Protecting the Credit Raters - Washington moves to maintain the AAA cartel

Protecting the Credit Raters. WSJ Editorial
Washington moves to maintain the AAA cartel.
The Wall Street Journal, page A22, Oct 01, 2009

This morning we had hoped to be able to praise House Financial Services Chairman Barney Frank, who seemed ready to break up the credit ratings racket that did so much to inflame the financial panic. But just when you think Barney will free up competition, he reinforces the cartel.

The news came at yesterday's hearings into why the government-anointed credit-ratings agencies—Moody's, Standard and Poor's and Fitch—slapped their seals of approval on billions of dollars in dodgy assets during the credit mania. A former Moody's employee, Eric Kolchinsky, described a "reckless disregard for the truth" in an August memo to a Moody's official. Yesterday he testified that those responsible for ensuring sound ratings methodology are "routinely bullied" by management. Another former Moody's man, Scott McCreskey, testified about the company's failure to monitor the growing risks of municipal bonds. Moody's has generally denied the allegations but says it is investigating.

Yet despite the path of financial destruction paved by the Big Three raters, Washington still won't yank their privileged status as Nationally Recognized Statistical Ratings Organizations (NRSROs). Based on the draft reform written by Mr. Frank's colleague, Paul Kanjorski (D., Pa.), the raters can expect more compliance and legal costs, but no threat to their official role as America's judges of credit risk.

This bill arrives after Mr. Frank sent signals that the racket would be repealed. Appearing on CNBC in September, Mr. Frank said, "We have exalted rating agencies too much." He added, "We need to repeal laws that mandate the use of rating agencies."

While it's true that the Kanjorski draft calls for removing references to the favored agencies in federal law, most of the raters' power comes from rules, not laws. The the bill would end references in law within six months, but the rules stand. The bureaucrats at the Federal Reserve, SEC and elsewhere merely need to study the issue and report back to Congress. These are the same people who wrote the flawed rules, so why would they eliminate them?

It also says something about the mindset of Congressional Democrats that while whiffing on true reform for investors, they're planning to smack a home run for the trial lawyers. The draft contains all kinds of new potential liability for the credit raters, including a bizarre section on "joint liability" that makes one ratings agency liable for another's mistakes. You read that correctly. If S&P blows a call, investors could sue Moody's and Fitch too.

This suggests that the favored agencies may simply be consumed by piranhas in the trial bar. But by bleeding the NRSROs while leaving intact rules that require their services, Mr. Kanjorski could be creating a scenario in which regulators are soon calling S&P and Moody's too big to fail. This is essentially what Sarbanes-Oxley did for the accounting firms after Enron: In the name of punishing them, make them even more important.

Meanwhile, instead of breaking up the ratings club, the SEC has simply chosen to add new members. A new rule allows a few new additional favored firms, which are paid by investors, to get the same inside information that the Big Three, which are paid by bond issuers, have always enjoyed. So rich investors may now be able to pay extra for data never disclosed to average investors.

The best—and only genuine—ratings reform is also the simplest. Remove all references to NRSROs from rules as well as laws. Let markets decide which investments carry the most risk.