So How Should We Respond to Regulatory Failure?

Mark Thoma poses the question on his blog. Specifically, he notes:

I keep reading arguments that start with the fact that regulators have been imperfect in the past and use it to argue that we should eliminate (or substantially reduce) the amount of regulation that is imposed. However, just because regulators missed things in the past like Bernie Madoff, the financial meltdown, and the risks that BP was taking does not imply that regulation ought to be reduced or eliminated.

Agreed. And the conservatives beating the anti-regulation drum are getting tiresome. Let's do a 30-second review of regulatory failure and the financial crisis.

There were structural reasons for the failure:

1. We have a confusing hodgepodge of regulators (OTS, OFHEO, FDIC, SEC, OCC, Fed, etc.). Is it any surprise that regulatory issues fall through the cracks between their respective walled fiefdoms? Or that their regulatees go "regulator shopping," trying to find a sympathetic ear, with such a plethora of choices? Our Balkanized regulatory system is defeating us. What if the Food and Drug Administration, an acclaimed regulator, were broken up into the Vegetable Administration, the Fruit Administration, the Meat Administration etc. Is there anyone who thinks that would be more effective?

2. What needed to be regulated wasn't regulated. The huge shadow banking system wasn't on anyone's watch list. That needs to change by, say, yesterday. By rights the Fed is the best equipped to oversee shadow banking. But the Fed, we're learning, is an academic-minded, banker-sympathetic institution that enjoys gazing at its theoretical navel. These guys have no appetite for bare-knuckles regulation. So we'll have to figure out another way to do it, unless we can graft a pair of cojones onto this gelding.

There were cultural causes of failure:

1. Regulators didn't believe in their mission. Christopher Cox. SEC. Need I say more? And that's just one example. Under Bush, too many foxes were assigned to head The Association for the Safety of Chickens.

2. Regulators who didn't believe in their mission were, not surprisingly, uninformed about the latest innovations/questionable activities going on. Why spend your afternoon learning about credit default swaps/CDOs/some other complicated thing when your boss doesn't really care anyway and some really racy porno on the office computer is only a few mouse clicks away?

The single most important part of the solution, besides fixing the above:

Disable or at least severely crimp Wall Street's loophole-diving, rule-evading capability. Wall Street will always be a step ahead of the regulators in "innovating" cool new products that avoid tax payments and arbitrage capital regulations. We can shrug and meekly accept regulatory impotence. Or we can have a deeper conversation and realize it's time we started thinking outside of the box.

What about saying to the lords of high finance: any new product, whether intended for institutional or retail consumption, is illegal unless it has been approved by a new "Financial Products Safety Commission." Sure, Wall Street would howl. And such a requirement would quash some innovation. But, as we've seen, in this Brave New World of high finance, a lot of innovation is ultimately destabilizing and incredibly complex to no good purpose.

Or what about getting radical on accounting? Currently we let Goldman, Morgan Stanley et al do the limbo in a thousand creative ways to avoid capital constraints and make themselves appear more robust than they are. What if we told them the game has changed? That they are liable for criminal/civil penalties for using any accounting treatment that later is found not to accord with the spirit of existing regulations, as judged by say a "reasonable corporate accountant" or some such? Will this be chilling and cause more conservative accounting? Sure. But isn't that what we need after the free-for-all of the last decade?

It's fun to dream, though I'm not optimistic that any of my ideas will be adopted. We need big thinkers, big thoughts, ambitious men (and women!) to pull off meaningful change. And that's not what we have right now in Washington.

Was the Top Kill "Chance of Success" a Made-for-TV Number?

I'm always curious about how people use and abuse the tools of probability and statistics. In structured finance, slices of CDOs failed at a rate completely inconsistent with their high-level ratings. Okay, that's bad. But even worse is that when strips of CDOs started being packaged in other CDOs, not only did the level of complexity rise in the new products (the "CDOs squared"), but sensitivity to initial misrating -- and the implied low probability of default -- exploded. (The explanation of why this is so is a bit technical, but is worth checking out at Marginal Revolution's The Dark Magic of Structured Finance.)

Now Top Kill has failed.

Failed to plug the spewing oil pipe a mile below the water's surface in the Gulf of Mexico.

Failed to stop the environmental carnage taking place in the ocean and along Louisiana's shores.

Top Kill came with its own simple, straightforward probability: a 60 to 70 percent chance of success. The number gave us comfort -- BP was doing the right thing, because it had better than even odds of stopping the oil belching into the seawater -- but not too much comfort, because, obviously, the flip side of that rate of success is a 30 to 40 percent chance of failure.

I thought for a while about BP's public stance on the likely effectiveness of Top Kill, and thought some more, and finally concluded: Whether BP planned it this way or not, they came up with the perfect public relations probability of success. If Top Kill's chance of success was exhaustively and scientifically studied then ascertained to be a number anywhere between 10 percent to 90 percent, and BP came to me, and I was a seasoned PR professional, my advice would be:

"Say publicly that Top Kill has a 60 to 70 percent chance of success."

Why? Well, imagine it actually has a 10 percent chance of success. And BP admits that. What's going to happen? The public, media, elected officials -- everyone will turn on BP and excoriate the oil giant for not coming up with a plan that has reasonable odds of working. Then when Top Kill fails, everyone will roll their eyes and say, "Of course it was going to fail. It was a lousy plan with only a 10 percent chance of success."

Now imagine the converse: there is actually a 90 percent chance that Top Kill will achieve its objective. And BP announces that. If the operation then succeeds, there will be a sigh of relief, but also a sort of collective shrug. What did you expect? After all, a 90 percent chance is the equivalent of an uncontested layup in the game of basketball. But if Top Kill failed, reaction would be furious: how could they screw up something with a 90 percent chance of working?

Now where's the sweet spot? It's a percentage that aligns with "cautiously optimistic." It's a percentage a little north of 50 percent -- but not too far north. It's a percentage that, if you fail, you can say, "Well, we knew from the beginning there was a large chance we weren't going to be able to do this," but if you succeed, you can say, "This was far from a sure thing, but we pulled it off, and congratulations to the great team at BP blah blah blah." That sweet spot, quantified: 60 to 70 percent.

Who knows what the actual chances of success were? I'm not an engineer, but once I learned a bit about Top Kill, it sounded fairly dubious. It sounded more like an operation with a 25 percent chance of working -- if that.

What if we wanted to find out what BP's top executives, in their heart of hearts, really thought were the odds of pulling off Top Kill?

Here's one way: the top 50 BP executives could've been forced to stake half of their wealth to a "futures" market on whether or not Top Kill would work. Sort of like betting on a prize fight. They would be allowed to trade in and out of odds that would fluctuate (much as is done for a heavyweight championship fight) depending on which position the money is favoring, and by how much ... and eventually, we'd get something resembling what BP really thought were its chances of plugging the leak. So, for instance, one guy would be betting half his wealth that Top Kill had a 65 percent chance of working (and would collect 35 percent if he won) and another executive at BP would be wagering it had a 35 percent chance of working (and would collect 65 percent if he won).

A little fanciful, and you may wonder -- well, who cares if BP lied to us (note: I have no idea if they did, but wouldn't be surprised) on the odds? Actually we should care because when the odds are 10 percent, not 60 to 70 percent, there's much more pressure to develop a "Plan B" -- and "Plan C" and "Plan D" as well. And I kind of wonder if the odds were at say 65 percent of Top Kill being a success -- and BP executives could take that position, but it would cost half of their wealth to play -- how many would've gamely said, "I'm in on that bet!" My guess: very, very few.

So Why Did the Stock Markets Do a Bungee Jump on May 6?

What I find interesting about this story (and if you think bungee jump is hyperbole, you haven't looked at the intraday Dow chart) is there's a decent analogy: Imagine that murder victims start turning up in some small, idyllic U.S. city. Throats slashed, bodies mangled. Residents grow fearful. They start locking their doors all the time, glancing over their shoulders, going out less. The pressure mounts for police to find the killer, to calm a jittery city.

Now imagine a hit-and-run of sorts in the financial markets. Stocks make a sudden, vertiginous plunge, only to rapidly recover. Billions of dollars of wealth evaporate, then reappear. But how did this happen? Who caused it? Who profited from it? Could they do it again, and what if the next time the markets don't bounce back? And so investors grow fearful. They wonder: Should I continue to put more funds into volatile stock markets? Can they be trusted?

And the search begins, among the financial forensic teams, to find a culprit for the turbulence on May 6.

Except -- here's where our serial killer analogy breaks down -- was it really a lone actor? We'd like to think that; it fits into a more comforting narrative, with justice to be meted out if we find wrongdoing, and if we don't, we at least know where to take measures to fortify the system. Could it be Mr. Fat Finger Trader? The clumsy oaf who pressed "b" for "billion" on his keyboard when he meant "m" for "million"? Or here's the latest suspect, according to cbsnews.com:

Shares of money manager Waddell & Reed Financial Inc. fell Friday as it was identified as the stock trader that sold off a large number of index futures contracts during last Thursday's market collapse ...

Waddell's sale of 75,000 e-mini futures contracts in a 20-minute span on May 6 drew the attention of regulators, Thomson Reuters reported.

These "minis" are tied to the S&P. A futures contract is a way to bet on which way you think a market, stock or commodity is going to move; narrowly defined it's an agreement to buy or sell something at a set price on a set day in the future.

Now that 75,000 number does seem impressive. Well, at first. Wealthtrader.net tells us:

The current average daily implied volume for the E-mini is over $150 billion making it the most liquid trading derivative in the world.

What was the implied volume (I'm assuming "implied" refers to the contract's notional amount) for the 75,000-unit trade? Start with the notional value of an e-mini: $50 times the price of the S&P index. The high for the S&P that day was 2,407.8, so this trade was probably executed at somewhere south of that. Let's say the e-mini "dump" amounted to less than $9 billion of implied volume on May 6.

In other words, less than 6 percent of the typical daily volume came from this sale. Was this a big trade? Sure. Was it a little hard for the market to digest? Probably. Was it the real villain that we're seeking? I doubt it.

It's a media-ready story though. The storyline is simple. The government also surely realizes that finding a lone actor will make its job so much easier.

Unfortunately, a more sophisticated analysis of possibly the real culprit on May 6 has emerged, an analysis that is not so comforting. It suggests that our stock markets have a deep, systemic flaw. Paul Kedrosky at Infectious Greed nicely, and succinctly, laid out the argument in "The Run on the Shadow Liquidity System."

His view: good old-fashioned liquidity in the stock markets has been transformed in the age of supercomputers and high-frequency trading and algorithm-driven strategies:

... traditional providers of liquidity, market-makers and other participants, are not standing so ready to make the other side of the market. There are fewer traders prepared to make a market for the sake of market health. This is ... mostly because of what has happened with high-frequency trading, algorithms, and the like, which increasingly jump into the trading queue in front of and around orders, creating some liquidity, but also peeling pennies for themselves, frustrating market participants and heretofore liquidity providers...

The result:

... all of this changes market microstructure in insidiously destabilizing ways. For the first time we have large providers of this shadow liquidity, algorithms and high-frequency sorts, that individually account for large percentages of daily trading activity, and, at the same time, that can be turned off with a switch, or at an algorithmic whim.

Certainly we need to find what went wrong on May 6. We need to, to reassure the investing public that our stock markets are safe, fair, reliable -- places where you can feel comfortable putting a large chunk of your retirement nest egg. But, in the rush to judgment, we should be on guard against trying to largely pin the events on a lone actor, just to avoid a truth that is both complex and inconvenient.

Update: Actually, the fingerpointing at Waddell & Reed appears even more misguided than I thought ... you can blow up those calculations I made above; they were for a normal trading day. Turns out that during the 20-minute freefall on May 6, 842,514 e-mini contracts swapped hands (says Reuters). 75,000 is less than 9 percent of that number (and is probably only a few percent of the total for the day) ... again, it's sizable, but remove Waddell & Reed, and you still have a heavy, heavy volume.

Levin vs. Blankfein Faceoff

Some quick observations on the performance of Goldman Sachs' CEO at the roasting before Congress today:

1. Blankfein technically outpointed Senator Levin during the opening exchange, I think -- Levin doesn't have a particularly deep understanding of high finance -- but Goldman's chief lost the big point: how Goldman's actions appear to Main Street. Basically Blankfein condoned the practice of "betting against a product you're selling." That's the damning headline. Here's what it sounds like to Joe Blow: I sell you my car, and meanwhile, I bet with someone on the side that the car will break down within six months. No graceful way to put lipstick on that pig.

2. Notice how often Blankfein used the phrase "market maker" when facing off with Levin? Nice defense except -- Levin wasn't really interested in being tutored on what a market maker does. Levin was too busy cudgeling the head of the investment bank with the "conflict of interest" point. Main Street doesn't understand "market maker." It does, however, understand quite well "conflict of interest."

3. Is the successful beating up on Goldman a sign that the investment banks have been hoisted on the petard of the complexity they nurtured? They produced synthetic CDOs that the rating services couldn't understand and mis-rated; these same synthetic CDOs were so complicated, with so many sliced and diced mortgage-backed securities underlying, that arguably the disclosure standard should have been higher than normal, even for sophisticated investors; "synthetic CDOs" are raising a lot of eyebrows among members of Congress who are wondering -- "What the hell is the point of something that's this damn confusing? There's got to be a rat in this woodpile."

4. Senator McCaskill scored points, along with McCain, by noting that with a synthetic CDO, there's no real there there. It's just a side bet on actual assets that have already been sold, so you're not actually buying anything concrete. McCaskill shook her head in befuddlement before saying, "seems like a hamster in a cage trying to get to compensation." Blankfein defended the product with some mumbo jumbo about managing risk profiles. But what we're left pondering is McCaskill's image of hamsters manically tunneling through the wood chips for dollar bills.

5. Is Blankfein this dumb, or did he have a convenient "idiot" moment: Senator Pryor asked him about structured investment vehicles (actually, Pryor used clumsier wording, and then Blankfein hastily corrected him, knowledgeably saying "structured investment vehicles.") And then Blankfein goes completely ignorant, it seems, when asked why the bank would use an SIV. His reply: "I'm not sure." (Cue laughtrack at home.)

Ah, a little more cathartic financial-crisis theater ...

Financial Reform: Unsung Proposals that I Wish Were on the Table

We will be getting reform, and soon, it appears. Mike over at Rortybomb nicely table-izes six big areas/rules/issues to watch as legislation takes shape.

Maybe I'm just getting jaded, but what's on the table doesn't excite me much.

Transparency in derivatives through exchange trading? Yes, deeply important, but lobbyists will probably carve out small exemptions that Wall Street banks will then funnel as many of their trades through as possible. Too big to fail? Yeah, sure, cut 'em down to size, but Krugman is right on this one. Smaller banks, sufficiently interconnected and freighted with risk, can haul down the system too.

Hard leverage cap? I wholeheartedly support limiting leverage, but remember: leverage is a number. As Repo 105 and the continual perversion of accounting for capital under the Basel Accords show us, annoying numbers can be massaged. So under a hard leverage cap, I predict an explosion in "leverage-friendly financial innovation." Just wait.

So what is there to do? It won't happen during this round -- maybe the system has to seize up again, horribly, in the next few years -- but I wish we would look more at meta-type solutions. Here are some unsung proposals that I wish would get more consideration:

1. Contingent debt. This comes from the Republican side of the aisle, and though I confess to not having studied in great detail how the idea would work, I like the gist of it: banks hold a chunk of bonds that, when they come under duress, automatically convert to equity, boosting their cushion of capital. The percentage of such debt could be adjusted, if need be. The concept is market-oriented, as investors help police the institution's risk-taking. As Greg Mankiw writes:

This contingent debt would also give bankers an incentive to limit risk by, say, reducing leverage. The safer these financial institutions are, the less likely the contingency would be triggered and the less they would need to pay for this debt.

2. Financial transaction tax. I know, I know: to have efficient and liquid markets, you want participants to be able to trade as freely as possible. But I think that, sometime over the last decade or two, the amount of trading vaulted through the point of maximum efficiency and into something else -- something born of supercomputers run amok that just encourages volatility and instability. We need to slow down the financial machine a little. A small tax might encourage the bloated financial sector to shrink a little (a good thing) and raise money for our deficit (also a good thing).

3. "Deep clawback." Misaligned incentives are clearly an issue. And there'll be some feeble attempts to better align pay with long-term performance, but little will probably change. What we need is a way to get deeper into the pockets of bank executives and directors who allow their companies, through negligence or a desire for risky growth, to spin out of control, endangering the financial system. It sounds radical, but let's consider putting their personal houses and cars on the line -- or at least make them easier to prosecute criminally. Then behavior will change. If bankers hate "deep clawback," there's an alternative: Regulate the financial industry like a utility.

4. Move away from a rules-based to a principle-based system. This would be tremendously useful. With a squadron of lawyers and accountants in tow, every major Wall Street bank knows how to game and evade and twist every single rule that's been thrown at them. They will ALWAYS beat a rules-based system. But what if, in certain places in our laws, we used the language "what a reasonable accountant would ..." or something similar? This would stop them dead in their tracks. Because then they can't simply say in defense, "Well, you don't explicitly prohibit what I'm doing, so it must be okay."

So those are some of my favorite ideas that aren't seriously part of the discussion, unfortunately. We will get reform. It may not be that impressive. But if the financial system blows up again -- and relatively soon -- someone in Congress may get the idea that what we really need is more meta-reform -- and less tinkering around the edges.

The Goldman vs. SEC Story That No One Has Written ...

When I saw that the SEC had finally decided to go after Goldman Sachs, I immediately rejoiced: Yes. At last. What the hell took you so long?

Then, when I started sifting through the strange case of Abacus 2007-AC1 (fairly trips right off the tongue eh?), I had a "pullback" moment, especially after seeing Goldman's defense (see the bottom of the page).

First, I have no love for Goldman. Far from it. I think it's rather creepy the way they release their ideological spores throughout our political system by practicing "civic responsibility" and occasionally shipping a handful of executives off to the Treasury Department, to keep the U.S. approach to the financial system appropriately capitalist at all times. But this Abacus case -- ah well, it doesn't make sense, unfortunately. I think the SEC will lose unless Goldman wants to pay up to make the bad publicity go away.

Here's why.

Read the SEC complaint. Read Goldman's denial. Observe the Venn diagram point where the two fact sets overlap in a significant way.

From Goldman: ACA had the largest exposure to the transaction, investing $951 million.

From the SEC: On or about May 31, 2007, ACA Capital sold protection or “wrapped” the $909 million super senior tranche of ABACUS 2007-AC1, meaning that it assumed the credit risk associated with that portion of the capital structure via a CDS in exchange for premium payments of approximately 50 basis points per year.

Think about that for a second. Whether it's $909 million, $951 million or $927.33311 million -- ACA, both sides agree, had a huge exposure to this deal. This was a $2 billion synthetic CDO. The German bank IBK, the other banner investor, only had $150 million of exposure (though to riskier tranches, true).

So ponder this a bit: why would ACA, whose duty was "portfolio selection agent," allow itself to be duped into stuffing the CDO sausage with the RMBS equivalent of rat tails and nose parts, if it was so hugely on the hook for the losses? Because consider this (all part of the SEC's own fact set in its complaint):

1. Paulson was a known short on subprime mortgages at this point. In 2007, the synthetic CDO was set up. Here's what happened a year earlier, according to the SEC:

Beginning in 2006, Paulson created two funds, known as the Paulson Credit Opportunity Funds, which took a bearish view on subprime mortgage loans by buying protection through CDS on various debt securities.

2. ACA wasn't some newbie from Canoobie when it came to setting up CDOs. The SEC tells us:

ACA previously had constructed and managed numerous CDOs for a fee. As of December 31, 2006, ACA had closed on 22 CDO transactions with underlying portfolios consisting of $15.7 billion of assets.

And, what's more, ACA knew that Paulson was heavily involved in helping pick the securities for Abacus. Again, the SEC:

On February 5, 2007, an internal ACA email asked, “Attached is the revised portfolio that Paulson would like us to commit to – all names are at the Baa2 level. The final portfolio will have between 80 and these 92 names. Are ‘we’ ok to say yes on this portfolio?”

So get a load of this: You're ACA. You're among the best at structuring CDOs. You should be able to evaluate the mortgage bonds being assembled for the security pretty well. You should know how the risks work. You should also know what's going on in the larger market: who's bullish on these things, who's bearish (Paulson, Paulson, Paulson).

And you swallow risk on about half of a synthetic CDO that you let Paulson fill with, um, crap?

I think there's more to this story than meets the eye. My guess is that ACA is much more guilty (of stupidity or something else) than anyone is suggesting. I think (1) they got caught being idiots, essentially making a longish bet on residential mortgages by insuring the super-senior tranche of the CDO (this is the last one to take losses, when the defaults start to mount) (2) they may have been making a cynical play, on the bottom part of the synthetic CDO, letting Paulson pick some crap, thinking that the super-senior tranche would be amply protected if the housing market deflated a little OR they were simply grossly negligent and unbelievably stupid by not reviewing the bonds that a known subprime-mortgage short was stuffing into a CDO they were insuring almost half of.

So I'm doubtful the SEC will win this one, unless there's something big I'm missing. But I think the SEC's case will be the perfect stalking horse for achieving the financial system reform that we do need pretty badly -- so maybe it's not so bad to put Goldman on the rack for a year or two.

Must-Read Story of the Morning

I've grown a little numb to the shocking revelations of this financial crisis, but every so often, a story will drop my jaw and make me go "wow."

Today's candidate: Pro Publica's The Magnetar Trade.

One of the authors, Jesse Eisinger, you may remember from the Wall Street Journal. I admired his stuff during his tenure there. He impressed me as a smart guy who liked to dig -- and then dig some more.

The "Magnetar trade" Yves Smith apparently has written about at some length in her new book Econned. She has mentioned Magnetar a few times on her blog, without going into too much detail (I'm sure her book does, and I'm dying to read it. Where's my review copy, dammit? :))

Right now, Magnetar looks like the scariest enabler of this subprime bubble I've seen so far. Of course Michael Lewis looked at the enabling role the shorts played in his The Big Short. But the players he interviews were small. And they were only indirectly feeding the subprime lunacy.

To wit: as long as there was appetite for products packed with questionable home mortgages (the securities known as CDOs, or collateralized debt obligations), his shorts would happily take the other side of the trade. But, as far as I can tell, they weren't actively instigating the creation of these crap-congested things.

Magnetar apparently had a more clever, and dangerous, approach. It offered to buy the lousiest portions of the CDOs (the so-called "equity tranches" -- they're not technically equity, but tend to behave like equity, thus the name). For a high risk investment, the equity tranche is like the canary in the coal mine, an early-warning signal of trouble ahead. Or, to mix animal metaphors: A fish rots from the head down. A CDO rots from the equity tranche up.

So the equity tranche can be hard to place, especially for a shaky investment. And if you can't place it, then the CDO just doesn't get created. So was Magnetar crazy?

Crazy like a fox, it turns out. Because the hedge fund turned around and shorted the entire CDO.

How it made money initially puzzled me, but as far as I could tell (Eisinger keeps it sketchy, presumably because he's writing for a general readership), Magnetar's equity investment was a rather small piece of the CDO, and since the hedge fund was going short on the entire security, it stood to gain more than it would lose. The disturbing brilliance of this strategy: while the CDO is "in the clover," making money, the income thrown off by Magnetar's equity tranche funds its short bet on the CDO. So the fund solved the classic short problem of "how long can I afford to hold out if this thing doesn't blow up soon?"

Read the story. I have a feeling that "Magnetar," before this a name that's been largely under the radar, is about to start attracting a little (unwanted) attention.

Update: My further reading leads me to believe that Magnetar was buying credit-default swaps against other slices of the CDO (larger slices than what it owned certainly), though not the entire CDO.