The final bill takes shape.

Here’s a recap. Paulson sought to give Treasury the power to buy mortgage-related assets. A power grab!, said the critics. So congressional Democrats sought to give Treasury the power to buy mortgage-related assets, non-mortgage-related assets, and equity interests, and to regulate executive pay. Socialism!, said the congressional Republicans. So the final bill gives Treasury the power to buy mortgage-related assets, non-mortgage-related assets, and equity interests, and to regulate executive pay, and to issue insurance to distressed institutions. Madisonian deliberation at its finest!

Meanwhile, VC readers might be interested in other law-blog commentary:

David Zaring on the possible legal non-issues raised by the possible bailout law (actually even less than meets the eye). Jeff Lipshaw on what’s going on with the AIG bailout (remember the AIG bailout?). (For critics of my earlier post questioning the legality of the AIG bailout, note Lipshaw’s conclusion: “So.... I take back what I said about the Fed not actually owning AIG. It does. And it will, because there is no provision for the redemption of the preferred shares if the loan is paid back.”) Steven Davidoff on everything else that everyone is ignoring. See also Randy Picker; Larry Ribstein (you might also read his prescient article, “Bubble Laws,” which uses a nice phrase, if I remember correctly – “speculative bubbles of regulation”); and Stephen Bainbridge.

Jon Rowe (mail) (www):
Somewhere Noam Chomsky, Howard Zinn and Ralph Nader must be smiling. Isn't this what they wanted (or at least wanted to do to the entire economy) all along?
9.28.2008 11:53am
JosephSlater (mail):
I'm genuinely curious: what role, if any, did McCain play in this deal?
9.28.2008 11:56am
Oren:
Yup, Ralph Nader was a real softie for giving billions to investment bankers.
9.28.2008 12:01pm
some dude:
"This sucker" is coming down! Watch out!
9.28.2008 12:04pm
Jon Rowe (mail) (www):
Oren: Giving??? I'm not an expert on this bailout thing so perhaps someone can enlighten me. But isn't govt getting equity shares for all the $$ that they "give"? In that case govt is BUYING or socializing large parts of these firms to "save" them. And THAT'S what Nader et al. want, govt owned means of production where "the people" through their elected represented can "democratically" control it instead of fatcats from the top down.
9.28.2008 12:11pm
TCO:
What's with all the resignation. Let's fight this thing.
9.28.2008 12:22pm
Modus Ponens:
I love it.

$700 billion of as-yet unacquired equity = tens of billions for U.S. lawyers papering these deals.

I can't *wait* to see my bonus next year.

:-D
9.28.2008 12:33pm
Eldan (mail):
Yeah, let's fight it. I've already emailed my Congressmen. Ha ha. I do have a legal question though. When Congress does pass this horrible thing, is there any individual or group that would have standing to sue on constitutional grounds, and could the Supreme or some lower court issue an emergency injunction to stop the bailout? That's probably our only chance at this point.
9.28.2008 12:34pm
Order of the Coif:
This looks interesting:
How to bail out Wall St. without costing income tax taxpayers a dime:

Create a new government agency to manage the bailout. The treasury would then loan it money to bail out Wall St. firms that are in trouble. The government would then institute a Securities Turnover Excise Tax (STET) of 0.25% on stock trades with revenues going to the new agency. For long-term investors who buy stock in companies they believe in and keep it for years adding a quarter of 1% to the cost hardly matters, and even to speculators it is not huge. It is estimated that such a tax would generate at least $150 billion a year, so the $700 billion load would be paid off in 5 years.

The US has had such a tax since the time of the Civil War until 1966. Many other countries have a similar tax. This proposal is clearly a viable alternative to either giving Wall St. $700 billion as a freebie or even getting stock in return for the money. Wall St. managers might even prefer it to a plan that limited their future compensation.

A completely optional (ie. no one is being forced to play the market) tax, that encourages investment over speculation, and is virtually invisible to almost every average American, and it bails out the banking system. Win-win-win. Beats devaluing the dollar, and bankrupting the Treasury.

9.28.2008 12:39pm
Eldan (mail):
I think that's interesting, but for me the issue with the bailout is not how I should be taxed, but that I should be taxed at all. Refinancing foreclosures below market as a gift to irresponsible borrowers, allowing bad bank mamangement to retain control using public money, government taking ownership stakes in US industries, these are not good things no mattter how they are paid for.
9.28.2008 12:48pm
Jon Rowe (mail) (www):
I'm hearing claims that the govt can make $$ off this deal (which if they have equity shares or even just loaning the $$ which must be repaid makes sense). I've also heard that govt. made $$ off the SNL bailout in the 80s.

What of these claims?
9.28.2008 12:52pm
Jon Rowe (mail) (www):
"allowing bad bank mamangement to retain control using public money...."

Are you sure this is actually happening? I'm thinking that the guys -- the managers -- who f'd this thing up are outta here. If not, at the very least they should be and I'm sure with enough outrage they could be.
9.28.2008 12:53pm
Eldan (mail):
And what about the directors? Sure, CEOs have been pushed out, along with lots of cash. But the board?
9.28.2008 1:03pm
Dr. Weevil (mail) (www):
The government bailed out Saturday Night Live in the 80s? They should have just let it collapse. (I think you mean "S&L", not "SNL", Jon Rowe.)
9.28.2008 1:03pm
Doc W (mail):
There's an election in a few weeks. All the House members and a third of the senators are on the line. Very simple: anybody who voted for the bailout gets turned out.

Maybe in an alternate universe.
9.28.2008 1:05pm
Seamus (mail):
sought to give Treasury the power to buy mortgage-related assets. A power grab!, said the critics. So congressional Democrats sought to give Treasury the power to buy mortgage-related assets, non-mortgage-related assets, and equity interests, and to regulate executive pay. Socialism!, said the congressional Republicans. So the final bill gives Treasury the power to buy mortgage-related assets, non-mortgage-related assets, and equity interests, and to regulate executive pay, and to issue insurance to distressed institutions. Madisonian deliberation at its finest!

Once again showing that when the Evil Party and the Stupid Party cooperate in a bipartisan manner, the outcome is both evil and stupid.
9.28.2008 1:09pm
Jon Rowe (mail) (www):
That I did. But I still prefer "SNL" to describe the Savings 'N Loan.
9.28.2008 1:11pm
Barnum's law:
I'm hearing claims that the govt can make $$ off this deal

There's a sucker born every minute.
9.28.2008 1:12pm
Jon Rowe (mail) (www):
I'll ask the Q again, did the govt make $$ off the S 'N L bailout as some claim?
9.28.2008 1:16pm
Oren:
Dunno about SNL but the gov't made money on the Chrysler bailout.
9.28.2008 1:25pm
ejo:
Barney Frank was at the center of the negotiations and smiling as wide as can be in the photo I saw. both of these omens convince me, once again, that there is no shame in Washington and the deal will end up a disaster.
9.28.2008 1:32pm
Barnum's law:
I'll ask the Q again, did the govt make $$ off the S 'N L bailout as some claim?


No.
As of December 31, 1999, the thrift crisis had cost taxpayers approximately $124 billion and the thrift industry another $29 billion, for an estimated total loss of approximately $153 billion. The losses were higher than those predicted in the late 1980s, when the RTC was established, but below those forecasted during the early to mid-1990s, at the height of the crisis.


(p.8 in PDF).

This way to the egress.
9.28.2008 1:34pm
Sagar (mail):
"Barney Frank was at the center of the negotiations and smiling as wide as can be in the photo I saw. both of these omens convince me, once again, that there is no shame in Washington and the deal will end up a disaster."

Amen to that! Obviously there are many factors that caused this, but the single biggest has to be Rep. Frank and now he is in the thick of the "solution"!
9.28.2008 1:46pm
ejo:
the simple fact that Chris "Friend of Mozillo" Dodd and Barney "Fannie and Freddie are sound" Frank are involved is disgraceful. is there a working press in america?
9.28.2008 1:59pm
Eldan (mail):
Sure there's a press. They're out there right now trying to find the most dire predictions of disaster and collapse if we don't socialize the financial industry by Monday.

And it doesn't only matter who's involved now. Who will be involved next year? Or in five years? J Edgar Hoover with $700B, anyone?
9.28.2008 2:13pm
TDPerkins (mail):
ejo, the working press is 3/4's working for the Democrats.

At least.

That's the only explanation for the fact many people seem to believe Republican deregulation caused the current mortgage crisis.

When it was the Democrats (Obama in the top five) taking financial bank/mortgage money who've been halting Republican regulation tightening for the last five years.

Yours, TDP, ml, msl, &pfpp
9.28.2008 2:36pm
Alexia:
I am just sorry that I lived long enough to see this.
9.28.2008 2:39pm
Jim at FSU (mail):
And the taxpayer loses! Who could have predicted this shocking upset?
9.28.2008 5:05pm
Bryan C (mail):
I'm relieved there seems to be a deal. I'd have been happy to have them pass it quickly, last week and avoid all this brinksmanship.

I do find it very depressing that the media reports on the bailout plan have treated the Democrats as altruistic rescuers and the Republicans as greedy villains. (While, of course, leaving out the fact that the Republicans have been warning for years about the subprime problem.) The original Paulson plan fairly straightforward and not too bad provided you agreed with the basic premise of the rescue.

But instead of signing off on the original plan the Democrats reacted by adding all sorts of ridiculous junk. They insisted that the Republican minority support what they'd come up with so as provide them with political cover for an unpopular vote. And then they simply lied by announcing that a deal was imminent, while at the same time refusing to allow the bill's strongest critics among the House Republicans to question any of the stuff they'd added to the original plan.

If Paulson hadn't asked McCain to return to DC and help break this deadlock I think the result would have been regrettable. McCain hasn't spoken about the details yet, probably to avoid scuttling a deal. But in the accounts I've read McCain made it clear that there had to be a deal, and that if the Democrats wanted bipartisan agreement the House Republicans concerns had to be addressed. Unfortunately time was running out, and it seems the best the minority could manage was to roll back some of the worst aspects that had already been added by the Democrats. And for his efforts McCain stands accused of a "stunt" while Pelosi calls the Republicans as "unpatriotic" for, well, existing apparently.
9.28.2008 6:15pm
anon:
Jon Rowe,
My recollection is that the final bill for cleaning up the S&L mess was about $150B. No one knows what this deal will end up costing, but the government would have to overpay quite a bit for the number to get into that neighborhood and, therefore, it probably will.

By the way, where is the actual bill? If Congress is going to vote on it tomorrow, wouldn't it be nice if we all could actually see it in time to know what it actually says?
9.28.2008 6:27pm
David Schwartz (mail):
Maybe I'm naive, and it looks like we've all already lost, but why wouldn't this work:

1) The government buys up troubled mortgages. The government evaluates the mortgages and pays an amount at or slightly above fair market value.

2) The government restructures the loan at a fixed interest rate and a total amount equal to the present value of the homes.

3) At this point, the homeowner has a mortgage he can afford, has a chance to accumulate equity in his home, and has no incentive to walk away from his mortgage.

4) The government resells the new mortgages.

Yes, you might not make money doing this. Yes, you can't help every homeowner this way. But isn't this, for the vast majority of innocent victims, a realistic bail out for both Wall Street (get rid of the toxic mortgages) and Main Street (forgive the loss in equity in homes they couldn't afford)?

And aren't a lot of people living in homes they now *can* afford but with *mortgages* they can't afford. And isn't the problem that the mortgages are for more than the present value of the house?
9.28.2008 6:28pm
sbw (mail) (www):
JosephSlater: what role, if any, did McCain play in this deal?

Roll Call reports, "Bachus said Republican presidential nominee Sen. John McCain (Ariz.) significantly helped GOP Members by returning to the Hill this week because his message was that “House Republicans are relevant” and “we’re not going to roll the House Republicans.”
9.28.2008 6:31pm
sbw (mail) (www):
Jon Rowe: did the govt make $$ off the S 'N L bailout as some claim?

The S&L was a bailout. This is different. If Treasury assumes up to $1.3-1.7T in mortgage backed securities for up to $.7T, then that is a sufficient discount that a profit may be able to be made -- and used to pay down the public debt.

The problem is that the risk is opaque -- not that the securities are valueless. Even if Treasury keeps them to maturity, the good ones pay off and will help offset the bad parts.

The mistake was to call this a "bailout" when what it really is is a "market maker." Furthermore, there are a bunch of people on Wall Street who are going to get a haircut. And the people whom it will benefit are the people on "Main Street." Remember, we don't want a "Great" depression... or even a "Good" one.
9.28.2008 6:38pm
sbw (mail) (www):
Another blog's commenter said, "Putting Dodd and Barney Frank in charge of this charade is like letting a kid who just burned down the house go play with matches in the rest of the neighborhood."

Pay attention to the Fannie Mae-ACORN-Democratic Congress-Countrywide-Obama connections. To attempt so strongly to lock in a skim in the bill before McCain arrived ought to set off your smell detector.

American Thinker explains the scheme where politicians act to elicit votes from a target constituency at taxpayer expense. "[We] lose a little, they gain a lot, and the politician keeps his job."

Politicians make impassioned appeals to your conscience to contribute to a "good cause". Cronies siphon off the loot which is put to work.

Acorn's naame may not have been in the bill, but Acorn has received similar unnamed cream before. Now you know why.
9.28.2008 6:47pm
Cornellian (mail):
I suggest naming it the "BAWS" Act ("Beast that Ate Wall Street").
9.28.2008 7:17pm
Dan Weber (www):
leaving out the fact that the Republicans have been warning for years about the subprime problem

When was this? Just how many were warning?

The thing about the housing bubble is that damn near everybody in government loved it. If we were to vote the bums out that supported the bubble, we would have less than 10 people left in the House and Senate.
9.28.2008 8:45pm
Syd Henderson (mail):
The Republicans were in charge of both branches of Congress and the Presidency for four years. Why didn't they do something other that cry, "DOOOOM!"
9.28.2008 8:56pm
elim:
well, syd, you might want to take a look at the McCain speeches on the Senate floor concerning oversight of FM/FM. you're smart enough to find it out there-right next to the one of Frank saying no problemo (the same Frank smiling in the NYT). are you one bit honest as to who was right?
9.28.2008 9:13pm
sbw (mail) (www):
Dan Weber: When was this? Just how many were warning?

This might help:
2001—the President's budget warns about large government sponsored enterprises.
2002—the President calls for governance standards.
2003—the Office of Federal Housing Enterprise Oversight warns of systemic risk. Treasury asks Congress for new regulation. SEC investigations expose Fannie Mae earnings manipulations.
2004—the President again advises action because of the Fannie Mae risk. Treasury calls for reform.
2005—Senator John McCain and 3 other Republicans sponsor a bill, defeated by Democrats, to reform the government lending.
2007—Bush advises, "first things first when it comes to [Fannie Mae and Freddie Mac]. Congress needs to get them reformed, get them streamlined, get them focused, and then I will consider other options."
2008—Every month Bush calls on Congress to act.
9.28.2008 9:21pm
TJIT (mail):
Syd Henderson,

Fannie and Freddie were politically very well connected and used these connections to avoid any oversight.

Blame Fannie Mae and Congress For the Credit Mess
It is important to understand that, as GSEs, Fannie and Freddie were viewed in the capital markets as government-backed buyers (a belief that has now been reduced to fact).

Thus they were able to borrow as much as they wanted for the purpose of buying mortgages and mortgage-backed securities.

Their buying patterns and interests were followed closely in the markets. If Fannie and Freddie wanted subprime or Alt-A loans, the mortgage markets would produce them. By late 2004, Fannie and Freddie very much wanted subprime and Alt-A loans

If the Democrats had let the 2005 legislation come to a vote, the huge growth in the subprime and Alt-A loan portfolios of Fannie and Freddie could not have occurred, and the scale of the financial meltdown would have been substantially less.

The same politicians who today decry the lack of intervention to stop excess risk taking in 2005-2006 were the ones who blocked the only legislative effort that could have stopped it.
9.28.2008 10:00pm
TJIT (mail):
A concept often used in safety studies and engineering is failure cascades.

A depressing number of catastrophes needed several almost implausible actions / failures occurring in specific sequences to occur. Any change in actions or sequence would have prevented the disaster from occurring.

I think the current financial crisis is an example of a failure cascade and a change in any number of policies / actions / regulations would have terminated the failure chain.

I think additional oversight of fannie and freddie would have terminated the failure chain.


The oversight would have ended / reduced the GSE irresponsible actions. It would have prevented these actions from rippling across the markets and this would have short circuited the financial failure cascade or at least substantially reduced the severity of the crisis.

Unfortunately their political connections allowed them to avoid this oversight and here we are today.
9.28.2008 10:17pm
ejo:
I guess that answers the question as the SH's intellectual honesty.
9.29.2008 10:46am
Danno20441 (mail) (www):
I hope if elected, McCain doesn't get ill. Palin having her finger on the button would be one of the most frightening thoughts...a "hockey mom" ready to launch a nuclear attack? NOT!

Cartooning Services For Professionals
10.5.2008 3:51pm
Daaaave (mail):
For those who would like to blame Fanny and Freddy are off base. It was Paulson's own idea to remove the regulation that forced Investment Banks to keep enough cash on hand to conver their obligations. Given that rope, almost every investment bank hanged themselves right off.

I'm sorry, but if you are running around thinking this is some unpredictable cascade of failures, you're dead wrong. If you're just now trying to piece this together, don't bother. There are folks waaay ahead of you and you'll enjoy their articles if you choose to find and read them.

There are those of us who have been discussing this issue since 2003. There was regular public warning, but NO ONE WANTED TO HEAR IT because houses had become 'free' to the credit-happy American populace.

Paulson is just executing the 'soft landing' that will leave the US coffers filled with foreign investment in the dollar, crushed competitor nations and a domestic workforce willing to work for far less than they did just a few months ago.

This is the same sort of 'ideal' business climate that those in the same position in the 20s and 30s created. While it did eventually lead to a massive manufacturing spike, the pain was immense and the eventual pleasure only felt by the capital class and the children of those who lived through a near generation-long depression and a global war. In short it wasn't worth all the financial engineering then and it's not worth it now.
1.6.2009 4:56pm

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