Coyote Blog

Ex Post Facto law, meaning law retroactively criminalizing past practices, is explicitly banned in the Constitution.  But big government folks have found a way around this prohibition through the massive government regulatory bureaucracies that have been created over the last half-century.

Here is a great example.  In short, an online site accepted advertising from a company that the FTC later went after for deceptive advertising.  Note, the online site was not involved, they just ran the add, just as your web site may be running ads or Google adwords right now.  The FTC actually settled the case with the company accused of wrongdoing for $0.  So obviously, they were not that worked up about the ad.  But in order to establish a new legal principal that sites that run advertising can be liable for the entire liability for a deceptive ad, they went after the web site for $6 million!

Forget for a moment what bad policy this is — can you imagine being fully liable for any fraud involved with any company that runs an add on your site?   But beyond that, the basic approach — of legislating from the administrative branch, abuse of power to cow small companies and individuals through threat of bankrupting legal costs, and ex post facto rule-making — is just staggeringly scary.

This is why I cringe every single day whenever the phone rings in my small business.

My suspicions were confirmed when I looked up the law the FTC said I had violated, a law that was vague and didn’t seem to have much to do with what the FTC was accusing me of. And it certainly did not say that the FTC was entitled to the amount of money it wanted. My lawyers explained that the amount the FTC was suing for was based not on laws that Congress had passed but seemed to be based on what judges had awarded in previous cases over the years.

Moreover, in our case, the FTC was now trying to go beyond what previous judges had awarded. What lay behind their actions seemed to be this: they were trying out a new legal theory. They wanted to establish a new principle – that a person who was in any way connected to the advertising at issue, no matter how trivial their involvement, was liable for the entire amount of all purchases of the product by consumers. I felt as if I had been struck by lightning. I was the sacrificial lamb. I had the rotten luck to be chosen, of all people, to be the test of their novel legal theory. [...]

I’m all for getting tough on deceptive advertising, including Internet fraudsters. But what seems terribly wrong is the FTC playing Goliath where they just outspend everyone they go after, regardless of whether there was any wrongdoing. Unfortunately, that appears to be the direction in which they’re going. David Vladeck, the new head of the Bureau of Consumer Protection (the person I met with), advocates pursuing test cases “even if the legal theory has not been accepted by the court prior to that time.” (see http://www.abanet.org/antitrust/at-source/10/04/Apr10-VladeckIntrvw4-14f.pdf) In other words, you may be violating a law that doesn’t exist yet. That is downright scary. The only thing the FTC is going to “prove” by “winning” these cases is that they can establish their new principles by bankrupting anybody but the very wealthiest Americans – the only people who could afford to take them on.

One of the arguments Democrats have made for nationalized health care is that government expenses will be much lower than private companies.  This is on its face absurd, given most people’s experience with government agencies, but is nominally supported by low expense ratios in Medicare.  I won’t go into this today, but this is more an artifact of the way government does accounting as well as operations decisions at Medicare which may be non-optimal (e.g. Medicare does much less claims verification and investigation than private companies, which is why we see huge fraud cases from time to time).

Anyway, we get a fresh example of private vs. public expenses on a very comparable basis in California workers comp.  The public State Fund acts as an insurer of last resort as well as a competitor to many private providers.  The fact that it is an insurer of last resort will increase its loss ratios, but its expense ratios of management or “claims adjustment” expenses should be similar.  But of course they are not.

State Fund’s unallocated loss adjustment expense ratio was a whopping 51.4% last year compared to 8.9% for private carriers, while State Funds allocated loss adjustment expenses were 9.8% compared to the industry’s 13.8% respectively.

This means the management expense ration of the state agency is 61.2% of premiums vs. 18.7% for private companies.  This just makes laughable the pious requirement in Obamacare that insurance companies keep their expense ratios under 20% — or else the more efficient government agency will take over.

We are facing a huge 29.6% increase in workers comp rates in California, in part because the very high State Fund expense ratios are averaged into the calculation.

This is from the national ID card portion of the Democrat’s immigration proposal:

Tough penalties will be put in place for fraud in procurement of a fraud-proof social security card.

Jim Harper has a thorough analysis of the proposal at the link.  My fear is the Republicans and Democrats will one day realize how similar they are on this issue and agree to an authoritarian compromise.

I am confused by the recent argument for more financial regulation.  The argument seems to go that because Goldman Sachs may have committed fraud, then we need more laws making more things illegal.  But Goldman Sachs is accused of breaking existing laws.  Isn’t that just an argument to enforce the laws we already have?  In fact, the government so far is stopping short of its full power to go after Goldman over the Abacus securities — its seems like they would have a criminal fraud case but at the moment they are settling for a civil action.  In a sense, the government is not using against Goldman all the power it already has.

Of course, a cynical person could argue that the government has no real desire to go after Goldman, who after all is pretty deeply in bed with this Administration, and is pulling its punches in a show trial that will end up with Goldman fined .01% of its quarterly profit but with the Administration looking tough to fuzzy-headed voters and with Congress having something it can wave around to distract people while it passes another 1400 page bill no one has read.

Of course this was going to happen.

An audit of solar-power generation from November 2009 to January 2010 found that some panel operators were paid for doing the “impossible” — producing electricity from sunlight during the night, El Mundo reported today, citing a letter from Secretary of State for Energy Pedro Marin….

Preliminary evidence shows some solar stations may have run diesel-burning generators and sold the output as solar power, which earns several times more than electricity from fossil fuels, El Mundo said, citing unidentified people from the energy industry. The power grid received 4,500 megawatt-hours of power from midnight to 7 a.m. in the months audited, El Mundo said.

Electric current is electric current.  However, in a country like Germany, the price that utilities are required to pay for electric current varies based on its source.  While electricity from, say, a diesel generator gets 4-5 Euro cents per KwH, ground-based solar gets about 48 Euro cents per KwH.  This is a 10x greater price paid solely for absolutely identical power manufactured in a different way.  So of course there is going to be fraud as to the current’s source.

Long ago on this site, I wrote this:

More recently, progressives have turned their economic attention to lesser developed nations.  Progressives go nuts on the topic of Globalization.  Without tight security, G7 and IMF conferences have and would devolve into riots and destruction at the hands of progressives, as happened famously in Seattle.  Analyzing the Globalization movement is a bit hard, as rational discourse is not always a huge part of the “scene”, and what is said is not always logical or internally consistent.  The one thing I can make of this is that progressives intensely dislike the change that is occurring rapidly in third world economies, particularly since these changes are often driven by commerce and capitalists.

Progressives do not like American factories appearing in third world countries, paying locals wages progressives feel are too low, and disrupting agrarian economies with which progressives were more comfortable.  But these changes are all the sum of actions by individuals, so it is illustrative to think about what is going on in these countries at the individual level.

One morning, a rice farmer in southeast Asia might faces a choice.  He can continue a life of brutal, back-breaking labor from dawn to dusk for what is essentially subsistence earnings.  He can continue to see a large number of his children die young from malnutrition and disease.  He can continue a lifestyle so static, so devoid of opportunity for advancement, that it is nearly identical to the life led by his ancestors in the same spot a thousand years ago.

Or, he can go to the local Nike factory, work long hours (but certainly no longer than he worked in the field) for low pay (but certainly more than he was making subsistence farming) and take a shot at changing his life.  And you know what, many men (and women) in his position choose the Nike factory.  And progressives hate this.  They distrust this choice.  They distrust the change.  And, at its heart, that is what the opposition to globalization is all about – a deep seated conservatism that distrusts the decision-making of individuals and fears change, change that ironically might finally pull people out of untold generations of utter poverty.

Which is why I really enjoyed this article linked by Mark Perry:

“Years after activists accused Nike and other Western brands of running Third World sweatshops, the issue has taken a surprising turn. The path of discovery winds from coastal factory floors far into China’s interior, past women knee-deep in streams pounding laundry. It continues down a dusty village lane to a startling sight: arrays of gleaming three-story houses with balconies, balustrades and even Greek columns rising from rice paddies.

It turns out that factory workers — not the activists labeled “preachy” by one expert, and not the Nike executives so wounded by criticism — get the last laugh. Villagers who “went out,” as Chinese say, for what critics described as dead-end manufacturing jobs are sending money back and returning with savings, building houses and starting businesses.

Workers who stitched shoes for Nike and apparel for Columbia Sportswear, both based near Beaverton, Oregon, are fueling a wave of prosperity in rural China.

Update: I would have thought it unnecessary to add these provisos, but apparently per the comments it is necessary for some.  Of course people need to be treated as human beings.  Companies in some poor countries that are using the power of local government to actually enslave workers or to employ them in non-consensual ways are not organizations a good libertarian would ever defend, as our bedrock principle is to deal with other human beings without force or fraud.

My point is that we cannot apply our wealthy middle class values to the pay/benefits/workweek package being offered in poor countries.  To my mind it is immoral to try to deny poor people in poor companies jobs just because we rich people in the US would not consider taking such a job.  This arrogant and frankly clueless attitude forgets a critical question – what is their alternative?  We may think the Nike factory job sucks, and against the choices we have it probably does, but I would bet the subsistence rice farming job, with one’s family always one bad harvest away from starvation, would suck worse.  Of course we should aspire that everyone in the world can work in an air conditioned building for $40,000 a year while spending most of the day surfing the Internet and texting friends complaining that they are underpaid.  But you can’t tell these countries that the only ladder they can use to escape poverty doesn’t have any rungs in the first 20 feet.

Years ago, I wrote a novel (still available at Amazon!) wherein a key plot point was a conspiracy between a Senator, a law firm, and a media company to create a high-profile tort case out of thin air.

Today, we may be seeing something similar with the Toyota sudden acceleration case.  In this case, we have the Senate calling stooges of the plaintiff’s bar as “expert witnesses” with the whole thing getting a third of the air time on nightly news programs.   In my book, the whole thing was kicked off by a media company afraid of a new competitor – in this case it was kicked off by the US government, which controls GM, trying to sit on a competitor.

It is hard to spot the lowest behavior in the affair so far, but that honor can arguably go to ABC and the lengths to which it went to pretend it had recreated the problem.  In fact, they had to strip three wires, splice in a resistor of a very specific value and then short two other wires.  They made it sound like this is something that could easily happen naturally  (lol) but this is an easy thing to prove – and inspection of actual throttle assemblies from cars that have supposedly exhibited the sudden acceleration problem have shown no evidence of such shorting.  So the ABC story was completely fraudulent, similar to the old Dateline NBC story that secretly used model rocket engines to ignite gas tanks.   Its amazing to me that Toyota, acting in good faith will get sued for billions over a complex problem which may or may not exist in a few cars, while ABC will suffer no repercussions from outright fraud.

Basically ABC proved that if you bypass a potentiometer with a resistor, you can spoof the potentiometer setting.  Duh.  The same hack on a radio would cause sudden acceleration of your volume.

Henry Payne has more.

This decision by the Supreme Court may be a surprise to anyone who reads the regular media, which long ago fricasseed Skilling.  But Houston attorney Tom Kirkendall has been covering the Enron-related cases for years, and has reported on any number of prosecutorial abuses.  As he writes:

On the heels of the U.S. Supreme Court’s decision earlier this year to hear Conrad Black’s appeal of his criminal conviction on honest services wire-fraud charges under 18 U.S.C. § 1346 (“Section 1346), the Court yesterday granted former Enron CEO Jeff Skilling’s appeal on similar grounds. A copy of the Skilling’s cert petition and its appendix, which are bookmarked in Adobe Acrobat to facilitate ease of review, can be downloaded here.

My sense is that Skilling has a good chance of having the Supreme Court overturn his conviction. Here’s why.

The Fifth Circuit Court of Appeal’s decision in Skilling’s appeal… is looking by the minute similar to the Fifth Circuit’s decision in the Arthur Andersen case that was overturned by a unanimous Supreme Court

This is the ironic gist of the appeal in layman’s terms:

Honest services wire-fraud under Section 1346 was intended by Congress to penalize corporate executives and governmental officials for accepting bribes and kickbacks and for engaging in self-dealing at the expense of the employer– i.e., the private gain requirement of the crime.

The Task Force faced a big problem with prosecuting Skilling at all because he never stole a dime from Enron (that is, no private gain). In fact, the Task Force conceded at trial that, not only did Skilling not embezzle any money from Enron, the case against him was not about “greed,” that Skilling always sought to pursue Enron’s “best interests,” and that every act for which he was being prosecuted was undertaken for the purpose of protecting Enron and promoting its share price.

Despite the foregoing, the Task Force persuaded U.S. District Judge Sim Lake to allow the prosecution to proceed against Skilling on a much broader honest services theory — that is, that Skilling simply took on too much risk for the long-term good of Enron and improperly touted the company to the markets.

However, all corporate executives take business risks and promote their companies, so a rule that criminalizes any business decision that seems imprudent to prosecutors or lay jurors operating with hindsight bias — even if if the executive was pursuing the interest of the company — would force corporate executives to proceed at peril of criminal liability in making day-to-day business judgments. Indeed, in a civil case, Skilling would have had the protection of the “business judgment rule” for his business decisions,  but the Enron Task Force’s theory of honest services in Skilling’s case provided for no such defense. Instead, the Task Force lawyers urged the jury to send Skilling to prison effectively for life simply because he breached his duty to do his job and do it appropriately.

Meanwhile, Skilling may also get a new trial from the 5th Appeals court based on charges of prosecutorial abuse:

In that regard, the Fifth Circuit decision invited Skilling to file a motion for new trial based on issues of prosecutorial misconduct that Skilling raised in the appeal after discovering the evidence post-trial. Specifically, the Fifth Circuit was particularly concerned about the failure of the Enron Task Force to comply with federal rules requiring the disclosure of exculpatory evidence to the defense from the Task Force’s pre-trial interviews with main Skilling accuser, former Enron CFO Andrew Fastow.

I am a little behind on this, but Megan McArdle had this from Joe Wiesentahl, on the importance of loan down payments to prevent fraud and foreclosure:

The author, Michael Richardson, owned a Colorado mortgage company that was busted by HUD for processing too much fraudulent paperwork.  This caused him to discover that unbeknownst to him his employees were (on their own) engaging in mortgage fraud, prompting him to write this book and try to warn the industry.

This alone is interesting — that even on the small-time level, there was an information problem (bosses not knowing what the underlings were doing) — and the book is rich with details about the nuts and bolts of mortgage fraud.

But beyond that, one point he makes clear — and remember, this is before 2005, so before the crash and before conservatives blamed government intervention in the housing market for the crash — is that the FHA’s subsidization of $0-down loans made it all possible.

If you make someone pay 10% or 20% of a house’s cost upfront, then there’s no way you can alter the paperwork enough to make an ineligible buyer buy a house for an inflated price. But once you drop that requirement, everything goes. You can sell any house to any buyer for any price as long as you put in the effort to falsify documents and go through the cumbersome legwork.

When insurance covers routine expenses, perverse incentives often follow.  Here is an example I found today shopping for a company to replace my car’s windshield — This sure looks to be an absolutely blatant kickback (image from a glass company website here).

All the pitches on my Google search are like this.  Here is another one:

But here is the winner, at least as far as I got through the google search:

Don’t you have to wonder about a $1,000 rebate on a procedure that retails for perhaps $250?

I am not a lawyer, nor do I play one on the Internet, but it certainly appears that the glass companies are charging the insurance companies for more than the glass replacement would normally go for in a competitive marketplace, and then splitting the extra money defrauded from the insurance company with the consumer.   Another way of putting it is that in selecting a glass company for an insurance-covered repair, the consumer is acting as an agent for the insurance company, and as such an agent the consumer is taking a monetary inducement from a particular vendor to throw business to that vendor.

Arizona has explicit no-fault legislation banning insurance companies from raising insurance rates due to broken windshields.  I wonder what there is to stop someone, then, from heaving a rock at his/her windshield every other week?  Further, I wonder what stops such offers, which look like blatant kickbacks to me, from being either illegal or prosecuted?  I can only guess that in the weird interest-group-politics that substitute nowadays for ethics that its OK to commit fraud if the little guy is the beneficiary and unloved insurance companies are the victim.

Bruce McQuain has a really good post debunking the meme that Medicare overhead costs are lower than those of private insurers.  You should read the whole post, but the short answer is:

• Medicare participants are older and less healthy than those insured privately, so the denominator for their overhead ratio is much higher
• Comparing overhead costs per plan participant, Medicare costs are higher than private
• The comparison is apples and oranges, because private firms pay account differently than does the government
• Lower Medicare overhead has tradeoffs, as it lets fraud through which is not counted as a cost

I can’t add to Bruce’s post, except to say that as someone in the business of trying to privatize government functions, we see the apples and oranges problem all the time.  I am constantly having cost discussions with government bodies, and they frequently leave out most of the following when they compute their costs:

• Insurance  (e.g. liability, property).  They say the government is self-insured, but the government does not charge its divisions any cost for this implicit guarantee.  I have to pay real money for it.
• State / local taxes.  Private companies have to collect and pay many state and local sales, excise, and property taxes that the feds do not pay.
• Pensions / retirement benefits.  The government grants fat pensions and retirement medical benefits to its employees but does not accrue or put any funds away in the present to pay for these.  Private companies do  (and in fact would go to jail for not doing so).
• Capital spending and rent.  This varies by entity, but most government bodies do not see full depreciation of the capital assets they are using in their budgets.  Ditto for the value of the space they are occupying – they often get valuable space rent and/or depreciation free.
• Services from other government divisions.  Sometimes transfer prices are charged, and sometimes they are even close to market rates, but most times they are not

The largest government medical insurance program, Medicare, is threatening to nearly bankrupt the federal government with its rising costs that no one in 30 years has figured out how to manage, short of attempts at price controls (controls which are driving doctors out of the business).  Treat with extreme skepticism mystery double-secret methodologies that the Obama administration promises will cut costs 30% when no such savings have ever been achieved in Medicare.

The largest government run medical care organization, the VA, apparently provides awful service and is rife with fraud and errors due to poor accountability.

So, despite 89% of Americans reporting themselves satisfied with their medical care (one of the highest approval ratings for … anything I have seen out of a poll) we are going to replace our current system with one run by the government.

Outstanding.

Postscript: You will often get quoted enormous numbers (often as high as 47 million) for the uninsured.  This seems to be the driving force behind the felt need for health care change.  But when someone quotes this number to you, ask for the number excluding a) college students; b) people who make over $50,000 a year who could presumably pay for their own coverage; c) illegal immigrants;  d) people transitioning between jobs and e) people already eligible for Medicare/Medicaid but don’t bother to sign up until they are actually sick.  You will get a number a LOT lower, closer to 10-15 million.

If we need to do something more to help 10 million or so poor people, then lets help 10 million or so poor people.  Let’s not screw up what exists for the other 290 million or so people in this country.  As I wrote before

But health care is different.  The author above is probably correct that some crappy level of terribly run state health care will probably be an improvement for some of the poor.  But what is different about many of the health care proposals on the table is that everyone, not just the poor will get this same crappy level of treatment.  It would be like a public housing program where everyone’s house is torn down and every single person must move into public housing. That is universal state-run health care. Ten percent of America gets pulled up, 90% of America gets pulled down, possibly way down.

Health care reform by hatchet, axe, and saw*.

Update: From Doug Ross

The Kaiser Family Foundation, a liberal non-profit frequently quoted by the media, puts the number of uninsured Americans who do not qualify for current government programs and make less than $50,000 a year between 13.9 million and 8.2 million. That is a much smaller figure than the media report and is also subject to “the 45% rule”, wherein that percentage will transition to new jobs within a four-month time-frame.

As usual, Michael Lewis is a great and informative read, trying to unravel the whole subprime mortgage / CDS / CDO bundle somewhat for laymen.  The article does not excerpt well, but I would summarize it in saying he identified four mistakes by the financial world.  The first two I would describe as real problems but not really new mistakes — something similar could have been said about S&L's in the 1980's.  These are:

1. A lot of subprime loans were issued to people with no freaking hope of repaying them, in an incredible general lowering of underwriting standards.  (we all should remember, though, the government and the media was trumpeting this as good news — increase in home ownership rates, blah blah blah).
2. People who bought these securities grossly underestimated the default risks, particularly in the crappiest tranches  (securitized packages of loans are resold in tiers, with a AAA tranche getting first call on any payouts, and the tail end BBB tier getting high interest rates but who takes the first principal losses if the loans default).

   But Lewis highlights two mistakes that are in some sense brand new.  These mistakes were effectively vast increases in leverage that acted as a multiplier for the subprime problem, while simultaneously spreading the problem into the hands of AAA investors who accepted the higher returns without paying too much attention to how they were obtained

3. Someone started scooping up the BBB tranches from various securities packages, bundled these together, and somehow got a ratings agency to declare that the top 60% tranche of these repackaged dog turds were AAA. 
4. Credit default swaps, originally insurance policies on loan portfolios, turned into a sort of futures market on subprime mortgage packages.  But, unlike futures markets, say in oil, where the futures trading volume are generally well under the total volumes of the underlying commodity flowing around the world, CDS values grew to as much as 100x the underlying commodity volume (in this case subprime mortgage securities).  CDS's went from a risk-management tool to a naked side-bet.

This is interesting stuff, and it was really only reading this piece that I think I started to understand #4 above (though if readers think I am describing this wrong, let me know).  All of this leads me to a few thoughts:

• Nothing about this convinces me any of these firms need to be saved or bailed out.  Let them die.  Maybe the guys who rebuild the industry in their place will be smarter and more careful.  The country is going to face a recession whether Wall Street is bailed out or not — too much (paper) value disappeared from consumer's net worths (or their perceptions of their net worth) for that not to be the case.  I lived through Texas in the 1980s when the S&L industry went bust almost to the last institution.   Nearly every one of the top 10 banks in the state went into FDIC recievership. 
• I have seen people observe that this is an indictment of capitalism because so many people made such bad mistakes.  Sure.  No one said capitalism is a gaurantee against stupidity, or even fraud.  The difference is that the consequences of said stupidity and fraud have to be less in a free market system than if the same people had the power of cersion via government.  In a free market, these guys will fail and be wiped out and get washed away.  The people who they drag down may consider themselves to be innocent, but they participated of their own free will — if they did not understand what they were doing, that is their problem.  In a statist system, you still have mistakes like this, but they are infinitely more catastrophic, as the stakes in play are often higher.  And the people who made the mistakes are never punished financially, because they are in charge of the machinery of state  (or friends of those in charge).  They make damn sure the power of the state is used to make everyone else pay for their mistake, kind of like … this $700 billion bailout.
• Lewis seems to have a hypothesis that the main system change that allowed all this to happen was the shift in ownership structure from partnerships to publicly-held corporations.  And certainly you do get some added agency risks with this, though I find this explanation a bit shallow.  I do think that folks with money are going to approach Wall Street "experts" and rating agencies with a lot more skepticism for a long time, and that can't be a bad thing.
• The opportunity really exists for someone smart to start a brand new rating agency from scratch.  The only reason the current ones won't get wept away is simply that there are not many alternatives right now.  Warren Buffett should partner with someone well-connected with the new administration (Maybe Larry Summers, since there is no way he will survive a confirmation hearing with his men-are-from-large-standard-deviations-women-are-from-narrow-distributions baggage.)
• Lewis is unfair in depicting all the mortgage lenders as predatory.  I am sure some were cheats, but remember that as far as Congress, the Administration, the Federal Government, and the media were concerned, these lenders making subprime loans were doing God's work — they were expanding home ownership and bringing the dream of owning a home to poor people historically redlined, blah blah blah.  It is only with hindsight that we demonize them for doing the wrong thing — at the time, absolutely everyone on in the country was pushing them to do exactly what they did.  This is also why Democrats struggle to suggest a resposive regulatory package to this whole mess, as any real reform would have to address minimum underwriting standards, which in turn would have the direct effect of limiting lending to the poor, an outcome with which no Democrat wants to be associated.

Update:  Just to be clear, as I have said before, this is about half of what happened.  There are really two stories, and usually authors focus on one or the other.  Story 1 is the steps taken by the Federal Government  (Fannie, Freddie, Community Reinvestment Act, mortgage interest deduction, low interest rates) that fueled the housing bubble and the expansion of credit to questionable borrowers.  It is described here, among other places.  Story 2 is the one above, how private firms decided not only to purchase these questionable loans made on bubble-inflated assets, but to leverage these assets up to staggering levels. 

Sloppy thinkers often confuse support for free-market capitalism with "doing what big business wants."  In fact, the two are often entirely different, as large well-connected companies often thrive through the very fact of government regulation, using the government to step on competitors and create rent-seeking opportunities, while in turn rewarding politicians out of their profits with electoral support.

The Fannie Mae / Freddie Mac fiasco is turning out to be a prime example of such crony capitalism in operation.  These two quasi-private companies enjoyed many special perks (from huge tax breaks to an implicit government guarantee), enriching both themselves and a circle of Wall Street banks while protecting themselves from criticism by waving the "we’re helping the little guy" banner.  Leftish Congressmen ranged from platitude spouting dupes to willing participants in the fraud, and helped enable the whole mess.

Paul Gigot, a long-time critic and whistle-blower of Fannie and Freddie has a great, long editorial on these companies and their Congressional enablers.  If the WSJ article is gated, Volokh has a long excerpt.

I had occasion to think about the term "public service" at about 6AM this Sunday morning.  As I was driving my son to a way-too-early baseball game, I flipped around the FM dial trying to find some music.  There was none.  All I could find were a number of really dull programs on arcane topics presumably on the air to fulfill the radio broadcaster’s "public service" requirements of the FCC regulatory regime.  Since almost no one gets excited about this programming except for the leftish public policy types that inhabit regulatory positions, the radio stations broadcast all this garbage on Sunday mornings when no one is listening anyway.  Ironically, in the name of "public service," stations must broadcast material no one in the public actually wants to listen to.

Which leads me to coyote’s definition of corporate public service:  Make a product or service for which people, without use of force or fraud, are willing to pay the listed price.

Any freaking moron can (or at least should be able to) offer a product or service that people will be willing to use for free.  Is this a public service?  Well, maybe.  If you are out there helping to feed homeless people, power to you.  But is it really a public service that the Miami transit system offers free rides that it can only pay for with deficit spending?  Or $1.50 bus rides that cost taxpayers $30 each to provide?  And this is not to mention the free services, like public service radio broadcasts, that many people would be willing to pay not to receive. 

That’s why I say that any moron can give stuff away.   But find me the person who can create enough value that people are willing to pay enough for his product to cover all the material, labor, and capital inputs it took to create it, with surplus left over for both buyer and seller, and that is the person performing a real public service.

And let me listen to some freaking classic rock on Sunday mornings.

OK, so this guy committed fraud:

In the hundreds of bills for which he has provided estimates to
lawmakers since 2000, the actuary, Jonathan Schwartz, said legislation
adjusting the pensions of public employees would have no cost, or
limited cost, to the city.

But just 11 of the more than 50 bills vetted by Mr. Schwartz that
have become law since 2000 will result in the $500 million in eventual
costs, or more than $60 million annually, according to projections
provided by Robert C. North Jr., the independent actuary of the city
pension system, and by Mayor Michael R. Bloomberg’s office….

Mr. North and other city employees made the calculations on the 11
bills when they were before the Legislature, but for the other bills,
no alternative to Mr. Schwartz’s projections could be found. The New
York Times reported last month that in an arrangement that had not been
publicly disclosed, Mr. Schwartz was being paid by labor unions. He
acknowledged in an interview that he skewed his work to favor the
public employees, calling his job “a step above voodoo.”

But really, did any of the legislators supporting these bills really think the costs were zero?  If the public employees union is asking for a pension change, you can be sure it is not to save the state money.  This does not let legislators off the hook for failing to exercises any common sense.

From recent legislation:

“It shall be illegal and a violation of this Act,” declared the House
of Representatives, “to limit the production or distribution of oil,
natural gas, or any other petroleum product… or to otherwise take any
action in restraint of trade for oil, natural gas, or any petroleum
product when such action, combination, or collective action has a
direct, substantial, and reasonably foreseeable effect on the market,
supply, price, or distribution of oil, natural gas, or other petroleum
product in the United States.”

Well, OPEC nations may or may not be in violation of this law.  My guess is that if incompetence and general third-world type fraud is actionable, then they are guilty.  It may be tougher to prove outright conspiracy.

BUT, there is one nation that has, right there on the public record, clear government legislation that substantially limits development of some of the largest potential new oil reserves in the US.  That country is the United States, and by passage of this law, the entire Congress has made itself outlaws.

I am just fine with prosecuting mortgage brokers for fraud  who deliberately misrepresented the payments and risks of the loan products they were selling.  However, to be fair, we must then also prosecute borrowers and home buyers who deliberately misrepresented their assets and income to lenders, actions that are equally fraudulent.

Or, we could just let the whole foreclosure and bankruptcy system sort everything out and let bygones by bygones. 

Interestingly, it seems to be advocates for borrowers who want to stir the whole fraud thing up and are reluctant to just let the system play itself out.  I find this odd, for a couple of reasons:

• Fraud by lenders will be hard to prove, since they all are covered by written disclosures that I am sure reveal all the terms of the loan.  The government itself has designed a number of written disclosures lenders must use  [by the way, if reformers want to start somewhere, they might begin with these government disclosures.  My experience is that they are silly and uninformative, and were put together by someone in the government who does not actually understand loans].  Fraud by borrowers, on the other hand, should be dead-easy to discover – they signed their name to an income statement and list of assets and liabilities which are quite easy to check.
• The current foreclosure and bankruptcy system is pretty fair to borrowers.  In particular, in the case of subprime loans where the borrower has little equity, foreclosure costs almost nothing in current dollars – all the loss is on the bank, with absolutely no come-backs on the borrower in the future.  The borrower must endure years of difficult credit and rebuilding trust in the system, but that is the kind of minimum cost we should expect a foreclosure or bankruptcy to carry.  We always seem to get worked up about foreclosures, because we have this picture of someone losing a home they have lived in 20 years and losing all their equity.   But in these subprime cases, where the buyer has been in the home only a few months and put in virtually no equity, I think our mental picture of the costs, at least to the borrower, of foreclosure are overblown.

As an aside, I am easily convinced that there were many mortgage brokers offering their customers atrociously bad deals and rates.  I can’t imagine personally not shopping around for mortgage rates from multiple suppliers, but there are clearly people who want to walk into one guy’s office and buy something from that first person.   And a number of these people chose to do business with firms that gave them really poor service (if service is defined as getting the best possible loan for the buyer).  Which gets me to the subject of branding.

I know that there are a lot of folks, particularly on the left, who hate large corporations and national brands, but to a large extent the uneven and unpredictable quality of mortgage brokers may be due to a lack of national players and national brands in mortgage brokering. 

Mortgage brokers, stock brokers, and real estate brokers are all licensed by the government.  By statist thinking, that should be enough to ensure quality.  But while stock brokers and real estate brokers can be independent, most of them have organized themselves into groups under a brand name (e.g. Merrill Lynch or Century 21).  Few such national brands, if any, exist in mortgage brokering.

These brands exist because they have proven themselves useful and valuable to consumers.  Presumably they communicate some form of quality or reliability or capability beyond the level that having a government license affords.  This is not necessarily a gaurantee of perfection, of course.  Certainly Merrill Lynch brokers, form time to time, have been accused of fraudulent behavior.  But Merrill has been very fast to act on these occasions, taking actions designed to save its brand from being tainted.  It is this incentive, plus the history such brands carry in the collective memory, that gives consumers extra confidence to use brokers with these brands rather than individual practitioners.

If I was a contrarian with a load of money and a knowledge of mortgage brokering, I might be thinking about building a Century 21 or Remax-type brand in mortgage brokering.

I wondered if folks would find my analogy from Bear Stearns to Enron I posted the other day stretched. 

Because Enron’s demise came in exactly this sort of liquidity crisis,
and the situations are nearly entirely parallel, all the way up to and
including the CEO telling the world all is well just days before the
failure.  But no one understood Enron’s business, so its failure seemed
"out of the blue" and therefore was attributed by many to fraud,
lacking any other ready explanation.   In the case of Bear Stearns, the
public was educated in advance as to the problems in their portfolio
(with mortgage loans) such that the liquidity crisis was less of a
surprise and, having ready source of blame (subprime loans) no one has
felt the need to apply the fraud tag.

Apparently, the Economist sees the same connection (via a reader):

For many people, the mere fact of Enron’s collapse is evidence that
Mr Skilling and his old mentor and boss, Ken Lay, who died between his
conviction and sentencing, presided over a fraudulent house of cards.
Yet Mr Skilling has always argued that Enron’s collapse largely
resulted from a loss of trust in the firm by its financial-market
counterparties, who engaged in the equivalent of a bank run. Certainly,
the amounts of money involved in the specific frauds identified at
Enron were small compared to the amount of shareholder value that was
ultimately destroyed when it plunged into bankruptcy.

Yet recent events in the financial markets add some weight to Mr
Skilling’s story—though nobody is (yet) alleging the sort of fraudulent
behaviour on Wall Street that apparently took place at Enron. The
hastily arranged purchase of Bear Stearns by JP Morgan Chase is the
result of exactly such a bank run on the bank, as Bear’s counterparties
lost faith in it. This has seen the destruction of most of its roughly
$20-billion market capitalisation since January 2007. By comparison,
$65 billion was wiped out at Enron, and $190 billion at Citigroup since
May 2007, as the credit crunch turned into a crisis in capitalism.

Mr Skilling’s defence team unearthed another apparent inconsistency
in Mr Fastow’s testimony that resonates with today’s events. As Enron
entered its death spiral, Mr Lay held a meeting to reassure employees
that the firm was still in good shape, and that its “liquidity was
strong”. The composite suggested that Mr Fastow “felt [Mr Lay’s
comment] was an overstatement” stemming from Mr Lay’s need to “increase
public confidence” in the firm.

The original FBI notes say that Mr Fastow thought the comment
“fair”. The jury found Mr Lay guilty of fraud at least partly because
it believed the government’s allegations that Mr Lay knew such bullish
statements were false when he made them.

As recently as March 12th, Alan Schwartz, the chief executive of
Bear Stearns, issued a statement responding to rumours that it was in
trouble, saying that “we don’t see any pressure on our liquidity, let
alone a liquidity crisis.” Two days later, only an emergency credit
line arranged by the Federal Reserve was keeping the investment bank
alive. (Meanwhile, as its share price tumbled on rumours of trouble on
March 17th, Lehman Brothers issued a statement confirming that its
“liquidity is very strong.”)

Although it can do nothing for Mr Lay, the fate of Bear Stearns
illustrates how fast quickly a firm’s prospects can go from promising
to non-existent when counterparties lose confidence in it. The rapid
loss of market value so soon after a bullish comment from a chief
executive may, judging by one reading of Enron’s experience, get
prosecutorial juices going, should the financial crisis get so bad that
the public demands locking up some prominent Wall Streeters.

The article also includes more details of exculpatory evidence that was withheld from the Skilling team and will very likely lead to a new trial.  The Enron prosecution team has not had a very good record in appeals court scrutiny of their actions at trial:

For what it is worth, prosecutors have had a tougher time in the
appeals court with Enron-related cases than in the initial jury trials.
Convictions have been overturned in a case relating to Nigerian barges
that Enron sold to Merrill Lynch. The conviction of the chief financial
officer of Enron Broadband has also been vacated, after two trials. So,
too, was the decision to convict Enron’s auditor, Arthur Andersen
(albeit too late to save the venerable firm from liquidation).

Bear Stearns is being bought for a price that is barely indistinguishable from zero:

Just four days after Bear Stearns Chief Executive Alan Schwartz assured
Wall Street that his company was not in trouble, he was forced on
Sunday to sell the investment bank to competitor JPMorgan Chase for a
bargain-basement price of $2 a share, or $236.2 million.

The stunning last-minute buyout was aimed at averting a Bear Stearns
bankruptcy and a spreading crisis of confidence in the global financial
system sparked by the collapse in the subprime mortgage market. Bear
Stearns was the most exposed to risky bets on the loans; it is now the
first major bank to be undone by that market’s collapse.

This is what happens to a highly leveraged company when there is a liquidity crisis.  Fears about the company’s health caused most lenders to withhold short term capital, which then in turn brought those fears to reality. 

While I suspect that we may find a lot of stupid blunders (at least in hindsight) and poor decisions, my sense is that this has nothing to do with fraud of any sort.  Which raises some interesting questions about Enron.  Because Enron’s demise came in exactly this sort of liquidity crisis, and the situations are nearly entirely parallel, all the way up to and including the CEO telling the world all is well just days before the failure.  But no one understood Enron’s business, so its failure seemed "out of the blue" and therefore was attributed by many to fraud, lacking any other ready explanation.   In the case of Bear Stearns, the public was educated in advance as to the problems in their portfolio (with mortgage loans) such that the liquidity crisis was less of a surprise and, having ready source of blame (subprime loans) no one has felt the need to apply the fraud tag.  (It also did not help that Lay and Skilling kept a higher profile than Schwartz at Bear Stearns, so that they were an easier target for vilification. 

I never really had the time to fully understand all the charges against Skilling at Enron (though I do think he deserves a new trial) but I always thought that it was unfair to try to ring either Skilling or Lay up for fraud because they were out trumpeting the health of the company shortly before its collapse.  Because it is clear from the Bear Sterns collapse that liquidity crises have everything to do with confidence, and you could see the Bear Stearns CEO out there in the last few days trying to boost confidence.  Was that fraud?  Or was that his very legitimate duty and obligation given his fiduciary responsibility to shareholders?   Why is Schwartz at Bear Stearns fighting for shareholders when he is trying to build confidence in the company in a liquidity crisis but Lay and Skilling at Enron defrauding shareholders when they were doing exactly the same thing? 

I hire retired couples for the summer to run campgrounds and other recreation facilities.  Since these campgrounds are closed in the winter (most are under 8 feet of snow) I lay most of these folks off in October. 

The vast majority of my employees do not work the winter.  They have other retirement savings that they supplement working for me in the summer and then they take the winter off.   And that would be all of the story, except in  California.  For some reason in California, but not in most other states, all these folks run straight to the unemployment office and file for unemployment over the winter.  For those of you who don’t know how unemployment insurance premiums work, the premium I pay as a percentage of wages is based on past claims experience.  In California, I am an "F", the worst category, and have to pay over 6%(!) of wages to unemployment insurance. 

Now in most states, what these employees are doing is illegal.   It is typical of unemployment offices that you have to call in each week and certify that you are looking for work.  If you are not actively looking for work, then you are not eligible, and most states outside CA seem fairly diligent about enforcing the rules.  Last year, not one but two of the people who were claiming unemployment in CA over the winter were in Mexico on the beach the whole time!  I know, because they called me from there to see if they were going to be rehired in the spring.

It was then that I found out why this happens more in CA than in other states.  I called the California state unemployment office and asked them how I could have cases of unemployment fraud (ie claiming unemployment when one is not actually looking for work) investigated.  The person from the state office got very hostile with me.  She said that I was making a very serious charge, and that if I made such a charge, and fraud was not proven, then I could be liable for civil and even criminal penalties for asking for the investigation.  I said forget it, raised prices to customers to cover the extra winter vacation wages I was forced to pay, and moved on.   

OK, I have resisted commenting on Larry Craig.  My reactions are:

1. We are so off topic here it is unbelievable.  For Congress, exercising arbitrary powers over individuals in violation of the intent, if not the letter, of the Constitution:  OK.  Playing footsie in the bathroom: Not OK
2. Are we really going to have a Congressman resign for tapping his foot in a public bathroom while a man who had $100,000 in cash bribe money found in his freezer still sits in office?
3. Why is it that Democrats, against their political beliefs, feel the need to criticize Republicans for being gay while Republicans feel the need to criticize Democrats for having large homes and SUVs?
4. Do we really pay police officers to sit on the toilet for hours and try to catch men who are soliciting consensual sex?  And if so, do they also pay female officers to patrol for the same thing among women?  This is a real threat to us?

David Bernstein has more.  Via TJIC.

Update:  A reader pointed out to me I had a fairly relevant passage in my novel BMOC, when the Senator is confronted with his $50,000 earmark nominally for a "women’s consulting company" turned out to be directed at a house of prostitution [edited to remove the more raunchy terminology]:

Taking a deep
breath, [the Senator's aid] said, “Senator, there is a reason that this one is not going
away. I will spell it out: S-E-X. The press doesn’t give a shit about a few billion dollars of waste. No one tunes in to the evening news if the
teaser is ‘Government pays too much for a bridge, news at eleven.’ The Today Show doesn’t interview the
contractors benefiting from a useless bridge.”

“However, everybody and his dog will tune in if
the teaser is ‘Your tax dollars are funding call girls, film at eleven’. Jesus, do you really think the CBS Evening
News is going to turn down a chance to put hookers on the evening news? Not just tonight but day after day? Just watch – Dan Rather will be interviewing
hookers and Chris Mathews will be interviewing hookers and for God’s sakes
Barbara Walters will probably have a weepy interview with a hooker.”

“And you know
what?” Givens continued, his voice rising. “The whole act makes me sick. All
these media types are going to be piously turning up their nose at you and
those women, while at the same time making more money for themselves off those
prostitutes than those women ever made for themselves on their back. It’s rank
hypocrisy but it’s the facts of life in Washington,
and I shouldn’t have to be explaining this to you.”

“You guys in the
Senate can get away with a lot, as long as long as a) you don’t get caught or
b) the scandal is so boring or complex that it won’t sell newspapers. Hell, I saw a poll the other day that a
substantial percentage of Americans to this day don’t understand or even
believe what Richard Nixon did wrong. But if you polled those same people, every freaking one of them would
say that they knew and believed that Bill Clinton [fooled around with] an intern. What’s the difference? Sex. Bill Clinton was impeached and lost his law license, not because he did
or did not commit fraud with Whitewater Development Corp., but because he lied
about [sex with] a young girl.”

I suppose this is going to be one of those nutty libertarian rants that help explain why libertarians do so poorly at the polls, but I am not really very comfortable with Ward Churchill’s potential firing from University of Colorado.  I can’t think of very many things Mr. Churchill has said that I agree with, but I still have this crazy idea about defending speech regardless of the content of the speech.

And it is hard for me to escape the sense that Mr. Churchill may lose his tenured position at a state-run institution over the content of his speech.  Yeah, I know, its nominally about his academic credentials.  But don’t you think everyone is winking at each other about this?  Yes, Mr. Churchill is an academic fraud, but he was a fraud when UC hired him and tenured him as well, and they should have known it.

Over a couple of decades, every major university in the country rushed to build, practically from scratch, racial and ethnic and gender studies programs and departments.  Had every university raced at the same time to build any discipline, talent would run short and in the hiring race, some under-qualified people would be hired.  Let’s suppose that every university decided at the same time they needed a climate department, there just would not be enough qualified climate scientists to fill out every position.  The rush to build ethnic studies programs was similar but in fact a bit worse.  Because while some people actually do have climate-related degrees, no one until recently had an ethnic studies degree.  What professional qualifications should a school look for?  And, in fact, in the rush to build ethnic studies programs, a lot of people of very dubious qualifications were given tenure, often based more on ethnic credibility and political activism than any academic qualifications.  Hell, Cal State Long Beach hired a paranoid schizophrenic who had served prison time for beating and torturing two women as the head of their Black Studies department.  And universities like UC patted themselves on their politically correct backs for these hirings.

I could go out tomorrow and find twenty tenured professors of ethnic/racial/gender studies in state universities whose academic credentials are at least as bad as Churchill’s and whom no one would dare fire.  This has nothing to do with Churchill’s academic work or its quality.  UC is getting exactly what it expected when it tenured him.  This is about an attempt to fire a tenured professor for the content of his speech, speech that has embarrassed and put pressure on the university, and I can’t support that.

Anybody who has been a part of a productive business (e.g. so this excludes almost all politicians and academics) will probably have experience with some type of profit improvement program.  Usually you are doing about a hundred things simultaneously to reduce costs.  When costs actually go down, you find yourself scratching you head – what actually made the difference.  Everyone will claim that their program or initiatives saved the company X amount of money, but when you add up all the X’s, you get a number four or five times the actual improvement. 

Well, apparently the same dynamic occurs in carbon offsets:

An investigation by the Financial Times
suggests that many carbon offsets are illusory, and that there is
little assurance that purchasing carbon offsets does much of anything
to reduce carbon dioxide emissions. Specifically, the report found:

-
Widespread instances of people and organisations buying worthless
credits that do not yield any reductions in carbon emissions.

- Industrial companies profiting from doing very little – or from
gaining carbon credits on the basis of efficiency gains from which they
have already benefited substantially.

- Brokers providing services of questionable or no value.

- A shortage of verification, making it difficult for buyers to assess the true value of carbon credits.

Who in the world would have every predicted this?  Well, it turns out a lot of people did, including me.  For example, I suggested that companies like Terrapass are probably selling their CO2 offsets at least three times:

1. Their energy projects produce electricity, which they sell to
   consumers.  Since the
   electricity is often expensive, they sell it as “CO2-free”
   electricity.  This is possible in some sates — for example in Texas,
   where Whole Foods made headlines by buying only CO2-free power.  So the
   carbon offset is in the bundle that they sell to
   electricity customers.  That is sale number one. 
2. The company most assuredly seeks out and gets
   government subsidies.  These subsidies are based on the power being
   “CO2-free”.  This is sale number two, in exchange for subsidies. 
3. They still have to finance the initial construction of the plant, though.  Regular heartless
   investors require a, you know, return on capital.  So Terrapass
   finances their projects in part by selling these little certificates that you
   saw at the Oscars.  This is a way of financing their plants from people
   to whom they don’t have to pay dividends or interest —just the feel-good
   sense of abatement.  This is the third sale of the carbon credits.

I also suggested that there is an incredible opportunity for outright fraud:

This type of thing is incredibly amenable to fraud.  If you sell more
than 100% of an investment, eventually the day of reckoning will come
when you can’t pay everyone their shares (a la the Producers).  But if
people are investing in CO2 abatement — you can sell the same ton over
and over and no one will ever know.

Finally I argued that many of the abatement numbers make no sense:

Something smells here, and it is not the cow-poop methane.  This 100,000 pound [CO2 Offset] coupon retails for $399.75 (5×79.95) on the TerraPass web site.
First, this rate implies that all 300 million Americans could offset
their CO2 emissions for about $100 billion a year, a ridiculously low
figure that would be great news if true. 

Lets look at solar, something I know because I live in Arizona and have looked at it a few times.  Here is the smallest, cheapest installation
I can find.  It produces 295 CO2-free Kw-hours in a month if you live
in Phoenix, less everywhere else.  That is enough to run one PC 24
hours a day — and nothing else.  Or, it is enough to run about 10
75-watt light bulbs 12 hours a day — and nothing else.  In other
words, it is way, way, way short of powering up a star’s Beverly Hills
mansion, not to mention their car and private jet.  It would not run
one of the air conditioning units on my house.  And it costs $12,000!
Even with a 20 year life and a 0% discount rate, that still is more
than $399.75 a year.  For TerraPass’s offset claim to be correct, they
have to have a technology that is one and probably two orders of
magnitude more efficient than solar in Arizona.

[update:  Al Gore's house 221,000 kwH last year.  Call it 18,400KwH
per month, that would require about 62 of these solar installations for
$744,000.  I don't think $399.75 is really offsetting it]

Kevin Drum opines:

What happens when you combine "fast track" procurement, minimal
oversight, pork-based contracting, and a comprehensive lack of
responsibility for results? Well, you get the Bush administration, of
course. More specifically, you get the Coast Guard’s disastrous
Deepwater program. Nadezhda runs through the grim details.

This is perhaps the single greatest fallacy that props up big government.  Specifically, the notion that corruption, inefficiency, and stupidity are failures in government related to certain individuals.  The implication is that if only "our party" was in control, big government would be great.  Except that both parties have had their chances in alternating fashion for 70 years (what I would call the era of really big government) and government has been a mess regardless of who has been in control. 

People like Hayek and Friedman have written who books about it, so I want try to elucidate the whole theory, except to summarize that the nature of incentives in government, particularly the big sacrifice-one-group-for-another government we have today, will ALWAYS lead to massive failures.  Period.

I wrote over a year ago that statism always comes back to bite its creators, because no matter how beautiful the machinery of government control, you can never control for the human beings who get behind the levers.  At that time I pointed to three fallacies, of which the third is particularly relevant to this post:

• You don’t have the right to make decisions for other people.
  Period.  No matter how high-minded and idealistic you want to portray
  it, at the end of the day you are proposing to use force to coerce
  another man into doing your will.  You may stop them from using force
  or fraud against others, but an adult may make decisions for
  themselves, even if they are bad.  I am reminded of a great line from
  the HBO show Deadwood, "Can you let me go to hell the way I want to?"

• You can’t make better decisions for other people, even if you
  are smarter, because every person has different wants, needs, values,
  etc., and thus make trade-offs differently.  Tedy Bruschi of the
  Patriots is willing to take post-stroke risks by playing pro football again I would never take, but that doesn’t mean its a incorrect decision for him.

• Technocratic idealists ALWAYS lose control of the game.  It may
  feel good at first when the trains start running on time, but the
  technocrats are soon swept away by the thugs, and the patina of
  idealism is swept away, and only fascism is left.  Interestingly, the
  technocrats always cry "our only mistake was letting those other guys
  take control".  No, the mistake was accepting the right to use force on
  another man.  Everything after that was inevitable.