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Rating The Wall Street Ratings Agencies
DAVE DAVIES, host:
This is FRESH AIR. I'm Dave Davies, sitting in for Terry Gross, who's
off this week.
On August 5th, Standard and Poor's took the unprecedented step of
downgrading the credit rating of the United States from AAA to AA+. A
credit rating is a measure of the likelihood that a company or
government will repay its debt. A downgrade can make borrowing more
costly and make it harder for a country to pull out of a financial
In explaining its downgrade, Standard and Poor's said the agreement
reached on raising the nation's debt ceiling fell short of what was
needed, and it said political wrangling in Washington raises questions
about the country's ability to address its problems.
The S&P downgrade has been controversial. The other two major ratings
agencies, Moody's and Fitch's Investor Service, affirmed the U.S.'s AAA
rating. President Obama said the U.S. would pay its debts and would
always be a AAA country.
While the downgrade was followed by big swings in the stock market,
investors eagerly bought the very U.S. Treasury bonds whose ratings
Standard and Poor's downgraded. The ratings agencies were also widely
criticized for high ratings they gave to mortgage-backed securities that
played a key role in the financial meltdown in 2008.
To better understand credit rating agencies and how they came to have
such a powerful impact on the economy, we turn to Frank Partnoy. He's
currently a professor of law and finance and co-director of the Center
for Corporate and Securities Law at the University of San Diego Law
School. In the 1990s he worked with derivatives on Wall Street.
Frank Partnoy, welcome back to FRESH AIR. Historic moment for credit
rating agencies here: Standard and Poor's has downgraded the credit of
the United States, something many people thought they'd never live to
see. First of all, what do you think of the decision of the downgrade?
Mr. FRANK PARTNOY (Professor, University of San Diego Law School): I
don't think much of it. They made this decision on August 5 to downgrade
the rating from AAA to AA+. So it's not a major downgrade to default
levels. They're not saying the United States is going to default. But
they are saying that the chances of the United States defaulting are
higher, and I don't think that that's right. I think most investment
professionals don't think that that's right. Warren Buffett doesn't
think that that's right.
And the process that S&P used in reaching this decision didn't reflect
very well on it. It made this massive error in overestimating the amount
of debt in 2021, that it was projecting the U.S. to have a $2.1 trillion
mistake that the Treasury had to point out to it.
And I think most importantly, the markets reacted to S&P's decision to
downgrade in the exact opposite way that you would expect. So instead of
prices going down, prices went up. People looked at United States
treasuries and said: Oh, we're going to buy these, this is a good place
to invest, it's still just as safe.
And I think that that is consistent with how the markets have reacted to
S&P over the years. It's a great paradox of these credit rating agencies
that they change these ratings in ways that have very little
informational value. It doesn't actually tell us anything about the
chances of the U.S. defaulting or Enron defaulting or subprime mortgage
securities defaulting. It's not useful information, and yet it's front-
page news. It's incredibly important to people. They want to focus on
And I think this is the great paradox of credit rating agencies, that
they have so little informational value, and yet they're so important.
DAVIES: I mean, there was a lot of volatility in the stock market. I
mean, do you see any harmful effects from the downgrade?
Mr. PARTNOY: Well, I do think one harmful effect was that it just
triggered the memories of investors about how little confidence there is
in the rating agencies and yet how central they are to the markets. And
markets really do depend on faith. There's a kind of magic in the trust
of the markets.
And when people see S&P doing something like downgrading the U.S. debt,
and they know that S&P occupies this kind of centerpiece in the
financial markets, they lose a lot of that faith, and that contributes
to volatility, because then they start looking more closely at their
investments, and they wonder, well, should I really own this much stock,
or should I really own banks now, and they sell and they buy and there's
a tremendous amount of volatility as people try to figure out what
assets actually are worth.
So in some ways what happened was the downgrade, even though it wasn't
meaningful for the Treasury market, it actually spooked a lot of retail
investors and people, average individuals, who own stocks, who are now
thinking that some of the confidence that they had in S&P and the U.S.
government has been shattered. Oh, my gosh. What do we do?
And we saw a week or so of tremendous volatility as people tried to
piece together that story. But it didn't really affect the bond market,
where the underlying downgrade was.
DAVIES: And as you look at other countries and their ratings, I mean,
should the United States have a lower rating than other countries that
Mr. PARTNOY: I don't think so. If you look out at other countries that
have these high ratings, and you compare the U.S. on a long-term basis,
certainly the U.S. economy is not healthy right now, and the long-term
prospects in terms of our deficit are dire and will require remarkable
political change in order to cover our future costs, compared to France
or Germany and certainly Spain, the U.S. is in pretty darn good shape.
And the likelihood of the U.S. defaulting on bonds that it's issuing
right now is very, very small, and I think large institutional investors
are saying that, and it's reflected in prices.
Now, that doesn't mean that everything is great in our economy or that
we don't have some serious work to do on the fiscal side over the next
decades. But it does mean that the probability of default is low and
that the United States is a lot better off than many countries in Europe
that have similar or even higher ratings.
DAVIES: What was the role of the rating agencies in the financial
collapse of 2008?
Mr. PARTNOY: The ratings agencies were absolutely at the center of the
financial crisis. They enabled and facilitated all of the complex
financial instruments that really were at the core of why the markets
melted down, first in 2007 and then in 2008.
So what they did, basically, was initially rate mortgage-backed
securities, these were the bundles of prime and subprime mortgages that
investors bought, and then kind of in a second wave of ratings, they
took those packages of mortgage-backed securities and they rated bundles
of those bundles, which were variously called collateralized debt
obligations. They had all kinds of fancy, complicated names.
But basically what they were doing was repackaging things that they had
already rated. And the reason there was such a big problem in 2007 and
2008 was that they had taken subprime mortgage bundles that initially
had low ratings, and when they were then bundled a second time, they
gave them much, much higher ratings. And it turned out that those high
ratings were false and they had to downgrade them, and the downgrade was
what caused the collapse of Lehmann Brothers and nearly many other banks
and nearly the entire financial system.
DAVIES: So there were these financial instruments, which were
essentially very, very risky, which the ratings agencies rated as very
Mr. PARTNOY: Basically that's right. Some of them were very risky. Some
of them were not as risky. But essentially what happened was in this
bundling process, they used complicated mathematical models. They got
away from the intuition of what actually was behind these things, which
were people who were borrowing more money than they should have to buy a
house, and they abstracted so far away from that that these complicated
financial instruments ended up with AAA ratings, the highest possible
rating you could get.
DAVIES: And if they had done what they're theoretically supposed to do,
which, you know, get real information and make sound independent
judgments, and told the world that in fact these instruments were
actually risky, how might history have gone differently?
Mr. PARTNOY: If they had done what they were supposed to do, these would
not have been rated AAA. They would have been rated AA or single-A or
BBB or maybe even further down the scale. And if they were rated lower,
then large institutional investors wouldn't have bought them, and at the
major banks people would have seen flashing red lights that said, oh,
these things are risky. The problem was that when people looked at these
instruments, they saw AAA, and they believed that it was actually AAA.
And in fact, it wasn't.
DAVIES: Okay, let's talk about how we got here. Give us a little
history. When did these ratings originate? Where did they come from?
Mr. PARTNOY: The idea of letter ratings started with John Moody in 1909.
He was building on a history of mercantile agencies that had put
together lists of people's credit, sort of the same way companies put
together our FICO scores or our credit ratings for all kinds of people
in businesses that we deal with.
Well, there were businesses that did that, starting with the silk
industry in the 1900s, where people kept lists of who was defaulting and
who was not defaulting, and John Moody came up with the idea in 1909 of
not just providing lots of financial information about companies and
railroads - because most of the investments that were available in the
early 20th century were railroad bonds - and he said, well, I wonder if
I just gave people a simple mnemonic device, instead of giving them all
the details, if I just boiled everything down into a letter or a bunch
And it would start with AAA. AAA would be the safest. And then it would
go down, AA, single-A, BBB and so forth, all the way down to D, kind of
like the grades I give my students in law school, ranging all the way
from the top down to the bottom, D being default. And this caught on,
and people started buying a book that he published called "The Analysis
of Railroad Investments."
And they bought it primarily because he was able to boil down a lot of
complicated information about railroad bonds into a simple letter
DAVIES: So he would get information about the companies and their
creditworthiness and then publish this information, boil it down into
simple, easy-to-understand ratings like grades, and he would make money
by selling that to investors, right? They would pay for his information,
for his little book.
Mr. PARTNOY: That's exactly right. So if you were an investor, and you
wanted to buy some railroad bonds, you would go to John Moody, and you
pay him for this book, and then you would run your finger down the page,
and you'd say, oh, the Chicago Rock Island and Pacific looks good, it's
rated AAA, I think I'll buy that bond.
DAVIES: Okay, and other ratings agencies emerged, and at some point, as
the century progressed, they got some official recognition from the
government. Explain that.
Mr. PARTNOY: That's right. The rating agency business wasn't a very good
business. They had existed for decades and decades, but during the '40s,
'50s, '60s, into the '70s, they hadn't made a lot of money. They were
selling their ratings to investors at relatively low prices. Once the
ratings were out there, once you knew that the Chicago Rock Island and
Pacific was rated AAA, that information was a public good, it could be
distributed, and so they weren't able to make a lot of money.
And then what happened in the mid-1970s was some regulators at the
Securities and Exchange Commission decided that they would anoint a
small group of rating agencies to do some of their work for them.
The SEC, the Securities and Exchange Commission, had the job of figuring
out how much capital, how much money, broker-dealers, basically
investment banks, would have to set aside in order to remain safe. And
that was a hard job for the regulators to do.
And so they said, okay, we're going to designate these agencies. They
used a mouthful of acronym: NRSRO, Nationally Recognized Statistical
Rating Organization, and they said we're going to designate you as an
NRSRO, and what that means is that you do our work for us.
You go out and you rate these bonds, and more and more regulators saw,
hey, this is a good idea, we don't have to do our job, we can get
Standard and Poor's and Moody's to do our job for us. And so instead of
having regulations say you can only own bonds that are safe, they would
say you can only own bonds that are AAA or that are AAA or AA.
And thousands and thousands of rules, a web of regulation, grew over the
most recent decades to essentially make it so that if you're a company
and you want to borrow, and you want a large institutional investor to
buy your bonds, you've got to get a rating. There's just no choice.
DAVIES: Now, weren't there also specific requirements that institutions
whose stability we really value, like pension funds and banks, their
investments were limited to some of the safest stuff, and the rating
agencies became the official arbiters of what is safe, right?
Mr. PARTNOY: That's exactly right. So for example, we put our money into
money market funds or mutual funds, and what those mutual funds can buy
is dictated by a rule that depends on ratings. They can only buy bonds
that are rated in the top two categories.
We have our money with insurance companies or pension funds, and various
regulations of pension funds and insurance companies also are dictated
by what Moody's and Standard and Poor's, these select rating agencies,
say, whether they say it's AAA or AA.
There are international rules, the Basil Capital Rules, which set rules
for global banks. They also depend on what the rating agencies say. And
so over time we've created this very strange business model for the
ratings agencies where, regardless of whether we think their ratings
have value, whether we think that this bond actually is AAA, that
doesn't matter. It's got to be AAA in order to be sold, whether the AAA
rating is accurate or not.
DAVIES: We're speaking with Frank Partnoy. He is a professor of law and
finance at the University of San Diego. We'll talk more after a short
break. This is FRESH AIR.
(Soundbite of music)
DAVIES: If you're just joining us, our guest is Frank Partnoy. He is a
professor of law and finance at the University of San Diego. He once
worked on Wall Street and has written about financial regulation. We're
talking about the Wall Street ratings agencies.
Now, there's another important development here. In the early days of
ratings, it would be the investors who would pay for this information
because they wanted to know what was safe and what wasn't. That's
changed. Explain that.
Mr. PARTNOY: And that's a key point, and it changed, not coincidentally,
at exactly the same time that the regulations changed in the 1970s. So
remember, back in the early part of the 20th century, when John Moody
was first developing his "Analysis of Railroad Investments" manual, you
would get that as an investor buy buying it, by paying John Moody for
this book. So it was what's called the investor-pay model.
In the mid-1970s, as these rules appeared, the payment model changed to
what people call the issuer-pay model, so that if you're a company, if
you're IBM, and you're looking to borrow money, you want to issue bonds,
you now are the one who's going to S&P and Moody's, and you're paying
them a fraction of a percent of the entire size of the issue for their
So there was this shift, a fairly dramatic shift, from the investor
paying to the issuer paying, and as you can imagine, people were quite
critical of this because they said it created the potential for a
conflict of interest.
I mean, you can imagine the difference between how credible ratings of
movies or ratings of restaurants might be if instead of it being the
Michelin Guide that investors buy, or the Zagat guide, or pick your
favorite movie reviewer, instead of the investors paying, if the movie
companies themselves or the restaurants themselves were paying the
raters to be rated, it's an obvious conflict of interest. But
nevertheless that's how the model shifted in the 1970s, and now it's
very commonplace that companies, governments, anyone who wants to borrow
money, they are the ones who are paying for their rating.
DAVIES: So if I'm going to issue debt, if I'm going to issue bonds, and
I'm, you know, a local government or a company, I want the highest
rating I can get because that means I will be able to borrow for less
interest. And I have an interest in a high rating, and since I'm hiring
the rating agency, I can say - I can exert pressure on them to give me a
favorable rating. Is that how it works? Is that the concern?
Mr. PARTNOY: That's the concern. The rating agencies will resist this,
and they say, oh no, we're not being pressured at all, and we're
independent and this is only an opinion, and you shouldn't rely on that
in investing anyway, it's just our opinion.
But nevertheless, there is concern that the conflict of interest is real
and that there is pressure. And certainly if you look back to the
financial crisis, there was tremendous pressure for the rating agencies
to come up with AAA ratings, even though what they were rating was
essentially junk with subprime bonds that didn't deserve a AAA rating.
And if you go back even in recent history, there are lots of examples of
the rating agencies giving very high ratings, many will say under
pressure, and then those high ratings not panning out. People may
remember Orange County, California's bankruptcy in the mid-1990s. Orange
County was rated AA just before its bankruptcy.
People remember Enron. Enron was rated investment-grade just four days
before its bankruptcy. AIG had very high ratings just before its
collapse. All of the major banks had very high ratings, and so forth.
And so there are allegations that the rating agencies are giving in to
this extreme pressure. The allegations now, with the downgrade of the
United States, are kind of the opposite, that the rating agencies are
trying to show, look, in terms of rating governments, we're not willing
to give in, because they've had a bad track record in that area, too.
They rated Iceland AA+ in 2006, and people remember what happened in
Iceland. Anyone who's seen the movie "Inside Job" knows it starts out
with Iceland and all these bizarre investments in Iceland, and the same
thing in Ireland.
And so there is this extreme pressure and accusations that the rating
agencies give in to it.
DAVIES: Now, the other way of looking at that is that the rating
agencies take their time and will not react quickly to something that's
collapsing. I mean, Enron, you had guys who, it's now clear, were
fraudulently misleading everybody, including government regulators,
about what they're doing.
And I have to say, I mean, I covered the city of Philadelphia for many
years as a newspaper reporter, and through a lot of financial crises,
and I know that when the city officials from Philadelphia went to Wall
Street, to the rating agencies, it seemed to me that the power was all
in the rating agencies. It wasn't like they were deciding which rating
agency they would hire and could extract from them a favorable rating.
I mean, they went in their Sunday best, with all their charts and
graphs, to try and persuade these folks that they deserved a good
rating. I didn't sense - I never heard any suggestion that they could
influence the rating agencies on their behalf.
Mr. PARTNOY: I think your experience is shared by lots of people who are
frustrated by their dealings with the rating agencies. I certainly think
Enron was very frustrated with the rating agencies and dealing with them
and thought that it deserved a higher rating.
And you know, to be fair to the rating agencies, it is true that they
don't react right away, that they don't instantly downgrade when there's
But I think if you take a step back and ask, well, what is it that we
want from the rating agencies, wouldn't we want them to be responsive to
information in the market? You'd want them to listen to people at the
table and have an open mind when they do hear the kind of criticism that
you just described.
And historically, the rating agencies have not. They are quite stubborn
and very difficult to persuade, and really if you think across every
business, has there - is there any other cluster of companies that has
done as bad a job as S&P and Moody's and still remained a viable
business over a period of decades? It's extraordinary.
I don't think any other industry has companies that have consistently
done their job as poorly, and yet the paradox is that they have remained
powerful even in recent weeks.
DAVIES: Frank Partnoy is a professor of law and finance at the
University of San Diego Law School. He'll be back in the second half of
the show. I'm Dave Davies, and this is FRESH AIR.
(Soundbite of music)
DAVIES: This is FRESH AIR. I'm Dave Davies, sitting in for Terry Gross,
who's off this week.
Our focus today is on Wall Street rating agencies, how they work, how
they came to have such influence over the economy and how future
regulations might affect them. The rating agencies were widely condemned
for giving high ratings to risky mortgage-backed securities in the
financial meltdown, and Standard & Poor's August 5th downgrade of U.S.
credit has been controversial.
Our guest is Frank Partnoy. He's a professor of law and finance at the
University of San Diego Law School. In the 1990s, he worked with
derivatives on Wall Street and wrote about it in the book "FIASCO: The
Inside Story of a Wall Street Trade." He's also the author of "The Match
King" and "Infectious Greed: How Deceit and Risk Corrupted the Financial
Everybody knows that you worked on Wall Street yourself in the 1990s.
Talk a little bit about how a rating worked. Where did they get their
Mr. PARTNOY: For a complicated instrument, they would get their
information from the bank. So I worked at Morgan Stanley, and we would
go to the rating agencies - to Standard & Poor's or Moody's, or both -
and we would describe a deal that we wanted to do. And it would be very
complicated, and they would get their information from us. They had
models that they used, but I think it would be fair to say that we were
able to run circles around them, that the quality of the rating agency's
models was very low, and that they often didn't have a very good
understanding of what it was they were rating.
There was one deal in particular that we put together that involved the
National Power Corporation of the Philippines bonds, which as you can
imagine in the mid-1990s were certainly not rated AAA. There was a lot
of risk in the Philippines at the time.
And we went to them, and this was actually a relatively simple
structured finance deal, where we put together some U.S. treasuries,
some very low-risk instruments, together with the National Power
Corporation of the Philippines bonds, some very high-risk instruments.
And we went to Standard & Poor's and we said well, will you give this a
AAA rating? And, by the way, we'll pay you this very large fee. And they
debated for a while and actually gave us a AAA rating.
And it was kind of funny over time, they realized, oh, no. We really
should not have given you this AAA rating. And so they introduced
something called the [R] Subscript, and they put a little, tiny R at the
bottom of the AAA to indicate well, this is not really a AAA rating. I
mean, it's National Power Corporation of the Philippines. How could it
possibly be AAA?
(Soundbite of laughter)
Mr. PARTNOY: But nevertheless, it was rated AAA. It just had this little
R on it.
DAVIES: So it sounds like you and your fellow bankers kind of put one
over on the agencies here. Were the underlying assets available for
inspection? Was there a material there that, if the rating agencies were
more diligent, they could have consulted and gotten a more accurate
Mr. PARTNOY: Clearly, for this deal that I just described, it was very
straightforward. And so that one's easy. And in some ways, you can feel
some sympathy for the credit rating agencies in rating these very
complicated instruments that have thousands and thousands of subprime
mortgages all across the country from lots of different borrowers. But
the one I just described for you could not be more simple. It just had
two securities in it, and both of them were fully described.
So that - I regarded that one as a really egregious mistake. In some
ways, the mistakes that they've made more recently are tougher because
they involve complicated math, very high-level understanding of the
interrelationships among the subprime mortgages and the securities in
these pools, in these packages. So I do have some sympathy, having
looked at the testimony from the rating agency employees, that they
really were in over their heads.
But nevertheless, I think the right thing to do then if you're in a
business and you're over your head is to step back and say, we're not
willing to do this anymore. And the employees at the rating agencies who
said this is crazy, we've got to stop it, we can't put AAA ratings on
this, they were ignored and very much ill-treated.
DAVIES: And how do we know that? I mean, do you know these folks
Mr. PARTNOY: I know some of them. But we know it because they've
testified before Congress and various committees. They've come out and
some of them have either filed or threatened litigation against the
rating agencies. So there have been a few people who have come out and
told their stories, and they've given us a lot of details. I think that
the Senate Committee, the permanent subcommittee on investigations that
looked at the financial crisis and just recently issued a report spent a
lot of time talking to people at the credit rating agencies. And for
anyone who's angry about the credit rating agencies, that's a good place
There's a very lengthy report that has lots of details and meaty,
sometimes profanity-laced footnotes that will give you a pretty clear
picture of who inside the rating agencies didn't know what they were
doing and who was yelling about it when.
DAVIES: There are three main rating agencies: Standard & Poor's, Moody's
and Fitch's. Are there others that have this designation, a nationally
recognized statistical rating organization?
Mr. PARTNOY: There are. And over time there was consolidation in the
industry, and these became the dominant ones, particularly S&P and
Moody's. Even back in the 1990s, they were dominant, and Thomas Friedman
had this great quote from 1996, where he said there were two superpowers
in the world. There's the United States and there's Moody's. And the
United States can destroy you by dropping bombs, and Moody's can destroy
you by downgrading your bonds. And that's really the way that it stood
for a while, with Moody's and S&P dominating the market share. They had
90-plus percent of the ratings.
Now, more recently, the government has decided they wanted to open up
the rating business to competition, and so they've designated some other
rating agencies as competitors. But really, S&P and Moody's in
particular have had an oligopoly lock on the business. Fitch has been a
somewhat distant third, and then everyone else is running very, very far
behind in this race. But basically, it's S&P and Moody's.
DAVIES: We're speaking with Frank Partnoy. He is a professor of law and
finance at the University of San Diego.
We'll talk more after a break. This is FRESH AIR.
(Soundbite of music)
DAVIES: If you're just joining us, we're talking about the Wall Street
rating agencies, their role in the economy, with Professor Frank
Partnoy. He is professor of law and finance from the University of San
Diego. He studies and writes about financial issues and financial
I want to talk about what might be different, I mean, if there are
problems with all of the power that these credit rating agencies have,
and their - questions about their ability to fairly and independently
and accurately rate credit. Let's talk about kind of what might be
The Dodd-Frank financial reform legislation which passed had some
provisions which would change the game for rating agencies, right? Tell
us what's going on there.
Mr. PARTNOY: That's right. And really, there are two crucial changes.
One is in the area of regulatory reliance on ratings - in other words,
this web of regulation that depends on S&P and Moody's, on the credit
ratings - like the requirement that your mutual funds buy only bonds
that are rated in the top two categories. And what the Dodd-Frank bill
did on that was to require that various agencies â regulators - remove
references to ratings from those rules. It said take them out. Get rid
of them. There are thousands of these references all over federal
regulation. Get rid of them.
DAVIES: Now, if I could just - if I can just cut in here, what that
would do would say - it would continue to say to these institutions like
banks and pension funds: You have to make sound investments, but you
don't have to rely upon the ratings of these agencies.
Mr. PARTNOY: Yes. That's correct. And the challenge has been for
regulators to come up with some substitute. Well, what else are you
supposed to do if you're a pension fund, if you're an insurance company,
if you're a money market fund, what should you look at? Should you just
do your own credit analysis? Is it permissible to look at ratings? And
there's been a lot of confusion and debate in Washington about what the
substitutes will be.
There's some pressure for a proposal that I've advocated for a while,
which is to rely on market prices, to look at the markets as one
reference point for deciding whether or not something is creditworthy so
that you reflect information and wisdom from a variety of market
participants. And that is showing up in some of the regulatory changes.
There's pressure from many fronts to continue to be able to use ratings,
at least in a secondary role. There's a big debate that's happening in
Washington about that right now. But Congress has basically told
regulators: Get rid of these references.
And I'm very optimistic that if regulators are able to do that over the
next year or so, that over time, over a period of years, that we'll end
up weaning ourselves off of this dependence on ratings and that the
markets will end up being a lot safer as a result in the long-term.
DAVIES: Now, if I'm Standard & Poor's or Moody's, and I'm rating
literally thousands of bond issues every year, getting paid every time I
do it, I would have to view this new change as a threat to my financial
health. How are they reacting?
Mr. PARTNOY: Interestingly, they haven't reacted that way. Maybe
internally, in their discussions, they see this as a problem. But they
have said that they will go along, and that they believe that their
business will survive and thrive in a kind of independent market for
ratings. And the jury is out on that.
Moody's shares are worth over $7 billion right now, and the value there,
I think, comes from the importance of the ratings in regulation. But
Moody's and S&P, I think, believe that they will be able to survive,
even if there aren't these kinds of regulatory references to their
ratings. And I think that - let's give them a shot. Let's see if they
DAVIES: And you think that's a good thing, I guess. I mean, if they have
to survive on the credibility of their reputation, that's all to the
Mr. PARTNOY: I think that's a good thing. But there's a second piece of
the regulatory reform which I'm not so optimistic about, and this is
forcing the rating agencies to be subject to liability when they issue
In the past, the rating agencies have been insulated from liability. So
they've really had the best of both worlds. They've had regulators
telling them investors have to use your ratings. It's a must in
regulation. But then, if you commit fraud, if you get the ratings wrong
and you're sued, you can defend yourself.
And the way that S&P in particular has defended itself is by saying our
ratings are just opinions. They're protected by the First Amendment, in
the same way what we're saying right now is protected by the First
Amendment, or what something I might say in an opinion piece I write for
The New York Times or the Financial Times is protected by the First
Amendment. And courts generally have accepted this argument. S&P has had
a very effective advocate, Floyd Abrams, who's one of the best First
Amendment lawyers in the world.
People may remember Orange County, California's bankruptcy. In the mid-
1990s Orange County was the rated AA just before its bankruptcy, and S&P
was sued. And they settled that case for $149,000, which is nothing to
settle a major piece of litigation. They changed their contracts and
said that ratings are constitutionally protected, that they're not
investment advice. And they've been very effective in making this
argument that they have the same kinds of constitutional protections.
Now, it's worth noting that people generally don't get paid by issuers
for writing stories about them. So The New York Times, for example,
isn't compensated when it writes a story about Google. Google doesn't
pay it for writing that story, whereas issuers of bonds pay S&P for
their ratings, and they won't pay if they don't get a rating. So it's
commercial in a way that other kinds of speech are not. But
nevertheless, they've been very effective, and I think we'll have to see
whether the rating agencies are subject to liability.
You used the word reputation. In order for there to be a well-
functioning market for ratings that is constrained by reputation, they
have to put their money where their mouth is and be subject to liability
in the same way we would be subject to liability if we fraudulently sell
something to someone. And so far they haven't.
DAVIES: Well, now, it's one thing to make a mistake. It's another thing
to call that fraud. I mean, if, for example, I bought a bond that
Standard & Poor's had rated A-minus, and I think that company really
isn't that good. It's a BB. And I think, therefore, I should have gotten
a better yield on my bond if they had gotten that rating just right. Do
you think I should be able to sue them for saying you slightly
overvalued their credit, therefore I got ripped off for, you know, a
relatively small amount of money? I mean, should you really expect them
to know everything there is about a company they're rating?
Mr. PARTNOY: No, of course not. And you very well might lose that
lawsuit. But what I think shouldn't happen is that S&P should be able to
defend itself by saying this is just an opinion. It's protected by the
First Amendment. I think what should happen is if you believe there are
circumstances that would support a claim for fraud or some other kind of
claim, that you should be able to sue them and have a judge look at the
case and decide whether or not to dismiss the case based on the facts,
and that they shouldn't be able to hold up the First Amendment as a
shield to protect them against all the arrows of these potential
Now not everybody's going to win, I agree. And many people make mistakes
in investing, and you don't want to constantly hold people liable for
making mistakes. But the courts do a pretty good job of going through
that, and I don't think everyone would win. So what I'm saying is
something very different, which is this particular argument that they've
been able to make, they shouldn't be able to make anymore.
DAVIES: But haven't their ratings always come with this language that
says these are not indications of investment merit, they are not buy,
sell or hold recommendations? It's not a measure - haven't they always
had that language?
Prof. PARTNOY: They haven't always. And that language has evolved over
time. And they got especially excited about that language after they got
the favorable settlement in the Orange County litigation. But certainly,
today, ratings all say that. So if you look at the ratings, the rating
agencies are clearly, in advance, claiming First Amendment protection.
That doesn't mean that a judge should buy their argument. Many people
think that argument is specious. But they clearly say in advance that
these ratings are opinions and you shouldn't rely on them.
It's interesting that they say this, and yet whenever they downgrade a
significant issuer - like the August 5th downgrade of the United States
- it's front-page news every day. We - this is a great paradox of
ratings, that they don't really have a lot of informational value, and
even the rating agencies say that they shouldn't be relied on as
investment advice. And yet they're front page news. They're something
that we care a lot about.
DAVIES: An alternative to having the rating agencies define what are
safe investments is to have the government regulators themselves do it -
in other words, have them do ratings or something like them. Is that a
Prof. PARTNOY: There was a push for this in the U.S., and it was
rejected. It's not the kind of thing that we generally do. There is more
popularity in Europe. Several European regulators have suggested that
this is something that's sufficiently important. It's kind of like
public utility, that it's a function that should be performed by the
I'm not sure that I would be very comforted by having the solution be to
have these regulators who, having deferred to the rating agencies saying
they couldn't do this on their own, are now going to be forced to try to
do it on their own. I'm not sure that that's the right solution, and I'm
not sure people would have any more confidence in the regulator's
ability to do a good job. So I'm not a fan of that proposal, but it does
have some support in Europe. I doubt it would happen in the U.S.
DAVIES: So how optimistic are you that we're going to get some change
and that the role of the rating agencies will, you know, will evolve in
a direction that's less harmful?
Prof. PARTNOY: I'm very optimistic, actually. We got some extraordinary
change in the Dodd-Frank legislation. This was a time when the rating
agencies were beaten down. They had downgraded thousands and thousands
of instruments. People understood that they were at the center of the
financial crisis, and members of Congress acted. They passed a law that
required regulators to take out these references, and they're in the
process of doing that.
Now, they're being beaten over the head by lobbyists who don't
necessarily want that to happen, but they're trying their best and
trying to get rid of those references. And if that happens, I think the
long-term implications will be very favorable.
I'm not as optimistic about the accountability of the rating agencies,
about whether they will fully be held accountable through either civil
liability from private parties suing them or from the government. The
government, the Securities and Exchange Commission did an investigation
of the credit rating agencies, but essentially let them off with a slap
on the wrist. And we haven't seen a criminal prosecution, really, of
anyone on Wall Street, but certainly not anyone at the credit rating
agencies. And I'm not optimistic that will happen.
So it's a bit of a mixed bag, but I think in terms of what the
regulators could have done in response to the crisis - one of the most
important things for them to do was to get rid of this reliance on
ratings. And they took several steps down that path, and I think we'll
end up better off as a result.
DAVIES: Well, Frank Partnoy, thanks so much for speaking with us.
Prof. PARTNOY: Thank you.
DAVIES: Frank Partnoy is the George E. Barrett Professor of Law and
Finance and co-director of the Center for Corporate and Securities Law
at the University of San Diego Law School. He's also the author of
"Infectious Greed: How Deceit and Risk Corrupted the Financial Markets."
Coming up, a new album from actor Jeff Bridges. This is FRESH AIR.
*** TRANSCRIPTION COMPANY BOUNDARY ***
Jeff Bridges: An Actor Who Can Actually Sing
DAVE DAVIES, host:
Jeff Bridges won an Oscar in 2009 for his performance as a broken-down
country music singer in the film "Crazy Heart." He did his own vocals
and sang as his character Bad Blake in the movie and on the soundtrack
album, which was produced by T-Bone Burnett. Now a Bridges has a new
album singing as himself, again produced by Burnett.
Rock critic Ken Tucker says the album goes well beyond proving Bridges
is not the character he plays.
(Soundbite of song, "Down from the Mountain")
Mr. JEFF BRIDGES (Actor, singer): (Singing) I'm driving my blue car,
baby, down from the mountain so high. I'm driving my blue car, baby,
down from the mountain so high. I'm driving my blue car, baby, coming
down, gonna say goodbye.
KEN TUCKER: In the movie "Crazy Heart," Bad Blake was an alcoholic
former star who'd slid to the bottom of the country industry. For his
musical performances, Jeff Bridges affected a shrewd mixture of Waylon
Jennings, Billy Joe Shaver and a breezy boozer. This approach was good
enough to win an Oscar, but upon receiving the collection of songs
called "Jeff Bridges," I thought: Would it be good enough to result in a
decent album? Well, the good news is that Jeff Bridges is not Bad Blake,
in more ways than one.
(Soundbite of song, "Oh What a Little Bit of Love Can Do")
Mr. BRIDGES: (Singing) I heard that you've been feeling down and blue,
but there ain't nothing really very wrong with you. You just need a
little tending to. Let me show you what a little bit of love can do.
It's amazing what a little bit of love can do.
I've been told someone needs a little help, having trouble getting on
with someone else. I'm here to tell you that everything is gonna be
fine. Yeah, I know you're hurting, 'cause your heart is breaking. I
think that I can alleviate the situation. Look in my eyes and listen to
me, baby, and put your little hand in mine.
I know that...
TUCKER: That's Jeff Bridges singing "What a Little Bit of Love Can Do,"
a terrific song co-written by the late Stephen Bruton, a friend of both
Bridges and T-Bone Burnett, and who died of cancer in 2009.
The song leads off the album for a good reason: Bridges and Burnett knew
that it was the performance that would immediately prove to any listener
that Bridges' own singing voice was not that of his movie characters.
There's no Bad Blake or Rooster Cogburn growl in Bridges' vocals. He
sings naturally in a slightly higher register, and phrases with an
insinuating slipperiness, frequently letting one word slide into the
This Los Angeles-born actor rarely affects a Southern accent in the
country or blues-influenced songs here. Instead, he croons in the manner
of the L.A. singer-songwriters he undoubtedly grew up listening to, if
not hanging out with.
(Soundbite of song, "Everything but Love")
Mr. BRIDGES: (Singing) You can have a mansion. You can have $20 million
in the bank. You can have a 12-car garage, golden fixtures and a marble
sink. You can have everything. But it just won't be enough if you have
everything but love.
TUCKER: One might be tempted to poke fun of a rich movie star recording
a song with the tired, old sentiment that money can't buy you love. But
as a singer, Bridges burrows so comfortably into the lyric, that it
doesn't come off as foolish or arch. Bridges didn't write that one, but
he did write or co-write three songs, here, the best of which takes
another old saw - about exceeding one's reach and ruing the failure -
and renders it an artistic success. It's called "Falling Short," with
some subtle back-up vocals by Sam Phillips.
(Soundbite of song, "Falling Short")
Mr. BRIDGES: (Singing) Am I falling short, or do I fly? While I miss the
mark, do I hit the sky? In my wondering, do I answer why I am alive?
TUCKER: Perhaps the most problematic song on "Jeff Bridges" is what's
conceived as its magnum opus, the six-minutes-plus effort called "Slow
Boat." It's co-written by Bridges, Burnett and Thomas Cobb, and it
heaves into our ears with the deliberate pace of an ocean liner whose
motor has been shut down.
There is, to be sure, a certain dark, mysterious beauty to much of this
song about fog and confusion, and Rosanne Cash contributes a gorgeous
background vocal. But like another T-Bone Burnett production - Robert
Plant and Alison Krauss' "Raising Sand" - there are moments here when
the slowness of "Slow Boat" is a strain toward the profound. Still, I
like a song that has the courage of its own pretensions.
(Soundbite of song, ""Slow Boat")
Mr. BRIDGES: (Singing) The river is wide, deeper than deep. On one side,
they're crying, on the other, they're asleep. It's all a dream.
TUCKER: After "Slow Boat," the album does a slow crawl for its two
remaining songs, "Either Way" and "The Quest" - really, no one should
ever tackle a song called "The Quest."
But before that, this collection is pretty spiffy. The odds are against
this album becoming a big hit. People tend to think of these items as
vanity projects. Among actors who sing - a diverse list that ranges from
Tony Danza to Eddie Murphy to Zooey Deschanel - Jeff Bridges can be
placed among those for whom talent is equal to the ambition he's set for
himself. In that sense, this one isn't a vanity project. It's a modesty
DAVIES: Ken Tucker is editor-at-large at Entertainment Weekly. He
reviewed Jeff Bridges' new self-titled album.
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