To:Republican Members of the Committee on Oversight and Government Reform

MEMORANDUM

To:Republican Members of the Committee on Oversight and Government Reform

From:Republican Staff, Committee on Oversight and Government Reform

Re:Full Committee Hearing: “Following the Money: Report of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP)”

Hearing Date: Tuesday, July 21, 10:00 a.m.

On Tuesday, July 21, 2009, at 10:00 a.m., in room 2154 of the Rayburn House Office Building, the Committee will hold a hearing entitled, “Following the Money: Report of the Special Inspector General for the Troubled Asset Relief Program (“SIGTARP”).”

The Majority Staff Memorandumlays out background information about TARP and SIGTARP’s previous report, issued in April. The hearing will feature just one witness, Special Inspector General Neil M. Barofsky. Mr. Barofsky was confirmed by the Senate on December 8, 2008, and was sworn into office on December 15, 2008.

Mr. Barofsky will testify on the findings and recommendations included in SIGTARP’s third quarterly report to Congress and will also present the findings of SIGTARP’s first audit, entitled “SIGTARP Survey Demonstrates That Banks Can Provide Meaningful Information on Their Use of TARP Funds.”

This memorandum lays out key background information andquestions to be addressed at the hearing as well as the Minority’s views about the critical issues related to this matter.

Background

In response to severely contracted liquidity in global credit markets and insolvency threats to investment banks and other institutions, as well as catastrophic predictions and warnings by the Bush Administration, Congress passed the Emergency Economic Stabilization Act (“EESA”) on October 3, 2008. Pursuant to EESA, the Treasury Department created the Troubled Asset Relief Program (“TARP”), originally promoted to Congress by then-Treasury Secretary Henry Paulson as a method of buying up to $700 billion of “troubled” assets, defined generally as illiquid mortgage-backed securities.

Within days of EESA’s passage, however, Mr. Paulson abruptly changed course, marginalizing the purchase of toxic assets in favor of the injection of funds directly into banks and other financial institutions through the use of TARP funds to purchase equity stakes. Thus began the partial nationalization of the U.S. banking system. On October 13, 2008, ten days after Congress passed EESA, Mr. Paulson convened a meeting in Washington with nine major bank CEOs in which he gave the “banks no choice but to allow the government to take equity stakes in them.”[1] At that meeting, Mr. Paulson, as well as current Treasury Secretary Timothy Geithner, Federal Deposit Insurance Corporation (“FDIC”) Chairwoman Sheila Bair and Federal Reserve Chairman Ben Bernanke, forced these banks to sign “Major Financial Institution Participation Commitments,” in which the CEOs sold the U.S. Government preferred shares and warrants in exchange for $125 billion in TARP funds.[2]

According to Treasury officials, the final decision to abandon the toxic asset purchases in favor of further capital injections was made on October 26, 2008, with then-Secretary Paulson formally announcing the shift on November 12, 2008.[3] As of June 12, 2009, the Bush and Obama Administrations have used TARP funds to partially nationalize banks with the purchase of nearly $200 billion in preferred shares and subordinated debt from 623 financial institutions, ranging from $301,000 to $25 billion per institution.[4]

The Bush and Obama Administrations did not stop with a partial nationalization of the banking sector, however. As the SIGTARP, Neil Barofksy, has written in his prepared testimony for this hearing, “TARP funds are being used, or have been announced to be used, in connection with 12 separate programs that … involve a total (including TARP funds, loans and guarantees from other agencies, and private money) that could reach nearly $3 trillion.”[5]

In preparation for its third report to Congress and this hearing, SIGTARP provided the Committee with the following chart detailing the nearly $3 trillion in potential obligations subject to SIGTARP oversight:

Total Potential funds subject to sigtarp oversight, As of 6/30/2009($ Billions)
Program /
Brief Description or Participant / Total Projected
Funding at Risk ($) / Projected TARP
Funding ($)
Capital Purchase Program (“CPP”) / Investments in 649 banks to date; 8 institutions total $134 billion; received $70.1 billion in capital repayments / $218.0
($70.1) / $218.0
($70.1)
Automotive Industry Financing Program (“AIFP”) / GM, Chrysler, GMAC, Chrysler Financial; received $130.8 million in loan repayments (Chrysler Financial) / 79.3 / 79.3
Auto Supplier Support Program (“ASSP”) / Government-backed protection for auto parts suppliers / 5.0 / 5.0
Auto Warranty Commitment Program (“AWCP”) / Government-backed protection for warranties of cars sold during the GM and Chrysler bankruptcy restructuring periods / 0.6 / 0.6
Unlocking Credit for Small Businesses (“UCSB”) / Purchase of securities backed by SBA loans / 15.0 / 15.0
Systemically Significant Failing Institutions (“SSFI”) / AIG investment / 69.8 / 69.8
Targeted Investment Program (“TIP”) / Citigroup, Bank of America investments / 40.0 / 40.0
Asset Guarantee Program (“AGP”) / Citigroup, ring-fence asset guarantee / 301.0 / 5.0
Term Asset-Backed Securities Loan Facility (“TALF”) / FRBNY non-recourse loans for purchase of asset-backed securities / 1,000.0 / 80.0
Making Home Affordable (“MHA”) Program / Modification of mortgage loans / 75.0 / 50.0
Public-Private Investment Program (“PPIP”) / Disposition of legacy assets; Legacy Loans Program, Legacy Securities Program
(expansion of TALF) / 500.0 – 1,000.0 / 75.0
Capital Assistance Program (“CAP”) / Capital to qualified financial institutions; includes stress test / TBD / TBD
New Programs, or Funds Remaining for Existing Programs / Potential additional funding related to CAP; other programs / 131.4 / 131.4
Total / $2,365.0 – $2,865.0 / $699.0

Source: Written Statement of Neil Barofsky, July 21, 2009

While the above chart highlights the unprecedented government intervention in the free market by the Bush and Obama Administrations through TARP, these programs totaling nearly $3 trillion of potential obligations merely scratch the surface of the federal government’s intrusion into the private sector in the name of financial and economic stabilization. As Mr. Barofsky testifies in his written statement for today’s hearing,

[TARP] is just one part of a much broader Federal Government effort to stabilize and support the financial system. Since the onset of the financial crisis in 2007, the Federal Government, through many agencies, has implemented dozens of programs that are broadly designed to support the economy and financial system. The total potential Federal Government support could reach up to $23.7 trillion[emphasis added].[6]

Treasury’s Lack of Transparency with Regard to TARP

While it has proceeded with spending unparalleled amounts of taxpayer money, the Treasury department has developed a pattern of providing little or no transparency with regard to that spending, and continues to be unwilling to address transparency concerns raised by SIGTARP and this Committee. The following is from SIGTARP’s April 2009 quarterly report:

Treasury has indicated … that it will not adopt SIGTARP’s recommendation that all TARP recipients be required to do the following:

• Account for use of TARP funds
• Set up internal controls to comply with such accounting
• Report periodically to Treasury on the results, with appropriate sworn certifications[7]

Little has changed since SIGTARP’s April report. In his written testimony for today’s hearing, Mr. Barofksy states:

Although Treasury has taken some steps towards improving transparency in TARP programs, it has repeatedly failed to adopt recommendations that SIGTARP believes are essential to providing basic transparency and fulfill Treasury’s stated commitment to implement TARP “with the highest degree of accountability and transparency possible.”[8]

Ranking Member Darrell Issa, in a letter to Treasury Secretary Geithner on May 5, 2009, also raised issues about Treasury’s lack of transparency, citing President Obama’s promise of an unprecedented level of transparency and accountability for TARP and President Obama’s dissatisfaction with the Bush Treasury’s “failure to track how the money has been spent.”[9] Ranking Member Issa wrote:

While President Obama came into office promising change, all we’ve seen from your leadership at Treasury is a continuation of the Bush Administration’s failure to ensure adequate transparency of the use of taxpayer dollars by participants in the TARP.[10]

The Department of Treasury has refused repeatedly to require TARP recipients to report on their use of taxpayer funds, calling such reporting “meaningless” because of the inherent fungibility of money.[11] However, on March 11, 2009, the House Oversight Committee’s Domestic Policy Subcommittee received expert testimony from a variety of sources that the technology exists and is readily available to track TARP recipients’ use of taxpayer funds.[12] Specifically, the Subcommittee learned that eXtensible Business Reporting Language (“XBRL”), an XML-based technology standard for business information, has the potential to make financial information disclosure more transparent and more accessible to regulators, investors, and the general public. XBRL is already in place as a reporting standard in approximately 40 countries around the world, including China. Banks in the United States are currently required to disclose information to the FDIC in XBRL format, and the SEC recently approved a final rule mandating the use of XBRL for all public company reporting, with some companies required to comply starting in June of 2009.

At the hearing, former Assistant Secretary for Financial Stability, Neel Kashkari, assured the Subcommittee that he would look into technologies such as XBRL that would allow real time tracking of TARP expenditures. Ranking Member Issa followed up with Mr. Kashkari in a letter on March 25, 2009, asking him to report back after fulfilling his commitment to address these issues.[13] However, there was no response from Mr. Kashkari before he left office.

SIGTARP pointedly summarizes the implications of Treasury’s lack of transparency:

Unfortunately, in rejecting SIGTARP’s basic transparency recommendations, TARP has become a program in which taxpayers (i) are not being told what most of the TARP recipients are doing with their money, (ii) have still not been told how much their substantial investments are worth, and (iii) will not be told the full details of how their money is being invested. In SIGTARP’s view, the very credibility of TARP (and thus in large measure its chance of success) depends on whether Treasury will commit, indeed [sic] as in word, to operate TARP with the highest degree of transparency possible.[14]

Given the unprecedented amount of taxpayer funding involved and the manner in which it is being used by the Treasury Department, the American public deserves nothing less than the greatest level of transparency. Treasury’s continued unwillingness to provide basic transparency despite the many recommendations of SIGTARP and Congress and the repeated demonstration that meaningful data from TARP recipients can be gathered and easily disseminated is unacceptable.

SIGTARP Audit – Bank Use of TARP Funds

Treasury’s claim that TARP recipient reporting on use of funds would be “meaningless” is further refuted by SIGTARP’s release on July 20, 2009, of its first completed audit, in which nearly all banks surveyed by SIGTARP were able to provide meaningful information about how they are utilizing TARP funds, including what actions they are taking which they report they would otherwise not have been able to undertake without TARP funds.[15] SIGTARP’s key findings included:

• “More than 80 percent of the respondents cited the use of funds for lending or how it helped them avoid reduced lending. Many banks reported that lending would have been lower without TARP funds or would have come to a standstill.

• More than 40 percent of the respondents reported that they used some TARP funds to help maintain the capital cushions and reserves required by their banking regulators to be able to absorb unanticipated losses.

• Nearly a third of the respondents reported that they used some TARP funds to invest in agency-mortgage backed securities. These actions provided immediate support of the lending and borrowing activities of other banks and positioned the banks for increased lending later.”[16]

The use of funds by nearly one-third of the banks to purchase mortgage-backed securities primarily ensured by Fannie Mae and Freddie Mac is particularly revealing. The risk of default on these securities is ultimately backed by the American taxpayer through the now-explicit government backstop provided to Fannie and Freddie. This means that taxpayers are effectively driving up the price of these securities (through additional funds provided to the banks through TARP), and they then bear the risk of default on the flip side of each transaction. SIGTARP’s audit notes that the banks targeted these securities precisely because of the safety associated with them;[17] if the underlying mortgage borrowers default, the American taxpayers foot the bill.

In addition, SIGTARP’s audit notes that some banks are using TARP money to invest in municipal bonds, with the asserted intent of “helping local communities.”[18] This means that federal taxpayers in Kansas may be effectively subsidizing the debt of the city of San Francisco.

SIGTARP Concerns Regarding Public-Private Investment Program

On March 23, 2009, Treasury, the FDIC and the Federal Reserve announced the Public-Private Investment Program (“PPIP”), an initiative to provide government funds to leverage private sector purchases of illiquid toxic assets. Initially, PPIP was intended to be a $500 billion to $1 trillion government commitment divided between two programs – the Legacy Loans Program led by the FDIC and the Legacy Securities Program led by Treasury. However, as of July 8, 2009, the Treasury-led Legacy Securities Program is the only one slated for implementation. SIGTARP now reports that PPIP is expected to use $75 billion of TARP money. [19] On July 8, 2009, the Treasury Department announced that nine firms had been chosen to act as fund managers in the Legacy Securities Program[20]:

 AllianceBernstein, LP and its sub-advisors Greenfield Partners, LLC and Rialto Capital Management, LLC

 Angelo, Gordon & Co., L.P. and GE Capital Real Estate

 BlackRock, Inc.

 Invesco Ltd.

 Marathon Asset Management, L.P.

 Oaktree Capital Management, L.P.

 RLJ Western Asset Management, LP.

 The TCW Group, Inc.

 Wellington Management Company, LLP

In its April 2009 report to Congress, SIGTARP identifies numerous areas of vulnerability within the PPIP program, including conflict of interest and collusion issues. SIGTARP states that since its April report, Treasury worked with SIGTARP and others to address some of these concerns as it has moved forward with the implementation of PPIP; however, according to Mr. Barofsky’s written testimony:

Treasury has declined to adopt one of SIGTARP’s most fundamental recommendations – that Treasury should require imposition of an informational barrier or “wall” between the PPIF [Public Private Investment Fund] fund managers making investment decisions on behalf of the PPIF and those employees of the fund management company who manage non-PPIF funds.[21]

SIGTARP warns that failure to institute such a wall between PPIF and non-PPIF operations at the private fund managers participating in the Legacy Securities Program will create ample opportunity for mischief at taxpayer expense. For example, fund managers may intentionally overpay for toxic securities in order to inflate the price of similar assets which they already have an interest in. Since the PPIP intentionally leverages taxpayer funds to stimulate toxic security purchases, any overpayment by the fund managers will come primarily at the taxpayer’s expense. In addition, fund managers’ purchase of toxic securities will likely constitute “market moving” transactions, foreknowledge of which may provide opportunities for fund managers to trade on this inside information.[22]

In a meeting with Committee staff in preparation for this hearing, SIGTARP staff stated that in four formal instances (the April 2009 SIGTARP quarterly report, two letters from SIGTARP to Treasury, and the July 2009 SIGTARP quarterly report) and on numerous informal occasions, SIGTARP staff have raised the need for an information barrier within PPIF manager institutions to no avail. Treasury refuses to implement this recommendation “despite the fact that such walls have been imposed upon asset managers in similar contexts in other Government bailout-related programs, including by Treasury itself in other TARP-related activities, and despite the fact that three of the nine PPIF managers already must abide by similar walls in their work for those other programs.”[23]

SIGTARP told Committee staff that the Treasury Department believes that if it imposes such an informational barrier, PPIP fund managers will withdraw from the program. However, the potential for PPIP fund managers to game the system in favor of their non-PPIP business interests demands additional safeguards. Mr. Barofsky writes in his testimony:

[f]ailure to impose a wall … will leave Treasury vulnerable to an accusation that has already been leveled against it – that Treasury is using TARP to pick winners and losers and that, by granting certain firms the PPIF manager status, it is benefitting a chose few at the expense of the dozens of firms that were rejected, of the market as a whole, and of the American taxpayer.[24]

The American people’s trust in government is at stake:

This reputational risk is not one that can be readily measured in dollars and cents, but is rather a risk that could put in jeopardy the fragile trust the American people have in TARP and, by extension, their Government.[25]

Given the willingness of some of the PPIP private asset managers to consent to the implementation of an appropriate “wall” around their actions in other government programs, Treasury’s assertion that the managers may withdraw from PPIP if Treasury imposes a similar requirement in this program is concerning. Treasury is effectively insisting that not only must taxpayer money be used to leverage the purchase of toxic assets, but also that the fund managers have the freedom to use information about these purchases to inflate the value of other assets on their books. Thus, Treasury’s repeated refusal to implement SIGTARP’s recommendation is very troubling.

Treasury Rejects SIGTARP Recommendation to Value TARP Assets

SIGTARP reports that Treasury continues to hide information about the value of assets in Treasury’s TARP portfolio from the American people: