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Pride and Prejudice, Risk and Regulation

Matt Kelly | August 8, 2011

Spare a thought for your company's treasurer or head of risk management this week. If you don't know who that person is, just look for the one banging his or her head against the wall.

One of that person's primary roles is to manage your company's cash: to invest it as wisely as possible for the short-term rather than let it loiter on the balance sheet, but also to ensure that the company has enough cash available to pay bills that are due. That job got considerably more difficult last week. The tale of why it got more difficult provides a useful insight for all of us who make a living dealing with government regulation.

First, the reason why your treasurer is so unhappy. Contrary to what many might think, last week's biggest news in risk management was not Standard & Poor's downgrade of the U.S. credit rating that it issued Friday evening. That development was about as surprising as sunrise in the morning: everyone knew it was coming, just not the precise moment. The S&P downgrade is still a telling event, but we'll return to that later.

The real surprise for treasurers and corporate finance departments came two days earlier, when Bank of New York announced that it would start charging corporate customers 0.13 percent to hold bank deposits of $50 million or more. In other words, BONY took our current climate of low interest rates to its logical conclusion: negative interest. You pay the bank to hold your money, rather than the bank paying you.

Why BONY made this move—which has CFOs across Corporate America spitting nails—is fairly straightforward. Corporate treasury departments routinely invest extra cash in money market funds, which promise extremely low rates of return but also extremely low risk of default. The money market funds, in turn, routinely invest in supposedly no-risk vehicles like U.S. Treasurys or bonds from European nations. But when those bonds seem like they could default (times like, say, now) money market funds run the risk of freezing up. Companies can't tolerate that, since this cash is what they need to make payroll, purchase materials, and so forth. So where else can you park your cash? The bank.

But banks that handle large corporate accounts don't want your cash either. Deposits are a liability on banks' balance sheet, because a deposit is simply an obligation to pay that cash back to the customer in the future. And if a bank does loan all that cash out—assuming it can even find creditworthy recipients—it needs to carry larger capital reserves, which banks hate to do. Hence BONY's announcement that it would start charging negative interest, to shoo all those corporate treasurers away. The treasurers are left with too much cash looking for too few reliable places to store it. Cue the head-banging.

By now, of course, all you compliance, legal and audit executives reading this column are wondering what this chaos in the finance department has to do with you. Well, what struck me most about BONY's move, and the tumult in Europe and the money market funds that precipitated it, was the singular lack of coherent regulation in this drama. You want minimally invasive regulation that lets the market sort out its own messes? That's fine, but the result will be a proliferation of events like the BONY surprise: an outside party overtaking your efforts to manage your company's risks.

That's worth remembering as we ponder the S&P downgrade (see, I told you we'd return to that), which is just another outside party reacting to incoherent policy and regulation—this time from Congress, which is incoherent in spades. S&P's downgrade had little to do with our country's actual ability to pay its debt; the real reason was S&P's conclusion that we have a dysfunctional political system that won't let us devise an intelligent plan to pay down our debt. To that extent, I wonder why we weren't downgraded sooner.

More consequences of this lack of intelligent regulation and planning are coming, and this time they could touch people working in compliance, legal, or operational risk in very real ways. Last week U.S. Rep. Spencer Bachus, chairman of the House Financial Services Committee, proposed an “SEC Modernization Act” that would yet again up-end an already up-ended agency, and cut its budgetary independence even more. The Senate delayed a hearing on Richard Cordray, nominated to head the Consumer Financial Protection Bureau; as we tartly noted in a news brief, the delay will have little effect, since Republicans are expected to block his nomination anyway.

Those are but two examples of the many, many ways Congress is giving you exactly what you do not need: uncertainty. The more paralysis we have, the more we'll all suffer the turbulence your corporate treasurer is enduring. We'll all be so immersed in the tactics of surviving week to week, we'll never have the chance to think strategically about prospering from year to year. And the penalty we pay for that will be much worse than anything we've been paying so far, rest assured.