Trust and Regulation

Regulation is a social substitute for trust.

That’s not a moral statement, just a factual one.

Sometimes the relationship between trust and regulation is obvious We submit to the regulation of traffic laws because we can’t trust everyone will simultaneously interpret the rules of the road similarly. And, when stoplights fail, we trust the regulation of traffic cops, whose very jobs are the result of a citizenry’s decision to be regulated.

Another regulatory no-brainer would seem to be the “commons,” i.e. a situation where, at the margin, it’s in everyone’s personal best interest to behave selfishly. Except that, when everyone does so, everyone turns out the loser. (In game theory, the “prisoner’s dilemma” spells this out). We can’t trust everyone (or even most people) to do what’s socially good, so we submit to regulation.

So it is we end up with regulated airspace and water tablesthough there are still crazies who insist they should be able to fly anything anywhere anytime, and drill any water drillable beneath their half acre of Arizona; plus, we still over-fish.

Closely related are natural monopolies, e.g. utilities (except, bafflingly to me, water companies in the UK). These businesses left unregulated will drift, often quickly, to monopolies. Much of regulatory debate is how to balance society’s interest vs. the normal trappings of markets. (Can we trust Microsoft to innovate? Airlines to share route rights? Telecom companies to share scale economies?)

The right degree of regulation for natural monopolies would be an easy matter for industrial economists, if only political ideologues nattering about free markets vs. socialism would leave them alone.

Much less is clear when it comes to naturally competitive markets in which people and companies behave in an untrustworthy manner toward customers, shareholders, employees and society. Here the issues become more clearly trust-related.

Can we trust the stockbroker’s motives when he recommends a stock? The food company’s label of ‘organic?’ Can we trust that the insurance company will be there when it’s claim time? Can we trust that a corporate email sent in confidence will be treated as such? That a doctor’s prescription is not unduly influenced by a pharmaceutical company?

Here are a few social policy rules of thumb for thinking about the relationship between trust and regulation.

1. Trust—where possible—is preferable to regulation. It avoids moral hazard; it is cheaper; and it is specific to the situation at hand.

2. Industry associations have a potentially powerful role to play. Too often they see their role as defenders of their constituents against regulation, rather than the far more constructive and long-term perspective of evolving powerful self-regulation. (I have blogged on this topic before; for mortgage banking, see my blogpost here; ; for financial planning, see here. Or, simply look at the regulatory nightmare the pharmaceutical industry has become, largely by failure to self-regulate.)

3. Certain industrial economics criteria cry out for regulation. If no one—investor, regulator, customer—has an integrated interest across a sector of business, then the situation is rife for abuse. The securitized mortgage industry had no one with an integrated perspective.  Regulation becomes by default attractive in such cases.

4. All else equal, short-term perspectives destroy trust and invite regulation.

5. Transparency may be the least costly form of regulation. It works best when obvious  It works best when obvious: e.g., "smoking causes cancer," or "these assets were marked to market."  Transparency as "the fine print" loses its power quickly. 

6. If an industry is fond of saying things like “caveat emptor,” or “hey it’s not illegal,” or “we’re only giving the consumer what they want,” look out. This is defensive language, typically used against stakeholder complaints—Big Tobacco, Big Food, and, I suspect, melamine producers in China.

7. Personally, I think business-school faculty have a huge responsibility. In an increasingly hyper-linked world, the competition-centric ideology taught as “strategy” is increasingly dysfunctional. It destroys trust by teaching that the natural state of business is to compete against our suppliers and customers, rather than to collaborate with and serve them.

By destroying trust, it invites regulation. Which, as stated in point one above, is the less preferable of the two.

Business, heal thyself; it’s better for all.

How To Get Your Industry Regulated, in 6 Easy Lessons

On November 15, the US House of Representatives passed HR 3915, known as the Mortgage Reform and Anti-predatory Lending Act of 2007, mainly along party lines.

Led by Barney Frank, the impetus for this legislation was the disastrous subprime lending meltdown, whose implications are looking worse every day—right up to today, December 6, 2007.

To hear the mortgage industry tell it, this legislation is a classic big-government socialist disaster in the making. The Heritage Foundation says it will “put individuals of moderate incomes, imperfect credit histories, and limited wealth at an even greater disadvantage, leading to a decline in the home ownership rate,” and if they say that’s a bad thing, then of course it must be so.

A typical letter in the Originator Times, a mortgage broker publication, predicts “this [legislation] will cripple the economy and the livelihoods of thousands of people in this industry.” Brokers, that is; never mind the homebuyers.

Aubrey Clark, of, says, “Lawmakers attempting to pass the Anti-predatory Lending Act of 2007 right now are effectively trying to tell lenders whom they can and can’t loan money. HR 3915 is vaguely written and enables borrowers to sue their lenders for giving them a loan should they decide not to pay.”

Well, Aubrey’s reports of impending communism are slightly exaggerated. This legislation has already been watered down, and may get still more diluted in the Senate.

But more importantly—the mortgage industry, and the two main industry associations (the Mortgage Bankers Assocation, and especially the National Association of Mortgage Brokers) have no one but themselves to blame. Anyone running a services industry association has just been handed a “teachable moment” in how to shoot themselves in the foot.

It’s classic—an industry association that sees its role as pursuing the short-term interests of its constituents at the cost of the customers’ interests—and therefore at the long term cost to everyone. The (predictable) end result is government regulation—about which they then bitterly complain.

Wanna get regulated? Follow these Six Simple tips.

1. Wrap Your Business in the Flag

Testifying in the house in 2003, Mr. A. W. Pickel, President of the National Association of Mortgage Brokers (NAMB), talked about “the dream of home ownership…the joy of home ownership…We believe the record levels of home ownership in the US can be attributed to the vibrant and competitive mortgage market.”

Therefore, “addressing abusive lending requires a balanced response…Any efforts to address abusive lending practices cannot cut off access to consumer credit.”

[Try substituting another industry here. “Addressing abuse of alcohol requires a balanced response…Any effort to get bartenders to address excessive drinking cannot cut off patrons’ access to more booze.”]

The Mortgage Bankers Association (MBA) in 2006 says: “More Americans own homes than ever before…Americans are building tremendous wealth.”

Throw in some free market talk stuff too: “If consumers did not feel mortgage brokers were delivering on what was promised, they would not reward them in the market.” Of course not. Who could think otherwise?

When threatened, repeat: "We cannot allow the American Consumer to be separated from the dream of home ownership."

2. Say You’re the Hero of the Underdog

NAMB: “Subprime lending often serves the market of borrowers whose credit history would not permit them to qualify for the conventional “prime” loan market.

MBA: “The subprime market has evolved dramatically in recent years, providing significant benefits to consumers. Non-prime borrowers commonly have low-to-moderate income, less cash for a downpayment and credit histories that range from less than perfect to none at all. Before the advent of this new market, these borrowers were either simply denied homeownership or…served exclusively by FHA or other government subsidized financing.

[Inconvenient truth: “In 2005, the peak year of the subprime boom, the study says that borrowers with [credit scores high enough to qualify for conventional loans with far better terms] got more than half—55%—of all subprime mortgages].


3. Deny Bad News

In August, 2006, the MBA said, “Default and foreclosure rates are low. Some argue that [they] are at crisis levels and that a greater percentage of borrowers are losing their homes. MBA’s data does not support this—instead, it tells a different story.”

[A scant 8 months later, this headline: US mortgage default rates hit an all-time high in the first quarter of 2007.

Mr. Pickel, of NAMB: “the incidence of abuse is very small relative to the whole industry…NAMB strongly advocates that our members never originate a loan to an uninformed consumer…”

[Counterpoint, Wall Street Journal: “A study done in 2004 and 2005 by the Federal Trade Commission found that many borrowers were confused by current mortgage cost disclosures and ‘did not understand important costs and terms of their own recently obtained mortgages,’” ]


4. Blame the Consumer and the Government

“Education is key…NAMB supports federal legislation that includes provisions to address financial literacy…NAMB urges increased enforcement of existing abusive lending prevention laws.”

MBA believes that borrower education to help consumers navigate the home buying and mortgage finance process is extremely important…MBA and its members have developed a number of strategies to educate consumers about their options in the mortgage marketplace.”

Some of the barriers to fair lending include…insufficient enforcement of existing laws…NAMB believes existing laws should be better enforced by state and federal regulators as a means to eliminate abusive lending practices.”

[In other words: the problem is consumers are too stupid to follow our fast-talk—and that’s not our fault. Feel free to use taxpayer money to educate millions of consumers—and boil the ocean while you’re at it. And we don’t need no more stinkin’ laws; get some FBI agents to bust criminals, and leave us good guys alone.]


5. Say Bad Things Are Not Your Fault

HR 3915 makes lenders more responsible for assessing borrowers’ ability to pay. Listening to the industry, you’d think this is the death of civilization. (“What!? I lend a guy money and he doesn’t pay—then sues me because I lent him the money!!”).

Sounds reasonable, until you substitute:

“Those kids don’t have to watch our (cereal/game) ads on TV on Saturday morning, they could be studying.”
“Those people didn’t have to move next to a chemical dump, no one forced them.”
“We’re not in charge of the nation’s diet, we just offer the high calorie high fat part of it; they can buy salads anytime they want.”
"Why should I have to drive slow just because some other folks are bad drivers, and can’t afford gas?"


6. Whatever You Do—Don’t Share Data

One of the biggest worries of the industry was that legislation might eliminate the YSP—yield spread premium. It’s money paid by the lending institution to the broker for higher interest loans.

The mortgage brokers howl at the idea of disclosing these numbers; the WSJ article shows a broker’s rate sheet with the footnote: “for wholesale use only. Not for distribution to the general public.”

In industries where the wholesaler’s payment to the retailer is disclosed, it goes by names like "advertising allowance." In industries where it’s secret, it’s called a kickback.

The brokerage association says it gives the broker flexibility to help the consumer. The Wall Street Journal calls it “a compensation structrue that rewarded brokers for persuading borrowers to take a loan with an interest rate higher than the borrower might have qualified for."

Mr. Pickel—now a CEO of a mortgage brokerage firm, and no longer head of the NAMB, says there is “a lot of play in the system. You have to operate with an ethical basis.”

He’s wrong. You don’t "have to." And not enough did.

Now they’re getting the results they in effect asked for—the prospect of regulation.

But don’t cry too hard for them: they’ve already succeeded in watering down the YSP restrictions. They have a few friends in congress—(curiously, all of them Republican—the House vote was 100% of the Democrats.)

So there’s your recipe. Are you listening, financial planners? Credit card operators? Insurance specialists? Stock brokers? Follow these easy rules, and you too can enjoy the benefits of greater federal regulation in your industry.

Of course, you could clean it up yourself.