Responding to the growing furor over the paychecks of executives at companies that received billions of dollars in the government’s financial rescue, the Obama administration will order the companies that received the most aid to deeply slash the compensation to their highest paid executives, an official involved in the decision said on Wednesday.There really ought to be more outrage about this proposal. As a letter to the editor in today's WSJ aptly observed:
Under the plan, which will be announced in the next few days by the Treasury Department, the seven companies that received the most assistance will have to cut the annual salaries of their 25 best-paid executives by an average of about 90 percent from last year. Their total compensation — including bonuses and retirement contributions — will drop, on average, by about 50 percent. The companies are Citigroup [C 4.42 -0.01 (-0.23%) ], Bank of America [BAC 16.51 -0.50 (-2.94%) ], American International Group [AIG 38.96 -1.47 (-3.64%) ], General Motors, Chrysler and the financing arms of the two automakers.
To those who would defend the government's ability, justification and right to negate Ken Lewis's contract and hijack his pay ("The Fall Guy," Review & Outlook, Oct. 2), I offer a John Adams quote found in David McCullough's book "John Adams." Adams stopped at a tavern for lodging. He happened to overhear several locals discussing British actions regarding taxation. One man says to the rest, ". . . if Parliament can take away Mr. Hancock's wharf and Mr. Row's wharf, they can take away your barn and my house."
Mr. Lewis might already be considered rich, as was Mr. Hancock, and the amount of severance may seem to be outrageous, but to you supporters of this confiscation I ask: If you grant the federal government's pay czar the power to confiscate or alter the pay of 175 Americans today, whose barn or house is next?
The point is exceptionally well taken. The Obama administration has shown a shocking disregard for the rule of law when contract rights interfere with the administration's ability to reorder the American economy as it sees fit.
As Todd Zywicki observed when Obama threw Chrysler lenders under the bus:
The rule of law, not of men -- an ideal tracing back to the ancient Greeks and well-known to our Founding Fathers -- is the animating principle of the American experiment. While the rest of the world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was established to circumscribe arbitrary government power. It would do so by establishing clear rules, equally applied to the powerful and the weak.
Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation and business from a failure to toe a political line? We might expect this behavior from a Hugo Chávez. But it would never happen here, right?
Until Chrysler. ...
The Obama administration's behavior in the Chrysler bankruptcy is a profound challenge to the rule of law. Secured creditors -- entitled to first priority payment under the "absolute priority rule" -- have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get about 50 cents on the dollar.
And then Obama bullied GM's bondholders to the extent that even the Obamabots on the Washington Post's editorial board were moved to protest that "the Obama administration is coming dangerously close to engaging in financial engineering that ignores basic principles of fairness and economic realities to further political goals."
So set aside the question of whether compensation at financial firms is "too high," however you propose to measure it. Set aside the question of whether these troubled firms will be able to keep their best people, who presumably now will be targeted by unregulated firms like hedge funds that will be free to pay market rates.
The basic problem is here is that many (most?) of the compensation deals the Obama administration is shredding were set in employment contracts. Granted, some of those employment contracts were signed after the law setting up pay "czar" Kenneth Feinberg's position and empowering him to review pay packages at TARP firms. But a lot of them are pre-existing contracts and it's those contracts that are the main concern.
Feinberg in fact is trumpeting his success at forcing so-called renegotiation "even for contracts over which he did not have explicit authority."
The bottom line thus is that Obama is having his minion coerce TARP executives and employees into ripping up contracts Obama doesn't like so as to assuage the populist public. In doing so, Obama and his appropriately entitled "czar" are exhibiting a basic lack of respect for the rule of law.
Unfortunately, these are not isolated incidents. As I wrote back in May, they are each "of a piece with the totality of Obama's program."
Russell Kirk wrote that:
Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. ...
Sir Henry Maine, in his Village Communities, puts strongly the case for private property, as distinguished from communal property: “Nobody is at liberty to attack several property and to say at the same time that he values civilization. The history of the two cannot be disentangled.” For the institution of several property—that is, private property—has been a powerful instrument for teaching men and women responsibility, for providing motives to integrity, for supporting general culture, for raising mankind above the level of mere drudgery, for affording leisure to think and freedom to act. To be able to retain the fruits of one’s labor; to be able to see one’s work made permanent; to be able to bequeath one’s property to one’s posterity; to be able to rise from the natural condition of grinding poverty to the security of enduring accomplishment; to have something that is really one’s own—these are advantages difficult to deny.
No American President has posed as profound a threat to those advantages as Obama, because none has shown as little regard for the rule of law when it comes to property and contract rights.
Update: David Frum offers an interesting analogy:
Suppose we discovered that during the tense days of September and October 2008, executives at the big banks were ordering lavished catered dinners for themselves at their offices. WE'd all disapprove. Those executives should have been eating sandwiches at their desks! But would it be OK for the government to order the banks to refuse the invoices from the catering company?
The service was contracted by the people who had the legal authority to make the contract. THe contract must be paid, unless the company goes into bankruptcy - at which point all creditors would have to be treated equally, without the government picking and choosing its favorites to be paid first.
What's happening with these executive contracts is the equivalent of bouncing the bills from some disfavored suppliers. It's lawless and it's wrong.
Update: Larry Ribstein comments on the "czar" business:
There's a process concern here that is being overlooked. The WSJ notes that Feinberg was brought in to take the heat off Geithner:
Since bringing Mr. Feinberg to the Treasury Department, the Obama administration has largely stayed out of his business, preferring instead to let him make the controversial calls unlikely to please many people. Mr. Feinberg has met with Mr. Geithner just twice and hasn't spoken with White House officials at all.Perhaps the worst aspect of this whole thing is the Obama administration's attempt to avoid political accountability by creating a "czar." Process is supposed to matter in a democratic system. This is, in fact, what's at stake in the PCAOB case. I wonder if the Supreme Court will have in mind the current administration's approach to governance when considering the constitutionality of a past effort to create an agency with executive power but not executive accountability.
Larry also observes:
As Alex Tabarrok says, "[t]here is no way this will work as advertised. * * * [M]ost of these executives will quit and get higher paying jobs elsewhere. Executives not directly affected by the pay cuts will also quit when they see their prospects for future salary gains have been cut. Chaos will be created at these firms as top people leave in droves." Commenters responded that the executives were incompetent anyway, so who cares? But if that's so, why are taxpayers flushing billions down incompetently managed firms, and then constructing pay rules so they can't attract better ones?
Update: James Joyner put together an excellent selection of commentary, adding his own editorial observations. Check it out.
Update: I know Obamabots think it's not a real news organization and that being associated with it raises my risk of ending up on Obama's enemies list (BTW, Kimberly Strassel's WSJ column on the "Chicago way" is a must read), but I was quoted by Foxnews on this issue:
"He has a lot of authority with respect to not just the seven but with respect to all TARP firms," said Stephen Bainbridge, law professor at UCLA. "It's an enormous expansion of federal power over corporations."
Under authority granted by Congress through legislation passed in February, Feinberg has decided to order cuts for the top 25 earners at the firms that received the most aid from the $700 billion Wall Street rescue package. He's looking to cut salaries by 90 percent from last year's levels, and to cut total pay by half.
The fact that Washington is again meddling with contracts -- following a stalled attempt by Congress in March to halt AIG bonuses -- has revived charges that the federal government is overstepping its bounds. Lawyers say Feinberg could be trampling on legally binding agreements.
But Bainbridge and others said he nevertheless has an "informal" authority to get his way. "Certainly he has the ability to cajole even where he doesn't have the ability to directly regulate," he said.