R4 NatioNal iNstitute ecoNomic Review No. 235 FebRuaRy 2016 *Graduate
School of Business, Stanford University. E-mail: [email protected]. I
am grateful to E. Philip Davis, Martin Hellwig, Paul Pfleiderer,
Matthew Zuck and two anonymous referees for helpful comments. THE MISSED OPPORTUNITY AND CHALLENGE OF CAPITAL REGULATION Anat R. Admati* Capital regulation is critical to address distortions and externalities from intense conflicts of interest in banking and from the failure of markets to counter incentives for recklessness. The approaches to capital regulation in Basel III and related proposals are based on flawed analyses of the relevant tradeoffs. The flaws in the regulations include dangerously low equity levels, a complex and problematic system of risk weights that exacerbates systemic risk and adds distortions, and unnecessary reliance on poor equity substitutes. The underlying problem is a breakdown of governance and lack of accountability to the public throughout the system, including policymakers and economists. Keywords: Banking regulation; capital regulations; banking; equity in banking; capital structure; leverage; agency costs; leverage ratchet effect; Basel; risk weights; TLAC JEL Classifications: G21; G28; G32; G38; H81; K23 Introduction The events of 2007–9 exposed the failure of regulators to prevent the build-up of risk in the financial system and showed that flawed rules and ineffective enforcement of financial regulations can cause significant harm to the rest of the economy. Despite this experience, the effort at regulatory reform has been messy and unfocused. The small adjustments to capital regulations, in particular, are far from sufficient to protect the public, and the regulation is still based on a flawed approach that distorts markets, exacerbates systemic risk, and undermines the purpose of the regulation. A healthy and stable financial system is essential for enhancing the allocation of resources, risk sharing and economic welfare. If designed and implemented properly, capital regulation can be a powerful tool for correcting market failures, reducing externalities, and ensuring that the financial system serves the economy. The continued failure of this regulation has permitted an unhealthy, opaque, inefficient and excessively fragile system to persist. This system exposes the public to unnecessary risks and distorts the economy. The causes for the failure of capital regulation seem to reflect, at least in part, confusion about why this regulation is essential and beneficial and about the relevant tradeoffs. Studies purporting to provide guidance to policy routinely make flawed assumptions and ignore the critical distinction between private and social costs and benefits. The specialised jargon used in banking has obscured the issues and further muddles the debate. In this essay I explain the key issues and how capital regulations fall short. I start by discussing the economics of funding and the forces that cause banks to use too little equity, which make effective capital regulation essential and beneficial. I then provide an overview of current status of the regulations, point to some key flaws and discuss some of the claims made in the policy debate. I close with remarks that place the debate in a broader governance context. Are banks special and if so, how Capital regulation places restrictions on how banks and other institutions are funded in order to address distortions in their incentives. Well-designed capital regulation ensures that an appropriate part of funding is obtained and maintained from owners and shareholders who provide equity. Because owners and shareholders are not promised any specific payments, they automatically absorb losses as long as debts are paid. A mantra in banking is that ‘equity is expensive’. This view is taken to imply that requiring banks to use more admati the missed oppoRtuNity aNd challeNge oF capital RegulatioN R5 equity entails meaningful costs that should be balanced against the benefits of more equity. In fact, the costs of using more equity are entirely private and incurred by a small set of individuals. These private costs arise because when more equity is required these individuals are less able to pass costs and downside risk to creditors and to taxpayers, and they are more than offset by the substantial benefits to the broader society. Policy must be based on social, rather than narrowly private costs and benefits. Before discussing the economics of funding and how they apply in banking, we must address an insidious confusion that often perverts the discussion. The confusion concerns the meaning of the word ‘capital’ in banking. Many believe that bank capital is analogous to cash reserves or a rainy day fund, and that capital requirements force banks to ‘set aside’ or ‘hold in reserve’ idle cash that cannot be used to make loans or other investments. This suggestion is patently false. Capital requirements do not require banks to hold anything; they only concern the source of funding banks use and the extent to which investments are funded by equity (or other forms of ‘loss absorbing capital’, as discussed below). Corporations do not ‘hold’ their own funding; rather, investors hold (own) claims such as common shares that are paid from cash flows the firm generates. If capital is falsely thought of as idle cash, the discussion of capital regulation is immediately derailed by imaginary tradeoffs. Nonsensical claims that increased capital requirements prevent banks from making loans and ‘keep billions out of the economy’ may resonate with media, politicians and the public just because the jargon is misunderstood.1 In light of this confusion and its ability to muddle the debate, it is disturbing that regulators and academics, who should know better, routinely collaborate with the industry to obscure the issues by using the misleading language and failing to challenge false statements. If, instead, the language that is used focused attention properly on funding and indebtedness, the debate would be elevated and more people would be able to understand the issues. Instead of saying ‘hold’ or ‘set aside more capital’ one can say, for example, ‘use more equity’, ‘rely less on debt/borrowing’, or ‘borrow less’. The economics of funding start with the observation that borrowing always creates leverage and magnifies risk. In financial markets, the required return on any security depends on risk because investors are risk averse. A seminal insight, made in 1958 by Franco Modigliani and Merton Miller and taught in basic courses in finance, is that rearranging risk among different investors does not by itself change the overall funding costs of a corporation. Are banks so special that this basic principle and everything else we know about the economics of funding do not apply to them 2 One way banks are special is that some of their funding comes from depositors, who accept lower returns in exchange for services such as ATMs. To the extent that deposits involve provision of these services, deposits are a bit different from other debts, but the logic of Modigliani and Miller and much of what we know about funding still apply to banks and particularly to their funding with equity and borrowing in wholesale markets. In those markets banks interact with the same investors who provide funds to businesses and corporations and who value securities in the context of portfolios using the same criteria for all investments.3 Importantly, like all other firms, banks have owners or shareholders who have some discretion about the mix of debt and equity used to fund the banks’ assets. And like other firms, banks are more likely to become distressed or insolvent when they are highly indebted and take risks in their investments. The distortions and inefficiencies brought about by distress and insolvency are particularly relevant for banks, as discussed below. The funding mix of non-financial corporations is rarely regulated. Companies can rely on any amount of debt funding if they find willing lenders to provide this funding. Despite the tax advantage of debt over equity for corporations, and without any regulation, most healthy corporations maintain significant equity levels, and some borrow very little. It is rare for corporations to maintain on a regular basis less than 30 per cent equity relative to their total assets. Retained earnings are a popular source of internally-generated equity funding. Many successful companies grow and thrive by routinely using their profits to make additional investments without taking on more debt. Banks, like other companies, can retain their profits or sell additional shares to investors, which would enable more loans and investments. Yet banks often choose to make payouts (such as dividends) to their shareholders and continue to borrow even while their equity levels might be 5 per cent or even less relative to their assets.4 Because they operate with little equity and their assets are often opaque and difficult to value, banks are fragile. Even small losses can raise concerns about their insolvency. If depositors or short-term creditors R6 NatioNal iNstitute ecoNomic Review No. 235 FebRuaRy 2016 are concerned they might not be paid, the result can be a run, even if the bank is still solvent. Because banks provide essential services, the collateral harm of their default and failure can be large. If many banks fail or become distressed at the same time, the economy as a whole is disrupted and harmed.5 Does the business of banking imply that banks must be heavily indebted and use very little equity Must we, as a society, tolerate this fragility in order to obtain the benefits banks provide The answer is a resounding No. Nothing about the business of banking makes it essential or beneficial for banks to operate with the very low equity levels they choose to maintain. On the contrary, banks are better and more consistently able to make all worthy loans at appropriate prices and their ability to provide reliable liquidity to depositors and other creditors would be enhanced if they were safer by using more equity. A safer bank would be less likely to experience liquidity problems or runs, and because it is more likely to be solvent when experiencing a liquidity problem, the central bank will be better positioned to serve as a lender of last resort. Why then do banks persist in having such high leverage and why do bankers fight furiously against regulations that would force them to use more equity To answer these questions, it is useful to consider why nonbanks do not borrow more even though using more debt funding can save on their taxes. A key reason is that borrowing has a dark side. First, high levels of debt can lead to financial distress and bankruptcy, which in turn create delays, legal costs, and disruptions that deplete the remaining assets of the firm. Second, and more important, borrowing creates fundamental conflicts of interest between borrowers and lenders regarding subsequent investment and funding decisions. The conflicts arise because borrowers benefit fully from the upside of any risk taken while they share the downside risk with creditors. Because of these conflicts of interest, decisions made by the managers and shareholders of an indebted corporation may harm creditors and reduce the combined total value of the firm to all investors. Specifically, decisions on behalf of shareholders when debt is in place reflect a bias in favour of riskier investments and additional borrowing and against relatively safe investments with insufficient upside and any reduction of leverage. Anticipating the costs of bankruptcy and the potential distortions to decisions made against their interest, lenders typically try to protect themselves by increasing the interest rate they charge, and they may attach restrictive conditions to debt contracts to constrain shareholders’ subsequent actions. Debt covenants, however, cannot cover all contingencies and, because they may restrict the flexibility of the firm to take advantage of beneficial opportunities, may be renegotiated later. Covenants are also costly to enforce, particularly if creditors are dispersed and face a free-rider problem in pursuing them. As a result, heavy borrowing becomes expensive and unattractive for many companies despite the tax advantage of debt. The problem is particularly intense for banks because they are so highly indebted already. Admati et al. (2015) explore the implications of borrower-creditor conflicts on corporate funding. We show that these conflicts of interest create a leverage ratchet effect that can have profound impact on the dynamics of corporate leverage. Borrowing and indebtedness can become addictive, excessive and irreversible, because shareholders avoid actions to reduce the amount of debt and increase the equity, such that they take downside risk that would otherwise be borne by creditors. Shareholders may, however, increase leverage to benefit themselves. The leverage ratchet effect is particularly relevant for banks, because part of banks’ business involves taking deposits, which involves borrowing.6 Once debt is in place and the conflicts of interest take hold, bankers prefer to increase leverage and ‘economise’ on equity. If deposits are explicitly or implicitly insured, bankers have little reason to worry about depositors withdrawing funding en masse. Importantly, insured depositors do not generally monitor banks’ activities and do not put in place constraints on the risks or additional borrowing that banks take, on the payouts banks make to their managers and shareholders. Since deposits are not secured by collateral, banks can use assets purchased with deposits as collateral to obtain more debt funding from investors under attractive terms.7 Thus, bank creditors fail to counter properly the intense leverage ratchet effect that accompanies heavy borrowing and, without regulations, the resulting inefficiencies of distress or insolvency can persist for extended periods of time. As long as the bank meets its commitments and its creditors feel safe, the creditors may not notice if the bank becomes distressed through losses or additional borrowing, or even if it becomes insolvent. The addiction to borrowing in banking thus is tolerated, enabled and encouraged by the passivity of their creditors and by guarantees and subsidies. admati the missed oppoRtuNity aNd challeNge oF capital RegulatioN R7 The unusual passivity of depositors as creditors can cause bankers to forget that deposits are part of the banks’ debts. For example, in criticising rules that would force banks to issue long-term debt that might absorb losses, John Stumpf, CEO of Wells Fargo Bank, made the nonsensical claim that because his bank has a lot of retail deposits, it does not have a lot of debt. Mr. Stumpf was also quoted in the same context saying “The last thing I need is debt”.8 The story title referred to Wells Fargo Bank as “debt averse”. In criticising proposals for long-term debt, Mr. Stumpf did not advocate more equity, and his bank remains heavily indebted. If Wells Fargo Bank was actually debt averse, it could reduce its indebtedness by retaining its profits or selling new shares. Mr. Stumpf’s objection to issuing long-term debt likely stems from the fact that, unlike insured depositors, investors who might suffer losses, even if this event is highly unlikely, are concerned with the risk of investing in Wells Fargo Bank, and might find the bank’s financial disclosures poor. Equity investors would be even harsher with Wells Fargo Bank and similarly large and complex banks given their complexity and poor disclosures. An investigative report that examined the financial statements of Wells Fargo Bank, which is less active in derivatives than other large institutions but has extensive off-balance- sheet exposures, quotes many investors and accounting experts stating that the large banks are so opaque that
they are “uninvestible”.9 Andrew Haldane of the Bank of England has also pointed to the opacity and complexity of these institutions.10 If regulations forced more equity funding, appropriate valuations based on true value creation and fewer subsidies and better disclosures would restore market discipline that is currently missing. In summary, banks borrow too much and resist using more equity because their managers and shareholders have strong incentives to do so. These incentives include the already-high leverage in banking and the guarantees and subsidies that feed and reward their strong ‘addiction’ and which enable leverage to ratchet up.11 Because the result of this leverage ratchet is that costs and downside risks are simply shifted to others while making the financial system fragile and creating further distortions, from society’s perspective, and contrary to the mantra ‘equity is expensive’, it is having too little equity in banking that is expensive and highly inefficient. This situation can be corrected only by effective regulations. Unfortunately, the regulations we have are entirely inadequate and their design adds further distortions. A critique of capital regulation based on Basel III The Basel III accord agreed in 2010 and implemented, with some variations, around the world, recommends a modest increase in capital requirements relative to Basel II. Although it strengthens some definitions and rules, Basel III still allows equity levels to be much too low, and it maintains an approach where capital requirements are stated relative to risk-weighted assets (RWA). Among other things the regulation establishes a ‘conservation buffer’. Banks have to rebuild their buffers by avoiding payouts to shareholders and bonuses if their equity falls below 7 per cent of RWA, and more interventions take place if the ratio falls to 4.5 per cent. The new leverage ratio introduced in Basel III requires that equity be at least 3 per cent of total assets, allowing assets to be more than 30 times larger than equity as measured by book value. Banks designated as globally systemic institutions are required to have up to 2.5 per cent additional equity relative to RWA and, in addition, a recent proposal by the Financial Stability Board agreed upon by G20 leaders in 2015 adds a requirement for banks to use long-term debt called TLAC (Total Loss Absorbency Capacity) that is supposed to absorb losses in some situations. It is important to note that regulatory capital ratios are based primarily on accounting conventions that can be quite arbitrary and vary by jurisdictions. Balance sheet disclosures tend to obscure significant exposures to risk, allowing much risk to lurk ‘off balance sheet’, and to manipulate the disclosures, particularly since auditors are subject to their own conflicts of interest and are unlikely to challenge managers.12 Regulatory capital ratios, especially those based on risk weights, can therefore give misleading reassurances. Through the financial crisis of 2007–9, these ratios still appeared strong even as banks were failing and receiving bailouts and supports. The intense lobbying by banks against any increase in required equity only reinforces the view that the requirements are entirely inadequate. In addition to the problems related to accounting measures, there are three key flaws in capital regulations based on the Basel III accord. (See Admati and Hellwig (2013a, Chapter 11) for a more detailed discussion.) (i) Required equity levels are much too low. R8 NatioNal iNstitute ecoNomic Review No. 235 FebRuaRy 2016 (ii) The use of complex manipulable risk weights that ignore some risks exacerbates systemic risk and distorts incentives, particularly because equity levels are so low. (iii)Debt-like securities are used in the regulations although they are complex, unreliable, and entirely dominated by equity. Dangerously low equity levels Bankers and policymakers claim that Basel III capital requirements are much improved, citing the fact that they are ‘multiples’ of those specified under Basel II. The requirements are actually very modest in absolute terms. Multiplying a small number such as 2 per cent equity to risk weighted assets in Basel II by a factor of 2, 3 or even more does not result in a large number. The 3 per cent ‘leverage ratio’ of equity to total value is outrageously low. Whereas some countries such as the US have adopted higher leverage ratios (5 per cent for bank holding companies and 6 per cent for deposit- taking banks), the levels are still too low. (Much of the regulation uses risk weighted assets as denominator. As discussed below this approach is highly problematic.) Increasing equity requirements substantially brings about numerous benefits beyond increasing loss absorption capacity that allows banks to continue making loans after incurring losses without needing support. With more equity, liquidity problems, runs and all forms of contagion are less likely. Moreover, any loss in the value of the assets is a smaller fraction of the equity, thus fewer assets must be sold under distressed conditions to ‘delever.’ Better yet, distortions in banks’ lending and funding decisions due to overhanging debt are alleviated. As another bonus, more equity is the best way to reduce the implicit guarantees subsidy that distorts markets and rewards recklessness.13 All the studies I am aware of that claim to provide scientific guidelines for the design of capital regulations have fundamental flaws that render their conclusions meaningless. The estimates they provide for costs and benefits of specific capital ratios are based on many inappropriate assumptions. None of the models captures properly the relevant costs and benefits and none provides meaningful estimates that should guide policy. A recent paper produced in the Bank of England, Brooke et al. (2015), cites earlier flawed studies and provides its own set of flawed estimates. For example, the benefits of higher capital requirements are only described in terms of crisis prevention, ignoring all the other benefits discussed above, including the fact that more equity reduces the externalities associated with intense asset sales in distress. The authors presume falsely that all lending is valuable and neglect the fact that bad loans are wasteful and too much risky lending can put banks operating with little equity at risk of insolvency, which can create disruptions and reduce lending even if there is no crisis or if losses are absorbed by investors. As recent experience illustrated, credit and growth suffer when banks have too little equity. Credit cycles and distortions are evidence of unhealthy financial instability that better laws and regulation can and should contain. The analysis of the costs of higher equity requirements in Brooke et al. (2015) is fundamentally flawed because it fails to make the critical distinction between private and social cost; the authors provide no coherent model for how any social costs would come about. The stated policy regarding ‘too big to fail’ institutions is to eliminate bailouts. Current efforts focussing on loss-absorbing debt are said to achieve this objective, but, as discussed below, the arrangement presumes a willingness to let banks go into resolution, which is not credible in a crisis. With equity, this problem does not arise. Equity is the simplest, most reliable and most beneficial way to reduce those subsidies while also enhancing the health and safety of the system.14 The disturbing fact that debt funding is subsidised and equity is penalised through the tax code is also not discussed in Brooke et al. (2015), but it is relevant. There is no economic rationale for the tax subsidies of debt broadly given to corporations. The Economist magazine (on 15 May, 2015) called this subsidy ‘a vast distortion in the world economy’. Having a tax code that encourages excessive and harmful indebtedness in banking, which only exacerbates the intense leverage ratchet effect and the impact of explicit and implicit guarantees, is perverse. The tax code must be changed, neutralised or ignored for the discussion of capital regulation. Even if banks pay more taxes, there is no cost to society because taxes are to be used by governments on behalf of the public. 15 When banks have high levels of debt and little equity, the leverage ratchet effect is intense and as a result the choices they make in response to requirements specified in capital ratios might entail unintended consequences such as reduction in lending or selling assets in ways that exacerbate price declines for others. To avoid such problems, especially in transition to higher admati the missed oppoRtuNity aNd challeNge oF capital RegulatioN R9 requirements, regulators must instruct banks to raise specific amounts of equity through retained earnings and new issuance. Inability to raise equity must raise concerns about the institution’s health. Insolvent banks are dysfunctional and dangerous; they must be dealt with promptly. These issues are discussed in Admati and Hellwig (2013a, Chapter 11) and explored in more depth in Admati et al. (2015, Sections 5–6). How much equity should banks have Historically, equity levels in banking were much higher than they are today. As partnerships in the 19th century, for example, banks’ equity often accounted for 50 per cent of their assets, and bank owners had unlimited liability, so owners’ assets could be used to pay depositors. Equity levels in banking were commonly 20 or 30 per cent of total assets early in the 20th century, and owners had double, triple or unlimited liability in the US until after the deposit insurance was established.16 Admati and Hellwig (2013a) propose that equity requirements be set at 30 per cent of total assets and allowed to decline to 20 per cent, maintaining a conservation buffer between 20 and 30 per cent. Such levels are considered minimal for healthy companies outside banking. They are common for hedge funds and, as noted above, were prevalent in banking before safety nets were put in place. It is important to note that the meaning of any number depends critically on how the ratio is defined and measured and on how assets are valued, which is extremely challenging. One thorny issue is accounting for derivatives and other off- balance-sheet exposures. Another is asset classification, and whether regulators are able to build equity buffers in advance and intervene promptly as needed. The detail of the rules and how they are implemented are critical for their effectiveness. Supervisors play a critical role. There are more flawed claims made in the discussion of capital regulation and about the ‘specialness’ of banks. A few are taken later in this essay; others are discussed in writings such as Admati and Hellwig (2013a, b; 2015) and Kay (2015). Highly problematic risk weighting system Capital regulations under the 2004 Basel II accord were based on a complex way to calibrate regulatory ratios to risk. They did this by attaching a ‘risk weight’ to each asset and defining the denominator of the capital ratio as the sum of these ‘risk-weighted’ assets. This approach was maintained and only tweaked under Basel III. It is abundantly clear that the system of risk weights used in Basel II did an extremely poor job of assessing how high capital requirements should be. In the period leading up to the crisis, banks had strong incentives to create and invest in highly-rated securities, particularly if the securities were rated AAA, because such securities had a zero risk weight and did not require any equity funding. Risk weights introduce distortions in multiple ways. (i) They allow the use of internal models that often ignore tail risk, thus encourage concentrated tail risks and increase systemic risk; (ii) The use of banks’ internal models allows manipulation of the requirements in order to increase leverage and risk. (iii)Risk weights distort bank lending, often away from business lending and towards government lending and other investments. A recent example is the excessive lending of private banks in Europe to the Greek government in 2001–10. Such lending received zero risk weight and thus the risk was ignored. Combined with extremely low equity levels, the complex risk weights system provides banks many ways to ratchet up leverage and increase systemic risk while satisfying the requirements.17 A crude leverage ratio, at levels significantly higher than any of the levels implemented today, can go a long way towards making sure that risks taken in banking are borne by investors and not by taxpayers. If a system of risk adjustments is used, it is particularly important that no assets that may entail risk, even when risk is deemed small by banks or rating agencies, receive zero or near zero risk weight. Risk weights should only be used to increase equity requirements when opacity makes any risk estimation difficult. The point of equity requirements is to prepare for the ‘unknown unknowns.’ Having ‘too much’ equity must not be a concern in the foreseeable future. Poor equity substitutes Another flaw of existing capital regulations is that they try to ‘economise’ on equity by requiring the largest banks to issue debt securities designated as ‘loss absorbing capital’. The term that is used is TLAC (total loss absorbing capital), and the securities are meant to provide an alternative to bailouts by ‘bailing-in’ some creditors. A related concept is contingent capital or cocos, which uses various trigger points to convert debt to equity. The idea behind these securities is to create mechanisms other than bankruptcy and, in the case of TLAC closely related to resolution by regulators, R10 NatioNal iNstitute ecoNomic Review No. 235 FebRuaRy 2016 which would impose loses on investors other than shareholders to avoid government bailouts. In the past, the inclusion of debt as part of capital regulation has not worked. Tier 2 capital included only debt-like securities and even Tier 1 capital allowed many non-equity claims that were held by investors expecting specific returns. Yet, holders of such claims did not suffer losses even when banks ran into trouble and received government bailouts. Nevertheless, and ignoring the lessons and the economic considerations, regulators claim that next time will be different. Persaud (2014) rightly refers to bail-in securities as ‘fool’s gold’. It is unrealistic to expect that regulators will trigger recovery and resolution processes that are complex, costly and untested so that losses can be imposed on debt-like TLAC securities, and that they would be politically able to follow up with imposing losses on creditors or mandatory conversion to equity. This is particularly true if a potential crisis is looming, since pulling triggers and inflicting haircuts might have unpredictable consequences throughout the opaque financial system. A thorny issue concerns cross-border coordination of any resolution, which bail-in would be part of. The legal challenges are daunting.18 Since there is no sense in which more equity in banking is ‘expensive’ from society’s perspective, it is baffling that regulators devise such complex and unreliable securities when equity would accomplish the objective of absorbing losses more simply and reliably at no additional relevant cost. When risk is taken, losses must be absorbed by someone. Shareholders who are entitled to the upside and who absorb losses without the need to go through complex and costly triggers, are the most obvious candidates. Especially given the low levels of equity, the better approach would be to focus entirely on increasing equity levels.19 It makes no sense to plan for scenarios that would be costly and disruptive even in the best case when much more can be achieved by trying to prevent reaching those bad scenarios. Moreover, equity is already on the banks’ balance sheet and often trades in a well-developed and liquid market.