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THE GOVERNMENT AS DOMINANT SHAREHOLDER:

HOW SHOULD THE TAXPAYERS’ OWNERSHIP

RIGHTS BE EXERCISED?

HEARING

BEFORE THE

SUBCOMMITTEE ON DOMESTIC POLICY

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

FIRST SESSION

DECEMBER 16, 2009

Serial No. 111–132

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

EDOLPHUS TOWNS, New York, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

MARCY KAPTUR, Ohio

ELEANOR HOLMES NORTON, District of

Columbia

PATRICK J. KENNEDY, Rhode Island

DANNY K. DAVIS, Illinois

CHRIS VAN HOLLEN, Maryland

HENRY CUELLAR, Texas

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

PETER WELCH, Vermont

BILL FOSTER, Illinois

JACKIE SPEIER, California

STEVE DRIEHAUS, Ohio

JUDY CHU, California

DARRELL E. ISSA, California

DAN BURTON, Indiana

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

BRIAN P. BILBRAY, California

JIM JORDAN, Ohio

JEFF FLAKE, Arizona

JEFF FORTENBERRY, Nebraska

JASON CHAFFETZ, Utah

AARON SCHOCK, Illinois

BLAINE LUETKEMEYER, Missouri

ANH ‘‘JOSEPH’’ CAO, Louisiana

RON STROMAN, Staff Director

MICHAEL MCCARTHY, Deputy Staff Director

CARLA HULTBERG, Chief Clerk

LARRY BRADY, Minority Staff Director

SUBCOMMITTEE ON DOMESTIC POLICY

DENNIS J. KUCINICH, Ohio, Chairman

ELIJAH E. CUMMINGS, Maryland

JOHN F. TIERNEY, Massachusetts

DIANE E. WATSON, California

JIM COOPER, Tennessee

PATRICK J. KENNEDY, Rhode Island

PETER WELCH, Vermont

BILL FOSTER, Illinois

MARCY KAPTUR, Ohio

JIM JORDAN, Ohio

MARK E. SOUDER, Indiana

DAN BURTON, Indiana

MICHAEL R. TURNER, Ohio

JEFF FORTENBERRY, Nebraska

AARON SCHOCK, Illinois

JARON R. BOURKE, Staff Director

(III)

C O N T E N T S

Page

Hearing held on December 16, 2009 ...................................................................... 1

Statement of:

Brown, Orice Williams, Director, Financial Markets and Community Investment, Government Accountability Office, accompanied by A. Nicole

Clowers, Acting Director, Physical Infrastructure, Government Accountability Office; Professor B. Espen Eckbo, Tuck School of Business at

Dartmouth; Professor J.W. Verret, George Mason University School

of Law; Anne Simpson, senior portfolio manager for Global Equity,

California Public Employees’ Retirement System; Alan Tonelson, research fellow, U.S. Business and Industry Council Educational Foundation; and Ralph Nader, consumer advocate, accompanied by Robert

Weissman, president, Public Citizen ........................................................... 17

Brown, Orice Williams .............................................................................. 17

Eckbo, Professor B. Espen ........................................................................ 42

Nader, Ralph .............................................................................................. 92

Simpson, Anne ........................................................................................... 72

Tonelson, Alan ........................................................................................... 81

Verret, Professor J.W. ............................................................................... 68

Letters, statements, etc., submitted for the record by:

Brown, Orice Williams, Director, Financial Markets and Community Investment, Government Accountability Office, prepared statement of ...... 19

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 11

Eckbo, Professor B. Espen, Tuck School of Business at Dartmouth, prepared statement of ........................................................................................ 44

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, prepared statement of .................................................................... 5

Nader, Ralph, consumer advocate:

A Review of Corporate Governance ......................................................... 128

Prepared statement of ............................................................................... 94

Simpson, Anne, senior portfolio manager for Global Equity, California

Public Employees’ Retirement System, prepared statement of ................ 74

Tonelson, Alan, research fellow, U.S. Business and Industry Council Educational Foundation, prepared statement of ............................................... 83

Verret, Professor J.W., George Mason University School of Law, prepared

statement of ................................................................................................... 70

(1)

THE GOVERNMENT AS DOMINANT SHAREHOLDER: HOW SHOULD THE TAXPAYERS’

OWNERSHIP RIGHTS BE EXERCISED?

WEDNESDAY, DECEMBER 16, 2009

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON DOMESTIC POLICY,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2154, Rayburn House Office Building, Hon. Dennis J. Kucinich

(chairman of the subcommittee) presiding.

Present: Representatives Kucinich, Cummings, Tierney, Watson,

and Jordon.

Staff present: Jaron R. Bourke, staff director; Michael Clark, professional staff member; Jean Gosa, clerk; Charisma Williams, staff

assistant; Leneal Scott, information systems manager, full committee; Adam Hodge, deputy press secretary, full committee; Adam

Fromm, minority chief clerk and Member liaison; Kurt Bardella,

minority press secretary; Benjamin Cole, minority deputy press

secretary; Christopher Hixon, minority senior counsel; Hudson Hollister and Marvin Kaplan, minority counsels; and Brien Beattie,

minority professional staff member.

Mr. KUCINICH. Good morning. The Domestic Policy Subcommittee

of the Oversight and Government Reform Committee will now come

to order.

Today’s hearing will examine the way that common equity shareholder rights acquired by the Treasury Department under authorities provided in the Emergency Economic Stabilization Act of 2008

have been exercised to date, and to assess alternative frameworks

for exercising and protecting the taxpayers’ interests.

Without objection, the Chair and ranking minority member will

have 5 minutes to make opening statements, followed by opening

statements not to exceed 3 minutes by any other Member who

seeks recognition. And, without objection, Members and witnesses

may have five legislative days to submit a written statement or extraneous materials for the record.

Today and tomorrow we will be examining how the Treasury Department is managing common equity, or voting, shares acquired

under the Emergency Economic Stabilization Act of 2008. As a result of activities conducted under the Troubled Assets Relief Program, the Government is now a principal shareowner in four large,

complex, and troubled companies: two from the financial services

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industry—AIG and Citigroup—and two from the auto industry—

GM and Chrysler.

Like it or not, the U.S. Government is today the major common

equity shareholder, the principal owner, in two of these companies,

AIG and GM, and has an outsized role in two others. Establishing

a clear chain of authority, responsibility, and accountability for our

current exercise of fiduciary responsibility in the case of the four

companies is an essential and unavoidable task if Congress, and in

particular, the House of Representatives, is to uphold its constitutionally defined fiduciary responsibility to protect the public interest.

The main objective of these hearings is to assess how and how

well the Treasury Department has upheld its fiduciary responsibilities in managing the resulting U.S. Government shareholding, and

also to assess how and how well it has mobilized the full array of

Government capabilities in support of turning around these firms

and their industries, and in support of the broader purposes of

Emergency Economic Stabilization Act.

A major theme today and tomorrow will be corporate governance.

To an important degree, the failures of all four companies have resulted from failures in corporate governance—failures in risk management, failures in compliance, failures to hold executives accountable, and failures to rein in excessive corporate pay. And so

the first question we have to ask is: Have the actions of the Federal Government had the effect of upholding best practices in corporate governance? Or, rather, does the way in which Treasury is

managing our more than $200 billion stake in these four companies

actually constitute a major step backward in corporate governance?

But this is only one part of what we need to examine. Remember

that in choosing to provide the extraordinary authorities of EESA,

Congress was not acting primarily as an investor. As defined in the

Emergency Economic Stabilization Act of 2008, the Troubled Asset

Relief Program [TARP], was intended to serve several purposes.

Beyond providing liquidity to the financial system, EESA has as its

second main purpose to ensure that the authorities and facilities

created ‘‘are used in a manner that’’ promotes jobs and economic

growth, helps homeowners stay in their homes, protects home values, retirement accounts, and life savings, ‘‘maximizes overall returns to the U.S. taxpayer,’’ and ‘‘provides public accountability’’ for

the exercise of the authorities granted. Thus, the purposes and obligations of the U.S. Government are not at all limited to the maximization of shareholder value, and our fiduciary obligations are not

at all exhausted merely by upholding established best practices in

corporate governance, as necessary and urgent as this is.

Now when it comes to broader issues, there is a really fundamental inequity.

Consider first how the Treasury Department has handled the financial companies. When it came to intervening in the large financial institutions, and certainly AIG and Citigroup, the U.S. Government could have simply purchased the companies for a song. Or it

could have forced the banks through bankruptcies, and forced

creditors and other stakeholders to take major haircuts to share

the pain. But, instead, the path that was chosen guaranteed payoffs for all creditors, and guaranteed outsized bonuses to even the

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employees who were most directly responsible for nearly blowing

up the world economy. The upshot: This holiday season, bankers

are taking home the largest bonuses ever paid. Creditors have been

made whole, and shareholders that counted on government support

and stayed with the companies are seeing values restored, while

others that bailed out and came back in after TARP money was

flowing have made a killing.

But now wait; there is more. On the front page of this morning’s

Washington Post we see that the Treasury is so eager to placate

the people at Citigroup and help them get out from under the

thumb of the paymaster that it has agreed to allow Citigroup to

keep billions of dollars in tax liabilities it would owe as soon as it

pays back the TARP funds. These taxes are worth more than any

alleged ‘‘profit’’ to taxpayers from the TARP repayment and interest.

I want the administration to know that we are going to look into

this. I want the administration to know that we are going to look

into this deeply. And I want all those at Citigroup who have had

their tentacles across this Government to understand that we are

watching this and we are looking at their every move that they

have made. And if you want any further reference, you can look at

Matt Taibbi’s article in Rolling Stone, which I have read thoroughly, and it raises plenty of questions about Citigroup and people

in the administration.

Now contrast the kid glove treatment given to the financial sector with the treatment of the auto companies and their stakeholders under TARP, the overall support and level of effort expended

for the American auto industry, and the broader impact of the crisis and of Government intervention on U.S. manufacturing. In the

case of the auto companies, shareholders were wiped out, and

creditors, including pension funds, were forced to accept as little as

10 cents on the dollar for their previous investments. The impact

of the auto rescue on employment was not to avoid major cuts in

jobs or production. Instead, it was to accelerate pre-existing plans

for downsizing U.S. production, work hours, pay scales, and dealerships by as much as 4 years. Plant closings, brand reductions, and,

as we all know, dealer closures, and other restructurings were also

advanced. More difficult to see, but equally important, is the impact on suppliers and their employees. What we do know is that

even after the bailout, in October, GM’s then CEO spoke openly of

sourcing even more parts from Korea.

Finally, there seems to be a pattern of favoritism shown to the

financial services industry, and of ‘‘malign neglect,’’ when addressing issues of manufacturing, job creation, and decent blue-collar

wages. To my knowledge, today’s and tomorrow’s hearings are

Congress’s first attempt to create some measure of accountability

over Treasury’s handling of U.S. shareholder interests financed

through TARP. What the Domestic Policy Subcommittee has found

preliminarily is that too much of what the Treasury Department

has done seems to be designed to evade and obfuscate accountability. This is not acceptable. We need to find another way forward.

We need to find or establish new agencies, with clear lines of authority, to do the jobs that TARP was intended to do. Left up to

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Treasury on its own, those jobs are not getting done, and probably

never will be.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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Mr. KUCINICH. I yield to the gentleman from Ohio, Mr. Jordan.

Mr. JORDAN. Thank you, Mr. Chairman. Let me thank you for

holding today’s hearing. I commend you for focusing the subcommittee’s time on the vital question confronting the U.S. economy and the American taxpayers: Given the unfortunate road of

the bailouts we have gone down, how should the Government manage its interest in private sector companies so as to ensure that the

taxpayers are repaid as quickly as possible?

Unfortunately, TARP has become nothing more than a slush

fund for the administration. The trend toward the nationalization

of private sector firms did not stop with the banking sector. TARP

has been used to secure Government ownership of automobile manufacturers, bail out insurance companies, and subsidize mortgage

modifications, among other programs.

Now President Obama says that he intends to use repaid TARP

funds for the so-called job creation programs, the second stimulus

bill that is slated to be on the calendar today. This trend of using

taxpayer money authorized for one purposes for a completely different purpose is troubling and, frankly, it must stop.

Many of us voted against TARP—I know the chairman and I

both did—and our skepticism about the bailouts of private firms,

I think, has been vindicated. We have seen numerous problems at

the companies under the Government’s control. For example, the

committee has explored the flaws in the AIG trust agreement. This

agreement, established by Mr. Geithner when he was president of

the New York Fed, creates an unaccountable entity responsible for

the management of the taxpayers’ 80 percent interest in AIG. In

addition, AIG has been hampered by the control of the Obama administration’s so-called pay czar. Thirteen of AIG’s top 25 employees have already left, and AIG’s recently hired CEO and other top

executives threaten to leave due to the pay czar’s rulings.

These developments reveal another pitfall of the bailouts. While

we don’t like paying these employees’ competitive salaries—we may

not like that—the reality is that without talented employees, AIG

will simply not be able to repay the American taxpayers.

The politicalization of General Motors and Chrysler has also

demonstrated the problems created by the bailouts. In order to

fully repay the taxpayers for the bailout of GM, the company will

have to achieve a larger market capitalization than in any other

time in its history. Making decisions that adhere to the wishes of

the Obama administration’s auto task force may benefit the unions

or other special interest group, and satisfy the demands of powerful

Members of Congress but will not lead to business success and taxpayer repayment.

We have an obligation, Mr. Chairman, to ask how and when we

can escape from this mess. The American people have a right to

know how this administration intends to manage taxpayer interest

and all the firms that have been bailed out. We must ensure that

the American people are paid back quickly and that as much of

their money as possible is salvaged from this unprecedented and

unwise intervention into the U.S. economy.

This is a hearing that takes us in the right direction in answering these important questions and, again, I want to thank you for

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your willingness to put this together and for our witnesses for

being here this morning.

Mr. KUCINICH. I thank the gentleman.

The Chair recognizes Mr. Cummings of Maryland. You may proceed.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

Today’s hearing highlights two issues for me: that the economy

is far from out of the woods and we will not know the final cost

of the financial crisis for some time.

Economists may herald the end of the technical recession, but I

would hate to have to make that argument to the 10 percent of our

Nation that is out of work, the millions of small businesses that

still cannot access credit, or the millions of homeowners who find

themselves in or near foreclosure. Further, the American taxpayers

were made involuntary investors in several firms last year to provide the financial market the stability necessary to ensure they

kept functioning in the midst of unprecedented circumstances.

Given the dire straits for so many Americans, in return for their

investments in AIG, GM, and other firms, they are owed not only

our efforts to maximize the value of the equity they have acquired,

but also a frank evaluation of the manner in which those investments are managed.

In the last month we have seen Bank of America, Citigroup, and

Wells Fargo announce repayment of their TARP obligations. Further, the interim CEO at General Motors, Edward Whitaker, announced yesterday that the auto maker would repay its Government loans by June 2010. The news of repayments by these firms

receiving extraordinary assistance is a sign that the financial sector has all but recovered. But it also raises three critical points

that we must now address:

First, despite the public pronouncements by Bank of America,

Citigroup, and Wells Faro that they are off the Government tab,

the taxpayers still retain equity positions in some of the firms,

highlighted by their 34 percent stake in Citigroup. As a result, we

remain shareholders and must continue to diligently play a role in

the future of the firm.

Second, some analysts have criticized the Treasury’s decision to

allow these firms to repay the Government, arguing that the firms

have gotten out of executive pay restrictions while still presenting

systemic risk. Therefore, it remains to be seen whether we have

sacrificed economic stability for the benefit of a few Wall Street

firms.

Third, and most importantly, despite propping up Wall Street,

credit is not flowing to small- and medium-sized businesses, the

firms that Nobel Prize winning economist Joe Stiglitz called the

source of job creation. This begs the question: With or without Government equity positions, how can we get these firms to start lending again?

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Mr. Chairman, once again I thank you for holding this hearing.

Despite the technical end of the recession and shows of strength by

Wall Street giants, the rest of America still desperately needs our

help. I welcome the testimony of our distinguished witnesses and

look forward to a frank and productive discussion, and, with that,

Mr. Chairman, I yield back.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Mr. KUCINICH. The gentleman yields back.

I want to thank the witnesses for being here. There is a vote that

has been called. We are going to go vote, then we are going to come

right back. It will probably be about 30 minutes. Sorry for the

delay. We will move as expeditiously as possible. We will go right

to your testimony as soon as we return. Thank you very much.

We stand in recess for 30 minutes.

[Recess.]

Mr. KUCINICH. The committee will come to order.

I want to thank all the witnesses for their patience. There are

no additional opening statements and the subcommittee will receive testimony from the witnesses who are before us.

For those who are just joining us, this hearing is entitled, ‘‘The

Government as Dominant Shareholder: How Should the Taxpayers’

Ownership Rights be Exercised?’’

I want to start by introducing our first panel.

Orice Williams Brown is Director of GAO’s Financial Markets

and Community Investment team. Her work is concentrated on securities and futures oversight, banking insurance and accounting

policy. Currently, she leads GAO’s work on the financial crisis,

Treasury’s troubled asset relief program and regulatory reform.

We also have here, as backup, A. Nicole Clowers, who is currently an Acting Director at GAO and leads GAO’s work on surface

transportation. She has led GAO’s evaluations of the Federal Government’s assistance to the auto industry, among other topics. Ms.

Clowers will not be testifying, but will be available to answer questions.

Espen Eckbo. Professor Eckbo is the Tuck Centennial professor

of finance and founding director of the Lindenauer Center for Corporate Governance at the Tuck School of Business at Dartmouth.

He has written widely on a variety of corporate finance related topics, currently serves on the Advisory Board, Center for Leadership

and Governance of America’s Health Insurance Plans.

Professor J.W. Verret is senior scholar at the Mercatus Center

and assistant professor of Law at George Mason University School

of Law. He is an expert on corporate governance and has published

in a number of legal journals.

Ms. Anne Simpson is senior portfolio manager for Global Equities at the California Public Employees’ Retirement System, the

largest public pension system in the United States, with approximately $200 billion under management. CalPERS provides retirement and health benefits to more than 1.6 million public employees, retirees, and their families, and more than 2500 employees.

Previously, Ms. Simpson was the executive director of the International Corporate Governance Network, a body whose members

are drawn from over 40 countries.

Alan Tonelson is a research fellow with the U.S. Business and

Industry Council Educational Foundation, a Washington research

organization studying U.S. economic technology and national security policy. Mr. Tonelson’s articles on American politics, foreign policy, globalization, and technology policy have appeared in nearly

every influential publication. He is a frequent commentator on

radio and television.

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The next person, Ralph Nader, needs no introduction, but I am

going to introduce him anyway. Mr. Nader is an historic figure

who, more than any other single person, has helped us to drive

safer cars, eat healthier food, breathe better air, drink cleaner

water, and work in safer environments. He has been doing this

work for more than four decades. Mr. Nader’s advocacy led to the

passage of a National Traffic and Motor Vehicle Safety Act. He was

instrumental in the creation of the Occupational Safety and Health

Administration, the Environmental Protection Agency, the Consumer Product Safety Commission, the National Highway Transportation Safety Administration. By starting dozens of citizens

groups, Ralph Nader has created an atmosphere of corporate and

governmental accountability. He was named by The Atlantic as one

of the 100 most influential figures in American history and by

Time and Life Magazines as one of the most influential Americans

of the 20th century.

When I was mayor of Cleveland, Ralph Nader helped me save a

city’s municipal electric system, something that the people of Cleveland remember and are always grateful for.

Finally, I want to introduce Robert Weissman, who is here accompanying Mr. Nader. Robert Weissman is president of Public

Citizen, a nonprofit research, lobbying, and litigation public interest organization, with 150,000 members and supporters. He is coauthor of a forthcoming book, Corporate Ethics International, examining how government can leverage its investment in Citigroup

to advance public policy objectives. Mr. Weissman will not be testifying, but will be available to answer questions.

I want to thank all of you for appearing before this subcommittee

today.

Now, any person who is going to be testifying, including the people who are sitting in the second row, if you may answer a question, I am going to ask that all the witnesses, including those who

just may be only answering questions, please rise and raise your

right hands to be sworn.

[Witnesses sworn.]

Mr. KUCINICH. Thank you. You may be seated.

Let the record reflect that the witnesses answered in the affirmative.

Ms. Brown, you will be our first witness. We ask you to proceed

for 5 minutes. Your entire statement will be included in the record.

Once the light goes to red, we would like you to wrap it up so we

can keep this moving. But whatever you submit to this committee

will be in the record of the hearing, so you can just give us a summary.

You may proceed. Thank you.

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STATEMENTS OF ORICE WILLIAMS BROWN, DIRECTOR, FINANCIAL MARKETS AND COMMUNITY INVESTMENT, GOVERNMENT ACCOUNTABILITY OFFICE, ACCOMPANIED BY A. NICOLE CLOWERS, ACTING DIRECTOR, PHYSICAL INFRASTRUCTURE, GOVERNMENT ACCOUNTABILITY OFFICE; PROFESSOR B. ESPEN ECKBO, TUCK SCHOOL OF BUSINESS AT

DARTMOUTH; PROFESSOR J.W. VERRET, GEORGE MASON

UNIVERSITY SCHOOL OF LAW; ANNE SIMPSON, SENIOR

PORTFOLIO MANAGER FOR GLOBAL EQUITY, CALIFORNIA

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM; ALAN

TONELSON, RESEARCH FELLOW, U.S. BUSINESS AND INDUSTRY COUNCIL EDUCATIONAL FOUNDATION; AND RALPH

NADER, CONSUMER ADVOCATE, ACCOMPANIED BY ROBERT

WEISSMAN, PRESIDENT, PUBLIC CITIZEN

STATEMENT OF ORICE WILLIAMS BROWN

Ms. BROWN. Mr. Chairman, Ranking Member Jordan, and members of the subcommittee, I am pleased to be here this morning to

discuss the Government’s role as shareholder in AIG, Citigroup,

Chrysler, and General Motors. As requested, I will briefly touch on

three broad issues.

First, from our previous work on Federal financial assistance to

large firms and municipalities, we have identified three fundamental principles that provide a framework for considering and evaluating assistance: one, the problems confronting the industry need

to be clearly defined, distinguishing between those that require an

immediate financial response from those that are likely to require

more time to resolve; two, determine whether the national interests

will be best served through some type of government intervention

or whether market forces and established legal procedures such as

bankruptcy should be allowed to take their course, and, if Federal

financial assistance is needed, clear objectives and goals for this assistance must be established; and, three, given the significant financial risk the Federal Government may assume on behalf of taxpayers, the structure created to administer any assistance should

provide for appropriate mechanisms to protect taxpayers from excessive or unnecessary risks, such as concessions by all parties,

controls over management, and compensation for risk. However,

the recent crisis has posed unique challenges in adhering to this

framework due to its sheer size and scope.

Next, I will touch on the Government’s role as shareholder,

which differed by type of institution and assistance provided. For

example, the Federal Reserve Bank of New York, as a condition of

the secured loans it provided to AIG, created a trust to hold the

convertible preferred shares it acquired as a condition of this credit. Conversely, Treasury obtained Citi common shares after Citi requested that Treasury’s initial investment be converted to common

shares to strengthen Citi’s capital structure. For Chrysler and GM,

Treasury obtained an ownership interest in return for the financial

assistance provided to help the companies restructure.

According to Treasury, it has developed several core principles to

guide its oversight of its investments going forward. These included

acting as a reluctant shareholder, not interfering in day-to-day

management decisions, ensuring a strong board of directors, and

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exercising limited voting rights. Treasury has established conditions such as executive compensation requirements and voting on

certain limited matters, and routinely monitored the companies’ operations.

Finally, as part of our ongoing work with SIGTARP, we are reviewing three areas: the extent of Government involvement in corporate governance and operations of companies that have received

exceptional assistance; how Treasury ensures that companies are

complying with key covenants; and the Government’s management

of its investments and divestiture strategies.

One issue we are exploring is the advantages and disadvantages

of a trust arrangement versus direct management. For example, directly managing the investments gives the Government greater

control over these investments, but it also raises potential conflicts

of interest when the Government is both a regulator and investor.

GAO and SIGTARP are also reviewing the Treasury’s plans for divesting, which are still evolving; and, except for Citi, Treasury has

yet to develop exit strategies for unwinding the investments in others.

In closing, I would like to note that Treasury faces a number of

competing and, at times, conflicting goals. For example, protecting

the taxpayers’ interests must be balanced against its plan to divest

its ownership interests as soon as it is feasible. Consequently,

Treasury may have to balance its desire to exit as quickly as possible with the need to maintain its equity interests long enough for

the companies to demonstrate sufficient financial progress.

Second, establishing and monitoring benchmarks is an important

part of Treasury’s management of these investments because they

inform the ultimate decision on when and how to sell each investment. Regularly monitoring the benchmarks will be important for

Treasury to help ensure that taxpayer interests are maximized.

And, finally, while many agree that TARP funding has contributed to the stabilization of the economy, the significant sums of

taxpayer dollars that were invested in a range of private companies

warrant continued oversight and development of a prudent divestiture plan.

Thank you. My colleague, Nicky Clowers, who is knowledgeable

about the assistance provided to the automobile industry, and I will

answer any questions at the appropriate time.

[The prepared statement of Ms. Brown follows:]

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Mr. KUCINICH. Thank you very much for your testimony, Ms.

Brown.

Professor Eckbo, you may proceed for 5 minutes.

STATEMENT OF PROFESSOR B. ESPEN ECKBO

Mr. ECKBO. Thank you, Mr. Chairman and distinguished members of the committee. Thank you for inviting me to testify today.

I argue in my testimony that the Government, as a large shareholder, should adopt a proactive stand in terms of exercising its

voting rights to promote best governance practices. To be clear, I

am not advocating direct Government intervention in the business

operations of the firms in which it is a large shareholder. For that,

the troubled firms should hire turnaround expertise. I do not believe the Government can morph itself into turnaround expert in

competition with private equity and similar expertise.

What I do recommend is the form of shareholder activism commonly exercised today by large institutional shareholders, such as

pension funds in particular, and which is needed to ensure that the

companies operate under the most efficient governance systems.

My recommendations follow from the fact that the Government is

a large shareholder, and not because it is the Government. The recommendations hold for any large shareholder, State or private.

Minority shareholders benefit from the presence of a large block

holder because only the latter has the economic incentive to exercise voting rights in an efficient manner. Thus, the Government is

now in a unique position to improve inefficient governance systems

and practices. However, to have this positive effect, the Government must take a proactive stance on share voting in accordance

with the value maximization principle and existing best governance

practices derived from this principle.

My written testimony discusses the following areas: general director election reform, structural takeover defenses, downsize and

combining the two roles, the CEO and board chairmanship, and executive compensation.

The common theme underlying all of these areas of concern is a

lack of confidence in boards. Should we be surprised that shareholders question executive compensation in a system where the director election system is rigged in favor of candidates nominated by

corporate insiders, where the firm insists on an arsenal of poisonous takeover defenses, and where the top executive also runs the

board?

Things like shareholder say-on-pay, majority rules in director

election, appointment of an independent lead director are simply

band-aids to help offset the fact that a majority of shareholders

find it too costly to actively vote in today’s system. If shareholders

can reasonably expect to be able to replace directors who they consider incompetent or unwilling to represent owners, why would

anyone insist on say-on-pay?

So the most important governance task in the United States

today is to fix the director election system itself. SEC has begun

to address this concern and now is the time for a large Government

shareholder to voice its report.

It is a common misconception that the shareholder value maximization objective is somewhat charitable toward shareholders.

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Rather, it is the very fundament on which our corporate system

rests, much like a rising tide raises all boats, so that shareholder

value maximization serves the interest of all constituencies higher

up in the priority food chain. As a large shareholder, the U.S. Government, as the U.K. government before it, should actively seek directors who understand these fundamental points.

Given the prominence of say-on-pay issues in today’s debate, how

can this issue be resolved? It is unlikely that shareholders are any

better than boards in determining the right pay. Three points.

First, executive pay should be structured so as to depend on firm

performance; thus, the insistence on restricted stock options or restricted stocks representing large—typically 60 percent—of the

total pay package. This is in line with the recommendations recently by Mr. Feinberg for TARP recipients.

Second, the more difficult issue is to determine the total pay

package itself, and not just the split between cash and stock. The

total pay package ought to reflect the executive’s value added, his

or her marginal productivity. Unfortunately, while it is possible to

get a reasonable estimate of the value added of, say, Michael Jordan joining the Chicago Bulls—which may be why no one seems to

be arguing that sports superstars and others are overpaid—estimating the margin of productivity of a CEO who works in a large

organization is much more difficult. Awarding millions of dollars in

executive pay, without being able to forcefully communicate to investors why the CEO is supposed to be worth, is part of why shareholders demand a say. Here, boards and compensation consultants

need to work harder.

Third, pay packages will also reflect the relative bargaining

power. High profile executives commonly hire professional negotiators to assist in negotiations with the board. The board often

does not meet this challenge and risks being seen as pushovers.

Since executive pay awards largely come out of the pockets of

shareholders, it again comes down to whether the board understands its central role as maximizer in shareholder value.

In sum, we need not only a more efficient director election system, but also to promote an efficient board structure and elect directors who understand the fundamental role of shareholder value

maximization in the corporate system. We need better boards and

for the Government to lead the way in its capacity as a large shareholder today.

Thank you for your attention.

[The prepared statement of Mr. Eckbo follows:]

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Mr. KUCINICH. I want to thank you, Professor, for your testimony.

I want to acknowledge the presence of committee members, ranking member, Mr. Jordan, Mr. Cummings of Maryland, Mr. Tierney

of Massachusetts. Thank you all for being here.

Professor Verret, you may proceed with your 5 minute testimony.

STATEMENT OF J.W. VERRET

Mr. VERRET. Thank you, Chairman Kucinich, Ranking Member

Jordan, and distinguished members of the committee. It is a privilege to testify in this forum today. My name is J.W. Verret. I am

an assistant professor of law at George Mason and a senior scholar

with the Mercatus Center. I also had the opportunity to consult for

the Special Inspector General for TARP and the GAO on a corporate governance audit of TARP firms.

The past year has seen some unprecedented events in the history

of American business. Through the bailout, our Government has

become a controlling shareholder in many bedrocks of the business

community.

Some political leaders have argued that since the Government

owns these companies, it should seek to control their day-to-day

business decisions. The reason I have joined you today is to explain

why this view is not only misguided, but downright dangerous to

the taxpayers’ investment, as well as the pension funds and retirement funds of ordinary Americans.

Government ownership in private companies perverts the accountability of both Government and business. To understand why,

we must appreciate that Government leaders and business leaders

are held accountable by entirely different means. Governments are

accountable to voters based on their ability to get re-elected; business leaders are held accountable by their ability to maximize profits for their shareholders. And the overwhelming majority of those

profits for shareholders go to Main Street investors. Working

Americans like teachers, firefighters, policemen, all depend upon

this mechanism to fund their retirements.

Maintaining a buffer between short-term political interests and

long-term financial soundness is absolutely critical. The economic

evidence from around the globe is overwhelmingly clear that political ownership of private banks and financial companies results in

lower GDP growth, increased need for subsequent government bailout, and politicized lending practices. I am concerned that we may

see politics driving business decisions, such as TARP banks encouraged to subsidize lending in battleground States, for example.

The Treasury Department owns one-third of Citigroup. This fact

has given the Government enormous power over Citigroup’s operations. Consider the case of Andrew Hall, a legendary commodities

trader at Citigroup, who generated an average of $250 million a

year over the last 5 years for Citigroup and Citigroup’s investors,

including their investors now, which would be the taxpayer and

which would be the pension funds and retirement funds of everyday Americans.

Mr. Hall was paid a percentage of that annual $250 million he

generated for Citigroup. His annual salary was definitely high, but

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cided that Mr. Hall’s salary was just too large to justify to populous

pressures, so Citigroup was forced to sell off Mr. Hall’s division at

a deep discount. Losing Andrew Hall will cost Citigroup hundreds

of millions of dollars per year, and that cost will fall on Citi’s investors, including the American taxpayer. But the decision was politically advantageous to the executive branch in the short-term, so it

was inevitable because of the Government’s share ownership.

The case of General Motors is even worse. GM has been pressured by political leaders, responding to alliances with failed automobile dealerships, to keep those failed dealerships open. Political

leaders have exerted pressure to force GM to overpay on its shipping contracts so that truckers using politically favored unions, like

the Teamsters, win the bids. Make no mistake, the cost of this

crony capitalism is borne by the American taxpayer. Government

shareholders don’t have to play by the same legal rules as the rest

of us, a fact which will strain the governance mechanisms of our

capital markets at a time when they are already in crisis.

Bipartisan legislation pending in the House and Senate stand to

address these problems and create a buffer between the taxpayers’

investment and political leaders who would use that investment to

pander to special interests. The TARP Recipient Ownership Trust

Act of 2009, introduced in the House by Congressman Bacchus and

in the Senate by Senators Warner and Corker, would require the

Secretary of the Treasury to place ownership of TARP investments

in trust to be held on behalf of the American people. The act would

task the trustees of that trust, appointed by the President, with a

fiduciary duty to maximize the value of the investment, and it

would include a sunset provision to get out of TARP investments

by December 2011.

The prospect of the Government actively voting their shares in

TARP recipients holds grave risks. Political leaders have stuffed

the Federal budget with pork barrel projects at great cost to the

American taxpayer. We must not permit them to do the same with

the private budgets of private banks. If we do, the taxpayer will be

left holding the tab.

Thank you for the opportunity to testify.

[The prepared statement of Mr. Verret follows:]

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Mr. KUCINICH. Thank you for your testimony, Professor.

The Chair recognizes Ms. Simpson. You may proceed for 5 minutes.

STATEMENT OF ANNE SIMPSON

Ms. SIMPSON. Thank you. Good morning. First of all, many

thanks to the committee chairman, the ranking member, and the

honorable members for an opportunity to testify before you. My

name is Anne Simpson. I am the senior portfolio manager for Global Equities, as the chairman kindly mentioned, and, as such, I am

responsible for CalPERS corporate governance program.

As you will be aware, CalPERS is the largest public pension fund in the United States. We have assets of some $200 billion that we

are responsible for, which we invest on behalf of 1.6 million beneficiaries.

As a long-term global investor in more than 9,000 public companies, we have both a direct and an indirect interest in the success

of the TARP program. We have a direct interest because, regardless of the reduced values that we still see in these companies, we

hold well in excess of $7 billion in both debt and equity in recipient

companies. We have an indirect interest, or I should say perhaps

a systemic interest in the success of the TARP program because

CalPERS is as close to being a universal and permanent owner as

it is possible to be. We need the system to work. We rely upon this

critical sector of the economy functioning as much as any others.

My role here today, though, is to share something of CalPERS’

experience in its corporate governance program for the following

reason: We have taken governance very seriously, we devote resources to it, and we have seen, across our portfolio, that wherever

capital is allocated, governance can make a difference to the mitigation of risk and also to the enhancement of returns.

Specifically, I would like to just share with you what we do in

addressing problems at financially troubled companies and how we

use a governance framework to approach the difficulties those companies have.

And, finally, I would like to say something about what we consider best practice to look like in this field; in other words, what

we have learned about what can work and what doesn’t work, and

how we hope that the Government, as shareowner, will join the

community of responsible shareowners in engaging with governance reforms.

First, though, our experience on using governance as an approach to dealing with financially troubled companies. CalPERS,

for over 15 years, has developed a program around the theme of

the focus list. This is where companies in the most trouble, by sector, are identified each year on a number of screens. What we do

is then analyze the governance of the companies to see where we,

as an active and engaged owner, can have a positive impact on the

company’s health. We look at a range of issues, from the governance structures to the quality of the board, and in combination the

results warrant some attention.

Our external consultants will show up, monitor the performance

of these companies each year, and their conclusions are that over

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tial period of time—these companies have been seen to outperform

their benchmark by some 15 percent. The full details are referenced in our written testimony.

We are firmly of the view that this form of transformation is

something to be considered with TARP recipient companies, and we

have conviction and we have, we feel, convincing evidence that

transparency and accountability foster risk mitigation and value

creation not just for TARP recipients, but we see this as important

for the entire market.

The issues that we think important are set out in our written

testimony, but we want to focus on the principles of optimizing

shareholder returns—maximizing is a word that perhaps suggests

risk can be traded off for returns—accountability to the owners;

transparency; equitable treatment of minorities; and a focus on

compensation for long-term results, including a concern with risk.

Finally, we want to ensure that boards are led by not only independent directors, but those who have the skills and experience—

and we would emphasize diversity in this context—in order to

break through some of the group think which bedeviled the companies that got into difficulty.

Finally, governance reform is no guarantee, but it gives us a

framework to hold boards accountable, and we urge the Government, as a fellow shareowner, to help us develop and use the tools

we need to hold these boards accountable.

Thank you.

[The prepared statement of Ms. Simpson follows:]

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Mr. KUCINICH. Thank you, Ms. Simpson.

The Chair recognizes Mr. Tonelson. You may proceed for 5 minutes.

STATEMENT OF ALAN TONELSON

Mr. TONELSON. Mr. Chairman, ranking minority member, Members Cummings and Tierney, thank you so much, on behalf of the

1,900 member companies of the U.S. Business and Industry Council, for this opportunity to testify.

Given the current economic crisis, which shows no real signs of

easing whatever, this subject of this hearing could not be more important. Yet, USBIC’s member companies are very encouraged by

this committee’s recognition that the ongoing debate about improving the Government’s performance as a dominant shareholder, or

even major player, in critical industries must be dramatically

broadened. It is of course important to achieve greater transparency and greater accountability in rescues and bailout programs. It is of course important to develop sensible exit strategies.

But the overriding challenges facing the U.S. Government in this

shareholder role is how to ensure that it can not only support, but

spearhead a viable recovery strategy for the entire economy.

Since the crisis ultimately stems from the American economy’s

failure in recent decades to produce nearly as much as it consumes,

and its decision to fill that gap by incurring dangerous levels of

debt. A viable recovery strategy clearly must focus on greatly increasing production relative to consumption; that is, the genuinely

productive, wealth-creating sectors of the American economy need

to start reversing the recent pattern and start to grow more rapidly

than the rest of the U.S. economy. And those productive sectors are

dominated by manufacturing.

Now, clearly, our 1,900 members have a huge stake in helping

to achieve this reorientation; they are manufacturers. They have a

longstanding commitment to creating jobs, and sponsoring innovation, and spurring productivity, and boosting production in this

country. Think of them as Main Street manufacturers.

By the same token, they will be prime victims of Washington’s

continued clinging to an outmoded economic strategy that has

made this U.S. economy dangerously finance-heavy. But if this

painful recession and this economic crisis teaches us nothing else,

it has to teach us that everyone else will be hurt. Everyone else

in this economy, every single actor will suffer unless this reorientation is actually completed.

As my written statement details, since the recession’s official beginning in December 2007, the economy has tragically moved farther from this goal of being more production-oriented, not closer to

it. Notably, inflation-adjusted manufacturing output has fallen four

times faster than the rest of GDP. Perhaps even more alarmingly,

our manufacturing capacity—not capacity utilization, but the capacity itself—is shrinking at the fastest rate ever.

Because our economy’s sickness has developed over many years,

the TARP and the rest of our economic recovery strategy—the

same recovery strategy approved by the White House and endorsed

by this Congress—cannot legitimately be blamed for most of this

regression. But they haven’t helped either, and show little promise

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of actually doing so. The problems reflect much more than the jawdropping gap between Government support for finance and Government support for U.S.-based manufacturing. And, of course, Government support for finance entails much more than simply the

TARP program. Much more.

The problems reflect the very goals apparently set by the administration for finance and for an automotive sector that is a bellwether for the rest of manufacturing. Let nobody be under the

misimpression that the automobile industry is the only industry in

the American manufacturing sector that has run into major structural problems. That is far from true. Nothing could be less true.

The goal for finance seems to be encouraging this sector to return

to its pre-crisis scale and full range of activities, productive or not,

with only modest structural and regulatory change.

The first apparent goal for the U.S. auto industry seems to be

managed contraction, managed dramatic contraction, and even

transition to niche-producer status. Not only is this strategy likely

to contribute to the further shrinkage of the entire manufacturing

sector, it flies in the face of everything known today about the prerequisites for automotive competitiveness. A second main goal

seems to be turning the auto industry from a high-wage industry

into a much lower wage industry. How in the world can that help

middle class families repair their own finances without growth

slowing belt tightening of a dramatic nature?

How to ensure that Government, as shareholder, helps refocus

our economy on wealth creation again? My statement makes numerous recommendations, but I will briefly focus on two.

These are two that our—am I short of time?

Mr. KUCINICH. I appreciate your testimony. Your time has

expired——

Mr. TONELSON. I am sorry.

Mr. KUCINICH [continuing]. But if you would like to just wrap it

up and just tell us your two points.

Mr. TONELSON. OK. First of all, the Government shareholding

role must be coordinated with the entire recovery strategy actively

and, second, policy success will require much better, much more detailed, and much more timely data about the economy as a whole

and the manufacturing sector as a whole. Currently, too often, policymakers are flying blind.

[The prepared statement of Mr. Tonelson follows:]

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Mr. KUCINICH. Thank you very much, Mr. Tonelson, for your testimony.

The Chair recognizes Ralph Nader for 5 minutes. You may proceed, sir.

STATEMENT OF RALPH NADER

Mr. NADER. Thank you, Mr. Chairman and members of the committee.

It seems to be here in Congress the more important a hearing

is for the people of this country, the less the press attends the

hearings. It is kind of inverse proportion here. So you ought to be

commended.

In my written testimony with Robert Weissman, I give a lot of

examples of our principle thesis: that the corporations which have

been bailed out came to Washington. They entered the political

arena and you simply cannot say, from an American Enterprise Institute framework, that you have to have the rules of private enterprise when General Motors and AIG, etc., fell all over themselves

to be bailed out by the American taxpayer.

So the question we are facing is proper political judgment when

the Government is a common shareholder of considerable magnitude and when the Government also represents the taxpayer in

terms of saving these companies, which have been characterized by

colossal mismanagement, colossal recklessness with other people’s

money, and colossal self-enrichment. So it is the management failure that even tanked their own companies—although not necessarily their compensation plans—that brought them to Washington.

There has been very little attention paid to the procedural safeguards for Government bailouts. For many years, I have been urging Congress and the executive branch to establish procedural

standards so these bailouts do not reflect secret edicts over weekends or dictates from the executive branch. The nature of the corporate State, that is, corporate government, what Franklin Delano

Roosevelt told Congress in 1938, was fascism. That is the words he

used. The corporate State requires concentration of power in one

branch of government at the expense of the other two, and that

branch is the executive branch.

This was illustrated by the weekend massive bailout of

Citigroup, when Robert Rubin went down and met with Mr.

Bernanke and Mr. Paulson, and emerged with a press statement

on the following Monday with a $300 billion guarantee of

Citigroup’s toxic assets and a $45 billion investment by the taxpayers. There was no notice to the public, no congressional input

or participation, no taxpayer standing was permitted to challenge

this edict, no judicial review, no standards. In other words, let’s

face it, dictatorship.

This is a repudiation of the congressional authority under the

Constitution. A lot of money was involved. A lot of money was obligated; it was done by the executive branch. Not even reaching the

contemptuous four-page bill that Mr. Paulson sent to the Congress,

where both Republicans and Democrats rebelled, which basically

said give the Treasury all the authority, with no judicial review,

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plus $700 billion, thank you very much. So the procedural issue is

very important here.

The substantive policies, of course, reflect the procedural standards. When you have bad procedures, when you have autocratic secretive procedures, you tend to get bad performance substantively,

and our testimony illustrates that in some detail. But the major

thesis of the testimony is that when the Government is a dominant

or controlling shareholder not of its own asking, the Government

has an obligation not to invest passively; it should use its ownership powers to clean up management and, mindful of its duty to

safeguard taxpayer financial interest, it should also pursue statutory public interest mandates in areas such as consumer, environment protection, financial stability, and financial honesty. And that

reflects, of course, the state of workers, the state of consumers, the

state of investors, elaborated in our testimony.

Three quick examples. One is that the Government did not condition its bailout and equity infusion of AIG on the firm’s credit default swap counterparties accepting a haircut. So it was basically

not just a bailout of AIG, it was a bailout of Goldman Sachs and

others. Again, very, very secretive; a stunning display of executive

power without congressional participation.

The second quick example is the double standard that you mentioned, Mr. Chairman. It is really amazing how fast they move to

bail out crooked and reckless companies in the financial industry,

but then they really hang the manufacturers out to dry. Not that

they don’t deserve a strong hand, but the contrast is really stunning in terms of the inferred dependency that the executive branch

believes the rest of the economy relies on the financial sector. This

is delegation run awry, when the GM deal was negotiated not by

Congress, not by the executive branch, but by a delegated secretive

White House task force made up of Wall Street expatriots with little or no experience in the auto industry.

The other point I want to make is that people fall by the wayside

here. The bankruptcy system now in the corporate area is a kangaroo court. Congress has to revisit corporate bankruptcy law. It is

a prearranged, choreographed bankruptcy system where many interested parties are given no participatory roles or they are given

arbitrary shortened participatory roles which are basically nominal.

Mr. KUCINICH. I would just ask that you wrap up your testimony.

Mr. NADER. Let me just end with this example.

Mr. KUCINICH. Thank you.

Mr. NADER. General Motors eliminated, under bankruptcy, its liability to victims of defective products it had sold before the bankruptcy. This is truly outrageous. This is a manifest injustice which

is revealed by the person of Amanda Dinnigan, a 10-year-old girl

from Long Island, New York, injured by the allegedly faulty seatbelt in a GMC Envoy that snapped her neck in a crash. Her father,

an iron worker, estimates her health care costs at $500,000 a year.

Her lost quality of life will obviously be tragic. That and hundreds

of other cases were rubbed out by this bankruptcy court.

Only legislation can correct this manifest injustice to innocent

victims of corporate defective merchandise.

Thank you.

[The prepared statement of Mr. Nader follows:]

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Mr. KUCINICH. Thank you very much, Mr. Nader.

As Chair, I am going to now go to the question period. I would

like the gentleman from Maryland, Mr. Cummings, to begin. So if

you would go to 5 minutes of questions.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

I want to read an excerpt from a column that Carl Icahn write

in The New York Times on March 29th of this year. He writes,

‘‘Sadly, though, under American corporate law, share ownership

does not count for much. Barney Frank might be surprised to learn

that a lawsuit would have almost no chance of success in court,

even for a majority shareholder like the government. AIG would

most likely argue that the oft-cited ’business judgment’ rule gives

management wide latitude to set compensation without shareholder interference. What the government should have gotten was

board representation in return for its large investment in AIG.’’

I just want to ask you all—whoever feels best qualified to answer

the question, please do—while we know that AIG now has a substantially different board, Mr. Icahn still points out that shareholders have the deck stacked against them. In your opinion, was Icahn

correct or is the current model—for example, the Credit Facility

Trust—the best means of representing and ultimately extricating

the Government from its investment in AIG?

Mr. VERRET. Well, Congressman, I would offer that one of the

things that concerns me about corporate liability is that, typically,

a controlling shareholder would share the same liability to the

other shareholders as the board or the executive. But when the

Government is the controlling shareholder, it has sovereign immunity, so it would not get any liability at all, any chance of liability.

Now, I am aware that Mr. Icahn is critical of the business judgment rule, which is part of State corporate law. You know, sometimes shareholders win and sometimes they lose. I know that a

challenge to Citigroup is still ongoing in the Delaware Court of

Chancery, and it survived a motion to dismiss, and I know that

there have been a number of cases that have won, a number that

have settled, and some of them don’t. So I think there is a healthy

debate about the business judgment rule.

Mr. CUMMINGS. I was intrigued by your testimony, Professor, and

I was just wondering how do you react when we have the AIGs of

the world taking Government money and then basically saying

screw you to the American public as they go off and do all kinds

of wonderful things, junkets and bonuses and whatever? How is the

American public, who owns it, how do you think it is best that they

exercise some control over that?

Mr. VERRET. Well, I worry——

Mr. CUMMINGS. Or you don’t think they should have any control?

Mr. VERRET. I worry that the exercise of control will revert to the

sort of pork barrel——

Mr. CUMMINGS. I got all of that. But what I am saying to you

is that—you are a law professor?

Mr. VERRET. Yes, sir.

Mr. CUMMINGS. And I know law professors, you sit in those nice

offices and everything. But I am talking about the real nitty gritty.

We have the American people who are losing their houses, losing

their savings, losing their jobs, losing everything. They give to

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these corporations their hard-earned tax dollars, and then we have

these corporations basically spitting in their faces and saying, you

know, screw you. So what happens from a political standpoint, it

becomes very difficult, after you have helped somebody extricate

themselves from a drowning situation, to have them do that to you.

So the question becomes—I got all the corporate law. I got that,

I understand it. But how do the American people then get some

kind of foothold in this governance so that they can make sure that

those things don’t happen. You follow what I am saying?

Mr. VERRET. I appreciate your concern——

Mr. CUMMINGS. Mr. Nader, I would like for you to chime in on

this, if you don’t mind.

Mr. NADER. Yes, of course. We have recommended a principle

which basically says if the Government doesn’t facilitate the civic

organization of the ultimate beneficiaries—workers, investors,

etc.—no regulatory or bailout process is going to be fair and going

to be enforced. What you are talking about is reciprocity. Look at

what people have given up involuntarily: their jobs, their savings,

their pensions, their consumer protections. And what are they getting in return? An in-your-face attitude by these managers who directly or inherited reckless management that basically says we are

going to continue business as usual and we are going to pay our

people enormous bonuses.

There is a level of arrogance and lack of remorse here that is unprecedented in American corporate history.

Mr. CUMMINGS. So you think this is new. You said it is unprecedented.

Mr. NADER. In its magnitude and its face. In Japan, they would

apologize on national TV for far less transgressions, the corporate

executives.

Mr. CUMMINGS. Thank you very much. I see my time has expired.

Mr. KUCINICH. I thank the gentleman.

I am going to recognize Mr. Jordan for 5 minutes, then I will go

to Mr. Tierney, if he would like.

Go ahead, Mr. Jordan.

Mr. JORDAN. Thank you, Mr. Chairman.

Professors, did you ever think you would see the day where, in

the United States of America, we would have, in fact, a Federal

Government pay czar telling private American citizens how much

money they can make? And before you answer that, I want to go

to what Mr. Nader—because I think he does have a valid point. In

the limited context we are talking about, these institutions came

to the U.S. Congress, stuck their hand out and asked for money.

Maybe it is understandable, but when you think about where we

are today and couple that with statements made by some Members

of Congress, particularly Senator Schumer, where he indicated that

maybe in the future we should look at any publicly traded company, executives at those companies, being subject to the pay czar.

Did you ever think you would see that day? And I want the professors to have first whack at it.

Mr. ECKBO. I think you actually saw say-on-pay demands back

in the 1930’s after the crash. You saw it also in the early 1990’s,

and you have seen say-on-pay demands in Europe for a while. So

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I think the issue of shareholders wanting to have a say on pay is

not terribly new. I did not expect to see it here as much as I have

seen it, but I think it has to do, as I said before, I think it has to

do with a failure of boards in general. So if you can trust your

board, you can also trust their pay policies.

I don’t think shareholders or taxpayers are asking for a say on

pay because they don’t like the numbers per se, but because they

don’t trust the decision process that went behind those numbers.

That is why I am saying we need to reform our ability to get

boards to represent ourselves as taxpayers or as shareholders,

more specifically. We need the election reform to be accepted.

Mr. VERRET. I think in answer to your question, Congressman

Jordan, and also in answer to Congressman Cummings’ question,

I think one of my concerns is that, look, most of the investors in

Citigroup, in Bank of America are pension funds and retirement

funds. Ordinary Americans are investing in these companies, and

I think they have already been hit hard enough. Look, they have

foreclosures, they are facing unemployment, and now Government

leaders are going to use their pension funds and their 401-Ks as

a vehicle for more special interest spending for special interests,

and I think that is the last thing they need right now.

And I would also offer, with respect to say-on-pay. A lot of folks

make an analogy to say-on-pay as it is used in the United Kingdom. One of the major differences between us and the United Kingdom is most of their investors are—most of their large institutional

investors are insurance companies and private company pensions.

We have a lot more union investors here, and I think that offers

a lot more conflict of interest if you empower a certain minority of

the shareholder electorate that has a special interest——

Mr. JORDAN. Let me just change gears for a minute and I will

let you jump in here. The transparency issue that some brought up

and particularly Mr. Nader brought up I think is very valid. I happen to live in a district where they closed the General Motors facility. I remember being on the conference call the night before they

were going to make the announcement and the folks on the—Mr.

Sperling on the conference call said the Government, the auto task

force will only weigh in if it is a major decision. Many Members

of Congress were on that call; they asked questions.

Finally, it came to my question and I said, How do you define

major? And he didn’t have a definition for it, which means it can

be any darn thing they want. We actually know that auto task

force submitted General Motors, the executive of General Motors

submitted a report to the auto task force their restructuring plan.

It was denied. So who is making decisions? We would like to know

what was in those—I have asked to see those. Oh, proprietary information; we can’t get access. So I can see both sides of this equation, but this lack of transparency, and when you couple that with

what I believe Ms. Brown said in her testimony, exit strategies are

still evolving. We don’t know where this is—and that is the biggest

concern. We would like to know where this is going, how the taxpayers are going to get out of this, what it means for our economy.

So talk to me, if you would, professor, about what I view as a

lack of transparency with where we are right now, and then I will

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go to Ms. Simpson—I know you wanted to jump in—and Mr.

Nader.

Mr. Verret, you can go first.

Mr. VERRET. Sure. I would absolutely agree. I think this is where

the liability for controlling shareholders comes in as well. Usually,

if any other controlling shareholder would have done some of this

stuff, they would have been taken to court and they would face tremendous liability. But Treasury gets a complete get out of jail free

card from its securities and corporate liabilities; it is free to engage

in insider trading if it wants to. So we have seen no accountability

and no transparency.

Mr. JORDAN. I am out of time.

Ms. Simpson and then Mr. Nader real quick, or whoever wanted

to jump in. I am sorry.

Ms. SIMPSON. Thank you. Briefly. I would like to comment on

this question about accountability because it is quite normal in a

board election, in an American company, that the shareholders

can’t vote no; they cannot actually remove the board. Likewise, it

is expensive and fiendishly complicated to actually put a director

forward. Therefore, we must take the bigger picture here and realize that the reforms on majority voting, as it is called, and proxy

access, as it is called, are critical to giving owners the ability to behave responsibly and hold boards to account. Power—a vacuum

and we have a vacuum.

So, in the U.K., I would suggest that say-on-pay was a sort of additional extra. The reason pay is better aligned with performance

and the multiples are not so eye-popping is because owners have

the right to vote no when boards come up for election and it is very

simple to put candidates forward.

So we hope that those two wider reforms do come to pass in the

United States and we think it will be a big step forward. Thank

you.

Mr. KUCINICH. I thank the gentleman. The gentleman’s time has

expired. We may have a second round of questions; I think we will,

given this panel.

The Chair recognizes Mr. Tierney for 5 minutes.

Mr. TIERNEY. Thank you, Mr. Chairman.

I am struck, Mr. Verret, by some of your testimony here. I guess

the way I read your theory is that even though the companies came

to Washington on their hands and knees looking for a bailout, and

that, in exercising the shareholder responsibility, the Government

should still just step back and let those same failed executives and

people go about their own way without any interference; that even

as people with an interest in it, we should just step aside and let

it go, meaning that they can then continue to disregard whether it

is tax law or labor law, environmental law, regulations or whatever

that protect what now is a principal shareholder. I don’t think I

quite get that reasoning.

Mr. VERRET. Well, that is not where I am going, Congressman.

I would offer that I would like to see a trust set up to run the Government’s investment in these companies. I would like to see these

trustees, appointed by the President, insulated from short-term political pressure in the net election. Those sort of conflicts——

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Mr. TIERNEY. What would the relationship between those trustees be with the taxpayers whose money is what is invested?

Mr. VERRET. Well, in the bill that has been introduced by Senator Warner, Senator Corker, and also by Congressman Bacchus in

the House, they would have a fiduciary duty to maximize the taxpayers’ investment.

Mr. TIERNEY. Much like the way there is a fiduciary duty for

these failed executives to maximize the investment of their shareholders, which they did by taking exorbitant salaries and many

times other violations of good management practices?

Mr. VERRET. Well, I wouldn’t bail out this trust any more than

I would have bailed out these companies, and I think that is a big

part of the problem, the moral hazard problems of bailouts; and I

am not a supporter of the bailout any more than I think a lot of

Members of this body.

Mr. TIERNEY. So you would have let AIG and Citigroup and all

those banks just go down?

Mr. VERRET. I would have let some of the banks go down, absolutely, because I think they got a great deal.

Mr. TIERNEY. All of them or just some of them?

Mr. VERRET. I wouldn’t have given AIG nearly as much as they

did; I would have cut the counterparties’ exposure; I wouldn’t have

given——

Mr. TIERNEY. But you would have given them something.

Mr. VERRET. Oh, I would have tried to make sure they didn’t

bring down the financial system, but I wouldn’t have given such a

giveaway that I think we saw——

Mr. TIERNEY. So yours is a question of degree. You would have

bailed them out; you just would have bailed them out differently.

Mr. VERRET. Well, I wouldn’t have bailed out Citigroup; I would

have let Citigroup fail, absolutely.

Mr. TIERNEY. Well, but AIG?

Mr. VERRET. I think AIG, you had to do something because it

would have brought the whole——

Mr. TIERNEY. So you would have bailed them out; you just would

have done it a different way than the people that made the decision

like Paulson and others.

Mr. VERRET. I would have given them a very small percentage

of what they gave them. And I think——

Mr. TIERNEY. All right. I just want to establish it is a matter of

degree that we are talking about.

Mr. VERRET. Sure.

Mr. TIERNEY. A different look on that basis.

Mr. Tonelson, what are your specific ideas on how we rebuild our

manufacturing base? I read your testimony and I agree with some

of the generalities you have in there, but if you had to say there

are three or five specific policies that we ought to start embarking

on right now to reestablish manufacturing, what would they be?

Mr. TONELSON. Well, thank you so much, Congressman Tierney.

There is no doubt that there are steps that have already been widely discussed that urgently need to be taken and, in my view, in

fact, in the view of my organization, the most important steps involve the transformation of U.S. trade policy; and I will be very

specific. There is no excuse for Congress, under Democrats, not to

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have passed a strong currency manipulation bill. The practice of

exchange rate protectionism by China and other Asian countries is

an abomination—should be an abomination to anybody who styles

themselves the champion of the free market. It has been going on

for 10 years, at least; it has crippled the American manufacturing

base, American manufacturing output, American manufacturing

jobs.

We have been talking about this problem since 2002 or so. I can

understand why a Republican administration in which the two

non-trade policy was called by outsourcing multinational companies

refused to act. I don’t understand why this Democratic President

and this Democratic Congress refuses to act.

The second recommendation, there are already very important

Buy American provisions in the stimulus bill. These Buy American

provisions need to be expanded to cover all Federal procurement.

And I understand there are problems regarding our World Trade

Organization obligations. Unfortunately, these obligations may

need to be suspended. We face an economic emergency; it is a crisis. That word is used for a reason and times of emergency require

emergency measures; and when international obligations like this

prevent us from taking common sense measures not only to rebalance our own economy, but to rebalance a dangerously lopsided

world economy, then those obligations need to be set aside.

So those are two very specific steps that can be taken this week.

Mr. TIERNEY. If the chairman will give us unanimous consent, I

just have a few more seconds, Mr. Nader, I would be interested in

hearing your comment on that.

Mr. KUCINICH. Mr. Nader, you may respond to his question, and

then I will go to the next——

Mr. TIERNEY. Thank you, Mr. Chairman.

Mr. NADER. OK, thank you.

I think, first of all, the China example is perfect. You can’t have

free trade with dictatorships. Why? Because dictatorships impose

the costs and keep the costs down, like labor costs and prohibition

of independent trade unions. So China has not only a dictatorship

advantage in terms of trade, but it also has an absolute advantage.

The late Paul Samuelson, economist emeritus at MIT, changed his

views in a recent academic paper and basically said the costs of

outsourcing are expanding beyond the benefits of outsourcing. That

is what absolute advantage does.

Third is the under-valuation of the currency, the yuan. Fourth is

the rampant criminal counterfeiting of products that are coming

into this country from China and other countries. And, finally,

there is no consumer protection. There is no consumer protection

treaty with China. We are getting contaminated fish, defective

tires, ingredients in our pharmaceuticals that are hazardous—in

one case it has already killed 200 Americans. There is no consumer

protection treaty, so you have a superior advantage of shoddy goods

coming in, driving out goods that meet consumer standards in this

country.

And then we need a level playing field. The idea of all the Federal subsidies and tax expenditures favoring the fossil fuel industry

creates an unlevel playing field with sustainable energy and energy

conservation. Part of it is being remedied in Congress in recent

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years, to be sure, but still the subsidies, for example, to the nuclear

energy industry is massive in terms of no nuclear plants can ever

be built in this country without 100 percent Federal loan guarantee, according to Wall Street finance firms.

So that isn’t true for solar energy, for example. Solar energy

doesn’t get 100 percent guarantee. And solar energy can be one of

the great manufacturing segments of our economy in terms of jobs

produced, in terms of innovation applied here, in terms of climate

change and other environmental issues, and, above all, in terms of

its decentralized nature, contrary to highly centralized fossil fuel

and nuclear installations into every community in the country creating jobs, production jobs and maintenance jobs.

Mr. KUCINICH. Thank you. Thank you very much, Mr. Tierney,

Mr. Nader.

I voted against the bailouts because I don’t believe that Government should be picking winners and losers in the private sector.

Now, the testimony that I have heard here from some of the witnesses and, indeed, the debate that goes on between some Democrats and Republicans in the Congress is that the corporate State

and the Federal Government are somehow two distinct entities. I

want to look at that in light of just one example, today’s report,

‘‘Tax Deal is Worth Billions to Citigroup; Deal Made to Recover

Bailout; Firms Exempted from Rule when U.S. Sells Its Stake.’’

The Federal Government quietly—quietly—agreed to forego billions

of dollars in potential tax payments from Citigroup as part of a

deal announced this week to wean the company from the massive

taxpayer bailout that helped it survive the financial crisis.

Now, one of the concerns that I have had is that the personnel

between corporate America and the Federal Government has basically been interchangeable at the top. You look at Citigroup, they

are in the top level, decisionmaking level in the Government; there

are people who used to work for them, as is the case with Goldman

Sachs. So you wonder why there is very little change between one

administration and another. You look at the bailout, the terms of

the stock ownership; you look at TARP, post-TARP, the relationship between the Federal Government and the corporations.

If I look at what happened here with this Citigroup deal, you

would assume that the Government, if it is taking ownership,

would protect the taxpayers, first responsibility. But the Citigroup

deal that was exposed today, the Government, instead, is protecting shareholder interests over taxpayer interests, to ceding billions

of dollars in taxes. So it raises the question whether or not we have

had a merger that has occurred here, kind of a hostile takeover of

the Government through the TARP by Wall Street. You want to

talk about moral hazard? How about the destruction of a democratic system using our own money? This is why TARP was dangerous, because it is not only the Government reaching in to direct

private enterprise, but it is private enterprise reaching in the other

way to direct the Government. Who owns whom? This is one of the

answers to the questions. Citigroup has a blank check. And I don’t

think it would be different with a Democrat or Republican administration; it is the same thing.

I have a question for—and I speak as someone who has been following these issues for years, and we are going to—fair warning for

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the Treasury Department, which is coming here tomorrow. They

are going to be asked a lot of details and for documents on this

Citigroup thing. I said it before in my opening remarks. Matt

Taibbi, in Rolling Stone, did a pretty good piece on detailing the

financial connections between Wall Street players, how they are

now in the administration and how policies seem to follow ways

that help Wall Street at the expense of Main Street.

Now, the question to Mr. Nader and Mr. Weissman. Some have

said that the Federal Government did impose conditions before

bailing out the companies. With respect just to the four companies

which the United States now owns, how would you assess the significance and effectiveness of those conditions the United States

did require, and what should the Government have required of

TARP recipients but failed to demand?

And then I will invite others to comment if we have time.

Mr. NADER. Let me ask Mr. Weissman to come up and answer

that part of the question. Thank you.

Mr. KUCINICH. Mr. Weissman has already been sworn. You may

proceed.

Mr. WEISSMAN. Thank you, Mr. Chairman.

I think you raise the core distinction in your opening remarks.

There were the most minimal standards imposed on the TARP recipients, and I think we should really distinguish between the

TARP recipients and those in which the Government took a controlling interest, which, as an aside, is the core issue at this hearing and is completely different from receiving loans. The conditions

were minimal. Ultimately, there were some very modest executive

compensation conditions imposed. In the case of AIG, they did demand the very short-term CEO step down.

The contrast is with the conditions imposed on General Motors,

as well as Chrysler, where there was an extremely intensive review

of policies that were being proposed by management, ousting of

management, new management has come in that has since come

and gone in the case of General Motors. The conditions, however,

that were imposed, the scrutiny that was imposed in the case of

General Motors I think was admirable. The criteria, though, by

which that was applied raises several questions. It is not at all

clear what the aim of the task force was in imposing the stringent

conditions.

Mr. KUCINICH. Can you give any specific examples of where you

think that we lost out on opportunities?

Mr. WEISSMAN. Well, one—well, maybe two. One striking example is that the administration, the Obama administration bragged

that it imposed more severe wage cuts on the auto workers, and

General Motors and Chrysler, than the Bush administration had

done in its negotiations with the auto industry. It makes no sense

whatsoever to bring down the wages both of those workers but,

more importantly, the standard in the auto industry and manufacturing overall. As owners of these companies—we are not lenders

to these companies; we, the public, are owners of the companies;

they are are the dominant owners; they are effectively our companies—we have important statutory public policy objectives that we

ought to be pursuing. We are, right now, in the midst of climate

change negotiations.

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Mr. KUCINICH. So whose interest did we represent, then, did the

Federal Government represent?

Mr. WEISSMAN. I think in the case of—it is actually a little bit

difficult to say, in the case of General Motors, what the objective

was. I think the ultimate objective was to keep it as a going concern, just as a going concern, but without regard to why it is the

public would want to maintain General Motors as a going concern.

In the financial area, I think we actually represented the interest

of management and, to some extent, the interest of maintaining

Wall Street and the financial system.

Mr. KUCINICH. My time has expired and I try to be fair in the

allocation of time here. We are going to have a second round of

questions. I want to get back to that and ask other people to join

in.

The Chair recognizes the distinguished gentlelady from California, Ms. Watson, for 5 minutes, then we are going to go to a second

round.

Ms. WATSON. All right.

Mr. KUCINICH. Thank you, Mr. Weissman.

Ms. WATSON. Thank you, Mr. Chairman. I am going to be very

quick on this so that we can get around the second round.

Mr. Nader, I am glad you are back at the table. I missed your

first presentation, but if, as you assert, bailed out companies have

no legitimate interest apart from Government when Government

becomes the dominant shareholder, is it appropriate to re-purpose

the companies’ objectives and policies toward, for instance, consumer service, environmental responsibility, and worker investment, and to delay the relinquishment that these changed priorities are achieved or protected even if that delays return for

functionality or profitability? What is your opinion?

Mr. NADER. Well, I think there is a congruence between statutory purposes and the health of a company like General Motors.

After all, it got into trouble, one, because it didn’t have fuel efficient vehicles and it had a bad mix of choice of vehicles, relying so

heavily on the SUV. It got into trouble because, as Ross Perot said,

its management, in his words, ‘‘Hates its customers, hates its workers, and hates themselves.’’ It was entirely at cross purposes with

what professional management should incur. I could argue also

that General Motors’ fit and finish got them into trouble, compared

to Honda and Toyota. So a lot of the statutory purposes already on

the books advocated as not only taxpayer representation for value,

but also shareholder power, would enhance the health of General

Motors.

This whole area is one of cognitive dissonance. The more the

Government helps GM, how does Ford react, you see, which didn’t

ask for Government help? There are all kinds of conflicts here. But

one thing that seems to be sure is that a basic principle of capitalism is that the owners control what they own, and that principle

is massive and historically violated by big business that basically

says to shareholders, institutional and otherwise, if you don’t like

the way we run the country—the company—that was a slip—if you

don’t like the way we run the company, sell; in other words, exit,

not voice. And that is why, in response to Congressman Jordan’s

point—and that is why I am always amazed by people calling

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themselves free enterprise conservatives. What is say? What is say

on pay? There is no say on pay proposed in Congress or by these

corporations; it is just a non-binding referendum. It is an opinion

poll by shareholders. If shareholders own the company, they should

be able to mandate high executive salaries and they should be

given a very small staff to do so.

So I have no problems at all in terms of strengthening corporations in this country once they desperately come to Washington and

get on their knees for a bailout in terms, as our testimony points

out, in terms of exercising shareholder power as a model for the

rest of the country—not passive shareholders—as a model for institutional shareholders, who should be at least as aggressive as

CalPERS, and also to represent the taxpayer investment; and I

don’t think they are necessarily contradictory at all.

Ms. WATSON. Let me——

Mr. KUCINICH. [Remarks made off mic.]

Ms. WATSON. Yes, just one more question connected. Thank you.

Mr. KUCINICH. Your time expired, but if you want to—OK, continue with your question. Go ahead.

Ms. WATSON. I wanted to go to Professor Verret. You said that

we probably should not have bailed out to the degree that we have.

But you know what? It is connected to jobs. Michigan is suffering

greatly from unemployment. When I go back to my district, Los Angeles, California, they don’t ask me about debt; they want to know

what we are doing to get them back to work. So I see the connection between capitalizing the banks and bailing out so that they

can hold on to employees. The unemployment rate is unacceptable

right now. So can you give me an opinion as it relates to jobs and

less bailout?

Mr. VERRET. Sure. In answer to your question, I would say that

I share your concerns about jobs and about employment. My concern is about process, is about the ability to keep everything off

budget, off the Federal budget. We saw it once before with Fannie

and Freddie, and folks said, well, Fannie and Freddie is off budget,

they are not on the Federal budget.

Well, they are on there now. And, in fact, they have been the

beneficiary of the largest guarantee of these companies. Fannie and

Freddie have been the beneficiary of a $400 billion guarantee. This

morning the Wall Street Journal reports the Treasury is going to

ask for more very soon. So I am worried about this sort of off budget stuff. I think we can help folks through the Federal budget and

not have to keep it off budget, because ultimately the taxpayer is

going to be left holding the tab anyway, in the future. I think keeping it secret is what I have a problem with.

Mr. KUCINICH. I thank the gentlelady.

Ms. WATSON. I yield back.

Mr. KUCINICH. Thank you very much. Appreciate it.

Mr. Tierney.

Mr. TIERNEY. Thank you.

Mr. Verret, can I just ask you what is your take or your opinion

on real say-for-pay by shareholders? Not the referendum Mr. Nader

was talking about, but ought they not have the ability to really determine what the pay is going to be of their executives?

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Mr. VERRET. Well, right now they do have the power to get rid

of compensation committees, and I know that the California Pension Fund and a number of other institutional investors do a lot

of good work in targeting compensation committee members that

aren’t doing their jobs; and they say, look, you have to go and they

use their majority voting powers to get rid of them. I think that

is a very effective way to do things.

I worry on say-on-pay just because I worry about some special interest shareholders using this power as part of their negotiations

with companies, and I think we have seen some shareholders misuse powers to the detriment of all the ordinary Americans that own

shares through their 401-Ks.

Mr. TIERNEY. That is a pretty subjective view. You say they are

misusing their powers, but they are shareholders, and who is not

to take the other argument that they are acting on behalf of those

people whose money they are holding and going to drive that interest, which is in fact not special to them. Everybody has a special

interest; every shareholder has a special interest. The board of director member who is a shareholder who sits on there and pads the

pockets of the executive because he is an executive somewhere else

and is going to be reciprocated when the guy whose pay he is jacking up is going to sit on his board and jack his up, that is pretty

special interest. I just take note of that on that basis.

Mr. Nader, can you think of any reason why we continue to allow

corporations to deduct, as a business expense, from their taxes exorbitant pay for executives? Ought we not look at some point at

protecting taxpayers by just saying beyond some point that is not

going to be tax deductible?

Mr. NADER. Well, you know, the Congress established a million

dollar limit——

Mr. TIERNEY. I meant a real limit, though.

Mr. NADER [continuing]. And they circumvented it with stock options and so forth, so it is like trying to block water going downhill.

So if you are going to restrict the tax deductibility of executive

compensation, you have to also pay attention to how they are going

to circumvent it; and they are very creative in circumventing it.

One thing we have to understand, this whole subject of this committee, Congressman, is that corporations are very fast learners in

gaming regulatory and bailout and subsidy systems from Washington, and Citigroup is a perfect example of that in today’s Post.

They are very, very creative in gaming, so you have to make sure

that if you restrict it in one area, you have to take into account

other evasive processes.

But I think that if you give shareholders the authority to decide,

not just to give their opinion, and you have pension funds and institutional shareholders, that will take care of a lot of the problem.

They are not going to approve the pay of $70 million for Goldman

Sachs’ CEO if they are given the authority. And why shouldn’t they

be given the authority within their framework? They own the company. But the split between ownership and control, which was

pointed out by Berle and Means back in the 1930’s, is the way the

executives dominate the corporation and strip the owners of control.

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The professor just noted that there could be some mischief by

some shareholders. Well, they have to get over 50 percent, don’t

they? If 51 percent is mischief, I don’t know what your definition

of mischief is.

Mr. KUCINICH. The gentleman desires to engage in a——

Mr. TIERNEY. I am happy to pass that along, Mr. Chairman.

Mr. Verret, I think it is a fair question to you. Fifty-one percent,

does that satisfy you that any mischief is at least interpreted differently than what you might view?

Mr. VERRET. Well, the voting rates of shareholders aren’t 100

percent, so some shareholders vote more often than others, and

folks who hold shares through their 401-Ks don’t have time to vote

their shares everyday; whereas, the union pension boss has time to

vote their shares every day that they do.

Mr. TIERNEY. Do you think it is the so-called union pension

bosses that are voting for $70 million pay raises?

Mr. VERRET. In answer to your question, if shareholders

valued——

Mr. TIERNEY. I don’t think—is it a yes or a no? Do you really believe—do you believe that it is the pension funds and others like

that, or the union pension funds that are voting the head of these

firms $70 million in compensation?

Mr. VERRET. I think they are voting based on their own interest,

and I think they will vote for things based on what they can get

from it.

Mr. TIERNEY. Please, Mr. Verret. You are a professor and you

know better. All right? Do you really believe that those are the people that are voting a $70 million compensation package for the

chief executive officer?

Mr. VERRET. I think they will or will not—I don’t know what

they are voting for, but I know they will or will not vote based on

what sort of deals they can work with the company, and I worry

about——

Mr. TIERNEY. I think your credibility suffers a loss there when

you answer that way and you are not just forthright on that, because I really have to believe that you don’t think for a minute that

they are the ones that are voting the $70 million pay packages.

And if you do, then, as a good professor, maybe you will go back

and look at your documentation a little bit on that.

Mr. VERRET. Well, I would disagree completely. I think that we

have seen a lot of collusion between unions and firms on all sorts

of deals. So I think they might vote for it if they got some sort of

special deal for themselves as well. And I think when unions and

boards collide or when governments and boards collide, the taxpayer and the ordinary Main Street shareholder is the one who is

left holding the tab.

Mr. TIERNEY. I have to press this a little further. So the only special interest you see sitting on boards are people that represent

labor pension groups?

Mr. VERRET. Well, there are all sorts of special interests involved, absolutely, sure. They are not the only ones.

Mr. TIERNEY. Right. Thank you.

Mr. KUCINICH. I thank the gentleman.

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While we are having this discussion, I am thinking of all these

workers whose pension funds began to evaporate with the fallout

on Wall Street and whose pension funds get collapsed in bankruptcies.

This will be the last series of questions here. Start with Professor

Eckbo. Your testimony, sir, outlines how the Treasury’s passive

voting strategy could, in principle, allow a director to be elected

with just one vote of a minority shareholder. Would you explain or

expand on what you see as the perils of passive shareholding, what

corporate tricks or even scandals could fester while the United

States is the dominant shareholder? And, as a followup, could the

companies repeat the excessive compensation practices, short-sighted vision, and, in some cases, potentially criminal behavior while

the United States is the dominant shareholder under Treasury’s

plan for shareholding? Professor.

Mr. ECKBO. Mr. Chairman, I think it is important to start with

the fact that the U.S. corporate system is a board-driven system

from a legal perspective, so whatever decisions the boards are taking is going to be binding for the firm. And as we talked about earlier today, shareholder control of its own corporations is a function

of how costly it is to replace these board members when they turn

out not to be so good.

Mr. KUCINICH. What about the Treasury as a passive shareholder?

Mr. ECKBO. In my mind, when you finally get these large shareholders who have all the incentives in the world to actually take

the world and pay the cost of being an active shareholder, which

is the problem with the small ones, then we would like Treasury

to play that role.

Mr. KUCINICH. To play the role of?

Mr. ECKBO. As an active large shareholder.

Mr. KUCINICH. And what would that mean?

Mr. ECKBO. That means, for example, it means, in my mind, to

try to restructure the system on a broad scale to support, to push

for election reform for directors. It means go into the company and

vote charter amendments, for example, where we take away staggered board provisions; we separate the chairmanship and the CEO

position, which is common today in the United States. It is illegal

in some other countries because of conflicts of interest that are involved. So you take these actions in order to get—and, of course,

you get directors that you think are capable of running the company the way it should be done.

Mr. KUCINICH. Does anybody want to chime in here, any other

panelist? Ms. Simpson, what do you think about Treasury’s passive

voting strategy?

Ms. SIMPSON. I want to just come back to this point about——

Mr. KUCINICH. No, what do you think of that? I know you want

to talk about what you want to talk about——

Ms. SIMPSON. It is critical for all shareholders——

Mr. KUCINICH [continuing]. But just answer the question, would

you?

Ms. SIMPSON. It is critical for all shareholders to be active responsible owners and to push this governance overhaul, which is

absolutely necessary. So majority voting, yes. Proxy access, absoVerDate 11-MAY-2000 12:50 May 26, 2011 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65130.TXT KATIE PsN: KATIE
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lutely. Removal of all the barriers to accountability like staggered

boards, super-majority voting, poison pills, you know, there is a list

of a dozen or so barriers to accountability and we want all owners

to actually engage with these reforms; otherwise we have simply

missed a huge opportunity.

Mr. KUCINICH. Anyone else want to join in? Anybody. Professor

Verret, do you want to join in?

Mr. VERRET. In part, I wonder how passive it is, just because I

know that they have said that it is passive and we have seen that

they have a press release about it, but there is no binding regulation about it; and that is part of what worries me, is that there is

no binding regulation on Treasury on how it is going to vote, and

I think you lose some separation of powers and some accountability

to the people and the Congress through that. Treasury also lists

some exceptions. It says we won’t vote shares, with the following

exceptions. Ironically, it lists all the things shareholders would

want to vote on; election of directors and dividends and things of

that nature. So I think we probably share a concern with respect

to——

Mr. KUCINICH. You know, you raise a point as to what is passive.

At what point, when you are sitting there as a large shareholder,

you pick up a phone and talk to someone, that can have an impact.

What is the transition from passive to active? And is passive like

a wall saying, we don’t want to look, we don’t want to hear anything? That, of course, would have some hazards if you are doing

due diligence.

Mr. Tonelson.

Mr. TONELSON. Just one really fast point. That is why it is so essential that this Government shareholder role be tightly coordinated with the rest of our economic recovery strategy, because you

don’t want the situation where Government, as shareholder, decides to push a certain set of policies that may be good for the well

being of that particular company if the whole economy happens to

be moving in an entirely different way.

Mr. KUCINICH. So you see the position of the Government as

shareholder in a broader economic context. In other words, you

have to look at economic policy.

Mr. TONELSON. You have to.

Mr. KUCINICH. Not in isolation.

Mr. TONELSON. You can’t silo these things anymore. Something

that used to be as big as GM, and that still has such a vast supplier chain—and let me say I am not here as the champion of GM.

Lots of our member companies have done business with it and, you

know what? They didn’t find it to be a lot of fun. OK? But a U.S.-

owned automotive industry is vital to American economic success.

We will not be a prosperous country without a big healthy automobile industry owned by Americans. And the strategy for that

cannot be set simply by U.S. Government representatives voting in

piecemeal ways on individual decisions and challenges that GM

faces as a company. That role has to be integrated with a much

broader strategy toward incentivizing more production, more job

creation in manufacturing in this country.

Mr. KUCINICH. You know, Mr. Nader used the term cognitive dissonance earlier. I am sure this is something that is troubling a lot

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of economists and people who try to see a division between the public sector and the private sector. But you are putting your finger

on something in terms of looking at the macroeconomic implications of the policies, because if we are told that some firms are too

big to fail, if we take that view—I don’t happen to believe that. I

think that you break them up if they are too big to fail. But since

we have that model that we have essentially confirmed the other

day, then we better look at the macroeconomics and better play a

role in determining that, because, on one hand, we can’t say too big

to fail and then, on the other hand, say we can’t look at what you

are doing.

Mr. TONELSON. Exactly. And I will give you one very specific example. No one would like to see GM make a great small fuel efficient car more than me. However, we have to keep in mind that

no economy on this planet, in its history, has ever produced small

fuel efficient cars profitably while keeping their automotive markets open. It has never happened. The Europeans haven’t done it

because their auto markets are closed; the Japanese haven’t done

it; the South Koreans haven’t done it. Their markets are closed.

The margins just aren’t there, and especially when you force American companies into competition with foreign rivals that are either

highly subsidized or that put this tight lid on labor costs, you have

a total no-win situation. You are forcing GM, for example, to take

an absolutely suicidal course.

Mr. KUCINICH. You know, we are in a whole new era here in the

era of bailouts, because what we have done, we have actually, unwittingly, created symmetry between our bailout policy and our

trade policy, where trade policy does not admit to workers’ rights,

human rights, environmental quality principles, and with the Government as shareholder trumping taxpayers’ rights in favor of

shareholders. There is an alignment there with trade policy and

bailout policy that could actually result in moving jobs out of this

country.

Mr. TONELSON. Oh, absolutely.

Mr. KUCINICH. Actually accelerating the movement of jobs.

Mr. TONELSON. You could create—I am sorry.

Mr. KUCINICH. Mr. Nader and then I am going to go to one final

question.

Mr. NADER. Can I just elaborate quickly?

Mr. KUCINICH. Yes.

Mr. NADER. On the China thing, imagine. Just look at this flow:

worker taxpayer dollars, small business taxpayer dollars go to

Washington; they help fund the bailout of General Motors; the U.S.

Government owns 60 percent of GM. GM’s policy is to move its future into China; that is going to be its big market. It is already

huge. So what happens? If the Government, as shareholder and

representative of the taxpayer, plays a passive role, they are basically allowing GM, with U.S. taxpayer support, to dislodge and hollow out communities here, go to China and export back into the

United States. Do you see the conundrum here?

These are hard questions, but you certainly, as a matter of principle, don’t want to say to workers whose taxes go to Washington

and small business that they are going to finance the hollowing out

of their communities by GM’s declared policy to expand in China

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and a non-binding promise that, temporarily, they won’t export

back into the United States. But everybody knows that is not binding. And if the U.S. 60 percent share doesn’t kick in, that is the

way it is going to go. I mean, this is unbelievable. We are stripping

down our economy on behalf of manipulative dictatorships who determine costs. No marketplace determines labor costs in China.

These are dictatorially determined costs and we call it free trade.

Mr. KUCINICH. Mr. Tierney for 5 minutes.

Mr. TIERNEY. No, I don’t want 5 minutes.

Are you, Mr. Tonelson and Mr. Nader, then advocating that we

just get out of General Motors or that we differently exercise the

authorities of power that you have as a basis of your stock or your

stake in the company?

Mr. TONELSON. General Motors, just speaking for USBIC, has to

be run in the way that will give it a real chance for success. You

absolutely needed a viability strategy, but the Federal Government’s viability strategy, the Obama administration’s viability

strategy failed completely to acknowledge the globalized nature of

automotive production. It just ignored that; it didn’t exist. Let’s

make believe it hasn’t happened for the last 20 years. How in the

world can that succeed? How can you expect General Motors to succeed in that context, with that lack of forethought?

Mr. TIERNEY. Mr. Verret, what do you say to all that?

Mr. VERRET. Well, I don’t profess to be an expert on the automotive industry, so I don’t want to go outside of my expertise too

much. But I will say——

Mr. TIERNEY. Give it your best shot. Go ahead.

Mr. VERRET. Sir?

Mr. TIERNEY. Go ahead, give it your best shot.

Mr. VERRET. Yes. I will say that I worry at taking the macro

view. I do worry about both the effects of bailouts, the incentive effects. You know, we bailed out Chrysler before and I think it is a

supportable proposition that the reason why we had to bail out

Chrysler and GM was in part because they saw that they had that

safety net, and I think it led them to take more risks than they

needed to.

And I think that is why—I know we focused a lot on what we

disagree about, but I admire the chairman’s vote on the bailout; I

think it took a lot of courage and I think that is an admirable vote

and a way of thinking that I think we should consider more. And

I worry about the off-budget nature of some of the sorts of deals

that governments and business tend to make when they get in bed

together.

Mr. TIERNEY. Thank you.

I yield back, Mr. Chairman. Thanks.

Mr. KUCINICH. This is going to be the final question of this hearing, and this would be to any witness that would care to respond.

Is Treasury the only, or even the best, entity to control the U.S.’

shares? Now, Professor Eckbo calls attention to the U.K. approach

in your testimony in establishing a special corporation to exercise

the government’s shareholding, improve transparency, and provide

clear lines of accountability. I know that Ms. Simpson is familiar

with this as well.

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I would like to ask any of the witnesses that they think about

this concept and, in particular, Mr. Nader and Mr. Weissman, to

comment on what model might be implemented to facilitate the

broad principles or best practices that you outline in your testimony.

So, Mr. Nader, would you want to comment on that, Mr.

Weissman, and then maybe go back to Mr. Eckbo and Ms. Simpson?

Mr. NADER. I think everybody knows eventually the Government

is going to sell its shares in General Motors and these other companies, so my view is, instead of having another delegation—from the

congressional to the executive to some trust fund—that the Treasury, under clear standards provided by the Congress, behave as a

shareholder with multiple obligations, which I don’t think are, in

the short-term, conflicting. They have to represent not only taxpayer value, shareholder value, but the whole purpose of bailing

out GM, the main purpose is to save communities and save jobs

and keep a major factor of an industry in this country.

So inescapably, when GM came to Washington and prostrated

itself in front of the Congress, it went into the political arena.

There have to be political judgments because of all the public investments, and those judgments can be made in the most enlightened form through congressional participation, openness, and

standards of accountability.

For the record, I would like to put in this review of Corporate

Governance, the Role of Institutional Shareholders by Robert A. G.

Monks, who arguably——

Mr. KUCINICH. So ordered.

Mr. NADER [continuing]. Arguably is the leading shareholder activist in the country. And he has some very good recommendations

to the point of your question, Mr. Chairman.

Mr. KUCINICH. Without objection, so ordered.

[The information referred to follows:]

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Mr. KUCINICH. Anyone else want to join in? Mr. Tonelson.

Mr. TONELSON. The Treasury Department has absolutely no expertise in fostering productive activity, in fostering wealth creation;

it is not the Treasury’s job. It is not their fault, but they shouldn’t

pretend that they have that expertise.

Second point is that——

Mr. KUCINICH. So what do we do, then, with this situation we

are in right now?

Mr. TONELSON. These responsibilities have to be given to those

sections or those agencies that have that competence. And if we

can’t find them, or in the right combinations, new forms have to

be created.

But one other critical point. If the U.S. Government is not—if it

doesn’t have a voice in making these critical decisions that will literally make or break critical industries, in a globalized world economy, those decisions will be made by foreign governments, and

their first priority will not be the well being of the American people

or their economy. So we have no choice but to act. Failing to act

amounts to making policy that will damage us grievously.

Mr. KUCINICH. Before I go to Professor Eckbo, I would like Ms.

Simpson to comment on this. Your fund deals with many troubled

companies. How do you handle that, in terms of the interest of your

members?

Ms. SIMPSON. What is critical to this is separating out the different objectives. CalPERS’s sole purpose is a fiduciary objective;

we are there to invest on behalf of the beneficiaries. The U.K.

model is intended to separate out government’s interest for addressing political issues, which are quite legitimate from investment objectives; and, as an investor, it sets out in its mandate that

it will vote, that it will engage with companies, and that political

questions will be referred to ministers for proper political judgment

where ministers can be held accountable.

So, on CalPERS’s side, we would like to see the fiduciary part

of the agenda taken forwards and, as we said earlier, would welcome the Government as an owner working alongside us with a fiduciary objective.

Mr. KUCINICH. OK.

Professor Eckbo.

Mr. ECKBO. My recommendation of the U.K. FI as a model was

very much because I wanted a separation between the Government, the political influence over the management of the shares,

per se, and it creates more transparency and more responsibility on

the part of the trust or the corporation that you are setting up. I

also said in my testimony that I would probably put all the shares

in the same unit, both the banking shares and the auto shares, because I don’t see a tremendous difference in terms of the qualifications of the people in that trust that they need in order to manage

that trust properly.

I just wanted to make one comment, if I can, on this issue that

you raise, which is very important. If I, as a taxpayer, would like

to subsidize employment in Michigan, should I do it through my

ownership stake in GM?

Mr. KUCINICH. By what, sir?

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Mr. ECKBO. Through my share ownership in GM. Should I use

GM as a tool, as a taxpayer, as a tool to further my goals to get

employment subsidies in Michigan? In my view, sometimes you can

have your cake and you can eat it too. If you operate GM, as we

heard across the table, to maximize the value of GM, I think the

U.S. Congress will also have more funds to do its goals, which is

to subsidize employment in Michigan. I don’t think we have to tie

the two together, necessarily.

So I think the answer to your question should you be an active

investor, I say yes in the governance area. People say what about

these other social goals that you are pulling in, the macro economy

and the employment record. I am saying we should probably separate the two, in my mind.

Mr. KUCINICH. Well, you know, it is an interesting point you

raise, because what has happened in the latter part of the 20th

century, a whole body of investment information came alive dealing

with socially responsible investing, and that is there was an understanding that your investment choices had a social impact; and

that social impact could be monetized.

Mr. ECKBO. Right. I agree with that. The Congress also operates

under the—it needs revenues to further its goals, and I think the

tax revenues that you are looking for can be maximized by having

these corporations do their jobs as well as possible within the private sector. So I think mixing those two could be costly.

Mr. KUCINICH. OK, now, Ms. Brown, you have been very patient

sitting there. Would you like to comment on this, or is there anything that this discussion—that has occurred to you that you would

like to comment on or say?

Ms. BROWN. I would only note that the work that we currently

have underway, we are looking at the issue of the Government says

it has taken a hands-off approach. We are actually looking at what

the Government is actually doing in all of the institutions that

have received exceptional assistance. So we are looking at Bank of

America, Citigroup, AIG, GM, Chrysler, GMAC, as well as Fannie

Mae and Freddie Mac.

So we are actually looking at kind of what the Government says

it is doing and what it is actually doing. And I would note that

when it comes to the Government being a passive investor, the

Government has been involved in changing the board structure in

certain situations. If you take AIG, for example, there is primarily

a new board in place. The trustees had a role in identifying members for the board; they did an analysis of what they thought the

new board needed to look like, the expertise they needed to bring

into the board. And I would also like to note that when it comes

to AIG, there is a provision that if AIG does not pay four consecutive dividend payments, the Government has the right to vote two

members to the board of directors.

Mr. KUCINICH. Thank you.

Last question to Mr. Weissman. Is there any practical advantage

the Government now has as a result of being a dominant shareholder that it did not have before it became a shareholder?

Mr. WEISSMAN. [Remarks off mic.]

Mr. KUCINICH. Could you speak directly into the mic so we can

hear you?

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Mr. WEISSMAN [continuing]. The question that you have been

raising, and I wanted to disagree with Professor Eckbo on a comment that is in the GAO report. The GAO experts consulted said

that the Government should manage its shares as if it were a commercial investor. The Government is not a commercial investor. We

did not get into General Motors, AIG, Citigroup because we

thought there was a profit opportunity there. We made a policy decision that there were certain broader implications that required

the continued existence of these firms. That suggests that, as we

manage our shareholding opportunity, we have to take into account

exactly those same broader policy considerations.

To your previous question, I think that means, therefore, that

you do not rely just on Treasury to manage the share decisions, you

involve agencies like EPA or NTSA or Department of Commerce,

if they are appropriate. Also, I think it speaks absolutely to the

need for Congress to have much more oversight and engagement in

this, because it is not going to come, as we see now, from this administration.

Finally, to the point that you raised at the outset that is also related to this, we have to address the issue of exit. We now have

the exit strategy emerging with Citigroup. There has to be some

standard about what the exit is, it can’t just be that we got in to

help you out for a little while; we will get out whenever it is convenient to you. The you, the companies are us, the Government.

The exit decision has to be managed in terms of what benefits the

public and the Government interest in these corporations, not in

the interest of the corporations themselves.

Ms. BROWN. Chairman, could I clarify?

Mr. KUCINICH. Go ahead, Ms. Brown.

Ms. BROWN. The comment in our statement about the commercial manner, this was not GAO’s assertion that is how it should be;

that was part of a discussion of how the Treasury explained they

are managing the investment. So we were not endorsing that approach, but simply saying this is how it is being managed.

Mr. KUCINICH. I understand. It is a matter of record now.

Mr. Nader said he wanted to make a comment and then we have

just been notified that I just have a few minutes to go make a vote,

so if you would make a brief comment.

Mr. NADER. OK, very briefly. Here is the conundrum. The Government says they want to be passive investors. There is no such

thing, when you own 60 percent of the company, of being a passive

investor without tilting the dynamic in favor of the non-passive or

the commercial investors. Let me give you an example. Proper role

for the Government should have been to deal actively with who is

going to be on the board of directors and who is going to run General Motors, because, historically, General Motors has been run for

the last 60 years by finance executives or marketing executives, not

by engineers, the way Henry Ford and Chrysler and others started

the auto companies. That, of course, degraded the concept that

most people who know the industry believe is central to the recovery of the auto industry; it is called product, product, product.

So now GM is run by an ex-telephone executive with a lack of

distinguished members of the board of directors. They have just

fired the replacement for the original CEO, Fritz Henderson, and

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there is chaos at the top. So this is what happens when the Government, which has major responsibilities for GM’s recovery, takes

a standoffish position. And it would be good for the Government

Accountability Office to provide Congress with information as to

the degree, if any, the Government ratified these lack of distinguished boards of directors and the top management of GM.

As Automotive News—which is no patsy for the industry, but it

is an industry trade journal—has said repeatedly, especially in its

current issue, General Motors needs an auto guy; it needs somebody who knows automobiles, production engineering, and innovation.

Mr. KUCINICH. What a thought.

Mr. NADER. On that point, I want to submit to the record a report that we did a couple years ago called Innovation and Stagnation in Automotive Safety and Fuel Efficiency.

Mr. KUCINICH. Mr. Nader, we will accept that for the record. I

am going to have to——

Mr. NADER. Just one sentence.

Mr. KUCINICH. I am going to have to——

Mr. NADER. The theme is that General Motors has been denying

the practical innovations that its major suppliers have been putting

forth for decades, and that is a management failure.

Mr. KUCINICH. I want to thank you for your testimony. We have

another vote and we have covered a lot of the territory today.

This is the Domestic Policy Subcommittee of Government Oversight and Reform. Our topic today has been the Government as

Dominant Shareholder: How Should the Taxpayers’ Ownership

Rights be Exercised? We have had a distinguished panel. I appreciate each and every one of you participating. You have opened up

other areas for inquiry which this committee will address. Tomorrow we are going to have Treasury here to testify and, as I said

earlier, we are going to be asking them about a lot of things, including this Citigroup development.

The committee now stands adjourned. Happy Holidays.

Mr. NADER. Thank you, Mr. Chairman.

[Whereupon, at 12:53 p.m., the subcommittee was adjourned.]

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