Arpan Patel, CLS ’22
The ongoing pandemic has wrought devastation on American small and medium sized enterprises (SMEs). These businesses make up the critical “Main Street” segment of the American economy – they provide work for 45 million Americans and their workforce accounts for nearly 40% of private sector employees. Yet, in the three months ending in June 2020, 1.4 million SMEs either closed or suspended operations. The recession on Main Street impedes our ability to manage and recover from the pandemic.
In response, Congress directed the Board of Governors of the Federal Reserve (Fed) and U.S. Department of the Treasury (Treasury) to create a program to support SMEs in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Pursuant to this mandate, and under authority of section 13(3) of the Federal Reserve Act (FRA), the Fed and the Treasury created the Main Street Lending Program (MSLP or “Program”) to “[e]nsure credit flows to small and mid-sized businesses…who were in sound financial condition before the onset of the COVID-19 pandemic.” The Fed, through the MSLP, is authorized to purchase up to $600 billion in loans made to SMEs, with Treasury providing $75 billion in equity investment to absorb losses that accrue to the MSLP.
However, the MSLP has received only modest use since its inception, leading many to question its utility. As of September 22, 2020, banks in the Program had issued or initiated $2 billion of loans, which amounts to 0.3% of the total funds available to the MSLP. And as of August 10, 2020, only 160 out of the 522 banks in the program had publicized that they are accepting loan applications from new customers.
The MSLP’s nonuse is a function of practical, legal, and political deficiencies.
On a practical level, the overly restrictive terms for borrowers combine with the unattractive terms for lenders to discourage use by SMEs and banks alike. Many SMEs on the demand side of the Program are either explicitly shut out by the restrictive eligibly terms or are discouraged by the onerous borrowing terms. Similarly, the complexity increases the costs to the bank to originate MSLP loans in the first place, which spoils the Program’s appeal on the supply side.
On a legal level, section 13(3) of the FRA imposes restrictions on the Fed’s ability to administer the MSLP successfully. Notwithstanding Congressional attempts to navigate these legal restrictions in the CARES Act, the MSLP remains handicapped by at least four structural legal deficiencies. First, Congress attempted to satisfy the Fed’s loss protection requirement in subsection (B)(i) by mandating the first-loss investment by Treasury. However, Treasury Secretary Mnuchin has leveraged this equity stake to effectively increase the price and terms of the MSLP, which is a major driver of the Program’s nonuse. Second, Congress suspended sub silento the subsection (B)(i)’s requirement that lending be designed to provide liquidity to the financial system as a whole (as opposed to real economy borrowers like individual businesses) by implying that the Fed in fact does have that power: Section 4003(b) of the CARES Act authorizes Treasury to invest in “programs or facilities established by the Board . . . for the purpose of providing liquidity to the financial system that supports lending to eligible businesses, States, or municipalities…” Sub silento lawmaking comes with significant costs in terms of clarity, uncertainty, and accountability for agencies. Third, the inability of the Fed to lend to any individual counterparties under (B)(i) and (iii) means that any aid under section 13(3) must come as standardized product that has broad-based eligibility. To create a standardized product that is useful for hundreds of thousands of SMEs with unique borrower profiles is not, as Chairman Powell said, “practicable.” And fourth, the Fed is bound by its own Regulation A, which requires any 13(3) lending be done at a penalty rate at a premium to the market rate in normal circumstances. While the Fed has plenary authority to amend Regulation A, its continued effectiveness operates as a self-imposed restriction on the Fed’s ability to offer more attractive terms in the MSLP.
On a political level, the MSLP, its ineffective-by-design structure and the intertwining of Fed and Treasury, is pushing the Fed into legitimately concerning political territory. In the MSLP, Congress is asking the Fed to act in an industrial policy capacity (instead of its typical monetary policy capacity) by providing credit directly to the real economy. This is a role for which the Fed has neither the institutional nor operational capacity. Moreover, this new role opens up the Fed to political lobbying.  Indeed, multiple revisions to the terms MSLP has been the result of intense lobbying pressure from stakeholders across the spectrum.
Despite all this, the Fed continues to insist that the MSLP is effective. Fed officials excuse the nonuse by pointing to the fact that SMEs have made use of the Payroll Protection Program (which has now expired) or taken out loans from nonbank lenders. Further, Fed Chairman Jerome Powell said that if conditions get worse, the MSLP stands ready, as a “backstop.” But this means that, without amendments to the Program, a future downturn in the economy will force SMEs to either shut their doors or turn to the unwelcoming embrace of the MSLP. Before that day comes, the Fed, Treasury, and Congress must revisit the provision of SME pandemic aid if they hope to save Main Street.
 Nick Timiaraos & Kate Davidson, Fed, Treasury Disagreements Slowed Start of Main Street Lending Program,
Wall Street Journal (July 12, 2020), https://www.wsj.com/articles/fed-treasury-disagreementsslowed-start-of-mainstreet-lending-program-11594558800
 Gretchen Morganson et al., Misery on Main Street: COVID-19 takes a grim toll on America’s small businesses, NBC News (Sep. 23, 2020), https://www.nbcnews.com/business/economy/misery-main-street-covid-19-takes-grim-toll-america-s-n1239524
 CARES Act § 4003
 12 U.S.C. § 343(3)
 Press Release, Board of Gov. of the Fed. Res., Federal Reserve takes additional actions to provide up to $2.3 trillion in loans to support the economy (Apr. 9, 2020), https://www.federalreserve.gov/newsevents/pressreleases/monetary20200409a.htm
 Jeanna Smialek, A Coffee Chain Reveals Flaws in the Fed’s Plan to Save Main Street, N.Y. Times (Jul. 9, 2020), https://www.nytimes.com/2020/07/09/business/economy/federal-reserve-treasury-main-street.html
 Hybrid Hearing With Federal Reserve Chair Jerome H. Powell Before Select Subcomm. on the Coronavirus Crisis, 116th Cong. (September 23, 2020)
 Congressional Oversight Commission, The Fourth Report of the Congressional Oversight Commission, August 21, 2020, at 5, https://coc.senate.gov/sites/default/files/2020-08/COC%204th%20Report_08.21.2020%20with%20Appendix%208-27%20update.pdf
 Christopher Condon & Catarina Saravia, Banks Blame Tight Terms for Fed Main St Program’s Slow Start, Wash. Post (Sep. 29, 2020, 8:30 P.M.) https://www.washingtonpost.com/business/on-small-business/banks-blame-tight-terms-for-fed-main-st-programs-slow-start/2020/09/29/d7165f8a-027f-11eb-b92e-029676f9ebec_story.html; see also Laura Noonan et al., US Main Street virus era loans programme largely shunned, Financial Times (Jul. 1, 2020), https://www-ft-com.ezproxy.cul.columbia.edu/content/c09da6a2-39a9-4523-bd9a-1061e9865b66
 Howard Schneider, Fed’s Main Street lending may be missing core group of firms – survey, Reuters (Sep. 29, 2020, 2:50 PM) https://www.reuters.com/article/idUSKBN26K39M
 Under the subsection (A), before the Fed can purchase a loan in the MSLP, it must “obtain evidence that such participant . . . is unable to secure adequate credit accommodations from other banking institutions.” Subsection (B) imposes further obligations: (i) the Fed program must be designed to provide liquidity to the financial system as a whole, and the terms of the loans are sufficient to protect taxpayers from losses; (ii) the Fed must establish procedures to prohibit borrowing by insolvent counterparties; (iii) the program may not be designed to assist a single company; and (iv) the Fed must receive approval from the Secretary of the Treasury before authorizing lending under the provision. 12 U.S.C. § 343(3)
 Jeanna Smialek & Alan Rappeport, Fear of Risk Could Diminish the Economic Rescue by the Treasury and Fed, N.Y. Times (May 18, 2020), https://www.nytimes.com/2020/05/18/business/economy/economic-stimulus-treasury-fed-risk.html
 CARES Act § 4003.
 Lev Menand, Unappropriated Dollars: The Fed’s Ad Hoc Facilities and the Rules That Govern Them (Euro. Corp. Gov. Institute, Law Working Paper No. 518/2020, May 16, 2020), https://ssrn.com/abstract=3602740
 See supra note 9
 12 C.F.R. 201.4(d)(7); see also 84 Fed. Reg. 39723 (Aug. 12, 2019)
 David T. Zaring, The Government’s Economic Response to the COVID Crisis (July 28, 2020), https://ssrn.com/abstract=3662049; see also Chrstine A. Desan et al., The Constitution and the Fed after the COVID-19 Crisis (Univ. of Colo. Law Legal Studies, Paper No. 20-38, June 24, 2020), https://ssrn.com/abstract=3635059
 Menand, supra note 14
 See supra note 9
 William English & Nellie Liang, How to fix the Fed’s broken Main Street Lending Program, L.A. Times (Oct. 8, 2020) https://www.latimes.com/opinion/story/2020-10-08/op-ed-how-to-fix-main-street-lending-program