It Could Happen Here, Bruce Judson's Blog

In an earlier article, I wrote about the intersection of equal justice under the law and capitalism. The idea of fair bargain is central to a capitalist economy: Both the buyer and seller in any transaction must believe they fully understand the nature of the good being bought or sold (i.e. no fraud is involved). Since no one is omniscient, the remedy for bargains that the buyer or seller believes are unfair is legal enforcement. At the same time, both parties to the transaction must believe wrongdoing by either party will be enforced with equal vigor.

At the time, I referenced the SEC case against Citigroup and criticized the relatively small fine the SEC had imposed, suggesting it was evidence of a broader problem related to meaningful enforcement of the laws by the agency. As background, SEC settlements must be ratified by the court, and a central aspect of these SEC settlements is that defendants “neither admit nor deny the allegations.” Rarely does the court fail to endorse an agreement proposed by the SEC, since it’s the prosecuting party.

Subsequently, the proposed Citigroup agreement has received considerable attention, as U.S. District Judge Jed S. Rakoff rejected the settlement, calling it “neither reasonable, nor fair, nor adequate, nor in the public interest.” He both criticized the typical SEC “neither admit nor deny” form of settlement and called the SEC negotiated fine “pocket change” for Citigroup. Today, The Wall Street Journal indicated that the SEC enforcement division is expected to recommend to SEC commissioners that the Judge’s decision be appealed.

These recent events beg a deeper look at the system of SEC enforcement. Why has the SEC apparently pursued such minimal settlements? The answers are surprising in that they reflect a wide discrepancy of views.

I found three very different explanations. There is probably some truth in each of them. But they all indicate that we have a broken system that must be fixed so that capitalism can operate properly.

First, the SEC enforcement division is underfunded and therefore lacks the resources to pursue a large number of complex trials. Critics say this reflects a deliberate effort by Congress, influenced by large financial institutions, to prevent punishment for malfeasance. This suggests yet another example of how our largest financial institutions are preventing actual capitalism from functioning, often in ways that are not obvious.

Second, without the no admission of guilt clause, defendants would open themselves up to a stream of well-funded plaintiff actions based on admitted guilt and even risk bankruptcy. In essence, the proponents of this explanation suggest SEC fines are considered a cost of doing business, but if injured customers have an adequate chance of redress then the punishment will more closely relate to the injuries caused by the illegal actions involved and this worries the banks. Judge Rakoff’s opinion sharply criticized the settlement in this regard, indicating it “depriv[ed] the pubic of ever knowing the truth in a matter of obvious public importance.”

Third, it can be explained by the revolving door, where former SEC enforcement officials are “going to work for the very same firms they used to police.” Top SEC enforcement officials represent some the clearest examples of people who move out of government to high paying jobs in the private sector. This has a chilling effect on the efficacy of SEC efforts related to the largest, most powerful institutions. Clearly, we need to find a fair system that will both attract talent to the SEC but prevent this phenomenon.

There are several implications to these different explanations for what is clearly a broken system. Without the deterrent effect of the credible threat of law enforcement, the financial services industry will continue its malfeasance. The additional deterrent effect of successful private lawsuits based on a pre-existing admission of guilt is lost when the SEC uses the no admission of guilt standard. This raises a central question: Is the SEC’s role in our society to punish and deter malfeasance, or is it to help victims more easily recover losses resulting from misconduct? If it is the latter, then finding the actual truth of guilt or innocence would serve a strong societal interest.

Additionally, the knowledge that the SEC always settles suits will inevitably start to enter into the thinking of potential bad actors. Here again the deterrent effect is minimized. It becomes easy to imagine bad actors discussing an issue and saying, “What’s the worst that could happen? We will settle with the SEC for far less than we will make on this deal and the details will never become public.” Meanwhile, malfeasance by the financial sector has caused millions of people to suffer.

Clear solutions to these problems exist. The Obama administration must insist on far more extensive funding for SEC enforcement. Then we need to remember the famous words of Justice Brandeis, who said, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.” Perhaps, as recently discussed by The New York Times, it’s time to reconsider the maximum size and concentration of power in our financial institutions, which seem to consistently interfere with the fair operation of capitalism.

This post originally appeared as part of the New Deal 2.0 project of the Roosevelt Institute.

In a recent article, Salon reports that the Occupy movement is planning to begin a nationwide action protesting the foreclosure crisis, called Occupy Our Homes. Whatever your views of the movement itself, they are casting a bright light on the place where capitalism, our democracy, and our society have all failed: the housing crisis.

The financial crisis effectively started with the housing crisis, and it will not end until we find a way to resolve the housing crisis.

Economists who have repeatedly forecast a healing economy have misjudged the need for a healthy housing market as a central component for any type of economic recovery. The administration’s current plans for preventing foreclosures are woefully inadequate, some experts believe housing prices will decline as much as 20 percent this year, and our nation’s cycle of economic misery will continue.

Since mortgage meltdown begin in 2007, six  million homes have been lost  to foreclosure.  At present, another four million homes are at some stage of the foreclosure process.  As the New York Times reported recently, one of the nation’s leading housing analysts anticipates that a “staggering” total of more than 10 million of the nation’s existing 55 million mortgages are “reasonably likely to default.” Another recent article noted that, “If the U.S. foreclosure crisis were a baseball game, we’d probably be in the bottom of the fourth inning.” This national tragedy is a long way from over.

The housing and foreclosure crisis represents a conundrum with plenty of blame to go around: banks that violated lending standards in a search for easy profits; the creation of complex mortgage-backed securities whose risks were not fully understood; borrowers who took on far more debt than they could afford; the list goes on.

What the Occupy protesters recognize, either explicitly or implicitly, is that since the start of the housing crisis, government actions have by and large penalized suffering homeowners while rewarding banks that should have failed because of poor business decisions. The government has not adequately enforced the laws associated with ensuring foreclosures are valid, appears to have no concerns when banks wrongfully take possession of homes  (which, I believe, used to be called “criminal trespass” and  “breaking and entering”). On the flip side, all of the administration’s plans associated with helping homeowners facing foreclosure have failed miserably.

All of this is bad economics, violates the rules of accountability and equal justice that are essential to a viable capitalist economy, and undermines our democracy.  The Salon article also reports that the Occupy protesters plan to “disrupt” foreclosure auctions. These actions are strikingly familiar to the “penny auctions” that took place during the Depression era. As detailed in my 2009 book, It Could Happen Here, which focused on the danger of growing income inequality to our nation:

“Civil disobedience can emerge, even among the most conservative and normally upright citizens. During the Great Depression, foreclosed farms were auctioned on local courthouse steps. As the situation worsened, farmers took matters into their own hands. In what became known as “penny auctions,” neighbors of bankrupt farmers would gather for an auction, physically prevent people from bidding on foreclosed farms, and then bid a token amount for the farms with the goal of returning the homesteads to their original foreclosed owners.”

What is striking is the lack of creativity or sense of urgency that has been applied to the housing crisis. Here is a guiding principle for action: Homeowners must remain homeowners. Yes, this may not be an idea that is universally supported. And yes, it may be unfair to those who acted more responsibly. But the bailouts of the banks were also grossly unfair and I suspect hundreds of other significant, unfair government actions biased toward financial institutions and not consumers have taken place since the start of the crisis.

As a nation, we no longer have the luxury of concerning ourselves with fairness. Our economy is on life-support, unemployment is far above the 6% to 7% level which then-candidate Obama called an “immediate economic emergency” when running for office in October 2008, and further declines in housing prices will send the economy into a greater tailspin.

We have adopted a dangerous complacency around the housing crisis that must be abandoned. If our economy and social fabric are to heal, a sense of urgency is desperately needed.

One rarely remarked upon but dramatic aspect of the New Deal were the many innovations associated with ensuring continued homeownership. This was a central focus of FDR’s effort to heal the nation. In 1933, Congress created the Homeowners Loan Corporation (HOLC), which bought up one in every five mortgages in the U.S. and reissued longer term, lower monthly payment mortgages. In 1934, Congress created the Federal Housing Authority to insure long-term mortgages in a manner similar to the way the FDIC insures deposits, which ultimately made private lenders comfortable with 30-year mortgages. Most of us don’t realize that the 30-year mortgage was effectively invented in the era of the New Deal and that previously mortgages ran for periods as short as five years.

A recent study estimated that 29 percent of all homeowners with mortgages are underwater, and it’s likely that a sizeable portion of this total is more than 25 percent underwater, which is generally agreed upon as the point where even solvent homeowners simply abandon their properties (also known as jingle-mail, since the former homeowners send the house keys to the mortgage lender). As housing prices continue to drop, and I strongly believe they will, these numbers will continue to accelerate.

I do not have a specific policy proposal for fixing the housing crisis, but I have no doubt that with sufficient determination and creativity, this mess can be solved and we can move forward. The solution is likely to involve some pain on both sides — losses for financial institutions and homeowners perhaps trading a portion of their equity (under the auspices of some new type of government agency) for a substantially lower mortgage principle.  Or, any number of completely different solutions. But both sides made mistakes and so shared pain is not a bad thing.

But what is a bad thing will be to do nothing. We simply cannot allow the impact of additional foreclosures to to further destroy our economy or allow our social fabric to disintegrate as more and more people conclude that they were cheated out of their homes.

In the era of the New Deal, increasing farm foreclosures also led to riots and widespread violence in the Midwest, something we disregard today at our peril. In It Could Happen Here, I wrote:

“These generally conservative farmers viewed their rebellion within the context of American principles.  Arthur Schlesinger, Jr., who published the three volume study The Age Of Roosevelt, wrote, “Theirs, as they saw it was the way not of rebellion but of patriotism.…

I have no doubt that these [rioting] farmers would have explained their actions as a combination of anger and righteousness that would be echoed in our modern era: A corrupt system of home loans, combined with an economic system that was run for the benefit of a privileged few, unfairly destroyed their lives.”

The housing crisis emerged and has been exacerbated by a violation of the fundamental principles that make both capitalism and democracy work: accountability, bankruptcy for bad business decisions, enforcement of our laws, and equal justice.

I have written elsewhere that the Occupy movement would not simply disappear into the night. It is the flashpoint for the deep anger and sense of unfairness that pervades our society, with millions of people who feel their lives and dreams have been unfairly destroyed, while those who played a central role in causing their misery continue to profit.  The transition of the Occupy movement to a focus on foreclosures was inevitable; this is the epicenter of our national tragedy.

The movement’s focus on foreclosures will shine a necessary, even brighter light on our failure to address this central aspect of the financial crisis. These actions are an important and necessary wake-up call to our society about what is happening throughout the nation on a daily basis.

We can, of course, dismiss this latest act of protests. But if we do nothing, I wonder how far we stand from the violence of the New Deal era or worse.  At the time, FDR said, “The West is seething with unrest.” Where are we?

It’s fascinating to see the widespread pick-up my article on Ayn Rand has received.  Yesterday, Andrew Sullivan’s The Dish, a popular online feature at The Daily Beast/Newsweek wrote a piece highlighting the article.

As the dysfunctional nature of our economy becomes increasingly apparent, the media is appropriately focusing on the whether the ideas of economic thinkers from earlier eras can help to solve today’s problems.  Recently, NPR devoted a segment to the thinking of Ayn Rand.

The NPR segment quoted from an extensive television interview with her conducted by Mike Wallace in 1959, and now available on YouTube.  As the segment noted, Rand is a hero to many Washington  politicians who advocate free markets. In the Wallace interview, Rand said, “I am opposed to all forms of control. I am for an absolute, laissez-faire, free, unregulated economy.”

The Washington establishment has, in fact, misinterpreted what Rand valued and what she would advocate today.

At this moment, what’s relevant to our nation is not  the laissez-faire policies Ayn Rand advocated in the late 1950s as an outgrowth of the philosophical system she called “Objectivism,” but what the philosophy itself considered important, how these principles should be applied to our modern economy, and whether we believe implementing these ideas would aid the economy.

The central statement Ayn Rand makes in her interview with Wallace which she stressed repeatedly  is that entrepreneurs and businessmen are the producers who create the goods and services that make our economy run. They deserve their wealth, are her heroes, and no one including the government has the right to take their property. As NPR notes, “In Atlas Shrugged, which Rand considered her masterpiece, the wealthy corporate producers are the engines of the American economy.” In this fictional tale, the economy starts to stagnate when these producers go into hiding, leaving behind what she calls “the moochers.”

In effect, an important aspect of Rand’s philosophy supports the central tenet of a functioning capitalist economy: Those who create the greatest societal wealth should be the most highly compensated.

This is a fundamental notion in any capitalist economy. It underlies one aspect of the American Dream and also explains the historic admiration of the American people for rich people.  In general (and before the Occupy Wall Street movement), the prevailing ethos in America has been that rich people deserve their wealth because they have created societal value for all of us. Indeed, I suspect the vast majority of the American people do not begrudge the wealth earned by successful, risk-taking innovators like Michael Dell, Jeff Bezos, the late Steve Jobs, or Ross Perot.

In effect, Rand’s philosophy is only anti-regulation because it is ultra-supportive of the capitalist ideal: The people who create the most societal wealth should receive the benefits of this contribution.

From this perspective, Rand’s philosophy points out that real capitalism is no longer enforced in America; not because of welfare programs, taxes, the social safety net, or government regulations, but for a very different reason: The highest paid people in America today create no real wealth for the society.

The financial industry, comprised of traders, hedge funds who exploit arbitrage opportunities, and “quants” who develop mathematical models to take advantage of minute inefficiencies in trading markets (for stocks, derivative securities of all types, commodities, and more) are now earning seemingly inestimable sums. Hedge fund owners earn billions of dollars annually while traders who earn less than several million dollars a year are not, by Wall Street standards, real successes. Yet they are all gambling in “a heads I win, tails you lose” game. The outcome of all their efforts are high profits, but little, if any, new societal wealth.

Real societal wealth is anything that enhances the lives of those in our society, starting with basics such as food, shelter and medicine, but also including almost any property a person can own or anything a person can experience, such as entertainment or greater convenience. Real wealth can be eaten, used, shared, or experienced.

Profits cannot be eaten and they do not provide shelter. As a consequence, it’s essential to recognize that the creation of profits is often confused with the creation of real societal wealth. They are different. Profits are an accounting proxy we use for indicating whether wealth is created. But like all proxies, this one sometimes falls short. With regard to the financial industry, this proxy has failed the nation spectacularly.

The current issue of Foreign Affairs describes how a Wall Street firm spent $300 million to construct a fiber-optic cable connecting the Chicago Mercantile Exchange and the New York Stock Exchange to shave “three milliseconds off high-speed, high-volume automated trades—a big competitive advantage.” And huge sums are now being spent to use technology to earn these profits. High frequency (i.e. computer-driven) trading is now estimated to account for 75 percent of all buying and selling of U.S. equities. Does any of this add to our societal wealth?

Some Economists openly wonder whether our financial services sector actually destroys, instead of creating, societal wealth. In December 2008, Paul Krugman wrote in The New York Times (emphasis added):

“The financial services industry has claimed an ever-growing share of the nation’s income over the past generation, making the people who run the industry incredibly rich. Yet, at this point, it looks as if much of the industry has been destroying value, not creating it. And it’s not just a matter of money: the vast riches achieved by those who managed other people’s money have had a corrupting effect on our society as a whole….

We’re talking about a lot of money here. In recent years the finance sector accounted for 8 percent of America’s G.D.P., up from less than 5 percent a generation earlier. If that extra 3 percent was money for nothing — and it probably was — we’re talking about $400 billion a year in waste, fraud and abuse.”

By late 2009, Krugman noted, that this view is now widely shared:

“after the debacle of the past two years, there’s broad agreement — I’m tempted to say, agreement on the part of almost everyone not on the financial industry’s payroll — with Mr. Turner’s assertion that a lot of what Wall Street and the City [of London] do is “socially useless.”’

Yes, many financial economists have concluded that high speed trading and hedge fund arbitrage add to the efficiency of these markets. But I wonder if they have quantified the value to our society of these benefits and compared them to the very real costs. As far as I know, they have not.  It’s my understanding that they have only looked at the isolated impact of these activities on markets—not their overall impact on our society.

This system, with the highest rewards going to those who create nothing, is antithetical to a capitalist economy. We have turned the underlying premise behind our entire economic system on its head. Now, those who create little, if any, societal wealth receive the most wealth in return.

Moreover, the wealth now inappropriately channeled to Wall Street is harming our society in a myriad of ways: First, money inevitably leads to political power through donations, lobbying, access, and more. Inevitably, trading-related money is now further distorting our capitalist economy by influencing legislation for its own anti-capitalist benefits.

Second, in a society where success is often defined by income (for better or worse) the talent the nation desperately needs to create real wealth is instead sucked up by the financial system and dedicated to arbitrage and other zero-sum activities.

Third, the speculative investments of hedge funds and other trading entities can have a dangerous destabilizing impact on markets and the prices of essential commodities (such as food and energy), and create systematic risk for the economy as a whole.  In February of this year, Bloomberg reported on the findings of a federal government report, stating:

“Hedge funds and insurers might threaten U.S. economic stability in a time of crisis, according to a report aimed at helping regulators decide which non-bank financial companies warrant Federal Reserve supervision.”

Fourth, it’s likely that billions of dollars of our nation’s limited resources are spent each year on infrastructure with no real societal value, all of which could instead be spent for productive uses.

Fifth, pay scales throughout the society are thrown out of whack as other elites start to question whether they should be earning similar amounts.

Finally, the notion that all profits are good—whether they create real societal wealth or not—is consistently reinforced through the highly publicized example of Wall Street earnings and applied with the same harmful effects in other industries throughout the nation.

Ayn Rand would, I believe, argue that this absolute failure to enforce capitalist principles is exactly what she most feared: The emergence of a powerful group that produces nothing, yet manages to takes a large share of the societal wealth created by others. In her view, this inevitably leads a society to implode and self-destruct.

(Yes, Rand did not believe in altruism or any type of social safety net, and I am not addressing this aspect of her “Objectivist” philosophy here. But it is worth noting that she opposed these programs for the same reason I am certain she would be horrified by the current channeling of wealth to financial firms: She believed that they were allocating the benefits of production away from the rightful beneficiaries. Whether we agree or not with these assertions, they are irrelevant to this discussion.)

I do, however, feel comfortable asserting that if she returned today, Rand would consider eliminating the transfer of un-earned wealth to the financial sector to be a far greater and far more urgent priority than addressing her beliefs related to the social safety net.

Unless we address the destructive effects caused by making speculators and traders the highest earning class in our capitalist society, the economy will remain dysfunctional.  In effect, the nightmare that Rand’s philosophy anticipated for our economy is increasingly real, but because of the financial industry, not the social safety net or taxes.

Here’s a final thought: In Rand’s Atlas Shrugged, the industrialists who create the real wealth of the society start to disappear as they go into hiding. The trains that make the society work, both literally and metaphorically, stop.

So I have developed what we can call the Ayn Rand test of value: If securities traders and quants at investment firms and hedge funds started to disappear in large numbers tomorrow, would the trains that comprise our economy and society run better or worse?

Yes, It Could Happen Here predicted our current mess.  The book, published in 2009  by HarperCollins argued that the unabated growth of extreme economic inequality in the U.S. would lead to a dysfunctional economy, greater political polarization and near complete political paralysis, anger, mistrust, protests, and ultimately political instability or revolution.

Sadly, each of the stages of dysfunction and misery for millions (in lost jobs, foreclosures and disappearing dreams) predicted in the book have been occurring like dominoes falling. I take no pleasure in correctly anticipating such misery. Indeed,  the book was written as a warning, not a prediction, to say this is what is most likely if our public and private institutions don’t take steps to stop growing economic inequality. Unfortunately, no one acted.

Now, with the spread of the Occupy Wall Street movement, I have received a stream of requests asking:

—What it means

—Is the country in imminent serious danger?

—How do we fix the nation’s economy and social fabric?

In response to these events, and the seemingly high public interest in my analysis, I will be releasing an ebook in the next two weeks that answers these questions. The book is titled: Making Capitalism Work for the 99%: A Manifesto.

If you would like to receive a note when the book is available, please sign up below: