Stress Testing Government Regulations

Given that the economy will only grow more complex in the future, I find it disturbing how so many of us still run to Great God Government for top-down solutions to the intricacies of complex economic systems. I do believe there are many opportunities for improving the functioning of markets in the economy – for turning markets-as-we-find-them into what I call “smart markets” (or designer markets). But we continue to turn too quickly to poorly thought-out regulation to solve problems, often unaware of how previous poorly designed regulations created or contributed to the problems.

There’s been talk recently about “stress testing” the banks to determine their financial strength. It seems odd to me that we don’t say much at all about the need to stress test government regulations and institutions. Two of the tenets of the Proactionary Principle is to take a comprehensive and maximally objective look at proposed actions, policies, regulations, and institutions. Perhaps we need a constitutional amendment to require the stress testing of proposed regulations. They should be carefully tested under widely varying assumptions and scenarios.

Those looking for easy and centralized answers to current financial and economic problems have renewed the ideological attack on free markets… or on anything remotely close to free markets in our very heavily regulated economy. I have long since repudiated the “libertarian” label as inadequate to describe my economic and political views. Even so, I think the best answers to economic matters almost always reside in the smart design and use of markets rather than in direct government intervention. Since I don’t want to be taken to support the latter in the current situation, I feel compelled to list here some of the ways the government has caused or strongly contributed to the financial and economic problems.

I find ludicrous the claim that our problems result from a lack of regulation. The real situation is one of continuing heavy regulation but with decreased effectiveness and ever less accountability. As economist Tyler Cowen put it, “That’s dysfunctional governance, not laissez-faire.” He points out that, just in the regulatory category of finance and banking, inflation-adjusted expenditures have risen 43.5 percent from 1990 to 2008. The Federal Register puts out something like 70,000 pages of new regulations each year.

Between 1980 and 2007, the highest growth rate in regulation was in "homeland security". The second-largest growth rate was in regulation of finance and banking, where spending almost tripled, rising from $725 million to $2.07 billion. (See this for more details.)

Some of the worst things happened in the highly regulated housing and bank mortgage lending sectors, including among the government-sponsored mortgage agencies. Banks are regulated by rules and agencies including the Office of the Comptroller of the Currency, the international Basel accords on capital standards, state authorities, the Federal Reserve the Federal Deposit Insurance Corporation, and particular laws such as the Sarbanes-Oxley Act.

I don’t doubt that problems can arise in financial markets through poor decision making and herd behavior. But that doesn’t mean that regulation is the answer in most cases. In genuinely free markets, or anything close to them, problems will usually reveal themselves before they grow as large as the recent Western financial problems. They only grow monstrous if the government won’t allow the fuse to blow.

Some of the specific problematic regulations and institutions, in my view:

The Federal Reserve, formed by the government, played a central role in the financial crisis with its insistence on keeping interests too low for too long. The government thereby contributed to what economists call moral hazard.

The longstanding mortgage interest deduction encouraged overinvestment in real estate.

Fannie Mae and Freddie Mac were formed by the government and given a legally-enforced monopoly over “conforming loans.” These institutions contributed to the credit crisis by pushing money at borrowers who wouldn’t otherwise have received loans.

The Community Reinvestment Act (CRA) reinforced this problem when the government pressured banks to loan lots more money to people with bad credit. The mortgage market collapsed when many of those people could no longer repay the loans. The CRA, passed in 1977 and strengthen in 1995, compelled banks to extend loans in high-risk areas. If they refused to do so, they would be liable for fines and would find it harder to get approval for mergers and branch expansions.

The federal government added to the subprime problem through a change in regulations by the comptroller of the currency in December 2005. This triggered some mortgage borrowers to default.

In 1975, the SEC created a credit rating cartel by mandating that debt be rated by a Nationally Recognized Statistical Rating Organization (NRSRO). By establishing the NRSRO, the government raised barriers to entry, leaving those in the favored group protected from competition in the ratings business. It also spurred the inflation of debt ratings. How? Before the NRSRO, it was the debt buyers who had to go to the ratings agencies to evaluate what they were buying. After the NRSRO, it was the issuers of debt who sought out the ratings. Naturally they sought out the highest rating possible. [See this.]

Those are just a few of the bad moves originating in government regulations and institutions. I could also point to increased uncertainty created by inconsistent actions, such as the government bailing out AIG but not Lehman. The government even spurred the use of securitized mortgages through federal regulations allowing the banks to hold much smaller loan loss reserves on the condition that they used securitized mortgages.

The point here is not that the market works perfectly. Nor is it that all regulations necessarily make things worse. It is that regulations have unintended consequences and that therefore we should be applying much smarter and more critical thinking to how we design and evaluate them. I believe that the most promising role for regulation is in helping markets work better, that is, in creating smart markets. But the regulations listed above are of a different kind: they attempt to directly force the highly complex system that is the economy to produce outcomes desired by politicians and interest groups in the name of the public interest.