Free Speech, As Long As It's The Right Kind of Speech

Petitioners' reply briefing in the Biz Rountable v. SEC, is pretty cute.  Scarily cute.

From the folks at Race to the Bottom:

The petitioners contend further that the shareholders most likely to use the rules [governing proxy access] are union and government pension funds, which have a history of using shareholder activism to pursue non-investment-related objectives that depart from other shareholders’ interests. The petitioners fault the Commission for claiming that the rules further shareholder rights, when the mandatory rules instead disenfranchise the vast majority of shareholders, who may wish to avoid the tremendous costs that proxy access would impose on their company.

The rules violate not only the APA, the petitioners explain, but also the First Amendment by forcing corporations to carry the campaign-related speech of others who necessarily oppose the company’s position, even when that speech is false and misleading. The Commission was obligated to tailor its rules to avoid infringing constitutional rights, but the Commission failed to take First Amendment rights into account when crafting the rules.

While we sputter, a few points.

First.  When the Supremes gave corporations free speech rights, they necessarily gave certain shareholders the power to force others to "carry the campaign-related speech of others."  Unless, of course, the Court meant that shareholders should always vote unanimously.   Shareholders elect directors.  Directors decide how corporate free speech is exercised.  If shareholders don't like the speech, they can vote out the directors.  But it's majority rule.  Someone's going to feel like their voice got drowned out.  That's the nature of the beast.

Second.  Ostensibly, a corporation's right to free speech hinges on the free speech rights of individual investors.  If this is the case, since when must those investors confine their speech to investment-only objectives?  Because that's what the Biz Round says when it bristles at shareholders voting for "non-investment related objectives."

It's sort of like telling people they cay only vote according to their tax interests.

That certain special-interests lobbies "drown out" (or, in the Biz Round's parlance, "disenfranchise") the voices of other voters is nothing new in democracy.  Can we really call society undemocratic because AARP gets more lunch dates with congressmen than does Mr. Smith writing to Washington?  The squeaky wheel gets the oil.  It is, at the very least, amusing -- and blatantly hypocritical --  to hear the corporate lobby whining about the power of "special interests" lobbies, when they represent the biggest and most powerful of them.

Remembering Williams v. Geier and Tenure Voting

Back in the Long Term Capital Management days, Delaware courts were grappling with all sorts of protective devices cooked up by corporate boards (and Martin Lipton) that served as fortresses against the Gordon Gekkos of Wall Street.

One of the many gems of corporate jurisprudence emanating from the courts, Williams v. Geier, dealt with a management and majority-shareholder approved plan to grant weighted voting rights to long term shareholders.

At the time, the minority investors screamed.  Indeed, their cause was a bit sympathetic, especially because the corporate board and the majority of shareholders were dominated by a single family.  Minority shareholders, in this kind of situation, can get the shaft.
But here's the thing.  In Williams v. Geier, the Delaware Supreme Court noted that the board, in giving better voting rights to long term shareholders, was perfectly reasonable corporate policy.  That policy was not one aimed at short-term profits, but instead long-term, sustainable business strategies.  Even if the pursuit of long-term growth  disenfranchisws short-term investors, the Court thought it was still a-ok.  Or, in corporate law parlance, a perfectly legitimate exercise of a board's business judgment that could only be rebutted in the face of evidence of a breach of fiduciary duty.

Notable in this case is it the Justices' dissent: the priority given to long-term interested shareholders over the "equally legitimate investment objectives" of short term investors provoked their ire.

It's very much open to debate, of course, whether the short-termism of minority investors is an "equally legitimate investment objective."  Such short-termism, after all, lead to the kind of financial mysticism that leads to financial crises.
Something to chew over as we finally start paying attention to the fact that not all shareholders are created equal.

What they're teaching the kiddies in law school these days

From Hal Scott's textbook on international finance, v. 17th ed. -- for real:

[public officials regulating fraud aren't as good at enforcement than markets] may be true in developing countries but does not translate to the us where public enforcement officials are not corrupt or captured, and are very well trained (due largely to the revolving door with the private sector).

Is this a joke? Bad editing?  The author, certainly, has an underdeveloped sense of irony and the oxymoronic.


The scary thing is: he came out with the new version precisely to take account of the financial crisis.

History Doomed to Repeat Itself Every 2 Years

Risky debt abounds once again on the capital markets, according to the FT.

So, we've already figured out that there isn't going to be much in the way of regulatory reform.  But one would think that the industry would at least be a little gun shy.

Is  this the result of the so-called "moral hazard" of government bailouts?  For once, perhaps the conservatives were right.  Perhaps government really can't take the place of markets in some situations.  Sometimes, people need to go broke to learn a lesson.

Michael Lewis, in an interview he gave regarding his fantastic historical account of the financial crisis, The Big Short, speculated that perhaps the mess wouldn't have been so bad had investment banks not gone public.  If they had remained partnerships, perhaps the mess wouldn't have been so bad.  Partners in a partnership generally don't let their employees throw billions of company dollars on a roulette table -- especially when odds are much worse than 50/50.   Because what's getting thrown away is the partners' own money.

Not so with corporate executives.  They haven't got any skin in the game.  Their diversified public shareholders? They can pull anything over on those dupes. 

With public corporations, we're left to the government as the only watchdog.

Oy vey.

The Benefits of Technology Into the Laps of Shareholders

Krugman's column today emphasizes that no matter how much "education" students receive (I mean the kind that trains folks for highly-skilled jobs, which is necessary, but not sufficient, for a real eduction), there always remains the spectre of outsourcing and out-moding that comes from globalization and technology advances.

So what can we do to make sure that these turn of events doesn't lead to mass poverty and mind-numbing inequality?

Certainly, redistributive tax policies and collective bargaining helps.  Unfortunately, an effective response is one that must be globally coordinated.  Else we will hear that famous "giant sucking sound" that is the race to the bottom.

The crux of the problem, though, lies with what drives our economy to make these technological advances.  Competition among industry, of course, drives firms to acquire increasing returns of scale, greater efficiencies, and lower costs of production (including technological advances and lower wages).  Where do the profits go?

To shareholders.

What can shareholders do? They can re-invest in capital markets.  They can invest abroad.  Generally, they go where the returns on their investments seem best.  To companies that do the best at cutting costs and increasing efficiencies.

But who are the shareholders?

Certainly, many wall streeters and other members of the upper echelon of wealth.

But they are also many of the rest of us: anyone with a pension fund or 401(k).  Who have a choice and a voice.

If the government doesn't do anything about the non-economic policy of the kind of free market capitalism that's bringing us to these turn of events, the shareholders can.

On Shifting Economies

The newest range among young people -- farming.  It's not unusual to see hipsters flee the cities to go farm somewhere -- whether it's as a group of migrants abroad, or in a small plot of land in Maine.

Though many terrible things can be said of industrial farming -- the Meatrix comes instantly to mind -- that American youth are embracing this form of work seems to reflect the inevitable economic shift arising as a result of globalization.

For much of the last century, farms turned into Agribusiness, and family-owned farms, just large enough to be handled by a few workers, was the lot of the "developing" world.

Perhaps it's time we re-think our definition of which states are the "Developed" and "industrial" kind, and which are not.

The Dangers of Relying on Economic Serendipity

Back when workers, investors, executives and their creditors all relied upon the success of each other for future prosperity, our system of corporate governance worked pretty well better. 

Companies paid workers well, because those workers bought the company's products.  Creditors of the company were on board; their loans would only be made good if the company was in the black. 

And if investors wanted to make money on their savings, they'd invest in these companies.  Wanting those companies to do well, so that they can make that profit, they'd also look kindly on paying workers living wages.

Thus, a hands-off approach to corporate governance, along with an absent-minded (or malicious?) neglect of unions, seemed to work.  In fact, many went so far as to conclude that because of these laissez-faire attitudes, American was assured a future of enduring prosperity.

But it only worked because the companies relied on the prosperity of their own workers.  Or, at least, were forced to through collective bargaining.  And investors, in turn, relied upon the prosperity of those companies. 

In other words, it only worked because of a historical accident: an economy functioning in isolation, on a continent separated from its developed-country peers by entire oceans. 

Enter globalization. 

Suddenly, a company can propsper without the purchasing power of the American consumer.  If it can cut costs and gain competitive advantage by moving to cheaper labor markets, why not? They can suck American consumers dry and, if the pot runs out, well, there are these growing middle classes in India and China.

Moreover, investors can now move their capital freely.  If there's more profit to be made in Bangladesh or Burma or Croatia, that's where they'll go.  The increased capital investment, in turn, leads to changes those countries' comparative advantages -- likely to  investment in longer-term projects that will give them comparative advantage in more sophisticated industries.  Or in any industry whatsoever -- including those industries that America used to embrace. 

With the opening of borders, America's future doesn't look so bright.   We don't have any claim to the world's capital investment.  We don't have any fences limiting the customer base of industry.  In other words, we're out in the deep water with the rest of what we so quaintly referred to as the "Third World."

And our "serendipity" style of corporate and labor governance hasn't got a lifeline to throw us.

Might we look to Western Europe as an example, whose corporate governance regime includes a greater safety net, and whose members started integrating economically decades ago?

Puke

Daley (chief of staff JP Morgan stooge) opinion column in today's FT -- talking about how "pro-business" Obama is.  Citing, inter alia, proposed free trade treaties and the elimination of discretionary spending.

You know, the stuff that hurts working people and the environment.

Wells Fargo - A Bit of Sunshine?

U.S. banking regulators are discussing new rules that would require banks that originate home loans to require larger down payments before they may fully "securitize" the balance.  They aim to make sure lenders, asset-backed security investors and borrowers all have skin in the game.

In other words, if lenders make subprime loans (that require little down payment), they have to suck up some of the credit risk of the borrowers, rather than passing it all on to someone else through derivatives.  As we have all learned to our great regret, those other investors remained ignorant of that credit risk -- whether because they relied on bogus credit agency ratings or because they just rode the real estate asset bubble like everyone else.

The rest is demand and supply: lots of investors wanting home loan securities drive up the price.  Which causes lenders to make more and more of them.  More and more subprime loans.  Which, of course, drive up real estate prices.

Unsurprisingly, most banks are fighting this proposed regulation kicking and screaming.  Some even have the gall to assure us that the financial crisis "self-correction" already caused lenders to fix their lending and securitization practices.

But one bank stands out:

The notable exception has been Wells Fargo, which has pushed for even tighter underwriting standards than the regulators seem to favour. In a recent letter to regulators, Wells Fargo argued that borrowers should be required to make down payments of at least 30 per cent before banks are allowed to fully sell the loans to investors.

“The point we are making, unlike others, is that risk retention is a good idea,” John Gibbons, an executive vice-president with Wells Fargo Home Mortgage, told the Financial Times. “Rather than being something rare or unusual, it should be common in the mortgage industry to align the interests of lenders, borrowers and investors.”

Priorities of the NYT - Today's Front Page

Because the cleanliness of the Wisconsin capital building is what's really newsworthy.

Some Motivation

From Matt Taibbi's blog:

...Nomi Prins’s book, It Takes a Pillage. Nomi, who used to be a VP at Goldman but is now one of the leading authorities on where the bailout monies have been spent and why, frequently makes the point that the bailouts were more about paying off bets than they were about stabilizing the economy. This is from her second chapter, “This Was Never About the Little Guy”:

Here are some numbers for you. There were approximtely $1.4 trillion worth of subprime loans outstanding in the United States by the end of 2007. By the first quarter of 2009, there were forclosure filings against approximately 4.4 million properties. If it was only the subprime market's fault, $1.4 trillion would have covered the entire problem, right?

Yet the Federal Reserve, the treasury, and the FDIC forked out $13 trillion to fix the housing “correction”… With all that money, the government could have bought up every residential mortgage in the country – there were about $11.9 trillion  worth at the end of December 2008 – and still have had about a trillion left over to buy homes for every American who couldn’t afford them.  

And to cover the devastating losses these wankers sunk on teachers' pension funds, we want to take away collective bargaining rights? Of people who make $40k a year (in a generous state) and drive a '98 Ford Taurus????

Union Busting and Book Burning

Paul Krugman noted in his blog today:

That Iraq Feeling

I don’t watch cable news, or actually any kind of TV news. But I gather that there’s a virtual blackout on the huge demonstrations in Wisconsin, except on Fox, which portrays them as thuggish and violent.

What that makes me think of is January-February 2003, when anyone watching cable news would have believed that only a few kooks were opposed to the imminent invasion of Iraq. It was quite spooky, realizing that hundreds of thousands of people could march through New York, and by tacit agreement be ignored by news networks whose headquarters were just a few blocks away.

And it’s even more spooky to see it happening all over again.

Thus, you wouldn't know, for example, that according to a NYT/CBS poll, over 60% of independents support collective bargaining rights -- and over 70% of democrats.

Phil Merritt, 67, a retired property manager from Crossville, Tenn., who identifies himself as an independent, explained in a follow-up interview why he opposed weakening bargaining rights for public workers. “I just feel they do a job that needs to be done, and in our country today if you work hard, then you should be able to have a home, be able to save for retirement and you should be able to send your kids to college,” he said. “Most public employees have to struggle to do those things, and generally both spouses must work.”

Fair wages for fair work.  Unions being the only stopgap (toilet clog? Thanks Mssr. Perot) between our economy and ones found... in Mexico.  And Egypt.  


And this is definitely a class issue.

Although cutting the pay or benefits of public workers was opposed by people in all income groups, it had the most support from people earning over $100,000 a year. In that income group, 45 percent said they favored cutting pay or benefits, while 49 percent opposed it. In every other income group, a majority opposed cutting pay or benefits: Among those making between $15,000 and $30,000, for instance, 35 percent said they favored cutting pay or benefits, while 60 percent opposed it.

It's time folks started standing up for themselves.  To point out to Washington that the emperor has no clothes it sold out to Wall Street -- and that includes, most especially, Obama -- and we've finally pulled the wool from over our eyes.

Silencing the Voice of Activist Investors

Today, the NYT describes a trend in state legislatures to roll over defined benefit pension plans into a version of 401(k).  401(k) funds (because of Taft-Hartley?) are decidedly not-activist.  They are even accused of "apathy" by certain defenders of director primacy when challenged by opponents who decry the lack of "democracy" in corporate governance.

The biggest player? CALPERS.  Who made news last week by forcing Apple into majority voting, and who is now under attack by the Juggernator:

California’s problems are so acute that just last week a government-appointed commission of experts urged the state to consider at least a partial switch to 401(k) plans; six years ago, an effort by Arnold Schwarzenegger, then governor, to move new employees into such plans was blocked by local governments and public-employee unions.

Making everyone roll their pension fund into a 401(k) will kill CALPERS.  Which is exactly what industry wants.

Exec Pay as a Strawman?

Biglaw partner Jeremy Goldstein has a piece on why corporate directors deserve their hefty paychecks.  Certainly, the downward pressure on these paychecks is coming from many directions -- from Dodd-Frank, from institutional investors with their say-on-pay votes.  A manifestation of populism and deep frustration at our crap economy and the financial boondoggles that have made us all victims.

Over the past decades, we've seen the paychecks of working people stagnate, subsidized by easy credit, while the surplus value got allotted directly into the pockets of the uber -- and growing uberer -- rich.

But has anyone ever done a study to see how much more corporate executives have been making vis a vis the bankers?  Arguably, at least corporate executives do productive things, like, um, run companies that make things and pay workers.  The bankers, though?

One might even argue that the crowing of activist pension fund investors is a bit misplaced.  They should be targeting not so much corporate leadership, but the titans of wall street.

Noon Tomorrow

Get off your couches and find your local rally.

Our unions are our last best hope to preserve a comfortable middle class lifestyle.