Reform the Market for Ratings Agencies

Kevin Drum wonders what can be done about the ratings agencies:
Beyond that, I’m also a bit flummoxed about what the answer to the ratings agency problem might be. There’s probably a reasonable regulatory solution for fraud and negligence, but there seems to be wide agreement that the real problem is incentives: since issuers are the ones paying for ratings, it’s inevitable that agencies are going to lean into the wind to provide ratings the issuers like. I’ve read dozens of proposals for ratings agency reform, but the only one that really gets at this fundamental conflict-of-interest problem is to simply do away with them and turn debt rating into a government function. I’m a little skeptical of that, though, since it’s not at all clear to me that a government agency could hire the kind of talent it takes to keep up with Wall Street’s rocket scientists. What’s more, it’s not at all clear to me that anyone — Fed regulators included — would have rated SIVs much differently during the boom years than the ratings agencies did.
I’ve been told by people working in finance that in their opinion it would be feasible to use regulation to simply switch the payment scheme around and make it so that buyers of securities rather than issuers were the ones paying the ratings agencies. It’s not totally clear to me that that’s correct (for any given security you have one seller and many potential buyers so it seems it would be much more efficient to have the sellers pay) but that’s what I was told.
But I think the larger issue with the ratings agencies isn’t so much that they’re underregulated as it is that regulations we’ve put on other actors in the marketplace have created a ratings agency cartel. The underlying the premise of the idea that private ratings agencies can work is that agencies that fail to do a good job will fail as businesses. That can’t happen if there are only three ratings agencies and it’s impossible for new competitors to enter the market. As Mark Calabria explains in a paper whose general conclusions I wouldn’t embrace:
The modern regulation of credit rating agencies began with the SEC’s revision of its capital rules for broker-dealers in 1973. Under the SEC’s capital rules, a broker-dealer must write down the value of risky or speculative securities on its balance sheet to reflect the level of risk. In defining the risk of held securities, the SEC tied the measure of risk to the credit rating of the held security, with unrated securities considered the highest risk. Bank regulators later extended this practice of outsourcing their supervision of commercial bank risk to credit rating agencies under the implementation of the Basel capital standards.
The SEC, in designing its capital rules, was concerned that, in allowing outside credit rating agencies to define risk, some rating agencies would be tempted to simply sell favorable ratings, regardless of the true risk. To solve this perceived risk, the SEC decided that only Nationally Recognized Statistical Rating Organizations would have their ratings recognized by the SEC and used for complying with regulatory capital requirements. In defining the qualifications of an NRSRO, the SEC deliberately excluded new entrants and grandfathered existing firms, such as Moody’s and Standard and Poor’s.
In trying to address one imagined problem, a supposed race to the bottom, the SEC succeeded in creating a real problem, an entrenched oligopoly in the credit ratings industry. One result of this oligopoly is that beginning in the 1970s, rating agencies moved away from their historical practice of marketing and selling ratings largely to investors, toward selling the ratings to issuers of debt. Now that they had a captive clientele, debt issuers, the rating agencies quickly adapted their business model to this new reality.
The damage would have been large enough had the SEC stopped there. During the 1980s and 1990s, the SEC further entrenched the market control of the recognized rating agencies. For instance, in the 1980s the SEC limited money market funds to holding securities that were investment grade, as defined by the NRSROs. That requirement was later extended to money market fund holdings of commercial paper. Bank regulators and state insurance commissioners followed suit in basing their safety and soundness regulations on the use of NRSRO-approved securities.
This kind of situation could conceivably work if there were a large number of NRSROs but instead there are only three. And they essentially have the entire market in global finance captive. It’s a recipe for disaster.