Surprise, surprise! Last week, the Justice Department announced it wasn't going to prosecute Goldman Sachs or its employees for its shady activities during the mortgage crisis. The same day, Goldman disclosed in a regulatory filing that the Securities and Exchange Commission (SEC) had dropped an investigation into a troubled $1.3 billion residential mortgage-backed securities deal launched in 2006.
Time is running out for prosecutors to file cases against big banks for activities that triggered the 2007-2009 financial crisis, since statutes of limitations set deadlines for launching prosecutions for fraud and other financial crimes. If prosecutors don't start lawsuits before these deadlines expire, the big banks will, once again, have got off scot-free.
Failure to pursue banks, culpable management and employees for their complicity in causing the financial crisis is one of six bad policies that ensure we're likely to see another bust-up of a big U.S. bank – sooner rather than later.
Who's going to pay the price for such a failure? We will, of course. Uncle Sam's policy of allowing banks to get too big to fail means we'll all be left holding the bag when that collapse occurs – and another banking bailout is necessary.
1. Too big to fail
Thirty years of financial deregulation have seen unprecedented concentration of the financial sector. Before, financial firms were limited both in where they could do business and the types of business they could do. This prevented a big banking blowup in the U.S. for more than 50 years.
Banks used to be limited to owning branches within individual states. When a bank got into trouble – and some did – losses stayed confined. Regulators such as the Federal Deposit Insurance Corporation (FDIC) could clean up the mess and preserve depositors' assets, without unduly burdening taxpayers. But after changes culminating in the Riegle-Neal Interstate Banking and Branching Efficiency Act in 1994, those restrictions vanished.
So some banks got steadily bigger, while the overall number shrank. From 1990 to 2011, the number of commercial banks halved, from about 12,000 to 6,000, according to the St. Louis Federal Reserve Bank.
Once upon a time, the 1933 Glass-Steagall Act limited banks to either commercial or investment banking functions. Brokerage activities were restricted, and the operations of insurance firms constrained. Problems in one area of financial activity didn't spread to another. Bankers could not speculate with small depositors' money. Banks competed with each other, which led to better lending terms. And they didn't get too big, so when they screwed up, they paid the price. They failed.
In the 1980s, financial institutions claimed that Glass-Steagall and other restrictions prevented U.S. banks from competing head-to-head with foreign banks. They lobbied hard and regulators began to allow the restrictions slowly to erode.
Financiers like Sanford Weill, the head of the Traveler's Group, couldn't wait for U.S. laws to change. In 1998, he masterminded the takeover of Citicorp, a merger which combined commercial banking, investment banking, and insurance functions in one firm in a way that was technically illegal. But the merged company got a grace period – during which Weill deployed formidable lobbying muscle to dismantle Glass-Steagall. It worked. In 1999, Congress passed the Financial Services Modernization Act of 1999 and finally buried Glass-Steagall.
Last month, Weill gave an astounding interview to CNBC in which he admitted that u201CWhat we should probably do, is go and split up investment banking from banking, have banks be deposit takers, have banks make commercial loans and real estate loans, have banks do something that's not gonna risk the taxpayer dollars, that's not gonna be too big to fail.u201D
That's a bit like Jesus Christ returning to announce that introducing Christianity was all a big mistake. The reaction from the financial mafia has been appropriately apoplectic.
The net effect of all these rule changes — like the one that enriched Sandy Weill — was that banks became too big to fail. Fear that their failure has led regulators to go soft on the big banks, and to do anything to keep them alive.
2. See no evil, hear no evil
While the financial system was consolidating, another threat was looming: the u201Cshadow banking systemu201C was being created. Another New Deal reform, the Investment Company Act of 1940, imposed heavy restrictions on investment companies, which were intended to protect investors from excessive risks, fraud and scams.
But regulators decided that sophisticated investors, including the wealthy, pension funds and charities, had enough financial savvy to be allowed to invest in shadow banks that were either lightly regulated, or not at all. Such alternative investment vehicles, including hedge funds and private equity funds, were exempt from investment restrictions.
In the last two decades, there's been an explosive growth in shadow banks. The size of this unregulated system has increased fivefold and today is larger than the regulated financial system.
The rationale? Sophisticated investors, it's claimed, can look after themselves, and therefore the largely unregulated funds that cater to them don't pose any risks to the rest of us. But that's not proven to be the case. And, surprise, surprise, when such firms fail, guess who pays the price? We do.
3. Calling in the cavalry, but giving them the wrong directions
Once the U.S. decided to deregulate the financial sector, and banks got bigger, it was inevitable that the government would be called in for a rescue. Most of us were aware that in 2008, the government stepped in to bail out big banks that were destabilized by Lehman Brothers' collapse and by the bad derivatives bets entered into by AIG Financial Products. The world financial system was at the brink, we were told, and the Troubled Asset Relief Program (TARP) was necessary to save the system.
But a decade before this bailout, U.S. financial regulators were involved in a rescue of a shadow bank, which helped set the stage for TARP. In 1998, the Long-Term Capital Management (LTCM) hedge fund got into trouble by placing heavily-leveraged derivatives bets during the Asian financial crisis. Hedge funds are allowed to operate with scant regulatory supervision on the rationale that they cater only to sophisticated investors who could bear the risk.
The Federal Reserve changed its mind when it realized that LTCM's failure was a threat to the global economy. So the Fed corralled major banks in a room, and told them to fix the problem. They dismembered LTCM and took its underperforming assets onto their books.
The Fed's role in this rescue sent the wrong message: that the government would be there to fix problems, and that banks and shadow banks alike didn't have to work too hard to manage risk and to protect themselves from contagion.
Sometimes you want government intervention to quell a banking panic, and to shore up or reboot a failed banking system. Banks need to be seized, or at minimum assessed by a neutral observer, and their balance sheets cleaned up. Investors, too, must pay a price for making foolish investment choices. Typically, existing shareholders are wiped out, while bondholders see their promises of guaranteed debt payments converted to more speculative shares of stock.
We used to know how to do this. The Depression-era Reconstruction Finance Corporation seized failing banks, cleaned up their balance sheets, and later transferred these institutions back to private ownership. The Resolution Trust Corporation followed similar policies in cleaning up the savings and loan crisis of the 1980s and early 1990s. More recently, the Swedish government nationalized failing banks in the 1990s. Managers were penalized, and shareholders and sometimes bondholders took losses.
But the U.S. forgot all these sound policies in the 2008 TARP. The government provided cash to stabilize shaky financial institutions, guarantees to bondholders, and tax breaks. It also purchased some risky assets. But it didn't get much in exchange. Regulators didn't demand that banks open their books and clean up their balance sheets. The big banks continued as going concerns.
Bank managers paid no price and mostly kept their jobs. They paid themselves bonuses rather than using capital to shore up their banks. Bottom line: Managers, shareholders, and bondholders didn't fully pay for their folly.
The government further erred by nudging sound banks to take over failing ones. This policy led to further consolidation of the banking system, making surviving banks even bigger! Finally, the government failed to take action to address the problems that let big financial institutions get into trouble in the first place.