An enduring truth about financial regulation is this: Given the discretion to do so, financial regulators will always do the wrong thing.

It's easy to explain why. In good times, regulators have every incentive to take banks at their optimistic word on asset valuations, and therefore on bank capitalization. It is almost impossible for bank regulators to be "tough" in good times, for the same reason it is almost impossible for mutual fund managers to be bearish through a bubble. A "conservative" bank examiner who lowballs valuation estimates will inevitably face angry pushback from the regulated bank. Moreover, the examiner will be "proven wrong", again and again, until she loses her job. Her fuddyduddy theories about cash flow and credit analysis will not withstand empirical scrutiny, as crappy credits continually perform while asset prices rise. Valuations can remain irrational much longer than a regulator can remain employed.

Bad times, unfortunately, follow good times, and regulatory incentives are to do the wrong thing yet again. When bad times come, overoptimistic valuations have been widely tolerated. In fact, they will have become very common. Overvaluation of assets leads to overstatement of capital. Overstatement of capital permits banks to increase the scale of their lending, which directly increases reported profitability. Banks that overvalue wildly thrive in good times. Fuddyduddy banks lag and their CEOs are ousted and The Economist runs snarky stories about what schlubs they are. The miracle of competition ensures that many of the most important and successful banks will have balance sheets like helium balloons at the end of a boom. Then, like a pin from outer space, somebody somewhere fails to repay a loan.

When this happens, bankers beg forbearance. They argue that the rain of pins will eventually pass and most of their assets will turn out to be fine. They ask regulators to allow them to write down assets gently, slowly, so that they can let ongoing earnings support or increase their regulatory capital. If that doesn't work, they suggest that capitalization thresholds be temporarily lowered, since what good is having a buffer against bad times if you can't actually use it in bad times? Knowing, and they do know, that their assets are crap and that they are on a glide path to visible insolvency, they use any forbearance they extract to "gamble for redemption", to make speculative investments that will yield returns high enough to save them, if things work out. If they don't, the bankers were going to lose their banks anyway. The additional losses that fall to taxpayers and creditors needn't concern them.

Here, wouldn't regulators draw the line? When the trouble is with just a few small banks, the answer is yes, absolutely. Regulators understand that the costs of closing a troubled bank early are much less than the costs after a delay. If a small bank is in trouble, they swoop in like superheroes and "resolve" it with extreme prejudice.

But when very large banks, or a very large number of banks are in trouble, the incentives change. Resolving banks, under this circumstance, will prove very expensive in terms of taxpayer dollars, political ill-will, and operational complexity. It will reveal regulators to have been asleep at the wheel, anger the public, and alienate nice people whom they've worked closely with, whom they like, who might otherwise offer them very nice jobs down the line. When a "systemic" banking crisis occurs, regulators' incentives are suddenly aligned with bankers: to deny and underplay, to offer forbearance, to allow the troubled banks to try "earn" their way out of the crisis. Regulators, in fact, can go a step further. Bankers can only "gamble for redemption", but regulators can rig the tables to ensure that banks are likely to win. And they do. A central bank might drop short-term interest rates very low to steepen the yield curve. It might purchase or lend against iffy assets with new money, propping up prices and ratifying balance sheets. It might pay interest to banks on that new money, creating de novo a revenue stream based on no economic activity at all. Regulators might bail out prominent creditors and counterparties of the banks, suddenly transforming bad bank assets into government gold. Directly or via those bailed out firms, regulators might engage in "open market transactions" with banks, entering or unwinding positions without driving hard bargains, leaving taxpayer money on the table as charity for the troubled institutions. They might even redefine the meaning of financial contracts in a subtle ways that increase bank revenues at the expense of consumers.

If all that stuff works out, regulators might be able to claim that they didn't do such a bad job after all, that the crisis was just a "panic", that their errors prior to the crisis were moderate and manageable and it was only the irrational skittishness of investors and the taunts of mean bloggers that made things seem so awful for a while. Regulators, like bankers, have everything to gain and little to lose by papering things over. And so they do. Besides, things here weren't nearly as bad as in Europe.

There was nothing new or different about the recent financial crisis, other than its scale. Yes, the names of the overvalued financial instruments have changed and newfangled derivatives made it all confusing about who owed what to whom and what would explode where. But things have always blown up unaccountably during banking crises. We have seen this movie before, the story I've just told you is old hat, and the ending is always the same. We enact "reform". The last time around, we enacted particularly smart reform, FDICIA, which was painstakingly mindful of regulators' incentives, and tried to break the cycle. It mandated in very strong terms that FDIC take "prompt corrective action" with respect to potentially troubled banks.

The theory of "prompt corrective action" was and is very sensible. It's pretty clear that the social costs increase and the likelihood of an equitable resolution to problems decreases the longer banks are permitted to downplay weakness, the more regulatory forbearance banks are granted, or the more public capital banks are given. (An "equitable resolution", in this context, means giving the shaft to bank managers, shareholders, and unsecured creditors to minimize costs to taxpayers and to sharpen the incentives of bank stakeholders to invest well. "Regulatory forbearance" and "public capital injection" are redundant: Under current banking practice, regulatory forbearance is economically equivalent to an uncompensated injection of public capital, like TARP but without the messy politics and with no upside for taxpayers. Make sure you understand why.)

So FDICIA tried to short-circuit our woeful tale by telling regulators they should have a twitchy trigger finger. If regulators intervene early and aggressively, the costs of the crisis will be moderate, and since the costs of the crisis are moderate, it should actually be plausible for regulators to intervene early and aggressively rather than playing the world's most expensive game of CYA. It was a great idea. Except it didn't work.

We've already told the story of why it doesn't work. Bank health and safety is a function of capitalization, capitalization is a function of bank asset valuation, and there is no objective measure of asset valuation. During good times "conservative" valuations are demonstrably mistaken and totally unsupportable as grounds for confiscating the property of respected, connected, and wealthy businesspeople. Regulators simply fail to take prompt corrective action until it is far too late.

As you read through the roughly 1400 pages of currently proposed regulatory reform, ask yourself what, if anything, would interfere with the (uncontroversial and long-understood) dynamic that I've described. Giving regulators more power doesn't help, when regulators have repeatedly failed to use the powers they had. Putting more bank-like institutions and activities under a regulatory umbrella seems sensible, as does eliminating opportunities for firms to choose among several regulators and shop for the most permissive. But even our most vigilant and competent regulator (hi FDIC!) was totally snowed by this and the previous two banking crises. It has become fashionable to suggest that the idea of "systemic risk" is novel, and that just having some sort of high-level, blue ribbon council explicitly charged with worrying about financial catastrophes will change everything. But financial meltdowns are not new, Timothy Geithner was giving smart, widely discussed speeches about systemic risk in 2006, exactly as the current crisis was building.

There is, unfortunately, almost no correlation between the degree to which an institution or sector is supervised by regulators and behavior or misbehavior during a financial crisis. Commercial banks, GSEs, and bond insurers were intimately regulated and are now toast. Mortgage originators, boutique securitizers, ratings agencies, and CDS markets were largely unregulated. They also clearly failed. The one trainwreck that the current round of proposals might have forestalled is AIGFP, whose unhedged, uncollateralized CDS exposure would make even the most lackadaisical regulator blush. But it is not at all plausible, especially in the US, that AIG was the linchpin without which the late troubles would not have occurred. If we had to refight the last war under all the regulations now proposed, we might have won one battle. But we'd very definitely have lost the war. Deregulation won't solve the problem. But neither will the sort of regulation now proposed by Barney Frank or Chris Dodd.

But what about Bernie Sanders? Is "too big to fail" the problem? Yes and no. Unsustainable bank-funded asset price booms can and do occur even among small banks. But systemic crises are more likely in a world with big banks, as only one or two need totter to take down the world. Chopping up banks reduces the frequency of major crises. Also, "prompt corrective action" does sometimes work for small banks. For big banks, PCA is just a joke — Citibank is and always will be perfectly healthy until it is totally a basket case. But regulators do stage early interventions in smaller banks, even during relatively quiet times, and that does help. Crises among small banks can lead to large fiscal costs (c.f. the S&L bailout). But even during serious crises, many small banks turn out to have been prudent, and small banks tend not to be so interconnected that a cascade of failures leaves us without a financial system. Small-bank-based systems fail gracefully. (See Felix Salmon.) Crises among small banks are less corrosive to incentives for careful capital allocation, and less offensive to distributive justice, than large bank crises, because regulators are willing to force preferred equityholders and unsecured creditors of smaller banks to bear losses while they hesitate to do so for big banks. Also managers of smaller banks can be perfunctorily defenestrated, while managers of megabanks somehow survive (and even when they don't, they are too wealthy to have to care). Again, one hates to be mean, but treating the managers of trouble-causing banks roughly is important both to get the incentives right and out of regard for justice.

We should insist upon a market structure in which financial institutions are universally small. But smallness cannot be defined by balance-sheet assets alone. We need to manage the degree of interconnectedness and the scale of total exposures (including off-balance sheet exposures arising from derivative market participation). Further, we need to ensure that no market participants are indispensable by virtue of controlling some essential market infrastructure. Clearing and payments systems, securities and derivatives exchanges, etc should be multiple and redundant if privately owned, or publicly managed if efficiency demands a monopoly provider. Essential infrastructure should be held by entities that are bankruptcy remote from firms that bear unrelated risks, although the stakeholders needn't be bankruptcy remote from the critical infrastructure. (For example, if the owner of a derivative exchange goes under, the exchange must be immune from liability, but if the exchange suffers losses due to insufficient collateral requirements, the owner could still be liable.)

Fundamentally (and a bit radically), for financial reform to be effective, regulators must actively target market structure. Financial systems are public/private partnerships, not purely private enterprises. It is perfectly reasonable for the state as the ultimate provider of funds and bearer of risk to insist on a robust and heterogeneous network of delegates. Regulators needn't (and really cannot) architect the breakup of today's destructive behemoths. All they need to do is identify dimensions along which firms become indispensable or threatening to financial stability as they grow, and tax measures of those attributes at progressively steeper rates. The taxes could be slowly phased in over a few years, to give existing firms time to arrange efficient deconglomerations. Importantly, legislators should characterize the target market structure, and empower regulators to define and alter tax schedules as necessary to achieve that target, rather than specifying them in law, to counter gaming by nimble financiers. (For example, a tax on balance sheet assets would lead to rapturous innovation in tricks to keep stuff off-balance-sheet.) Taxes should always be imposed in a nondiscriminatory way across the industry. (If you are not concerned about the role of political influence and favoratism in regulatory action, you haven't been paying attention.) "Taxes" could take the form of increased regulatory burdens, such as capitalization or reserve requirements (though the effectiveness of the latter is diminished if central banks pay interest on reserves).

Variations of these ideas are actually in both Frank and Dodd's proposed legislation. Regulators would have a fair amount of discretion, under the new laws, to do the right thing. They could ignore the terrifying shrieks of our banking overlords and force the monsters to break apart. But we come back to the first and most ancient law of banking regulation. Given discretion, banking regulators will always, always do the wrong thing. Only if Congress defines a verifiable target market structure and periodically audits the regulators for compliance will we eliminate "too-big-and-mean-and-rich-and-scary-and-interconnected-and-sexy-to-fail".

But what about the much vaunted "resolution authority". Doesn't that change the deadly dynamic of banking regulation described above? Sure, it will still be true that during booms, banks will make dumb mistakes and regulators will be unable to point out that the Swiss cheese they're calling assets is chock full of holes. But, you might argue, when the cycle turns, they'll no longer be helplessly forced to resort to CYA-and-pray! They'll have the tools to wind down bad banks ASAP!

Maybe. Resolution authority might be helpful. But I'm not optimistic. During the current crisis, there are two accounts of why we guaranteed and bailed existing banks — including creditors, managment, preferred shareholders, and financial counterparties — rather than resolving the banks and forcing losses onto the private parties who made bad bets. One account emphasizes legal constraints: we had laws that foresaw the orderly resolution of commercial banks, but not investment banks or bank-holding conglomerates. According to this view, regulators' only options were to permit Lehman like uncontrolled liquidations of financial firms or else make whole every creditor to prevent a formal bankruptcy. If this is what you think then, yes, resolution authority might change everything.

But another view — my view — suggests that despite the limitations of preexisting legislation, regulators throughout this crisis have had the capacity to drive much harder bargains, and have chosen not to. Despite having no legal authority to do so, the government "resolved" Bear Stearns over a weekend in almost precisely the same manner that FDIC resolves your average small town bank. Secretary Paulson could at that point have gone to Congress with a proposal for resolution authority to institutionalize the powers he clearly required. Instead, he had Treasury staff prepare the first version of TARP and put it on a shelf until an emergency sufficient to blackmail Congress arose. Whatever the legal prearrangements, regulators have always had sufficient leverage, over firms and firm managers, to push through any structural changes they deemed necessary and to create bargaining power for firms to insist on loss sharing. Finally, earlier this year, when bank nationalization was an active debate, opponents did not because they could not claim that authority would not be found if the administration decided nationalization was the way to go. Harsh measures towards banks would have been extremely popular. What authority the administration did not have by virtue of existing powers and informal leverage they could have achieved by purchasing common shares instead of preferred during "capital injections", or, in a pinch, by asking Congress for help. In my view, legal niceties were never the issue. Regulators opted to guarantee the banking system and bail out creditors because given the terrifying scale of the problem, the operational complexities and investor uncertainty associated with resolutions or nationalizations, the power of the banks and regulators' personal connections to them — our leaders simply opted not to pursue more hardball resolutions. If we don't change the structure of the financial industry, there's no reason to think that next time around regulators won't use the proposed resolution authority to do exactly what they opted to do this time. They won't even need to go to Congress for a new TARP, as Frank's proposal gives the executive branch carte blanche to provide financial firms unlimited guarantees and support. (I haven't read the text of Dodd's bill.)

Yes, I know that "living wills" are supposed to diminish the operational complexity and uncertainty associated with taking a harder line, and that, in theory, might encourage different choices. I also understand that some sort of industry-funded slush fund is supposed to bear future bail-out costs. My sense is that during a gut-wrenching financial crisis, hypothetical funeral plans will provide little comfort to terrified regulators, prepaid slush funds will prove to be laughably inadequate, and commitments to make firms pay for the mess ex post will be waived in order to shore up struggling bank balance sheets. These proposals are about providing the political cover necessary to get legislation passed, but they will prove to be utterly without substance when the next crisis occurs.

I'll end where I started. The one rule that you can rely on with respect to banking regulation is that whenever regulators have discretion, they do exactly the wrong thing. For very predictable reasons and despite the best of intentions, they screw up. Besides messing around with intragovernmental organization charts, the main proposals before Congress give regulators more power and more discretion. That just won't work.

Afterthoughts: It is really worth considering this excellent piece by Matt Yglesias, ht Mike Konczal.

I almost always disagree with Economic of Contempt on these issues. But despite being wrong, he is very smart, and a gentleman too. You should read this piece, which gets everything right, within the confines of supervisory regulation. We need structural changes most of all, but supervisory regulation won't be going away, and there his points are dead on. Also check out his very creative defense of Too Big Too Fail banks. I happen to think liquidity is as often vice as virtue, so I'm not persuaded. (Assets that are difficult to value should be illiquid. Otherwise investors fall prey to delusions of safety and rely upon risk-management by exit, which never works out well.) So EoC is wrong. But he's wrong in clever ways, and always worth reading.

Go Paul Kanjorski!