WASHINGTON — Just months ago bankers largely trusted the government's word, knew what it took to be considered well capitalized and felt confident that any fiats affecting them were dictated by well-known regulators without interference from the Treasury Department or Congress.
Those days are over — and it's unclear when, or if, they will return.
Evidence of the fundamental shift became public Thursday. Kenneth D. Lewis, the chief executive officer of Bank of America Corp., agreed to go through with the Charlotte company's deal to buy Merrill Lynch & Co. Inc. only after then-Treasury Secretary Henry Paulson threatened to fire him and his board, according to sworn testimony gathered by the New York Attorney General's Office.
But Mr. Lewis is merely the most prominent example of the pressure many bankers are feeling. The executives of the 18 other companies with more than $100 billion of assets will file into rooms today and sit across from a regulator holding a lot of power. That is when they will hear how their companies did on the government's "stress test," an assessment of how much capital they would need under certain, stressed economic conditions.
Bankers will have until Tuesday to protest the results, and on May 4 the government plans to tell the public which companies are weak and which are not. It was not long ago when a regulator releasing the results of a bank exam would be unimaginable. But primary regulators — like the Office of the Comptroller of the Currency — are no longer calling the shots.
At least for the largest banking companies in the country, the Treasury is now in charge.
"The Treasury is far more powerful because they're giving out the Tarp money, and as a result of that, power goes with money," said former Federal Deposit Insurance Corp. Chairman L. William Seidman. "The Tarp money is such that when they say, 'Jump,' the banks respond with 'How high?' "
The day the relationship started to change was in October, when Paulson persuaded the country's nine largest banking companies to accept $125 billion from the Troubled Asset Relief Program. At the time Lewis forcefully supported the government's plan as other CEOs grumbled that it would lead to more government intervention.
"I told them, 'Let's get on with it,' " Lewis said in an October interview with American Banker. He was adamant at the time that B of A did not need the money but took it for the betterment of the financial system.
But he at least appeared to know what was coming. "There will be much more public scrutiny," he said. "We have never seen a time like we're about to see in the industry."
It's a fair bet that Lewis wishes he had not cooperated so willingly. In December, just three months after pledging to help the government, Paulson threatened to fire Lewis along with the rest of B of A's board if they pulled out of the Merrill deal, according to an investigation by New York Attorney General Andrew Cuomo.
Lewis quickly backed down, asking Paulson for a chance to "de-escalate" the situation and later going through with the deal.
The cost for the CEO is still unclear. Numerous shareholders have questioned his decision-making and loyalties, arguing that he should have stood up for the shareholders and scuttled the deal, even if that cost him his job.
"This whole imbroglio underscores the enormous trouble that comes with politicizing issues by having Treasury involved, whether it involves Tarp or the stress tests," said Gary Townsend, the CEO of Hill-Townsend Capital LLC. "In politics, you only have bad guys, and it is difficult to say who painted Lewis into the corner."
In recent weeks other CEOs, including James Dimon of JPMorgan Chase & Co., have insisted they would repay Tarp money, arguing that the program's terms and perception have changed.
"I am worried about civil war breaking out between the industry and its regulators," Nancy Bush of NAB Research LLC said in an interview. President Obama "needs to bring them all in to call a truce before something really bad happens."
In fact, Obama did invite big-bank CEOs to the White House, but that March 27 meeting did not create the sort of common bond he was hoping to achieve.
The civil war Bush warns about could break out over the stress tests. It is still unclear what the government will require of firms it deems undercapitalized. Officially, the Treasury has said they would have six months to raise capital, and the government is likely to force divestitures or arrange some mergers. But some bankers may fight back and even sue the government.
"I think this could get ugly," said one regulator, who believes the stress tests were a bad idea from the beginning.
The tests represent a fundamental change in the way the government reviews financial institutions. Regulators have shown far more interest in tangible common equity than Tier 1 capital ratios. The Treasury is considering converting its preferred holdings of bank stock into common equity to bolster TCE ratio; the administration has already taken such a tactic with Citigroup Inc.
"There's no doubt in my mind that there's been way more of a focus on tangible capital in the last … few months, starting with the market, but also regulators have certainly taken notice," Comptroller of the Currency John Dugan said during a panel discussion Thursday. "It's a phenomenon that's happening not just in the United States, but internationally."
Sorting out how the shift would impact the stress tests will be a top priority for institutions as they hash over the results this weekend.
Executives may question basic aspects of the test, such as its reliance on unemployment data, which is both an assumed prediction and a lagging indicator.
"How in the world do you say, 'OK, we're going to assume the unemployment rate is going to be 10.38% in February?' " asked former Comptroller of the Currency Robert Clarke, now a partner at Bracewell & Giuliani LLP. "How in the world do you translate that into a bank's need for capital? How much of that unemployment is going to be that bank's customers?"
Eugene A. Ludwig is no fan of the stress tests, either.
He has worked closely with bankers as the comptroller in the 1990s and now as the CEO of Promontory Financial Group LLC. In an interview Thursday, he called bankers "genuinely public spirited" and even singled out Lewis. "Ken Lewis is genuinely is civic-minded and a good American. That's real."
Ludwig acknowledged the deterioration in the industry's relationship with the government and prescribed some detente. "Any good regulator knows you have to be tough, but you are better off getting voluntary cooperation," he said. "You should not just hammer people."
And the government will need banks to implement the programs it has designed to revive the economy.
"The right answer here is to get people to buy into the program and feel good about coming together in support of the country," Ludwig said. "And that is much less in evidence today."
