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Dr. Philip Fischer is Managing Director, Municipal Bond Research and Global Indices at Bank of America Merrill Lynch. His areas of expertise include fixed income, especially municipal bonds, focusing on economic and market analysis.

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INVESTING IN MUNICIPAL BONDS

McGraw-Hill Companies, Inc.

Contents

Chapter One

America is a country that was formed by putting together a number of pieces. As the states came together, they gave—often grudgingly—the central government the powers it needed in order to operate. Of course, a lot has changed since the republic was formed, but understanding the basic outline of how the municipal bond market was created will tell us a great deal about what it looks like now and where it's going. Unlike corporations, which are actually formed by states, the states themselves don't go away when times get tough. And neither do their bonds.

MONEY, MONEY

When they came to America, the colonists didn't bring banks with them—nor did they bring much money, for that matter. The metal needed to make silver and gold coins was especially hard to come by in the colonies. Necessity, though, is the mother of invention. On December 10, 1690, the colony of Massachusetts was financially broke and facing rebellion by its soldiers, who had been sent on an expedition against the French in Canada. The colony expected that it could use booty taken in the campaign to pay the troops. Unfortunately, things did not turn out well militarily, but the troops still needed to be paid. The General Assembly came to the rescue by authorizing the printing of paper money for the colonial treasury.

Good ideas are rarely wasted. New Hampshire, Rhode Island, Connecticut, New York, and New Jersey authorized the printing of paper money in 1711. South Carolina (1712), Pennsylvania (1723), Maryland (1734), Delaware (1739), Virginia (1755), and Georgia (1760) then followed suit.

Of course, things quickly went out of control as the colonies printed more and more paper money. A wide variety of colonial paper money existed, some bearing interest and some not. Some was legal tender or was legal tender only when paid to the colony. In some cases, the devaluation created from printing so much paper was quite severe. For example, Rhode Island's currency depreciated by 96 percent in just a few years as a result of excess printing.

The colonies also fought to protect the market for their currency by passing laws to prevent the circulation of the other colonies' paper within their borders. Finally, in 1774, the English largely banned the use of colonial paper. These lessons weren't lost on the framers of the U.S. Constitution. Congress is explicitly given the authority "to coin Money, regulate the Value thereof," and the states are expressly prohibited from having their own monetary system: "No State shall ... coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts."

With the signing of the Constitution, the large debts incurred by the states during the Revolutionary War were assumed by Congress: "All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation."

Yet while the states gave up their power to print money, they did not give up the ability to borrow money. It is this capacity to borrow that lies at the heart of the municipal bond market.

Bear in mind that it is the states, and only the states, that have the inherent right to borrow. States engage in borrowing for a myriad of purposes. In addition, however, the states can, and often do, grant their political and economic entities—counties, cities, authorities, special districts, and so on—the authority to issue debt under certain circumstances. The states frequently specify the maximum amount that their political subdivisions can borrow, the method of repayment, what the borrowed money can be used for (the use of proceeds), and a myriad of other details.

The Constitution has this to say about the states' use of their borrowing authority: "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

What constitutes "due process" changes with the context, but in general, the government can levy taxes or take property only for public purposes. (Public purposes is itself a term of art, and it can sometimes be broadly defined.) In addition, when property is taken, the owners must be fairly compensated.

Rights created by contract are a form of property and are subject to public taking, which means that a state is not forever bound by the terms of a bond contract. On the other hand, if the state acts to alter the contract to the disadvantage of the bondholder, it is obliged to fairly compensate the other party. However, if the state's actions don't harm the bondholder, or do so in only a minor way, the courts will be reluctant to intervene.

States are also constitutionally required to observe their contracts. The "contract clause" in the Constitution specifies that no state may pass a "Law impairing the Obligation of Contracts." Without this contract clause, bondholders would have to confront the general rule that one legislature cannot bind succeeding legislatures. This is logical; otherwise, we would still be living under Puritan laws from the seventeenth century. But when the legislature's intent is clearly to impair the value of an investor's rights, a court can force the state to observe its original agreement without regard to subsequent laws.

DEFAULTS ON OBLIGATIONS ARE NOT BANKRUPTCIES

States and local governments cannot simply ignore their debt obligations. Nevertheless, a lender to a state, like any lender, faces the possibility that the borrower could suffer financial difficulties and be unable to pay what is due on time. Defaults on municipal bonds are unusual but not unheard of. It is important to understand, though, that a default is not a bankruptcy.

Defaults occur when an agreement in the bond contract is not met. These failures to meet an agreement are divided roughly into monetary defaults, which are serious, and others, which are technical. A monetary default is the failure to make a payment on time. The payment can be an interest payment or a principal payment. Usually it has to be overdue by a fixed period of time, such as 30 days, to be considered a default, but any missed payment can immediately have very serious consequences.

A technical default is any nonmonetary default. These could include the failure to maintain the property built with the loan in an agreed-upon manner, the failure to keep reserve or other funds at a specified level, or the failure to submit reports to the lender within a fixed period of time.

The important thing is that a default can be cured or fixed. Usually the lender and the borrower work things out; if they do not, the parties will usually resort to a judicial procedure, such as appealing to a federal judge in bankruptcy to supervise the process of the lender and the borrowers' coming to terms.

STATE AND LOCAL GOVERNMENT BORROWING

Even at this early point in the book, it is important to note that state and local governments have, in general, been very responsible borrowers. Access to the capital markets is a key element of public policy. One of a government's more important jobs is to borrow...