Sunday, July 27, 2014

Timothy Geithner: A Regulator Beholden to a Bank?

In her article in The New York Times, Gretchen Morgenson raises the possibility that Tim Geithner, president of the New York Federal Reserve from 2003 to early 2009 and U.S. Treasury Secretary during Obama’s first term, was a captured regulator, “a man locked into the mind-set of the very bankers he was supposed to oversee.”[1] I contend that while a shared mindset was part of the mix, he was actively doing the bidding of Wall Street, and one bank in particular, which he owed big time. That is to say, it is not just that he worked with Republicans such as Ben Bernanke, chairman of the Fed, and Henry Paulson, Bush’s Treasury Secretary. There is more to it in him being portrayed throughout his confirmation hearing for Treasury as “a tool of Wall Street.”[2]

The full essay is at "Geithner.

1. Gretchen Morgenson, “Geithner, Staying on Script,The New York Times, May 17, 2014.
2. Timothy Geithner, Stress Test (Random House: New York, 2014), p. 2.

Monday, July 21, 2014

GM’s CEO: Ridding GM of Its Dysfunctional Culture or Enabling It?

I suspect that we tend to vastly underestimate the amount of energy, or raw force, sufficient to rectify an organization’s dysfunctional culture. The typical assumption is that replacing the CEO is not only necessary, but also sufficient. “A fish rots from the head down,” one might say. However, the head of a fish cannot necessarily stop, not to mention reverse, an infection spreading somewhere in the body. A sordid mentality can easily spread once it has taken hold in an organizational body. Indeed, such a pathogen can develop defense mechanisms geared to the standard antibiotics. To rely on the body to heal itself involves considerable naiveté. Relying on GM’s CEO Mary Barra to exculpate the mentality behind the faulty ignition-switch lapse and ensuing cover-up is thus arguably based on a faulty assumption of sufficiency.

On July 17, 2014, U.S. Senator Claire McCaskill, chair of the Senate Subcommittee on Consumer Protection, Product Safety and Insurance, demanded of Barra, who was testifying before the committee, “How in the world did Michael Millikin keep his job?” Stating that Millikin should be fired, U.S. Senator Richard Blumenthal noted that lawyers on Millikin’s staff were involved in “cover-up, concealment, deceit and even fraud.”[1] In return, Barra defended GM’s top lawyer as having “high integrity.” Moreover, she said that Millikin is a key part of the legal department she wants at the company—the “new GM,” as she had previously described GM under her helm. Yet can having fired only 15 people for their roles in the faulty ignition-switch episode, which led to 13 deaths and a delayed recall of 2.6 million cars, possibly turn an “old” company into a new one? The assumption that the enabling of covering things up had been limited to the 15 people fired (with financial incentives to leave—hardly a message of deterrence) is as faulty as the problematic ignition-switch itself.

To take Barra’s opinion of Millikin as having high integrity as a given involves ignoring the possibility that Barra wanted both to present a picture of a “new GM” to the world and protect GM veteran employees—essentially having it both ways. Put another way, relying on Barra means ignoring her conflict of interest.

Taking into account Barra’s possible motives, McCaskill took a look at the support for Barra’s defense of her company’s top lawyer. Millikin had said that information lawyers in his department had in April of 2013 of the link between ignition-switch and airbag failures did not get to his desk; hence he did not know of the defective switches until February 2014. If this is true, the senator reasoned, then Millikin is guilty of either “gross negligence or gross incompetence.” Whether the head of GM’s legal department acted with integrity or not, his job description includes running his department. That Barra, a manager herself, somehow omitted this point is odd. To borrow a line from the film, Inglourious Basterds, the head of the American Nazi-hunters told a German informant, “Yeah, we got a word for that kind of odd in English; it’s called suspicious.” It was suspicious that the informant arranged a meeting place at a pub being frequented by Nazi officers.

In overlooking Millikin’s failure to keep abreast of important information reaching his subordinates, Barra was essentially protecting the “old GM” even as she was selling a “new GM” to the world. There’s a word for this; it’s called lying. Were she serious about removing the culture enabling unethical and incompetent management in the company, a wholesale replacement of personnel would be needed throughout the company. To be sure, such a mammoth effort would have to take place over some time, in stages (and without giving the old guard financial incentives to leave). “Crime does not pay” and “Incompetent management is not to be tolerated” would be the messages sent in word as well as deed, and this is what integrity is all about. Contrariwise, trying to have something both ways in line with a conflict of interest is just more of the “old GM.” Even though Barra came in after the ignition-switch cover-up, indications point to her having joined the old guard even as she gives lip-service to a new GM. 

The old will of course take care of the old, so a new spark must infuse considerable energy into a company gripped by the status quo as its default in order to move the entire entity to a new, higher orbit. That is to say, much ballast must be tossed over as the trust is engaged. We as a society tend to assume that the movement comes about from mere window-dressing by a CEO. We are naïve.

1. All quotes in this essay come from James Healey, “Senators Tell GM to Fire Top Attorney,” USA Today, July 18, 2014.

Tuesday, July 15, 2014

Wall Street’s Maker-Taker Rebate: An Inherent Conflict of Interest

On June 14, 2014, the U.S. Senate Investigations Committee held a hearing on “High-Speed Stock Transactions and Insider Trading.” The issue at hand concerned the payments that wholesale brokers and exchanges make to brokers for going through the brokers and exchanges, respectively. An academic study had found that the broker or exchange that pays the most is not typically the most efficient, and thus in the best interest of the investor. Essentially, the payments give rise to a conflict of interest for the retail broker, who is supposed to put the client’s financial interest first, before his or her own. Is greater disclosure, such as Sen. Levin suggested, sufficient? I contend that a conflict of interest that is inherently unethical warrants removal rather than countervailing measures.   

Investors assume that exchanges such as the New York Stock Exchange are not tilting the game-board. Empirical evidence indicates that this assumption does not hold up. (Image Source: Reuters)

The full essay is at Institutional Conflicts of Interest, available in print and as an ebook at Amazon.

Saturday, July 5, 2014

Can the Euroskeptic States Topple the E.U.?

Can we say that an E.U. state is Euroskeptic? If so, Britain would be a consistent candidate for the label. Yet what about when Tony Blair was the prime minister? Poland and the Czech Republic have also swung back and forth in line with the electoral winds within those states. If states are less fixed than typically thought with respect to being Euroskeptic, then what looks like intractable skepticism may in fact be more easily overcome at the state level. It follows that the E.U. itself has more chance than typically presumed to obviate its own decline and dissolution.

Did the residents of the Czech Republic suddenly become pro-Europe when a pro-integrationist party took power in the Castle, or are the labels more a function of partisan politics? 

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

Friday, July 4, 2014

Distrust of the E.U.: Prompting European Integration?

A Eurobarameter poll conducted by the European Commission between 10 May and 26 May, 2013 found that the number of Europeans who distrust the E.U. had doubled over the preceding six years to a record high of sixty percent from thirty-two percent.[1] The trust was lowest in the “bailed out” states of Greece and Cyprus. The people polled cited the five bailouts, record unemployment, and low economic growth as significant factors. In the state of Britain, 68% of the residents said they have little faith in the Union. Yet there is reason to be cautious in predicting the E.U.'s demise. In fact, closer European integration may actually result. 

The full essay is at "Essays on the E.U. Political Economy," available at Amazon. 

Hobby Lobby: On the Significance of the Case

For all the controversy stirred up by the case of Hobby Lobby v. Sibelius(2014) on whether an employer must comply with the mandate for contraceptives coverage in the Affordable Care Act, the significance of the decision handed down in a 5-4 majority opinion by the U.S. Supreme Court may be less than some commentators were predicting. 

As evangelical Christians of the Southern Baptist section, the Greens did not object to 16 of the 20 contraceptives mandated for employer coverage in the Affordable Care Act. Indeed, fundamentalist Christians “largely support the use of birth control by married couples.”[1] The Greens considered Plan B, Ella, and two intrauterine devices as tantamount to abortion, in that the means prevent a fertilized embryo from implanting in the womb.[2] Blocking implantation would “terminate life,” Green argued. “We won’t pay for any abortive products. We believe life begins at conception.”[3] Ending human life after that time, Green wrote in an open letter, is "something that is contrary to our most important beliefs."[4]

Arguably, a Hobby Lobby check to the company’s insurance company for the employee health plan pays for the plan itself, rather than for particular items that the insurance company pays for when a medical practitioner prescribes them for employees. In other words, it is the insurance company’s business, literally and figuratively. Even so, Steve Green would undoubtedly have felt blameworthy morally and religiously had he not explicitly excluded the offensive medical products from the plan for his company's account, for without his decision abortions would occur. Yet here too are several problems, which effectively mean that the significance of the case has been blown out of proportion.

Firstly, killing a few human cells may be immoral to some people, yet is the practice irreligious in nature? Theologically, the Creation is not the same as the biological process by which a human being begins. Furthermore, Jesus is not represented in the New Testament as prohibiting abortion, even though he did include other moral teachings in his preaching. Steve Green may have been conflating a theological doctrine with a moral principle and a biological process.  Put another way, abortion can be reclassified as a moral issue, in which I suspect it would be easier to come to a compromise, societally.

Secondly, Steve Green's labeling some contraceptive devices as means of abortion is a subjective call. Is preventing a fertilized egg of a few cells from implanting on the wall really like killing a fetus? Relatedly, as Green points out, even those abortive instruments are just a subset of contraceptives. The notion that the company’s health insurance plan for employees excluded or would exclude the pill (as distinguished from the “morning-after pill) is thus a popular misconception. That is to say, the claim that the ruling means that women working at Hobby Lobby would not have contraceptives covered is incorrect, so the importance of the court’s decision likely escalated beyond merit in this respect too.

So too, the breadth of the closely-held corporation limitation in the ruling was immediately debated, with Ginsberg predicting in her dissent that the door would eventually be open for virtually any company with any sort of religious conviction to use the ruling to obviate a law that the executives or majority stockholder do not like. “Although the court attempts to cabin its language to closely held corporations,” she wrote, “its logic extends to corporations of any size, public or private.” She added that corporations could object to “health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work.”[5] However, Alito wrote that the Religious-Freedom Act applies only to closely-held for-profit corporations run on religious principles. To be sure, wriggle-room exists even within this delimitation, for Alito wrote that those corporations would be unlikely to prevail if they object even on religious grounds to complying with other laws than the Obamacare mandate.[6] What is unlikely to Alito is not necessarily so to other justices, as it is a judgment call. Even so, Ginsberg's leap to any for-profit corporation seems to be untenable given the explicit delimiting stipulation in the majority opinion. 

So it is vital that the controlling small group or family of owners apply principles from their religion to their commercial enterprise. Without the separation of ownership and control that is typical of a large corporation, a closely-knit group or family of owners can indeed orient their company to religious as well as commercial purposes. Hence the Greens referred to their business as a matter of stewardship.[7] This situates their commercial objectives within a bubble of religious aims. Adam Smith situates his Wealth of Nations within his theory of moral sentiments; religious sentiments can also serve as a buffer.

On opening Hobby Lobby, Steve Green's father declared its Christian principles. Like Chick-A-Flick, the stores would be closed on Sundays “to allow employees time for family & worship”—according to a sign on the front doors.[8] The Green family’s foundation, whose funds presumably have their source in Hobby Lobby, extends charitable gifts to gospel outreach efforts as well as social services in Oklahoma.[9] A court would presumably want to find such evidence of religious claims in action, as well as assess the salience of the aims relative to attention paid to commercial objectives. To the extent that those agendas contravene the cited religion or religious principles, the case for religious exemption is undercut. 

It follows that the ruling hangs on the manager-owners' religious objectives, with strong control element rendering the company as an instrument. So I think the nexus being situated at corporate legal personhood is misplaced, even if Alito does make use of the doctrine. In her dissent, Ginsberg makes the point that human beings are religious. The "exercise of religion is characteristic of natural persons, not artificial legal entities."[10]

Alito comes closer to this point than many people realize, for he links Green's religious objectives to the doctrine, writing that a "corporation is simply a form of organization used by human beings to achieve [their] desired ends. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people."[11] In the case of a closely-held corporation, the corporation is an extension of the will of the few who both own and control. Similarly, my (limited) bank account does not itself enjoy religious rights, but I can use it (because I control it) to fund religious causes by writing checks. Put another way, the sum as more than the parts applies to corporations that have many stockholders because none of them controls their respective corporation as an extension. 

Therefore, even though Alito’s majority opinion is based in part on his interpretation of a corporation as a legal person, the exercise of religious freedom goes through the corporation as an extension rather than being based in the artificial person itself; that is, the closely-held caveat implies that the operative right was being exercised by Steve Green and any other close owners. Their specifically religious imprint on the for-profit company—that is, using it for religious as well as commercial purposes—means that they, rather than the company itself, are the source or basis of the religious agency that extends itself through the corporate structure extending beyond their fingertips. 

It follows that the hiring process should include explaining to the prospective employees that they too would be part of that extension. Hence, Green has stressed that the “greatest misconception” about the case “is that we are trying to impose our religion on these workers or others. Not at all! That would violate our religion to do that.”[12] As he saw it, anyone agreeing to work for Hobby Lobby knows of, and agrees to, the dual purposes of the closely-held corporation. Perhaps part of the problem is that Green’s hiring subordinates did not make this point clear (without discriminating, of course).

It could also be argued, however, that the anti-abortion stance is not a fundamental or important Christian belief. After all, Jesus does not even mention the issue in the New Testament. Recall Green's statement that he applies Christian principles to his business; the implication is that those principles are important theologically. In fact, the Greens' stance may actually be moral in nature, rather than theological, as Creation can be distinguished from the biological process by which an egg is fertilized its cells multiply.  

Therefore, the stance may not actually find adequate cover under Christian auspices understood theologically. Traditionally, the Court has required that accommodations on account of the freedom of religion passage in the First Amendment be based in an established religion; claiming that your own religion or your own version of an institutional religion requires you to enact a pot-smoking ritual every night is not going to cut it. Clearly, opposition to abortion on religious or moral grounds is not frivolous or made up by individuals, but neither is the stance a central tenet theologically in Christianity. This could open the door to other claims of other religious issues whose importance in religious terms may be overblown, and thus without meriting accommodation.

Moreover, basis of Green’s case may not even be religious freedom; rather, property rights could be the underlying issue, for Steve would also have the right to orient the business to serving social causes, for example, as in the case of Ben & Jerry’s (ice-cream), even at the expense of profit maximizing. Generally speaking, the profit-maximization principle is merely the default, with stockholders of a corporation having the right to alter the aim of their combined, incorporated wealth even at the expense of profitability.

As a personal aside, I have been inside a Hobby Lobby store only two times; the first was to buy a mother’s day gift, and the second constituted my attempt to buy a candle, the melted wax I would use to make up for a deficit in a half-burnt candle at home. So I was not picky about the candle, just that I needed only one. When I saw two long, thin candles connected as if Siamese twins joined by a wick-like umbilical cord at the tip of their tiny heads, I asked the front-area manager if I could buy just one of them, as both candles were broken.

“They come as a pair!” the stern woman crowed as if blissfully unaware that they were broken.

“But they are broken,” I sheepishly replied as I held them up to give her a good look.

“Makes no difference,” she said as she walked away. Her attitude resonated with the dysfunctional culture infecting businesses and other sectors back in my hometown.

From this curt exchange, I had the impression that the Greens should attend to more pressing “bread and butter” concerns than whether the insurance company used for employee health insurance pays for a few morally objectionable medical items. All the attention and energy that the Greens devoted to what in business terms is a minor issue, and perhaps even their dual-purpose approach itself may suggest that Steve Green really is not that good at management, at least in regard to hiring and training. 

At a deeper level, I see a pattern in that both the “contraceptives issue” and the “candle issue” may both involve “making a molehill into a mountain”—that is, overdoing relatively small things and thus missing the big picture. In my case, Hobby Lobby lost not only revenue on the candle, as I left the store in disgust, but also a future customer. 

Sometimes I suspect that human nature itself contains a short-circuit when it comes us being able to calibrate the importance of matters we take to be important. Perhaps this is a matter of conceit, being all puffed up with our own determinations, as if we could not possibly be wrong. Sadly, other people can suffer needlessly as a result, and this may be a cost that is all too invisible even to the well-meaning religious among us.

1. Daniel Burke, “Hobby Lobby: The Bible Versus Behind the Battle,” CNN, June 29, 2014.
2. Ibid.
3. Cathy Grossman, “Hobby Lobby’s Steve Green Stands on Faith Against Obamacare Mandate,” Religion News Service, March 17, 2014.
4. Patricia Walston, "Letter from Hobby Lobby Founder and CEO,", March 27, 2013.
5. Adam Liptak, "Justices Rule in Favor of Hobby Lobby," The New York Times, June 30, 2014.
6. Ibid.
7. Grossman, "Hobby Lobby's Steve Green."
8. Ibid.
9. Ibid.
10. Richard Wolf, "Birth Control Ruling Deals a Blow to Obamacare," USA Today, July 1, 2014.
11.Grossman, "Hobby Lobby's Steve Green."
12. Burke, "Hobby Lobby: The Bible"

Thursday, July 3, 2014

On the Political Power of Nuclear Power: Japan's Radioactive Plutocracy

Reversing his campaign pledge to reduce Japan’s reliance on nuclear power even as he had just been elected as prime minister of Japan in 2012 (Tepco’s Fukushima Daiichi nuclear-power plant meltdown having occurred in 2011), Shinzo Abe announced that he would have more nuclear reactors built in Japan. “They will be completely different from those at the Fukushima Daiichi nuclear power plant,” he said in a television interview.[1] Adding a silver lining on to a rather gray, radioactive cloud, he said, “With public understanding, we will be building anew.”[2] This change in policy is dramatic, for the previous government, that of Yoshihiko Noda, had sought to phase out nuclear power in Japan by 2040. In fact, Abe’s own party, the Liberal Democratic Party (LDP), had in its platform the goal “to establish an economy and society that does not need to rely on nuclear power.”[3] That the shift took place within the LDP suggests a shift in its power-dynamics, with the pro-nuclear sub-faction astonishingly having gained the upper hand over its rival while memories of the tsunami-triggered meltdown were undoubtedly still fresh.

                Prime Minister Shinzo Abe of Japan at the Fukushima Daiichi Nuclear Power Plant. (Image  Source: Itsuo Inouye)
It is perhaps no accident that Japan’s biggest business lobby, the Keidanren, was publicly lobbying for the government to restart the closed nuclear reactors in Japan. One might add to the mix the political influence of TEPCO, the company that owned and ran the dangerous Fukushima Daiichi reactors. Abe’s abrupt turn-about constitute a rarely visible sign of the actual political influence that large business lobbies weld even over prime ministers.

Moreover, the case suggests that powerful private interests can indeed be at odds with the public good—even when that constitutes the very survival of a people. Because private interests are likely to have tunnel vision relative to a view of the whole without such a rigorous gravity of their own interests, a plutocracy—rulership, either de facto or de jure, by wealth—is apt to be purblind in steering the ship of state ahead. When rocks lurk just below the water’s surface or icebergs silently stand by in the dark of night, a course taken incrementally and in the interest of just one part of the ship is apt to be purblind. To continue in this way not long after icebergs have been sighted and the ship has been hit borders on the insane; at the very least, the tacit acquiescence by the rest of society to let a powerful sector dictate to a government constitutes a reckless enabling not unlike someone who gives car keys to someone who is drunk and caused an accident just the year before (and is still intending to drink and drive!).

The larger problem lies in assessing whether democracies tend to degenerate not into mob rule as Plato and Aristotle had thought, but, rather, to being ruled by a few wealthy private interests that have figured out how to convert their huge stock of capital into political muscle. It is no accident, for example, that by 2014 the big American banks that were considered too big to fail in 2008 had 30 percent more in assets, and U.S. Government officials had absolutely no intent to break up those mammoth banks. Even if a causal relationship cannot be established, a restorative remedy may be elusive and extremely difficult to implement, practically speaking.

[1] Hiroko Tabuchi, “Japan’s New Leader Endorses Nuclear Plants,” The New York Times, December 30, 2012.
[2] Ibid.
[3] Ibid.