Why Congress and S&P Deserve Each Other

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Having Standard & Poor’s downgrade the creditworthiness of the U.S., and warn the country about further downgrades, is a little like having the Catholic Church lecture Scout leaders on the proper behavior toward boys. The moral authority seems to be wanting. S&P, you may recall, is one of the ratings agencies (the others being Moody’s and Fitch) that greased the skids of the financial crisis by awarding AAA ratings to tranche after tranche of mortgage bonds called collaterized debt obligations, or CDOs. Recall that, unlike U.S. Treasuries, backed by the full faith and credit of the U.S., CDOs were underwritten by garbage mortgages — that is, backed by no-documentation “liar loans” and other Alt-A subprime pond scum handed to borrowers who otherwise couldn’t get a nickel’s worth of credit at their local dry cleaner.

S&P stamped CDOs with the same grade it previously awarded to a precious few companies, including Exxon and Microsoft. More than 30,000 CDOs got the AAA blessing from the agencies. S&P couldn’t pull its snout out of the trough even when it became apparent in 2007 that the mortgage bond pig-out was over. This e-mail from an S&P employee, uncovered by a congressional investigation, says it all: “Let’s hope we are all wealthy and retired by the time this house of cards falters.” In their absorbing history of the financial crisis, The Devils Are All Here, Bethany McLean and Joe Nocera bared the behavior of the agencies. Even when their own analysts began sounding the alarm, senior management refused to stop the money machine. And if the analysts became insistent on being scrupulous, the agencies got new analysts. Why? Because their clients, big banks such as Lehman Brothers and Goldman Sachs, demanded that the CDO machine keep on cranking, until it utterly collapsed.

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And let’s be clear: this was all perfectly legal. “S&P’s ratings do not speak to the market value of a security or the volatility of its price, and they are not recommendations to buy, sell or hold a security. They simply provide a tool for investors to use as they assess risk and differentiate credit quality of obligors and the debt they issue,” testified Rodney Clark, head of ratings services for S&P, to the House subcommittee on Capital Markets, Insurance and Government-Sponsored Enterprises. In other words, you can’t take our word to the bank, but you can take it to the poorhouse. When investors like the Wyoming state pension system sued after many of the CDOs crashed in value, the industry stuck to this “It’s just our opinion” defense and won. The U.S. Second Circuit Court of  Appeals ruled last August that the agencies were not “underwriters” or “control persons” even if they were in bed with them. The fundamental contradiction of the industry is that the companies that issue the securities pay the ratings agencies for their grades; independence is always suspect, and the courts upheld that.

One of many ironies of the S&P downgrade is that the three ratings agencies have so much power because the federal government, in the form of the Securities and Exchange Commission (SEC), handed it to them. As former TIME writer Barbara Kiviat pointed out in this space, the power of the big ratings agencies dates to the post-Depression era, when the government increasingly relied on them to bless new issues for credit-wary investors. Then, in 1975, the SEC iced the cake, designating a number of companies as “nationally recognized statistical rating organizations,” or NRSROs. If  you were not an NRSO as a ratings agency, you were SOL. Why would anyone issue bonds rated by an agency that wasn’t government-approved? The SEC designation had the unintended effect of creating a market lock for the bigger firms.

That S&P would slap the hand that legitimizes it is wonderfully perverse given last week’s debt deal. The Tea Party supposedly hates Wall Street so much that it ignored warnings that its Taliban economic policy — threatening to decapitate the economy unless it got its way on spending cuts — would spook the markets, since the Street abhors uncertainty. For a moment, it looked as if the Tea team won, in that the market didn’t tank as the deal wrangling went on and on. Instead, the market cratered post-deal, as the compromised compromise left so much up in the air. Republicans had been chastising the Obama Administration for creating uncertainty, yet they allowed their own radical wing to impose it for the foreseeable future. (Clearly, uncertainty about the resolution of Europe’s sovereign debt crisis contributed to the market troubles too.) So S&P in effect fired a shot across the Tea Party’s bow: You mess with Wall Street, you will be punished. It had another for Obama: Lead, follow or get out of the way. And the two parties blamed each other. “It happened on your watch, Mr. President,” screamed Michele Bachmann, exhibiting the full extent of her knowledge of economics. In making its decision, S&P said the downgrade “reflects our view that the effectiveness, stability, and predictability of American policymaking and political institutions have weakened at a time of ongoing fiscal and economic challenges to a degree more than we envisioned when we assigned a negative outlook to the rating on April 18, 2011.”

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Here’s the other laughable irony: Congress had a chance to rein in the ratings agencies but demurred. Even though the statutory authority that gave S&P, Moody’s and Fitch an oligopoly on ratings was complicit in their contribution to the crisis, Congress nevertheless refused to remove the NRSRO status. The solons bought the idea that smaller agencies would be crushed if an unfettered free market were imposed on the ratings industry. Funny, that didn’t happen in the airline industry when it was deregulated. And by the way, can you name the fourth, fifth or sixth largest ratings agency? Republicans, heeding the deregulation call of their banking clients (whose demands for deregulation more than a decade ago, blessed by the Clinton Administration, led us down the path to the crisis), bent over backward to defang the Consumer Financial Protection Bureau, which was central to the Dodd-Frank bill, whose hilarious formal name is the Dodd-Frank Wall Street Reform and Consumer Protection Act. Wall Street, having blown trillions during  the crisis, demanded not to be hampered by either reform or consumer protection as it recovered from the crisis. Why should the ratings agencies be so encumbered?

So here’s our reward, America: higher costs for our mortgages and higher costs for the federal, state and local governments to borrow. As Fareed Zakaria points out in TIME’s Aug. 15 cover story, a jump of a single percentage point in the interest rate the federal government pays will more than wipe out the savings anticipated by the debt deal. Nice work, that. And we owe it all to an ethically and intellectually suspect ratings agency. (S&P even made a $2.1 trillion error in its calculations but dismissed it as “nonmaterial.”)

Yet it has occurred to me that maybe S&P has a point. After all, this is a Congress that let the banking industry run amok, bailed it out with access to trillions of dollars of credit and has since done precious little to ensure that the process won’t be repeated. Nor would Congress reform the ratings industry, which played a vital role in the crisis. Nor did it agree to a deal worked out between Obama and House Speaker John Boehner that would have preserved the AAA rating. If our Congress is that dumb, perhaps we deserved the downgrade.

Bill Saporito is an assistant managing editor at TIME. You can continue the discussion on TIME‘s Facebook page and on Twitter at @TIME.

LIST: 5 Economists Judge Congress’s Last-Minute Debt Bargain

MORE: A Brief History of the Ratings Agencies

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