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Financial Hospitals: Defending the Fed's Role As Market Maker of Last Resort Florida International University College of Law eCollections Faculty Publications Faculty Scholarship 2013 Financial Hospitals: Defending the Fed’s Role as Market Maker of Last Resort Jose M. Gabilondo Florida International University, [email protected] Follow this and additional works at: https://ecollections.law.fiu.edu/faculty_publications Part of the Antitrust and Trade Regulation Commons, Banking and Finance Law Commons, and the Constitutional Law Commons Recommended Citation Jose M. Gabilondo, Financial Hospitals: Defending the Fed’s Role as Market Maker of Last Resort , 36 Seattle U. L. Rev. 731 (2013). Available at: https://ecollections.law.fiu.edu/faculty_publications/79 This Article is brought to you for free and open access by the Faculty Scholarship at eCollections. It has been accepted for inclusion in Faculty Publications by an authorized administrator of eCollections. For more information, please contact [email protected]. +(,121/,1( Citation: 36 Seattle U. L. Rev. 731 2012-2013 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Nov 14 18:50:05 2014 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=1078-1927 Financial Hospitals: Defending the Fed's Role as a Market Maker of Last Resort Jos Gabilondo* TABLE OF CONTENTS I. IN TRODUCTION .............................................................................. 732 II. THE FED'S HISTORICAL TRADING AUTHORITIES .......................... 738 A. Bank Funding Before the Fed ............................................. 739 B. The Banker's Bank (1913-1923) ......................................... 742 C. Market Making (1923-1951) .............................................. 747 D. Independence (1951-2007) ................................................. 750 III. FINANCIAL HOSPITALS: AN EXPANDED ROLE FOR THE FED ......... 755 A. InterbankF unding ............................................................... 755 B .Inpatient .............................................................................. 763 1. Maiden Lane I (Repurchase Markets) ........................... 763 2. Maiden Lane II (Securities Lending) ............................ 766 3. Maiden Lane III (Credit Default Swaps) ....................... 768 C . O utp atient............................................................................ 769 IV. IN DEFENSE OFTHE FED ................................................................ 772 A. Market Structure Policy ...................................................... 773 B . L egality ............................................................................ 78 1 C. FinancialCorporatism Versus Democracy......................... 785 V . D ODD-FRA NK ................................................................................ 795 V I. C ON CLU SION ................................................................................. 797 * Associate Professor of Law, Florida International University, Miami, Florida, 33199, [email protected]. I am very grateful to Charles O'Kelley for including me in the Berle series. Please let me also thank Manuel Utset, Bill Bratton, Jerry Markham, Charles Pouncy, Christian Johnson, ScAn Erwin, Saule Omarova, Hannibal Travis, Schlegel, Heidi Schooner, Brett McDonnell, Eugene White, and Melissa Luttrell for their characteristically helpful comments on this paper and Cornelius Hurley for his excellent research advice. A version of this paper was presented at Florida State University and Capital University. All errors are my own. Seattle University Law Review [Vol. 36:731 I. INTRODUCTION During the last financial crisis, what should the Federal Reserve (the Fed) have done when lenders stopped making loans, even to bor- rowers with sterling credit and strong collateral?' Because the central bank is the last resort for funding, the conventional answer had been to lend freely at a penalty rate against good collateral, as Walter Bagehot suggested in 1873 about the Bank of England.2 Acting thus as a lender of last resort, the central bank will keep solvent banks liquid but let insol- vent banks go out of business, as they should. The Fed tried this, but when the conventional wisdom did not work, it provided liquidity to new products and firms using authority enacted during the Great Depression to deal with financial emergencies-section 13(3) of the Federal Reserve Act (the Act).3 It worked, but it came at a price-the Fed lost legitimacy in the eyes of many.4 The new emergency-liquidity programs, however, were needed to make Bagehot's rule relevant in a credit market where deposit- funded loans now compete with credit-risk products originated by both banks and nonbanks, 5 and where these products are traded actively. Once I. Christian A. Johnson, Exigent and Unusual Circumstances: The Federal Reserve and the U.S. FinancialCycle, EUR. Bus. ORG. L. REV. 28 (forthcoming) ("There is an enormous amount of assessment and analysis that needs to be done both with respect to the actions of thc Fed during the financial crisis and the apparent expansion of its mission."). 2. WALTER BAGEHOT, LOMBARD STREET: A DESCRIPTION OF THE MONEY MARKET (1873). 3. This was the text of section 13(3) at the time of the crisis: In unusual and exigent circumstances, the Board of Governors of the Federal Reserve System, by the affirmative vote of not less than five members, may authorize any Federal reserve bank, during such periods as the said board may determine, at rates established in accordance with the provisions of section 357 of this title, to discount for any individual, partnership, or corporation, notes, drafts, and bills of exchange when such notes, drafts, and bills of exchange are indorsed or otherwise secured to the satisfaction of the Federal Reserve bank: Provided, That before discounting any such note, draft, or bill of exchange for an individual or a partnership or corporation, the Federal reserve bank shall obtain ev- idence that such individual, partnership, or corporation is unable to secure adequate credit accommodations from other banking institutions. All such discounts for individuals, part- nerships, or corporations shall be subject to such limitations, restrictions, and regulations as the Board of Governors of the Federal Reserve System may prescribe. 12 U.S.C. § 343(a) (1991). 4. "An election year posse is being formed in Washington to try to round up the perpetrators of the Great Recession." Massimo Calabresi & Bill Saporito, The Street Fighter,TIME, Feb. 13, 2012, at 22-27 (covering Preet Bharara, U.S. Attorney for S.D.N.Y.); see also Adam J. Levitin, In Defense of Bailouts, 99 GEO. L.J. 435, 437 (2011) ("The government's handling of the crisis provided wide- spread dissatisfaction because of its haphazardness, because of its lack of transparency, and because of the use of taxpayer dollars."). 5. A minority of voices-none from the legal community-have strongly supported the Fed's emergency-liquidity efforts. PERRY MEHRLING, THE NEW LOMBARD STREET: HOW THE FED BECAME THE DEALER OF LAST RESORT 115 (Princeton Univ. Press 2011); R. Glenn Hubbard, Hal Scott & John Thornton, The Fed Can Lead on Financial Supervision, WALL ST. J., July 25-26, 2009, at A13 (criticizing Fed bashing and proposals to reduce its independence); Alex J. Pollock, 2013] FinancialHospitals: Defending the Fed credit becomes a tradable commodity, you need "market makers" to make the trading go smoothly.6 This dynamic is apparent in the market for U.S. Treasury debt. Uncertain about the rate that the Treasury will have to pay, it announces its borrowing needs and holds an auction.7 The 8 Treasury wants to ensure enough demand for its debt. Enter the "primary dealers"-firms that have promised to buy part of each new debt issue that the Treasury auctions. 9 These nonbank firms are market makers in the primary market (where an instrument is first issued) because they promise to "take down" some of each auction's debt, boosting the debt's initial value by adding demand for the new is- Fed Stretches Elastic Currency Mandate, AM. BANKER, Dec. 12, 2011, at 8 (arguing that Fed's efforts were justified bascd on its mandate to build an "elastic" currency); William H. Buiter & Anne C. Sibert, The Central Bank as Market Maker of Last Resort 1, FIN. TIMES BLOG (Aug. 12, 2007), http://mavcrecun.blogspot.con2007/08/ccntral-bank-as-market-makcr-of-last.html. 6. This Article builds on a central insight from my decade as a market regulator: price discov- ery for financial products takes place against a background of enormous public, private, and mixed coordination that is usefully understood as "market making." This is especially true now that the credit market has been securitizcd. I saw this at the Office of the Comptroller of the Currency, where I worked on the dealer and trading activities of national banks. Working for two apex issuers of public debt securities-the World Bank and the U.S. Treasury-showed me how the borrowing needs of massive issuers like these could, effectively, drive market structure, including by creating new products. For example, the World Bank is credited with having pioneered the large-scale swap in 1981 to meet a foreign
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