The Federal Reserve has stretched its mandate up, down, and sideways to prevent a financial market deluge. Now it appears to be stretching the English language a bit as well. What the Fed is calling a $29 billion "loan" to help finance JPMorgan Chase's (JPM) purchase of Bear Stearns (BSC) looks much more like a $29 billion investment in securities owned by Bear. Although the Fed insists that it isn't technically buying any assets, in practical terms it's doing exactly that. All this adds up to a big and unacknowledged step up in the central bank's financial intervention with Wall Street investment banks.
The Fed, of course, is the only part of government with the speed, power, and flexibility to arrest a bout of market panic. By rapidly intervening in mid-March to keep Bear from filing for bankruptcy, it may well have prevented a series of cascading failures that could have severely damaged the financial system and the economy. Many economists and analysts are happy that the Fed stepped into the breach. Nevertheless, now that things have quieted down a bit, the Fed is likely to face some tough questions about the precise nature of its actions as well as the legal justification for them.
The second-guessing has already begun. On Mar. 26, Senate Banking, Housing, and Urban Affairs Chairman Christopher Dodd (D-Conn.) announced an Apr. 3 hearing to explore the "unprecedented arrangement" between the Fed, JPMorgan, and Bear. Top officials from the Fed and other regulators, as well as Bear Stearns CEO Alan Schwartz and JPMorgan CEO Jamie Dimon, will likely be grilled about the details.
"That Looks Like Equity"
Meanwhile, Treasury Secretary Henry Paulson gave the Fed a gentle prod on Mar. 26 in a speech to the Chamber of Commerce. While saying he fully supported the Fed's recent actions, Paulson stressed that "the process for obtaining funds by nonbanks must continue to be as transparent as possible." He also urged the Fed to continue to work with other agencies to get the information necessary for "making informed lending decisions."
So far, few people have focused on what exactly the Fed is getting in exchange for supplying $29 billion to JPMorgan Chase. That's a bit surprising because whatever the deal is, it's far from a standard loan. The strangest twist is that even though the money goes to JPMorgan, that firm isn't the borrower. So the Fed can't demand repayment from JPMorgan if the Bear assets turn out to be worth less than promised.
What's also odd is that if there's money left after loans are paid off, the Fed gets to keep the residual value for itself. That's what one would expect if the Fed were buying the assets, not just treating them as collateral for a loan. Vincent R. Reinhart, a former director of the Fed's Division of Monetary Affairs and now a resident scholar at the American Enterprise Institute, said in an interview on Mar. 26: "The New York Fed is the residual claimant. That doesn't look to me like a loan. That looks like equity."
An Arcane Arrangement
To understand what's going on, go back to the weekend of Mar. 15-16, when the Fed encouraged JPMorgan to buy Bear Stearns at a fire-sale price to keep Bear from going under and dragging other banks down with it. Even at $2 a share, JPMorgan wasn't willing to do the deal because lots of Bear's assets, despite having an investment-grade rating, were worth almost zero in the then-skittish marketplace.
So the Fed got creative. It set up an arcane arrangement that will give JPMorgan the full appraised value for some of Bear's assets if JPMorgan succeeds in acquiring Bear.
Here's how it works: A Delaware-based limited liability company will be set up to receive, upon completion of the merger, $30 billion in various Bear holdings, such as mortgage-backed securities. The Fed will lend $29 billion to that company, which will pass all the money along to JPMorgan, Bear's new owner. JPMorgan itself will lend $1 billion to the Delaware company. The company, managed by BlackRock Financial Management, will pay back the loans by gradually liquidating the assets. As a protection for the Fed, it gets paid back fully before JPMorgan gets back anything on its loan. The other sweetener for the Fed is that if there's money left over even after JPMorgan gets repaid, the Fed gets it all.
From an economic perspective, this complex arrangement is functionally identical to a purchase of the Bear portfolio by the Fed—one that's financed in small part by the subordinated $1 billion loan from JPMorgan. But the Federal Reserve Act doesn't seem to provide for the Fed to make such equity investments. That doesn't trouble the Fed because it argues that the $29 billion is indeed a loan—or, to use the antiquated language of the Fed's founding legislation, a "discount" of a "note."
Pushing the Limits
A word of explanation: The Federal Reserve Act allows the Fed to advance money to people and companies that can't get credit elsewhere. In the 1930s a big farmer, say, who gave the Fed a note promising to pay $1 million when the wheat crop came in might have gotten $900,000 immediately. (That's a discount from the note's face value to compensate the Fed for its trouble.) The Fed is now arguing that the Delaware company is like the Depression-era farmer, getting money up front ($29 billion) for a promise to pay something in the future.
Of course, the Delaware company is promising to pay not only principal and interest but any money left over as well. It's that residual interest that gives the deal its equity-like nature. But the Fed argues it's just another type of promise to pay that's fully covered under its charter.
If this case proves anything, it's that the Fed is ready to press the limits of its charter to keep the financial system afloat. Effectively acquiring the Bear assets at a bargain price and then liquidating them is similar to what Resolution Trust Corp. did when it shut down savings and loans and auctioned off their loan portfolios in the 1990s. The difference is that Congress set up the RTC but had nothing to do with the Fed's moves. Are the Fed's emergency actions justified? Probably. Are they going to come in for extremely close scrutiny? Bet on it.