Fannie and Freddie fallout

Freddie Mac and Fannie Mae Gosh, I thought the political coalition that supports inefficient light rail systems was formidable. But that coalition can’t hold a candle to the one that the W$J’s Paul Gigot says (non-gated version here) protected the dubious quasi-public structure of Freddie Mac and Fannie Mae:

The abiding lesson here is what happens when you combine private profit with government power. You create political monsters that are protected both by journalists on the left and pseudo-capitalists on Wall Street, by liberal Democrats and country-club Republicans. Even now, after all of their dishonesty and failure, Fannie and Freddie could emerge from this taxpayer rescue more powerful than ever. Campaigning to spare taxpayers from that result would represent genuine "change," not that either presidential candidate seems interested.

Meanwhile, Cato’s Gerald O’Donnell points out that the proposed bailout represents "casino capitalism" for taxpayers:

Treasury Secretary Henry Paulson’s bailout plan for mortgage giants Fannie Mae and Freddie Mac .  .  .  prompted Sen. Jim Bunning (R-Ky.) to remark that he thought he’d woken up in France. Yes, socialism is alive and well in America – thanks to a Republican Treasury secretary.

Absent from Paulson’s plan is any protection for taxpayers. They’ll fund the downside if losses mount at the two mortgage giants. But if Fannie and Freddie recover, stockholders and management gain. Call it "casino capitalism" – taxpayers bankrolling management high rollers.

The plan doesn’t ask stockholders or management to suffer for their financial indiscretions. The players who put their companies in jeopardy get to stay in charge – Paulson says he isn’t looking for "scapegoats." Someone should remind him that capitalism without failure is like religion without sin.

The Usual Suspects

Bear Market Given the recent turmoil in the financial markets, it’s a bit hard to keep up with the morality plays and the villains.

After the Enronesque fall of Bear Stearns, the villains of the moment were the two Bear Stearns executives who were indicted for not throwing in the towel timely.

Then, over the past several weeks, speculators who facilitate markets to hedge energy costs became targets of the demagogues.

And now this week, with the demise of Fannie Mae and Freddie Mac, SEC Chairman Christopher Cox issued an emergency order attempting to curtail naked short-sellers of the stock of the embattled government sponsored entities and also the stocks of Lehman Brothers, Goldman Sachs, Merrill Lynch and Morgan Stanley.

What on earth is Christopher Cox, a supposedly sophisticated securities lawyer, doing issuing orders that hinder the efficient functioning of markets?

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Be careful, Mr. Wagoner

General Motors General Motors CEO Rick Wagoner made some interesting public comments this past week in Dallas regarding the besieged automaker’s bankruptcy prospects:

"Under any scenario we can imagine, our financial position, or cash position, will remain robust through the rest of this year," Mr. Wagoner said Thursday while in Dallas to speak to a business organization. He said the company has plenty of options to shore up its finances beyond 2008, although he declined to outline them.

The comments failed to boost investor sentiment as GM shares fell 6.2% to $9.69 in 4 p.m. New York Stock Exchange composite trading Thursday. The stock has been trading at its lowest levels in more than 50 years as concerns mount about the company’s financial position amid a steep decline in U.S. sales.

GM and other U.S. auto makers are reeling as the slow U.S. economy depresses sales and as high gasoline prices push many would-be buyers to small, more-fuel-efficient vehicles and away from the higher-margin SUVs and trucks. Through June, for instance, GM’s U.S. sales slipped 16%, more than offsetting strength in overseas markets.

GM has about $24 billion in cash but is burning an estimated $3 billion a quarter, prompting talk that it will need a significant cash influx to get to 2010.

"We have no thought of [bankruptcy] whatsoever," Mr. Wagoner said in response to an audience question during the Dallas event.

Now, I am not involved with GM, but I have been involved over the past 30 years in my share of big company reorganizations. Contrary to Wagoner’s statements, GM has almost certainly "thought" of bankruptcy and GM management probably continues to examine whether a reorganization under chapter 11 of the Bankruptcy Code makes sense for the company, which it just might. Frankly, not to examine such alternatives would be egregious mismanagement. Any seasoned investor knows this and the market is clearly pricing that risk by lowering the company’s stock price.

So, despite all that, if GM ends up in bankruptcy, is Wagoner at risk of being indicted for misleading investors regarding the company’s ongoing bankruptcy analysis? Stated another way, will Wagoner be indicted for breaching the obligation to throw in the towel?

Public financing of a private boondoggle

GM Volt The WSJ’s Holman Jenkins splashes some cold water on the suggestion that General Motors’ Volt automobile will have much of a positive impact either environmentally or on GM’s bottom line:

At best, the Volt will be an affluent family’s third car. It will have to be plugged in for six hours a day – i.e., it will be a car for a suburbanite with a sizeable garage wired for power. It won’t be a car for a city dweller who parks on the street or in a public lot. It will travel 40 miles on a six-hour charge. After that, a small gas motor will kick in to recharge the battery while you drive. Some reports claim the Volt will get 50 mpg in this mode, but that’s hallucinatory: If using a gasoline engine to power an electric motor were so efficient, the streets would be full of such vehicles. (Our guess: The car will be lucky to get 15 mpg under gasoline power.)

Notice that, even today, some people continue to buy SUVs capable of hauling eight passengers, the dog and groceries, though they spend most of their time in the car driving alone. Customers value flexibility in their vehicles. For a car with the Volt’s narrow usability to sell would require an unlikely revolution in consumer behavior, especially if gasoline prices aren’t going to $10 a gallon.

So why is GM placing so much emphasis on development of an auto that is not particularly competitive in the marketplace? The answer: government financing:

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The Obligation to Throw in the Towel

So, the shoe finally dropped on the two Bear Stearns executives who managed the two Bear hedge funds that imploded in mid-2007. A copy of the indictment is here.

As I read the indictment, the government is contending that Messrs. Cioffi and Tannin were required to disclose to investors immediately in February and March, 2007 that the two of them feared that the two funds might be “toast” even as Cioffi and other Bear executives were fighting market pessimism toward the funds and urging investors to maintain trust in their ultimate financial merit.

So, with their careers riding on whether the funds would survive, Cioffi and Tannin were supposed to throw in the towel and light a match to the funds by disclosing to the market their concerns about the heightened risk of a meltdown.

Stated simply, according to the Feds, about the time you think your trust-based business might be toast, it’s already too late. Inasmuch as you are required to disclose to the markets that you think the business might be toast, that disclosure will understandably prompt the market to lose trust in your business, which means that your company is kaput.

Thus, the smart thing to do is never to voice (and sure as heck don’t write any emails!) your concern to anyone regarding the downside risk of your business. That lack of communication might dampen internal company analysis regarding risk of loss, but what the hell — at least you won’t get indicted for misleading investors when your company fails.

Just another chapter in the twisted policy implications that result from regulating business through criminalizing businesspeople’s risk-taking. Larry Ribstein has typically insightful observations along the same lines, while Bess Levin muses over the Feds’ suggestion that investors didn’t know exactly what they were buying when investing in Bear’s funds.

Criminalizing Failure

play_risk As Larry Ribstein reports, the Enron prosecutorial veterans are already picking up the usual suspects in regard to the Bear Stearns meltdown.

Meanwhile, John Carney wonders whether any investors really feel safer as a result of these criminal probes?

And although Bear struck out, do we really want to deter potentially beneficial risk-taking by criminalizing it when it fails?

Finally, wouldn’t it make more sense to allocate the resources spent on criminalizing such risk-taking toward educating investors in trust-based businesses on how to hedge their risk of loss?

Bill King’s Story

As Republican presidential nominee John McCain is doing his best to stoke public prejudice against job-creators and wealth builders, longtime Houston lawyer and businessman Bill King is promoting his new book, Saving Face (Somerset 2008), which is King’s personal history of the savings & loan crisis of the late 1980’s and early 1990’s.

Ironically, McCain knows quite a bit about the back story to King’s book.

McCain was one of the Keating Five, the Congressional supporters of former Lincoln Savings & Loan chairman and CEO Charles Keating, who was convicted of various corporate fraud crimes and served four years in prison as a result of highly-stoked but substantively-thin prosecutions that were ultimately overturned on appeal.

Keating eventually pled guilty to a single count of bankruptcy fraud to limit further prison time and insulate a family member from prosecution. For a thorough review of the mendacity of the Keating prosecutions, pick up a copy of Dan Fischel‘s book, Payback: The Conspiracy to Destroy Michael Milken and his Financial Revolution (HarperCollins 1995).

King’s story is the Houston version of Keating’s and a precursor of the prosecutorial abuse that the post-Enron criminal prosecutions in Houston generated a decade later.

Not only does King do an excellent job of explaining the financial, economic, regulatory and political underpinnings of the S&L crisis, he explores how the government wielded its prosecutorial power indiscriminately to serve up scapegoats to a salivating mainstream media and an ill-informed public.

King is thinking about running for Houston mayor in 2009 and, based on the depth and perspective that he exhibits in Saving Face, King would probably be a fine mayor. The following is King’s overview of Saving Face, which I recommend highly:

These days I find myself cringing when I hear media accounts that fraudulent and greedy mortgage brokers are responsible for all of the woes of the current housing bubble and the sub-prime defaults. I do so because the recriminations are an all too familiar echo of an earlier debacle. One to which I had a ring-side seat.

Many of you who have known me for some years know that shortly after law school I made the somewhat less-than-fortuitous career decision of joining a law firm that specialized in representing savings and loans.

At the time it did not seem like a bad decision. The Houston real estate market was enjoying an unprecedented boom and the savings and loan industry had just been deregulated. Investors were clamoring to get into the business.Within a few years of joining the law firm, I began investing in savings and loans and related businesses.

By 1986, notwithstanding that I had started with barely two nickels to rub together after working my way through law school, I had built a small, but respectable, business empire consisting of savings and loan holdings, title companies, and real estate investments.

However, within a couple of years, everything I had built evaporated into thin air.The Houston market collapsed when the price of oil fell from over $34 per barrel in 1984 to $9 the next year. It did not recover to above $20 until 2002.

Manufacturing jobs in the region fell by nearly 50% and for the first time in history Texans’ personal income declined. Bankruptcies in Houston tripled between 1983 and 1987. All but one of Texas’ major banking holding companies failed. Harris County’s population actually declined from 1985 to 1989. It was the first and only time in Houston’s history that it has lost population.

If you did not live through these times, the magnitude of melt down is hard to imagine.It is certainly difficult to lose everything that you have worked for, but the environment that existed in the late 1980s and early 1990s had an even more ominous aspect.

As the public became increasingly aware that the savings and loan crisis was going to take a major taxpayer bailout, there were ever more strident cries to hold someone responsible.

The complexity of confluence of interest rates, regulatory policy, oil prices, the Tax Reform Act of 1986, and the collapse of large portions of the real estate market that actually explained the collapse was too great to be reduced to sound bites. Politicians and bureaucrats began pointing the finger at those in the industry, and soon, the “S&L crook” was born.

And there were enough egregious cases for the politicians and bureaucrats to hold up as “proof” of their argument that the “S&L crooks” caused the crisis. The proposition that fraud and insider abuse had sunk the savings and loan industry was eventually discredited.

In 1993, a National Commission concluded that fraud had caused less than 15% of the total problem. But in the heat of the moment, there was little interest in cool, scholarly reflection on the problems of the industry.

As the 1980s came to a close I watched as many friends, associates and former clients in the S&L industry were swept up in a maelstrom of civil and criminal litigation. Naively, it never occurred to me that I might be caught up in such a dispute as well. But I was.

Eventually, I prevailed in my battle with the regulators, but as you might imagine, it was an experience that left an indelible mark and from which it took me many years to recover.

For some time I have been jotting down notes for a book about these experiences. For a couple of reasons, I recently decided to finalize such a book.

First, as many of you know, I am considering a candidacy for mayor of Houston in 2009. We all know too well that “negative campaigning” has become the standard today. Certainly going bankrupt in the savings and loan business will provide potential opponents ready ammunition. So first and foremost, I want to put the issue squarely on the table.

If I decide to become a candidate, there will undoubtedly be some voters who will be troubled by these experiences. Some will believe difficult times such as the ones I went through are a crucible that better prepares a person for leadership. Most, I expect, will simply want to be advised of the facts so that they can be weighed with other issues bearing on their decision.

But beyond the potential political implications, the troubling similarities between what I saw in the S&L collapse of the 1980s and the sub-prime crisis playing out before us now demands some consideration.

It is a well worn adage, but nonetheless true, that if we do not learn from our history, we are doomed to repeat our mistakes. Perhaps relating what I saw during the saving and loan industry collapse will provide some perspective on the current financial crises.

So for these reasons I have written Saving Face: An Alternative and Personal Account of the Savings and Loan Debacle. I have attempted in the book to tell the story of what I experienced during these times, but at the same time, to place my experiences in a larger, national context. I believe my story has some relevance to anyone experiencing trying times generally, and certainly to those in the Houston real estate industry, many of whom lived through these times as I did.

The Bear Stearns lesson

Bear Stearns building at night Yesterday brought the final installment of Kate Kelly’s extraordinary threepart W$J series on the fall of Bear Stearns (Kelly also contributed to today’s story on Bear’s final shareholders meeting). My goodness, was Kelly a fly on the wall over at Bear’s office during all of this? Dear John Thain has an interesting critical analysis of the series here, here and here, while Larry Ribstein and John Carney point out that Kelly apparently fell for what has become known as "the loophole legend" in regard to JP Morgan’s buyout of Bear.

Although all the articles in the series are fun reading, Kelly’s most insightful observation comes from the second installment:

It was the beginning of a frantic 72 hours that would bring the Wall Street firm to its knees and threaten the stability of the global financial system.  .  .  . The brokerage’s sudden fall was a stark reminder of the fragility and ferocity of a financial system built to a remarkable degree on trust. Billions of dollars in securities are traded each day with nothing more than an implicit agreement that trading partners will pay up when asked. When investors became concerned that Bear Stearns wouldn’t be able to settle its trades with clients, that confidence evaporated in a flash. Trading partners, eager to avoid losses, began to disappear almost as quickly. That further fueled rumors of trouble. Some partners, spotting a chance to profit, made bets against Bear Stearns, helping accelerate its demise.  .  .  .

Even after the Bear Stearns lesson, our understanding of the pesky trust-based business model is still not what it should be. Improving the investing public’s understanding of how best to hedge the risk of investing in trust-based businesses is a far more productive response to Bear Stearns-type business failures than this

The instinct against the money-makers

southwest planes I swear, you can’t make this stuff up.

As Larry Ribstein cogently explains, Southwest Airlines has taken advantage of futures markets over the past several years to hedge its fuel costs (previous posts on Southwest’s hedging program are here). That hedging program has been one of the major factors in allowing Southwest to remain one of the only profitable U.S. airlines. Along the same lines, Bloomberg’s Matthew Lynn explains how such markets provide an essential function in re-directing resources in the overall economy.

Meanwhile, Congress is trying to hamstring the very markets (see also here) that provided Southwest and many other businesses with the platform on which they hedged fuel-cost and other business risk. The wealth and lower prices generated from those hedges is not inconsequential.

Finally, the Justice Department continues its advocacy of an effective life sentence for one of the men primarily responsible for developing the robust markets that facilitate Southwest and others’ wealth creation for shareholders and lower costs for customers.

And these folks in Congress and the Justice Department are supposed to be representing our interests?

The cost of Spitzerism

AIGOn Friday, February 11, 2005, shares of American International Group closed at $73.12 per share.

Last Friday, after Eliot Spitzer and the meltdown in the subprime mortgage markets, AIG’s shares closed at $39.34 per share.

James Freeman of the Wall $treet Journal, one of the only mainstream media outlets to expose Spitzer’s extortion of AIG for what it truly was, reports here on the massive reduction of wealth to which Spitzer’s unbridled regulation of AIG contributed greatly. Larry Ribstein, who was one of the first bloggers to shed light on this injustice, surveys the economic carnage here.

My question: Where is the rest of the mainstream media in reporting on this enormous destruction of wealth to AIG shareholders?