Bernanke’s Moral Hazard

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The New York Sun

President Reagan used to say that the nine most terrifying words in the English language are “I’m from the government, and I’m here to help.” For an example of what he was talking about one is likely to gain a glimpse via a deposition scheduled as soon as later this month, when the chairman of the Federal Reserve, Ben Bernanke, is scheduled to be forced to answer questions under oath.

Let us just say that this sort of thing doesn’t happen every day. The suit is being brought against the United States by the Starr International Company, which was an owner of AIG. Starr is headed by AIG’s former chairman, Maurice “Hank” Greenberg, who contends that when the government bailed out AIG, it wiped out the equity of the company’s shareholders.

If that sounds like ingratitude, feature the Fifth Amendment. It is at the heart of the Bill of Rights. It says, among other things, that no person shall be deprived of property “without due process of law” and prohibits the government from taking private property for public use “without just compensation.” That’s American bedrock.

Greenberg, who built AIG and ran it for decades, is arguing that, in effect, the government nationalized AIG at a fraction of its value, costing Starr, a major shareholder, billions of dollars. He concedes that AIG needed a bailout, but he disputes that the government needed to seize AIGs shares and suggests the government singled out AIG for particularly onerous — punitive — terms.

When Starr International issued a notice that it would depose Mr. Bernanke, the Obama administration went into a panic, at least to judge by the intensity with which it sought to get Mr. Bernanke off the hook. It filed a motion in the case suggesting that because Mr. Bernanke “is essentially responsible for the orderly operation of the United States financial and banking systems,” bothering him “for even a day” could have “untoward results.”

The judge in the case, Thomas Wheeler of the United States Court of Federal Claims, is no dummy. He ruled in no uncertain terms that Mr. Bernanke would indeed have to testify. “The court cannot fathom having to decide this multibillion-dollar claim without the testimony of such a key government decision-maker,” he wrote.

To top things off, the judge said he’d attend the deposition personally and be prepared to deal with objections and procedural matters on the spot. It may be that Mr. Bernanke can squirm out of this on appeal, but it may be that someone — for the first time — will get Mr. Bernanke into a position where he won’t be able to dodge the hard questions.

Like his own moral hazard. That is a phrase that connotes a situation in which someone is tempted to take an undue risk because someone else is bearing the cost. Mr. Bernanke used the phrase in testimony about AIG he made to Congress. He said that to mitigate concerns that the bailout of AIG would “exacerbate moral hazard” and “encourage inappropriate risk taking,” the Fed imposed significant costs and constraints on AIG’s owners.

What does that mean in plain English? Starr International’s complaint refers to what it calls a banker hired to represent the interests of the Federal Reserve Bank of New York. It quotes the banker as remarking that “the basic terms of these transactions amounted to an attempt to ‘steal the business.’”

Nor was all this without controversy behind the scenes. The treasury secretary at the time, Henry Paulson, has written a book about the 2008 financial panic. In a meeting at the time with congressional leaders, including Senators Reid, Dodd, and Gregg, and Congressmen John Boehner and Barney Frank, Mr. Paulson reported that Mr. Dodd twice asked “how the Fed had the authority to lend to an insurance company and seize control of it.”

Mr. Paulson related that Mr. Bernanke explained that the Federal Reserve Act “allowed the central bank to take such actions under ‘unusual and exigent’ circumstances.’” In his own book, “The AIG Story,” Mr. Greenberg asserts that the statute, in fact, did not authorize the Fed to seize control of private property. He argues that the constitutionality of any such provision would be doubtful.

Mr. Paulson goes on to quote Senator Reid as telling Mr. Bernanke: “You’ve heard what people have to say. I want to be absolutely clear that Congress has not given you formal approval to take action. This is your responsibility and your decision.” Later, when in 2009 Mr. Bernanke was being questioned by an angry Senate, he confessed, “If there’s a single episode in this entire 18 months that has made me more angry, I can’t think of one, than AIG,”

So it looks like Starr International and Mr. Greenberg have a lot to ask Mr. Bernanke when they have him under oath. We do not suggest that Mr. Bernanke has been less than straightforward when he’s not under oath. But the deposition could offer a glimpse of whether Mr. Bernanke kept his head in a time of his own moral hazard, since he, too, was taking a risk with other people’s money. It will be a moment to remember the wisdom of Ronald Reagan and his warning about the danger that lurks when someone from the government says he is here to help.


The New York Sun

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