Pragmatic Utopia #37

White Collar Time

I’ve been enjoying the show Billions, which is about the U.S. Attorney for the Southern District of New York (Paul Giamatti) investigating a hedge fund titan (Damian Lewis) for insider trading. It’s loosely based on Preet Bharara’s efforts to nail Steven A. Cohen of SAC Capital on similar charges. Bharara was featured on the cover of Time magazine with the headline “This Man is Busting Wall St.” As it turned out, the government did manage to convict two lower-level employees on insider trading, but could only settle with Cohen on a minor charge of “failure to supervise” those employees. SAC Capital ended up paying $1.8 billion in fines and has renamed itself.

Jesse Eisinger’s new book about white collar prosecution argues that the SAC case is about as good as it gets for the government. The title is quite direct: The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives. Preet Bharara didn’t bust Wall Street after the financial crisis; no one did. Bharara did convict several hedge funds executives for insider trading, but Eisinger argues that these cases are easier and less important than cases for alleged securities fraud which were central to the financial crisis.

Here’s a good example of what he means by securities fraud. Perhaps the biggest winner in the financial crisis was John Paulson, whose hedge fund (Paulson & Co.) made over $4 billion betting against the housing market. A quarter of that profit came from a financial instrument called Abacus. Abacus was a collection of subprime home loans packaged into bonds. Paulson selected the bonds–the worst ones he could find–with an express interest in betting against them.

But how to get someone else to take the other side of the bet? So Paulson hires Goldman Sachs to pitch the deal to some other investor. Goldman finds a German bank, IKB, which is interested in buying the mortgages on the condition that some third party helps pick them out. Enter ACA, a bond insurer, to do just that. But ACA doesn’t know that Paulson has already picked out the mortgages, or that Paulson is going short on the deal. Goldman doesn’t tell them. So ACA happily outsources much of the work to Paulson, rubber-stamping its careful choices. The SEC would conclude that Goldman misled ACA about the nature of the deal and Paulson’s role. ACA and IKB  took major losses.

James Kidney, the lead lawyer working the case for the SEC, thought the government should charge Goldman and Paulson with “scheme liability:” essentially, conspiring to build a product they knew would fail and selling it to unwitting investors. Kidney was rebuffed by his supervisors. The reasons, in this particular case, are a pretty good microcosm for the broader forces hampering white-collar criminal prosecution throughout the book.There was institutional and personal timidity: Kidney’s bosses feared they might lose. There was a vicious cycle, where failure to prosecute top executives in previous cases had eroded the subtle investigative skill of flipping lower-level employees against their bosses (watch Paul Giamatti’s character to see how it’s done). The courts had impeded white-collar prosecutions after backlash from the defense bar; in this case, the Supreme Court had neutered scheme liability law with a 2008 ruling (Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc.) that “private investors could not sue a secondary participant in a fraud scheme, unless that participant had made misleading statements directly to the plaintiff.”

But such rulings don’t happen in a vacuum; it didn’t help that the Bush-era Justice Department and SEC had written briefs in Stoneridge against allowing private investors to hold such fraud participants liable. The government was actively trashing the tools used to hold executives accountable.

At least in the case of scheme liability, the government itself was still allowed to bring charges. The same cannot be said for the “honest service” charge, another arrow removed from the prosecutorial quiver in the last few years. Until recently, the government could charge executives who secure personal benefits at their company’s expense with depriving their shareholders of “honest services.” Critics say this charge was used as an overly broad catch-all for any conflict of interest or self-dealing. It was one of the charges used against Enron executives Kenneth Lay and Jeffrey Skilling. In Skilling v. United States (2010)–which was decided 9-0, please note–the Supreme Court narrowed the reach of the charge only to “bribery and kickback schemes,” removing self-dealing from its ambit.

Within a week of the Skilling verdict, courts across the country dismissed charges and vacated convictions of businessmen and politicians accused of fraud. But the really striking thing about the honest services charge is the selective effort the government made to reinstate it. A few months after the ruling, Lanny Breuer, the chief of the criminal division for Obama’s Department of Justice, testified in Congress to advocate for a statutory fix to the honest services clause. But he only asked Congress to strengthen the law for public corruption cases, content to let the private sector equivalent wither and die.

Breuer is one of the main targets of Eisinger’s criticism. Some of the criticism is personal to Breuer: that he meddled in active cases (U.S. Attorneys usually have significant autonomy from Washington) and that he cared too much about how the Department’s cases made him look. E.g.: “Gary Grindler, Breuer’s first deputy, would emphasize to prosecutors that losing cases would reflect poorly on the front office. Grindler told Pelletier [a hard-charging prosecutor] one day, “You know, if you lose this case, Lanny will have egg on his face.” “I don’t give a shit about that!” Pelletier yelled. The sentiment jolted him. He was apoplectic. “Nobody had ever said anything like that to me in more than twenty-five years of prosecuting federal cases.””

But the more systemic charge is that Breuer, like many government lawyers, was a product of the revolving door culture between white-collar defense firms and the DOJ, and was thus unduly sympathetic to corporate executives and their lawyers. Eisinger depicts a bizarre scene where, as the government was deciding whether to indict HSBC for money laundering, Breuer pulled aside HSBC’s lawyer at a meeting and asked him when he thought it was appropriate for the government to indict a major bank. When people talk about “regulatory capture” they rarely have something so literal in mind.

Breuer has spent his whole career alternating between jobs in Democratic administrations and stints at Covington & Burling, as is the norm for elite lawyers with an interest in public service, increasing their cash-out value, or both. I’ve long been skeptical of this arrangement, and The Chickenshit Club is a helpful book for illustrating exactly how it breeds a culture of gentlemanly compromise between regulators and corporate America. The government seeks to settle most cases even before interviewing key witnesses or putting in the work necessary to charge individuals.

The book includes plenty of billion dollar fines, which the government sells to the public as mission accomplished. But, as far as Eisinger can tell, these fines serve neither justice nor deterrence. Big fines hit shareholders, not the culpable individuals. Companies see such fines as the cost of doing business. In the Goldman / Paulson case I described, the only individual found liable was Fabrice Tourre, a 20-something Goldman trader from the London office. He was the only person foolish enough to write about deceiving the German bank over email, but surely not the only person at Goldman to know about the scheme. Across the board, only one executive–Kareem Serageldin of Credit Suisse–went to jail in the wake of the crisis.

The counterargument from revolving door beneficiaries is that their experience on the defense side helps them understand the intricacies of corporate operations and thus become better public officials. It’s a rather one-sided definition of better. You don’t see these same people spending a stint as public defenders to learn the intricacies of criminal law. Or working in housing court, or in bankruptcy court, to better understand the consequences of financial fraud on the public. We’re all products of our experience, and it’s no surprise that people who spend half their careers defending the rich and powerful carry that mindset into public service.

In any case, the argument is shaky in its own right. Two of the heroes of Eisinger’s narrative, Stanley Sporkin at the SEC and Paul Pelletier at DOJ, spent most of their careers in unbroken government work, becoming more and more expert in the ways of corporate fraud and how to uncover it. Pelletier only moved to the private sector, reluctantly, when he lost an internal battle with Breuer over whether to prosecute executives at AIG Financial Products.

Eisinger’s reporting on financial crimes and prosecutorial inaction is top-notch–he won a Pulitzer for it in 2011–and The Chickenshit Club is great fun if you like picking apart securities fraud. It’s also the most useful thing I’ve read for understanding the culture and process of U.S. Attorney’s offices, especially the Southern District. In Eisinger’s depiction (and in every other one), Southern District prosecutors are extremely proud of themselves and the work they do. When it’s working–when they’re actually holding Wall Street accountable–I have trouble blaming them. It’s not that they’re so great (I really don’t know how great they are), it’s that we have almost no other mechanisms for doing what they do. Especially after the Stoneridge case which limited the private right to sue for securities fraud, we’re pretty much dependent on public prosecutors to do it.

Financial fraud is really complicated! Like, many times harder to prove than murder. And investigators will always have the deck stacked against them when the people perpetrating the fraud employ ten times as many lawyers making ten times the money each (these numbers seem in the ballpark, based on the book).It would be great to pay government investigators more, but it might be more realistic to pay corporate lawyers less. That could happen for two reasons, I think: decreased efficacy of white-collar legal assistance and lobbying, or lower corporate profits. I’m increasingly of the opinion that the courtroom and the statehouse are the key terrain where corporate America makes its money, so these avenues are mutually reinforcing. An alternative strategy would be to change the culture within the legal profession to make it shameful to build a career defending securities fraud. I’m looking forward to making friends in law school.

1. Cool paper by Nathan Wilmers finds industries that rely heavily on high-income consumers have greater wage inequality due to vertical differentiation. “Our intuitions about the effect of wage inequality on consumer welfare rely on an increasingly outdated picture of a mass consumption economy.”
Here’s a good figure: 
2. In discussions of globalization and neoliberalism, people like me often frame the problem as a loss of democratic control over the economy. So I was intrigued and challenged by this essay from Jacob Levy arguing that there never was such control. In challenging the notion of economic sovereignty, Levy’s main point is that
“The modern state is a creation of the bond market, and so is the modern democratic state. Medieval mercantile cities had long been able to borrow money at better interest rates than other political units. In early modernity, states that were relatively representative and relatively commercial learned that they could do the same. First Holland, then England, gained crucial advantages in international competition from their ability to borrow cheaply.” 

It’s a good point whose historical dimensions I’d like to study further. If you can suggest any reading on the relationship between international banking and state capacity in the age between Medici and Rothschild, I’m all ears. For now I’ll just observe that even when a state has debt, there are degrees of freedom within the tax and public finance systems as to how that debt will be paid, and ultimately by whom.

3. If you haven’t seen anything about the controversy over Democracy in Chains, a new book on the intellectual history of public choice economics, the Koch brothers, and conservative ideology, you should probably skip this and go on living your life. If you have been following, I recommend this essay as the closest approximation to where I’ve landed. And once you’ve lost (Nixon scholar) Rick Perlstein, you’ve lost me.

Pragmatic Utopia #36: What Happened After the War?

Bomb damage in West Berlin

I recently read most of Tony Judt’s epic history of postwar Europe, Postwar. I’m up to 1989, and will read and discuss the rest in a different post about the post-Soviet transition. In general, we spend so much more time learning about wars than about how life changes in the aftermath. Wars are discontinuities, opportunities for breaks with the past (good and bad) that would have been inconceivable otherwise. This is a major theme of Piketty’s analysis: the World Wars as the rare points in modern history when the capital stock (and thus, wealth inequality) were reset.

Without much of a common thread, here is a hodgepodge of interesting facts, themes, and perspectives I encountered in Postwar:

  • I wasn’t aware of the vast resettlement of ethnic populations back to their “home” countries after World War II, e.g. millions of Germans sent back to Germany from Poland, Hungary, and Czechoslovakia. Countries like Bulgaria, Turkey, and Czechoslovakia exchanged hundreds of thousands of their co-ethnics with one another. Judt comments that in this way Hitler’s project of ethnic cleansing was fulfilled by everyone else; there was too much resentment and distrust not to do so.
  • Hard to keep straight the factions in wartime Yugoslavia. The Ustase regime in Croatia was a Nazi puppet state given free reign to murder Serbs and Muslims. The Chetniks were a monarchist Serb resistance movement that engaged in extensive collaboration with the Ustase, and also killed Muslims. Bosnian Muslims thus sometimes sided with the Nazis in their own defense. The Communist Yugoslav Partisans, led by Tito, were considered Europe’s most successful anti-Axis resistance movement. They had to convince the Allies to support them instead of the Chetniks. My sense is that there were no saints in wartime Yugoslavia. Are there great novels or films about this time? There should be.
  • In eastern Europe, wartime property seizure by the Nazis and then the subsequent free-for-all after their defeat created one of the most dramatic redistributions in modern history. In this way property passed from dispossessed minorities, especially Jews, into the hands of hundreds of thousands of peasants. In some countries a quarter of national wealth changed hands.
  • A consensus emerged after the war to treat Austria as “Germany’s first victim” rather than a guilty party. Among other things, this appealed to Churchill’s insistence that Nazism had uniquely Prussian origins. So the Austrian leading class of academics, civil servants, and military officers got off relatively light despite pervasive Nazi representation. In another book I’m reading, Christopher Hitchens comments, “As is said, the two great achievements of Austria were to convince the world that Hitler was German, and that Beethoven was Viennese.”
  • Judt argues that denazification was more thorough in East Germany than in the West, but that this was based on the convenient misrepresentation of Nazism as out-of-control capitalism while downplaying the racial ideology. I had not realized that until the 1960s, a significant share of West Germans remained sympathetic to the Nazi Party and war effort, casting blame only on Hitler personally.
  • The first significant plan for postwar reconstruction (pre-Marshall Plan) was France’s Monnet Plan. Jean Monnet (“the Father of Europe”) spent the war in the United States helping convince FDR to serve as “the arsenal of democracy.” It would be interesting to read about the influence of the New Deal, via both the Monnet Plan and the Marshall Plan, on European reconstruction planning.
  • Did you ever wonder where all those Christian Democratic parties came from? These parties emerged after the war in most western European countries as a way to wrangle the socially conservative Catholic vote, which would never go socialist, into supporting reformist, left-leaning policies. It was possible because the traditional right-leaning parties were all discredited. In their early years, these parties were marked by disproportionate female support and by very old leaders born in the 1870s (e.g. Konrad Adenauer), the past two generations decimated or compromised.
  • While the British foresaw the divided Germany settlement as early as 1943, French leaders insisted that Germany should be dismantled and its coal regions put under French control. “A European solution to France’s Germany problem could only be adopted once a properly French solution had been abandoned, and it took French leaders three years to accept this.”
  • Judt emphasizes how tenuous things felt in 1947: no recovery in sight, widespread fears of descent into communism or anarchy. Even optimists thought France and Germany would emerge from poverty in no fewer than twenty years. This is the context in which the Marshall Plan was so important–moreso politically than economically.
  • Marshall aid was offered to all countries. Poland and Hungary, occupied by the Red Army, had no choice but to decline. But Czechoslovakia also bowed to Soviet pressure to decline the funds, which would have been immensely popular. Judt thinks had the Czechs accepted the money, the Communist coup of 1947-8 would not have been possible. In Czechoslovakia, unlike the other Eastern Bloc countries, the Communist party was very popular on its own terms and had won a parliamentary plurality fairly. Nonetheless, Stalin felt the need to consolidate Communist control by force. This move turned many other socialists in western Europe against Stalin, and probably saved Finland, which would have been the next country targeted.
  • Some of the first insights into possible European economic cooperation came from the administrators of Vichy France, tasked as they were with integrating German coal mining with French steel production. This first step of cooperation had unexpected fans; here’s George Kennan: “It often seemed to me, during the war living over there, that what was wrong with Hitler’s new order was that it was Hitler’s.”
  • When the European Coal and Steel Community was formed in 1951, all six foreign ministers involved represented Christian Democratic parties. And the three main prime ministers all hailed from the borderlands of their own countries: Robert Schuman from Luxembourg (his father a German citizen!), Konrad Adenauer from the Rhineland, and Alcide De Gasperi from South Tyrol, at that point part of Austro-Hungary.
  • A major theme of the book is how “Western Europe” and “Eastern Europe” were split apart in the modern imagination and in reality. Pre-war Czechoslovakia was comparable to Belgium in industrial skill, productivity, standard of living, and exports. Its prescribed role in the Soviet manufacturing universe represented enforced backwardness.
  • Judt’s best topic (the subject of his earlier scholarship) is the story of European intellectuals’ infatuation with and, in some cases, ultimate rejection of communism. In general, the most enthusiastic intellectuals were French ones who had no firsthand experience of communism. Judt admires Raymond Aron and Albert Camus for balancing their leftist commitments with a principled, consistent condemnation of Stalinism. Jean-Paul Sartre, perennial apologist for Stalin, gets heaps of withering scorn. Judt cites the translation of The Gulag Archipelago as a key moment for mass disillusionment of Western intellectuals–but not Sartre, who called Solzhenitsyn “a dangerous element.”
  • The first decade of the Cold War gave German politicians on both sides major leverage over their respective Great Power patrons. The United States and USSR were both afraid of losing credibility with “their” Germans, so Adenauer and Ulbricht were able to extort them. This is one way of understanding why Germany was allowed to re-arm and join NATO as early as 1955. The Berlin Wall helped settle things and assuage everyone’s concerns in this regard; I was not aware the extent to which West German leaders were secretly quite pleased about the Wall as a guarantee of stability.
  • The French were deeply opposed to German NATO membership at that point but were won over in part by American financing for their war in Vietnam.
  • The way we learn Cold War history in the U.S., we forget how colonial independence movements were the dominant story of the 1950s for Europeans. The Dutch are an interesting case here: grudgingly pivoting from Indonesia to Europe, recasting their lot the European integration project.
  • I had forgotten how much of the French commitment to Algeria was driven by right-wing settlers, not all of whom were even French (Algeria’s “European” population drew a mix of settlers from Spain, Italy, etc.). The settlers voted overwhelmingly for de Gaulle’s return to power and thus felt betrayed when he moved to let Algeria walk. The rest is in The Day of the Jackal.
  • Divergent lessons of the Suez crisis: British and Israelis realize they can’t afford to cross the Americans; French conclude they can’t rely on them.
  • Also, important to remember how the timing of Suez distracted from the Soviet occupation of Hungary. Emboldened in party by Radio Free Europe, Hungarians thought America would step in to protect their uprising. Not only was it the last week of Eisenhower’s reelection campaign, the basic fact is that the U.S. was never going to go to war for Hungary. Which makes you wonder how secure the Baltics should really feel about NATO.
  • Keynes on the malaise of the postwar British economy: “If by some sad geographical slip the American Air Force (it is too late now to hope for much from the enemy) were to destroy every factory on the northeast coast, we should have nothing to fear. How else are we to regain the exuberant inexperience which is necessary, it seems, for success, I cannot surmise.”
  • An essential fact about the wildly successful Swedish Social Democratic Party is that it pragmatically dropped the anti-rural strain that characterized most European socialist parties. Judt says nowhere else was such a worker-farmer alliance conceivable.
  • The German version of the 1960s student movement consisted of people too young to remember the Nazis. Their main enemies were Americanization, consumerism, and the Western-facing government in Bonn. A popular slogan: “Vietnam is the Auschwitz of America.”
  • There was a bizarre Western affinity for Romania during the Khrushchev years because it split somewhat from the USSR and pursued a more nationalistic, Stalinist path under Ceausescu. Nixon became the first president to visit a communist state in Romania, 1969. Romania was the first Warsaw Pact state to enter the IMF, World Bank, and gain U.S. most-favored-nation trading status.
  • Of Poland’s thirty-thousand remaining Jews, twenty-thousand left the country in 1968-9, scapegoated for their association with a critical student movement (an impeccably Marxist one, at that!) led by Adam Michnik and others. I think I would like to read some of Michnik’s work.
  • In the U.S., we hear nothing about the wave of European terrorism in the 1970s: Basques, the IRA, the Baader-Meinhof group in Germany, and the Italian Red Brigade. The latter two were vaguely leftist groups with no clear agenda beyond destabilizing the state.
  • Portugal, in fighting to keep territories in Angola, Mozambique, and Cape Verde, lost a greater share of its population than the U.S. in Vietnam. The badly underpaid officer corps was resentful and conspired to oust the old regime in 1974.
  • The share of of Britain’s GDP going to public expenditure was virtually same in 1988 as ten years before, despite Thatcher’s massive privatization campaign. How? Unprecedented unemployment benefits came due. Judt observes acerbically that if privatized companies became profitable, it was because the state had socialized the expense of superfluous workers.
  • Khrushchev once said that if he were British he would vote Tory, while Gorbachev said his favorite foreign leader was the socialist Felipe Gonzalez of Spain. Is there a more telling anecdote for understanding the USSR?

1. Founders and cynics
You may have noticed that on the intellectual left, it is considered a sign of naivete to be too enthusiastic about American history or American ideals. This rule is particularly visible around the 4th of July, when we are reminded that celebrating the founders is childish hero worship as they were aristocratic slave-owners. Jeff Stein at Vox summarizes the historiography of the Revolution and argues that despite the founders’ personal flaws, the Revolution was a truly populist movement and a major force for both racial and economic equality at the time. “Slavery was legal in every colony, and the Revolution led directly to the abolition of slavery in the northern United States,” says one historian.

Stein points out that nearly every movement for equality in American history has cloaked itself in the language of the Revolution. I was reminded of this when re-reading Frederick Douglass’s “The Meaning of July Fourth for the Negro,” which I try to read most years. As you know, this speech is the big gun that smart leftists trot out when we want to chastise you for being too smug about the 4th of July. And indeed it’s a blistering speech. Douglass says “O! had I the ability, and could reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke.” And he does. But if Americans are guilty of hypocrisy, American ideals point the way out. He argues at length that the Constitution does not sanction slavery, but rather is hostile to it. And he “draw[s] encouragement from the Declaration of Independence, the great principles it contains, and the genius of American Institutions.”

This may have all been a rhetorical ploy for Douglass, playing to his audience’s fantasies. But this is the kind of fantasy that, if we all believe in it long enough, becomes a reality. The Declaration and the Constitution come to mean what we want them to mean. Those who would discard them and ground egalitarian politics on other terms should ask if we have anything better.

2. Rebuilding the network
Last week I wrote about the concept of network power, the winner-take-all dynamic that coerces people into adopting the most popular protocol or network. I mentioned that tools for translating between protocols can help keep any given network from becoming too entrenched. An op-ed from Luigi Zingales and Guy Rolnik makes exactly that point in the context of avoiding lock-in on Facebook or other social networks. For the problem of network monopoly, they propose reassigning key property rights over the network connections to you, the user: “It is sufficient to reassign to each customer the ownership of all the digital connections that she creates — what is known as a “social graph.” If we owned our own social graph, we could sign into a Facebook competitor — call it MyBook — and, through that network, instantly reroute all our Facebook friends’ messages to MyBook, as we reroute a phone call.” Joshua Gans discusses the proposal here. “The larger issue is how these links work is constantly evolving yet having a consumer controlled social graph may make it difficult to be responsive.” It’s true that Facebook adds new features all the time. But it seems to me that the core underlying feature that make it attractive–the links to one’s friends–is very simple and easily ported.

3. MBAs will love this book 
A while ago I wrote about Edmund Phelps’s book Mass Flourishing, which, while I disagreed with much of it, contained a thought-provoking attempt to put “dynamism” at the center of economic history and even a philosophy of economic life. Phelps touted the work of his collaborator Amar Bhidé, which I finally got around to. The Venturesome Economy: How Innovation Sustains Prosperity in a More Connected World turned out to be a narrower book than the title indicated. I thought it would be a meditation on the value of “venturesomeness.” It turned out to be a takedown of the idea that we should worry about other countries getting ahead of the United States in advanced scientific research. Not exactly what I was looking for, but plenty interesting on its own terms.

The main idea is that if we’re being nationalistic, we should care more about our country’s capacity for mid-level innovation than advanced research. “Because high-level ideas cross borders easily, a nation’s venturesome consumption–the willingness and ability of intermediate producers and individual consumers to take a chance on and effectively use new know-how and products–is at least as important as, if not more important than, its capacity to undertake high-level research.” For this reason he is skeptical of the effort to channel top students into STEM; he thinks managers and marketers are just as important for the nitty-gritty work that brings innovation to life. And since organizational and consumer-facing innovations tend to be more context-specific than pure science, they are less likely to benefit other countries.

The other big idea is that “Continued prosperity in advanced economies crucially depends on innovations that increase the productivity of the services sector.” Bhidé is extremely skeptical of the conventional wisdom that information technology has not increased overall productivity, but alas this book is not the place to find that question neatly wrapped up.