TARP, first public draft

So, I’m not a lawyer, I’ve gone through this very, very quickly, and I’ve got to run.

On the whole, I think this is basically last weekend’s Paulson Plan with much better oversight, more transparency, and a lot more words. Also, the Federal Reserve is given authority to pay interest on deposits, and thereby implement a “channel” or even a “floor” system of monetary policy (ht commenter RueTheDay). And, the SEC can suspend mark-to-market accounting requirments. Those are big things to slip in under the radar.

Some easy changes that would make me feel a little better:

  • Section 114 on transparency: “assets acquired” should be changes to “assets acquired, obligations assumed, or any other use of financial instruments undertaken”, so that the Treasury’s participation in derivative markets or its assumption of contingent liabilities is made public.

  • While disclosures are required for taking positions in financial instruments other than security purchases in Section 3(9)(b), there should be stronger controls, and those controls should apply regardless of whether the contracts entered into are mortage-related or not.

  • The streamlined contracting described in Sec 107(a) should be toughened. Disclosures should be public, and approval by, not merely notification to, some oversight body should be required. The Bush Administration has a poor record on “streamlined contracting”.

  • In general, a required disclosures and reports to committees under TARP should be required to be public.

Some miscellaneous bullets:

  • The House Republican’s insurance plan has been added, presumably to salve egos, but that only harms the taxpayer.

  • The equity participation portion is toothless, much less specific or meaningful than in the earlier Dodd proposal. If equity participation is your core criterion, it’s unclear to me how one could say “no deal” to last week’s plan but “deal” to this one. Yes, some kind of equity participation is broadly mandatory, but aside from general principles, the scale of that participation is wholly at the discretion of the Treasury Secretary.

  • The compensation limitation section is very complex. Tin-foil-hat me thinks that this means there are loopholes by which the Treasury could structure participation in ways that prevent these requirements from biting, but going through the different sections, I wasn’t certain that I’d hit upon the scheme. There’s a fairly broad section that would create tax penalties for those who participate via auctions, and a much less specific section regarding beneficiaries of direct purchases. Tin-foil hat me thinks that those the Treasury Secretary wants to exempt will participate via direct purchases, and these players will be subject to vague, discretionary restrictions, or will be exempt due to a lack of meaningful equity participation. But overall, this section is too complicated for me to quickly make sense of.

My bottom line:

I still dislike this proposal and hope it does not pass. However, in a way, reading this makes me feel better about Secretary Paulson’s original plan. He was at least very honest about the powers he was asking for last weekend. Here he basically gets the same thing — although the added transparency and extra oversight is meaningful! — but all the verbiage blunts the impact.


Below are, unedited and unexpurgated, the notes I took while reading the act. They are very quick and dirty, but I gotta run. My apologies in advance.

Sec. 3 (9) — Defines “troubled assets” to. Section (a) includes not only securities, but “obligations, or other instruments” related to mortgage assets, while Sec. (b) allows

any other financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal Reserve System, determines the purchase of which is necessary to promote financial market stability, but only upon transmittal of such determination, in writing, to the appropriate committees of Congress

The word “obligations” in (a) means that Treasury is authorized to assume the liabilities of private parties. The phrase “any other financial instrument” in (b) is very broad, and could include entering into contracts that put taxpayers on the hook for far more than any upfront cost. It’s clear that Congress recognized the danger associated with “any other financial instrument”, and insisted on some check. I would prefer this check be stronger, at least permitting “appropriate committees” to object, not merely be notified of a trade. In any case, the non-security “obligations, and other instruments” defined in Sec (a) need to be subject to the checks and oversight defined in Section (b). Assuming contingent liabilities can create a hole in the public balance sheet regardless of whether those liabilities are related to mortgages or other assets.

Sec. 101 (d) — Requires publication of

(1) Mechanisms for purchasing troubled assets.
(2) Methods for pricing and valuing troubled assets.
(3) Procedures for selecting asset managers.
(4) Criteria for identifying troubled assets for purchase.


Sec. 102 — Not only authorizes, but requires the Secretary to start a program to provide Federal insurance of troubled assets, if the core TARP program is implemented. I have a great deal of respect for the House Republicans for having slowed down this train, and still harbor some hope that they may stop it. But adding this insurance program is positively harmful. It increases the potential cost to taxpayers, if actuarially estimated premia turn out not to cover the cost of the claims. The "concession" the Republicans have insisted upon ended up creating a new potential hole in the taxpayer balance sheet. Two wrongs don't make a right, and two bad programs don't help the taxpayer. We'd be better off without this section. The insurance program creates a loophole by which taxpayer money can be given away, and th resulting losses blamed on good faith bad estimates. (Justin Fox points out that while the program is mandatory, the actual extension of guarantees is at the Treasury Secretary's discretion. I'm less confident that guarantees won't be offered than Justin is.)

Sec. 104 — The members of the newly defined "Financial Stability Oversight Board" are all members of the Executive Branch, with the exception of the Federal Reserve Chair, who is appointed by the President. WTF? There should be significant Congressional representation on this committee. The era of trusting the executive branch to do the right thing is long passed. Having only "reports and recommendations" sent to Congress is insufficient. It let's this committee set the options and determine the range of reasonable debate, just as Paulson and Bernanke did to us last weekend.

Also, it is insufficient that the reports and recommendations of the Oversight Board (which include financial statements, justification of prices paid, etc.) be sent to Congress. They should be made public.

Sec. 106 (d) — Requires that at least 20% of any profits be transferred to specific funds. That's dumb. These assets are being purchased from the General Fund of the Treasury. The General Fund of the Treasury should be made whole. If Congress wants to support the "Housing Trust Fund" or "Capital Magnet Fund" it should do that in separate legislation. Let's try to make the taxpayer whole, and then worry about make use of all our profits.

Sec. 107 (a) — Permits a "streamlined" contracting process under which ordinary checks on Federal contracting can be circumvented, if the justification for the circumvention is submitted to various committees. Given the plum jobs this act could create for financial intermediaries, and the degree to which precedents for extortionate compensation can be found in private sector contracts (2 and 20, anyone?), I am deeply uncomfortable with this. The Bush Administration has not won the public's trust with respect to no-bid contracting. "Streamlined" contracting should require more than notification, but active approval by some third party, and notification that contracts have been awarded through the streamlined process should be public, along with full details of the contracted arrangement.

Sec. 111 — This is the section containing the vaunted restrictions on executive pay. I cannot quicky understand or summarize it, as different rules apply for firms accepting direct purchases, participating in other ways, "golden parachutes", etc. I am suspicious that in all of this complexity there is room for the Treasury and firms to structure their participation in such a way as to evade the restrictions and penalties defined in the act. But I don't have the time or legal experience to think about all of the different what-ifs, and how this very complicated section of the act might apply.

Sec. 112 — Permits the Treasury to take "troubled assets" off the hands of foreign central banks, if the assets were issued by financial institutions that have defaulted. Whoa! What's this all about?

Sec. 113(2)(b) — The Treasury is specifically authorized not to purchase at the lowest price possible, but to purchase "at the lowest price that the Secretary determines to be consistent with the purposes of this Act". That's comforting.

Sec. 113(d) — While in general the Treasury has to acquire warrants or debt from participating firms, this section is much weaker than the "make whole" requirement reported in the Dodd proposal. The Secretary has complete discretion over the terms of these arrangements

(i) to provide for reasonable participa-
tion by the Secretary, for the benefit of
taxpayers, in equity appreciation in the
case of a warrant, or a reasonable interest
rate premium, in the case of a debt instru-
ment; and
(ii) to provide additional protection
for the taxpayer against losses from sale of
assets by the Secretary under this Act and
the administrative expenses of the TARP.

That's it. There are no teeth, nothing that says if a firm fobs an asset off and forces a serious loss on taxpayers, the Treasury will achieve a claim on the firm sufficient to make it whole.

Sec. 114 — Market Transparency. The good part:

To facilitate market transparency, the Secretary shall make available to the public, in electronic form, a description, amounts, and pricing of assets acquired under this Act, within 2 business days of purchase, trade, or other disposition.

The bad part: buying "assets" doesn't begin to cover all that TARP is permitted to do. What about the obligations or contingent liabilities it assumes? Those should be made public as well.

Sec. 115 — This is the part about the size of the TARP's balance sheet, including the celebrated "installment plan". It retains the huge loophole that restrictions apply to the size of TARP's balance sheet "outstanding at any one time". That is, Treasury could spend more money than these limitations seem to imply by purchasing and then reselling assets at a loss, then purchasing more. There are restrictions elsewhere, suggesting that Treasury must either hold-to-maturity or sell when it would be most advantageous to the taxpayer, but that leaves a whole lot of wiggle room. Treasury can always purchase, then claim to have revised its valuation and sell "advantageously" at a loss.

There's a lot of verbiage in this section about the procedure by which Congress could refuse the second $350B installment. The details are beyond my comprehension or interest, but broadly, by default Treasury gets the second installment unless it is specifically blocked by action of Congress.

Sec. 128 — Though there's no indication of what this is about in the plain language of the act, this is a stealthy acceleration of the Fed's ability to pay interest on deposits (ht commenter Rue The Day).

Sec. 131 — It looks like someone didn't like that the Treasury's guarantee of money market funds made use of the Exchange Stabilization Fund.

Sec. 132 — The SEC can suspend mark-to-market accounting requirements.

Sec. 134 — Recoupment... a ridiculous kick-the-can down the road, after 5 years we'll bill participants in the program for any loss. Right.

Sec. 310 — Looks like some kind of tax relief for losers on Freddie and Fannie preferred.


5 Responses to “TARP, first public draft”

  1. anon writes:

    Looks like equity participation is required only for direct purchases, not for auctions?

  2. anon — reading the section 113(a)(1) about compensation gives that impression, but in 112(d) that i specifically about “warrants and debt instruments”, I couldn’t find an exception based on type of purchase. it seemed to me like there might have been a change made in one place or the other, but not consistently resolved. but i might well just have missed something. where do you see that?

  3. anon writes:

    113 c) says “shall pursue additional measures”, which is immediately followed by 113 d)

    its as if the title of 113 d) should have read “conditions on DIRECT purchase authority …”

    Also, Krugman interprets it the same way:


  4. first… in my previous comment, i had the section numbers backwards… it’s 112(a)(1) about compensation, and 113(d) about warrants and debt.

    whatever it should have said, 113(d) as written is not restricted to direct purchases, unless there’s something subtle that I’m missing:


    (1) IN GENERAL. — The Secretary may not pur-

    chase, or make any commitment to purchase, any

    troubled asset under the authority of this Act, unless

    the Secretary receives from the financial institution

    from which such assets are to be purchased…

  5. anon writes:

    I agree, as written … but the last sentence of the preceding c) section that leads into it is conditioned on the exclusion of the auction process … what additional measures are they talking about? … I assumed it was the warrants, but maybe that’s wrong because its not a “pricing measure” …