The Fight to End Corporate Personhood Comes to NYC

New York has taken a stand in the fight against corporate personhood; will they be the last that pledges to reverse Citizens’ United? Follow as the New York City Council votes on Resolution 1172 to oppose the decision.

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Paradise Lost: The Garden of Democracy

Author Nick Hanauer doesn’t believe that capitalism is inherently bad, but rather that it is an essential part of a larger ecosystem that we haven’t yet figured out. “Job creators” is constantly used when talking about the economy, but what does that really matter? And are they really solely responsible for spurring our economy on?

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Barry Ritholtz: Time to Call Out the Government on Debt

We will never be able to force the necessary restructuring on global debt until we actually call out the government — or, force a crisis on the government effectively to do with these things.

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Wall Street Justice Means Nobody Gets Pinched: Jonathan Weil

By Jonathan Weil – Feb 9, 2011 9:00 PM ET for BN

Here’s another discouraging lesson for anyone hoping the people who caused the financial crisis will be brought to justice someday. Just because the Securities and Exchange Commission has accused a too-big-to-fail company of committing an outrageous fraud, that doesn’t mean the agency will hold anyone accountable for it.

Imagine that: A fraud without fraudsters. To believe the SEC, this is exactly what happened at General Electric Co.

It’s been 18 months since GE paid a $50 million fine to settle the SEC’s claims that it had resorted to accounting fraud to avoid missing Wall Street analysts’ earnings predictions back in 2002 and 2003. At the time the deal was disclosed, the SEC said it had concluded its investigation with respect to GE, which neither admitted nor denied the commission’s allegations.

However, the SEC left open the possibility it would sue one or more of the individuals responsible for the alleged fraud at some later date. There’s been no word from the SEC about the case since it filed its settled complaint in August 2009.

Now we can say how the story ends. An SEC spokesman, John Nester, told me the SEC’s investigation is over, and has been since spring 2010. The SEC won’t be suing any individuals as a result of its probe. Nester declined to comment further.

For all the times the SEC has been criticized for going soft on corporate fraud, the GE settlement stands apart. To understand why, you need to dig into the details of the SEC’s allegations against the company.

Knowing It’s Wrong

The SEC accused GE of committing fraud with scienter –that is, with intent or knowledge of wrongdoing — in violation of section 10(b) of the Securities Exchange Act of 1934. There’s no more serious claim in the SEC’s arsenal. Yet somehow the SEC couldn’t finger a single person at GE who violated any rules at all, much less anyone who committed fraud deliberately.

The case is now such a distant memory that Jeffrey Immelt, GE’s chief executive since 2001, last month was named chairman of President Barack Obama’s Council on Jobs and Competitiveness. A GE spokeswoman, Anne Eisele, declined to comment.

We can only guess why the SEC decided not to sue any actual people in this case. Maybe the evidence was weak, and GE paid the equivalent of greenmail just to make the SEC go away. Perhaps the SEC’s original targets threatened to litigate until the end of time if they were sued, draining the agency’s limited resources. Or maybe the SEC’s lawyers decided to cut them a break for some nobler reason.

We don’t know and probably never will. Too bad the U.S. district judge who approved the settlement, Robert Chatigny of Hartford, Connecticut, rubber-stamped it without asking the parties any questions.

Corporate Collectivism

Another possible explanation: Perhaps the SEC reasoned that a bunch of individuals collectively had enough information to know GE’s accounting was wrong, but no one person knew everything. In legal circles, this theory sometimes is called collective scienter. In other words, in a civil claim against a corporation, the knowledge of one or more employees is combined with the misstatement of another employee to establish scienter, even if none of them acted with scienter individually.

The problem with this theory is that most federal appeals courts have rejected it, according to a 2009 New York University law review article by Bradley Bondi that was published while he was counsel to SEC Commissioner Troy Paredes, one of the commission’s two Republicans. To be sure, all the judicial rulings in the area of collective scienter involve private securities litigation. So the question of whether the SEC can use the theory remains unanswered, Bondi wrote. Bondi, now a partner at the law firm Cadwalader Wickersham & Taft in Washington, in his article urged the SEC to avoid the approach.

Proving Liability

Here’s how the Second Circuit Court of Appeals described the traditional approach to corporate liability in a securities fraud suit: “To prove liability against a corporation,” the court wrote in a 2008 decision, “a plaintiff must prove that an agent of the corporation committed a culpable act with the requisite scienter, and that the act (and accompanying mental state) are attributable to the corporation.”

The court where the SEC filed its GE complaint is part of the second circuit. By the logic of the appeals court’s 2008 decision, the SEC couldn’t have established that GE acted with scienter unless it proved one of its employees did, too. Now we know the SEC gave up trying to bring such a case.

Given all this, here’s why the GE case would worry me if I were the general counsel for a public company. Even if the SEC had no evidence that any of my company’s employees committed a 10(b) violation, its lawyers still could try to string together a bunch of diffuse facts to make it look like the company had deliberately committed fraud, in hopes of pressuring it into a settlement that would lead to a splashy press release.

The message for investors is equally troubling. It makes no sense that GE could have defrauded its shareholders unless some living, breathing people committed the same violations. So either the wrongdoers got off scot free, or the SEC shouldn’t have brought the case it did against the company.

This isn’t enforcement. It’s a charade.

Jonathan Weil is a Bloomberg News columnist. The opinions expressed are his own.)

To contact the writer of this column: Jonathan Weil in New York at jweil6@bloomberg.net

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net

White House Allies Push Bank Lobby Line On Government Mortgage Reform

The following is produced in partnership with The Dylan Ratigan Show’s weeklong “No Way To Live” series on the financial crisis and its impact on ordinary Americans.

WASHINGTON — Quiet discussions are going on between Washington and New York’s financial elite circles to chart a course forward for the mortgage market and the federal government’s role in it.

The loan-guarantee structure built during the Great Depression, which created the 30-year mortgage, spiraled out of control over the past decade as banks took advantage of the government backing to dump garbage loans on the taxpayer. The housing collapse led to the seizure of Fannie Mae and Freddie Mac, which the government now holds in limbo as banks continue to back up garbage trucks and deposit the waste of the past decade.

How to reform this system while maintaining continuity of the availability of affordable, 30-year mortgages is the question facing policymakers. How to make billions of dollars while doing it is the question facing banks.

Now, a leading liberal think tank has put forward a reform agenda similar to that of the banks. Last week, the Center for American Progress rolled out its plan to reform the government-owned mortgage giants currently propping up the U.S. housing market. Progressive critics have been quick to cry foul.

The U.S. government currently backs 90 percent of all new mortgages, with Fannie Mae and Freddie Mac the biggest players. The firms buy mortgages from banks, package them into securities and sell them to investors. If loans in the securities default, Fannie and Freddie take losses, rather than investors.

From 1968 to 2008, the companies, known as government-sponsored enterprises (GSEs), were officially private, for-profit firms, but an implied government guarantee led investors to believe they would be bailed out in the event of a crisis, a belief which proved true in the summer of 2008. That view distorted market incentives, encouraging the entities to take on big risks in order to score big profits.

The government took control of the mortgage giants under the terms of the bailout, which the Federal Housing Finance Agency currently expects to cost taxpayers $151 billion, although the total price tag could reach $259 billion if the economy sours further.

The CAP report is written by its mortgage finance working group, which features several housing experts otherwise unaffiliated with the think tank. The report recommends replacing Fannie and Freddie with new private, for-profit firms which buy up mortgages from banks, package them into securities and sell them to investors. The government would explicitly guarantee investors in these securities against losses, but would not guarantee the new firms themselves against losses. If the mortgages default, though, it’s still the government that loses money, rather than the firms.

The same general recommendation was put forward in September 2009 by the Mortgage Bankers Association, a major D.C. lobbying firm that includes some of the nation’s largest banks. And it’s easy to see why bankers like the idea — it means big money for Wall Street.

In the CAP report, these new Fannie-and-Freddie-like firms would be replaced with “Chartered Mortgage Institutions” or CMIs. In the MBA report, they’re referred to as “Mortgage Credit Guarantee Entities,” or MCGEs. But there’s a key, very profitable difference between these proposals and the current system: Banks could share ownership of the new firms, taking in fees created by securitizing mortgages that the government guarantees against losses.

“The ownership of at least one of the MCGEs could be in a co-op form with mortgage lenders as shareholders,” the MBA report reads. The CAP report explicitly suggests allowing banks to share ownership of the new firms, along with two other ownership structures, but does warn that, “a cooperative owned by very large originators could potentially become so dominant as to crowd out other CMIs.”

Even before the heated days of the housing bubble, Fannie and Freddie reaped enormous profits from its mortgage securitization and guarantee business. The CAP plan would allow banks to score the profits previously enjoyed by Fannie and Freddie, while sticking taxpayers with the risk.

“This whole cooperative idea, handing the banks the keys to the kingdom to become the new GSEs, that’s just a terrible plan,” says Joshua Rosner, a former GSE analyst who now works as a managing director for Graham Fisher & Co. “Why create a new class of too-big-to-fail GSEs? The banks have wanted to be the GSEs forever, and now they think they’ve finally got their chance.”

But even if financial firms were barred from owning the new Fannie-and-Freddie-like firms, the benefits from the government guarantee on mortgages will still flow directly to banks, and only indirectly to taxpayers. With the government standing behind any losses, banks that extend mortgages to borrowers would not have to worry about losing money if a borrower failed to repay the loan. That means plenty of risk-free fees for banks, as taxpayers explicitly assume risk.

The plan is not without benefits to consumers. Its proponents emphasize that the arrangement will keep mortgages cheap and readily available. If banks don’t have to take on any risk, they don’t have to charge much for loans, either. And some losses for taxpayers would be cushioned by an FDIC-like insurance fund, which the new mortgage giants would pay into.

Critics of the plan acknowledge that it would keep interest rates on mortgages lower than they would be absent a government guarantee. But they argue that subsidizing housing can be better achieved through the tax code, rather than a complex mortgage finance system that reinforces Too Big To Fail, by creating a new set of firms critical to the functioning of the U.S. housing market. And investors may not believe the government when it says it will not bail out the new firms — that was the official government stance on Fannie and Freddie for years. If the market views the new firms as too big to fail, critics envision the entire GSE disaster repeating itself.

The MBA report calls for “two or three” new GSEs at first, but would give the government the authority to charter additional firms. David Min, who heads CAP’s mortgage finance working group, told HuffPost that their plan doesn’t specify how many firms could act as Fannie-and-Freddie-like firms. “We can’t really predict,” Min said. “It depends on how much private capital comes in.”

Rosner, the former GSE analyst, said the CAP model only makes mortgages less expensive by increasing systemic risk. More direct housing subsidies would not have that problem, he said.

“If we’re concerned about people who will not have access to credit, take that out of the GSEs and housing finance and call it housing policy,” Rosner said. “If we believe that there are specific borrowers who need access to credit, then it seems to me those should be explicit government programs.”

In a March report, Raj Date, then head of the think tank Cambridge Winter Center for Financial Institutions Policy, argued that tax subsidies were a much more efficient method for promoting homeownership than a taxpayer-backed housing finance system, which creates enormous systemic risks. Date, now a top adviser to Elizabeth Warren at the Consumer Financial Protection Bureau, declined to comment for this story.

“[The government should] create transparent homeownership subsidies, or none at all,” Date wrote in March. “If . . . policy-makers decide to continue promoting artificially high levels of homeownership, more straight- forward cash subsidies (through refundable low-income tax credits, for example) would be both simpler than GSE intermediation and less prone to catastrophic error.”

Rosner suggested two major changes to the tax system and two major reforms to the mortgage finance system. The actual home finance system would benefit from a standardized loan contract and a standardized, transparent private-sector securitization contract, he said, so that investors can know they’re investing in safe loans when they buy mortgage securities. A new, purely government-owned entity would stand ready to insure mortgages against default when capital markets break down, he said, so that the housing market can continue to function when Wall Street stumbles. In order to provide clarity to markets, this government body would publish information on what it would cost to insure mortgages against default every day, but not actually insure any loans until markets break down.

Rosner readily acknowledges that mortgages under his plan would be more expensive than the CAP plan, but notes that artificially-cheap mortgages fueled a destructive housing bubble in recent years.

“My investing clients would buy mortgages hand over fist if there were clear contractual definitions and if rates were allowed to meet market risks,” says Rosner. “That would mean that the 30-year fixed-rate mortgage would be trading at about 6 percent.” Mortgage rates are currently about 4.5 percent — significantly less expensive when applied to a $200,000 loan.

So Rosner suggests two changes to the tax system to make mortgages cheaper. First, the government should create a program similar to existing college savings plans that allows people to save money for a down payment on a tax-free basis. Second, he argues that the government should replace the mortgage-interest deduction, which costs taxpayers about $250 billion a year, with a tax break based on paying down a mortgage and increasing equity in a house. The mortgage interest deduction rewards borrowers for taking on debt, while an equity deduction would encourage borrowers to pay off their loans. Banks like the mortgage interest deduction because it encourages people to take on debt, and banks are in the debt business.

But authors of the CAP report insist that mortgages will not simply become more expensive without a persistent government guarantee, but say the convenient mortgage that has dominated the U.S. housing market for nearly 80 years will disappear altogether.

“The 30-year fixed-rate mortgage is a very difficult product from both an interest rate risk and credit risk perspective,” former Office of Thrift Supervision Director Ellen Seidman, one of 19 co-authors of the CAP report, told HuffPost. “It’s not going to happen without some kind of government backing.”

Instead, the report’s authors warn, the mortgage market will see shorter-term loans that are far more expensive, pushing homeownership out of reach not only for low-income borrowers, but for all but the very wealthy.

Rosner thinks the claim is ridiculous. “If there was demand for the 30-year product, the banks would have to meet that market demand,” he told HuffPost. “It’s been around for 80 years. People are not going to stop wanting this product.”

Some conservatives are similarly nonplussed. “The rate on a 30-year mortgage set in a true market would probably be somewhat higher than a rate when it’s subsidized by government guarantees, either explicit or implicit,” said Alex Pollack, a former Federal Home Loan Bank of Chicago president who currently works as a fellow for the right-wing American Enterprise Institute. “But it would be a rate without the distorting effects of that guarantee, in which with your slightly cheaper interest rate, you make the house more expensive.”

In his March report, Date noted that the government could still find ways to subsidize 30-year fixed-rate mortgages without simply guaranteeing banks against mortgage losses. “[The government could] create a transparent fixed-rate mortgage subsidy, or none at all,” Date wrote. “If policy-makers wish to continue to support the availability of long-term, fixed-rate mortgages, they should consider doing so directly (e.g., perhaps through a direct, subsidized rate swap facility sponsored by the Fed).”

But it’s also not obvious that losing the 30-year fixed-rate mortgage would actually have a significant impact on home affordability or accessibility. In Canada, for instance, mortgage loans are typically of a 5-year duration, but remain affordable, while Canada’s home ownership rate is nearly identical to that of the U.S.

“Prime Canadian homeowners are well served by their mortgage finance system, with accessibility and costs roughly in line with those in the United States,” economist John Kiff wrote in a 2009 paper for the International Monetary Fund. “Even though Canadian mortgage markets may seem less innovative than in the United States, consumers seem to be well served. In particular, homeownership in those countries is virtually identical at about 68 percent of all households.”

The U.S. Treasury Department is expected to issue its own report on the future of Fannie and Freddie in the next couple of weeks, after missing a congressionally-mandated Jan. 31 deadline. A Treasury spokesman declined to comment on the CAP proposal.

Judd Gregg and Ben Nelson: More Socialism Please

As we find our economy subsisting on massive government spending and no-strings-attached bailouts, borrowed, of course, from future generations, what solutions do the same leaders who got us into this mess offer?

You already know the answer — more government handouts.

The latest gambit?

Politicians like Judd Gregg and Ben Nelson are fighting to keep the crooked $600 trillion derivatives market unreformed. The dirty not-so-little secret about derivatives? In their current form, they are basically government insurance where the bailed-out mega-banks get to keep the premiums but the taxpayer pays the claims.

Senator Gregg points out that good, honest American companies like Harley-Davidson and Caterpillar use these derivatives to hedge against things like currency changes and costs of materials. Hedging against price fluctuations is something that any smart business would want to do and should be encouraged.

What Senator Gregg doesn’t point out is that companies can already do this WITHOUT secret derivatives. They just have to buy them on a market exchange or, if it’s something unusual or exotic, go to an actual regulated insurer like Lloyd’s of London. If Mariah Carey can get her legs insured, I am pretty sure that Caterpillar can find a regulated insurer to cover a seasonal drop in steel prices.

The reason no one wants to cut this scam off is because it works out great for everyone except the taxpayer/sucker who actually pays the claims. The buyers get cheap insurance backed by the US government, the banksters (the big four: JPMorgan Chase, Bank of America , Citigroup and Goldman Sachs) get to keep the premiums and WE THE TAXPAYER pay the claims — and trust me, AIG is just the tip of the iceberg (note: Fannie + Freddie) in this ongoing derivative bailout!

Just because a few good, American companies like Berkshire Hathaway (major stockholder: Ben Nelson) like getting a sweet deal from the taxpayer doesn’t mean that we should keep giving them one. This is especially true when CEOs like Warren Buffet already knew they were a deal too good to be true when they bought them. It is time for us to cut off their welfare checks.

Too many politicians in this country have decided that socialism buys votes, especially when their generation doesn’t have to pay for it. But thankfully, there are politicians willing to keep our great country from falling further into this abyss and are willing to put an end to this ridiculous taxpayer giveaway.

Call or write your Senator and tell them to support real derivative reform or that they will pay the consequences come election time.

The Speech: The Good, The Bad and The Missing

The Good: The president had strong language for backing real derivative reforms.

The Bad: Vague language about the “Volcker rule” will not stop Too Big To Fail; but a plan like this (or even one like this) for breaking up the current mega-banks and limiting their liabilities will.

The Missing: NONE of this matters while our cops still work for the crooks.

To wit:

Our main form of protection against these kinds of financial criminals, the SEC, remains woefully underfunded. The revolving door between government regulators and the high-paying banks they supposedly regulate remains as fluid as ever. And does it get any scarier than White House Counsel jumping from President Obama’s side one day to Lloyd Blankfein’s the next? Actually, I guess it does when institutions that should fear the government instead now just declare all-out war.

Meanwhile, the complicit ratings agencies remain a government-sponsored cartel paid by the banks for their favorable grades.

But what is the final backstop that is supposed to protect us next time around under this new plan? Well, Secretary Timothy Geithner explained today on Morning Joe that they would be able to stop the next bailout if only they had the authority to do so. Then finally, they could do things like wipe out equity holders, replace management… you know, kind of like the same steps that they were somehow magically able to do with GM.

But we all know the truth — no one will do that to the banks until they are no longer Too Big To Fail. As William Black so eloquently told Congress this week, Mr. Geithner and Chairman Bernanke already had that chance to do this to the big banks last time around and they chickened out.

The only way to keep this from happening again is to break up these big banks now and it is up to us to find people with the guts to do so. Hopefully, one of them will be our current President.

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