Behavior that almost led to systemic collapse would never have been permitted in a rational universe. Imagine, for instance, allowing individual students to pay individual professors for good grades and allowing those same professors to co-write student papers in ways that would guarantee A’s. But in the Wild West world of deregulated industry, this behavior was not just permissible but standard operating procedure.
With the explosion in structured products, rating agencies reaped a fortune from the very issuers who structured the products. In some cases, the rating agencies would actually work on structuring the products with the debt issuers to ensure that they achieved the best rating possible. And the more complicated the structured transaction, the more money the rating agencies stood to make.
The big losers in all this, of course, were the pension funds, mutual funds and others who relied on “investor grade” ratings, which turned out to be little more than voodoo science.
So what are government regulators prepared to do to avoid this calamity from happening again? As Securities and Exchange Commission Chairwoman Mary Schapiro testified this week, the SEC has taken incremental stepsto ban rate shopping and prevent employees from structuring the products they rate and is open to imposing liability standards on the firms. This is all to the good but does not address a root cause of this problem, which is that the very companies whose products are rated are the same companies paying for the rating. And as history has shown us time and time again, he who pays the piper calls the tune.
After the events of the past year, it is frankly outrageous that there is no outcry from our leaders to truly overhaul the current rating system. Tinkering at the edges is not enough. And make no mistake: allowing public companies to continue determining ratings for products issued by the very same firms which pay them is no different than allowing the wolf to guard the hen house.
Because rating agencies are unable to make unbiased decisions about the credit worthiness of increasingly complicated structured securities, they should no longer be the arbiters of creditworthiness. Instead, we need an independent regulatory agency, which can police the creditworthiness of these products without interference from issuers. Based on its recent history, I am not at all certain that the SEC has the ability to police these complicated products. One option, though by no means the only one, is to have a central issuer-funded pool financing a quasi-independent agency whose job it would be to rate structured financial products.
The current proposals by the SEC still do not go far enough. Preventing rating shopping won’t do much to solve the problem if rating agencies still know that clients will likely choose the firm which will give them the best deal. Similarly, disclosing that an issuer paid for the rating won’t do much to protect the consumer if that consumer has few other options in a market where issuers routinely pay for ratings.
Like inductees in a 12-Step program, some in Congress have acknowledged that the financial industry has played an outsized part in determining public policy, to the detriment of their constituents. Banks and others are now girding for a battle over the creation of a new consumer protection agency and that battle will heat up exponentially over the course of the next several months. The way debt is issued and valued is a key component in protecting consumers. It’s up to the Obama Administration and Congress to ensure that on this most basic of fronts, consumers are indeed protected.
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Julie Roginsky is a CNBC contributor who has extensive experience in government, politics and public relations on both the federal and state levels including serving as the Washington communications director for former Senator Jon Corzine.