinvestment Act, which is a federal law designed to encourage commercial banks and savings associations to meet the needs of borrowers in all segments of their communities (by discouraging a discriminatory practice known as "redlining"), played no part in the financial crisis. Conservatives like to point to this act and assign it (and it's Democratic sponsors) some, or even all the blame for the housing bubble, but that is a myth - and exemplifies the blame-the-victim class warfare that the Cons love to engage in.
The crisis was caused by the anti-regulation ideology championed by greedy free market a-holes like Alan Greenspan, Robert Rubin, Lawrence Summers, Congressional Republicans and large financial institutions like Goldman Sachs. Although Bill Clinton signed these acts, they are both Conservative in nature, and completely antithetical to what progressives stand for. Progressives don't subscribe to Ayn Rand's laissez-faire free market tall tale, we believe in rules and regulations that protect "we the people" from the greedy a-holes who only operate in their own self-interest.
 Thom talks to Michael Kirk about "The Warning". Will the markets crash again? (Transcript), The Thom Hartman Radio Program 10/19/2009.
 Inside The Great American Bubble Machine: How Goldman Sachs has engineered every major market manipulation since the Great Depression by Matt Taibbi. Rolling Stone, 7/2/2009.
 The Giant Pool of Money (Transcript), Hosted by Ira Glass. This American Life, 5/9/2008 (download mp3).
 Testimony of Brooksley Born, Chairperson Commodity Futures Trading Commission Concerning The Over-The-Counter Derivatives Market Before the US House of Representatives Committee on Banking and Financial Services. 7/24/1998.
9/8/2010 Update: Initially I reported that George W. Bush signed the CFMA into law. I was wrong. President Clinton signed the bill that included the CFMA (the $384-billion omnibus spending bill previously mentioned) on 12/21/2000. I apologize for the error, however, the fact that Clinton, a New Democrat, signed both bills does not change my conclusion - which is that the 2008 financial crisis was caused by the Conservative ideology of deregulation (or "neoliberal fiscal values"... whatever the hell you call them deregulatory economic policies spell economic disaster).