Oligarchy and Its Discontents-What Money Buys
By R Tamara de Silva
August 20, 2012
"The optimist thinks this is the best of all possible worlds. The pessimist fears it is true."
Last week it was announced that the United States Department of Justice and the Securities and Exchange Commission would not seek any criminal charges against Goldman Sachs or for that matter the executives of MF Global including its CEO, former United States Senator Jon Corzine. This likely surprised many people who still read the news, but actually infuriated no more than three people among them... and they were probably on the verge of becoming unhinged anyway. Most people realize that while economists look for optimized states whose existence is perfectly beyond dispute within their own models...optimized models of the actual economy and democracy for that matter, exist only in the Great Books... and many other books. In point of fact, the discontents of oligarchy are numerous. While economists may not spend much time successfully modeling the real world-perhaps in part because there are no repercussions for their being in error, catastrophic events happen in the real world and are not modeled or anticipated by any economist. Recent events like the decision to give Jon Corzine and MF Global a pass are legitimate examples of the role of money in politics and in the law.
Henry Adams sort of foresaw the events of last week. Henry Adams had a privileged perch from which to view the dilemmas of American democracy as he was the great grandson of the second American President John Adams and grandson of our sixth President, John Quincy Adams. There are certain scathing critiques of politics that have always attracted me to Henry Adams-in the same way I was drawn as child to the diatribes of Cato the Elder. For example, he regularly wrote about the mortal danger to American democracy manifested by the role of money, especially corporate influence and how its tendency to corrupt the political system, would be the country's ultimate undoing. In writing about the corruption of the Erie Railroad for the Westminster Review in 1870, he described corporate influence growing to the point of being unchecked,
"swaying power such as has never in the world's history been trusted in the hands of mere private citizens,...after having created a system of quiet but irresistible corruption-will ultimately succeed in directing government itself. Under the American form of society, there is now no authority capable of effective resistance."
He was also disturbed by the party system of politics in America and saw it to be willing to sacrifice principle for accommodation. This theme comes out in his book, Democracy. In Democracy the idealistic and hyper-principled heroine, Madeleine Lee is courted by the far more practical and ambitious Senator Silas P. Ratcliffe. Madeleine decides not to marry Ratcliffe though it seems that he gets the better of her in almost all their arguments about politics. Ratcliffe has aspirations to the White House and argues that moral authority comes from his political party the party with which he will on principle never disagree, "that great results can only be accomplished by great parties, I have uniformly yielded my own personal opinions where they have failed to obtain general assent."
Many of the books exchanges between Madeleine and Ratcliffe find Madeleine losing the argument. She prefers to remain single and reject Ratcliffe and Washington at the end of the novel as she is determined to return to her philanthropic works saying, "The bitterest part of this horrid story...is that nine out of ten of our countrymen would say I had made a mistake." And they still would. I confess I see myself in Madeleine but one who must stay, without leaving, just out of an insatiable curiosity to observe all that will happen.
Citizens United v. FEC and the Judiciary
Money has always played a role in politics. Any discussion of the role of money in politics, judicial elections or law enforcement in 2012 has to consider the United States Supreme Court's January 2010 decision in Citizens United v Federal Election Commission in which the Court ruled that political spending is a form of protected speech under the First Amendment. Citizens United allows corporations and unions to spend money to support or denounce candidates in elections through ads. This is a titan of a case, perhaps unrivalled in its potential to alter the face of representative government in the United States because of the way that most people who vote decide on a candidate-they watch or listen to broadcast media advertisements. However, Citizens United did not alter much of the McCain-Feingold campaign law, which still regulates corporate donations to political parties and candidates. Nor does the case affect political action committees or PACs, which can contribute directly to candidates.
Perhaps the greatest impact of the Citizens United decision will be in the election of state judges. Judicial independence at one time meant independence from the Crown. Since then the term judicial independence has come to mean the expectation (however well grounded or not) that when dealing with the justice system, a person can expect a member of the judiciary free from the appearance of personal, monetary or political bias in the outcome of the case. This mirrors the all important principle stated in Article 40 of the Magna Carta, "To no one will we sell, to one will we refuse or delay right of justice."
More money spent on judicial elections, it is feared, will give rise to the impression that justice is for sale very much reminiscent of John Grisham's book, "The Appeal," wherein a billionaire CEO buys himself a state supreme court justice who rules in favor of his company on an appeal. Grisham's book is eerily like the true story of Supreme Court of West Virginia Justice Brent Benjamin who ruled in favor of the $3,000,000 campaign donor, Don Blankenship, the CEO of A.T. Massey Coal in a case involving a $50,000,000 verdict. The United States Supreme Court ruled that Justice Benjamin ought to have recused himself in the case Caperton v. Massey.
There is however one place where Citizens United may have a salutary effect on the judicial system. In Chicago's Cook County, Illinois the slating of judges is militantly political and based not on merit per se but on a candidate's payment of $25,000 to one of the members of the Judicial Slating Committee of the Cook County Democratic Party. Judges that are slated, almost invariably win. Citizens United cannot but have a salutary effect here because it is difficult to imagine a worse system for picking judges anywhere.
The Imperial Presidency and Money
James Madison was a staunch advocate for the separation of powers between all three branches of government. The authors of a recent book, "The Executive Unbound: After the Madisonian Republic," by sitting Seventh Circuit Court of Appeals Judge Richard Posner and an Adrian Vermeule from Harvard Law argue that the separation of powers is a relic of the past and largely beside the point. Without getting into questions of judicial activism and the phenomenon of hyper-opinionated sitting justices, they are actually right from an anthropological perspective. They are right in so far that the Executive Branch has become, with the passage of the Administrative Procedure Act and sweeping acts of legislation such as Dodd-Frank and now the Patient Protection and Affordable Care Act, the most powerful branch of government. The Executive has created so many branches, departments and agencies under its purview, most with rule-making ability-that its power has become tantamount to that of an imperial monarchy.
However, Justice Posner because he seems only to view the world through the lense of a relentlessly pragmatic cost-benefit, economic analysis, draws at times predictable but disturbingly simplistic conclusions. In their book, Justice Posner and Dr. Vermeule acknowledge the relative impotence of the other branches to keep up with or check the Executive and go on to assert that this does not much matter because Presidents are checked by elections, "liberal legalism's essential failing is that it overestimates the need for the separation of powers and even the rule of law."
In other words, just because Presidents are above the law, it does not matter because they will be checked by the rule of politics-they will be voted out. This is startling simplistic and weak logic because it assumes an efficient marketplace, with equal participants and perfectly symmetrical information. It also allows for the interpretation of the Constitution based upon a pragmatic economic analysis completely at war with the absolute first principles and "inalienable rights" held sacred by the Founding Fathers and all the state legislators that ratified the Constitution.
This is also where money comes in.
In his run for President in 2008, President Obama spend over $730 million and is expected by Reuters to raise $1 billion for 2012. Spending for the 2012 election for all parties and candidates could, according to one estimate, top $9.8 billion in large part because of spending by super PACs. Yet almost 25% of super PAC money comes from just five donors, Harold Simmons (pro-Romney) , Sheldon Adelson (pro-Romney), Peter Theil (pro-Ron Paul), Bob Perry (pro-Romney now) and Jeffrey Katzenberg (pro-Obama).
If money affects voting and elections, then according to Posner's logic, the people who will actually exercise the rule of politics and check the Executive Branch are to be these handful of businessmen and others like them. According to the Center for Responsive Data, 3.7% of the contributors to super PACs account for 80% of the money raised-46 donors have given in excess of $67,000,000.
Money and Prosecutions
In the case of MF Global and Jon Corzine, Jon Corzine has been one of President Obama's elite bundlers in 2011 and 2012. He campaigned heavily for President Obama when he was governor of New Jersey and has held private fundraisers for President Obama in his home even after MF Global went bankrupt and $1.6 billion of customer funds went missing in October 2011. It was announced last week that he is unlikely to face any criminal charges.
Contrast this to the Department of Justice's handling of the same violation of the Federal rule requiring the segregation of customer funds in the matter of Peregrine Financial Group. $215 million of customer funds were discovered to be missing from customer segregated accounts in July 2012 at Peregrine Financial Group. Russell Wasendorf Sr was arrested and criminally charged later that month. Same act-missing customer funds-but far disparate prosecution.
Remember that in the futures industry, the key difference between futures commissions merchants ("FCMs") like Peregrine and MF Global and securities brokerages is that FCMs, unlike securities brokers, are required by law to keep their customer funds segregated from the FCM's own funds. It is in this way that FCMs have been able, with comparatively few exceptions, to ensure that customer deposits are completely protected from all losses an FCM may incur due to its own proprietary trading. Before MF Global, the requirement that FCMs segregate customer funds completely from their own funds largely prevented FCM customers from losing money due to an FCM bankruptcy
In my first article on MF Global, I suggested that the $1.2 billion missing from customer segregated funds may have been incurred due to over-leveraged positions in European sovereign debt that coincidentally took a dramatic turn for the worse (as they did in fact as yield curves doubled rapidly in some issues) during the last weeks of October, and that funds were transferred to cover margin in customer funds held in European debt. There is a scenario that nothing illegal would have occurred because CFTC Rule 1.25 had been amended to permit the investment of customer segregated funds in foreign sovereign debt. Keep in mind that this rule was amended by Jon Corzine's lobbying of Commodity Futures Trading Commission ("CFTC") Chairman Gary Gensler, who is a friend and colleague of Jon Corzine.
An alternate illegal scenario is that MF Global may have engaged in some late stage embezzlement of customer funds that were supposed to be segregated from MF Global's accounts and never commingled with any other funds. One way this may have occurred is if the funds were transferred out of customer segregated funds for a legal purpose but without the customers' meaningful consent or, more likely, with an intent to deceive the customer.
If MF Global transferred customer funds out of segregated accounts as a loan to MF Global to cover margin calls in existing positions in sovereign debt, (perfectly legal), it may however, be fraud and intent to deceive on its part if MF Global knew it could not repay the money. This fraud may have occurred if MF Global knew (and it would be interesting to argue how it did not) that it sought to legally borrow from customer funds, knowing that it was de facto insolvent and could not replace the money.
During Senate and House hearings on MF Global, Terrance Duffy, the CEO of the Chicago Mercantile Exchange contradicted Corzine's testimony and stated that the CME's investigation of the MF Global matter revealed the existence of emails between MF Global's assistant treasurer and Jon Corzine. These emails where contrary to what Corzine told Congress and suggested that Corzine had in fact authorized the transfer of customer funds out of customer accounts-the funds that went missing. We also know that while Jon Corzine claimed he knew nothing about the financials at MF Global, he was peddling them to Interactive Brokers as he was trying to broker a last minute sale of MF Global to Interactive Brokers--in other words, he had to have been extremely familiar with MF Global's financials during the exact time period he claims to Congress to know nothing of what was happening.
We still do not know everything that really happened at MF Global because the Department of Justice has not yet decided to grant any immunity to the one person who would be their chief witness in the matter, the Assistant Treasurer. The Assistant Treasurer is represented by Reid H. Weingarten, who is as luck would have it, is one of United States Attorney General Eric Holder's best friends. Some could say they agreed to let the clock run out on this one.
From a purely economic cost benefit analysis, Jon Corzine's raising in excess of $500,000 for President Obama in 2012 alone was the smartest money he ever spent and appears to have bought him justice in the sense of a reprieve from the CEO of Peregrine's fate.
What about Mr. Adelson? The billionaire casino magnate is being investigated for possible violations of the Foreign Corrupt Practices Act, money-laundering and bribery. Perhaps contributing by some accounts close to $100 million towards Mr. Romney's election would ensure a stop to the pesky Federal investigators. If so, this would be money entirely worth spending.
This brings us to the last bit of news from last week that Goldman Sachs would not be investigated for criminal wrong-doing in connection with mortgage crisis and certain deals like ABACUS.
This Justice Department and SEC have gotten many investment banks to execute settlement agreements with them including Goldman and Citigroup-essentially selling "get out of jail cards." Are these settlement agreements, as the Judge Rakoff and Bloomberg's Jonathan Weil have asked, merely considered the "cost of doing business" or some part of a transaction tax on offending financial titans?
If it were in the public's interest to prevent fraud upon the market, then fines should be significant enough to actually deter illegal conduct. If not, prosecutions should be endured and convictions gotten. The historic role of punishment in the criminal justice system has not been just punishment, but deterrence. Having Citigroup or GS pay $285 million is pin money to banks with quarterly revenue in the billions of dollars-the "cost of doing business" is not a deterrent to anyone but more like the cost of a municipal parking sticker to the average Joe.
What is problematic about bank settlements is that smaller market participants cannot afford to pay for "get out of jail cards" and because the costs of prosecuting anyone other than an investment bank are less, smaller participants are actually prosecuted and do get jail time. Peter Boyer and Government Accountability President Peter Schweizer have written about how justice is for sale in Mr. Eric Holder's Department of Justice pointing to the fact that despite President Obama's claims to represent the 99%, Department of Justice "criminal prosecutions are at 20 year lows for corporate securities and bank fraud."  Given the correlation between campaign contributions (admittedly protected speech) and selective prosecutions, the 20 year low in bank fraud prosecutions is unlikely to change with either political party.
Consider the money. Goldman Sachs employees were the second largest single contributor to President Obama in 2008 contributing $1,013,091. Goldman's employees are the largest single contributor to Mr. Romney in the 2012 election cycle having donated $636,080 by the end of the last quarter. Goldman Sachs is also one of the largest clients of Mr. Eric Holder's lawyer firm Covington & Burling.
Money has always played a part in politics and it is rational for everyone with a stake in the political process to participate. But not all participation is equal-not even close. The odds of one vote ever making a difference in a Presidential election are between 1 in 10 million and 1 in 100 million-depending upon the state in which you live. Voting only matters in the aggregate but money seems to matter more in terms of affecting action after election. Above all, justice must never be for sale because as Cato the Elder and many others have pointed out throughout history the selling of justice, like the selling of indulgences, is an attribute of a decaying and dying political system.
What is disconcerting is that mere principles, be they the adherence to ideas like freedom and individual liberty or the idea that you are secure in the sanctity of your own home, are always bound to be under-represented in the electoral process and as such destined to play the underdogs. At one point in Democracy, Madeleine asks the impressive Ratcliffe, "Surely...something can be done to check corruption. Are we for ever to be at the mercy of thieves and ruffians? Is respectable government impossible in democracy?" Ratcliffe's reply is haunting, "No representative government...can long be much better or much worse than the society it represents. Purify society and you purify the government. But try to purify the government artificially and you only aggravate failure. @
R. Tamara de Silva
August 20, 2012
R. Tamara de Silva is a securities lawyer and independent trader
 Remember CFTC Rule 1.25 which had been amended to allow the investment of customer segregated funds in foreign sovereign debt, was amended back after the fall of MF Global to disallow the investment of customer segregated funds in foreign sovereign debt.