In
THIS LINK; AN ANALYSIS of HR 1461; This is an important read for anyone interested in the disaster that was the house bill:
A FEW ITEMS FROM THE ABOVE LINK AT AEI:
The bill ... [was] far from a tough bill. Indeed,
HR 1641 [was] so fundamentally flawed as a reform measure that it would leave the two GSEs much better off than ... under current law.
The analysis was written prior to the failure of the US Senate to pass a companion bill:
To take the most egregious example, the bill limits OFHEOs activities immediately after enactment to winding up its operations, but does not authorize the new regulator to begin operations for a year.
In the meantime, the GSEs (including the Federal Home Loan Banks) are free from safety-and-soundness oversight, and their expansion into new lines of business would not be controlled. Then, when the new regulator begins operations, it is prohibited from reviewing the activities in which Fannie and Freddie are already engaged. The result is a hiatus in which Fannie and Freddie have a free pass to enter any field that might arguably be related to their mission, with little authority in the new regulator to question its legitimacy under the law.
This provision alone should be of concern to the many housing-related industries that might find themselves competing with Fannie and Freddie one year after the enactment of a law that contains the elements of this bill.
The Senate appropriations committee recently attempted to deny OFHEO the funds needed to complete the Special Examination Report of Fannie Mae. That report revealed internal control failures so substantial that they caused the ouster of Fannie Maes CEO, CFO, and other senior officers. Thus, it would be a welcome improvement to remove OFHEO from pressure Congress can exert on the regulator through the appropriations process. In addition, H.R. 1461 does make some improvements in the weak regulatory framework available to OFHEO today, but these improvements in regulatory authority over the GSEs do not bring the regulation of the GSEs up to the standard of federal bank regulation.
Fannie and Freddie have far more political clout than individual banks, or even the entire banking industry, and that must be taken into account when considering whether the new regulator will be able to exercise its new powers effectively or resist pressure from the GSEs to expand their range of activities.
Opportunities for the GSEs: The one-year gap means that, for a full year, the GSEs will operate without examination, regulation of safety and soundness, regulation of their new activities, or regulation of their affordable housing activities. For the GSEs, this is a great benefit. They will be able to expand into new activities which, thanks to another part of the bill, would be grandfathered and immune from review when the new regulator finally comes into being.
For example, it is conceivable that they could enter many new areas of activity during this period without any regulator having authority to stop them.
Opportunities for the GSEs:
It is certain that if the regulator attempts to put a definition in place that in any way restricts Fannie and Freddie, they will go either to the courts or Congress and challenge the regulators action. What clearly happened here is that the committee ducked its responsibility to give the regulator any help in dealing with these powerful companies, and left the task of restricting their expansion outside the secondary mortgage market wholly unfinished. As a result, because of the political power of the enterprises, no industry associated with housing can be assured that it will not have to compete one day with Fannie or Freddie, or both.
While H.R. 1461 does make some improvements in
the regulators enforcement authority, the authority of the regulator remains inferior to that of the federal bank regulators. Given the demonstrated failure of internal controls at Fannie and Freddie, the huge potential risks they create for the taxpayers and the economy generally, and
their enormous and carefully cultivated political power, the supervisory structure for the GSEs should be stronger--not weaker--than that in place for banks. That, however, is not the pattern in HR 1461.
Accordingly, the bill does not substantially improve on the authorities now available to OFHEO if an enterprise suffers sudden and severe losses, and
does not take account of the fact that a failing enterprise may have significant systemic effects that require emergency action.
Even if the predicate exists for the appointment of a receiver under these circumstances, the regulator is not required to do so--providing an opportunity for Fannie or Freddie to put political pressure on the regulator that will result in costly forbearance.
Opportunities for Fannie and Freddie: The problem with loose and missing supervisory language is that
it invites a GSE to litigate rather than comply with a regulators requests and orders. Litigation at a time of financial crisis is potentially damaging to taxpayers because of the likelihood that a failing GSE would dissipate its assets and, like the S&Ls in the midst of their crisis in the late 1980s, compound its losses. Litigation would mean that the bank regulatory term prompt corrective action loses its promptness when applied to the GSEs.
Current law: Currently the Office of Federal Housing Enterprise Oversight (OFHEO), the safety-and-soundness regulator of Fannie Mae and Freddie Mac, and the GSE oversight functions of the Department of Housing and Urban Development (HUD), both are funded through the appropriations process.
Fannie Mae and Freddie Mac have repeatedly used their influence over the appropriations process to deny adequate funding for important OFHEO activities, most recently the OFHEO Special Examination of Fannie Mae.
H.R. 1461 also lacks other important safeguards. Laws are needed to (i) prohibit GSE retaliation against those organizations or individuals that oppose the GSEs through lawful means and (ii) require transparency of the GSEs massive political expenditures to influence the Congress and other policymakers. These protective measures can help to limit unfair practices and reveal more clearly in public some of the immense political power that the GSEs wield.