If you don’t read anything else this Labor Day weekend, check out this Nassim Taleb/Mark Spitznagel op-ed on the impact of dubious government bailout of Wall Street and big banks over the past several years:
For the American economy – and for many other developed economies – the elephant in the room is the amount of money paid to bankers over the last five years. In the United States, the sum stands at an astounding $2.2 trillion. Extrapolating over the coming decade, the numbers would approach $5 trillion, . . . That $5 trillion dollars is not money invested in building roads, schools and other long-term projects, but is directly transferred from the American economy to the personal accounts of bank executives and employees.
Such transfers represent as cunning a tax on everyone else as one can imagine. It feels quite iniquitous that bankers, having helped cause today’s financial and economic troubles, are the only class that is not suffering from them – and in many cases are actually benefiting.
As I’ve been saying for years, it’s not rocket science.
First, the Wall Street Journal’s Holman Jenkins, Jr. notes that Bank of America’s declining value reflects that the federal government’s bailout of Wall Street during the financial crisis of 2008 has been of dubious merit:
Let’s revisit the theory of the bailout. The government holds a safety net under the financial system, preventing a worse panic, with consumers and business cutting back spending more radically, with more people losing jobs, with more houses going into foreclosure.
It made sense on paper and underlies claims today that the government has been a net profiter from its bailout activities.
But it becomes apparent that the 2008 crisis isn’t over. And our bailout strategy?
In one presumed lesson of the Great Depression, a splurge of deficit-financed spending is supposed to support the economy while consumers and businesses get over their shellshock. But as George Soros noted to Der Spiegel, the U.S. government in the 1930s wasn’t saddled with huge debt. Unless today’s deficit spending is visibly directed at projects with a positive return, he says, it just frightens the public that the government itself is going bankrupt.
Meanwhile, this Bradley Keoun and Phil Kuntz/Bloomberg article reports that the Federal Reserve loaned an astonishing $1.2 trillion to Wall Street during the 2008 crisis. Interestingly, that amount is roughly equal to the amount that U.S. homeowners currently own on 6.5 million delinquent and foreclosed mortgages.
The foregoing does not surprise regular readers of this blog. Efficient operation of markets depend in large part on the allocation of losses based on who took the risk of loss. Remove the consequences of that risk and the result is that the politically well-connected profit, not necessarily those who carefully assessed and hedged risk.
Remember, it’s not rocket science.
In early 2005, back when Eliot Spitzer was taking his first pot-shots at American International Group, Inc., I wrote this blog post explaining how even mighty AIG could suffer a fate similar to that of Enron Corporation.
Inasmuch as AIG had a net worth of about $80 billion at the time coming off a previous year of $11 billion in net income on almost $100 billion in revenues, no one (including me) thought there was much of a chance that what I was suggesting could happen to AIG would actually happen to the firm.
Less than four years later, AIG would have suffered the same fate as Enron but for a massive federal government bailout.
The lesson here is that if creditors trust the federal government, then the government’s credit standing will remain high regardless of what the New York analysts say. In reality, the market rates the government’s credit continuously each moment of every day. Just look at fluctuations in interest rates on government debt.
Quite simply, it’s mostly about trust.
As Washington dithers over whether the federal government should default on its debt obligations, it is helpful to remember that New York City faced the same problem a generation ago.
This Financial Times video provides an excellent overview of the background and implications of that financial crisis.
Meanwhile, Charles Gasparino explains why those who made faulty business decisions that led to a major U.S. banking crisis really shouldn’t be prosecuted for crimes.
Yet, Skilling continues to serve a 24-year prison sentence and endure the immense collateral damage of his fate.
On the other hand, Mozilo and Fuld deal with civil litigation and move on with life.
Neither Mozilo nor Fuld should be prosecuted for trying to save their companies. Any responsibility that they have for the demise of their companies can be allocated in the civil justice system among all the responsible parties.
But that Jeff Skilling remains in prison – particularly given the despicable way in which he was put there – remains a serious blot on the American criminal justice system.
A truly civil society would find a better way.
Larry Ribstein — the law professor who has done more than anyone in the blogosphere to decry the enormous financial and human cost of the federal government’s criminalization of business lottery over the past decade – highlights in this blog post Ninth Circuit Judge Alex Kozinski’s lucid concurrence in the Ninth Circuit’s reversal of the business fraud conviction of former Network Associates CFO, Prabhat Goyal:
This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. The defendant’s former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn’t prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. See Arthur Andersen LLP v.United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir. 2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. ¬ß 1001 creates risk of prosecutorial abuse).
This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction-including disenfranchisement, incarceration and even deportation-but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community . . . .”); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community . . . .”). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted.
Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit. But not everyone is so lucky. The government shouldn’t have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.
As Professor Ribstein has been saying for years, the problem with this policy is that the government is prosecuting agency costs, such as KPMG pushing the edge of the envelope on tax shelters or Andersen not using very good sense in carrying out its document retention policy.
There is a big difference between prosecuting agency costs and prosecuting clear-cut crimes, such as embezzlement. The difference relates primarily to the nature of the evidence involved, the relevance of contracts, and the subtleties of dividing responsibility between corporate actors.
Professor Ribstein has put it this way. Suppose somebody mugs you on the street. There is no question that is a crime.
However, what if the mugger asks you first if he can borrow your wallet, you loan it to him, and then he doesn’t give it back in time? What if the mugger asks your employee who’s running the store for you whether he can borrow some money, the employee allows it and then the mugger doesn’t pay it back? What if the "thief" is another employee who says the manager gave him the money as bonus compensation?
Who is liable in these situations turns on the contracts among the various parties. Proof depends on who said what to whom. Can we rely on what the witnesses say about this? What if the prosecutor tells the employee who’s minding the store that he’ll not face prosecution for conspiracy if he spills the beans on the other employee who says that the manager gave him bonus compensation?
Society needs to have appropriate punishment and accounting for clear-cut crimes. But in cases such as Enron or Lehman Brothers, the civil lawsuits — unlike the criminal prosecution – included all the people involved, including the directors who approved wrongful corporate conduct and accountants and lawyers who may have facilitated it. That is a much more rational and effective way in which to deal with agency costs than attempting to make them appear to be clear-cut crimes, which they simply are not.
Finally, criminal prosecutions over merely questionable business judgment obscure the true nature of risk and fuel the myth that investment loss results primarily from criminal misconduct. Taking business risk is what leads to valuable innovation and wealth creation. Throwing creative and productive business executives such as Michael Milken and Jeff Skilling in prison does nothing to educate investors about the true nature of risk and the importance of diversification.
The supposed payoff to criminal prosecutions of agency costs is deterrence. But some businesspeople will keep on pulling these shenanigans regardless of the prosecutions, while the legitimate risk-takers who create jobs and wealth for the community sorts will be the ones who are deterred.
I’m not suggesting that the Bernie Madoffs of the world should be encouraged. But the cases against businesspeople such as Milken, Skilling, Hank Greenberg, Jamie Olis, the NatWest Three and the Merrill Lynch bankers are fundamentally different than Madoff’s scam, and I am not comfortable that politically ambitious prosecutors can tell the difference. As Professor Ribstein notes in another article, “prosecutors turn up the fire [in mounting dubious business prosecutions] and then sell extinguishers.“
No, really. Get a load of this:
The unexpectedly deep plunge in home sales this summer is likely to force the Obama administration to choose between future homeowners and current ones, a predicament officials had been eager to avoid.
Over the last 18 months, the administration has rolled out just about every program it could think of to prop up the ailing housing market, using tax credits, mortgage modification programs, low interest rates, government-backed loans and other assistance intended to keep values up and delinquent borrowers out of foreclosure. The goal was to stabilize the market until a resurgent economy created new households that demanded places to live.
As the economy again sputters and potential buyers flee – July housing sales sank 26 percent from July 2009 – there is a growing sense of exhaustion with government intervention. Some economists and analysts are now urging a dose of shock therapy that would greatly shift the benefits to future homeowners: Let the housing market crash.
When prices are lower, these experts argue, buyers will pour in, creating the elusive stability the government has spent billions upon billions trying to achieve.
As regular readers of this blog know, the notion that housing markets need to allocate risk of loss before those markets can stabilize and recover is not rocket science.
In fact, the government’s dithering over the past two years in propping up these inflated housing markets has actually made the situation worse because it has postponed the transfer of misallocated resources in the housing markets to other markets.
Another day, another failed bailout. So it goes.