Even before President Trump sent his memorandum to Treasury ordering an OLA review, the global regulators to whom I talked at the IMF spring meetings were worried. As a Bloomberg article today notes, “crises aren’t confined by national borders.” Reflecting the bank focus of these sessions, the regulators were particularly perturbed about the impact of any OLA rollback on the cross-border resolution of internationally-active banks. Not surprising – the White House order and Secretary Mnuchin’s accompanying statements were all about too-big-to-fail banks. However, there’s more to ending TBTF than rewriting the Bankruptcy Code – useful though that is – or realigning what’s in or out of an insured depository. Think Fannie, Freddie, AIG, Lehman, Bear Stearns, and Reserve Primary Fund and remember – systemic risk doesn’t just come from banks. Think all of these plus Herstatt, 9/11, and Fukushima and remember something else – systemic failure isn’t always the result of miscreant financiers. Remember all of this and then be afraid if OLA – untried, untested, and still incomplete as it is – is eliminated in the absence of stringent resolution standards for companies that threaten financial stability, especially in the absence of sufficient Federal Reserve emergency-liquidity authority.
The focus on OLA as a remedy to TBTF banks is in fact ironic. Of all the systemically-important financial institutions, giant U.S. banks have been subject to the greatest resolution preparation: a raft of new rules designed to cure their “negative externalities,” total loss-absorbing capacity, living wills often subject to unflattering scrutiny, and contractual automatic stays. Even far smaller banking organizations are given the SIFI once-over in the U.S., at least when it comes to many of the prudential rules and resolution requirements. The experience of the FDIC and its sweeping authority to shutter an insured depository should also go a long way to ending the backdoor bailouts of subsidiary banks we saw during the last financial crisis.
Is the bank-resolution framework perfect? Of course not. But something still beats nothing. What of the rest of the financial institutions that could quickly assume systemic dimensions in a crisis?
Many of them are exempt not only from prudential rules, but also anything like resolution-planning, stress-test, and contingency-planning requirements. It’s widely assumed that OLA only applies to big bank holding companies and designated SIFIs, but the law in fact is clear: any entity found to pose a systemic threat by its primary regulator can be resolved under OLA as long as Treasury concurs with this determination. The President need not agree, but Treasury must consult him or her and probably would not act without concurrence.
Given the lack of like-kind prudential and resolution rules and the inability of non-banks to access non-emergency Fed liquidity, OLA is actually far more of a safety net for non-banks than it is for the largest banking organizations. And, since they needn’t pay for it in advance with all of the rules applied to big banks, it’s not only a safety net, but also a very cost-effective one for any U.S. financial company whose counterparties get the willies.
What would we do next time around for an AIG? The Fed certainly couldn’t come to its aid given the Dodd-Frank constraints on its 13(3) powers, let alone those contemplated in the Hensarling bill. Assume that it’s no longer a SIFI subject to FRB regulation – another memo from President Trump presses for this. Freed from all of its living-wills and related SIFI standards and in the absence of OLA, the AIG next time would come under state guaranty associations. These have been working hard since the crisis to coordinate better and ready themselves for systemic distress, but it’s far from certain that these industry-funded backstops could handle an interstate failure – let alone an international one – that isn’t quickly resolved by acquisition.
What about the Bear Stearns next time? Forget about JPMorgan coming to the rescue. Even if it wanted to, the new rules essentially say it can’t. A Lehman redo? Same old systemic crisis although here changes to the Bankruptcy Code could make a big difference. As with a Bear Stearns rerun, changes to the Code would avoid the counterparty meltdown feared in the first case and all too evident in the second. Still, there isn’t a systemic-resolution framework for U.S. securities firms outside the SIPC backstop for small investors never intended to handle systemic risk. The real systemic bulwark for U.S. securities firms isn’t a prudential or resolution framework – it’s the fact that most of them were assumed by big banks during the crisis and none has yet emerged to take their place.
Giant asset-management companies pose an array of resolution risks despite the new liquidity standards imposed on MMFs. Many of these derive from operational risk because, as these companies are prompt to point out, investors bear solvency risk. Central counterparties are increasingly indispensable hubs of global finance but, as with major asset-management companies, they are also beyond the reach of the Fed and most of the resolution rules governing their big-bank members.
OLA isn’t ideal and it isn’t cheap and it isn’t even finished for big banks, let alone any of these non-banks. But, without it, what have we got? A U.S. financial system that had better hope for the very best.