How NPR Mangled Geithner’s Plan For OTC Derivatives

Also published on the Atlantic Monthly’s Business Channel.

Timothy Geithner has released his proposal on how to regulate the OTC derivatives market. The proposal is broad in its scope and the regulations proposed would have a profound impact on market practice if implemented. Despite this, the sleuths at NPR claim to have discovered a “huge loophole” in the plan. I’ve also been studying both Geithner’s proposal and the NPR article on the subject, and the only holes that I found were in NPR’s understanding of the OTC market. In order to fully understand the earthly implications of Geithner’s policies and the gargantuan errors made on Planet Money, we should probably understand what the OTC derivatives market is. So, let’s begin with a brief overview of what the OTC market is and what it isn’t.

What Is An OTC Derivative?

A derivative is a contract that derives its value by reference to “something else.” That something else can be pretty much anything that can be objectively observed and measured. That said, when people talk about derivatives, the “something else” is usually an index, rate, or security. For example, an option to purchase common stock is a fairly well-known and ubiquitous derivative. So are futures for commodities such as pork belly and oil. However, these are not the kind of derivatives that Geithner is talking about. Geithner is talking about OTC derivatives, or “over the counter” derivatives. This category of derivatives includes the much maligned “credit default swap” market, as well as other larger but apparently less notorious markets, such as the interest rate and foreign exchange derivatives markets. The key defining characteristic of an OTC derivative is that it is entered into directly between the parties. This is in contrast to exchange-traded derivatives, such as options to purchase common stock. Highly bespoke OTC derivatives are often negotiated at length between the parties and involve a great deal of collaboration between bankers, lawyers, and other consultants. For other, more standardized OTC contracts, commonly referred to as “plain vanilla trades”, contracts can be entered into on a much more rapid and informal basis, e.g., via email.

For the limited purpose of wrapping your head around the world of derivatives, think of all derivatives as being in one of three broad categories: (1) exchange-traded derivatives (e.g., options on common stock and futures on pork belly); (2) standardized OTC contracts (e.g., your basic credit default swap); and (3) bespoke OTC contracts (transaction specific, often more complex instruments).

The “Huge Loophole”

NPR claims that Geithner’s proposal has a “huge loophole”, which they uncover through the following summary:

- Banks and other players have to tell the government when they buy and sell these derivatives. That means the government can know how many are out there and who has them.

- If banks and others are buying and selling standardized derivatives, they must trade them on an exchange, sort of like how stocks are traded on an exchange. That way it’s more transparent and the prices should more accurately reflect the market sentiment.

- But — and here’s the big but — banks and others are perfectly free to continue trading custom-made derivatives as private transactions between two parties.

In case you didn’t catch it, that last part was supposed to be the clincher. But before we can appreciate why it’s not a clincher, we need to do a bit more homework on the OTC market. In Geithner’s proposal, there’s a lot of talk about CCPs, or “central counterparties.” These are often incorrectly equated with exchanges. CCPs are not exchanges. They are exactly what their name suggests: a central counterparty for swaps of a particular type. After two parties enter into an OTC trade together, they novate, or more colloquially, move their trades to the CCP. So unlike trades executed on an exchange, CCP trades are entered into directly between the two parties, but later shifted over to the CCP. There are a lot of reasons why this is done, and they’re beyond the scope of this article. But if you’re interested in reading more about CCPs, go here. The key take-away is that CCPs are not exchanges, but more like risk repository/management systems where trades get moved to after they’re executed.

So, NPR believes that because OTC market participants are not forced to trade on exchanges, their trades will continue to be unnoticed and unregulated. This is completely false for two reasons: first, trades that are capable of being moved to a CCP would be required to be moved to a CCP under Geithner’s plan; second, even if they weren’t, Geithner’s plan calls for all OTC trades, including those in the third bespoke category, to be recorded in what are known as “trade repositories,” such as DTCC’s Deriv/SERV. Here is the relevant language from Geithner’s proposal:

[I]f an OTC derivative is accepted for clearing by one or more fully regulated CCPs, it should create a presumption that it is a standardized contract and thus required to be cleared.

[A]ll trades not cleared by CCPs [are] to be reported to a regulated trade repository.

This is in contrast to NPR’s second point above, which asserts that all such trades would be traded on an exchange. That is wrong. What this says is: all trades that can be moved to a CCP (not an exchange) should be, and it will be assumed that this is required; and if they’re not moved to a CCP, they have to be recorded in a trade repository. So, by definition, this proposal would make regulators aware of every single trade in the OTC market since every trade is either on a CCP, in which case the CCP will record its existence, or not on a CCP, in which case the trade repository will record its existence. But how do we explain NPR’s blunder in their third point? That blunder comes from yet another equivocation between a CCP and an exchange. The relevant language from Geithner’s proposal is as follows:

[Relevant laws should be amended to impose] the encouragement of regulated institutions to make greater use of regulated exchange-traded derivatives.

NPR hones in on the “encourage” language, taking this to mean that market participants will have a choice between using an exchange or being unregulated financial pirates. Of course, those swashbuckling financiers will choose the latter. As I’m sure you’re starting to see, this is a false dilemma. What Geithner is suggesting here is that regulated institutions avoid the OTC market altogether, and make use of derivatives from the first category above (the exchange traded ones). Of course, such a policy should be suggestive and not prescriptive, because contrary to popular belief, OTC products serve legitimate needs that exchange traded products don’t meet, at least not yet.

Customized Misinformation

No finance bashing story is complete without a kooky conspiracy theory, and so in order to fulfil the meme, NPR offers us an explanation as to why those crazy credit default swaps are so darn complex:

It seems reasonable to expect that every single sales team on Wall Street will work very hard to convince their customers that they have Very Special, One-Of-A-Kind Credit Derivatives that are far better than the boring old ones traded on the exchange.

Unfortunately for NPR, this is complete nonsense. The vast majority of credit default swaps are completely standardized and have been for a while. Recent changes to how CDS are priced has increased fungibility even further. In fact, one of NPR’s commenters actually pointed this out. The NPR commenter writes:

Virtually ALL CDS contracts are standardized. Which is to say that I can open a position with Goldman Sachs and unwind that position at Citigroup. These instruments will be covered under the Obama proposal and are well suited to being exchange traded. Are there bespoke products available in the derivative market place? Absolutely. But they account for a minuscule portion of the overall business.

But NPR doesn’t stop there. Acknowledging the possibility (fact) that they are wrong about standardized CDS, they go on to claim that:

[Even assuming the commenter] is right (he probably is) and most currently-traded CDS would qualify for a new exchange or clearinghouse; it seems fair to guess that lots of CDS operations will be looking for ways to avoid that clearinghouse and all the extra regulation and transparency and lowered commissions it brings with it.

Yet again, unfortunately for NPR, that is more nonsense. The major swap dealers have already set up a CCP on their own, before regulators required them to do so, and are currently moving trades to it. Swap dealers do not make money by over-complicating products and duping trillions of dollars worth of capital. They make money by creating a market. That is, they buy and sell swaps, creating a market, and pocket the difference between the prices at which they buy and sell. If you want to use jargon, you would say they create “liquidity” for swaps. That’s their business. Making complicated products that aren’t fungible does not advance that business model. Even more importantly, as we noted above, Geithner’s proposal wouldn’t let them off the hook simply because they used bespoke products. If the trade is accepted on a CCP, it is presumed to be required to go there. And even if it’s not, it gets reported anyway.

Clearly Planet Money doesn’t think it’s a very good proposal. But in my humble opinion, it’s at least a reasonable proposal for the residents of planet Earth.