Showing posts with label regulatory capture. Show all posts
Showing posts with label regulatory capture. Show all posts

Monday, July 13, 2026

California and the Eleven Dwarfs Take on the Paramount-Warner Bros Merger

In Wealth of Nations, Adam Smith foresees that capitalist industrialists could collude with government at the expense of labor. In On the Genealogy of Morals, Friedrich Nietzsche argues that keeping laborers to a subsistence wage is necessary for capitalists to have enough wealth accumulated to invest in culture. Rather than being immoral, exploitation is simply part of life and thus the resulting economic inequality cannot be removed at its source. Low wages may simply be a feature of how labor supply typically relates to business demand for workers, whereas highly educated professionals are not so numerous and can demand higher compensation. Meanwhile, what about consumers as capitalist industrialists continue to accumulate capital in part by being able to pay large workforces subsistence wages and engage in mergers and acquisitions, such that competitive markets are turned into oligopolies and even, as in the case of Rockefeller’s Standard Oil in the 1870s, monopolies capable of extracting “monopoly rents”? In the U.S., the Sherman and Clayton Acts in the early 1900s were oriented to safeguarding competitive markets from being undermined by business titans, but enforcing those federal laws would seem to fly in the face of collusion between capitalists and their respective governments. As a case in point, the U.S. Justice Department gave the green light to Paramount’s take-over of Warner Brothers/Discovery even as President Trump had a financial interest in the deal going through. In the American federal system, the state governments could act as a check, and on July 13, 2026, the announcement came that California plus eleven other states, led by their respective attorneys general, filed a lawsuit challenging the merger on the basis that it would violate Section 7 of the Clayton Act. American consumers had reason to be thankful that they were still in a federal republic of republics, even though the growth of power at the federal level had nearly eclipsed the federalism, at least as it was originally intended—as enabling checks by the feds on the states and vice versa.

The Clayton Act “holds that mergers that may substantially lessen competition or tend to create a monopoly are illegal.”[1] In seeking to acquire Warner Bros. Discovery for $111 billion, Paramount’s mega-merger was raising concerns before closure that “combining two major Hollywood studios would hurt the industry while giving too much power” to Paramount’s CEO, David Ellison, in the film and television industries.[2] Hence California Attorney General Rob Bonta “led a group of 12 attorneys general in filing a lawsuit challenging the merger, claiming it would ‘lead to higher prices, lower quality, and less content for film and television, harming movie theaters, basic cable distributors, and ultimately audiences on every sofa and movie theater seat in the U.S.’”[3] In other words, all that typically goes with a competitive market becoming first an oligopoly, with just a few suppliers each with substantial market-share and thus market-power with which to become price-setters rather than takers, and then possibly even a monopoly in which consumers have only one choice of supplier and thus must pay whatever that supply decides. Because Paramount had completed an $8 billion merger with Skydance Media in 2025, the addition of Warner Bros. Discovery would give rise to tremendous market-power, hence occasioning an oligopolistic industry-structure. 

It is because the U.S. Justice Department announced on July 10, 2026 that even incorporating Warner Bros. Discovery would not harm competition and could even “strengthen competition across the media and entertainment industry, including in streaming video, traditional television and theatrical film distribution” that California and eleven other states jumped into action on the following Monday.[4] That a supplier with such massive market-power would actually make the industry more competitive is hard to believe, for, as Adam Smith lays out in his classic text on competitive markets, each supplier must be small enough relative to the entire market that no one supplier could set prices, but instead would have to take whatever prices are set by supply and demand, mechanistically in the market rather than by the intention of a dominant CEO.

Fortunately, under the U.S. federal system, “state attorneys general retain independent authority under antitrust laws, and the DOJ’s decision [would] not prevent additional legal challenges” to the proposed merger.[5] The personal financial interests of high officials in the U.S. Government, whether in the White House or Congress, could be checked, in effect, by the governmental sovereignty retained by the states, for in U.S. federalism, like E.U. federalism, governmental sovereignty has been divided between the federal and state levels, such that each would have an autonomous basis upon which to challenge over-reaches by governmental institutions on the other level. Put crassly, wealthy capitalists seeking a mega-merger would be best advised in both the E.U. and U.S. to pay off enough key federal and state officials so no one on either level would be motivated to institute a judicial contest. Other things equal, a federal system means that corruption by business of government costs more.

Federalism itself can thus be seen as serving a public purpose for the good of the whole. Were governmental sovereignty to reside exclusively only at one level—federal or state—as in a consolidated government and a confederation, respectively, it would be easier for powerful CEOs of large corporations to be able to engineer mega-mergers at the expense of market competition. In 2026, it was thus in the interest of American and European consumers to balance their respective federal systems, with more governmental autonomy going to the American states at the expense of the federal government, and more governmental authority going to the E.U. at the expense of the member-states. Perhaps as a result, more industries could be remade into competitive markets from being too oligopolistic and even de facto monopolies. 

To be effective, anti-trust laws must be enforced even if business executives and boards don’t exactly like the idea and would rather buy off governments at the expense of labor, consumers, and even the economic systems themselves, for there is a certain beauty to forces of supply and demand finding equilibria without any one participant (or few participants) being a price-setter as well as a policy-setter for an industry as a whole. The sheer frustration that typically goes with calling a company’s customer “service” phone-bank cries out for the existence of competition, and thus consumer choice. When that choice has to do with entertainment, and thus with which stories get told and with how much creativity and variety is possible, having a number of struggling suppliers (i.e., different gate-keepers) rather than just a few centralized powers is arguably crucial.



1. Brian Flood, “Paramount Advisors Push for California Exit as State Sues to Block Warner Bros Discovery Merger: Report,” FoxBusiness.com, July 13, 2026.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

Wednesday, April 29, 2026

The E.U. and U.S.: Equal Partners

In 2026, even though the U.S. had 50 member-states and the E.U. had only 27 states, both unions were large enough to constitute what in historical terms, with the European early-modern rather than (the smaller) medieval kingdoms in mind, empire-scale republics. As long as elected representatives hold office at the federal level in both political unions, both unions can be said to be republics (as well as containing republics—or, as Ken Wheare wrote in Federal Government, “wheels within a larger wheel”). Were either union to have only five or so states, the empire definition would not be satisfied. Also, that definition includes the requirement of cultural heterogeneity between (as distinct from within) the states. Being on the same (empire) scale is just one of several ways in which the two unions belong to the same political type. It was in this respect rather than based on the sheer number of states that Sophie Wilmes, vice-president of the European Parliament, said that the U.S. should not regard the E.U. as a little sister (i.e., a junior partner). I contend that she was correct.

Including but going beyond economic and political dependence internationally, Wilmes insisted that the U.S. deal with the E.U. as an equal. “What is very important regarding the United States is that we are talking to each other as equal partners and not as a big brother against the little brother or the little sister.”[1] To be sure, little brothers (and I have one who is a decade younger) are perfectly capable of bossing around older brothers. Even so, concerning the context to which Wilmes was referring, the U.S. was dominate on the Iran War and trade tariffs. In fact, the Commission had acted against giant American computer-technology companies on invasion of privacy and anti-competitive grounds only to be threatened by the Trump administration with (retaliatory) tariffs.

It is arguably from the standpoint of not feeling respected that the E.U. leader was speaking out to assert the E.U. as equivalent to the U.S. and thus worthy of reciprocal respect. Put somewhat crassly, just because the American tech companies could have undue (and anti-democratic) influence in American government does not mean that the latter should not respect E.U. law that differs from U.S. law concerning the tech sector. Equal, or reciprocal respect rather than a claim as to the equivalence of the two unions as falling under the same political type is the basis of Wilmes’ public remarks.

Even so, the demand for equal respect is premised on the unspoken assumption that the E.U. and U.S. are indeed equivalent political unions, whose respective states are thus equivalent. In terms of territory and population, the states cluster. The only exception is Alaska, which is larger than even the European Union, not to mention any E.U. state.  That the political unions are both empire-level, cluster in terms of population (i.e., hundreds rather than tens of millions), GDP, and even territory is the grundlagen upon which comparative politics as an academic sub-field in political science and in practice (including in journalism!) should be based even though this foundation is rarely made explicit. Considering the widespread occurrence of political category mistakes with respect to the E.U. and U.S., scholars, government officials, and especially journalists could have done more to make the equivalence explicit in 2026 when the E.U. official made her statement. In 2025, while speaking with the E.U.’s ambassador to the U.S. at Yale, I made this plea in vain, for E.U. officials were then afraid that making the equivalence explicit would give Euroskeptics such as Viktor Orbán more ammunition with which to dismantle the Union, which was certainly not a “bloc.”


Monday, April 7, 2025

Tariffs as a Negotiating Tactic: Undercut by Wall Street Expediency

With all the economic and political turmoil from the anticipated American tariffs, it may be tempting, especially for financially-oriented CEOs and billionaires looking at quarterly reports, to call the whole thing off even though doing so would deflate the American attempt to renegotiate trade bilaterally with other countries. The concerns of the wealthy, whether corporations or individuals, have their place, but arguably should not be allowed to "lead the proverbial dog from behind, lest the dog run in circles and get nowhere." Moreover, the notion that any goal that is difficult and takes some time to materialize can or even should be vetoed by momentary passions at the outset is problematic and short-sighted. That U.S. President Trump's announcement of bilateral tariffs quickly brought fifty countries to the negotiating table is significant as a good sign for the United States, as long as that country's powerful business plutocracy (i.e., private concentrations of wealth that seek to govern) can be kept from vetoing the emergent trade policy, which at least in part is oriented to trade negotiation and ultimately to the notion that fair trade is conducive to increased free trade. 


The full essay is at "Tariffs as a Negotiating Tactic."

Friday, September 13, 2024

Nature Credits in the E.U.

One of benefits of the market mechanism, by which, for example, economic goods are bought and sold, is that self-interest is relied on; people don’t have to be told to buy or sell a product because it can be in their self-interest to do so if the price is right. As an alternative to regulatory standards, a government can create units of pollution-allowance that businesses can purchase so to be lawfully able to pollute in so far as a purchased unit allows. In the E.U.’s emissions trading system, “operators of power plants and factories have to buy tradeable allowances to cover every tonne of carbon dioxide they emit.”[1] Business could buy and sell allowances so as to cover the amount of pollution that is anticipated. In this way, the market mechanism efficiently allocates pollution in line both with the interests of the companies and the public interest—the latter being made concrete in the decision on how much pollution per allowance and how many allowance units to create. Crucially, the company private interests are put within the purview of the public interest; the tail is not directing the dog. In political economies in which political-campaign contributions by businesses are high, especially if unlimited, the tail can indeed wag the dog, such that the public interest is determined by private interests. This is one reason why the Citizens United (2010) U.S. Supreme Court case is so significant. It allows corporations and labor unions to spend unlimited amounts of money on political campaigns and directly on advertisements—both being beneficial to elected officials in positions to curry favor through legislation and regulations favorable to business (or labor). The informal exchanges of political donations and legislation or regulation comprise a market of sorts. So, the market mechanism, which is created or at least regulated by government, can serve for good or ill, from the standpoint of the public interest.  Using the mechanism, such as the E.U. president proposed in 2024, on behalf of ecosystems, is for good rather than ill, and thus using, in effect, the self-interest of farmers could be better than relying on regulatory requirements that farmers expend some money and effort to beef up their local ecosystems.

At a conference on September 13, 2024, a Friday, E.U. President Ursula von der Leyen said, “We need new financial tools to compensate farmers for the extra costs of sustainability and compensate them for taking care of the soil, the land, the water, and the air.”[2] The assumption is that the farmers would not otherwise do so because expending the energy and paying the costs for the externalities would not add to their profits from farming in the short or medium term. The time-value of money too reflects the penchant in human nature for immediate over delayed gratification. To extend the farmers’ “event-horizon” and broaden out their concern to include their vicinity would be the purposes of “the market-based system of ‘nature credits’,” which Von der Leyen hinted “could also be applied beyond the agricultural sector.”[3] This is part of the beauty of the market mechanism: it can be applying to various things, serving various purposes, rather than only pertaining to economic products and services.

Via “nature credits,” a water company could have the incentive as per self-interest to help to take care of a spring that that company depends on, and a fruit company would be more likely to invest in the “essential work of pollinators.”[4] That the language of long-term investment applies raises the question of why farmers in general do not do what manufacturing businesses do as a regular part of business. It would seem that making sure that a principal water source is not lost or that bees stay in the area of the fruit trees would be in the self-interest of the respective companies. Why would compensation by the government be needed to run a sustainable business?  Is the managerial perspective really so delimited that the viability of the business is not included?

Unfortunately, even by 2024, climate change was perceived by many business practitioners still as a gradual and outside process not germane to business. Johan Rockstrom of the Potsdam Institute for Climate Impact Research, said at the same conference, “I can tell you, science is clear today that the ultimate determinant, what regulates the stability of the planet, its ability to stay in a desired equilibrium state is nature.”[5] According to a journalist, Rockstrom was “suggesting that action of biodiversity and climate made sense even if purely pragmatic.”[6] If farmers didn’t yet see it as such, “nature credits” would help render biodiversity pragmatic from an agribusiness standpoint—essentially interiorizing some externalities.

To be sure, even if a private interest broadens out to include some hitherto externalities, that interest is still not the same as the interest of the whole: the public interest. It would still be important to protect the public interest from being captured by a private interest; a large company or an industry that would implicitly presume to be in charge of its own regulation by dictating legislation and regulation to sycophantic government officials should be withstood by them. Even so, expanding the practical purview of private interests is in the interest of the whole, and the market mechanism can be used to make this so.


1. Robert Hodgson, “Von der Leyen Moots ‘Nature Credits’ Market to Avert Ecosystem Collapse,” Euronews.com, September 13, 2024.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.

Saturday, June 29, 2024

The U.S. Supreme Court Reining in Regulatory Agencies: Implications for the Imperial Presidency

In Loper Bright Enterprises v. Raimondo handed down by the U.S. Supreme Court on June 28, 2024, a majority of the justices overruled Chevron v. Natural Resources Defense Council, which had been the precedent giving regulatory agencies considerable discretion in coming up with specific regulations, given the penchant of the Congress to write vague laws. In the overturning case, a group of fishermen had objected to having to pay for government observers to board the fishing boats to monitor the fishing. On the merits, it does seem unfair for regulatory agencies to charge the regulated to be regulated. In overturning Chevron, however, Loper has much broader implications, chief among them being in terms of separation of powers—specifically in reining in the expanding power of the executive branch, here at the expense of the judiciary.   

Chevron had “required courts to give deference to federal agencies when creating regulations based on an ambiguous law.”[1] Loper could stimulate thought on whether Congress must necessarily promulgate law using vague language. Certainly Congress is capable of being quite specific when writing in loop-holes, or “carve outs,” for particular companies or industries in exchange for political campaign contributions. Moreover, from hearings, Congressional committee staff are surely capable of narrowing the discretionary area in which regulators can exercise considerable power that is essentially that of law-making. So one effect of Loper could be a shift of power from the executive to the legislative branch.

The decision also stood to “shift the balance of power between the executive and judicial branches.”[2] Although CNN goes on to claim that the decision “hands an important victory to conservatives who have sought for years to rein in the regulatory authority of the ‘administrative state’,” strengthening the role of the judiciary to look at administrative rulings is not in itself pro-business, as a judge could come down on an agency as being too lenient to an industry. The notion of regulatory capture, wherein whether from relying on data from a regulated industry or in exchange for lucrative future jobs in the industry for regulators, especially given government salary levels, means that giving courts more of a role in being able to evaluate and overrule agency rule-making and decisions could be a needed check against compromised regulators. At the same time, it is true that because the Supreme Court is the head of the judicial branch of the federal government, a decision that shifts power from one or two of the other branches to the judiciary puts the Court in an institutional conflict of interest (and the justices in personal conflicts of interest as their power would likely increase). Perhaps Congress should have been the branch to decide on the role of the judiciary with respect to the agencies in the executive branch.

Shifting power from the executive branch to the two other branches, especially the judiciary in this case, can also be viewed as a mild correction to the steadily increasing power of the U.S. presidency. In The Imperial Presidency, Arthur Schlesinger traces the increasing power that has come at the expense of the other two branches. The claim of such a correction may be problematic, as reining in regulatory agencies is not the same as reining in a president’s power, such as in exercising the bully pulpit in being able to speak directly to the American people directly as well as through a president’s surrogates. Also, a president as commander in chief and in promulgating foreign policy is unaffected.

It can even be argued that as presidents have typically been oriented to proposing broad policies for Congress to enact through law, that a president’s attention has been minimal in running the administrative agencies—essentially in supervising the cabinet secretaries in their administrative roles at their respective agencies. Such overseeing geared to specific regulations is, I submit, a function that presidents should attend to even more than proposing policies for Congress to enact. In other words, presidents should resist the sensationalistic allure of forming and publicly and privately “selling” policies or ideas for new programs to the extent that the time and effort of a president is monopolized thereby such that functioning as head of the executive branch, which implements law, is slighted. It could even be argued that the latter function should be primary. Were it in fact primary, then Loper would indeed be capable of redressing the historical trend of the imperial presidency to some extent because taking an active role at the regulatory stage would be a significant part of the actual power exercised by presidents. As of 2024 at least, Loper did not really touch the problem of the imperial presidency increasingly compromising the balance of power between the three branches of the U.S.’s federal government.

If democracy is ever at risk in the U.S., it would likely succumb to the hubris of an imperial president rather than to lawmakers in Congress writing laws with more specificity or judges overruling regulatory rulings. According to General Haig, President Nixon considered sending military forces to the Capitol to stave off impeachment during Watergate. Decades later, in December, 2023, protestors of the Congressional counting of the presidential votes of the states’ electoral colleges headed over to the Capitol from President Trump’s rally at the White House and successfully delayed the counting. On the very same day as its Loper decision, the U.S. Supreme Court handed down a ruling on another case—a decision that “limited the power of prosecutors to pursue obstruction charges” against the January 6th protesters at the Capitol.[3] To the extent that that ruling could enhance the imperial presidency itself, June 28, 2024 at the Court may actually have been a net-gain for the presidency.


1. John Fritze, “Supreme Court Overturns 1984 Chevron Precedent, Curbing Power of Federal Government,” CNN.com, June 28, 2024 (accessed June 29, 2024).
2. Ibid.
3. John Fritze et al, “Takeaways from the Supreme Court’s Decision on January 6 Charges and What It Means for Donald Trump,” CNN.com, June 28, 2024 (accessed June 29, 2024).

Friday, February 23, 2024

On the Role of Agribusiness in Global Warming

Agriculture is a major source of carbon and methane emissions, which in turn are responsible for the general trend of the warming of the planet’s atmosphere and oceans. In fact, agriculture emits more than all of the cars on the roads. 10 percent of the emissions carbon dioxide and methane in the U.S. come from the agricultural sector. Livestock is the biggest source of methane. Cows, for example, emit methane. Methane from a number or sources, including the thawing permafrost, accounted for 30 percent of global warming in 2023. As global population has grown exponentially since the early 1900s, herds of livestock at farms have expanded, at least in the U.S., due to the increasing demand.[1] We are biological animals, and we too must eat. More people means that more food is needed, and the agricultural lobby in the U.S. is not about to let the governments require every resident to become a vegetarian. Indeed, the economic and political power of the large agribusinesses in the U.S. have effectively staved off federal and state regulations regarding emissions. It comes down to population, capitalism, and plutocracy warping democracy.


The full essay is at "On the Role of Agribusiness in Global Warming."

1. Georgina Gustin, “Climate Change and Agriculture,” Yale University, February 22, 2024.

Wednesday, May 15, 2019

The FAA Deferred to Boeing on the 737 MAX Jet

After a misfiring-prone automatic stall-prevention device on the 737 MAX jet had caused two accidents in which 346 people died, an internal review at the U.S. Federal Aviation Administration, a regulatory agency, found that the regulators had relied too much on Boeing employees to conduct the safety inspections of the planes. Incredibly, Congress expanded the industry-reliance practice of the agency in 2018. Both the FAA and Congress were admittedly motivated by the added efficiency that such “sub-contracting” could bring. However, to focus on the economic benefit while ignoring the inherent (and obvious) conflict of interest in “sub-contracting” to the very companies that are regulated by the FAA is itself a red flag. A subservient or over-reliant regulatory agency cannot be a check on a company’s claims of not having sacrificed safety or even safety checks in order to focus more on profitability.  Of course, the political influence of a large company such as Boeing may have played a role in the FAA’s “back-seat” approach, but in this case the government’s own interest in stretching the coverage of its human resources may have been dominant. That such an interest could involve minimizing or ignoring outright such a blatant conflict of interest may point to a wider culture in which institutional conflicts of interest are presumed to be innocuous or even benign rather than too toxic to permit even if they have not been actively exploited.  

During the FAA certification process for the 737 MAX, Boeing didn’t flag the automated stall-prevention feature as a system whose malfunction or failure could cause a catastrophic event.”[1] The FAA’s report does not point to any fabrication on the part of the company. The problem is that “FAA engineers and midlevel managers deferred to Boeing’s early safety classification.”[2] No check on the company’s determination could be in such deference. It is astounding that managers at a regulatory agency could have neglected or ignored this basic point, which gets at the raison d’etre of any regulatory agency. C’est vraiment incroyable.

In fact, the company’s initial safety classification allowed “company experts to conduct subsequent analyses of potential hazards with limited agency oversight.”[3] The operative assumption in this practice seems to be that experts cannot be initially wrong, or that they could eventually catch their own errors, and that such experts are not subject to pressure from managers to get the planes in the air and generating revenue that can at least cover payments on the planes themselves.

Even worse, the FAA classified certain Boeing employees as “designated agency representatives.”[4] Employees of a regulated company cannot represent the regulatory agency, for such a designation is itself an institutional conflict of interest. It is, in effect, to designate one wolf as a police-wolf around a hen house! How can this not be obvious? I submit that only in a permissive culture can such blind-spots thrive. The FAA’s practice of designating some employees of regulated companies as being able “to act for the agency” was set up by the FAA and “endorsed and expanded” by Congress with “the aim of freeing up government resources to focus on what are deemed the most important and complex safety matters.”[5] Was not something that had killed hundreds of people an important safety matter? FAA managers might retort, “But we didn’t know this except in hindsight.” Exactly. This is precisely what minimizing or ignoring a huge conflict of interest can do.

See Institutional Conflicts of Interest, available at Amazon.

[1] Andy Paztor, Andrew Tangel, and Alison Sider, “FAA Left 737 MAX Review to Boeing,” The Wall Street Journal, May 15, 2019.
[2] Ibid.
[3] Ibid., italics added.
[4] Ibid.
[5] Ibid.

Thursday, May 2, 2019

Big Bankers and the U.S. Government: A Coalition Circumventing Accountability on Wall Street

It is interesting that the U.S. Department of Justice did not pursue the fraudulent bankers on Wall Street not only during the Bush presidency, but also the following presidency, that of Barak Obama.  Not coincidentally, Goldman Sachs was the single biggest campaign contributor to Obama’s 2008 candidacy for president. It would seem that Wall Street had both political parties in a net by the time of the financial crisis in September, 2008. A sector of the economy being able to control both major parties is bad for not only industrial policy (i.e., favoritism), but also democracy. In short, a government should have enough strength to constrain a business sector, rather than being subject to it. The latter condition implies continued vulnerability should greed again get ahead of itself on Wall Street. By nature, greed, if allowed to go on running on its own steam, accumulates more and more momentum. 

The New York Times reported in 2011, “legal experts point to numerous questionable activities where criminal probes might have borne fruit and possibly still could. Investigators, they argue, could look more deeply at the failure of executives to fully disclose the scope of the risks on their books during the mortgage mania, or the amounts of questionable loans they bundled into securities sold to investors that soured. Prosecutors also could pursue evidence that executives knowingly awarded bonuses to themselves and colleagues based on overly optimistic valuations of mortgage assets — in effect, creating illusory profits that were wiped out by subsequent losses on the same assets. And they might also investigate whether executives cashed in shares based on inside information, or misled regulators and their own boards about looming problems. Merrill Lynch, for example, understated its risky mortgage holdings by hundreds of billions of dollars. And public comments made by Angelo R. Mozilo, the chief executive of Countrywide Financial, praising his mortgage company’s practices were at odds with derisive statements  he made privately in e-mails as he sold shares; the stock subsequently fell sharply as the company’s losses became known. Executives at Lehman Brothers assured investors in the summer of 2008 that the company’s financial position was sound, even though they appeared to have counted as assets certain holdings pledged by Lehman to other companies, according to a person briefed on that case. At Bear Sterns, the first major Wall Street player to collapse, a private litigant says evidence shows that the firm’s executives may have pocketed revenues that should have gone to investors to offset losses when complex mortgage securities soured.”[1]  David Skeel, a law instructor at the University of Pennsylvania, remarked, “It’s consistent with what many people were worried about during the crisis, that different rules would be applied to different players. It goes to the whole perception that Wall Street was taken care of, and Main Street was not.”[2]

Elliot Spitzer, the Attorney General of New York, was preparing to go after some big bankers until he stopped when a lawyer at the U.S. Department of Justice (DOJ) told him to back off because the department would be moving against the bankers. However, it did no such thing; the DOJ would not in fact "move" against the bankers. So it is suspicious; the lie may have been fabricated in Washington, D.C. to protect the bankers. If so, elected representatives including the president who had received sizable campaign contributions from the bankers themselves or their banks would be prime suspects. To suggest that an elected official would not protect a major contributor is like asking water to go up hill.  The subterfuge used by the DOJ at the time was that if the department went after the bankers, the banks themselves, which were too big to fail without taking the financial sector and even the economy with them, would become too unstable.
Incredibly, not only did the bankers not get punished; the banks got bailouts, which the bankers could use to pay themselves bonuses! This included bonuses at Goldman Sachs for selling "crap" (i.e., the subprime-mortgage-based bonds) to even good clients and of course lying about how solid the bonds actually were. 

Bank regulators, who can be "captured" by regulatees not only due to reliance on information from them, but also political pressure from the regulatees' political protectors in Congress and the White House, may have played a role too. According to The New York Times, bank regulators referred 1,837 cases to the Justice Department in 1995. In 2007-2010, an average of only 72 a year was referred for criminal prosecution.  “The Office of Thrift Supervision was in a particularly good position to help guide possible prosecutions.” From the summer of 2007 to the end of 2008, O.T.S.-overseen banks with $355 billion in assets failed. The thrift supervisor, however, did not refer a single case to the Justice Department between 2000 and 2010. The Office of the Comptroller of the Currency, a unit of the Treasury Department, referred only three in that decade.[3]

The relationship between the head of Thrift Supervision and the CEO of Countrywide is particularly revealing.  In March 2007, Countrywide was regulated exclusively by the regulatory agency. That agency was overseen at the time by John M. Reich, a former banker and Senate staff member appointed in 2005 by President George W. Bush. Reich was on all for deregulation. Robert Gnaizda, a former general counsel at the Greenlining Institute, a nonprofit consumer organization in Oakland, Calif., said he had spoken often with Reich about Countrywide’s reckless lending. Gnaizda says that when he suggested to Reich how he could build a case against Mozilo, the CEO of Countrywide, Reich “was uninterested. He told me he was a good friend of Mozilo’s.”[4] Reich subsequently refuted that the two were friends. “I met with Mr. Mozilo only a few times," Reich insisted, "always in a business environment, and any insinuation of a personal friendship is simply false.”[5] Even a few business meetings can be sufficient and the same ideology can be sufficient, however, to bend the ear of a regulator. Besides, Reich had reason after the financial crisis to deny any friendship with a man largely discredited due to the mortgage-producing antics at Countrywide. Mozilo’s flush fingers may have stretched as far as the chairman of the Financial Crisis Inquiry Commission, Phil Angelides. The New York Times reported in 2011 that he had told two deputies that Mozilo and Countrywide were off limits, though Angelides subsequently denied having made the statement. Instead, he pointed instead to the Republican opposition to hearings on Countrywide in Congress.

I suspect that whether of the deregulation crowd or Democratic, both parties, being of part and parcel of the establishment, had by the financial crisis of 2008 become too close to the vested interests on Wall Street to effectively regulate its banks and bankers, and thus to be in a position to investigate cases of regulatory failure. In other words, when the necessary relationship between financiers and regulators breaks down, accountability does as well. Without the regulators and DOJ being able to constrain excessive greed by holding the people in the financial sector accountable, continued vulnerability to the financial system collapsing as it almost did in September, 2008 can be expected even if it is ignored.  

1. Gretchen Morgenson and Louise Story, “In Financial Crisis, No Prosecutions of Top Figures,” The New York Times, April 14, 2011.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

Tuesday, April 30, 2019

Glimpsing behind the Curtain: Vice President Lyndon Johnson and the Kennedy Assassination

Robert Ross interviewed Lyndon Johnson’s mistress, Madeleine Duncan Brown what Ross titled, “The Clint Murchison Meeting in Dallas November 21, 1963.” The interview took place sometime before her death on June 22, 2002. The content is revealing, and she comes across as very credible as it is obvious she still had feelings even then for the late president. She also had a credible motive for opening up to the American people. So in watching the interview, I did not view it as just another conspiracy theory; I paid attention. Sometimes the truth finally emerges in plain sight, rather than through complicated theories as in Oliver Stone’s film, JFK (1991). The most revealing facts to emerge from the interview are that Jack Ruby, who killed Oswald just two days after the assassination, had been at the meeting at Murchison’s mansion on the night before the assassination, and that LBJ told Madeleine while leaving Murchison’s house after the meeting, “After tomorrow, those SOB’s will never embarrass me again.” That the official narrative from the Warren Commission would still carry weight as the default account at least in the first two decades of the next century astounded me. At the very least, all of Madeleine’s knowledge of the players should have caused at least a tremor when the interview was made public. The status quo has that much inertia. Even so, the American public can gleam from Brown’s account just how different the reality of the power-brokers in (and outside of) the U.S. Government can be from what the public knows. Unfortunately, the patina or gloss even of acting can have incredible staying-power even in the face of the facts revealed. Members of the political elite and their companions may want to protect their legacies in old age, or want the freedom of conscience that comes from the impunity that can only come with death. The resulting piecemeal facts must justify themselves, however, whereas the long-standing official version often has the benefits of not only protective power and entrenchment that comes with having been the default for so long, but also a coherent (i.e., contrived) narrative.  

Madeleine had met LBJ in 1948. By her reckoning, she and Lyndon had a “wonderful relationship.” Johnson fathered Madeleine’s son, Steve Brown, who had died of cancer by the time of the interview. In spite of having cancer, Steve had sued to get part of Johnson’s estate. Madeleine was hurt by the way the power structure in Texas had handled Steve by preventing him from appearing in court. “I probably would never have opened my mouth, but the way they handled my son. They can’t take anything from me now. The public needs to know.” Essentially, she says in the interview that the assassination of Kennedy was the result of a domestic plot that been planned since the 1960 Dem Convention.

Joe Kennedy and H. L Hunt met three days before the convention and they cut a deal: Johnson would be the VP. At the time, Hunt told Madeleine, “We may have lost a battle but we’re going to win the war.” On the day of the assassination, he would tell her, “We won the war.” Madeleine concluded the assassination was “a political crime for political power.” H.L. Hunt, the richest man in the world at the time, and others “mapped a plot to get rid of John Kennedy” from just after the convention. The 8-f group included oil men such as Clint Murchison and Hunt, Texas politicians such as John Connally, and even occasionally J. Edgar Hoover.


Meeting the night before the assassination at Clint Murchison’s house on Nov 21, 1963 were Lyndon Johnson, Edgar Hoover, John McCloy, H.L. Hunt (who had had flyers “Wanted for Treason: John F. Kennedy” passed out in downtown Dallas), John Currington, George Brown, Richard Nixon, Amen J. Carter, Jr, Texas Gov. John Connally, Earle Cabell (mayor of Dallas, whose brother Kennedy had fired after the botched Bay of Pigs invasion), W. O. Bankston, Clint Peoples, Bill Dicker (sheriff of Dallas county), Cliff Carter, Malcom Wallace, and, representing the mafia, Carlos Marchellas, Joe Civilla, and Jack Ruby (an old buddy, Madeleine remarks). I submit that the mafia had a motive to kill the president whose brother Robert had turned the U.S. Department of Justice on the mob, including very mobster in Chicago, Sam Giancana, who is said to have put Illinois over the top in voting for Kennedy. It is particularly relevant, therefore, that Ruby, who would later he killed Oswald out of anger for assassinating the president, was at a meeting with such notable insiders on the night before the assassination. Also, the inclusion of the FBI and the sheriff of Dallas County fit with the obvious need to cover-up the crime. That Richard Nixon, who had lost the 1960 election to Kennedy—unfairly according to the man known as “tricky Dick”—would be in a meeting with Johnson supporters should also raise some eyeballs; it would make sense, however, if the Democrats wanted assurances that the other party would not try to uncover the plot. It is therefore significant that Nixon was already in town; he and Johnson had met two days earlier.

At any rate, the social party at the mansion, for which Madeleine had been invited, broke up at 11 p.m. when the Vice President arrived. He and others went into a conference room. Jack Ruby brought a call-girl, Shirley, to the meeting. When Johnson came out of the meeting at its conclusion, he told Madeleine: “After tomorrow, those SOB’s [i.e. sons of bitches] will never embarrass me again.” Johnson was angry. “The Irish mafia, I think,” Madeleine says in the interview when Ross asks her whom Johnson was referring to. However, in her book written five years earlier, Madeleine wrote that Johnson had told her, “After tomorrow, those goddamned Kennedy’s will never embarrass me again.”[1] Because she looks like her mind is going astray at that point in the interview—she would, after all, die soon—I suspect she confused Lyndon’s antipathy at the Irish mob with his loathing of the two Kennedy brothers. 


Even if Johnson didn’t get along with a mobster, his frustrating relationship with the Kennedy brothers in the White House is well documented. Regardless of whomever he was angry at, that Lyndon Johnson knew that something would be very different for him on the next day—the day of the assassination—suggests that he knew of it beforehand. In fact, that he made such a statement with such strident certainty just after the meeting suggests to me that its purpose had been to decide on whether to go ahead with the plan. If indeed Lyndon Johnson had at the very least been aware of the assassination beforehand, the way in which he publicly reacted after it can be seen in a different light—as being acted out rather than authentic. By implication, the American people had no clue as to what was actually going on behind the scenes. The sheer difference ought to be of concern from the standpoint of democracy, because the sheer degree of acting can be used on an ongoing basis to hoodwink the electorate.

People on the periphery of the plotting group were in an interesting predicament, being let into at least some of the inside information and yet not truly part of the group. Hence they could be expected to share at least one of their points of reference with the public and thus feel guilty enough to speak, or finally turn on the insiders by divulging the tidbits of information even in the face of a seemingly overwhelming public narrative. Clint Murchison’s secretary, for instance, committed suicide days after the assassination. Even though Madeleine still had feelings for Johnson (i.e., they had not ended on a bad note), she was convinced that he had been in on the assassination and yet she said nothing of this publicly until she was old, after her sons had died so she had nothing to lose. For one thing, she says in the interview that if Kennedy had not been assassinated when he was, Johnson would have faced “serious political problems when he returned to Washington.” He had been involved in the Billy Sol Estas and the Billy Baker scandals, and Kennedy was already looking for another VP candidate for 1964, according to Kennedy’s secretary, Evelyn Lincoln.[2] At the time of the assassination, a U.S. House committee was planning to indict Johnson. A man, who would later be shot, was going to testify that Johnson had taken kick-backs from agricultural programs. When Lyndon was president, he kept the Vietnam War going on for so long because he was getting kickbacks on military contracts to his business friends.

Johnson’s real mentality, however, went deeper than corruption. According to Madeleine, Malcolm “Mac” Wallace was Johnson’s hit-man. In a letter to the Department of Justice in 1984, Douglas Caddy, the lawyer for Billie Sol Estes, claimed to have evidence that Johnson order hits on eight men, including Kennedy.[3] Johnson “had no qualm about having someone killed,” the still-smitten Madeleine says in the interview. “Whatever it takes to get a job done,” she says of Lyndon’s mentality. She agrees with Ross in his conclusion that Johnson must have thought the end justified the means. Madeleine points out that Johnson even had an innocent woman who had seen Madeleine and Johnson together in a hallway killed. Even just to conceive that a U.S. president had a hit man is difficult; to a public kept largely in the dark, such a thing—and that the American electorate voted for a mafia-like man in 1964—must seem inconceivable, or else fiction, like the series, House of Cards. Hence the vulnerability lodged in American democracy wherein the electorate is left with mere superficial or artificial perceptions of the candidates and office-holders remains largely hidden from view.

All of the above hitherto hidden from view does not even count the stealth role of corporations in influencing Congress, the President, and even the regulatory agencies that regulate the specific corporations or industries. The relationship can indeed be quite cozy in spite of the conflicts of interest that should be obvious. The allowance of “dark money” contributions to political campaigns affirmed by the U.S. Supreme Court in its Citizens United case is just one indication of how the real relationship between business and government in the U.S. can be deliberately hidden from plain view, and especially this disinfectant effect of sunlight. If sunlight is essential for the popular sovereign (i.e., the People) to hold its government officials accountable, then representative democracy in the U.S. is seriously flawed. To get caught up in debating who shot Kennedy may be just what the political elite wants because not only such myopic investigations tend to be premised on the Warren Commission’s report as the default narrative to be disproven, but also the obsession of one historical event comes at the expense of uncovering the true nature of the current office-holders in government and the real relationship between business and government.


[2] James Hepburn, Farewell America: The Plot to Kill JFK (Penmarin Books: 2002).
[3] Ibid.

Friday, August 18, 2017

Massey Mining: Beyond Regulations

Massey Energy Co. owned the mine in West Virginia where 29 minors were killed in an explosion in 2010. Faulty water nozzles failed to stop a spark from setting a pocket of methane gas on fire, which in turn led to an explosion of coal dust. Other safety violations, such as not cleaning up extra coal dust, contributed to the accident too.
In their criminal investigation, prosecutors allege that between 2000 and 2010, David Hughart, former president of a Massey operating unit, and other managers ordered workers to violate standards for maintaining airflow through minds and limiting combustible coal dust. Indeed, Hughart may even have told employees to cover up  violations while inspectors were on their way. While it is unfortunately not unusual for managers to cut corners on regulations, the attitude evinced at Massey may point to a deeper problem in how business practitioners view law itself.
Booth Goodwin, the U.S. attorney in Charleston, West Virginia, observed, “Some mine officials, unfortunately, seem to believe health and safety laws are optional.” If true, this statement is extremely important, for it suggests that the business calculus itself views government regulation—and even law—as an obstacle to get around if possible. That is, rather than being a contour of the system, a regulation (or law) is one of many obstacles—costs—that are potentially manipulated in the interest of greater profit. The mentality thinks in terms of how to reduce any impediment to profitability.
Moreover, the political power of large companies (or big companies in a small pond, such as West Virginia) may mean that for practical purposes, government regulations are malleable rather than given. Just as a monopoly or oligopoly is a price-setter rather than taker, a large company with politicians and even judges “up its sleeves” may be a regulation-setter rather than taker. Regulations and even laws would from this standpoint be de facto optional. This political “reality” can reinforce the squalid mentality that “the laws don’t apply to me.” The result, at least respecting (or disrespecting) OSHA regulations, is that people other than the managers could become sick or even die, as was the case in West Virginia in 2010. The very logic as well as mentality of modern management may have been at the root of the accident, and thus of tragedies yet to occur.

Source:
Kris Maher, “Mine-Safety Probe Expands," The Wall Street Journal, November 29, 2012.

Wednesday, June 28, 2017

The E.U. Goes After Google: Where Was the U.S.?

In fining Google a record 2.4 billion euros (2.7 billion dollars) in June, 2017, for unfairly favoring its advertisers in its online shopping service, E.U. officials went “significantly further than their American counterparts.”[1] At the time, Google held more than 90 percent of the online search market in the E.U. Why would the E.U. go further than the U.S. in pressing anti-trust violations against a technology company that could be expected to gain monopoly profits? Presumably Google was favoring its advertisers on searches in the U.S. as well. Americans would mind too when an advertiser’s higher-price product comes up rather than a comparable product at a better deal. Was the E.U. more interested in protecting consumers and less concerned about pleasing a large company? The company’s sordid, self-serving practice nullifies any contending claim that the government’s motive was to go after a foreign company. I submit that the E.U. government’s action unwittingly points to a pro-business bias in the corresponding American government.

With the demand that Apple repay $14.5 billion in back taxes in the E.U. state of Ireland, an investigation into Amazon’s tax practices in the E.U., and “concerns about Facebook’s gathering and handling of data,” the E.U.’s anti-trust division was “laying down a marker for more hands-on control of how the digital world operates.”[2] Why no such marker in the U.S.’s anti-trust division? Clearly, concerns about Facebook were not uncommon there. The E.U. “is setting the agenda,” Nicolas Petit said at a European university.[3] Suddenly America looks like the Old World.

Especially after the Citizens United decision by the U.S. Supreme Court in 2010 allowing unlimited spending by companies on political campaigns, the question of the power of large companies in the halls of Congress as well as in the White House at the expense of consumers became more important even if the media kept the issue largely off the public’s radar screen. Is what is good for GM good for America? The fallacy that what is good for a part is necessarily good for the whole is enough to settle that question. The problem, therefore, lies in certain parts having inordinate influence over the whole—more specifically, on the rules by which the whole operates. Insufficient regard for the public good by public officials who don’t want to risk offending corporate chieftains is like the captain of a ship steering according to the desires of certain wealthy passengers instead of looking out ahead.

So it is telling, I submit, that the E.U.’s anti-trust division essentially shamed its American counterpart in being willing to stand up to very powerful private interests. The “proof in the pudding” lies, I suppose, in the dearth of cases in which the U.S.’s government (and those of the member states) has spoken truth to the powers behind the throne and gone on to act on that truth in enacting laws and regulations that protect the public. All too often, American regulatory agencies are captured by the very companies that are to be regulated. Beyond the agencies’ reliance on their respective regulatees for market information and the regulatees’ ability to hire former regulators for lucrative jobs, a company’s monetary influence in electoral campaigns gives elected representatives a powerful incentive to pressure the regulatory agencies to go easy on even an entire industry. From a company’s standpoint, unwanted regulations can be softened or averted outright, or new regulations can be used strategically at the expense of typically smaller competitors that are less able monetarily to comply with stiffer mandates. So it is not simply more regulations that attest to a willingness to “speak truth to power.” Government officials with the courage (and fortitude) to protect the public cannot simply enact laws and regulations that are in a dominant company’s interest. Clearly, the E.U. passed this test in being willing to stand up to Google.



[i] Mark Scott, “Google Fined Record $2.7 Billion in E.U. Antitrust Ruling,” The New York Times, June 27, 2017.
[ii] Ibid.
[iii] Ibid.

Wednesday, September 21, 2016

Tech Industry Self-Regulation: Sufficient to Handle the Ethics of A.I.?

Five of the world’s largest tech companies—Google’s Alphabet, Amazon, Facebook, IBM, and Microsoft—had by September 2016 been working out the impact of artificial intelligence on jobs, transportation, and the general welfare.[1] The basic intention was “to ensure that A.I. research is focused on benefiting people, not hurting them.”[2] The underlying ethical theory is premised on a utilitarian consequentialism wherein benefit is maximized while harm is minimized. The ethics of whether the companies should be joining together when the aim is to forestall government regulation is less clear, given the checkered pass of industry self-regulation and the conflict of interest involved.

People at the companies were concerned at the time that regulators would “create rules around their A.I. work,” so the managers were “trying to create a framework for a self-policing organization.”[3] I submit that the self-policing itself is problematic. For one thing, industry self-regulation can be less than fully effective, as companies have an immediate self-interest in colluding so the industry body lays off from enforcing all the planks agreed-to, even as the self-regulatory body presents a solid front to outsiders. Put another way, people’s faith in companies notwithstanding, senior managers of an industry’s companies can all agree to let the industry’s own regulatory body ease up on enforcement so all of the companies—or even just the market-leader—will benefit. Hence, industry self-regulation can devolve into the proverbial story of the wolf guarding the hen house.

More broadly, the intention to forestall government regulation (with or without industry self-regulation) is ethically problematic in that it presupposes a lawlessness, or inherent weakness, beyond the companies and their industry themselves. Put another way, the pernicious mentality that government control is for the other guy can be behind such an intention. Incredibly, Wall Street bankers still felt that financial deregulation was needed after the subprime-mortgage based bond scandal that nearly brought down the American and perhaps even the global financial system. Image such a mentality—of not needing government regulation in spite of known industry flaws—going with self-regulation. The mentality that the other guy is to blame—in that case, the mortgage borrowers—is conducive to intentional lapses in self-regulation.
   
Back to the tech companies, also in September, 2016 the Stanford Project issued a report that was funded by a Microsoft researcher. The report “attempts to define the issues that citizens of a typical North American city will face in computers and robotic systems that mimic human capabilities.”[4]  The report is a mixed bag.

On the one hand, the report claims that attempts to regulate A.I. would be misguided due to the lack of any clear definition of A.I. and “the risks and considerations are very different in different domains” of it.[5] Regulations are naturally oriented to specifics, however, so they could indeed be tailored to fit the distinctiveness of any given domain of A.I.

On the other hand, the report’s authors wanted to “raise the awareness of and expertise about artificial intelligence at all levels of government,” according to Peter Stone, one of the authors of the report.[6] “There is a role for government and we respect that,” said David Kenny of IBM’s A.I. division. Therefore, the attempt to stave off government regulation would be foolish. Yet a sustained practice of giving information to a regulatory agency can risk regulatory capture, wherein the agency comes to rely on the information so much that the regulated wind up manipulating (via slanted “information”) the agency—and even controlling it. So all levels of government should keep their information sources diverse such that none—especially those of the industry—get in a position of being able to manipulate or control the government on the matter of A.I.

Ideally, the industry and government should work together to keep the companies within acceptable boundaries, yet crucially without the government giving up alternative sources of information, by which the veracity of the industry’s own information can be checked and the government kept from being captured. There is indeed a legitimate role for government regulation, as opposed to relying on an industry to regulate itself; the profit-motive is just too strong for going exclusively with self-regulation. Even Adam Smith maintained that there is a role for government even in a perfectly competitive industry. Now, just how many truly competitive industries are there?



[1] John Markoff, “Devising Real Ethics for Artificial Intelligence,” The New York Times, September 2, 2016.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.

Monday, August 29, 2016

California Passes Stricter Pollution Targets: Bringing Business Around


California’s legislature approved a bill (SB 32) in August, 2016 that extends the climate targets from reducing greenhouse-gas emissions from 1990 levels by 2020 (the former target) to just 40 percent of 1990 levels by 2030.[1] A second law, which includes increased legislative oversight of California regulators and targets refineries in poor areas, passed as well. Diane Regas of the Environmental Defense Fund pointed to California’s climate leadership. “As major economies work under the Paris Agreement to strengthen their plans to cut pollution and boost clean energy, California, once again, is setting a new standard for climate leadership worldwide.”[2] At first glance, it would seem that the legislature had freed itself from big business to pass the bills, but the sector itself was split. I submit the anticipation of a refreshed “cap and trade” program as an alternative (or mitigating factor) to stricter regulations played a role. Simply put, using the market mechanism in government regulation makes the stricter targets more palatable to market-based enterprises.
To be sure, oil companies and some manufacturers fought the bills hard. Of the higher costs and out-of-control regulators supposed or at least advertised by big oil, Governor Brown labeled the lobbying campaign a “brazen deception.”[3] Given the companies’ vested commercial interests, that lobbying effort could have been flagged as a conflict-of-interest situation. Accordingly, that campaign’s credibility should have been hard won, with Californians applying strict scrutiny to the “information.” Sadly, it is not uncommon for regulators to cast aside such a conflict because they are fine with relying on information provided by the very companies being regulated. 
That big oil did not dominate the debate may be due in part to Governor Brown’s use of the market mechanism to appeal to business in spite of the higher target in the legislation. Specifically, the legislation increased the government’s leverage in getting wayward polluting companies to participate in the cap and trade program, which requires companies to buy permits in order to release greenhouse gas emissions. According to Governor Brown, the passage of SB32 would increase the leverage that the government has to “reach an elusive deal with businesses that would prefer a flexible program like cap and trade instead of more stringent requirements to slash pollution.”[4] Business managers prefer flexible programs, and bringing in the market mechanism provides a sense of familiar ground.
Therefore, it is possible that the anticipation of a renewed, fuller utilization of the market-based method increased support for the bills from the business sector, or at least mitigated possible opposition, such that big oil and the climate-denying stalwarts in manufacturing could not dominate the lobbying. Put another way, incorporating the market mechanism either directly or indirectly as an alternative to tougher regulations applied across the board is a political strategy that can split the business vote such that the sector itself does not dominate lobbying campaigns in one direction and thus thwart the voters’ judgments, which should consider the arguments of both sides of a proposal.  



[1] Chris Megerian, “’A Real Commitment Backed Up by Real Power’: Gov. Jerry Brown to Sign Sweeping New Climate legislation,” Los Angeles Times, August 25, 2016.
[4] Megerian, “A Real Commitment.”