The agreements are called interest rate swaps, a holdover from the years leading up to 2008 when the booming market made even risky investments seem like a good idea. But in reality, these financing agreements with banks have come back to haunt governments following the financial markets crash and severe drop in interest rates. Last week, Chicago became the latest example when a credit rating downgrade by Moody’s Investors Service triggered a potential $58 million penalty for the fiscally beleaguered city.
Penalties related to ratings downgrades are common in swaps, says Municipal Market Analytics Partner Matt Fabian. But typically, the ratings floor is well below the government’s rating at the time of the deal.
“Remember, Chicago was super-downgraded back in 2013 -- that kind of rating action is almost never expected,” Fabian says. “This latest downgrade is a result of the city’s huge pension liability, the complete lack of momentum in coming up with any sort of solution and a shifting [emphasis] by Moody’s on outstanding liabilities.”
Still, Chicago is not alone. Dozens of cities and states across the country still have swaps deals on the books. These deals were meant to save taxpayer money but are in fact doing just the opposite.
In an interest rate swap, a government wants to alter debt it has sold that must be paid back with a varying interest rate that periodically resets, depending on the market. Buying that type of debt is appealing to investors, who believe that interest rates will grow and they will get a higher return on their investment. But governments need to plan out their budgets and it is difficult for budgeters to project debt payments that will vary versus payments that are based on a fixed interest rate. So, the government makes a deal on that debt with a bank: The bank agrees to pay out the investors at the variable interest rate and the government pays the bank a fixed rate that they negotiate. It’s a way for the government to hedge against skyrocketing interest rates.
These types of deals were very common in the early to mid-2000s, particularly among larger issuers like major cities, some states and public agencies like housing or airport authorities. Many thought that they were saving taxpayer money: that the interest rate they were paying banks was lower than if they sold that debt and paid out a fixed, market rate of return to investors. But swaps fell largely out of favor after interest rates plummeted -- and stayed rock-bottom-low. Governments found themselves stuck paying an interest rate far above the market while the banks pocketed the profits.
Some question the legality of such deals. The Roosevelt Institute’s Saqib Bhatti argued some cities could take legal actions against the banks to recoup some of their losses. Bhatti, director of the institute’s ReFund America Project that advocates for better Wall Street accountability, noted Chicago Public Schools is potentially leaving millions of dollars on the table with inaction. Last November the Chicago Tribune published a series that found banks knew the risky auction-rate bond market was in trouble during the summer of 2007, yet they turned around and sold the school district $263 million in auction-rate debt anyway.
“There’s been a number of organizations in the city calling for legal action to recover past payments on these swaps,” says Bhatti. “And thus far, the city has not pursued that option.”
All told, the Tribune estimated that Chicago’s school district issued $1 billion worth of auction-rate securities between 2003 and 2007, nearly all of it paired with interest rate swaps. The city of Chicago holds nearly $3 billion in debt tied up in swaps, an amount nearly equal to its operating budget. The city is likely renegotiating with banks to reset the terms of the four swaps tied to last week’s ratings downgrade instead of paying the $58 million termination fee, although the current administration has unwound some deals by paying tens of millions in fees. If the city wanted to terminate all of its swaps, it would cost north of $300 million, according to its most recent Comprehensive Annual Financial Report. The termination fee represents the amount the debt is underwater, similar to when a homeowner owes more on a house than it's worth.
Other governments have made some progress when it comes to avoiding swaps danger. Detroit owed a $288 million termination fee to swaps creditors in the summer of 2013 as a result of a credit downgrade. Banks tried to work out a deal with the city’s emergency manager to be paid ahead of other creditors at about 85 cents on the dollar (or roughly $230 million total). But the Detroit bankruptcy judge rejected that deal, hinting that the city had the option to sue the banks instead. The final termination fee was $85 million.
In 2011, the Asian Art Museum in San Francisco found itself on the brink of bankruptcy as it faced skyrocketing interest rates related to $150 million in variable rate debt. The city stepped in and managed to persuade JPMorgan and the bond insurer to make several concessions, including forgiving $21 million of the debt and restructuring the rest as a 30-year fixed-rate obligation.
Still, most governments can only get out of swaps the hard way: by paying the penalty. Orlando, Fla.’s expressway authority in 2012 paid a $55 million penalty to get out of a swaps deal on $242 million in debt. But the authority estimated its overall cost was actually $9 million, based on the savings it expected from refinancing that debt at a fixed -- and lower -- interest rate.
Pennsylvania has an outright swaps problem: Some municipalities that paid to get out of deals are entering them again, according to a recent Bloomberg News report. Back in 2009, Moody’s Investors Service declared the state’s municipal governments combined for more swaps deals than in any other state in the country. Some estimates pegged the total local and state debt tied up in the risky investments at more than $17 billion.
But Chicago appears to be among individual governments with the riskiest investments. A 2010 studyby the Service Employees International Union shows the city’s annual swap payments of about $60 million far exceed that of other cities (and many states). According to the city’s annual report, one of its swap agreements extends to 2042. And with the latest downgrade, its situation is precarious. If Chicago’s credit rating of Baa2 falls two more notches and into junk territory, it could trigger an additional $1.2 billion in fees and other penalties, according to Moody’s. And for a city that’s saddled with a $32 billion pension liability and currently facing a $300 million operating deficit, another downgrade is a prospect it can ill-afford.
“They keep saying they’re not Detroit,” says Fabian. “Well, stop getting downgraded.”
*A previous version of this story incorrectly stated that "most governments can only get swaps the hard way: by paying the penalty." It now reads "most governments can only get out of swaps the hard way: by paying the penalty."
