Monday, May 3, 2010

The Goldman Sachs hearings missed the point - PART 3 that we have that little bit of background behind us, what about those hearings last week?

So Goldman Sachs was charged with committing fraud in the course of selling a synthetic, synthetic CDO to a group of investors that consisted of the German bank, IKB and which also led to a lot of money lost by the Royal Bank of Scotland (through, yet another big insurance deal/bet). The complex product was called ABACUS and it was put together by the "Fabulous Fab" at Goldman Sachs along with the close advice of a big-time hedge fund manager, John Paulson, who also, it turns out, was "shorting" (betting against) the synthetic, synthetic CDO. The SEC alleges that the company that originally packaged up the synthetic, synthetic CDO (their name is ACA) thought that John Paulson was on the long side of the bet...not the short side. Hence, Goldman Sachs was at fault for knowingly avoiding to clear up this misunderstanding with ACA and committing fraud in the process. Clear as mud, eh? (Try this timeline for a full rundown of this case)

But as I said in the opening post...the Senate committee really missed the point here. They didn't argue about the specifics of the fraud charge. Instead, they focused on the fact that Goldman Sachs was also on the short side of many of these mortgage-backed securities and other financial products that were implicitly backed by the mortgages of ordinary Americans. The senators emphasized that Goldman Sachs was essentially "betting against the American dream" and that's why they are such cruel people. In addition, they lambasted them for betting against the very products that they were selling to their investor clients. But as this great post from the Economist's Democracy in America blog points out, that's a pretty ridiculous thing to scold them over:

It's important to distinguish between the SEC allegations and the allegations being aired in Congress, which I believe some senators are intentionally trying to confuse. The SEC is alleging that Goldman broke the law in a very specific way. Binyamin Appelbaum of the New York Times explains, "Rather than asserting that Goldman misrepresented a product it was selling, the most commonly used grounds for securities fraud, the Securities and Exchange Commission said in a civil suit filed Friday that the investment bank misled customers about how that product was created. It is the rough equivalent of asserting that an antiques dealer lied about the provenance, but not the quality, of an old table." That type of misrepresentation or misleading is illegal, no doubt about it. On the other hand, the accusations emanating from Congress—that Goldman took the opposite side of its clients' bets on the housing market—are certainly not. As we say in our leader on the subject, "the idea of willing counterparties, with full and accurate disclosure, each seeking to profit from the other's inferior grasp, is central to financial markets."
This may not seem like an important clarification—in the eyes of many, the story of Goldman during the crisis is already written and the firm acted unethically whether it broke the law or not. That was certainly the mood on Capitol Hill yesterday. But at least consider the following. In his opening statement Mr Levin asked whether Goldman's actions in 2007 were "appropriate", not whether they were lawful. If we agree with him that Goldman's actions were indeed inappropriate, but also lawful, what does that say about the politicians who were tasked with making the laws?

So yes, the Senate committee did reveal the Goldman Sachs executives as exceedingly greedy people but what they did was largely within the confines of a very loose regulatory structure within the financial system...a structure that was created and supported by the very same body of government that was apparently scolding them for making incredible amounts of money only because of how that system was structured.

It's true that some of what Goldman Sachs allegedly did in the ABACUS deal (the center of the fraud charge) was truly illegal (willfully misleading their client into thinking that another big-time investor was actually betting on the same side as them when in fact that big-time investor, John Paulson, was on the opposite side of the bet and hand-picking the risky pools of mortgage-backed securities). For that they should definitely be brought in front of a court.

The whole point that I am trying to get at is that it is much easier for a government official to remedy a situation where a party committed an illegal put them on trial and hope to find them guilty. But it's far more difficult for a government official to remedy a situation where a party committed an "inappropriate" act. The only way to remedy that situation in the financial industry is to change the regulations so that you make an "inappropriate" act against the rules (i.e., you get a big fine if you break them).

So that's where we are now...back to the question of government regulation...the dicey area where we are headed in Part 4. We will actually look at some of the elements of financial reform that include more regulations. What do you think should be the role of government in this situation?

1 comment:

  1. Boooooooth,

    To me the question of government regulation of the financial sector is fairly straightforward. Who do you trust more to enfore the rules? Moderately-paid government bureaucrats or powerful businessmen looking to make enough money to buy a country or two? Sure government sucks, but I feel like the era of believing that the free market will allow Wall Street to police itself has met a well-deserved end.

    Of course, what will we get in the end? Probably something similar to the dog-and-pony show after the Enron scandal broke. That whole thing passed, and then it was on to more of the same.