FDIC Banking Review Politics and Policy: The Creation of the Resolution Trust Corporation by Lee Davison *
As the U.S. government sought solutions to the S&L
crisis in 1989 and set about revamping the thrift industrys activities,
regulation, and supervision and restoring the industrys insurance fund, it
faced a multitude of challenges. One of the most significant was to create a
mechanism that would resolve all then-insolvent thrifts as well as the large
number of thrifts expected to become insolvent in the near future. The
mechanism not only had to be created but it also (optimally) had to be able to
accomplish its missionclosing, selling, or merging institutions and disposing
of vast amounts of assetsas quickly as possible. Furthermore, it had to do so
in a way that would minimize taxpayer costs and avoid serious dislocation in
markets. Quite obviously some of these goals were at cross-purposes. One
circumstance that aided policymakers was the existence of the Federal Deposit
Insurance Corporation (FDIC)that agency could provide expertise, an initial
set of policies, and so allow for a relatively swift start to the task. Even
with this advantage, the task of creating the necessary mechanism was not going
to be easy.
Given the extensive use of tax dollars that would be
required, inevitably the mechanism would be a governmental entity. But because
of recent history, the creation of such an entity was fraught with problems.
In 1988 the handling of troubled and failed thrifts by the Federal Home Loan
Bank Board (FHLBB) had been roundly criticized; and the record of the Federal
Asset Disposition Association (FADA), which the FHLBB had created in 1985, also
failed to inspire confidence. (Both the 1988 deals and the FADAs record are
described in the appendix.) Awareness of these past failureswhether real or
perceivedhelped shape the policy decisions relevant to the creation of the
Resolution Trust Corporation (RTC) and where governmental responsibility for
its work would lie.
President George H.W. Bush announced his plan for what
would become the Financial Institutions Reform, Recovery, and Enforcement Act
(FIRREA) on February 9, 1989. This bill promised to become the most
significant legislation affecting depository institutions in a decade and the
most important legislation affecting the S&L industry since the Great
Depression. The administration began with the ambitious objective of achieving
passage of the legislation within 45 days, and at least initially, Congress was
receptive to the idea of a speedy process. Rep. Frank Annunzio told the
president that normally such a timetable to rewrite major portions of the
financial laws of our country would not be adequate, but these are unusual
times, and swift action must be taken.1 The breadth of the
legislation and the variety of interested parties, however, combined to make
this timetable unworkable, and FIRREA was not signed into law until August 9,
six months after the presidents plan was announced.
FIRREA abolished the Federal Savings and Loan Insurance
Corporation (FSLIC), the insurance arm of the FHLBB, and created the Savings
Association Insurance Fund (SAIF), a new deposit insurance system for thrifts
to be administered by the FDIC. FIRREA also dismantled the FHLBB and, in its
stead, created the Office of Thrift Supervision (OTS), an agency within the
Treasury Department, both to charter federal thrifts and to serve as the
primary federal regulator of all thrifts. The law laid down much stricter
minimum capital and accounting requirements for thrifts (including phasing out
the inclusion of supervisory goodwill by January 1995),2 tightened the
qualified-thrift-lender test, and altered the rules on thrift acquisitions by
bank holding companies. The law gave financial institution regulators
significant new enforcement powers, made substantial changes to existing FDIC
authorities and granted new powers to the FDIC, and reformed the Federal Home
Loan Bank System. Finally, FIRREA also created the RTCa government agency
charged with tasks never before undertaken in the history of the United States.3
As enacted, FIRREA made the RTC a limited-life (for five
years) entity that would manage and resolve all formerly FSLIC-insured
institutions placed under conservatorship or receivership from January 1, 1989,
through August 9, 1992.4 As of the date of enactment, the RTC was
to succeed the FSLIC in its role as conservator or receiver of any
institution. General oversight of the RTC was vested in an Oversight Board,
which was to direct the RTCs overall policy, but operational control would
rest with the RTC itself. The Board of Directors of the FDIC was to serve as
the RTCs Board of Directors (and FIRREA expanded the FDICs Board from three
to five members, adding the head of the OTS and a member to be nominated by the
president); and the FDIC would be the RTCs exclusive manager. The RTC was
to have no employees of its own but was to use the employees of other federal
departments or agencies, most notably the FDIC. In addition, the RTC was to
manage and dissolve the FADA within 180 days and was to review the transactions
made by the FSLIC during 1988 to determine if cost savings could be found. The
law also dealt with issues such as contracting, audits and reporting, asset
disposition, and the mechanism for funding the RTC.
The RTC created by FIRREAs enactment was recognizably
the product of the administrations approach, but the new agency also reflected
changes made during the legislative process. The RTC emerged both more defined
by statutory requirements and more accountable to the public, but also more
cumbersome by virtue of an intragovernmental battle for authority and the
potentially contradictory goals that Congress grafted onto the structure. All
the changes would significantly affect the way in which the RTC would carry out
The next section presents an overview of the administrations
initial plan and the changes it underwent. The process by which those changes
were achieved is spelled out in detail in subsequent sections. The appendix
briefly recapitulates the history of the FADA and the 1988 FSLIC deals and the
ways in which FIRREA proposed to dispose of both of them.
The Initial Plan and the Ways It Changed
The creation of the RTC was affected by the magnitude of
the changes contemplated in the bill the administration sent to Congress, the
need for the bills speedy enactment,5 and the lack of detail in the
administrations initial pronouncements on the RTC. Because 1) the bill
embraced the wholesale modification not only of thrift regulatory structure but
also of many aspects of thrift regulation and 2) speed was critical, the RTC
was considerably less visible than it might have been. And the lack of detail
(among other causes) meant that despite the interest and involvement of people
both inside and outside the government, many aspects of the RTCs structure remained
undecided until very late in the legislative process, while other aspects were
left entirely (not always unintentionally) unaddressed.
Although the RTC was at the heart of the
administrations plan for restoring the thrift industry,6 as first
announced the plan did not spell out the RTCs structure and operating
procedures. Rather, it provided only a few basics. It simply established the
RTC (which was not to be deemed an agency of the U.S. government) for a limited
life of five years to manage and resolve all FSLIC-insured institutions placed
either in receivership or conservatorship for the three years following
enactment. It would also take over from the FSLIC as conservator or receiver
for institutions where the FHLBB had appointed a conservator or receiver after
January 1, 1989. In addition, the RTC was to manage the assets of the FADA and
wind that organization down within 180 days. The real work of resolution and
asset disposition would be contracted out, much of it through a management contract
to the FDIC, which was considered the most experienced agency available to
perform such tasks. To carry out its mission, the RTC was to receive powers
identical to those of the FDICbasic corporate powersas well as several
special powers. Included among the latter would be the power to enter into
contracts with the FDIC or other entities, so long as the FDIC would be the
RTCs primary manager and that all contracts other than those with the FDIC
be subject to competitive bid. The RTC also would be given the power to set
credit standards for institutions for which it was responsible, to require
mergers or acquisitions, to organize federal mutual savings associations, and
to review the 1988 FSLIC cases. Institutions managed by the RTC were to be restricted
in certain waysfor example, with respect to asset growth, lending, use of
brokered deposits, and interest rates. As for funding, the RTC would be given
the power to issue capital certificates to the funding mechanism espoused by
the administration (the Resolution Funding Corporation) and would be permitted
to borrow $5 billion from the Treasury.7 The RTC would be overseen
by an Oversight Board, which would serve as the RTCs Board of Directors and
would consist of the Treasury Secretary, the Chairman of the Board of Governors
of the Federal Reserve System, and the Attorney General. The Oversight Board
would appoint a CEO to head the new agency.
With respect to size, the administration initially
conceived of the RTC as a relatively small entity. Although a Republican
administration was forced to swallow the bitter pill of paying for a good part
of the rescue with taxpayer dollars, it disdained to establish a large new
federal bureaucracy.8 Certainly few in Congress or in the country
at large would have applauded the establishment of such a bureaucracy, and if
President Bush was going to persuade Republicans to support the plan, creating
a large new agency would best be avoided. Treasury Secretary Nicholas Brady
stated that the RTC was not envisioned as having a large staff component.
Robert Glauber amplified on this vision during his confirmation hearings for
the position of Undersecretary of Treasury for Finance in May, when he stated
that the administration intended the RTC to be an administrator of contracts
and that it was to be a lean organization . . . that does not exceed 100
In retrospect, the part of the administrations plan
that called for the RTC to be a small organization was wholly unrealistic.
Even if the RTC had been solely a contract administrator, the sheer volume of
business in managing and disposing of assets would clearly have required many
more people for adequate oversight. As it turned out, however, before FIRREA
was passed the administration substantially altered its somewhat abstract
notion of RTC management and structure.
Other aspects of the administrations original plan for
the RTCs structure and function also underwent change, largely as a result of
a debate that was mostly carried on within the governmentunsurprisingly, given
that the establishment of the RTC involved allocating and reallocating
governmental responsibilities.10 Varying opinions from the
administration, the FDIC, and Congress set the parameters of discussion. This
fundamental dynamic did not prevent specific interest groups outside the
government from playing a role in the RTCs creation, nor did it mean that the
RTC occasioned little comment. Two interest groups that sought to influence
the shape of the RTC should be mentioned specifically. One was the real estate
industry, which was concerned both with the effects of RTC operations on local
real estate markets and with the role of private contractors in the management
and disposition of assets. The second group consisted of affordable-housing
advocatesgroups pressing for an increased availability of affordable housing
for lower-income families. As for other interest groups, congressional
perspectives inherently brought the viewpoints of various constituencies to the
legislative process. This relationship was reflected especially in the
opinions of legislators from areas such as the Southwest, where the S&L
crisis and its attendant problems were particularly severe.
One group that played little or no role in the
establishment of the RTC was the thrift industry itself. Insolvent thrifts,
the group with which the RTC was to deal, could exert little influence on
Capitol Hill. And as FIRREA progressed through Congress, it became clear that
even on behalf of the industrys surviving members, the once-powerful thrift
industry lobby held much less sway with legislators than it had during the
previous decade. The U.S. League of Savings Institutions, the industrys
trade group, had had tremendous influence in both Congress and with the FHLBB,
and its agenda had shaped thrift deregulation in the early 1980s. The League
successfully fought the Reagan administration in the mid-1980s as it sought
ways to recapitalize the FSLIC, not only because such plans meant that the
government would be able to close insolvent S&Ls (which, of course, made up
a large and growing part of the Leagues membership), but also because they
normally involved some types of industry contributions. When recapitalization
was finally enacted in the 1987 Competitive Equality Banking Act, the League
still managed to decrease the amount from $15 billion to $10.8 billion. Just
two years later, however, the industrys power had waned and what little
influence it had left was focused on areas far more important to the industry
in the long run than was the RTCareas such as
FIRREAs new regulatory regime and capital requirements. Certainly the
industry was extremely interested in the amount of money it would be required
to contribute to the RTCs funding, but here again, it had little effective
voice in trying to increase taxpayer contributions while decreasing its own.11
Although the thrift lobby did not completely ignore the RTC, apart from its
role in funding the new entity, the industry paid comparatively little attention
until the legislative process was well along.
Input from the FDIC
As noted above, the management structure initially
envisaged by the administration was that a very small entity would be directed
by a small group of senior officials and would contract its activities out
primarily to the one existing government agency with experience in this
areathe FDICbut also to private sector firms. Some aspects of this initial
plan were undoubtedly unworkable, but in any case the FDICs leadership was unhappy
with the agencys place in the division of responsibility and sought a more
active role. Accordingly, a compromise was reached: the FDIC would become the
RTCs exclusive manager, but an administration-controlled Oversight Board would
determine overall strategy. Congress tinkered around the edges of this
accommodation between the FDIC and Treasury but, because time was short, left
it essentially intact. The compromise meant that the RTCs management
structure would be uniqueand complicated.
Pressure from Congress
In other areas, it was Congress that made significant
changes and additions to the administrations planwithout much resistance from
the administration. For one thing, the creation of a new government agency was
guaranteed to provoke disagreement. For another, since the RTC was certain to
spend vast amounts of taxpayer money and would control and dispose of a truly
immense quantity of assets with the potential to affect markets across the
nation, the administrations initial undefined outline for the RTC was not
likely to remain unaltered.
Congress viewed the administrations plan as imprecise
and moved to refine it. The process was, of course, not one-sided, and the
administration responded with clarifications of its own (as in the case of the
Oversight Board).12 In general, the administration sought to
preserve what it viewed as necessary flexibility in the RTCs mission and
Congressional critics, broadly speaking, focused their
modifications on three areas (which were not necessarily mutually exclusive).
First, because many observers both inside and outside Congress believed that
the RTC had the potential to generate scandal and corruption on a grand scale,
Congress looked to increase accountability within the RTC and among its
ancillary functions.13 Second, because the experiences of both the
FADA and the 1988 FSLIC deals were fresh in the minds of legislators, Congress
tried to influencein some respects very specificallythe way the RTC would do
its job, something the administration tended to see as legislative
micromanagement. Finally, Congress wanted to address public and social policy
goals that were not necessarily immediately germane to the RTCs task. The
administration opposed many of the proposed changes in this area, believing not
only that they were a distraction but also that they might impair the RTCs
ability to accomplish its mission at the lowest cost to the taxpayer, but it
did not think any of these issues important enough to take a stand on, and
virtually all of Congresss changes in these three areas were enacted with
relatively little apparent discussion.
Such was not the case when it came to deciding just how
to raise the money the RTC would receive to resolve insolvent thrifts. This
question engendered the most partisan and prolonged debate associated with the
RTCs creation. The estimates of how much money would be needed ranged widely,
but once the administration adopted its $50 billion estimate, most of the
debate was driven by the politics of the budget deficit. The Republican
administration wanted a funding structure that would put the expense
off-budget. The Democrats controlled Congress, and many of them wanted to
fund the RTC with direct borrowing from the Treasury (a plan that would be less
costly), which would move the expense on-budget. The budget deficit, after
decreasing in 1987 from all-time high levels in the two previous years, had
risen substantially in 1988, and neither the administration nor Republicans in
Congress were eager to fuel further increases in the deficit. Congressional
Democrats arguments about the costs of the off-budget plan were accurate,
but a rising deficit also proved too useful a political cudgel to leave unused.
This battle had the very real potential to disrupt and delay FIRREAs passage,
but other than the (very salient) fact that the initial funding would quickly
prove inadequate, the debate was mostly a political one and meant relatively
little to the genesis of the RTC.
Structure: The Oversight Board, the FDIC, and the RTC
The Bush administrations initial plan for the Oversight
Board was clearly designed to ensure the administrations control over the use
of substantial amounts of taxpayer dollars. Because the administration would
be held accountable for the RTCs use of the money, this approach was
understandable. The Oversight Board, to be chaired by the Secretary of the
Treasury and also composed of the Chairman of the Federal Reserve Board and the
Attorney General, was to serve as the RTCs Board of Directors and was to
review and have overall responsibility over the work, progress, management and
activities of the RTC. It was also to approve or disapprove of any RTC
action, including those dealing with the disposition of individual institutions.14
The need for this kind of control was at least partly a byproduct of the
perception that the deals put together by the FSLIC in 1988 had committed
taxpayer dollars without authorization.
Congress essentially went along with the basic idea of
Oversight Board control of the RTC. However, both the Senate and House
suggested changes to the Boards composition, with each houses banking
committee placing additional members on the Oversight Board. The Senate
Banking Committee decided that two private sector individuals with experience
equivalent to that of the CEO of a major corporation should be on the Board:
many legislators thought that the named government officials would probably not
have enough time to devote to the work of the RTC, and noted that these
additions would add essential expertise in real estate and management.15
The whole Senate, spurred by concern about the local nature of real estate
assets, added further private sector input by providing that 12 regional
advisory boards be established.16 Treasury officials opposed the
additions to the Oversight Board, which they believed was properly made up only
of public sector representatives. They argued that the RTC could draw from
private sector expertise by establishing advisory groups and contracting with
private sector firms.17
The House Banking Committee added three members: the
Secretary of Housing and Urban Development (HUD), an individual from the
private sector, and the Chairman of the FDIC as a nonvoting member.18
Banking Committee member Marge Roukema argued that adding the three new members
would mean that all relevant parties were on the Board; the inclusion of the
HUD secretary was logical because the department already has experience in
residential property disposition. In response, Assistant Treasury Secretary
David Mullins stated that although having the FDIC on the Board would not
necessarily create a conflict of interest, the administration preferred that
that agency not be represented.19 Another administration official
labeled the inclusion of the FDIC a grab for power by the agency.20
The emphasis on placing private sector experience on the Board, an emphasis
that private real estate interests supported and lobbied for, stemmed from the
notion that asset disposition was an activity with which government officials
were unfamiliaras had been attested to, many thought, by the experience of the
FADA.21 For the most part the concern about asset disposition
reflected fears that the new entity would engage in asset dumping.22
The whole House made other changes affecting the Oversight Board; perhaps most
significantly, it required the Oversight Board to establish and oversee a
minority outreach program to ensure that minority- and women-owned entities
were included in contracts with the RTC.23
The composition of the Oversight Board, however, was a
relatively minor point of contention compared with the Boards function.
Indeed, the House Banking Committees inclusion of the FDIC Chairman as a
nonvoting member of the Board foreshadowed the larger debate, which centered on
the role of the FDIC vis-à-vis the role of the Oversight Board in the RTC. The
crux of the question had been identified in April by the U.S. General
Accounting Office (GAO), which expressed concern about the administrations
conception of the Oversight Board as operationally involved in decisions about
case resolution. Comptroller General Charles Bowsher argued that the RTC
should make such decisions, with the Oversight Board limited to evaluating the
appropriate use of funds, and providing a check on the process.24
Although the GAO report was directed to Congress, the
debate occurred not in that body but between the administration and the FDIC.
As noted above, the administration plan placed the Oversight Board in charge of
every aspect of RTC activitybut it also named the FDIC as the RTCs primary
manager. This nomenclature was puzzling to many. If the Oversight Board was
charged with directing the RTC, just what was the FDICs role? The Senate
Banking Committee, although it did not change the administrations plan, noted
that it was not entirely clear how the relationship between the RTC and its
primary manager, the FDIC, will evolve.25 The FDIC and its
chairman clearly did not approve of a system in which the agency was asked to
shoulder the burden of conducting the S&L cleanup without having any say in
how the cleanup would be run.26
By June, negotiations between the FDIC and Treasury were
under way to clarify the operating structure of the RTC and the Oversight
Boards powers. The administration proposed replacing the original and
somewhat nebulous notion of the FDIC as primary manager with a structure in
which the FDIC would be the exclusive manager of the RTC. In other words,
instead of simply being the RTCs primary (but not necessarily only)
contractor, the FDIC would now run the RTC, and any contracts with private
sector firms would be arranged and overseen by the FDIC. However, the FDIC
believed that the draft management agreement presented by Treasury still gave
the Oversight Board powers that would allow it to have too great an influence
on RTC operations. The FDIC also believed that if the agency was to serve as
the RTCs exclusive manager, it ought to have a seat on the Oversight Board.
Treasury rejected this position and insisted that the FDIC have no presence on
the Oversight Board. In this impasse, Treasury sought to preempt further
negotiation by setting out the FDICs role legislativelythat is, going through
Congress to settle the argument. The FDIC Board responded by suggesting both
to Treasury and to Congress that the FDICs Board of Directors serve as the RTCs
Board; that any funds appropriated for the S&L cleanup be appropriated
directly for the FDICs use; and that supervision be provided by the president
and congressional committees rather than by the Oversight Board.27
Such a structure would, of course, have removed much of the administrations
control over the RTC and was therefore unacceptable to Treasury.
By mid-July the FDIC had become somewhat more
conciliatory and proposed that the Oversight Boards role in the formulation of
policy be eliminated and, instead, that that body have the power to review RTC
strategies and policies as well as to remove the FDIC from management of the
RTC if the agencys performance was unsatisfactory. The FDIC proposals were
provided to Sen. Donald Riegle.28 The administration, too, sent
proposals to the Hill; David Mullins (Assistant Secretary for Domestic Finance)
stated that the administration had now removed all ambiguity from its proposal.29
After several days of continuing negotiation, Treasury and the FDIC finally
concurred on a draft management agreement that was formally sent to Congress on
July 20. By this time the administration might have realized that the RTC was
likely to be a potential magnet for problems, and although sharing
responsibility with the FDIC meant having less control, it also provided
cover. One financial services industry official noted at the time that the
administration had become skittish in reaction to the problems associated
with creating a new entity out of whole cloth to deal with such a large problem
and had decided that delegating RTC activities to the FDIC was preferable to
having sole responsibility.30 In addition, the FDIC and its
chairman were viewed very favorably, and the administration probably did not
want to fight an even more public battle with the FDIC over the latters RTC
The TreasuryFDIC agreement retained the
administrations three-person Oversight Board, chaired by the Treasury
Secretary. The Boards authority, however, was fundamentally changed: it was
now to develop and establish overall strategies and policies in consultation
with the RTC. These overall strategies and policies included general policies
for case resolutions, disposition of assets, the use of private contractors,
the use of notes, overall financial plans and budgets, and restructuring the
1988 FSLIC deals. In addition, the Oversight Board would review and approve
any financing requests and would review regulations and procedures, but with an
important exception: it would have no authority over case-specific matters
involving individual case resolutions, asset liquidations, or the day-to-day
operations of the RTC. The FDIC was to serve as the exclusive manager of the
RTC but could be removed by the Oversight Board if its performance was unsatisfactory.
The FDIC Board of Directors would double as the Board of Directors for the
RTC. Until the Oversight Board could establish policies, FDIC policies would
govern the RTC.31
Treasury had succeeded in keeping the FDIC Chairman off
the Oversight Board, but the FDIC had limited the ability of the Oversight
Board to intervene in RTC operations.32 Deputy Treasury Secretary
John Robson predicted that the FDIC and the Oversight Board would work in
concert but acknowledged that he was also expecting the FDIC [to] initiate a
number of policies.33 The compromise created a bifurcation in
authority, with the Oversight Board setting overall policies but the RTC making
its own operational decisions. Potentially, such an arrangement could make
management of the RTC unwieldy.
The FDIC and Treasury arrived at this agreement a little
more than two weeks before a final statute had to be crafted (if it was to be
completed before the August recessa deadline that no-one wanted to miss), so
Congress had little time to intervene. One congressional staff member
complained that first the administration was admonishing Congress to speed up
and pass the bill, then they throw a whole new draft at us.34
Congress did not tamper with the agreements basic structure, but many
legislators still felt that the nature of the RTC remained unclear. One
attempt to clarify it was to require that the Oversight Board establish a
strategic plan for conducting the RTCs operations and submit it to Congress no
later than December 31, 1989.35 This requirement answered to the
concern of some in Congress that the Oversight Board was an unaccountable
Originally the Oversight Board had simply been a group
of high-ranking government officials with broad responsibilities, and the administrations
bill stated that the Board would not be considered an agency of the United
States government, a status that left it free of all sorts of statutory
requirements affecting the way in which it could act. But despite the
administrations general resistance to having constraints placed on this agency
it was creating, by mid-July, in both the House version of the bill and in the
TreasuryFDIC agreement, the Oversight Board had become an instrumentality of
the U.S. government.36
With regard to the membership of the Oversight Board,
Congress insisted on nongovernmental representation and settled on a
five-person scheme: the Secretary of the Treasury and the Chairman of the
Federal Reserve remained; the Attorney General was removed in favor of the Secretary
of HUD; and two independent persons to be chosen by the president and confirmed
by the Senate completed the group. As had been the case from the beginning,
the Secretary of the Treasury would serve as the Boards Chairman. Although
the administration did not favor independent members, both the House and Senate
(at least partly at the urging of the real estate industry) had supported the
idea, and since President Bush would nominate the two individuals, the
administration probably did not perceive this as an issue on which it needed to
take a hard and fast position.
In addition to its responsibility for setting overall
policy for the RTC, the Oversight Board would approve RTC financing requests;
establish the national and regional advisory boards; authorize the use of
Resolution Funding Corporation (as noted above, a funding mechanism to be
created by FIRREA) and Treasury funding; and could require the RTC to modify
its rules, regulations, and guidelines. On the one hand, the administration
retained a measure of control through the Oversight Board; on the other hand,
by statute the RTC was given a much freer hand than the administration had
originally intended. The real nature of the working relationship between the
Oversight Board and the RTC (with the FDIC as its manager) was, however, an
open question as the new entity began operations in August 1989. Later
legislation would be required to clarify that relationship.
The debate over the role and makeup of the Oversight
Board was paralleled by discussion about the entity it was to oversee. As
noted, some in Congress (and elsewhere) believed that, given the sheer volume
and dollar value of assets involved, the RTC was destined to become a scandal
of gargantuan proportions. Corruption, bribery, and favoritism, according to
these observers, were likely to mar the RTCs work and add to taxpayer costs.
After all, just when FIRREA was wending its way through the legislative
process, Washington was preoccupied by scandals involving the misuse of funds,
the overpayment of consultants, and charges of political favoritism at the
Department of Housing and Urban Development in the Reagan administration.37
Members of Congress, cognizant of the problems at HUD, were anxious to find
ways to increase the RTCs accountability.38 Significant mechanisms
to ensure oversight and controls were therefore attached to the
administrations plan, although some legislators thought that even these
changes did not go far enough (Rep. Toby Roth remarked that two years from now
. . . the RTC . . . will be a scandal so large that HUD will seem like a
lemonade stand gone sour).39
Perhaps the most basic way in which Congress sought to
impose additional oversight was by altering the legal definition of the RTC.
This impetus came mostly from the House and has been mentioned above in
connection with the Oversight Board. The presidents bill had stated that the
RTC, like the Oversight Board, would not be considered an agency of the United
States government. One House member suggested that the administration wanted
a body that was essentially undefinable, an entity that lives in the twilight
zone between the public and private sectors.40 Such a declaration
was undoubtedly somewhat overwrought, but those sentiments were reflected in
the Houses decision to make the RTCexcept when acting as conservator and
receiversubject to the Administrative Procedures Act and other laws.41
In opposing this change, one Treasury official argued that the more extensive
the restrictions on the RTC, the more difficult it would be for that agency to
resolve institutions and dispose of assets in a cost-effective and
non-controversial manner. A further Treasury argument was that because the
RTC had a very specific task and a limited life, subjecting it to the
Administrative Procedures Act was inappropriate.42 The Senate,
whose bill had followed the administrations plan, accepted the House position
in conference, and the position was included in FIRREA as enacted.43
Some of the most significant elements of these laws
addressed conflicts of interest, but Congress did not stop at simply making the
RTC subject to the laws governing U.S. agenciesit also demanded specific
actions beyond what those statutes required. Within 180 days, the Oversight
Board and RTC had to set down rules at least as stringent as those applicable
to the FDIC governing conflict of interest, ethical responsibilities, and
post-employment restrictions. Any RTC CEO was subject to a one-year
revolving-door provision preventing him or her from immediately turning RTC
service into profit in the private sector. All RTC and Oversight Board
employees from other agencies were to file with the RTC whatever financial
disclosure forms those other agencies required.
Because the RTC was to rely on the private sector,
Congress was particularly concerned about potential abuses in contracting. The
Oversight Board and the RTC were therefore required to create regulations on
conflicts of interest and ethics for independent contractors, as well as on
contractors use of confidential information. The Oversight Board would
prescribe regulations establishing procedures to ensure that contractors met
certain minimum standards. Contractors had to provide a description of any
instance within the preceding five years in which the person, or the company
under that persons control, had defaulted on a material obligation to an
insured depository institution. No one who had been convicted of a felony, or
had been removed from or prohibited from participating in the affairs of an
insured depository institution, or had demonstrated a pattern of defalcation
regarding obligations to insured depository institutions, or had caused a
substantial loss to federal deposit insurance funds, was to serve the RTC in
any capacity. In addition, the Oversight Board was permitted to rescind
contracts with individuals who fell into these categories, or who failed to
disclose material facts, or who had been subject to a final enforcement action
by any federal banking agency. Congress clearly sought to limit one perceived
problem: the possibility that those who had helped create the S&L debacle
through fraud or mismanagement would be able to profit from the cleanup.
The House Financial Institutions Supervision, Regulation
and Insurance Subcommittee also adopted an amendment that designated the RTC as
a wholly-owned government corporation.44 The House proponents of
the amendment viewed this as an added precaution to ensure proper oversight of
the RTC,45 but the administration successfully lobbied against this
proposal, and the RTC was designated a mixed-ownership government
corporation, a move denounced by Rep. Paul Kanjorski as a fiction designed to
exempt it from a host of . . . laws and safeguards.46 Although the
administration generally sought to keep the RTC free of encumbrances, mixed
ownership was the designation of the FDIC, and the administration thought it
made sense to have the RTC given the same designation as the FDIC, which would,
after all, be operating the new entity. In addition, the GAO had specifically
recommended that the RTC be created as a mixed-ownership corporation.47
The precise ramifications of the mixed-ownership status
(as opposed to wholly owned status) are unclear, for in fact no definition for
these terms exists.48 In general, mixed-government corporation
status was believed to provide greater financial and accounting flexibility.49
Congress also chose a more
direct route to increase the RTCs accountability: the imposition of very
extensive reporting and auditing requirements.50 Both the House and
the Senate added these requirements, and for the most part the final statute
reflected them. In debate on the Senate floor, Sen. Riegle noted that the
Senate Banking Committee would be very aggressive in its oversight of the RTC
and, through careful monitoring, would guard against the RTCs not follow[ing]
through on the original legislative intent.51 The GAO recommended
reporting requirements to be certain the RTC is accountable to the public and
to Congress.52 Since many of those in Congress who were skeptical
of the how well the RTC would function believed that the administration had not
sufficiently defined the way the RTC would work, Congress chose to carve out a
substantial role for itself in the oversight of the RTCs affairs, a role it
did not later shrink from performing. Very soon after FIRREA was passed, the
House Subcommittee on Financial Institutions Supervision created a separate RTC
Task Force, something not mandated by FIRREA, to monitor the RTC, with Rep.
Bruce Vento as its chairman.53
The statute itself provided for an annual audit either
by the Comptroller General or (in the event the Comptroller General declined to
perform it) by an independent certified public accountant. The RTC and the
Oversight Board were required to make all books and records available for this
audit. The provision for the annual audit essentially mirrored the Senate
version of the bill (the House bill would have required an annual GAO audit).
The statute also called for the submission to Congress and the president of a
full annual report of operations, activities, budget, receipts, and
expenditures. In addition, there were to be specific semiannual reports to
Congress, followed by appearances of the Oversight Board before the banking
committees of both houses.54 The law also mandated that the
Oversight Board and the RTC send representatives to appear before Congress to
report on the RTCs startup. On the Houses initiative, the statute
established the position of Inspector General for the RTC and provided for the
appropriating of funds for the office.55 The administration does
not appear to have opposed these kinds of requirements, at least some of which
it may well have anticipated.56
FIRREA also included various other mechanisms to ensure
RTC accountability. The RTC was required to document decisions made concerning
the solicitation and acceptance of offers57 that involved both the
acquisition of troubled institutions or assets. Legislators wanted to ensure
that RTC procedures provided for fair competition and the consistent treatment
of qualified bidders while minimizing costs to the government. With regard to
acquisitions, clearly the 1988 FSLIC deals were uppermost in the minds of
legislators.58 One congressman who worked on this provision noted
that we need this type of information if were going to avoid the RTC
repeating the December 1988 deals.59 The RTC was also required to
publicly disclose any assistance transaction agreements and all agreements
relating to 1988 FSLIC cases that it reviewed, unless the Oversight Board
unanimously determined that disclosure would be against the public interest;
all such transactions were, however, to be made available to Congress.
The 1988 deals were responsible for a House provision
designed to impose accountability on the RTC: the imposition of a cap on the
issuance of RTC obligations. Banking Committee Chairman Henry Gonzalez argued
that, without such a provision, the [1988 FSLIC deals] could be repeated on a
grander scale, and stated that the RTC should not hold a blank check on the
U.S. Treasury.60 His solution was to limit the RTCs total debt
by creating a formula: the sum of contributions from the Resolution Funding
Corporation (the RefCorpthe funding mechanism created by
FIRREA) and the RTCs outstanding obligations minus the sum of the RTCs cash
and the total fair market value of its assets could not exceed $50 billion.
With the RefCorp originally envisioned to raise $50 billion, this would place a
cap on RTC outstanding obligations equal to the sum of its cash, the fair
market value of its other assets, and the balance of RefCorp bonds remaining to
be issued. In addition, Rep. Gonzalez proposed other limitations on the RTCs
ability to obligate the government, includingwith yet another glance at the
1988 dealsa prohibition against entering into any agreement that did not
specify the maximum dollar amount for which the RTC would be liable.61
The amendment passed the House on a voice vote.
The Senate had not included an obligations limit but
accepted the House provision in conference and proposed that it be modified to
conform to the Senate language limiting FDIC borrowing (this language prevented
the FDIC from issuing notes in excess of 85 percent of the fair market value of
assets and required the FDIC to include the estimated costs of any guarantees
as a liability). The Senate applied the same rules to RTC borrowing but
maintained the House language allowing RefCorp funding authority not to be
treated as an asset subject to the 15 percent discount. The 15 percent haircut
was intended to provide a cushion against inaccurate or changing asset
valuations. The Senate also extended the full faith and credit of the United
States to RTC obligations.62 The administration had argued that
Congress needed to give the RTC the flexibility to issue notes and guarantees
for working capital, especially before it received RefCorp funds. If such a
limit were adopted, it preferred that obligations be measured against the full
amount of resources authorized to be available to the RTC (RefCorp
contributions and assets acquired from insolvent thrifts) rather than that a 15
percent haircut be imposed on the fair market value of noncash assets.63
The Senate version of the limitation on obligations was included in FIRREA.64
The note cap did end up placing potential constraints on
RTC operations, but these went well beyond the constraints the administration
had envisioned in criticizing the note cap. Within just a few months it became
evident that the RTCs need for working capital would push far higher than the
limit set by FIRREA. The law had provided the RTC with the ability to borrow
$5 billion from the Treasury, but the RTC estimated it would need between $40
billion and $100 billion for working capital. Significant discussions during
late 1989 and early 1990 were required to arrive at a solution: the RTC was
allowed to borrow from the Federal Financing Bank to fund its working capital
Imposing adequate accountability was only one way in
which Congress tried to change how the RTC would work. Legislators also sought
to intervene directly in the new agencys operations. As was mentioned above
in connection with the Oversight Board, Congress tried to impose direction on
the RTCs management by requiring a strategic plan. This idea originated in
the Senate, where it was mostly tied specifically to asset disposition
methods. Sen. Riegle noted that the strategic plan was included to address
concerns about the effects of such massive asset sales, particularly in areas
of the country where markets were already depressed.66 The Senate
bill required the RTC to develop the plan, but when the role of the Oversight
Board was redefined to focus on overall strategy and policy, the HouseSenate
conference placed responsibility for the plan with the Oversight Board
instead. At the same time, the content of the plan was broadened significantly
to cover almost every aspect of RTC operations. Although the strategic plan
does fit under the rubric of legislative management, the actual implementation
of the plan was still up to the RTC, under the supervision of the Oversight
Board; and the statute did not spell out the role of the plan in the RTCs
operations. As things turned out, after the strategic plan was drafted it was
rarely mentioned, but at the same time the RTC generally operated in accordance
Congress was more specific in insisting that the RTC use
the private sector in carrying out its mission. Both the House and the Senate
bill incorporated language to that effect, and there appears to have been
little resistance to such provisions. Certainly use of the private sector
dovetailed with the notion that the RTC would have only a short life and that a
large new government bureaucracy would not be created. In addition, many
believed the government had neither the manpower, nor the experience or expertise
to handle asset disposition effectively. The author of the House provision,
Thomas McMillen, stated that Congress needed to set up a system designed to
utilize the forces of free enterprise and market competition as a way to get
both high-quality service and cost competition; disposing of these assets would
require entrepreneurial individuals with experience in business, finance, real
estate, and accounting, and this was not the substance of government but was,
instead, the substance of [the] . . . highly competitive commercial
marketplace.67 Connie Mack, one of the authors of the Senate
provision, stated that private enterprise needs to be used to the fullest
possible extent and that the bill made clear Congresss preference for the
private sector to be used in management of the disposal of thrift assets.68
Emphases did differ. For example, the House approach
was more zealous, stating that the private sector should be used unless such
services were unavailable, impracticable, or inefficient.69 The
Senate, on the other hand, included a provision that the private sector should
be used if such services were available, practicable, and efficient.70
In the TreasuryFDIC agreement of July 20, written with knowledge of the
provisions already adopted on the Hill, the RTC was permitted to use the
private sector if the services were available and were determined to be
practicable and efficient.71 In other words, the administration, as
always, sought to preserve flexibility. Ultimately the middle road of the
Senate language was adopted, making it clear that the law intended the RTC to
use such services but providing the new agency with discretion in choosing how
to use them.
Although use of the private sector to dispose of
failed-institution assets was incorporated into the law, details about the
asset disposition process received much more emphasis, with particular
attention paid to the disposition of real estate assets. For example, the sole
provisionit was originated in the Housethat actually sought to define the
internal organizational structure of the RTC required that the RTC establish a
real estate asset division. The divisions purpose would be to ensure the
orderly disposition of real property assets by exercising primary
responsibility over actions of conservators, receivers or managers of
institutions with respect to the management, sale or disposal of real property
assets.72 The division was specifically required to publish an
inventory of real property assets of institutions under the RTCs jurisdiction.73
Treasury apparently opposed the Houses provision in the belief that the RTC
should not be encumbered by legislative mandates as to operating structure.74
The provision was, however, agreed to by the Senate in conference,75
and it remained in the legislation as enacted. But the RTCs organizational
structure would undergo so many metamorphoses that this initial mandate was not
Congress also believed that the RTC should consult with
experts from outside the government on real estate assets and provided for the
creation of advisory groups. To some extent this was a response to the urging
of the real estate lobby, whose members were concerned about asset dumping and
its effects on local markets. The Senate bill called for regional advisory
groups and the House bill for both a national advisory board and regional
boards. One observer noted that the advisory boards might be useful but that,
if they were merely political entities protecting local interests, they would
be ignored.76 And indeed Treasury initially opposed such groups not
only because it saw them as reducing the RTCs flexibility but also because it
questioned their ability to be sufficiently objective to support the best
long-term solution to the overhang of properties in those local markets (that
is, in distressed areas).77 However, the advisory boards were
included in the TreasuryFDIC language sent to Congress in July, and the
statute provided for both the national and regional advisory boards.78
The statute, however, placed no precise requirements on either the RTC or the
Oversight Board for following the recommendations of these groups.
Both the House and Senate did add prescribed goals for
RTC asset disposition. First and foremost, the Senate bill, trying to dictate
the rules under which RTC decisions would be made, required that the RTC obtain
maximum net present value from assets under its control. Seeking to
accommodate real estate interests, the Senate qualified this by adding that the
RTC should also minimize disruption to local economies. The House followed
with similar language but added affordable housing provisions (see below).
Again, the legislative proposal was colored by fears of asset dumping. The
Senate Banking Committee mentioned its belief that HUDs real estate auctions
in Denver had depressed that citys residential real estate market, and stated
that it expected the RTC to maximize net present value without damaging local
markets.79 Moreover, the committee added a separate provision that
would prevent the RTC from selling real property assets in distressed areas
(designated as Arkansas, Colorado, Louisiana, New Mexico, Oklahoma, and Texas,
although the law also empowered the RTC Board of Directors to change these designations)
for less than 95 percent of the market value established by the RTC.80
Congressional alterations to the bill submitted by the administration thus
began to include potentially contradictory goals and therefore began to blur
the mission of the RTC.
Treasury officials opposed such proposals as a
prescription for gridlock, stating that the overriding purpose of the RTC is
to resolve failed thrifts and manage the disposition of assets in the most
cost-efficient manner possible for the taxpayer. To do this the RTC requires
flexibility, not a straitjacket of conflicting objectives.81 The
administration took congressional opinion into account in the TreasuryFDIC
agreement sent to Congress in July, which included a requirement for the
development of a business plan for the disposition of assets in geographic
areas that might suffer significant adverse effects as a result of conditions
in local real estate or financial markets.82 All of the relevant
House and Senate provisions, however, were retained in the legislation
Social and Public Policy Objectives
Congressional concerns about asset disposition did not
stop with questions of asset dumping and local markets but extended to the
accomplishment of wider policy goals. In the case of asset disposition, the
House added provisions to provide homeownership and rental housing
opportunities for lower income families.83 (Affordable housing
issues were also dealt with elsewhere in FIRREA.)84 Reps. Barney
Frank and Henry Gonzalez championed this idea, arguing that although the RTC
needed to make maximum use of assets from failed institutions, such property
ought not to be turned over to speculators at fire sale prices, further
depressing local markets. Instead, true maximum value would be obtained by the
use of residential property whenever possible to fulfill local housing needs.85
In the Senate, John Kerry, citing the same goals as Reps. Frank and Gonzalez,
put forward a similar plan that was narrowly defeated in committee.86
In the House bill, the chief mechanism for using the RTC
to provide affordable housing was to grant qualified nonprofit organizations,
public agencies, or lower-income families a 90-day right of first refusal to
purchase residential properties. Originally this right was intended to apply
to all RTC property (whether the RTC was acting as conservator or as receiver)
with certain appraised values, and a proportion of all RTC property sold was to
be reserved and maintained for this purpose (20 percent for very low-income
families and an additional 5 percent for lower-income families).87
If residential units were sold to a single organization, 20 percent of those
units were to be reserved and maintained for very low-income families, and an
additional 15 percent for lower-income families. Purchasers setting aside a
higher percentage of units for such families were to receive preference among
substantially similar offers. In addition, the RTC was to sell such properties
under net realizable market value and was allowed to provide loans to
purchasers at reduced interest rates to the extent necessary to allow a
purchaser to comply with the lower-income occupancy requirements. The House
also provided for assistance by HUD and the Farmers Home Administration (FmHA)
by increasing the budgets for certain programs administered by the appropriate
In subcommittee, Rep. Chalmers Wyliea Republican acting
on behalf of the administrationsucceeded in changing the affordable housing
program from a mandatory to a discretionary one, but Rep. Frank, partly by
dropping the notion that a proportion of all RTC property would be reserved for
lower- and very low-income families, succeeded in restoring it in full
committee by a vote of 3318.88 In June the administration urged
the deletion of housing subsidies to be provided by the RTC and the Federal
Home Loan Banks under the bill. Congress, it was argued, should not grant
preferential rights to purchase assets of failed thrifts to any group but,
instead, should deal with affordable housing in separate legislation.89
Rep. Wylie stated that the RTCs business was the disposition of real estate
and that Congress could not afford to tie the hands of the RTC with unwieldy,
mandatory procedures.90 Treasury officials had previously opposed
the provision for RTC loans to purchasers of residential property, noting that
making such loans was well outside the RTCs primary mission and that there was
no need for the RTC to compete with other credit providers in order to dispose
of assets. Moreover, the officials believed that long-term lending was
incompatible with the short-term life of the RTC.91
The Senate, having voted down affordable housing
provisions in committee, reversed course in conference. Although senators
accepted the basic ideas put forward by the House, they wanted these refined in
such a way as to ensure that the program did not interfere with efficient
asset disposition by the RTC, require the RTC to sell properties at below market
prices, or provide below-market-rate financing.92 Such a stance
was much more in line with the administrations position. The HouseSenate
conference made substantial changes to the residential properties disposition
program, creating different rules for single and multifamily properties and
clarifying the process for each.
For single-family properties the RTC, within a
reasonable time after acquiring title,93 was to give written notice
to clearinghouses94 providing basic information about the property.
These clearinghouses were to make the information available to other public
agencies, nonprofits, and qualifying households, and the RTC was to provide
reasonable access to the properties. For the three months after the RTC made
an eligible property available for sale, the agency was to offer the property
only to qualifying households, nonprofits, or public agencies that would either
make the property available for occupancy by, and maintain it for occupancy by,
lower-income families, or would make it available for such families to
purchase. After the three-month period, the RTC could offer to sell to any
For multifamily housing, the RTC was again to provide
written notice to the clearinghouses containing basic information about the property,
as well as reasonable access. Qualifying purchasers were allowed to give
written notice of serious interest during the 90-day period after notice was
provided to the clearinghouses or until the RTC determined a property was ready
for sale, whichever came first. The RTC was then required to give notice to
those who had expressed interest, after which those parties had 45 days to make
an offer. Multifamily properties were subject to lower-income occupancy
requirements (at least 35 percent of units had to be reserved for lower-income
families, and at least 20 percent for very low-income families). The RTC could
sell to other purchasers after the 90-day period if no qualified purchaser had
expressed serious interest. The RTC was to give preference among substantially
similar offers to those that reserved the highest percentage of units for
In addition, the conference removed the new funding
(just over $500 million for fiscal year 1990) that the House had included for
HUD and FmHA financing, and replaced it with statements directing the relevant
cabinet officials to provide expedited assistance to purchasers under laws
already on the books. The conference also weakened the Houses requirements
concerning sale and financing: the RTC, rather than being required to sell
properties below the market price, was permitted to do so if that would
facilitate the goals of the affordable housing program. Moreover, the RTC was
again allowednot requiredto provide loans to purchasers at below-market
interest rates in order to facilitate expedited sales to qualified owners. All
these changes essentially reflected Senate positions.95 The law
also provided for rent ceilings on multifamily properties for very low- and
lower-income tenant families.
Although some of the more ambitious goals of House
Democrats were not achieved in FIRREA, affordable housing provisions certainly
made their mark on the statute, and even if the volume and number of assets in
these programs would prove to be relatively small, the law nevertheless
required a significant effort on the part of the new agency. The
administration apparently did not think it advisable to make a stand on
affordable housing, despite its view that the provisions were incompatible with
the RTCs mission. In any case, given that House Banking Committee Chairman
Gonzalez backed the inclusion of affordable housing measures, compromise on
this issue was probably necessary to ensure passage of the legislation.
Congress sought to address another social policy goal
through the RTC in another and very different way: by including minorities and
women in the S&L cleanup process. The House bill required the Oversight
Board to create a minority outreach program to ensure inclusion, to the
maximum extent possible of minorities and women, and entities owned by [them]
in all RTC contracts. The House bill contained another provision that called
for the RTC to establish policies that called for the active solicitation of
offers from minorities and women and specified reporting requirements that
would detail the number of women and minority investors participating in the
bidding for both acquisitions and assets.96 In the Senate, Alan
Cranston had successfully put forward an equal opportunity amendment requiring
that all the banking agencies, including the RTC, were to establish programs
for soliciting business from such entities in their procurement programs.97
The Senate apparently was willing to accept the House provision for an outreach
program led by the Oversight Board, but that provision was not included in the
final law.98 Instead, policies on outreach programs were included
in the required strategic plan; and the reporting requirements were retained,
as was the general equal opportunity provision. Congress would, however,
return to the subject of minority- and women-owned businesses in future
legislation concerning the RTC, and the subject would remain an important
aspect of the agencys political environment.
Funding for the RTC
The most contentious RTC-related battle between the
Republican administration and the Democrat-controlled Congress was fought over
the manner in which funding for the cleanup would be provided to the RTC. The
RTCs funding was entangled in the politics of the budget, and specifically in
the constraints of the Gramm-Rudman-Hollings deficit reduction law (GRH).99
Once the amount of the funding had been decided, the method of providing the
funding made no difference to the way in which the RTC would be structured or
would operate. Nonetheless, the method generated heated rhetoric and threatened
to delay or even scuttle the bill.100
The administration plan provided $50 billion for the RTC
to use in resolving insolvent institutions. The $50 billion would be raised
through the sale of bonds by the RefCorp. This approach mirrored the one taken
in 1987, when the Competitive Equality Banking Act established the Financing
Corporation to issue bonds to raise funds to recapitalize the FSLIC. This
approach also met the highly desirable (for the administration) goal that the
spending on the RTCs caseload would not increase the reported U.S. budget
deficit (as Treasury funding would) and therefore would neither invoke
sequestration under GRH nor require increased taxation to avoid sequestration.101
However, many Democrats and some Republicans questioned this course, preferring
that Treasury provide the funds to close failing thrifts.
The merits of on-budget versus off-budget financing
became by far the most politically charged issue accompanying the creation of
the RTC. Although Democrats in Congress undoubtedly pushed for on-budget
financing as a way to embarrass the Bush administration by increasing the
budget deficit in the face of Bushs no-new-taxes pledge, the substantive
argument put forward for on-budget financing was simple: RefCorp-issued bonds, because
they would not be considered Treasury-backed securities, would carry a higher
interest rate than Treasury obligations. Financing under the Bush plan would,
therefore, be significantly more expensive than direct Treasury borrowing; the
figure most often cited was approximately $4.5 billion over the life of the
bonds. In addition, opponents of off-budget financing saw the plan as a
dangerous precedent that would encourage future administrations to establish
such entities as a way to avoid future budget targets.
The administration argued that although there might be
additional costs, they would be outweighed by the benefits of the off-budget
approach. Administration officials stated that using $50 billion in Treasury
funding but exempting it from GRH could push up domestic interest rates
(possibly defeating the purpose of lowering the borrowing cost) because that
action would cause domestic markets and foreign nations to question the U.S.
commitment to lowering the budget deficit.102 The administration
also argued that because the $50 billion principal of the
RefCorps bonds would be financed by contributions from the S&L industry
(the interest would
be paid by the Treasury), treating the principal
on-budget would be unnecessary.
In the Senate, Banking Committee Chairman Riegle put
forward his own financing design in opposition to the administrations plan: he
wanted Treasury to sell the bonds and then transfer the proceeds to the
RefCorp. This would save money but still use the administrations mechanism.
(Of course, this plan ignored the fact that there was little point in creating
the RefCorp if it simply funneled Treasury funds to the RTC.) Riegle avoided
the GRH-mandated cuts by putting the entire cost into the current fiscal year
(1989), where, for the purposes of GRH, it had no effect.103 This
accounting procedure was fairly transparent, and, some argued, would make it
plain that the U.S. government was willing to ignore budget discipline. Sen.
Riegles amendment failed in committee by a single vote. Sen. Alan Dixon
stated that although he believed the direct Treasury financing approach would
reduce the cost of the cleanup, he voted against it in committee because the
support required for passage on the Senate floor could not be obtained, and in
his view the need to pass the bill outweighed the merits of Riegles plan.104
Republicans noted that the threat of a presidential veto also influenced the
Despite this setback, when the bill reached the Senate
floor the Democrats renewed their efforts and again generated considerable
debate. Republican Jake Garn probably captured the Senates true feelings when
he remarked that neither of the funding mechanisms was particularly desirable
and that all of us would prefer to be someplace else doing something else but
that they needed to get the bill passed quickly.106 The Democrats
plan fared better than it had in committee, but failed again. The vote was
almost completely along party lines: only a single Republican voted for it, and
only six Democrats against it.107 Once it became clear that the
Treasury financing approach was doomed, however, senatorial pragmatism took
hold, and the Senate overwhelmingly passed the bill with the administration
approach intact, 918.108
Democrats in the House also sought to change the
financing scheme. In the House Banking Committee Reps. Joseph Kennedy and John
LaFalce both introduced amendments that would have used an on-budget,
taxpayer-financed plan, a course that had no chance of succeeding. Because the
House Banking Committee was not the appropriate venue for tax bills, these
amendments were not even considered. The Ways and Means Committee was,
however, the proper place for such bills, and the vote there was 2511 in favor
of Dan Rostenkowskis plan for direct Treasury financing, but with the $50
billion exempted from GRH calculations.109 Partisanship over the
funding issue was just as dominant in the House as it had been in the Senate,
and only two Republicans on the Ways and Means Committee voted for this plan.
When the on-budget financing plan came to a vote on the House floor, it was
approved fairly easily, 280146, but 251 of those votes came from Democrats.110
The HouseSenate conference eventually voted to use
Treasury financing despite the administrations intensive lobbying for the
RefCorp plan.111 The Senate conferees had for some time supported
the administrations position, but Democrat Alan Cranston changed his stance,
paving the way for the Senate to agree with the House.112 Although
it was clear that the House would have supported the conference report to use
Treasury financing, the path in the Senate was much less certain. Republican
Phil Gramm stated that since the financing provision of the bill involved a
waiver of GRH, he believed that passage would require 60 votes, and he and 40
other senators had informed Treasury Secretary Brady that they would not
support the conference report.113 The president, several days
later, informed Congress that he would veto the bill if it contained the
Treasury financing proposal; the Senate, seeking to avoid this confrontation,
then rejected the conference report, and the House and Senate conferees met
again to reconsider the bill.114
This stalemate over the funding issue prompted Bush
aides to draft a presidential proclamation that would have forced Congress to
forego its planned recess and convene to consider the bill. Bushs planned
statement would have stated that delays necessary to craft the best possible
solution are justifiable. The Congress plans for a summer recess, however,
cannot justify an additional delay.115 The last president to
actually invoke this constitutional power had been Harry Truman, when he
ordered the do-nothing Congress into session in July 1948 to act on housing,
civil rights, and price controls.116 As it turned out, Bush did not
find it necessary to issue the proclamation, but its drafting underscored the
seriousness with which completion of the legislative program was viewed.
Informing Congress of the administrations intent might have put enough
additional pressure on Congress for that body to arrive at a compromise.
The bargain that was reached essentially split the
difference: $18.8 billion would come from direct Treasury borrowing on-budget,
but for the current fiscal year (1989).117 For the purposes of GRH,
this borrowing would have no effect (i.e., no potential for sequestration).
The other $31.2 billion would be off-budget. Of this amount, $30 billion would
be raised by the issuing of bonds through the administrations proposed funding
mechanism, the RefCorp.118 The other $1.2 billion would be
contributed by the Federal Home Loan Banks to the RefCorp, which in turn would
transfer the funds to the RTC. The last obstacle to FIRREAs passage had been
Although FIRREA established the RTC, it served only as
the beginning of a structure and purpose that Congress would constantly
examine, evaluate and change. That process began even before passage: the final
law, while certainly reflecting the administrations basic concept for the RTC,
also altered that concept in significant ways. First, at the urging of the
FDIC, FIRREA made the RTC far more independent of Treasury control than the
original plan had envisaged, with the Oversight Board, at least in theory,
taking no part in day-to-day management decisions. Second, Congress to some
extent modified the RTCs purpose. In the administrations plan the RTCs
mission was purely to resolve institutions and return assets to the private
sector at the lowest cost; in the bill as enacted, a number of concerns that
might conflict with those essential goals had been legislatively
mandatedconcerns such as affordable housing and limits on asset disposition in
distressed areas. These mandates made for a more complex decision-making
apparatus and hence a more complicated bureaucracy.
Given the scope and character of the RTCs business as
well as the agencys seemingly endless need for taxpayer dollars, it is not
surprising that Congressand the mediawould find the RTCs operations and
management a convenient target for scrutiny and criticism. FIRREA did,
however, set the parameters of the legislative changes that Congress would seek
in later years: funding, organizational structure, management reform,
accountability, and social policy would all retain their place in congressional
debate and action concerning the RTC.
Conclusions drawn about the creation of the RTC without
reference to its later actions are necessarily incomplete. Some judgments are
possible however. The administration deserves credit for confronting a
difficult problem. It remains clear, however, that the use of the RefCorp as a
financing vehicle, with its higher interest costs, should have been eschewed in
favor of direct Treasury financing. This was purely a political decision,
understandable in the context of the politics surrounding the deficit, but with
no real benefits, and some very real costs. Another funding issue, though
touched on only briefly in this article, should also be mentioned: a specific
plan for providing working capital to the RTC ought to have been included in
FIRREA. Leaving this detail for later led to delays and uncertainty. When we
turn to the management of the S&L cleanup, it seems clear that management
structures and responsibilities could have been better defined in FIRREA,
though it should be acknowledged that what emerged at the end of the
legislative process was a significant improvement over the highly imprecise
nature of the initial proposals. The notion of an impossibly small RTC
overseen by an Oversight Board that consisted of high officials whose main
responsibilities lay elsewhere was impracticable. Deciding whether the
grafting of social policy goals onto the RTCs mission was a good idea or a bad
one will likely vary depending on a rather subjective cost-benefit analysis.
In the end, it is fair to say that the U.S. government was entering uncharted
territory, and so it would be unrealistic to expect that the RTC would have sprung
Athena-like, fully and perfectly formed from the legislative process.
In closing, it should be noted again that the creation
of the RTC would have been much more difficult without the existence of an
organization similar to the FDIC. The latter provided two significant
benefits; first, a foundation, notably in the form of a reservoir of relevant
expertise, upon which the RTC could be built; second, a receptacle for the
RTCs unfinished business, and therefore the means by which the RTC could realistically
be conceived of as having a limited lifespana characteristic that was
politically very helpful for this new experiment in government.
The Federal Asset Disposition Association and the 1988 FSLIC Deals
Two other significant duties of the RTCaside from
resolving failed institutions and managing and disposing of assetswere
elements of the presidents bill and were retained, more or less intact, by
Congress. They were designed to tidy up ancillary regulatory detritus. One of
these additional duties involved liquidating the FHLBBs experiment in asset
disposition, the Federal Asset Disposition Association (FADA); the other
involved dealing with the much-criticized transactions entered into by the
FSLIC in 1988.
In the mid-1980s, as the problems within the S&L
industry grew, the FSLIC had on its hands a growing inventory of troubled
assets (more than $2 billion in late 1985) but lacked both the resources and
the expertise to dispose of them. The FHLBB established the FADA as the
solution to that problem, chartering it in November 1985 for ten years as a
stock savings and loan association (wholly owned by the FSLIC), with the FSLIC
providing $25 million in startup funds.120 This private corporation
was to manage and dispose of assets more efficiently and effectively than
either FSLIC staff or contractors had been able to, and would therefore (it was
thought) produce substantial savings for the FSLIC.121 The FADA,
however, did not deliver on its promise of savings (by 1988 it had lost
approximately $15 million), and it was heavily criticized for failing to
dispose of assets, growing too large, and overpaying its executives.122
Critics charged that the organization was unaccountable even to the FSLIC and
that its management insisted it was a private entity even as the entity itself
claimed governmental privileges.123 The FADAs president and CEO,
Roslyn Payne and her salary of $250,000 became a lightning rod for criticism.124
In addition, private companies that were engaged in the asset disposition
business wanted a bigger slice of that pie and were eager to see the FADA go.
By late 1988, despite the appointment of a new CEO at a considerably lower
salary, congressional detractors had drafted legislation calling for the FADAs
abolition.125 Few supporters of the organization remained as the
new administration was putting together its draft for FIRREA, and since the RTC
was to handle asset disposition, the organization was not only friendless but
The administration plan called for the RTC to manage the
FADA and to sell it, wind it down, or dissolve it within 180 days. The
Senates only change to this was to remove the 180-day requirement. The House,
however, retained the 180 days and required that if the RTC chose to sell the
FADA, it should do so through a competitive bidding process; the House also
wanted to ensure that no contracts entered into by the FADA survived the
organizations dissolution or sale, and required that the FADA name could not be
transferred to any purchaser. The House Banking Committee, perhaps in
continuing dismay over the FADAs failures and in response to the perception
that FADA employees had been overpaid, noted the committees intention that no
FADA employees be automatically transferred to the RTC; rather, all of them
should have to go through the normal hiring procedures. However, only the
prohibition on selling the FADA name remained in the conference report, and
even this dropped out during the final negotiations. As enacted, FIRREA simply
stated that the RTC was to liquidate the FADA within 180 days.126
The FSLIC Transactions of 1988
The flurry of transactions made by the FSLIC at the
close of 1988, with their capital loss coverage, yield maintenance agreements,
and tax benefits for acquirers, had become the target of congressional ire even
before the president announced his plan to clean up the S&L mess.127
Members of the House Banking committee complained early in January that the
FHLBB had exceeded its statutory authority in making the transactions, which
were generally viewed as being far too generous to the acquirers of insolvent
thrifts.128 FDIC Chairman Seidman, taking as his cue the gifts that
banks in the past had bestowed on new depositors, described the transactions as
buy a toaster, get a thrift.129 The administrations bill
responded by authorizing the RTC to review the terms of all FSLIC resolutions
(from January 1, 1988, until the enactment of FIRREA) to search for ways of
reducing costs under the FSLIC agreements, including by restructuring those
agreements. If the Oversight Board agreed, the RTC was to pursue changes that
would result in cost savings.130
As Congress began to consider FIRREA, a GAO report
issued in March claimed that tax benefits given to investors in insolvent
institutions had frequently cost the government more than liquidating the
thrifts would have cost.131 With opinion decidedly against the
FHLBBs actions, Congress developed a more definitive requirement about the
1988 FSLIC transactions. The RTC was required to review all the cases,
actively review all means of reducing costs under the existing agreements,
and report to both the Oversight Board and to Congress. Costs were to be
specifically evaluated in relation to capital loss coverage, yield maintenance
guarantees, forbearances, and tax consequences; bidding procedures were to be
examined to determine whether they had been sufficiently competitive. The RTC
was to exercise all legal rights to modify, renegotiate, or restructure
agreements if savings could be realized.132 Moreover, as an
additional check and source of information, a House subcommittee amendment
sponsored by Toby Roth added a provision requiring a GAO audit of all FSLIC
resolutions from January 1, 1988 through the enactment of FIRREA, and requiring
a report to Congress estimating the costs of those resolutions.133
This provision, calling for review from a second source, illustrates the level
of congressional distrust of the 1988 deals.
George H. W. Bush Presidential Papers. George Bush
Climo, Beth (FDIC Director of Legislative Affairs).
1989. Memorandum to staffs of the Senate and House Banking Committees. June
23. Photocopy. FDIC Library, FIRREA Legislative History, vol. 16.
Federal Deposit Insurance Corporation Board of Directors
Revised Version of Statutory Language Establishing the
RTC. July 20, 1989. Photocopy. FDIC Library, FIRREA Legislative History,
Senate Offer on Selected Core Issues. July 13, 1989.
Photocopy. FDIC Library, FIRREA Legislative History, vol. 16.
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March 1, 2. S. Hrg. 101-127.
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of Eric I. Garfinkel, Rufus H. Yerxa, John E. Robson, Robert R. Glauber, and
David Mulford. 101st Cong., 1st sess., May 4. S. Hrg. 101-439.
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for S&Ls. Vol. 52, no. 16. April 17. http://www.lexisnexis.com.
. 1989b. House Approves S&L Reform Bill, Rejects
Capital Weakening, Revises Funding Plan. Vol. 52, no. 25. June 19.
. 1989c. Administration Renews Veto Threat on HR
1278; Bush Lobbies House Leaders. Vol. 52, no. 25. June 19.
. 1989d. Administration Proposes FDIC Serve as
Exclusive Manager of Proposed RTC. Vol. 53, no. 3. July 17.
Congressional Quarterly Almanac.
1990. Vol. 45. Congressional Quarterly Inc.
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Garsson, Robert M. 1989a. A New Look at Those Year-end
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Selling S&L Assets. American Banker, May 3.
. 1989c. Bush Threatens Veto on S&L Bill in
Budget Fight. American Banker, August 4. http://www.lexisnexis.com.
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Hershey, Robert D., Jr. 1989. House Unit Is Critical of
Bank Boards Deals. New York Times, January 11.
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Financing the Bailout of the Thrift Crisis: Workings of the Financing
Corporation and the Resolution Funding Corporation. Business Lawyer 46,
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an Eye on RTC. American Banker, August 29. http://www.lexisnexis.com.
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. 1989c. Senate Panel Approves a Savings Bailout
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. 1989d. Savings Bill Is Cleared by Senate. New
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. 1989f. Bush Savings Plan Is Passed by House. New
York Times, June 16. http://www.lexisnexis.com.
. 1989g. Savings Plan Compromise Is Offered. New
York Times, July 13. http://www.lexisnexis.com.
. 1989h. Conferees Agree on Savings Bailout Bill. New
York Times, July 28. http://www.lexisnexis.com.
. 1989i. Congress and Administration Set a Compromise
on Savings Rescue. New York Times, August 4.
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on Government Corporations: Report Based on a Study of the National Academy of
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1989a. RTC Board Will Include One Real Estate Expert. May 8.
. 1989b. Administration Wary on RTC Participants.
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Payne, Roslyn B. 1986. Management, Workout, and
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Rehm, Barbara. 1989a. Feds Johnson Says Overextended
FDIC May Put Banking Industry in Jeopardy. American Banker, May 1.
. 1989b. FDIC to Set Policy for RTC Seidman Says;
Pact with Treasury Seen as Victory for Regulator. American Banker, July
Rosenstein, Jay. 1989. Government Lost Out on S&L
Sales: GAO Study. American Banker, March 15.
Seidman, Harold. 1988. The Quasi World of the Federal
Government. Brookings Review 6, no. 3:2327.
Seidman, L. William. 1993. Full Faith and Credit:
The Great S&L Debacle and Other Washington Sagas. Times Books.
Taylor, Robert E. 1988a. Carmen, New Head of Bank Board
Unit, Appears to Support Taking It Private. Wall Street Journal, March
. 1988b. Thrift Regulators May Get Clearance to
Issue More Debt. Wall Street Journal, October 5.
Thomas, Paulette. 1989a. Moves to Cut Cost of Bushs
Thrift Plan Considered by 2 Democrats in Congress. Wall Street Journal,
March 16. http://www.factiva.com.
. 1989b. Senate Votes Down Attempt to Change Bush
Thrift Plan. Wall Street Journal, April 19. http://www.factiva.com.
. 1989c. Administration Sketches Details of Plan to
Unload Assets from Failed Thrifts. Wall Street Journal, July 11.
Tolchin, Martin. 1989. Kemp Asks Savings Tie to Housing
Aid for Poor. New York Times, February 16. http://www.lexisnexis.com.
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. 1995. Government Corporations.
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*The author is a historian in the FDICs Division of Insurance and
Research. The author would like to thank Matthew Green and Peggy Kuhn for
their very thorough reviews of an earlier draft of this article, and would also
like to thank David Cooke, Jack Reidhill and Lynn Shibut for their helpful
readings of the present version.
1Annunzio was the chairman of the House Subcommittee on Financial
Institutions Supervision, Regulation and Insurance. George Bush Presidential
Library (GBPL) FI002/14513: Annunzio to Bush (March 6, 1989).
2Earlier in the 1980s, faced with growing numbers of insolvent
thrifts but without any means of paying for their closure, the government
encouraged mergers as a way to deal with this intractable problem. To make
such transactions viable for acquiring institutions, the government allowed the
acquirers (for the purposes of meeting capital requirements) to offset the
liabilities they were assuming with a counterbalancing paper asset called
supervisory goodwill. Acquirers were allowed as much as 40 years to write off
supervisory goodwill. In addition, other variances from generally accepted
accounting principles (GAAP) were allowed for all thrifts. FIRREAs provision
therefore had serious negative implications for many acquirers net worth, even
their solvency, and led to litigation that eventually reached the Supreme
Court; in 1996 the Court ruled (in United States v. Winstar) that the
government had had no right to repudiate accounting variances that had been
included in resolution contracts. As a result of this decision, a number of
institutions successfully sued the government for damages.
3This brief summary of FIRREA is by no means exhaustive. For a
detailed examination of the elements of the statute, see Bloch and Williams
4 Despite the statutes date of January 1, 1989, the FSLIC did
resolve a small number of small institutions early in 1989. These S&Ls
therefore belonged to the FSLIC Resolution Fund, and so did not pass to the
RTC. Starting in February 1989, the FDIC took responsibility for S&L
conservatorships that would have been run by the FSLICthese institutions did
pass to the RTC.
5Senate Committee on Banking, Housing, and Urban Affairs (1989b),
29. The emergency nature of this legislation requires that Congress give the
Executive Branch latitude to fashion a system in which the Administration has
confidence. If time had permitted, however, the Committee would have expanded
its hearings to include discussion of alternative means to accomplish the
6See the testimony by Treasury Secretary Nicholas Brady before the
Senate (U.S. Senate Committee on Banking, Housing, and Urban Affairs [1989a],
8Secretary Brady did admit that the FDIC would probably have to
increase its staff resources to manage the liquidation of RTC assets. He was
uncertain just how many new staff members would be required but thought that
added efficiencies would allow the increase to be rapidly scaled back (Senate
Committee on Banking, Housing, and Urban Affairs [1989a], 619).
9House Committee on Banking, Finance and Urban Affairs (1989a),
23. See also U.S. Congress (1989) (April 17), S3995; Senate Committee on
Finance (1989), 749.
10Of course, many parties outside government were very interested in
the nascent RTC, particularly in the profits that could flow from being
involved in the RTCs work or from astutely adapting to its policies.
11The same might be said of the industrys ability to influence the
administration. For example, the U.S. League of Savings Institutions sought a
personal meeting with President Bush about a week before he was to announce his
S&L cleanup plan, but since the League had already met with Bushs senior
advisor on the matter (Richard Breeden), it was not granted a meeting with the
president (GBPL FI002/003274: B. R. Beeksma and Frederick L. Webber to Bush
[January 30, 1989], and accompanying White House tracking worksheet).
12The conference report noted that the RTC provisions in the final
bill consisted of the Administrations proposal as modified by additional
comments made by the Administration during the course of the conference (U.S.
House [1989c], 412).
13For example, see Sen. David Pryors statement that the RTCs
activities would be a fertile breeding ground for scandal (U.S. Congress
[July 17, 1989], S8058). Pryor introduced a separate Ethics in Thrift
Resolutions Act, which he hoped would be incorporated into FIRREA (S.1329):
for purposes of conflict-of-interest and disclosure regulations, all
contractors would have been treated as if they were agency employees. Even
after the conference agreement, Rep. Toby Roth stated that the RTC contained
the of a major scandal. (U.S. Congress [July 31, 1989], E2750).
14This power was reflected in early versions of the bills in both
the House and Senate. See U.S. Senate (1989c), §501(§21A(d)), and U.S. House
(1989a), §501 (§21A(c)(5)).
15Senate Committee on Banking, Housing, and Urban Affairs (1989b),
29. Senator Robert Kerrey later introduced an amendment that would have created
a seven-member Oversight Board. He wanted to add four private sector members
having experience in banking, finance, real estate, and business management;
reduce the government members to ex officio status; and have one of the private
sector members appointed chairman by the president. He also argued that the
government members, having their own substantial responsibilities, would be
unable to devote adequate time to overseeing the RTC. His stated goal was to
insulate the RTC from both political and financial pressure, and he predicted
that Congress would regret its failure to create the position of a strong
appointed chairman independent of direct ties to any interest group. His
amendment was opposed by the administration as forcing it to relinquish too
much authority. Many other senators felt that other safeguards, including
regional advisory boards and stringent ethics requirements, would address
Kerreys concerns, and the amendment was defeated, 6632. (U.S. Congress
[April 17 and 18, 1989], S4012; S4074ff.).
17GBPL OA/ID 02054: Memorandum from Gregory P. Wilson (Deputy
Assistant Treasury Secretary for Financial Institutions Policy) to Robert R.
Glauber (Undersecretary of Treasury for Finance Designate), April 20, 1989.
18It was reported that L. William Seidman (Chairman of the FDIC) was
encouraging Congress to replace the Federal Reserve member of the Oversight
Board with HUD Secretary Jack Kemp (Rehm [1989a], 1). It was also reported
that Kemp had been angling to play a role in the S&L rescue (National
Mortgage News [1989a]). Shortly after the administrations plan was
announced, Kemp stated that the S&L industrys rescue should be accompanied
by a commitment to providing housing for the poor (Tolchin ). Since the
FDIC was to serve as primary manager for the RTC but the idea was that the
Oversight Board might contract with other entities, the House made the FDICs
position nonvoting so as to remove possible conflicts of interest.
20FDIC spokesman Alan Whitney said the FDIC had taken the position
that it did not want voting membership and so was not seeking to increase its
power (National Mortgage News [1989b]). However, when the FDIC
presented its position on priority issues in FIRREA to congressional staff in
late June, the agency recommended that the FDIC Chairman should be a voting
member of the Oversight Board (Climo [June 23, 1989], 26).
22The National Association of Realtors and the National Association
of Homebuilders were prominent lobbyists on behalf of the inclusion of private
sector members. See National Mortgage News (1989a). For the views of
these groups, see also Senate Committee on Banking, Housing, and Urban Affairs
23House Committee on Banking, Finance and Urban Affairs (1989c),
356. The House bill was also more specific than the Senates about the nature
of the Oversight Board, declaring that it was a body corporate and enumerating
its powers as such.
24Letter from Comptroller General Charles Bowsher to Sen. Donald
Riegle, April 7, 1989, printed in U.S Congress (April 19, 1989), S4274.
25Senate Committee on Banking, Housing, and Urban Affairs (1989b),
31The agreement was in the form of statutory language and was
provided to the House and Senate conferees to be considered for inclusion in
Title V of FIRREA. The document dealt with many specifics, such as the exact
corporate powers of both the Oversight Board and the RTC, compensation issues,
the creation of the national and regional advisory boards, the development of
policies and strategies for asset disposition, reporting requirements (both
from the RTC to the Oversight Board and from the Oversight Board to Congress),
legal issues such as the ability to sue and be sued, removal of actions from
state courts, and so forth. See John E. Robson (Deputy Secretary of Treasury)
and L. William Seidman (Chairman, FDIC) to Donald Riegle, Henry Gonzalez, Jake
Garn, and Chalmers Wylie, with attached Revised Version of Statutory Language
Establishing the RTC (July 20, 1989).
32It should be noted that the TreasuryFDIC agreement also included
some elements from the House and Senate bills, namely, specifying that the Oversight
Board would be a body corporate with specific powers, establishing both
national and regional advisory boards, and including at least some language
about strategies for asset disposition. The agreement also included the
Houses minority outreach program but, since the Oversight Board was no longer
directly responsible for contracting, placed it within the RTC instead.
35The plan would address 17 specific issues, including resolution
practices, asset disposition, organization of the RTC, and minority outreach.
36In the TreasuryFDIC agreement, the Oversight Board had been
specifically designated as not being an agency of the government. In FIRREA,
the Board was an agency for the purposes of subchapter II of Chapter 5 and
Chapter 7 of Title 5 of the United States Code. Chapter 5 deals with the
Federal Administrative Procedure Act and concerns issues such as public information,
records, proceedings, and rulemaking. Chapter 7 provides for judicial review
of agency actions. In FIRREA the Oversight Board was also an agency for
purposes of the conflict-of-interest rules of Title 18 of the United States
Code (see Chapter 11, on bribery, grafts, and conflict of interest).
37See, for example, House Committee on Banking, Finance and Urban
Affairs, Subcommittee on Housing and Community Development (1989). For a
detailed synopsis of congressional action on the problems at HUD, see Congressional
Quarterly Almanac (1990), 639ff.
38 HUD was explicitly mentioned in the conference report. See U.S.
House (1989c), 417.
40See Rep. William Gradisons remarks, U.S. Congress (May 2, 1989),
41House Committee on Banking, Finance and Urban Affairs (1989c),
352. The Administrative Procedure Act, among other things, requires an agency
to publish rulemaking procedures and hold hearings or provide other means of
public comment on proposed rules, prescribes standards and procedures for
agency adjudications, and provides for judicial review for any persons
suffering legal wrong because of an agency action. Amendments to the law
include the Sunshine Act and the Freedom of Information Act.
42GBPL OA/ID 02054: Memorandum from Gregory P. Wilson through David
W. Mullins, Jr., for Robert R. Glauber, April 20, 1989, 4.
43Senate Offer on Selected Core Issues (July 13, 1989), 19; U.S.
House (1989c), 193.
44Rep. Paul Kanjorski put forward this amendment (BNAs Banking
45U.S. House Committee on Banking, Finance and Urban Affairs
46See U.S. Congress (April 3, 1989), H4993. See also Rep.
Kanjorskis exchange with Treasury Secretary Brady in U.S. House Committee on
Banking, Finance and Urban Affairs (1989a), 3940.
47Letter from Comptroller General Charles Bowsher to Sen. Donald W.
Riegle (April 7, 1989), printed in U.S. Congress (April 19, 1989), S4274.
48Wholly owned and mixed-ownership corporations are simply
enumerated as such in the Government Corporation Control Act (U.S. General
Accounting Office , 3, n.6). Basically, each government corporations
enabling legislation may or may not enumerate that corporations relationship
to existing laws; after reviewing the statute, each corporation decides just
how it will operate. It is telling that in 1995, when the GAO sought to
determine which laws government corporations adhered to, it surveyed them to
find out what they did in practice. The RTC reported that it was wholly subject
only to 3 of 15 statutes listed by the GAO, partly subject to 5 others, and not
subject at all to the remainder, although it followed some of the other laws
nevertheless (ibid., 12329). (The RTC claimed it was wholly subject to the
Government Corporation Control Act, the Inspector General Act of 1978, and the
Ethics in Government Act of 1978; partly subject to the Privacy Act of 1974,
the Freedom of Information Act of 1966, the Federal Tort Claims Act, the
Anti-Deficiency Act, and the Chief Financial Officers Act of 1990; and not
subject at all to the Government in the Sunshine Act, Title 5: Employee
Classification, Title 5: Pay Rates and Rate Systems, the Federal Property and
Administrative Services Act of 1949, the Federal Managers Financial Integrity Act
of 1982, the Government Performance and Results Act of 1993, and the Federal
Credit Reform Act of 1978. However, some wholly owned government corporations
were also not subject to these same laws (ibid., 3435). A 1981 study by the
National Academy of Public Administration defined mixed-ownership corporations
as those having a combination of governmental and private equity (National
Academy of Public Administration , 1:20). However, this definition does
not apply to all mixed-ownership corporations. The FDIC, for example, repaid
the governments stake in its fund long ago.
50The administration bill eventually came to include reporting
requirements for the RTC. These reports and audits were, however, designed to
provide information for the scaled-down version of the Oversight Board
(Revised Version of Statutory Language Establishing the RTC, 34).
54The semiannual reports were to include statements of book value of
assets, total book value of RTC assets under private management, total book
value and sale value of assets during period, data on discounts from book value
on assets sold, list of areas designated as distressed and evaluation of
markets in those areas, staffing numbers, information on any change adopted by
the Oversight Board in a minimum disposition price, and the methods adopted by
the RTC to value assets and the reasons these methods were chosen.
55House Committee on Banking, Finance and Urban Affairs (1989b),
56For example, the joint TreasuryFDIC version of the RTC portion of
Title V included the House provision for an IG (Revised Version of Statutory
Language Establishing the RTC, 38).
62Senate Offer on Selected Core Issues, 19. The FDIC supported
the idea of limiting the RTCs ability to incur debt but opposed the House
version, saying that it was so strict as to effectively prohibit the efficient
functioning of the RTC (Climo , 28).
63BNAs Banking Report (1989c). See also Rep. Chalmers
Wylies statement in U.S. Congress (June 15, 1989), H2751.
64The note cap formula in FIRREA was as follows: (RefCorp
contributions + total outstanding RTC obligations) (RTC cash held + 85
percent of fair market value of RTC assets) could not exceed $50 billion. Full
faith and credit was extended only if the principal amount and the term of the
obligation were stated in the obligation. (This provision was therefore
similar to the House maximum dollar amount noted above.) The law also required
the RTC to estimate contingent liabilities quarterly and to include such
liabilities in financial statements.
65The debate over working capital lasted well into 1990 and was
bound up with the partisan politics of the budget; this issue is discussed
fully in Davison (forthcoming).
66U.S. Senate (1989b), 334. This Senate version of the strategic
plan requirement called for the RTC to develop a plan and implement procedures
to maximize net present value return from assets, minimize disruption to local
real estate markets, and provide for an adequate level of capital for itself.
The plan was to provide for efficient disposition of assets, taking into
consideration market conditions, financing standards, asset values, expenses
and risks of holding assets, and so forth. Policies were also to provide for
adequate competition and fair and consistent treatment of third parties seeking
to do business with the RTC. See also U.S. Congress (April 18, 1989), S4075.
The House also had a plan related to asset disposition but called it a
business plan rather than a strategic plan; it dealt with the orderly
disposition of assets in areas that might be adversely affected by those
transactions (U.S. House [1989b], 224).
67U.S. Congress (June 6, 1989), H2341. He noted that his amendment
was overwhelmingly adopted in committee.
71Revised Version of Statutory Language Establishing the RTC, 22.
72House Committee on Banking, Finance and Urban Affairs (1989b),
73This inventory was to be published by January 1, 1990, and was to
be updated semiannually. This inventory was also to list properties with
natural, cultural, recreational, or scientific value of special significance.
This was an adaptation of a provision written by Sen. Tim Wirth and included in
the Senate-passed bill; Wirths approach would also have required that the list
be provided to appropriate federal and state agencies so they could act to
acquire the properties (U.S. Congress [April 19, 1989], S4252; Senate Committee
on Banking, Housing, and Urban Affairs [1989b], 204).
78Both types of advisory board were to be established by the
Oversight Board. The national board was to advise the Oversight Board on policies
for the disposition of real assets and was to consist of a chairman appointed
by the Oversight Board and the chairmen of any regional advisory boards.
FIRREA required the Oversight Board to establish at least six regional boards
(wherever it was determined that a significant real estate asset portfolio
existed) to advise the RTC on the disposition of assets. Each regional board
was to have five members, serving two-year terms but at the pleasure of the
Oversight Board, and the members were to be selected from among local residents
who [would] represent the views of low- and moderate-income consumers and
small businesses or who were knowledgeable about business, finance, and real
estate. All the boards were to meet at least four times a year.
79Senate Committee on Banking, Housing, and Urban Affairs (1989b),
80Ibid. The committee noted that it did not intend its market
valuation requirement as a mandate to obtain an appraisal in all cases,
countenancing other valuation techniques when appropriate (and this flexibility
was reflected in the statute, which stated that the RTC was to establish an
appraisal or other valuation method for determining the market value of real
property). Treasury opposed this provision, noting that the RTC was being
established precisely because of these distressed areas and the intractability
of dealing with their problems. To now burden the RTC with restrictions on its
activities in these areas is to severely compromise its operations and to
render superfluous its establishment (GBPL OA/ID 02054, 2).
82Revised Version of Statutory Language Establishing the RTC, 27.
83There were no comparable provisions in the Senate bill, although
the Senate Banking Committee noted that in certain cases sales to public
housing agencies might obtain true maximum value (Senate Committee on Banking,
Housing, and Urban Affairs [1989b], 30).
84Title VII included a community investment program and an
affordable housing program through the Federal Home Loan Banks; Rep. Henry
Gonzalez sponsored these plans.
99Its proper title was the Balanced Budget and Emergency Deficit
Control Act of 1985; it was amended by the Balanced Budget and Emergency
Deficit Control Reaffirmation Act of 1987.
100Throughout the RTCs existence, the most acrimonious debates were
engendered by funding. The legislative history of the agencyfrom FIRREA
through the RTC Funding Act of 1990, the RTC Refinancing, Restructuring and
Improvement Act of 1991, and the RTC Completion Act of 1993is partly a history
of the corporations funding, for each piece of legislation contained a funding
component. The decisions made before passage of FIRREA set the terms of that
101GRH created maximum deficit amounts. If these were exceeded,
the law mandated that the president issue an order (a sequester order) to
reduce all nonexempt spending by the same percentage.
102See Thomas (1989a). See also Nicholas Bradys testimony before in
the House Committee on Banking, Finance and Urban Affairs (1989a), 26. The
Congressional Budget Office (CBO) was among those suggesting direct Treasury
borrowing and exemption of the spending from GRH. See House Committee on Ways
and Means (1989), 23740. But the CBO director, James Blum, also noted that
this was fundamentally a political question that had to be decided by the
president and Congress. Economist Martin Feldstein also supported the CBOs
position, arguing that the RefCorp should be scrapped in favor of direct
Treasury borrowing but that the $50 billion could be exempted from GRH because
the rescue plan would neither increase aggregate spending nor crowd out any
private borrowing (Feldstein ).
103OMB Director Richard Darman warned that if the Riegle plan passed,
he would apportion the $50 billion over a three-year period, adding
significantly to the deficit and possibly invoking across-the-board cuts under
GRH (Nash [1989c]). GRH was thought to apply to the upcoming fiscal year, not
the current year, and was based on estimates and not actual spending.
110Rep. John LaFalce introduced a substitute amendment that, unlike
Rep. Rostenkowskis, did not exempt the $50 billion outlay from GRH. Rep.
Rostenkowski and others strongly opposed this because it would almost certainly
have resulted in sequestration under GRH. Rep. LaFalces amendment was
defeated 256171. U.S. Congress (June 15, 1989), H2730-2747.
111For example, on July 13 the president wrote to the leaders of the
conference asking them specifically not to use a waiver of GRH (Nash [1989g]).
115GBPL FI002/070114: Memorandum from Nelson Lund, Associate Counsel
to the President, to James W. Cicconi, Assistant to the President and Deputy to
the Chief of Staff, August 4, 1989.
116 Presidential proclamations convening both houses of Congress under
Article II, Section 3 of the Constitution have been made only 27 times.
Twenty-three of the proclamations took place before the 1933 ratification of
the Twentieth Amendmentthus, during the years when Congress was usually not in
session between December and March. Although most presidential proclamations
of this nature dealt with serious national crises, Trumans decision in 1948
was essentially political, designed for use in the 1948 election. He actually
made the announcement at the Democratic convention. See Hartmann (1971),
117The final version of FIRREA erroneously failed to include this
$18.8 billion in the written formula for calculating the RTCs obligation
limitation (discussed above, p. 28). Since the RTC ran out of funds in late
1990 and Congress failed to act, this $18.8 billion loophole was used to
allow the RTC to continue operations until Congress appropriated further
funding. See Davison (forthcoming).
118For a discussion of the politics surrounding the compromise, see
Knight and Downey (1989) and Nash (1989i).
119The second part of Title V of FIRREA established the Resolution
Funding Corporation (RefCorp)a one-time funding mechanism (future RTC funding
would come directly from the Treasury)as a mixed-ownership government
corporation with the authority to issue $30 billion in bonds. The proceeds had
to be transferred to the RTC through the purchase of capital certificates
issued by the RTC. The RefCorp was under the authority of the Oversight Board
and was governed by a three-person board of directors drawn from the presidents
of the Federal Home Loan Banks (FHLBs). The corporation was to receive its
funds from several different sources: the FHLBs, SAIF assessments on savings
associations, earnings on its assets, RTC receivership proceeds (under certain
conditions), the FSLIC Resolution Fund, and the Treasury. The FHLBs were
required to pay the corporations administrative expenses; RTC receivership
proceeds, the Banks, the FSLIC Resolution Fund, and (if these were
insufficient) the Treasury paid the corporationinterest expense. (Since the
FHLB interest contribution was only $300 million per year, and the RTC and
FSLIC Resolution Fund monies would only be used if a surplus was available, the
Treasury would pay most of the interest expense.) The FHLBs were required to
capitalize the RefCorp by purchasing RefCorp nonvoting capital stock (and the
allocation of the capitalization among the FHLBs was set through a complex
formula). The RefCorp was required to place the capitalization payments from
the Banks into its principal fund, which would use the money to purchase
zero-coupon U.S.-issued bonds, and these in turn would eventually be used to
pay in full the principal of the RefCorp bonds upon their maturity. To the
extent that the capitalization payments from the FHLBs as required by FIRREA
were insufficient to fully repay the principal upon maturity, the RefCorp could
make up the difference by using a portion of SAIF assessments on savings
associations and receivership proceeds received by the FSLIC Resolution Fund.
This description is largely based on Lescher and Mace (1991), 52128.
122House Committee on Banking, Finance and Urban Affairs,
Subcommittee on Financial Institutions Supervision, Regulation and Insurance
(1987). Moreover, the GAO issued a legal opinion that the FSLICs chartering
of the FADA was illegal (U.S. General Accounting Office , 23).
123For a discussion of the hybrid nature of the FADA, see H. Seidman
(1988), 2327, and Moe (1995), 2226.
125For example, H.R. 4646, introduced in May, and H.R. 5521,
introduced in October. Both of these bills called for greater use of the
private sector in asset disposition.
126U.S. Senate (1989a); Senate Committee on Banking, Housing, and
Urban Affairs (1989b), 200, 352; House Committee on Banking, Finance and Urban
Affairs (1989b), 134, 361, 444; U.S. House (1989d), 214. Although the House
provision about FADA contracts did not survive, it did not go unnoticed. When
the RTC was making its plan for liquidating the FADA, Steven Seelig, head of
the FDICs Division of Liquidation, noted that he had recommended that the
entity be sold without its management contracts and stated, Its our belief
that was Congresss intent (Harlan ).
127For a detailed discussion of the 1988 transactions, see White
129Attributed to Seidman by Rep. David E. Price in U.S. Congress
(June 14, 1989), H2568. In February, when the FDIC assumed responsibility for
insolvent FSLIC institutions, it effectively cancelled all negotiations for any
additional such deals (Nash [1989b]).
130U.S. Senate (1989a), §501(f)(5). See also