Boy, those new Fed regulations, they are long. They have lots of things. Like stress tests, and liquidity buffers, and the thing where you can’t have credit exposure of more than 10% of your regulatory capital to one bank.* But the thing that they mostly have are capital requirements, which are kind of not that surprising, i.e. they seem to be Basel-esque including G-SIFI surcharges, which is terrible if you’re Jamie Dimon, but also wonderful if you’re Jamie Dimon.**
One thing you can't do, though everyone does, including me sometimes, is say that banks have to "hold capital." Clive Crook in Bloomberg today says a number of interesting things but most importantly he's today's person pointing out (emphasis added)
a popular fallacy: the idea that equity sits idle and unused on a bank’s balance sheet as a kind of overhead. In fact, equity is just another source of funds. The proceeds from a sale of equity can be lent out or applied to other purposes just as readily as proceeds from, say, taking a deposit.
That's, like, important! The first part, the overhead thing, whatever. The second part, that "equity" and "capital" are words you say about funding, not assets, is a thing that you should know. If you don't know it, go find it out. Crook goes on to say:
The all-important difference is that equity can absorb losses, whereas deposits have to be repaid in full. Thanks to that loss-absorbing capacity, the more equity a bank has, the less likely it is to fail.
Then he gets all Modigliani-Miller on you to prove that higher bank capital requirements will not lead to less lending. I do not think most people think this but he cites people who have read the heck out of their Modigliani-Miller so, godspeed.
I want to press a little on his notion that "the all-important difference is that equity can absorb losses, whereas [things that are not equity] have to be repaid in full." (Friendly amendment.) I mean, that notion is true - loss absorption is pretty much the thing that distinguishes equity from not-equity. A cynic, or an MF Global customer, might say that lots of liabilities absorb losses just fine, but shut up cynic. (This may be a good time to mention that the BIS today said, regarding DVA, basically "you can't count expected loss absorption by your liabilities as capital," which is a thing to ponder in your heart of hearts.)
A thing you could also think about equity, vis à vis not-equity, is that it tends to be longer in duration. Specifically perpetual. If you think mainly this way - if, say, you are cynical about or just don't really understand the whole loss-absorption thing, because you think things like "financial institution books are so opaque that you can never really know how much capital they have with any precision, and a 7% capital cushion doesn't keep you all that solvent when the margin of error on your realizable asset values is like 10%," or because you think things like "every financial institution that has ever failed ever swears up and down that they were solvent and just had a liquidity problem and there's some reason to believe that that's mostly true" - then you might think: huh. That is weird. Bank regulation says "have 7% of your funding be perpetual and the rest can be overnight, really, just go nuts."*** That 7% seems good, but shouldn't we have something more to say about the 93%?
In other words, if you thought a purpose of bank regulation was managing the duration profile of bank funding, then the bank regulation that exists is not ideally suited to doing that. Sure it finds some arguably optimal level of weighted average duration, by making a tiny slug of infinite duration and a big superstructure of unregulated but often quite short duration, but you probably care a lot less about a weighted average than about, say, the minimum duration. Or the duration of your shortest $1bn in funding, or whatever. It is very possible to say "well, no, that is not a purpose of bank regulation, nobody cares about your stupid duration of funding," but things like Europe have me thinking that somebody should. (Here, though, is an argument not to take Europe too seriously as a bank funding story.)
That is all in part a very long introduction to this article in The New Republic this week, and this more technical related paper, by Morgan Ricks, a Harvard Law scholar, former Treasury regulator, and general smart guy and friend of Dealbreaker. His thesis is essentially "no one should be allowed to have short-term (under 1 year) funding unless they live by strict depository bank rules about capital and what they can invest in and all that good stuff."
Here’s how it would work. First, licensed firms would be allowed to fund short, but they’d be required to meet strict safety standards. Second, other financial firms—those without licenses—would be free to take big risks, but they’d have to term out.
This might seem like an unprecedented regulatory intervention. As a matter of fact, it’s not. It’s how the law of banking has virtually always worked. At its core, banking law consists of two components. First, licensed banking entities must abide by strict portfolio restrictions and other risk constraints. Second, and critically, there’s a sweeping prohibition: Entities without banking licenses are legally forbidden to fund themselves with deposits.
In its existing form, this regulatory system suffers from a fundamental defect. As we saw in the recent crisis, all of the financial sector’s short-term IOUs, not just deposits, are susceptible to destabilizing panics. Yet we don’t regulate these other short-term funding markets.
It's an interesting idea. You can disagree with that - I bet I do, though I'm not sure yet. You can call him an Austrian, and the Positive Money folks might find things to like in his proposal "that the issuance of money-claims be permitted only within a public-private partnership system."
But I like it as an expansion of what we talk about when we talk about regulating bank capital structures. And because it injects some thinking about duration into that conversation, instead of focusing solely on loss absorption. And because it ignores creaky categories like "bank" versus "not bank" to focus on the actual entities and process that transform short-term funding into long-term financing of the economy. Thinking about those entities and processes, holistically and from scratch, seems like a good idea these days.
* For nitpickers, let's use "bank" throughout here to mean "BHC" and "depository" to mean "regulated bank." For non-nitpickers, ignore and carry on.
** Go ahead and speculate on the right answer on this one, if you want. I think it's clearly great if you're Jamie Dimon, but Jamie Dimon at least says he disagrees, so that's somewhat compelling evidence against my position. So actually let me refine that: it's great if you're the worst of the US G-SIFIs, which I guess means Citi; it's terrible if you're the best of the US non-SIFIs; and it's probably mediocre-to-bad if you're the best / most obviously systemically important of the US G-SIFIs, which I guess means JPMorgan. So, fine, carry on Jamie.
*** Not that nuts. With the liquidity buffer you need to keep liquid stuff you can sell to roll your funding for 30 days, which I guess means you can't really be 7% equity / 93% overnight, unless all of your assets are overnight-liquid. Still.