Is anything still ‘too big to fail’?

By Joe Nocera

Friday, July 25, 2014 | 2:01 a.m.

Ralph Nader has written a new book, titled “Unstoppable: The Emerging Left-Right Alliance to Dismantle the Corporate State.” If you spend any time looking into the current state of affairs with the Dodd-Frank Act — Monday was the fourth anniversary of the law enacted to ensure that the country never suffers through another financial crisis like the one in 2008 — you’d have to say that he has a point.

There are many aspects of the law on which Democrats and Republicans disagree. But there is one area in which the two sides are largely in agreement: “Too big to fail” is still with us.

“In no way, shape or form does the Dodd-Frank Act end ‘too big to fail,’ ” said Rep. Jeb Hensarling, R-Texas, chairman of the House Financial Services Committee.

“The chances of another financial crisis will remain unacceptably high as long as there are financial institutions that are ‘too big to fail,’ ” Sen. Elizabeth Warren, D-Mass., wrote in an opinion article she co-wrote with, among others, Sen. John McCain, R-Ariz.

Dodd-Frank, of course, was supposed to end “too big to fail,” the catchphrase for a financial institution whose collapse had the potential to bring down the entire financial system. That prospect is why, less than a month after the bankruptcy of Lehman Bros., the government handed billions of dollars to the big banks to help stabilize them.

In some ways, eliminating the possibility of future bank bailouts was the whole point of Dodd-Frank. Partly this was for populist reasons: Americans were outraged that the banks were bailed out while the country got the worst of the Great Recession.

But it was also just good public policy. Karen Petrou, the managing partner of Federal Financial Analytics, told me that if the too-big-to-fail provisions in the law worked, “the rest of the law wouldn’t matter that much because the market would discipline the institutions.” But, she added, “I don’t think the Federal Reserve or the FDIC” — the Federal Deposit Insurance Corp. — “is prepared to handle a systemic crisis for one of the big banks.”

To be sure, the Treasury Department insists that the days of “too big to fail” are over. In a recent speech, Mary John Miller, the Treasury’s undersecretary for domestic finance, said, “No financial institution, regardless of its size, will be bailed out by taxpayers again.” She added, “Shareholders of failed companies will be wiped out; creditors will absorb losses; culpable management will not be retained and may have their compensation clawed back.” But the markets don’t believe it, and neither do most people who pay attention to Dodd-Frank.

There are two essential problems. The first is that it is hard to imagine that the government wouldn’t blink, as it did in 2008. “Does anyone really believe that if any of the big banks were about to go down, that the government would allow that to happen?” asked Dean Baker, a co-founder of the progressive Center for Economic and Policy Research. “No.”

The second problem is that it is difficult to envision how the law itself would “resolve” these institutions. In one part of Dodd-Frank, the banks are required to write “living wills,” laying out how they could wind down without causing a financial catastrophe. Although they are now on their third round of living wills, the documents are thousands of pages, and the government hasn’t yet told them whether the second round of living wills, filed a year or so ago, passed muster.

The law also says that if the regulators find the living wills too unwieldy and difficult to execute, it can force banks and financial institutions to shed assets and simplify their structures to make them easier to wind down. Warren and other lawmakers have pointed to this provision as something that could — if regulators pushed for it — force the banks to look more like they did pre-deregulation: with a division between commercial banks and investment banks.

Meanwhile, there is another part of Dodd-Frank that calls for banks to wind down through a process called orderly liquidation. In this scenario, the government puts the functioning parts of the bank into a new “bridge financial company” and forces the private sector — shareholders, certain creditors, even assessments on other financial institutions if it comes to that — to take losses. Although the Treasury Department insists that the law forbids public money from being used, there are a lot of economists who have a hard time believing that taxpayer money would not somehow be used if things got really bad.

One person who does believe is Sheila Bair, the former chairwoman of the FDIC. “I do think they could handle a big bank failure,” she told me. “It would be messy and difficult, but they could do it.”

Which is the ultimate problem: We have no way of knowing whether “too big to fail” still exists until we have another crisis. Let’s just hope we don’t have to find out anytime soon.

Joe Nocera is a columnist for The New York Times.