Regulation


2
Mar 10

Goldman and the Winner Take All Society

Finally, Goldman Sachs has gone too far.  In A Reputation as Good as Goldman?  Part I, we discussed Goldman’s selling of mortgage backed securities, and its role in the current Greek budget crisis.  These activities clearly contributed to its self-inflicted reputational damage.

Perhaps the hubris went further.   Does Goldman believe that its status as a favored Federal Reserve “too big to fail” firm will insulate it from government investigation? Last week Ben Bernanke put a dent in Goldman’s Teflon shield:

Ben S. Bernanke, the Federal Reserve chairman, told Congress Thursday that the Fed was ‘looking into a number of questions relating to Goldman Sachs and other companies and their derivatives arrangements with Greece.’

Mr. Bernanke said the Securities and Exchange Commission was also concerned about how derivatives — financial instruments that are largely unregulated and do not trade on public exchanges — have contributed to Greece’s problems. ‘Obviously, using these instruments in a way that intentionally destabilizes a company or a country is counterproductive,’ he said. See In Greece’s Crisis, Fed Studies Wall St.’s Activities.

In Is Goldman Finally About to Be Leashed and Collared? Yves Smith observes and analyzes Goldman’s corporate culture.  As a former employee, she reports on colleagues’ piggish and overly aggressive behavior. But in an otherwise excellent post, I believe she overlooks the role of current compensation systems.

Pay Practices and Reputation

In previously discussing the banking crisis, we pointed out a fundamental principal: you get what you incent.

Banks were interested in generating upfront fees. Incentives were predicated on “making the deal.”  The best way to make a deal was to ignore the creditworthiness of the borrower.  The banker who made the bad loan suffered no personal financial penalty.  There was no “skin in the game.” Why not write as many loans to poor credits as possible? See Hard Truths from the Banking Crisis.

The Goldman culture incents a “winner take all” mentality.  Since it is a public corporation rather than a partnership everyone is an employee.    A highly mobile employee rather than an owner is far less concerned about the firm’s long term reputation.  That employee wants to maximize current compensation; worrying about future consequences is for suckers.  Drawing on this paradigm, we are not shocked by headlines excoriating the firm for trading against its clients’ interests, shorting the municipal bonds it helped underwrite, skirting EU rules, or tanking the housing market.

Goldman operates in a larger Wall Street and indeed general culture that encourages greed at the expense of overall civic good:

  • Successful hedge funds report individual earnings in the hundreds of million dollars per employee.
  • Loyalty is dead.  Employees change firms. Highly paid athletes change teams without a second thought.
  • The media treats great wealth as reason for great celebrity.
  • Compensation validates individual worth.
  • Government backstops losses and allows gains to remain private.
  • The zeitgeist promotes: “I better grab as much as I can now before the economy implodes.”

Does It Have To Be This Way?

Any alert Board of Directors should be asking some difficult questions.  Why aren’t we concerned about the long-term firm reputation?  What do we want the corporate culture to be? Just because we can legally do a transaction should we be doing it?  How do we blend partnership-based personal accountability with a public corporation structure?   How do we get employees to care about the long-term view?  How do we meet the competitive threat of hedge funds and private equity without damaging corporate reputation? How does our compensation system comport with these concerns?

Yves Smith noted that it was as dangerous for anyone to get in the way of a Goldman employee and a profit making opportunity as it was to get between a predatory animal and its kill.  Goldman has managed to get itself between a very worried Obama Administration and a very angry public.  How ironic if the Goldman predatory lion becomes the Administration sacrificial lamb.

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18
Feb 10

A Reputation as Good as Goldman? Part I

Part I of II in a series. Part II here.

“It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.”

Warren Buffett

Arguably the greatest living investor, Warren Buffet, clearly valued a person’s or an organization’s reputation.   In 2008 Buffet was the “white knight” investor for a struggling Goldman Sachs, investing $5b in the firm.  A mentor of mine had wise complementary counsel to Buffet’s:  when providing legal advice, be sure that you would be comfortable if that advice were to appear in a New York Times, Washington Post or Wall Street Journal front page article.

We live in  an age of greed, and indeed supreme irony.   Perhaps Mr. Buffet never shared his wise advice with the senior management of Goldman Sachs.  Worse, maybe he did and they ignored him.  In any event, how has Goldman’s reputation fared?  Let’s examine three separate front page New York Times articles.

Banks Bundled Bad Debt, Bet Against It And Won (NY Times, December 24, 2009)

Goldman Sachs sold mortgage-backed debt securities to pension funds and insurance companies. To hedge their position and to profit from a decline in the housing market, Goldman created a synthetic derivative security called Abacus. This second security was a direct bet against the position of their institutional clients. The mortgage-backed debt securities sold to the institutional clients performed poorly, with losses in the billions. Some of the original securities were of such poor quality that losses occurred within months of issue. Goldman created these synthetic securities well in excess of any hedging needs, permitting it to profit handsomely at the expense of its institutional clients.  The obvious ethical problem was succinctly stated:

“The simultaneous selling of securities to customers and shorting them because they believed they were going to default is the most cynical use of credit information that I have ever seen,” said Sylvain R. Raynes, an expert in structured finance at R & R Consulting in New York. “When you buy protection against an event that you have a hand in causing, you are buying fire insurance on someone else’s house and then committing arson.”

The SEC and other governmental agencies are investigating Goldman and other firms to determine whether or not they violated “fair dealing” rules.

Testy Conflict with Goldman Helped Push A.I.G. to Edge (NY Times, February 7, 2010)

AIG insured some of Goldman’s complex mortgage securities.  When the housing crisis deepened, AIG paid Goldman $2b to cover potential losses. AIG later asserted that Goldman had inflated the potential losses and sought monies back. Goldman countered that it was due even more money.  The SEC is now looking into whether or not Goldman’s demands for loss coverage depressed the mortgage market and hastened AIG’s demise.

In another supreme irony, after the government took over AIG, Goldman received an additional $12.9b from taxpayers, one hundred percent of expected losses.

Wall St. Helped to Mask Debt Fueling Europe’s Crisis (NY Times, February 14, 2010)

Goldman’s questionable financial maneuvers were not confined to the United States.

As worries over Greece rattle world markets, records and interviews show that with Wall Street’s help, the nation engaged in a decade-long effort to skirt European debt limits. One deal created by Goldman Sachs helped obscure billions in debt from the budget overseers in Brussels.

Even as the crisis was nearing the flashpoint, banks were searching for ways to help Greece forestall the day of reckoning. In early November — three months before Athens became the epicenter of global financial anxiety — a team from Goldman Sachs arrived in the ancient city with a very modern proposition for a government struggling to pay its bills, according to two people who were briefed on the meeting.

The bankers, led by Goldman’s president, Gary D. Cohn, held out a financing instrument that would have pushed debt from Greece’s health care system far into the future, much as when strapped homeowners take out second mortgages to pay off their credit cards.

European authorities are looking into the role of Goldman and others in skirting EU rules.

Is There Another Way?

Has the American public been lulled into believing that this is an acceptable way of doing business, or do we require the people involved to be publicly excoriated, tried, convicted and jailed before we acknowledge their tactics were shabby?  Is Goldman Sachs an institution now synonymous with crafty machinations and greedy outcomes? Are its tactics symptomatic of a Wall Street “disease?”  Is there an alternative way of doing things?  Does reputation matter?  Part II will examine these issues and possibilities.

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9
Feb 10

Ask Your Congressional Representative to Do Nothing

Every 12-step program has an initial confession, a moment of recognition.  Here’s one: I am a lawyer and I do not know the law.  I have practiced law for more than 35 years, fulfilled continuing legal education requirements and kept up with the daily reporters.  Yet I do not know the law and would venture there is no lawyer who completely knows the law.  Shocking!

Why No One Knows the Law

The law has made itself unknowable.  How did we get to such a place?  There are 50 titles in the United States Code, the official compilation of federal law.  Each title has coordinate regulations compiled in the Code of Federal Regulations.  The tax laws are in Title 26:

If you go to the US Government Printing Office (www.gpo.gov ), you can order a complete set of Title 26 of the US Code of Federal Regulations (that’s the part written by the IRS), all twenty volumes of it, at the bargain price of $974, shipping included.

According to the US Government Printing Office, it’s 13,458 pages in total. The full text of Title 26 of the United States Code (the part written by Congress–available for an additional $179) is a mere 3,387 printed pages, bringing the adjusted gross page count to 16,845. [Statistics as of 2006].

Remember this is one title among 49 others.

An attorney can master small sections or even subsections of the law, but never all the law. Since we live in a federal system, such an aspiring attorney would have to master not only federal law, but also state statutes and regulations.

From day one of law school, a basic principle is hammered home: ignorance of the law is not a defense to a criminal offense.  Thus, we live with the ultimate paradox:  the least schooled of our citizens are charged with complete knowledge of the law, a task that is unattainable even by the most skilled legal practitioners.

Where Laws Come From

Laws emanate from the talented quills of our elected representatives.  Taft and Hartley (labor laws), Sarbanes and Oxley (corporate governance), Glass and Steagall (banking), Smoot and Hawley (tariffs) were all elected representatives.  Congressional representatives demonstrate their worth by identifying a societal wrong that cries for redress. Then they form a coalition to pass legislation.  Often campaign contributions from interested parties find their way to the sponsoring legislator. Immortality awaits these legislators.

Once a law is passed, administrative agencies create regulations to interpret.   Regulations can run many times the length of the law.  Moreover, they have the force of law and in some instances carry criminal penalties for an infraction.

Laws Have a Cost

A law is a hidden tax.  When passed, the simplest of laws require legal analysis, interpretive regulations and a compliance program.  These functions are performed by highly paid professionals. Following the momentary drama and satisfaction of bill passage, these long term costs begin.  Newly passed laws may conflict with existing laws, leading to uncertainty and then an inevitable clarifying court challenge.  Ultimately, these costs are passed along to the consuming citizenry.

What to Do

A modest proposal: we should elect Congressional representatives who promise NOT to pass laws.  Even better would be elected representatives who promise to repeal the most harmful ones.

More seriously, we need   to overhaul and simplify our legal codes.  Society needs basic safeguards, but we have far exceeded that standard. Every problem in society does not require the passage of a law.  Perhaps what we really need is greater trust and a renewed sense of shared responsibility and sacrifice.   Then we would need fewer laws.

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2
Feb 10

Timothy Geithner and Plausible Deniability

Congressional hearings often make wonderful theater.  Last week at the House Oversight and Government Reform Committee, the American public heard testimony from Timothy Geithner, former head of the Federal Reserve Bank of New York and now US Treasury Secretary and Henry Paulson, former US Treasury Secretary.  Both men’s testimony relied on one premise: if we did not bail out AIG and pay its counterparties 100 cents on the dollar, the financial world as we know it would have ended,  i.e., the US would have plunged into a second Great Depression.  By written statement, Fed Reserve chair Ben Bernanke informed the Committee of his full support for this decision.  In person, Henry Paulson agreed.  However, both men said they had nothing to do with the decision.  Further, Mr. Geithner testified that he had relied on his staff or details of the bailout.  And even further than that, he later distanced himself from the decision whether nor not to disclose the details of the bailout. America was treated to the concept of “plausible deniability.”

Plausible Deniability

Working in a corporation one gets a firsthand look at the concept of “plausible deniability.”  Plausible deniability works something like this: a crisis starts; an important decision must be made; a senior executive is charged with making a decision; the senior executive delegates much of the preparatory work to  staff or a trusted lieutenant; the staff or trusted lieutenant ultimately makes a recommendation which later becomes “The Decision. “  If or when something goes wrong in the future, the senior executive denies involvement and places the blame on the staff or the trusted lieutenant.  Almost every time, the superiors of the senior executive accept this scenario.  The senior executive survives.

Let’s Get Real

Harry Truman said “the buck stops here,” meaning that the most senior executive has ultimate responsibility for a decision.  Perhaps with President Clinton or at some time it became fashionable for the senior person to distance himself from the decision so that he would have plausible deniability.  Further, it was expected that subordinates would “throw themselves on their swords” to preserve their boss.

It stretches credulity that the three most senior financial executives in government, The Chairman of the Federal Reserve, the President of the New York Federal Reserve and the Treasury Secretary did not know the intimate details of the AIG bailout.  At stake at the time was $62b of taxpayer money to effect this phase of the bailout.  All three men agree that if the bailout did not take place financial Armageddon would have ensued.

More is expected of our public servants. We appointed these individuals because of their unique skills, judgment and character. Apparently, these individuals were unavailable in the AIG crisis to make critical decisions.  Based on these stated actions, I deplore the confirmation of Ben Bernanke.  Moreover, I would ask for the resignation of Timothy Geithner.

It is time that high level government officials took responsibility and become the watchdog of the public purse. Trying to blame subordinates should elicit the response from the public: “that dog won’t hunt!”

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1
Dec 09

Uncomfortable Questions

By nature Americans are optimistic people.  But, optimism should not be an excuse to suspend critical thinking.  There are uncomfortable questions which should be asked:

To Congress:

  1. Is this financial crisis different from past recessions?
  2. If this crisis is different why are we continuing to employ the same failed policies of the past?
  3. Ben Bernanke and Tim Geithner were in positions of responsibility at the inception of the financial crisis. Why should they continue in their positions?
  4. If easy monetary policies have gotten us into past financial trouble, why will easier monetary policies not cause further financial trouble?
  5. How is a jobless recovery a genuine recovery?
  6. After passing the TARP and a stimulus program, have Americans received value for money spent?

To the Federal Reserve Chairman:

  1. You have been a student of the Great Depression; explain how and why current circumstances differ from the 1929 Depression?
  2. Your zero interest rate policy created the housing bubble and much of the current financial crisis.  Why continue this zero interest rate policy and cause further financial damage?
  3. Under what authority did the Federal Reserve have the right to purchase mortgages, equity stakes in private entities?
  4. If you believe a recovery is in progress, why are you not removing government guarantees and selling the mortgage backed securities the Federal Reserve purchased?
  5. Isn’t a zero interest rate policy antithetical to a strong dollar?  And might not a weak dollar actually hurt the US economic recovery?
  6. Won’t a zero interest rate policy lead to dangerous speculative excess and misallocation of capital?
  7. Given the scope and nature of guarantees and expansion in the Fed balance sheet with securities of dubious quality, what is the chance of a US default on its debt?
  8. Did the Federal Reserve buy private mortgage backed securities at face value? If so, why?
  9. Why are you afraid of an audit of the Fed’s balance sheet?

To the Executive Branch and Treasury Secretary:

  1. Given the massive amount of public and private debt (almost 400% of GDP) should government policy be encouraging businesses and individuals to go further into debt to spur a recovery?
  2. Why are record bonuses being paid to Wall Street executives when these entities caused the financial crisis and needed public support to avoid bankruptcy?
  3. Has China directly threatened the Administration with boycotting the purchase of US debt?
  4. With meager internal savings and the potential for a threatened foreign boycott of US debt purchases, how does the Administration intend to fund the rapidly growing federal deficit?
  5. How many banks are actually insolvent?
  6. Why have we not promptly closed problem banks?
  7. Is the FDIC insolvent?
  8. How much more public money will be required to continue to fund the losses at Fannie and Freddie?
  9. Is massive federal assistance to select private companies like GE, American Express or AIG constitutional?
  10. With ever growing deficits, why is the Administration proposing costly health care proposals and expanded troop levels in Afghanistan?
  11. Is the government secretly intervening in the public debt and equity markets?  If so, why?
  12. You have current regulatory power to reform the financial system. Why are you not:

a. Forbidding the creation and trading of private, customized credit derivatives?

b.Imposing windfall profit taxes on Wall Street that received any form of federal assistance?

c. Breaking up the “too big to fail banks?”

    General Questions for Economists:

    1. How is the constant tampering with interest rates and providing taxpayer supported financial guarantees consistent with capitalism?
    2. How does a zero interest rate policy affect pension funds and the elderly population living on a fixed income?
    3. Why is the market incapable of determining an appropriate level of interest rates?
    4. Does our level of national income support our current projected debt levels?
    5. Does FDIC insurance lead to reckless lending?
    6. What is the long-term effect of government meddling in supposedly free capital markets?
    7. Many of you did not predict the last financial crisis. What did you learn which would help you predict the next crisis?

    To the Judiciary:

    1. Has the US Constitution been violated in favoring select private entities with public support, backdoor “make whole” schemes at the expense of competitors and at the expense of taxpayers?
    2. What theory of preemption permitted the Treasury and the Federal Reserve to effectively take over AIG when insurance companies are state regulated enterprises?

    Conclusion

    We are in uncharted waters.  When a real estate enterprise in Dubai dominates the financial headlines and shakes the world financial markets we are far from putting the financial crisis behind us.  Right now, I think we are in the “extend and pretend” phase of the crisis, wherein markets and government collectively believe that ignoring current problems will permit the economy to heal over time.  That is Plan A.

    The real question looms in front of us:  What is Plan B, if all government efforts fail?

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    18
    Oct 09

    Why do all Irrational Structures Fail?

    In May 1989 my wife took me to London for my birthday. She picked out a charming, trendy hotel in Knightsbridge with each room decorated by Laura Ashley.  We had lived in London before and May weather was usually pretty chilly.  But that year, London had a 90 degree heat wave which we dodged by watching a lot of CNN International in our room.  If our top floor un-air conditioned room was not hot enough, the live reporting from Tiananmen Square in Beijing was sizzling.  Thousands of miles away in London, I had a front row seat to the end of Chinese Communism, that is, the type of authoritarian, anti free market capitalism that had been demonized in American academic curricula since the 1950’s.

    At that moment it occurred to me that this was not only the end of Chinese communism, but of the Soviet Union and eastern bloc communism as well.  Communism is an irrational political system running counter to human nature. Humans want to better themselves, to own private property, to freely communicate and to choose their leaders.  On the other hand, communism thrived on state control of information.  Think Pravda and the KGB in their heyday. Introduce satellite communications, high speed data lines, CNN, the World Wide Web and cheap computers and you have a breakdown of a communist government’s centralized monopoly on that control.  I did not expect this dynamic to play out so soon, but by November of 1989 the Berlin Wall had fallen.  By December 25, 1989, Leonard Bernstein was in a reunited Berlin conducting Beethoven’s 9th Symphony celebrating the demise of the old, repressive order.  An irrational structure was overtaken by communication technology and the free flow of information.

    The United States has also created irrational structures.  Telephone regulation is an excellent example of a 20th century regulatory mentality trying to keep up with rapid technological innovation.  To encourage investment in the nascent telephone industry, the government granted the original AT&T a monopoly, wherein no one other than AT&T could connect a telecommunications device to their network.  Along came the 1968 Carterfone decision which permitted private telecom devices to be connected to that network.  The next major event:  MCI battled AT&T and won the right to provide competitive long distance services.  Regulation soon fell in the wake of rapid changes in semi conductor and microwave technology.

    Even now, with advances in fiber optic technology, the regulator has not stopped carving the market into local and long distance service with separate federal and state regulatory structures.  But by ignoring physics, government is waging a losing battle. Electrons do not particularly care where they are embedded: in a packet traveling over a cable network, a DSL line from a central switch, a high speed fiber optic line, wireless packets, Skype, X.25 packets or any of numerous communication modalities.  Any of the following companies is now a telecommunications provider: AT&T; Verizon; Comcast; EBay:  Cisco; Google; IBM and more.  Yet, government still intrudes in this market and decides that some of these modalities should be heavily or lightly regulated, or unregulated depending on whim, tradition or political expediency.  Eventually, if it does not change its regulatory stance, government will drive many of these companies out of business or retard technological progress.

    Let’s now think more broadly than one industry. There are other larger, irrational structures. One is government itself.  Every day competitive American businesses, restructure, exit unprofitable businesses and downsize.  Against a backdrop of ever rising taxes at all levels of government, an obvious question arises:  why isn’t there a public outcry to downsize and re-engineer government?  The political system has delayed deployment of labor saving technologies. In addition, the government could downsize some of its regulatory operations where they are unneeded. See Why Not Reengineer Government?

    Another irrational structure is the current worldwide financial system.  While we have permitted “winner take all capitalism” in bubble years,  the taxpayer pays for losses when the inevitable bust occurs.  Innovations such as high frequency trading, credit derivatives and the interrelated nature of worldwide markets has outstripped regulatory capacity to oversee, and has organically destabilized the system.  Perhaps a different government  response such as old fashioned “trust busting” could end the “too big to fail” misguided policy response.

    Finally, in a dramatic example, the US has a foreign policy of establishing  over 730 foreign bases against a back drop of a declining economy and burgeoning federal budget deficits. Why do we tolerate this irrational structure?  A large, “heavy iron” military force may no longer be effective against non state actors, armed with biological weapons or “back pack” nuclear weapons. We engender a backlash by stationing American troops on foreign soil.  This suggests a major reevaluation of policy.

    Perhaps there is no end in sight to the proliferation of irrational structures.  But technology and changing economic circumstances will inevitably lead to their demise.

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