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The Federal Home Loan Banks (FHLBs) have been part of the financial landscape in this country since 1932. They were created (before the New Deal) in response to the housing crisis during the Great Depression. But their role has changed from a focus on housing to becoming a liquidity provider for large banks. And this has had a major impact on our financial system, including the fintech space.

My next guest on the Fintech One-on-One Podcast is Cornelius (Con) Hurley. He is a professor at the Boston University School of Law and was a founding member of the Online Lending Policy Institute which was folded into the American Fintech Council in 2021. Most importantly for this conversation, Professor Hurley was an independent director of the Federal Home Loan Bank of Boston for 14 years. He has become an outspoken critic of FHLBs in recent years and is a co-founder of the Coalition for FHLB Reform.

Professor Hurley provides a detailed history and the current state of play for FHLBs but also focuses on the role fintech companies can play here.

In this podcast you will learn:

• Why everyone should be interested in what Federal Home Loan Banks are doing.
• The origins of the Federal Home Loan Banks and why they were started.
• How the FHLBs are regulated.
• How the FHLBs can claim they have never made a loan that has defaulted.
• The governance culture of the FHLBs.
• Why FHLB loans to banks should be made public.
• How the mission of the FHLBs moved away from housing and community development.
• Why banks go to an FHLB for liquidity instead of the Federal Reserve.
• How the FHLBs are funded and what subsidies they receive.
• The recommendations for reform from the recent FHLB report.
• Why FHLB members will need to beef up their mortgage exposure.
• The potential role for fintech companies here.
• What comes next for FHLBs.

Read a transcript of our conversation below.

Peter Renton  00:01

Welcome to the Fintech One-on-One podcast. This is Peter Renton, Chairman and co-founder of Fintech Nexus. I’ve been doing this show since 2013, which makes this the longest running one-on-one interview show in all of fintech. Thank you for joining me on this journey. If you liked this podcast, you should check out our sister shows The Fintech Blueprint with Lex Sokolin, and Fintech Coffee Break with Isabelle Castro, or listen to everything we produce, by subscribing to the Fintech Nexus podcast channel.

Peter Renton  00:31

Before we get started, I want to remind you about our comprehensive new service. Fintech Nexus News not only covers the biggest fintech news stories, our daily newsletter delivers the most important fintech stories into your inbox every morning, with special commentary on the top story of the day. Stay on top of fintech news by subscribing at news.fintechnexus.com/subscribe.

Peter Renton  01:09

Today on the show, we are covering a topic I have never covered before on the show, and that is the Federal Home Loan Banks, what they are, why they’re in need of reform, and what is actually their role in the whole banking system. And with that, I’ve brought upon an expert Cornelius Hurley, longtime friend, and he is, he’s a lecturer at Boston University. He was also a director of the Federal Home Loan Bank of Boston. And most importantly, he has been a very serious and loud advocate for reform here. So we talk about why it’s important to reform the Federal Home Loan Banks. Firstly, what they do, and what is it that they have done that has been shall we say, dubious or certainly not in alignment with their mission. We talk a lot about that. And we talk about how the taxpayers are on the hook here. We talk about the report that just came out that is advocating reform for the Federal Home Loan Banks, and much more. It was a fascinating discussion. Hope you enjoy the show.

Peter Renton  02:20

Welcome to the podcast Con.

Cornelius Hurley  02:22

Thank you, Peter.

Peter Renton  02:23

Okay, great to have you on here. And I’m excited about our discussion today. Becasue I know I’m gonna learn a lot. But before we dive in, why don’t you give the listeners a little bit of background about yourself. You’ve had a long and storied career. Tell us some of the highlights.

Cornelius Hurley  02:37

Well, thank you, Peter. Thank you for having me on. First of all, if I can claim the privilege of calling you an old friend.

Cornelius Hurley  02:45

We’ve been working together for a very long time. And I consider it a privilege to be on this program. Andyou go back to the LendIt days, and I go back to the OLP days. And now you’re Fintech Nexus and I’m American Fintech Counsel. So time marches on. But if I could, before I mention anything about myself, I kind of like to set the table in terms of why the listeners should be interested in this topic, if that’s all right?

Peter Renton  02:45

Yes!

Peter Renton  02:45

Yep. Sure.

Cornelius Hurley  02:48

I think there are three significant reasons. Everybody in our society wears several hats. And first of all, everyone is a taxpayer in some form or another. So in that capacity, they are subsidizing, they are paying for this $1.5 trillion enterprise that is severely underperforming. And don’t just take my word for it. That’s factual. Secondly, as consumers, and as depositors of banks, we’ve all remarked at how low the interest rates that banks pay on our savings and demand accounts are NCDs. Well, the Home Loan Banks are one of the reasons, one of the significant reasons why traditional banks can get away with paying very, very low rates. So we have skin in the game both as taxpayers and as consumers/depositors. But more significantly, on the line I’m sure are a lot of entrepreneurs in the fintech space. And I’m happy to say that this review process that has been going on for quite some time now culminated in a report by the FHFA in November, I think holds significant opportunities for entrepreneurs in the fintech space, and we can get into those in a little  more detail later. But it’s safe to say that the the the 11 Federal Home Loan Banks have really botched it when it comes to dealing with the fintech industry. And let’s just go through a few instances that your listeners may or may not be aware of. Silvergate Bank in California went from being a traditional thrift lending to the housing industry, and a member of the Home Loan Bank of San Francisco into being the bank for crypto.

Peter Renton  03:13

Yep.

Cornelius Hurley  04:24

And it was only revealed in January of this year, that it was being kept alive by a $4.3 billion line of credit advances from the Federal Home Loan Bank of San Francisco. That’s not a good thing. And then eventually it went into self liquidation. Then you came to Signature Bank in New York, which itself was a crypto bank. And it had to be put into receivership by the FDIC. And then bringing it just to last month, the Federal Home Loan Bank of New York promoted to being its chairman, an individual who played a prominent role in the FTX empire. And by prominent I mean, he directed customers of FTX to go to Signature Bank, and then,  all the while he was sitting as chair of the risk committee, and then the Home Loan Bank of New York loaned up to $10 billion to Signature Bank. So, if that is not a conflict of interest, I’m not clear on what is.

Peter Renton  06:40

Right.

Cornelius Hurley  06:40

But it certainly doesn’t seem to be the kind of behavior that deems being rewarded with the chairmanship of one of the largest Federal Home Loan Banks, which is what happened. So as for me, my life history is fairly simple. I was a Federal Home Loan Bank director, independent director in Boston for 14 years. For eight years, I served at the Federal Reserve Board in Washington, D.C. I was an official there. My main area of concentration was foreign banks in the US and US banks abroad. I was general counsel for a large regional bank holding company for about eight years. And then for the last 18 years or so, I have to pinch myself every time I say that, but I’ve been an academic at Boston University, teaching in the law school. But for this purpose, for the purposes of this conversation, the two roles that I am most proud of is, I co-founded something called the Coalition for Federal Home Loan Bank reform. And this is an eclectic organization of former regulators, bankers, housing advocates, civil rights leaders, one prominent member you, many of you, your listeners might recall is Cam Fine, who is the former president of the Independent Community Bankers of America, a very eclectic group focused on turning this massive government sponsored enterprise around so that it serves a legitimate public purpose, once again. So that’s, that’s the coalition or CFR as we call it. The the other hat that I wear, and I hope that your listeners take me up on this, is as chairman of the community advisory board of the American Fintech Council. I didn’t mention that as part of the coalition we have a lot of fintechs, because we don’t have a lot of fintechs. I don’t think the fintech industry, largely, has woken up to the fact that there are significant opportunities in this reform effort. So Phil Goldfeder, if you’re listening, the door’s open to joining our coalition, and I think we can accomplish a lot of good things, in that regard.

Peter Renton  09:02

Let’s back it up for a second. And I want to talk about what a Federal Home Loan Bank is exactly, why they exist. I think it came out of the Great Depression. But tell us a little bit about the origins here.

Cornelius Hurley  09:18

You’re right. They do come out of the Great Depression, but not out of the New Deal. Before there was FDR, there was Herbert Hoover, and it was his administration that came up with this proposal. It was a legislation that was designed to stimulate the housing industry at the time, and it was modeled after the Federal Reserve Bank act of 2013, of 1913, excuse me. And it allowed savings and loans, and insurance companies, which at that time, were the major lenders into the mortgage market, to be members of any one of the twelve Home Loan Banks that were to be set up if they were in their district. And so that’s the way it operated for decades, really. And the most significant change came in 1989, following the savings and loan crisis. When a couple of things happened, first of all, membership was opened up to commercial banks and credit unions. No longer just savings and loans and insurance companies. But now the the entire banking industry, that was a significant change, particularly when you look at membership today, and you realize that most of the members are commercial banks, and they dominate the system, and savings and loans have largely gone away, as a significant part of the Financial Services landscape. The other thing that the 1989 legislation did was it required each of the Home Loan Banks to devote 10% of their net income to affordable housing, and we can talk about that a little bit later. And that was the perceived public mission that the Home Loan Banks were supposed to play. Finally, what happened then was, I mentioned this legislation came on the heels of the savings and loan crisis, there was an organization set up to to bail out the savings and loan industry, it was called REFCORP. And each Home Loan Bank was required to devote 20% of its net income to retire the debt of REFCORP, which had been set up to bail out the savings and loan industry. Oh, the other thing that I should mention in this brief history here is something happened in the 1980s and continues to this day, which is highly significant to the purpose of the Home Loan Bank System. And it’s called simply securitization. Where the liquidity in the mortgage market was taken over, not by the Home Loan Banks, but by the massive securitization, under either the auspices of Fannie Mae and Freddie Mac or the private label industry.

Peter Renton  12:21

Right. Okay. So, what I’d like to do before we go any further, let’s talk about the regulatory structure here, because the FHFA, the Federal Housing Finance Agency, regulates these Federal Home Loan Banks. That’s how I understand it. They also regulate Fannie Mae and Freddie Mac. Can you sort of describe what their role is in how they regulate these 11 member banks?

Cornelius Hurley  12:47

So FHFA was set up in 2008, by a special law that was passed just before the financial crisis hit with full force. And that law was passed with the Bush administration’s recommendation, recognizing that there might come a day when Fannie and Freddie would have to be put into conservatorship. And it was fairly non-controversial at the time. I think Secretary Paulson referred to it as the bazooka in the closet that would never have to be used.

Peter Renton  13:27

Right.

Cornelius Hurley  13:28

Well, he was proven wrong, pretty quickly. So this is the bazooka administration. It’s had many other names in the past. But it is headed by one person, a director, her name was Sandra Thompson. She was appointed by the President. And she, like Rohit Chopra, at Consumer Financial Protection Bureau, serve at the pleasure of the President. Meaning, by virtue of a Supreme Court case that came to down in the last year or so. Meaning that whatever is on her agenda is not necessarily on the agenda of the next president, whoever that may be, whenever that may be, and that the next president, if it’s a different party than Biden, could terminate her on day one. And probably would, which is virtually what the Biden administration did when when they came in. So they regulate, they regulate the Home Loan Banks, much like a traditional bank is regulated. There is a composite rating of capital and assets and management, liquidity and so on. But part of the structure is that each of the Home Loan Banks, unlike traditional banks, are jointly and severally liable for each other’s obligation. So in a sense, they’re all in it together. You would think, I would think, that that would lead to some self regulation, some self discipline, on the part of the Home Loan Banks, and yet we see certain of the Home Loan Banks, for example, I mentioned the New York and San Francisco experience going somewhat rogue. And they can, they can get away with that, not because they have a regulator who doesn’t care, but because they boast that they have never made a loan that has gone bad. Think about that for a minute. In 91 years, none of the known, those banks claim, that they have made a loan that has never gone bad. It’s a ludicrous statement on its face. The only reason it has a scintilla of truth to it is that all of the loans that have gone bad, Silicon, First Republic, Signature, et cetera, IndyMac, Washington Mutual, Countrywide, we can go on and on, are eventually the losses are eaten by the FDIC, which, which as we know, is a relatively limited fund. At the end of last year, it was only $28 billion in the Deposit Insurance Fund. The true value of the FDIC guarantee is the fact that the full faith and credit of the United States taxpayer is behind it, just as the full faith and credit of the taxpayer is perceived to be behind the 1.5 or so trillion debt offerings of the Home Loan Bank. So there’s a bit of a circularity here going on.

Peter Renton  16:59

Right, right. Let’s talk about the governance culture. I’ve been receiving your emails, and this is how this obviously came about, you know, you’ve been talking about this for a long time, and really putting, putting it out there some of the problems with governance of these banks. So tell us a little bit about the governance culture of the Federal Home Loan Banks. And also when when, when you’re answering keep in mind, what’s actually relevant for the fintech industry here?

Cornelius Hurley  17:27

As a matter of governance there, it is a very closed society, I mean, extremely closed society. And I point to the fact that over this, more than a year’s long strategic review process that the regulator has been conducting, few if any of the Home Loan Banks, or of the directors, even independent directors of the Home Loan Banks have come forward with any ideas on their own. They speak largely through one lobbyist in Washington, and one lobbyist only. And there is a groupthink mentality to their detriment, I believe, that infects the Home Loan Banks, themselves as institutions, but also, each individual Board of Directors, my own experience was somewhat agonizing is in that by virtue of my speaking out for reform, the home loan, the directors of the Boston Bank, thought that I ought to be removed as a director. They didn’t do it. Because it was a ludicrous proposition to begin with. But also, that was then, this is now, I mentioned the Home Loan Bank of New York situation. It is only hubris, it is only arrogance that could cause a bank board to nominate it as its chairman, a former executive of FTX, literally in the same year that FTX imploded with such resounding embarrassment. And yet they nominated this individual with the conflicts associated with it. So from the board level, from the bank level, it’s it’s a it’s an impenetrable, unfortunately, organization. It doesn’t have to be that way. It does not have to be that way. It is, at the end of the day, we have to remind ourselves, that it is an instrument of the government.

Peter Renton  19:40

Right.

Cornelius Hurley  19:40

There’s only, I mean why aren’t board meetings open to the public, for example? Why aren’t loans that are made to members disclosed at the time that they’re made, rather than after Silicon Valley fails or First Republic fails? Then everybody finds out and says, Oh my god, How did that happen? If simple disclosure were the rule of the road, market forces would have their own way of resolving these things. You wouldn’t need the FDIC. You could have known, we could have known, the marketplace could have known, a year ahead, that Silicon Valley was in an extreme condition, just by virtue of the fact that it was borrowing $15 billion from the Federal Home Loan Bank of San Francisco. Ditto for First Republic, ditto for Signature.

Peter Renton  20:37

Okay, so I want to talk about the the mission of the Federal Home Loan Banks. And you know, you talked about it was really just part of a housing crisis of the Great Depression. It seems to not be that anymore, it’s a liquidity provider to large banks it seems a, you know, sort of a bank of last resort. But it certainly has, as you’ve just mentioned, made a number of loans to banks that were in trouble. When and how did that mission change? I mean, I’ve seen some of your your emails that say that they don’t even, when you ask what their mission is, don’t even talk about housing and community development, they talk about liquidity. And so how did that change?

Cornelius Hurley  21:17

I think it evolved over time, I mentioned the commercial banks taking over as the largest group of members starting in 1989, but continuing until this day. I mentioned securitization. You know, gradually the system became really more irrelevant to housing. But it became very meaningful to the members who saw it as an access to cheap funding. So the members took it over, they were fortunate to have a number of very complicit regulators over the years. The same regulator, as we’ve talked of the Home Loan Banks, regulates Fannie and Freddie. And in the scheme of things, the Home Loan Banks were very happy to fly under the radar. They were getting access to subsidized funds. Nobody was asking them to do more than the 10%. And the 10% is ludicrously small, 10% of net income for housing, for affordable housing. And then you combine all of that with an insular culture as we discussed a moment ago, and it’s not surprising that it lost its mission. The mission has always been, yes, liquidity, sure, but liquidity for a purpose.

Peter Renton  22:47

Right.

Cornelius Hurley  22:48

And the purpose is housing and community development. Make no mistake about that. But as you say, the Home Loan Bank lobbyists and representatives will say no, it’s all about liquidity. And hopefully some of that liquidity will trickle down into communities in the form of loans. But that’s not the way it was set up to work.

Peter Renton  23:10

Right. Right. I want to be clear, because when banks have a place they can go to for liquidity, it’s the Federal Reserve. Why do banks go to the Federal Home Loan Banks instead of the Fed when they need liquidity?

Cornelius Hurley  23:25

Because it’s easy. Because you go to a Home Loan Bank, and basically you put in an order, right? It’s not called an order, but you’re basically borrowing whatever you want. You go to the Fed discount window, and you apply. And some awkward questions can be asked, and oh, by the way, if you get the loan from the Federal Reserve Bank, there’s a certain they call it taint that goes with that. But in the case of the Home Loan Banks, it’s no questions asked, and that’s why the regulator has proposed, and I believe will enact rules and guidance that will call an end to that nonsense. But this should not be an open-ended line of credit to every institution, regardless of its condition, a la Silicon, and regardless of its business model, a la Silvergate. Again it’s liquidity for a purpose, not liquidity to muscle out the Federal Reserve. The country does not need two lenders of last resort, I don’t know of any other country that has them. And certainly we don’t need two lenders of last resort where one is being gamed against the other. So what the regulator has proposed, and will carry out, I’m confident, is that there be in place standing agreements between each Home Loan Bank and each Federal Reserve Bank in that district. So that we don’t get into a Silicon Valley situation again, where the two regulators are tripping all over themselves trying to transfer collateral.

Peter Renton  25:20

Right. What’s the funding mechanism here for the Federal Home Loan Banks? I mean, I presume they have taxpayer subsidies of some kind. What can you tell us about that?

Cornelius Hurley  25:30

So there’s something within the Home Loan Bank system called the Office of Finance. It’s not the regulator, it really acts as the fiscal agent for the Home Loan Bank, similar to the way the Fed acts as a fiscal agent for the Treasury. And it issues consolidated obligations on behalf of the 11 banks, and they are perceived in the marketplace to have the implicit guarantee of the taxpayer behind them. And that is the essence, not the totality, but is it is the essence of their subsidy. Because they can say that the federal government stands behind them, even if only implicitly, then they borrow at virtually the same rate, as the federal government does, plus a few basis points, right, that’s heavily subsidized. Studies have been done of that, over the years, including my own, that measure the amount of that subsidy, I come up with a number of $6 billion. The Congressional Budget Office came up with a number of $3.2 billion. I hasten to add that the CBO study was 20 years ago, okay. And it was before the conservatorships of Fannie and Freddie, where the implicit guarantee was made virtually explicit. So I’m willing to wager that when and if the CBO renews its research, they will be way ahead of my estimate. Now again, that’s just the subsidized debt. They are also tax exempt. At the state level, at the federal level, the banks are tax exempt. And the interest on the debt that they issue is tax exempt. The value of that, again, according to CBO, is approximately $1.5 billion a year. So we’re talking about serious, serious money. And I’m not even getting including in that number, what I referred to earlier, which is the loss of income that you and I experience, because we can’t get a reasonable rate of return from our bank. Because the bank is borrowing instead from the Home Loan Bank, which we subsidize. So a there’s a double insult going on here.

Peter Renton  28:16

Okay, so let’s talk about reform. Because you, it was just a few weeks ago now, the the report came out, I think you said it was like a year long study. What reforms have been put on the table from this report?

Cornelius Hurley  28:30

Well, there’s a lot, it’s a 117 page report. I don’t know there are scores of recommendations. Probably the most significant ones are to reconcile what you and I were just talking about a moment ago, namely the mission. The mission is not liquidity, stand alone. The mission is and always has been, and will be forever, liquidity to promote housing and community development. That’s the first issue that they will lead with. And the report also addresses this lack of any underwriting discipline in lending to institutions troubled or untroubled. The report also recommends that this 10% affordable housing assessment be increased to 20%. And I might add that Sandra Thompson gave a talk last week, maybe a month ago, where she indicated that the doubling of the affordable housing assessment could could easily be accomplished by the Home Loan Banks. And she emphasized easily several times in her remarks, to me that that was a loud signal that the 20%, which would have to be enacted by Congress, probably should be closer to 30 or 40%. Again, again, going back as I said earlier, at one time it was is 10% plus a 20% assessment to retire the REFCORP debt? So Sandra Thompson is right, they could easily handle 30%. And why not? It’s a public-private partnership after all. And if the banks are going to take 70%, and only give 30% back to affordable housing into communities, even that doesn’t seem like a very bad deal for the banks.

Peter Renton  30:25

Right.

Cornelius Hurley  30:26

I were the head of the American Bankers Association, I’d take it and run with it.

Peter Renton  30:32

And really, it’s so necessary now. Cuz I mean, it’s like, we’re not in the Great Depression, obviously, but the housing market is in dire need of more affordable housing. There’s a lot of people that simply can’t afford to buy a house anymore.

Cornelius Hurley  30:46

But can we just stipulate to that? And I would love to hear the Home Loan Bank pushback against that proposition. It’s just a fact.

Peter Renton  30:59

So maybe we can talk about what comes next, as we close. And what reforms do you think will be implemented? What would you like to see implemented that maybe has less of a chance? I mean, what’s next?

Cornelius Hurley  31:15

As I mentioned, mission is going to be decided, and the Home Loan Banks and the lobbyists are going to be hard pressed to resist that notion. That would be a, even if they won it in court, it would be a Pyrrhic victory at best, because it would lead to eventually bad consequences. But for your audience, I think what I’d like to suggest here is some things from the report that might not be evident to every fintech entrepreneur or practitioner. So for example, one of the proposals is that in order to borrow from the Home Loan Bank, you have to maintain 10% of your assets in mortgage related instruments.  Seems very reasonable, except when you consider that a large number of the members of Home Loan Banks are insurance companies that have no direct mortgage exposure, they might have some agency securities, but they have no mortgage, no mortgage exposure. And many of the commercial banks long ago exited the housing mortgage market. So they don’t have that on their balance sheets. So many of the members are going to be faced with a day of reckoning, do we give up a Home Loan Bank membership, or we do we scramble to dress up our balance sheet so that we can meet these new criteria? And I think that’s where the members of your audience could play a very important role, both in finding new customers, for these institutions in qualifying them for loans, and underwriting the loans, in servicing the loans. I think there’s a significant role to play there. When you boil it all down. Yes, it would be nice for a fintech to be a member of a Home Loan Bank, which it cannot be today unless it happens to be an insured depository institution, or an insurance company. That is not, it’s in the law, but it is not an inviolable principle. And the reason I say that is that from a risk perspective, there are three levels of risk that a Home Loan Bank faces. One level is the member bank itself borrowing. That’s first line, the second is the collateral. All loans are collateralized in some way, either by mortgages or government securities. And then the third level is this FDIC, serving as the backstop for any losses. Right? I think you could make a case credibly to the regulator that as long as the collateral is good, and as long as you are a safe and sound institution, you ought to be admitted to membership. Now it’s it’s a big mountain to climb, no doubt about it, because you were talking about statutory reform here. And the mortgage bankers would would love to climb that mountain, and haven’t been able to do so. But I think that’s indicative of another way of looking at this. The other is, you know, we talk a lot about banking as a service. And we’re all familiar with the Madden rule and how that conundrum worked out. Well, if you look at the fintechs as being a gateway to a bank, that if it wants to be a member of the Home Loan Bank, has to be in the mortgage business somehow, the fintechs could play that very dynamic role, I believe. And I think that’s a legitimate way of looking at some of these proposals. Don’t get me wrong, the regulator, Sandra Thompson, is no pushover. Safety and soundness are words that trip out of her mouth frequently by virtue of her having spent 23 years at the FDIC, but at the same time, I think she is pragmatic. And I think that she knows that this huge institution could do a bit more in terms of public benefits, and she’s willing to exercise whatever authority she does have to make sure that it has a more positive impact on our communities.

Peter Renton  36:04

Okay, Con. Well we’re out of time, we’ll have to leave it there. Really appreciate you coming on today and explaining this fairly complicated system to us, so much appreciated.

Cornelius Hurley  36:15

Peter, I’m delighted to be with you and look forward to seeing you again.

Cornelius Hurley  36:16

At one of your events or our events.

Peter Renton  36:19

Yes.

Peter Renton  36:21

Indeed.

Peter Renton  36:24 Well, I hope you enjoyed the show. Thank you so much for listening. Please go ahead and give the show a review on the podcast platform of your choice and go tell your friends and colleagues about it. Anyway, on that note, I will sign off. I very much appreciate you listening, and I’ll catch you next time. Bye.

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