United States: A Challenge To The New Congress: Pass Housing Finance Reform

Last Updated: November 18 2014
Article by Robert M. Couch

Co-authored by: Nicolas P. Retsinas

Nicolas P. Retsinas is Senior Lecturer in Real Estate, Harvard Business School and former Federal Housing Commissioner. Rob Couch is Counsel, Bradley Arant Boult Cummings and former President of GNMA.


It is time for Congress to recommit itself to drafting legislation that will transform housing finance for the twenty-first century, write Nicolas P. Retsinas and Rob Couch.

Over six years ago, when the federal government placed Fannie Mae and Freddie Mac into conservatorship, experts from public, private, and academic worlds concurred: housing finance in the United States was mortally flawed. The private sector reaped the gains while the public sector absorbed the risk. In the aftermath of the Great Recession, we needed to design a newer model, one that would not contribute to a plunge in the nation's economy.

But, like Alice's Cheshire Cat, we recognized that to get "there," we had first to decide where we wanted to go—in short, to set the goal of "reform."

The Bipartisan Housing Commission, a diverse group of public policy practitioners from the left and the right, set out to do just that. For the last two and a half years, we co-chaired the Commission's Mortgage Finance Reform Working Group. Remarkably, we saw consensus emerge from both parties on the goals of the new system. We made it as far as the Senate Banking Committee, but fumbled near the goal line. In May, the Senate Banking Committee approved the legislation on a 13-9 vote, but could not garner sufficient support from either side of the aisle to warrant consideration from the full Senate.

For many Democrats, the legislation did not go far enough to support access to credit for working families. For many Republicans, the legislation went too far in providing government guarantees.

The good news was that the Commission had demonstrated that bipartisan support was possible. The Commission (and the legislation) endorsed the following:

  • The 30-year, fixed-rate mortgage should continue as the backbone of the new system. It helps keep monthly payments low, and protects consumers from interest-rate volatility.
  • Given the recent extreme economic stress, Uncle Sam must stand behind these mortgages in the secondary market in order to attract global capital. Without those government guarantees, private financial institutions, recalling the burst housing bubble, would not assume the long term risks associated with these mortgages. (If the private investors were willing to take these risks, they would have. They have not.) Realistically, without Uncle Sam, long-term fixed-rate mortgage financing would be less available, much costlier.
  • In this new system, we need risk-taking private capital. Today the federal government backstops over 80 percent of new mortgages; this is unsustainable. Just as importantly, it imposes an excessive burden on taxpayers. In a stronger, more durable system, private capital would take the "first loss" in the event of a housing market downturn. After a multiyear transition period, Fannie Mae and Freddie Mac should wind down. Unlike the past, the government guarantee should be explicit, fully paid for through the collection of actuarially sound premiums, and triggered only after private capital in the "first-loss" position has been exhausted.
  • Starting in 1993, the federal government set explicit goals for Fannie and Freddie, to ensure that mortgages reached historically underserved families and communities. In this new system, there is broad agreement across party lines that we must maintain a commitment to support affordable housing for working families, including funds for low-income rental initiatives.
  • We need a common securitization platform to increase access for a diverse set of private investors. Currently Fannie Mae, Freddie Mac, and the plethora of private issuers have their own guidelines. A common platform will make this new system user-friendly. In fact, the federal Housing Finance Agency is already working towards a common securitization platform including a commitment to a single security for both Fannie and Freddie.

Now we must "get there" before inertia gains even more momentum. The new Congress must recommit itself to drafting legislation that will transform housing finance in the twenty-first century. Even the leaders of Fannie and Freddie have decried the state of limbo in which the enterprises find themselves and want to find a way out. In the world of housing finance (as in Wonderland), we have no Google Maps. Instead, we must first answer some questions.

In a revamped $5 trillion single-family mortgage market, we want private capital. How much will we need to assume the "first loss" position and protect taxpayers? Is it $500 billion, reflecting a 10 percent capital buffer? Or will $30 billion (5 percent) suffice? Pick a figure. We cannot proceed without one.

Who will provide the private capital? Institutional investors? Pension funds? Central banks? What form should this private capital take: Should it enter the system through capital markets structures, private mortgage insurance, lender cooperatives or a combination?

How costly will reform be? Private capital will charge for its risk-taking. The government entity (whatever its title) will also charge an unsubsidized fee to cover the catastrophic risk it assumes. What impact will these fees have? Understandably, with the best economic models, we will be unable to predict with certainty the impact, but we must try.

How will this new system provide affordable mortgages for creditworthy working families—not as a special "niche" product for a subset of low-income borrowers, but integrated into the system?

How do we ensure that the government-guaranteed secondary market is open on full and equal terms to lenders of all types, including community banks and housing finance agencies?

We must not capitulate to the status quo and hold our breath, dreading the next bubble. We must continue to chart reform. If the Congress remains unable to advance the agenda, the Enterprises will remain mired in conservatorship risking the loss of key managers and further deferred maintenance on the technological infrastructure needed to attract global capital.

It is time for Congress to finish the job and pass bipartisan legislation that can undergird the nation's housing finance system without placing undue risk on the taxpayer.

Republished with permission. This article first appeared in  HBS Working Knowledge on November 12, 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions