Backdoor Bailouts: The Federal Reserve’s New Role as Market-Maker-of-All-Resorts and the Need for Section 13(3) Reform

This Article sheds light on the Federal Reserve’s actions during the COVID-19 financial crisis and its subsequent lack of accountability to the public. Congress reformed Section 13(3) in the Dodd-Frank Act, restricting emergency fund lending to broad-based eligibility programs. Such broad-based eligibility programs became relevant during the COVID-19 financial crisis. On March 23, 2020, the Federal Reserve declared unlimited quantitative easing and two unique corporate credit facilities designed to purchase private credit on the open market. The Federal Reserve now holds the corporate credit of Berkshire Hathaway, Apple, Walmart, and other big businesses as a consequence of Dodd-Frank’s changes to Section 13(3). Currently, the Federal Reserve is acting as a market-maker-of-all-resorts rather than its rightful role of lender-of-last-resort and will continue to do so until Congress intervenes. This Article examines Dodd Frank’s failure to reform Section 13(3) and the Federal Reserve’s resulting inequitable support of publicly traded companies. It also proposes Section 13(3) remedies for Congress to pursue. Particularly, this Article suggests that Congress legislate automatic stabilizer metrics within which the Federal Reserve could operate, explicitly forbid the Federal Reserve from directly purchasing private credit, and end the broad based eligibility program requirement to ensure that the Federal Reserve abandon its ad hoc role as market-maker-of-all-resorts.