Buried inside the Big Bailout bill that the Senate just approved and the House will vote on tomorrow is a section that has received insufficient attention. Titled “Preventing Unjust Enrichment,” Section 101(e) states that the Treasury Secretary, when spending his $700 billion bank roll, “shall take such steps as may be necessary to prevent unjust enrichment of financial institutions.”
This is one of the numerous safeguards added to the original bare-bones proposal submitted to Congress by Secretary Paulson. But what exactly does it mean? One might argue that the whole bailout is a way of unjustly enriching Wall Street and the big banks.
The language of the bill provides a very narrow definition: The Treasury is not supposed to pay more for an asset than the financial institution paid for it in the first place.
Isn’t this superfluous? The point of the bailout is to allow banks and others to unload “troubled” assets – in other words, ones that have been sinking in value. Unless Paulson intends to spend like a drunken sailor, there would no reason to pay more than the original price. The real issue is whether the feds will pay the depressed market price for those assets or something a bit higher.
It’s not unusual for legislation to have redundant safeguards, but if you keep on reading in the bill you will see that there is a big exception to the seemingly unnecessary provision: It “does not apply to troubled assets acquired in a merger or acquisition, or a purchase of assets from a financial institution in conservatorship or receivership, or that has initiated bankruptcy proceedings.”
As E. Scott Reckard pointed out in the Los Angeles Times earlier this week, this seems to open the door for banks that have bought weaker competitors during the crisis – such as JPMorgan Chase, which swallowed Washington Mutual last week – to sell the toxic assets they inherited in those deals to the federal government at a big profit. Is the sky the limit in how much Paulson can pay for their junk?
Much was made of the fact that the shotgun marriage meant that the Federal Deposit Insurance Corporation did not have to pay out anything to WaMu depositors, but JPMorgan may make out like a bandit when it comes time to play “let’s make a deal” with Treasury’s asset managers.