WASHINGTON — With the Treasury Department's announcement late Monday that it will provide $6 billion in support to GMAC LLC, the agency has officially allocated more money than it actually has on hand in the Troubled Asset Relief Program.
Of the $350 billion it has received from Congress, the Treasury has pledged $358.4 billion, leaving observers and industry participants confused about how the agency can allocate money it does not have. By law, the Treasury must request the remaining $350 billion authorized by Congress for Tarp and give the legislators 15 days to object, but it has not yet made the request.
"It's like when they overbook airlines … ; if everyone shows up, there aren't enough seats. That sounds like what they did, and that's not good," said Kip Weissman, a partner in Luse Gorman, a Washington law firm.
The Treasury defends its move by distinguishing between funds that have been committed and how much has actually been disbursed. Of the $350 billion Congress initially gave it, $217 billion has been deployed, leaving it flexibility to continue pledging money for other purposes.
"In the very short term, the allocated but not yet disbursed Tarp balances, in conjunction with the powers of the Federal Reserve and the FDIC, give me confidence that we have the necessary resources to address a significant financial market event," Treasury Secretary Henry Paulson said on Dec. 19.
In a conference call late Monday, a Treasury official dismissed suggestions that Tarp was now essentially in deficit. Instead, he said, on a short-term, cash-flow basis, the agency has not exceeded the first $350 billion tranche so that it is "not fair to say we've overcommitted."
However, it appears that the Treasury has committed some of the same money for more than one purpose.
Wayne Abernathy, the executive director of financial institutions policy and regulatory affairs at the American Bankers Association, said the Treasury has essentially promised more money than it has in its checking account.
"Whenever you are promising more than you have, you tend to run into bouncing your check, and that's not good financial policy," Mr. Abernathy said. "It reflects their efforts to try to do too many things at once."
Mr. Weissman questioned whether the Treasury has legal authority to overallocate.
"You can't spend more than $350 billion without further approval, but they are interpreting that to say we can allocate more than that but we can't spend it," he said. "Legally, it's a black or white issue. It's authorized or not. From a legal standpoint, they are treading on thin ice, but the issue is a political not a legal one."
Figuring out exactly what money is going for which purpose is not black and white.
So far, the Treasury has committed $250 billion to its capital purchase program, $40 billion to American International Group Inc., $25 billion to Citigroup Inc., $20 billion to a Federal Reserve facility to buy up asset-backed securities, $17.4 billion to automakers, and $6 billion to GMAC.
It has distributed $172 billion in capital to banks, $40 billion to AIG, and $5 billion to GMAC. Citi is expected to get $20 billion from Tarp soon. The funds to the Fed are not expected to be distributed until February. Auto companies will receive the first $13.4 billion soon, but the remaining $4 billion due to them will not come until the second $350 billion tranche is released, Treasury officials said.
Though some said the Treasury was creatively interpreting the law to avoid having to ask Congress for the second $350 billion — a move sure to set off a political fight — others said the agency is taking necessary steps.
"If you need the money … you just shift the money around and make it available," said Gil Schwartz, a partner in Schwartz & Ballen LLP, a Washington law firm. "If you have $20 billion not called upon until February, then you have $20 billion to play with."
Tim McTaggart, a partner in the Washington law firm Pepper Hamilton LLP, dismissed the overallocation as merely a technical issue.
"I don't think it's that big of a deal in terms of money they've committed," he said.
But he said the incoming administration could be angered.
They "would not like to be put in a position of: You have no choice, you have to fund this $8 billion in order for us to not renege on our commitments," he said. "That's not a very desirable position to be in. But the reality is, they have so many things going on, you can see how they got into this position. They are doing what they can under emergency circumstances."
Industry observers agreed that this was another example of the Treasury being creative with the Tarp language.
"It's necessary to get the resources where they can do the most good, and I think this is an area of creative financing and Treasury understands that better than anyone," said Scott Talbott, the senior vice president of government affairs at the Financial Services Roundtable.
Lawmakers — including House Speaker Nancy Pelosi and House Financial Services Committee Chairman Barney Frank — have said they will not release Tarp's remaining $350 billion until the Treasury agrees to use part of the money for a foreclosure mitigation plan.
James Barth, the Lowder Eminent Scholar in Finance at Auburn University and a senior fellow at the Milken Institute, said the tension with Congress on the proper use of the final tranche is probably motivating the Treasury to act this way. "By allocating, they don't have to go and explain what it is they are doing and why they are not using more funds to deal with foreclosures," he said.
Mr. Weissman agreed.
"I'm sure the last thing they want to do is spend that time lobbying … Congress," he said. "They just want to complete their programs as best they can and hand off the baton."
It remains unclear whether the Treasury will formally request the money. Mr. Paulson was vague on the issue two weeks ago.
"It is clear … that Congress will need to release the remainder of the Tarp to support financial market stability," he said Dec. 19 after the auto company bailout. "I will discuss that process with the congressional leadership and the president-elect's transition team in the near future."
Some observers said that, by overallocating, the Treasury could improve its chance of getting the funds from Congress. Lawmakers are out of session for the holidays but are to return Jan. 6. "By promising more than they have, they could be making their case for going to the Hill once Congress is in," Mr. Abernathy said.
Mr. McTaggart agreed. "The reality is, they probably should be going to Congress and asking for more money," he said. "The need for money beyond what they've already spent has been established. I can't imagine they would want to be put in a position they'd want to rescind any obligation, and it would be poor public policy, at least, to postpone any program."