With demand for accountability soaring, the GAO has been given audit power over Fed’s TARP lending, even as Geithner opens "giant loophole" for banker secrecy in derivatives clearinghouse plan

Aaron Dykes / Jones Report | June 2, 2009

"The banks run the place," Rep. Collin Peterson cried out this week. The New York Times reports that he has a bill that would specifically ban derivatives from trading in a clearinghouse regulated by the New York Federal Reserve, which Peterson blasted as "a tool of the big banks."

A "tool" because the nine biggest banks in the derivatives market– including JP Morgan Chase, Goldman Sachs, Citigroup and Bank of America– all met secretly to discuss how to use the lax regulation and institutional secrecy of the NY Fed to shield their credit-default swaps business from prying eyes and attempts at regulation, as the Times reports:

As the financial crisis entered one of its darkest phases in October, a handful of the nation’s largest banks began holding daily telephone sessions. Murmurs were already emanating from Washington about the need for a wide-ranging regulatory overhaul, and Wall Street executives girded for a fight.

Atop the agenda during their calls: how to counter an expected attempt to rein in credit-default swaps and other derivatives — the sophisticated and profitable financial instruments that were intended to limit risk but instead had helped take the economy to the brink of disaster.

What’s more, the banks formed a lobby– the CDS Dealers Consortium– only weeks after accepting TARP funds in October 2008 to protect its interests. Heading this effort is Edward Rosen, who previously helped fend off derivatives regulation. Rosen wrote and circulated a "confidential memo" to the ‘Treasury Department and leaders on Capital Hill’ making their agenda clear, the Times reported.

Rosen and his backers propose that derivatives be "traded in privately managed clearinghouses, with less disclosure," according to the Times. The clearinghouse of choice for the big banks in Rosen’s CDS Consortium is ICE U.S. Trust, which is in turned regulated only by the Federal Reserve system.

Mr. Rosen’s confidential memo, dated Feb. 10 and obtained by The New York Times, recommended that the biggest participants in the derivatives market should continue to be overseen by the Federal Reserve Board. Critics say the Fed has been an overly friendly regulator, which is why big banks favor it.

Ironically, the Times notes, Treasury Secretary Tim Geithner, former president of the New York Federal Reserve, submitted a plan similar to Rosen’s, although Treasury officials stated the proposal was "independent." Although Geithner vowed to make derivatives "more accountable", critics say the emphasis on clearinghouses in the plan is a "major loophole" because ‘little disclosure would be required’ for any ‘customized’ swap.

It is clear that banks, who wanted their credit swaps to remain private, counted on the lack of transparency over Federal Reserve affairs to keep derivative affairs in the dark, thus enhancing their profit potential. It is further clear that Treasury Secretary Geithner intended to help them in that aim.

Senator Tom Harkin said the loophole "could be worth trillions and trillions of swaps," blasting it as "a loophole big enough to drive a truck through."

Derivatives are the bulk of the "toxic assets" TARP was set up to fight– and total an astounding $1.5 quadrillion in estimate.

REGULATING THE FEDERAL RESERVE

Bloomberg reported Friday that the "Fed’s Role in AIG May Be First Target of GAO Audit." President Obama signed into law on May 20 a "Fed clause" giving the Government Accounting Office (GAO) the "power to examine the Federal Reserve’s emergency aid to specific companies, such as AIG, Bank of America Corp. and Citigroup Inc."

The new law is designed to give the GAO access to records and people at the Fed’s Board of Governors in Washington as well as the 12 district banks, such as the New York Fed, which has been the government’s lead day-to-day supervisor of AIG.

Under what Bloomberg has called "war powers", the Fed has issued "an unprecedented expansion of credit to nonbank financial firms… invoking emergency powers and doubling its assets the past year."

The authority is notably only a half-measure. Bloomberg notes that it "doesn’t remove limits from a 1978 law that prohibits the GAO from peering into Fed activities involving monetary policy or discount-window loans to banks."

Fed chairman Ben Bernanke stated he would have no objections to audits, so long as there was no examination of monetary policy. He stated clearly, "I certainly would resist any attempt to dictate to the Federal Reserve how to make monetary policy."

Bloomberg makes a distinction from the "more intrusive" legislation introduced in the House by Ron Paul and in the Senate by Bernie Sanders. Those bills now have well over a hundred sponsors. Sanders was rebuffed by Ben Bernanke previously during TARP hearings after he demanded to know who the Fed lent money to and was told frankly, "No."

Those bills, which haven’t made it past the initial stage of being introduced in Congress, would remove limits on GAO audits of the Fed and direct the agency to issue a report on the central bank by the end of next year.

Nevertheless, information about the meeting of the big banks shows that there is a desire to keep the Federal Reserve and its dealings quiet at a time when interest in the Fed’s actions is at an all-time high. Any move to bring accountability to that institution is positive, even if insufficient.