Sunday, July 15, 2012

LIBOR: Good Enough For Government

The Libor price fixing scandal keeps growing. Following Barclay's payment of $450 million in a settlement with regulators, word now comes of a U.S. Department of Justice criminal investigation into the morass. Indictments may come soon. Private civil lawsuits galore have been filed. The potential liabilities of the banks caught up in the scandal could run tens of billions, and maybe hundreds of billions if the price fixing is shown to have taken place over a sufficiently long period of time. If the latter were proven to be the case, many of the world's major banks would possibly be insolvent. Which would mean that the world's financial system could be at risk of collapse. Taxpayers on both sides of the Atlantic should brace themselves for yet another bailout of the major banks.

A crucial reason for the enormous potential liabilities is derivatives. (Yes, derivatives have done us in again.) The big banks that participated in setting Libor were often major dealers in the derivatives markets, and many of their products were based on Libor. That meant that they were exposed whether Libor was rising or falling. If they manipulated Libor up, one set of customers and/or counterparties would be injured (and therefore have a right to sue). If they manipulated Libor down, another set of customers and/or counterparties would be injured (and therefore have a right to sue). Since the price fixing could violate U.S. antitrust laws, the defendant banks may face liabilities for the treble damages permitted under the antitrust laws. Trebling the effect of the bad behavior could mean big, big money.

Vast legions of lawyers are now licking their chops at the prospect of suing or defending big banks with respect to the Libor mess. Their retirement accounts will reap rich harvests. Many will finance their childrens' higher educations with the fruits of their Libor engagements. And the modestly paid attorneys working on the government side of the cases can burnish their resumes with high profile cases.

If we want to reduce the likelihood of such windfalls for the legal profession--and, incidentally, enhance the integrity of the financial markets--we must find a better way to determine Libor. The British Bankers Association, a private organization that doesn't appear to be subject to direct government oversight, currently presides over the process of determining Libor. It's done a lousy job. Time to do a Trump and relieve BBA of this responsibility.

What's the best candidate for the job? The U.S. government. Not exactly the most obvious choice, but better than the alternatives. The private sector methodology for determining Libor was too easily infected with agendas and ulterior motives driven by the profit imperative. Government statisticians don't face such pressures. Admittedly, government statistics aren't perfect. But their methodologies are publicly known. We can praise or criticize those methodologies, and work to improve them. But we don't have to worry about price fixing.

One U.S. government statistic, the Consumer Price Index, plays a role in the economy comparable to Libor. Social Security benefits are adjusted when the CPI increases. Many public compensation schemes and private contracts adjust pay and/or benefits when the CPI increases. While numerous economists, statisticians, pundits, bloggers and other riff raff decry this or that about the CPI, no one has said it's secretly rigged. The Bureau of Labor Statistics is trusted to calculate and announce CPI figures.

Perhaps a group in the U.S. Commerce Department could be given the responsibility for determining Libor. (We should disregard America's special relationship with Britain and exclude the Brits from Libor calculations; they had their chance and blew it, big time.) The Commerce Department does not regulate any banks, nor does it have responsibility for monetary policy, nor does it finance the operations of the U.S. government. It has no vested interests, and could credibly determine Libor (preferably using actual market transactions, rather than the opinions of banks of the interest rate at which they could fund themselves, which is the formulation of Libor that has proven to be so problematic).

Having the U.S. government determine Libor would accomplish two important things. First, it would enhance the integrity and credibility of the announced rate. Since public confidence is, ultimately, the only thing that really matters in the financial markets, integrity and credibility are worthwhile. Second, a government determined rate wouldn't give rise to private liabilities the way that Libor has with each manipulated tick up and each manipulated tick down. The massive potential liabilities that major banks face, and the possible collapse of the financial system they could produce, would simply not arise. The cost of a handful of government statisticians putting out Libor might run a few million a year. The cost to taxpayers of bailing out the dodos at the big banks who have screwed up yet again could run billions and billions more and then billions more. At the risk of voicing a political heresy, there are some jobs government does better than the alternatives, and calculating Libor is one of them.

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