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EXECUTIVE COMPENSATION: HOW MUCH IS TOO

MUCH?

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

FIRST SESSION

OCTOBER 28, 2009

Serial No. 111–35

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

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(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, Illinoia

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

(III)

C O N T E N T S

Page

Hearing held on October 28, 2009 .......................................................................... 1

Statement of:

Feinberg, Kenneth R., special master for TARP Executive Compensation . 11

Roberts, Russell, professor of economics, George Mason University; and

William K. Black, associate professor of economics and law, University

of Missouri-Kansas City ............................................................................... 195

Black, William K. ...................................................................................... 201

Roberts, Russell ......................................................................................... 195

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

Black, William K., associate professor of economics and law, University

of Missouri-Kansas City, prepared statement of ........................................ 203

Burton, Hon. Dan, a Representative in Congress from the State of Indiana, prepared statement of .......................................................................... 244

Connolly, Hon. Gerald E., a Representative in Congress from the State

of Virginia, prepared statement of .............................................................. 243

Feinberg, Kenneth R., special master for TARP Executive Compensation,

prepared statement of ................................................................................... 15

Issa, Hon. Darrell E., a Representative in Congress from the State of

California, prepared statement of ................................................................ 9

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

of Ohio, prepared statement of .................................................................... 242

Roberts, Russell, professor of economics, George Mason University, prepared statement of ........................................................................................ 197

Towns, Chairman Edolphus, a Representative in Congress from the State

of New York, prepared statement of ........................................................... 4

(1)

EXECUTIVE COMPENSATION: HOW MUCH IS

TOO MUCH?

WEDNESDAY, OCTOBER 28, 2009

HOUSE OF REPRESENTATIVES, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The committee met, pursuant to notice, at 11:03 a.m., in room

2157, Rayburn House Office Building, Hon. Edolphus Towns (chairman of the committee) presiding.

Present: Representatives Towns, Issa, Maloney, Cummings,

Kucinich, Tierney, Clay, Connolly, Quigley, Kaptur, Van Hollen,

Cuellar, Murphy, Welch, Foster, Speier, Driehaus, Chu, Burton,

Souder, McHenry, Bilbray, Jordan, Flake, Luetkemeyer and Cao.

Staff present: Brian Eiler and Brian Quinn, investigative counsels; Jean Gosa, clerk; Adam Hodge, deputy press secretary; Carla

Hultberg, chief clerk; Marc Johnson, assistant clerk; Mike McCarthy, deputy staff director; Steven Rangel, senior counsel; Jenny

Rosenberg, director of communications; Joanne Royce, senior investigative counsel; Leneal Scott, IT specialist; Ron Stroman, staff director; Alex Wolf, professional staff member; Gerri Willis, special

assistant; David Rothany, counsel; Lawrence Brady, minority staff

director; John Cuaderes, minority deputy staff director; Ron Borden, minority general counsel; Jennifer Safavian, minority chief

counsel for oversight and investigations; Adam Fromm, minority

chief clerk and Member liaison; Kurt Bardella, minority press secretary; Seamus Kraft and Benjamin Cole, minority deputy press

secretarys; Christopher Hixon, minority senior counsel; Hudson

Hollister, minority counsel; and Brien Beattie and Mark Marin, minority professional staff members.

Chairman TOWNS. The committee will come to order.

Good morning. Before we begin, I would like to extend a warm

welcome to a new member of the committee on the majority side,

Representative Judy Chu from the 32nd District of the great State

of California, which includes East Los Angeles. Dr. Chu is a longtime elected official at the State and local level, so she brings that

experience to our committee. She also holds a Ph.D. in psychology—now, you know we need her; we need her desperately—which

also may be useful on this committee.

I yield to the ranking member, then, and, of course, after that,

I would like to yield some time to Dr. Chu.

Congressman Issa.

Mr. ISSA. Well, I would like to join with the chairman in welcoming my colleague both to the committee and obviously as a fellow

Californian. I might only comment that perhaps if your degree was

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in child psychology, it would be more useful in Congress. But we

look forward to your comments.

Yield back.

Chairman TOWNS. We will take any degree.

Dr. Chu.

Ms. CHU. Well, thank you, Chairman Towns and Ranking Member Issa, for that very, very warm welcome. Well, actually, it is

Judy Chu.

But I am so grateful to be the newest member of the Committee

on Oversight and Government Reform. This jurisdiction will allow

us to delve into the major issues of the day that affect our constituents in our Nation, such as foreclosures, the financial crisis, and

Government waste, fraud, and abuse. The economic downturn has

hit my district hard. The number of foreclosure filings in California

are very, very high and in L.A. County has hit 12.7 percent. Yet,

we have read for the past year how well CEOs and bank executives

are doing, and compensation levels are at an all-time high. So today’s topic couldn’t be more timely and I look forward to hearing

more in today’s hearing as a member of this committee.

Thank you and I yield back.

Chairman TOWNS. Thank you very much, Dr. Chu. We welcome

you to the committee.

There is little doubt that executive compensation schemes were

a contributing factor in the Wall Street meltdown. Top executives

had grown accustomed to receiving enormous bonuses on top of fat

salaries, regardless of how their companies performed. When their

companies did well, they received big, big bonuses. And when their

companies did poorly, they still received big, big bonuses. Even the

chairman of Goldman Sachs has admitted that the perverse incentives created by these schemes helped send the industry into the

brink.

It is not surprising that the taxpayers were outraged when they

realized that their money was being used to bail out companies

that still planned to pay their executives millions of dollars, even

though the company was not doing well. If it were not for taxpayer

bailouts, these companies would no longer be in existence. We

wouldn’t be reviewing their salary plans, we would be reviewing

their liquidation plans.

After these bailouts, and after the outrage last spring, you would

think that the top brass would have recognized there was a problem with excessive compensation.

The Obama administration made a good decision when they appointed a special master, Mr. Ken Feinberg, to review executive

compensation at companies receiving taxpayer bailouts. Mr.

Feinberg performed the first review of compensation for the highest

paid employees of the seven companies which received the most

TARP dollars. He found what many feared: the top brass still does

not understand. Another way to put it, they still don’t get it.

Despite record losses and near bankruptcies, the executives at

these companies were still planning to cash in and continue to do

business as usual. I am happy to say that Mr. Feinberg ordered

substantial cuts in their pay. No doubt there is howling in the executive suites, but I don’t think the taxpayers are going to be shedding any tears over this.

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These huge pay packages are offensive during these difficult

times and Americans are angry about it. I hear the anger in

church, on the street, and wherever average Americans congregate

you hear from them as to how angry they are about what is going

on.

Some on Wall Street have justified their huge pay packages by

comparing themselves to superstar athletes. But Tiger Woods and

A-Rod didn’t crash the economy. They haven’t asked for any Government bailouts, either. And let me be clear. The issue today is

not whether the Government should dictate how much people

should be allowed to earn. The issue today is whether banks, that

were saved from bankruptcy only by taking billions of dollars in

taxpayer money, should be rewarded with salaries that give new

meaning to the word ‘‘generous.’’

It is a shame to have Government get involved in bank compensation issues, but Wall Street can no longer be trusted to control themselves. Some constraints on these companies are necessary to protect the safety and soundness of the entire financial

system. We need more than just a special master; we need to give

the shareholders a way to get this under control.

Today we welcome Mr. Feinberg, who will testify about his efforts to ensure that our tax dollars are not being squandered on excessive compensation.

I want to also thank Professor Black and Professor Roberts, who

will likewise share their insight on executive compensation. I look

forward to hearing their testimony.

I am certain that most of you know the American people are

really angry about what is really going on.

[The prepared statement of Chairman Edolphus Towns follows:]

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Chairman TOWNS. I now yield 5 minutes to the committee’s ranking member, Darrell Issa, of California, for his opening statement.

Mr. ISSA. Thank you, Mr. Chairman. Mr. Chairman, I ask unanimous consent that mine and all Members’ opening statements be

placed in the record in their entirety.

Chairman TOWNS. Without objection, so ordered.

Mr. ISSA. Mr. Chairman, I will be brief and paraphrase my opening statements.

I join with you in the comment you made in your opening statement that we need to empower the stockholders of public companies to better manage the package of pay and incentive packages

of their key executives.

I also would say that, in 1992, the word ‘‘perverse’’ perhaps

would be based on the efforts by this Congress to rein in pay by

simply saying compensation for more than $1 million, if it is not

tied to performance, would be double taxable.

Although well meaning, clearly what we have done is we have

created an environment in which a board, acting on behalf of their

stockholders, is not able to link whatever amount of money they

would like to pay in a long and perhaps deferred compensation way

but, rather, begin by saying, for their key executives, how do we

work around that law? How do we link it to performance?

There is an entire industry that has built up over the last almost

two decades of people who in fact helped key executives get more

money into their incentive plans, then proceed to advise boards as

to whether those plans are reasonable, and the upward spiral has

continued.

I would say that we pay, often, more than we need to as stockholders for the work done by key executives. But, Mr. Chairman,

that is not the issue before us today. The issue before us today is

do the American people have a stake in seeing that compensation

is limited by these seven companies in order to ensure timely repayment of as much or all of what we have loaned to these companies as possible.

Mr. Chairman, I would say that these seven companies are very

different. Mr. Chairman, AIG will in all likelihood not return anywhere close to 100 cents on the dollars to the American people. On

the other hand, it is likely that Bank of America, Goldman Sachs

and others quickly returning to the money and, in fact, perhaps returning it sooner if we were not concerned about the ongoing stability of our economy, would soon be likely to return the money and,

as such, in my opinion, we would no longer have a legitimate right

to oversee their pay and compensation.

Notwithstanding that, Mr. Chairman, since this committee has

had a keen interest for a period of time in executive compensation

and whether in fact the stockholders are being well represented, I

would join with you gladly to continue the process of looking at

whether or not public companies currently meet the obligation of

ensuring that the compensation is a compensation that best is in

line with the interest of the stockholders and whether or not those

stockholders, if fully informed, would validate that pay.

Mr. Chairman, I believe that is the reform that we have an ongoing nature for, not necessarily any one person’s pay today. I look

forward to hearing from our witness and our panel to follow on

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whether or not we in fact are making the link between the $700

billion TARP and the moneys that have been loaned and the American people getting paid back.

I hope that we all will leave today’s hearing realizing that if we

go too far, we endanger the American people’s system of capitalism

and limited free market that has allowed us to be the envy of the

world. Yes, we do prevent antitrust; yes, we do have rules of the

road; and, yes, we do have controls over public companies. But, Mr.

Chairman, the successes of the past in America should not in fact

be wiped away because of the sins of a few on Wall Street who, perhaps, realizing that bulls and bears were both making money, decided to become pigs.

Mr. Chairman, I yield back the balance of my time.

[The prepared statement of Hon. Darrell E. Issa follows:]

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Chairman TOWNS. Thank you very much. I thank the gentleman

for his statement.

Today’s hearing will consist of two panels. Our first panel witness is Mr. Kenneth R. Feinberg, who serves as the special master

for TARP Executive Compensation. Mr. Feinberg has just completed a report regarding the compensation proposal of the 25 highest paid employees of the seven recipients of exceptional assistance

under TARP.

We welcome, you, Mr. Feinberg, and I want to thank you for all

your hard work. I can only imagine how difficult it was to balance

the competing interests. I know you did not make many friends

with your rulings. I understand that.

It is committee policy that all witnesses are sworn in, so if you

would stand and raise your right hand.

[Witness sworn.]

Chairman TOWNS. Let the record reflect that Mr. Feinberg responded in the affirmative.

We generally move forward with the lights on—it starts at green

and then it goes to yellow and then turns to red—but we want you

to go without the lights. We are just so anxious and eager to hear

what you have to say, so why don’t you just begin and, of course,

try to do it within 10 minutes.

STATEMENT OF KENNETH R. FEINBERG, SPECIAL MASTER

FOR TARP EXECUTIVE COMPENSATION

Mr. FEINBERG. You may regret that, Mr. Chairman.

First of all, I want to thank you, Mr. Chairman, for inviting me,

and the ranking minority member for inviting me. It is an honor

and a privilege to be here today, the first time I have addressed

a committee here in the Congress on my recent report of last week.

I just want to mention at the outset, Mr. Chairman, I want to

thank you and the ranking minority member once again for how

much you helped me 8 years ago, during my administration of the

9/11 Victim Compensation Fund. The two of you and other members of this committee were extraordinarily helpful to me in meeting with the families and discussing with them the benefits of the

9/11 Fund, and I thank both of you really again for your help in

that regard.

I now have a new challenge, executive compensation. I should

say at the outset, one reason that this committee hearing room is

so crowded is virtually my entire staff is here. I don’t think anybody is working today at Treasury from the Office of the Special

Master, and I am grateful for their hard work and help.

For the last 5 months I had a narrow mandate under the law,

and that was to determine pay compensation packages for the top

25 officials in just seven companies that received the most TARP

assistance—Citigroup, AIG, Bank of America, General Motors,

GMAC, Chrysler, and Chrysler Financial. That is the limit of my

jurisdiction. I have no authority, no mandatory jurisdiction to determine pay for any other than these seven companies. And even

as to these seven companies, only the top 25 officials in each of

those companies.

The report, which I have submitted, which is now public, and

which I have attached to my testimony, is a comprehensive report

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that explains in great detail the method I used and the conclusions

I reached strictly following the statute passed by Congress and the

accompanying Treasury regulations.

In your letter of invitation you raised three questions for me to

respond to in the course of this testimony, and I will summarize

my response. My more detailed response is found in my written

testimony.

First, you asked what principles guided me in my decisions. The

principles that guided me were the legal principles laid out in the

statute and the accompanying regulations—‘‘Mr. Special Master,

make sure that these companies, as the ranking minority member

mentioned, make sure these companies stay in business with compensation packages that will make them thrive, hopefully, and,

above all, will help them return to the taxpayers the money that

was loaned to them initially.’’

But the law also spells out that, in establishing these compensation packages, I should consider various other factors: one, let’s

avoid guaranteed contracts, retention payments, salaries, bonuses,

commissions, long-term severance packages; etc.; let’s tie, as best

we can, compensation to performance; let’s encourage executive officials to stay on the job and continue to work at these companies;

let’s establish compensation packages that will avoid excessive risk

taking.

These were all principles laid out in the statute that guided me

in my work. And my simple summary answer to the principles and

the terms and the conditions that I used in reaching my conclusions are found in the public law and the public regulations, and

I did my best to enforce the law and the regulations without fear

and without favor.

The second question you asked is how did you go about determining the compensation packages; what was the process; how did it

work; where did you find the companies acceptable, where did you

find their recommendations flawed.

I requested and received comprehensive submissions from each of

the seven companies explaining their view of what they thought

they needed for their 25 top officials in the way of a comprehensive

package. I examined those submissions with the utmost care and

scrutiny, and I concluded that in six of the seven submissions the

information requested, the compensation packages urged on me by

these companies were contrary to the statute, contrary to the regulations, and contrary to the public interest. They were contrary because each of the submissions, or six of the seven, wanted too much

cash guaranteed salary; they wanted stock that would be immediately, on the day it is issued, transferrable; they wanted to tie

their salary and their compensation to vague, ambiguous performance standards; they made no mention, or insufficient mention, of

the perks that were part of their overall salary—private airfare,

golf club dues, country club dues, etc.—and they demanded, as part

of their submission, that I honor all old prior grand-fathered contracts for compensation that were entered into with officials long

before this law was passed and long before I arrived on the scene

as the special master.

So what did we do in this report? We evaluated the submissions

and then we made some, what I think, material changes in the

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overall program. First, we greatly reduced the amount of cash that

would be made available to these senior officials. We reduced that

cash by approximately 90 percent.

Now, I read with great interest in today’s newspaper an article

that implied or stated that I had actually raised cash base salaries

with a number of these officials. It all depends what you mean by

cash base salaries. If somebody is getting cash salary, guaranteed

last year, of $3 million, and now they are getting, under my program, $300,000 in cash, that sounds to me like a 90 percent reduction. The article today cited one example of a Citi official where the

base salary for that official, according to the article, was raised by

the special master to $475,000, an increase of 111 percent. What

the article does not point out is, last year, that same official received from Citi $13 million in cash. And under my report that

cash was reduced by 98 percent.

So I am very comfortable in defending my report and saying that,

overall, one of our primary objectives succeeded in this report for

these seven companies was to reduce absolute guaranteed cash by

90 percent.

Second, we required, in addition to the cash salaries, that when

we issue stock in the company that is salarized stock, that is part

of the salary, that stock may not be cashed out for up to 4 years.

The stock can be cashed after 2 years one-third, 3 years another

third, and 4 years the last third. We want to keep people on the

job with a vested interest in the company. If you want salarized

stock, the value of that stock is tied to the performance of the company and the goal—the ranking minority member couldn’t have

said it better—the goal is keeping the company moving so that the

taxpayers get their money back.

Third, we said no more unlimited perks. No more private jets, no

more golf club dues, no more country club dues. Perks, under the

report, are limited to $25,000 per individual. Anything more than

$25,000 you have to come back to the special master for approval

and monitoring of those requested excessive perks.

Finally, what did we say with these companies about these old

grand-fathered contracts that are purportedly in the hundreds of

millions of dollars? Well, we worked with the seven companies.

They were very, very cooperative. Very cooperative. And in almost

every case we worked out a system whereby any grand-fathered

amounts that were due and owing as compensation would be voluntarily rolled over into prospective stock under our rules, 4 years before it totally vests, and we removed almost all of those grand-fathered valid contracts and got the companies to voluntarily agree

that it would be ill advised, unwise to demand payment on those

old contracts. And, instead, in almost every case we mutually

agreed that those grand-fathered amounts should be rolled over

prospectively into future stock with a vested interest in the company.

That is what we did, spelled out in some detail in the report.

Finally, your letter of invitation, Mr. Chairman, asked me to

comment on any recommendations I might have going forward in

dealing with executive compensation. I should remind the committee that my first obligation, right now underway, under the law is

to design a compensation structure for officials 26 to 100 in each

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of these seven companies. Right now we are actively doing that. By

the end of this year we will have designed and implemented not

individual pay packages for 26 to 100, but overall compensation

structure for employees 26 to 100 in these seven companies. Then,

if the Secretary of the Treasury so requests, I will turn my attention immediately in January to compensation packages for 2010 for

these same seven companies and the 25 individuals in 2010 that

are covered by the statute.

So those two objectives—26 to 100, 2010—the law spells out expressly. Those are part of my ongoing obligations.

I want to just finally address a point that the ranking minority

member just made. I do not believe that this law should be extended to encompass other companies. The law was enacted to deal

with the taxpayers of this country as creditors of these seven companies, and whatever one might think about whether or not it is

a good idea or a bad idea for the Federal Government to be involved in setting compensation for private companies, I suggest

that what Congress was stating was that this is an exception.

These seven companies are owned by the taxpayers and the taxpayers, as creditors, are asking these companies to rein in compensation and come up with compensation packages that will maximize the likelihood, first and foremost, that the taxpayers will get

their money back; and that is my primary objective.

I do not believe, as the administration has stated elsewhere, that

we should be micromanaging other companies in the private sector.

I am hoping that the report that I issued and the recommendations

that I have made as to these seven companies will have some effect, voluntarily, in influencing how the private sector goes about

establishing compensation practices, and one of my objectives is,

hopefully, that, with my recommendations, other companies on

Wall Street and elsewhere will take to heart what I have suggested, what is mandated for these seven companies, and hopefully

the model that is created in my report will trickle and expand beyond these seven companies.

But I agree with the minority member that I am perfectly comfortable, thank you, limited to these seven companies. That is

enough work for me and I am hopeful that the committee will find

my report helpful and useful.

I am prepared to answer any questions and, frankly, I am prepared, in the weeks and months ahead, to work with this committee, to consult with the committee as the committee deems appropriate.

Thank you, Mr. Chairman, for this summary.

[The prepared statement of Mr. Feinberg follows:]

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Chairman TOWNS. Thank you. Thank you very much for your testimony and thank you for the job that you have done.

Let me begin by asking you do they really get it, the fact that

the American people are angry about this excessive pay?

Mr. FEINBERG. Well, you will have to ask the seven companies.

I found that the submissions did not adequately address the major

concerns expressed by the American people.

Chairman TOWNS. How did you deal with the contract situation,

where a person has a contract which has been signed and, of

course, now, all of a sudden, you are asking that he gives back?

What was the reaction to that or how did you handle it?

Mr. FEINBERG. The law that was enacted gives me three options

when it comes to old contracts for compensation that were entered

into long before this law was passed and my office was created.

First, I examined the contract to determine whether or not, in my

independent judgment, I found the contract to be valid or not. I

want the committee to understand that the sanctity of contract

under the Constitution is very, very important and I was loathe to

find contracts invalid when they were entered into years ago between officials and the company. So there was not a case where I

terminated or invalidated a contract.

But that is just the beginning of the inquiry, Mr. Chairman. The

law then said if I found a contract valid, I could, under the law,

attempt, with the company and the official, to renegotiate that contrary voluntarily. That worked very well. With one or two or three

exceptions, in every single case the company worked with me and

my staff in renegotiating those old contracts so that they would be

turned into stock in the company moving forward and would be

subject to the same rules and restrictions as 2009 salarized stock.

Then the law said if a company refused to negotiate a valid contract—and that was very, very rare—the law permitted me—I have

to honor that contract, but the law permitted me to take that contract amount into consideration in setting 2009 salary, and that’s

what I did in those cases. You want that contract enforced? It is

a valid contract? The Constitution protects it? OK. But I am going

to look at the amount of that contract and I am going to factor into

my prospective 2009, 2010 salaries the fact that we had to honor

that contract because it wasn’t renegotiated. And I think we have

done that fairly successfully.

Chairman TOWNS. Thank you very much. This is on AIG. Can

you do anything to stop AIG from paying nearly $180 million in bonuses next year to employees in the very AIG division most responsible for the failure of AIG, that is, the Financial Products Division?

Mr. FEINBERG. You pose a question which the special master will

have to address very quickly in 2010, when those allegedly guaranteed contracts come up, and we are going to have to see, with

AIG—and let me just say AIG has been quite cooperative in this

process. We have met with them numerous times. We will have to

sit down with AIG in 2010, in a couple months, January, and I am

admonished by your question, Mr. Chairman, that this committee

is looking at these contracts, and we will see what we can work out

with AIG going forward in an effort to satisfy the statute, satisfy

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the regulations, satisfy the American people; and I view that as a

top priority.

Chairman TOWNS. Because you have to recognize people feel that

if you failed, you should not be rewarded for your failure. That is

a big issue and that is why the American people are so angry because, in many instances, the Government is now bailing out people who failed, and they are getting a bonus.

I now yield to the ranking member 5 minutes.

Mr. ISSA. Thank you, Mr. Chairman.

I want to go through something before I actually wade into questions, just because I want to set the tone of this hearing so that

it not be in any way confrontational.

Is it fair to say—and I am going to make the assumption it is,

but I will ask you for confirmation—General Motors was bankrupt,

Chrysler was bankrupt, and their financial divisions, GMAC and so

on, not because of the financial crisis; they were already in trouble,

had a real problem with their cost of doing business, etc., and then

they were caught up in that last nail in the coffin. So four out of

your seven companies, it is fair to say these are companies that are

bankrupt and not even directly related to the collapse, but tangentially related to the collapse and, as such, are under your purview.

Is that fair to say?

Mr. FEINBERG. I guess it is fair to say, Congressman. I have

enough problems focusing on executive comp without figuring out

exactly what caused the bankruptcies, but I guess that the assumption in your question is accurate, yes.

Mr. ISSA. Second, we own those companies because whatever

amount we took, we took and do not expect to get it all back, because we put a lot into them that is not coming back, particularly

Chrysler, I think, notably.

Mr. FEINBERG. That is correct.

Mr. ISSA. Or Chrysler division of Fiat, however we want to put

it.

So I am going to leave those companies alone for a moment and

I am going to concentrate on the big three.

AIG. In my opening statement, I said that AIG was unlikely to

return all of the money. Do you share that with us, that you are

trying to maximize the return, but without an expectation that we

are going to, whether we pay them a little or a lot, we are not probably going to get $180 billion back?

Mr. FEINBERG. I think that is right, and I think that in the submissions that AIG provided us and in our conversations with AIG,

that is a fair assumption.

Mr. ISSA. OK, so, again, we own 80 percent of AIG; we are not

likely to get paid it all back. You are managing it on behalf of the

stockholders, which are the American people.

OK, we will go to the top two. Citi, it now looks like, was really

in a lot more trouble than people understood; B of A not so much.

Fair to say. B of A is likely to return all the money over a period

of time that is reasonably maybe 3 years or whatever; Citi, there

is still a little bit of doubt.

So when you are managing all seven of these, do you manage

them to maintain the best 25 people to maximize the return to the

American people?

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Mr. FEINBERG. I deal with each of the seven differently, as you

point out. And you are absolutely right that my primary statutory

obligation is to set compensation so that the taxpayer gets their

money back. That is correct.

Mr. ISSA. And now I get into the little bit harder part of this.

Looking at B of A and AIG, more than half of their top 25 people

have left. Does it concern you that many of those people had contracts and they had to balance, OK, I can make nothing going forward or I can renegotiate my contract, or I can take what I am entitled to and leave? Do you believe that this limitation that was put

on to your maneuverability led to some of those people leaving and

has it hurt—it is hard to measure—hurt having that question of do

we have the best 25 people to maximize the return to the American

people?

Mr. FEINBERG. I can’t answer that question because I am not

sure the vagaries and the various reasons that people leave a company. They may have left because they didn’t want to be under the

thumb of the special master. They may have left because——

Mr. ISSA. But you are so nice.

Mr. FEINBERG. I am sorry? Well, that is what you say.

They may have left because they had another job opportunity.

They may have left because they didn’t even want the public glare.

I don’t know the reasons they left, but I agree with you, Congressman Issa, that it is of concern, yes.

Mr. ISSA. Well, following up on that concern, because the details

of the breadth and width of what you can negotiate, Ford is doing

better and Ford is innovating and Ford is able to be sort of the

standalone one American company that isn’t under scrutiny. Are

you concerned that they will hire the best and the brightest from

Chrysler and GM? Similarly, with only Citi, AIG, and B and A

[Bank of America]—we will leave AIG out, but Citi and B of A

under your direct control, is it very possible that some of these individuals will leave the best for better pay and, as a result, yes,

we will get people that will work for the wages we set, but will we

in fact be hurting B of A’s long-term future on behalf of the stockholders, of which we are only a temporary stockholder?

Mr. FEINBERG. Yes. And the statute agrees with you in spelling

out that one important factor I must consider is the retention and

attraction of good people to these companies in order for them to

thrive and repay the American taxpayer.

Mr. ISSA. Mr. Chairman, if I could ask just one quick followup.

If that is the case, should we look at a statute that envisions,

particularly as to Citi and B of A, a vote of the stockholders or

some kind of affirmation by the long-term stockholders of these

companies that in fact they agree with the pay packages we are

setting as in the best interest? Obviously, the board commenting,

you commenting, but leave something to those stockholders that

the chairman and I both said we had to further empower into the

pay decision?

Mr. FEINBERG. You and other Members of Congress are now

looking at this whole question of corporate governance, how to empower shareholders, independent compensation committees, independent consultants on comp. That whole area of corporate governance is something that is worthy of consideration by Congress, yes.

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Mr. ISSA. Thank you.

Thank you, Mr. Chairman.

Chairman TOWNS. Thank you very much.

I am wondering if Wall Street will curb its excessive bonus culture without Government intervention based on what he was saying. Do you think that will happen?

Mr. FEINBERG. Again, it is a murky crystal ball, Mr. Chairman.

Chairman Towns. Congressman Clay from Missouri.

Mr. CLAY. Thank you, Mr. Chairman.

Thank you, Mr. Feinberg, for being here. I applaud your diligence in the difficult task that was set before you. Reeling in excessive executive compensation is an important mission and is of great

benefit to our economy and to the American taxpayer. I continue

to be alarmed by the reported trends in executive compensation

that expose the disproportionate nature of corporate pay packages.

According to the research, pay to CEOs is at an all-time high at

over 400 times the average worker’s pay. How has executive pay

grown to these extreme amounts and what factors contributed to

these trends?

Mr. FEINBERG. I am not a historian in terms of the causes of the

growth. I confronted, under the statute and the regulations, clear

directives to rein in compensation, while at the same time making

sure these companies repay the taxpayers. Others have written on

the various reasons that the gap has grown between executive compensation and line workers, and I have tried to take that into account in limiting executive comp under my mandate.

Mr. CLAY. You know, I have long been concerned about guaranteed bonuses. As we have seen with AIG, guaranteed bonuses and

incentives do not seem to encourage productivity. Aren’t guaranteed bonuses of any kind inconsistent with effective risk management?

Mr. FEINBERG. Well, I think they are. I don’t know about of any

kind; there may be some that haven’t crossed my desk. But you

will find in my report, I think it is fair to say, other than base cash

salary, a complete rejection of the notion of guaranteed compensation. Instead, we tie the overwhelming amount of compensation for

these executive officials to performance, not guarantees, and have

worked as best we can to eliminate guaranteed payments as part

of any compensation package.

Mr. CLAY. In order to hold TARP recipients fully responsible, is

there any possibility of nullifying prior payment obligations to executives?

Mr. FEINBERG. Yes. We have been very successful in doing that.

As I mentioned to the chairman and the ranking minority member,

in almost every case where we confronted a prior guaranteed contract, we were able to negotiate voluntarily with the companies and

get them to yield on that guaranteed contract and, instead, roll

that amount into stock going forward over 4 years tied to performance.

Mr. CLAY. Have any employees or recipients taken legal action

because of your or because those corporations’ actions?

Mr. FEINBERG. No.

Mr. CLAY. No?

Mr. FEINBERG. No.

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Mr. CLAY. OK.

Mr. FEINBERG. We are very persuasive.

Mr. CLAY. Have the huge bonuses led to a culture of entitlement?

In other words, do executives now expect packages like this regardless of performance?

Mr. FEINBERG. I think huge guaranteed bonuses undercut performance. If you are guaranteed a huge cash salary, or you are

guaranteed a bonus regardless of performance, or you are guaranteed commission payments regardless of sales, I think that what

we learned is that undercuts the statutory directive that we tie

compensation more to the overall financial health of these seven

companies; and that is what we tried to do in the report.

Mr. CLAY. Thank you for your response, Mr. Feinberg.

Mr. FEINBERG. Thank you.

Mr. CLAY. Mr. Chairman, I yield back.

Chairman TOWNS. Thank you very much.

I now yield to the gentleman from Indiana, Mr. Burton.

Mr. BURTON. Thank you, Mr. Chairman.

Here is a quote by an executive from one of the companies, he

says, ‘‘There is no question people have left because of uncertainty

of our ability to pay. It is a highly competitive market out there.’’

One of the things that concerns me is that you have top talent,

and you said that you had some people that were making, what,

$13 million and you cut them down to $350,000 or something like

that. Why would anybody in their right mind, if they are an executive for a company like that, who has the talent to manage and run

a company, why would they take a pay cut from $13 million down

to $350,000? And does that damage the company?

Mr. FEINBERG. Absolutely it would damage the company, and

that isn’t what we did. What we did is we took—Congressman Burton, we took $13 million in guaranteed cash, reduced it to $350,000

in guaranteed cash and told that executive we will give you $13

million, or $9 million or $8 million—I don’t know the exact

amount—in stock. Now, you have a vested interest in that stock.

If that stock, over the next 4 years, goes up, you may get more

than this.

Mr. BURTON. Let me interrupt you, Mr. Feinberg.

Mr. FEINBERG. So we tried to tie it.

Mr. BURTON. Well, if a person has a contract—and I think you

used the term alleged contracts—if they have a contract that guarantees a certain amount of money and you say you want them to

renegotiate that and pay them $350,000, what would be the rationale for them to take the $350,000 and not go ahead with the contract and take their money?

Mr. FEINBERG. The rationale would be, A, that they want to stay

at the company and redeem that stock in value that may be even

more than $13 million.

Mr. BURTON. Well, I can understand that you believe these people have the best interest of the company at heart, and probably

they do, but when you are talking about that kind of a cut and

whether or not somebody could get that money immediately within

the contract, it seems to me that most people would take the

money and run. And as I said before, this quote says very clearly

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that they said it is a highly competitive market out there and they

are jumping ship.

Now, if they jump ship and you don’t have top talent running

these companies, the American taxpayer, who is the majority stockholder, has inferior people running the company. Doesn’t that concern you?

Mr. FEINBERG. It sure does.

Mr. BURTON. So what do you do about that?

Mr. FEINBERG. I think that if you look at the levels of total compensation that we established in our determination, we think—I

made this recommendation, my conclusion—they won’t jump ship.

They won’t. I think that——

Mr. BURTON. Well, they already have.

Mr. FEINBERG. Some have before my recommendations.

Mr. BURTON. First of all, I understand you are doing what you

have been instructed to do, but it doesn’t make any sense to me,

if somebody has a contractual guarantee of a certain amount of

money, that they are going to take $350,000 and then say, OK, I

will take it in stock, when you have an economy like we have right

now and they could take the money and go. And if they go to another company, they could make the same amount of money or

maybe even more than they were making where they are. So the

top talent, it seems to me, would be encouraged to leave.

Now, the other thing I wanted to ask you is this. Who do you

answer to when you make these decisions?

Mr. FEINBERG. Under the law, I make these—I have final authority, non-appealable. These decisions are mine and mine alone. I

serve at the discretion of the Secretary of the Treasury——

Mr. BURTON. But he doesn’t—once you make a decision, you don’t

say to him this is what my recommendation is; the decision is final.

Mr. FEINBERG. Under the law as written, the regulations afford

me final binding authority to issue those determinations.

Mr. BURTON. That is a Treasury regulation, it is not a law, is it

not?

Mr. FEINBERG. That is the Treasury regulation that evolve out

of the statute, yes.

Mr. BURTON. But the point is, as far as accountability is concerned—and I am not inferring that you are not doing a good job,

I am just saying that you really don’t answer to anybody.

Mr. FEINBERG. Well, I answer to this committee and other committees with oversight functions.

Mr. BURTON. Well, come on, let’s be straight about this. You are

the czar; you make the decision, that is it, right?

Mr. FEINBERG. Under the law, I make the decision.

Mr. BURTON. OK. So if these people leave these companies because they are not being compensated as was in the contract—and

I am not saying they didn’t make too much money and they were

accountable and didn’t do their job properly, I am just saying when

you need top talent to run a company like General Motors or

Chrysler or AIG, you want people there that can really do the job.

Now, they may not have done their job right in the past, but they

may have the knowledge and the talent to do the job. And you are

saying to them, here, we are going to renegotiate your contract,

and you take $350,000 and we will extend it and give you stock for

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the $13 million that you were going to get; and they say, hey, the

heck with that, I want my money and I am going to leave. So you

have people that don’t have the knowledge and the competence to

run that company, so the stockholders, the American people, are in

danger of seeing their money, the TARP money, going down the

tubes because the company doesn’t respond.

Mr. FEINBERG. My response to you, Congressman, is this. I have

tried my best in this report to implement that statutory directive

that they stay on the job and that the taxpayer get his money back.

I will defend these recommendations.

Now, you may say, if I were doing your job, I would have a different level of compensation or do it differently. Fine. I did the best

I could to try and maximize the very objective you are stating,

which is keep these people on the job, and I think we have done

that.

Mr. BURTON. Mr. Chairman, may I have one final question,

please?

Chairman TOWNS. I would be delighted to yield to the gentleman

an additional minute.

Mr. BURTON. The Federal Reserve issued guidelines under which

the Fed would review, if necessary, amend, or reject the compensation policies of all banks regulated by the Fed. Are you familiar

with that?

Mr. FEINBERG. That just came out last week, yes.

Mr. BURTON. That really concerns me because what we are talking about is you or somebody going beyond where you are right

now and regulating people that did not get TARP money simply because they are regulated by the Fed. What do you think about

that?

Mr. FEINBERG. Congressman, my limit, what I am doing to these

seven, and only these seven companies—what the Federal Reserve

is proposing or whatever is not on my watch and you will have to

ask the Federal Reserve about the scope of those regulations.

Mr. BURTON. Thank you, Mr. Chairman.

Mr. FEINBERG. Thank you.

Chairman TOWNS. Thank you very much.

I now yield 5 minutes to the gentlewoman from Ohio, Ms. Marcy

Kaptur.

Ms. KAPTUR. Thank you, Mr. Chairman, very much.

Mr. Feinberg, thank you for coming today. From whom did you

receive the first call suggesting you be appointed to your present

position?

Mr. FEINBERG. I received the first call from the Deputy Secretary

of the Treasury, Neal Wolin.

Ms. KAPTUR. All right. And who else did you hear from prior to

your appointment?

Mr. FEINBERG. The only other person is the Secretary of the

Treasury.

Ms. KAPTUR. And approximately when did those calls happen,

earlier this year?

Mr. FEINBERG. I am sorry?

Ms. KAPTUR. When did those calls happen, earlier this year?

Mr. FEINBERG. Yes, I think about 5 or 6 months ago.

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Ms. KAPTUR. All right. Is your Federal position classified as

Schedule C or are you classified as Civil Service or some other category?

Mr. FEINBERG. Special Government Employee.

Ms. KAPTUR. Special Government Employee?

Mr. FEINBERG. Yes.

Ms. KAPTUR. Does that mean you have a special contract with

the Treasury?

Mr. FEINBERG. I believe that is the case.

Ms. KAPTUR. All right. And that is a matter of public record?

Mr. FEINBERG. Yes, it is.

Ms. KAPTUR. Thank you. For whom did you work prior to your

current position?

Mr. FEINBERG. I was in a private law firm in private practice.

Ms. KAPTUR. OK. And could you state the name of that firm for

the record?

Mr. FEINBERG. Yes. The name of the firm is Feinberg Rosen,

LLP.

Ms. KAPTUR. All right. And where are they located?

Mr. FEINBERG. Washington, DC and New York City.

Ms. KAPTUR. New York City. Where is their principal headquarters?

Mr. FEINBERG. Washington, DC.

Ms. KAPTUR. Do you have any relationship with that firm now?

Mr. FEINBERG. Yes.

Ms. KAPTUR. All right. Could you state the relationship with that

firm?

Mr. FEINBERG. I am the founding partner of the firm.

Ms. KAPTUR. You are a founding partner.

Mr. FEINBERG. Yes.

Ms. KAPTUR. Is it true that three of the institutions whose compensation you are supervising are or have been clients of that firm,

including Citigroup, CitiBank, AIG, and Bank of America with the

acquisition of Merrill Lynch?

Mr. FEINBERG. No, that is not true.

Ms. KAPTUR. That is not true.

Mr. FEINBERG. No.

Ms. KAPTUR. It has been reported in the press that is actually

the case, so the client list——

Mr. FEINBERG. It may be reported in the press. It is not true.

Ms. KAPTUR. It is not true. Are any of the institutions under your

purview, have they been clients of that company?

Mr. FEINBERG. No.

Ms. KAPTUR. They have not. All right. Let me ask you, you stated

that it is a good idea to tie the stock opportunities for employees

of these companies to a 4-year term, all right? And you said it pays

out a third in what year?

Mr. FEINBERG. A third after 2 years, a third after 3 years, and

a third after 4 years.

Ms. KAPTUR. All right. You know, that doesn’t sound very longterm to me. How did you arrive at 4 years?

Mr. FEINBERG. Well, it is a very difficult question. We concluded

that asking individuals to delay the payment of their salary beyond

a 4th year would simply work too much of a hardship, that is a

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problem of keeping them on the job and trying to get the taxpayers’

money back. We concluded that a 4-year payout of salary was a fair

limitation.

Now, what we also did, Congresswoman, which is implicit in

your question, we also required that any additional stock that

might be issued to these officials would not vest for at least 3 years

and would not be redeemable at all until TARP loan money was

repaid to the taxpayer. So that was the balance we struck.

Ms. KAPTUR. I guess I just find it surprising. If you look at a 2-

year time horizon, a 3-year time horizon, a 4-year time horizon, the

way I look at the world, that isn’t a very long time at all.

Mr. FEINBERG. Well, it may not be a long time—I guess it is relative—but our concern was that if we are reducing compensation

for these officials across the board by about 50 percent, and we are

obligated to keep these companies in business to repay loan taxpayer money, that asking these officials to wait more than 4 years

to redeem their salarized stock was simply too onerous. Now,

maybe it should have been 5 years or 6 years. We thought 4 years

was a pretty good compromise.

Ms. KAPTUR. On the outer edge, but on the inner edge it is 2

years. You were quoted in the New York Times, October 23rd, stating anybody making $100 million a year is engaged in excessive

risk. You approved compensation packages worth $9 million or

more for six executives, including one at AIG, two at Bank of

America, and three at Citigroup. That $9 million is 23 times as

much as the pay for the President of the United States, 46 times

the pay for the Fed Chair and Treasury Secretary, and more than

50 times as much as a military general. How did you determine

that amount was not contrary to the public interest?

Mr. FEINBERG. Well, we did it in a number of ways. First, we

gathered all the data we could gather and examined the data as

to what constitute competitive marketplace compensation. Then

what we did is we made sure that $9 million or $8 million was not

guaranteed compensation. The cash component of that $9 million

is likely to be $500,000 or less. The rest of it, as Congressman Burton pointed out, the rest of it is tied to stock which cannot be redeemed at once, has to be held 2, 3, 4 years; and a big chunk of

that compensation cannot be redeemed by the official until and unless TARP money is repaid to the taxpayer.

So it may be $9 million in theory, but in practice, we believe, it

will be a lot less than that.

Chairman TOWNS. The gentlewoman’s time has expired.

Ms. KAPTUR. Thank you, Mr. Chairman. I would like to place in

the record information we have about the clients of the gentleman’s

law firm and would appreciate response. Thank you so very much.

Chairman TOWNS. Without objection.

The gentleman from Indiana, Mr. Souder.

Mr. SOUDER. Thank you, Mr. Chairman.

I am sure it doesn’t shock Mr. Feinberg that some of us on the

Republican side, as outraged as we are about the salaries, as outraged as we are about the corruption and the crisis that was triggered by greed, that we have deep uncomfortability about the Government, in effect, taking over a majority of these companies or

having somebody setting their salaries.

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I will say the word czar does fit you, and you seem to fit comfortably in the word czar, as we have debated, because if you don’t

have anybody directly that you are reporting to and you are explaining how you make these decisions, but it is still a little scary,

as an elected official or as people watching in the country, to see

one person with this much power over major institutions in our society; and the challenges to how you are making decisions, who are

you are talking to, why aren’t you reporting to any elected official

directly in the Treasury Department or the President is not a good

precedent for a democracy.

Now, let me ask you a fundamental question. AIG we talk about

like it is one company. In reality, it is 80 financial and 120 insurance, or the other way around. Did you separate out in this top 25

those who—and not all divisions were bad. Did you separate out

which divisions actually caused the problem?

Same at Bank of America. Bank of America and Citibank had

traditional banking things that were regulated, and their compensation might have been fair inside that industry, but they had

these non-bank rogue divisions that went crazy. Are you doing all

25 evaluations as if it is one institution, rather than, in fact, separate institutions, some of which clearly caused the problem and

some of which didn’t because of incompetent management?

Mr. FEINBERG. Under the law, I am looking at the top 25 compensated individuals at AIG as the parent. In other words, I am

not looking at 7 people at this unit and 5 people at that unit in

determining the top 25. That was really submitted to us by the

company itself under the law, and we worked from that.

Mr. SOUDER. In other words, my question is, then, Congress

didn’t separate, we blended them all together.

Now, let me go back, because what the American people are frustrated with was that we had—and I voted for TARP every time it

has come up, OK, because I believe our country was going to collapse because some of these people didn’t look at basic—you know,

the economy is growing at 16 percent over 4 years; housing is going

up at 200 percent. What kind of incompetent person can’t figure

out that people may, for example, be self-reporting income? How in

the world nobody looked at the risk of securitization? Why didn’t

they ask, in the bonding companies that we have had in here, the

rating companies, why didn’t anybody at these different companies

say, hey, isn’t it strange that these companies are getting AAA for

selling us bad credit? Why were they only checking 10 to 20 percent and then paying bonuses if you cleared these?

The question I have is are we aimed at the wrong thing? Why

are we looking at compensation here, rather than do you think we

could have looked at—because one of the questions, oh, we have to

pay these people this or they will go to another company. What

about stigma here, that you were incompetent? Wouldn’t we have

been better off analyzing what actually went wrong in these companies, finding out which managers were clearing it, holding them

accountable by whether they performed their basic duty or whether

they looked the other way to get profit in their company in an effect through investigations whether it was a violation of the law or

incompetence, putting a stigma on them and all of a sudden pay

would have been different?

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The problem in an oligopolistic situation right now is we don’t

have pure capitalism working. The bonding companies didn’t work

like capitalism is supposed to work. The stockholders and the

boards weren’t paying enough attention. In an investigation here,

isn’t the real problem not the compensation, but the people who did

crummy jobs aren’t being singled out? Wink wink. The next tier of

management wink winked, and you are treating Bank of America

and Citibank and AIG, those who participated in this huge coverup

and incompetence, the same as those who were running the traditional banking part, and they are all part of the parent?

Mr. FEINBERG. Congressman, I can only say, in response to

your——

Mr. SOUDER. I asked your opinion, now, not just what you are

required to by law.

Mr. FEINBERG. Well, but, I mean, I think that is a fair answer.

I am confronted with a statute and some regulations, and I am

asked to very expressly and explicitly deal with what Congress has

asked me to deal with. You are raising some very good questions,

but——

Mr. SOUDER. I am asking you. You are inside now. You are looking at these. You have to be measuring these different execs, and

one of them maximized his return and in fact could go over to

Chase or somebody. If you are trying to keep him there, don’t you

look at whether they were competent in their area?

In other words, if you adjusted some of their pay by whether or

not they were over an area that unbelievably rewarded people who

were behind in their mortgages as more value and securitization

than people who were paying, now, that is some kind of stupidity.

No risk management. Yet, you are analyzing and people—isn’t that

one of the valuables even under statute that would measure whether or not they are employable?

Mr. FEINBERG. I think, to the extent that you are asking do we

also look at the importance of the role of the individual, how long

they had been at the company, what capacity they served, yes, we

do look at that.

Mr. SOUDER. Did they handle these toxic things and overlook?

Mr. FEINBERG. I also think, if I may, Congressman, implicitly,

you are raising a very important question raised earlier, which is

the extent to which, quite apart from my compensation decisions,

what about corporate governance reform designed to rein in the

discretion of some of these officials, and that is a subject which is,

of course, worthy and is now being considered by Congress.

Chairman TOWNS. The gentleman from Texas, Mr. Cuellar.

Mr. CUELLAR. Thank you, Mr. Chairman.

Thank you, Mr. Feinberg, for being here with us. I understand

you have a very difficult job and I appreciate it.

I guess if I can look at the scenario, this is what the scenario is.

You have companies that have received TARP dollars, companies

that have not received TARP dollars, and, of course, you have the

regulators also, the Federal regulators; and I guess the basic

premise is if you received Federal dollars, therefore, we can dwell

into your compensation, regardless of your performance or not. And

if you have not received Federal TARP dollars, we are not going

to get into the free market forces. Is that pretty much?

178

Mr. FEINBERG. Correct.

Mr. CUELLAR. OK. Now, we talked about compensation, and I

think in the past, when AIG took off all those conferences that they

went off and there was an outrage from the public saying why are

they going to those conferences and meeting in those luxurious resorts, people were saying you have to watch how you spend those

dollars. Do you remember that?

Mr. FEINBERG. Yes, I remember that.

Mr. CUELLAR. All right. So I guess one of the things we have to

look at as legislators is sometimes the public looks at perception,

saying if you all are the regulators, then you have to watch what

you do also. And I am just reading something that just came out

in the Washington Post, I believe it was on October 19th. The Fed

chairman, Ben Bernanke, and I think several of his employees

went to an October 19th San Francisco Fed conference on Asian

and global financial situations. They went and they traveled to the

Bacara Resort & Spa near Santa Barbara, CA, I guess. Some of

those suites go up to $2,000 a night, and you can go on and on and

on and on and on.

I think out of the 100 participants there, I believe one-third of

the participants there were Federal employees. Now, whether they

got good discounts on the hotel rooms, it was not during the season, I guess—and I know that is not under your watch and I don’t

mean to put you on this, but I guess that is one of the things we

have to be very, very careful, because if you have TARP, non-TARP

entities, and then you have the Federal regulators saying you have

to watch what you do and spend the money, we just have to be

very careful how we regulate.

Any comments, without you going——

Mr. FEINBERG. I completely agree with your comment about

being careful. I assure you that the Office of the Special Master is

very, very cognizant of your concern about image and how it looks

with the regulators. I can’t speak for the Federal Reserve, but I can

tell you that our office is very cognizant of that concern about

perks and excessive compensation, travel allowances, etc.

Mr. CUELLAR. Thank you very much.

Mr. FEINBERG. Thank you.

Chairman TOWNS. I now yield 5 minutes to the gentleman from

North Carolina, Mr. McHenry.

Mr. MCHENRY. Thank you, Mr. Chairman.

Thank you, Mr. Feinberg, for your testimony. I appreciate how

candid you are. I was saying to a colleague that your extreme confidence is necessary with the extreme job that you have. But I also

appreciate your just being frank with us. That is what we need.

Now, I just want to touch on a couple things quickly and I have

some other questions. You report to the Secretary of the Treasury,

he is your boss, is that correct?

Mr. FEINBERG. Correct.

Mr. MCHENRY. How often do you meet with Secretary Geithner?

Mr. FEINBERG. I have met with the Secretary probably three or

four times in the last 5 months.

Mr. MCHENRY. In the last how many months?

Mr. FEINBERG. Five months.

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Mr. MCHENRY. Five months. OK. So every other month, roughly.

OK. And in terms of this discussion about cash, in your testimony

you discuss cash, and when people hear that and when I read the

Wall Street Journal story, I think that the language differential

here is important, the distinction. You are talking about cash as

your monthly salary or weekly salary, however they pay, and then

if you get a cash bonus at the end of the year, that is your cash

package, correct?

Mr. FEINBERG. Correct.

Mr. MCHENRY. OK. Now, the Wall Street Journal story that you

reference in your opening statement says that you raised the base

pay for 89 individuals; you cut it for a couple others; you left it the

same for others. That is their base salary that they receive monthly, is that correct?

Mr. FEINBERG. That is what the Wall Street Journal says. My

definition of base salary is quite different. My definition of base

salary is not only what you get twice a month, but also draws that

may be provided you over the course of the year, guaranteed commissions, guaranteed bonuses. The example, Congressman, that

the news article referred to said that in one case with Citibank I

had raised the base salary by 111 percent, to $475,000. I pointed

out earlier to the committee that the total cash that official received last year was $13 million, and I reduced it by 98 percent.

Mr. MCHENRY. And that $13 million figure is not any stock

awards.

Mr. FEINBERG. That was cash.

Mr. MCHENRY. That was cash.

Mr. FEINBERG. Cash.

Mr. MCHENRY. OK. All right. I just want to understand this distinction because I read in the Wall Street Journal and then I hear

your testimony, which is different, and I just want to understand.

You are talking about that twice a month. Their comparison here

is the twice a month pay or monthly pay to what you are now setting as their monthly pay.

Mr. FEINBERG. I guess that is right. It is unclear to me in that

story what they mean.

Mr. MCHENRY. OK. So what you are looking at is you would up

that base guarantee in that factor, but the rest you are having with

stock. Now——

Mr. FEINBERG. I am also eliminating all cash guarantees, like bonuses guaranteed regardless of performance, like commissions

guaranteed regardless of sales, like any other type of cash guarantee. Those are completely eliminated under my program.

Mr. MCHENRY. OK, I want to discuss a larger issue here. Do you

use compensation consultants within your office?

Mr. FEINBERG. In the Office of the Special Master? Yes.

Mr. MCHENRY. OK. Are these compensation consultants that

have other clients?

Mr. FEINBERG. No. No, they may have clients that I am not

aware of. They are both academics.

Mr. MCHENRY. Both academics. OK. All right. Now, in terms of

compensation consultants, there has been a lot of discussion about

this, but I think there is another piece here, which is the tax ramiVerDate 11-MAY-2000 11:13 Feb 18, 2010 Jkt 000000 PO 00000 Frm 00183 Fmt 6633 Sfmt 6633 U:\DOCS\54553.TXT KATIE PsN: KATIE
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fications for salary and bonuses. Have you encountered this as a

challenge in dealing with these institutions?

Mr. FEINBERG. We certainly have.

Mr. MCHENRY. Can you discuss—because we are in Congress

here; we set the tax rules. What can we do to make the tax code

more effective so that executives’ actions are tied to shareholders’

interests?

Mr. FEINBERG. Well, that is a complicated question about the tax

code. I would have to get back to you on that. I can tell you that

you are absolutely right, Congressman, that we run into these

problems every day in establishing deferred compensation. You

know, it may vest today under the law, but it is not redeemable

for 2 years, 3 years, 4 years, what are the tax consequences of this.

We have run into that problem and I would be glad to get back to

you and lay out some of the tax issues that have arisen in the

course of my 5 months on the job.

Mr. MCHENRY. I would certainly appreciate that.

Mr. FEINBERG. I will.

Mr. MCHENRY. Finally, the number of 25. I find it arbitrary. Do

you find it arbitrary?

Mr. FEINBERG. Of course it is arbitrary.

Mr. MCHENRY. Have you encountered this as a problem, where

you have two executives, one makes marginally more than the

other; one is the No. 26th executive, the other is the No. 25th; and

then perhaps you have a class of people that are very similar to

the 20th or 25th executive that fall under your purview? Have you

seen anything currently that you have 26th executive making more

than the people that you have just given new rules to?

Mr. FEINBERG. No, we haven’t seen that yet. Of course, we

haven’t got to the new top 25 in 2010, which may vary. We haven’t

seen the problem yet of the difference between No. 25 and No. 26.

What we are seeing is the arbitrariness of 26 to 100 when the

100th person is cutoff at 100 and there may be hundreds or thousands of employees at 101 and 102 and 1,000 and 5,000 and 10,000

that are subject to the same compensation structure. So we are

running into that problem a little bit, but hopefully we will be able

to come up with a program that will take that into account.

Chairman TOWNS. The gentleman’s time has expired.

Mr. MCHENRY. Thank you for your testimony.

Mr. Chairman, if I may submit for the record a question I have

about contracting out services that are not under your purview as

well.

Chairman TOWNS. Without objection, so ordered.

I now recognize the gentleman from Vermont, Mr. Welch.

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

Mr. Feinberg, I thank you and I thank your staff for their tremendous work that you have been doing. I think we all really appreciate it. I have questions in two areas, but first a brief statement.

Trying to figure out what is the ‘‘right level of compensation’’ ultimately is an arbitrary decision, but there has been a premise in

corporate America that the more you are paid, the more you are

worth. Disgraced and incompetent executives who walked away

with hundreds of millions of dollars, Stanley O’Neal, Richard Fuld,

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the list goes on, have proven that to be wrong. And I think the two

concerns that we have here in Congress are, one, what compensation practices are going to drive a constructive business model so

that bankers make money by lending rather than ripping folks off

in kite schemes like subprime mortgages; and then, No. 2, with respect to the taxpayer bailout, which was presented to us as something that had to be done even if we didn’t want to do it, how can

we get some of that money back for the American taxpayer?

And this isn’t in your purview, but it is a question I want to ask

because you probably have more practical experience on this than

anyone in America, certainly more than any of us on the committee. Among the TARP recipients was Goldman Sachs. They have

since paid that money back with interest. And Goldman Sachs is

good at what it does and it is now on track to have another year

of record profits and likely to award bonuses in the range of $21

billion to $23 billion to its employees. Part of their bottom line profit came from part of the taxpayer payment to AIG, which totaled

over $100 billion. AIG took the taxpayer money and wrote a $12.9

billion check to Goldman to cover collateralized debt obligations

and some of these exotic instruments that were in jeopardy because

of the collapse of AIG.

Do you have an opinion as to whether or not Goldman Sachs should repay taxpayers that $12.9 billion before it awards $23 billion in bonuses to its employees?

Mr. FEINBERG. Congressman, I don’t have an opinion. I have

read that story, just as others have. I have enough difficulty focusing on the seven companies that are on my watch. And whether or

not Goldman should either voluntarily or by force of Congress, congressional directive, repay——

Mr. WELCH. Let me ask you this. I understand you have a limited purview, and I can’t tell you that nobody is listening and it is

just between us, but I know that one of your concerns is taxpayer

fairness; and, again, that is in the eye of the beholder, but it is a

fairness standard.

One of the things that we have learned in this entire catastrophe

of the financial meltdown is that most of the things that were done

that are truly outrageous and harmful to taxpayers and our economy were all legal. Legal but not fair and not right. And if we are

going to restore some sense of fairness that the American taxpayer

needs, do you think that we have to address such transfers where

the goal of the taxpayer bailout was to revive the financial system,

but not to reward any individual firm?

Mr. FEINBERG. Yes. I am hopeful that the model that we have

developed for the seven companies that is in this report—and executive compensation is not the answer to all of these problems, but

to the extent that executive compensation has a role to play going

forward in improving the economy and promoting fairness, I would

like to think that the recommendations we have made in this report might be adopted voluntarily by other companies on Wall

Street and might be seen as one step among many that can be

taken to deal with the overall problem.

Mr. WELCH. OK, thank you.

I yield back.

Thank you, Mr. Feinberg.

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Chairman TOWNS. Thank you very much.

I now yield to the gentleman from California, Congressman

Bilbray.

Mr. BILBRAY. Thank you, Mr. Chairman.

Mr. Feinberg, I guess with my wife on the other side of the continent, I spent some quality time with Publius Hamilton and the

Federal papers last night, and I am just thinking of what our

Founding Fathers must be thinking watching the entire process

that we are talking about today, the concept of the Federal Government is actually looking at these kinds of private sector jurisdictions that have changed.

And I think, rightfully so, we should be looking at it. I think one

of the greatest things when you read the Federal papers is the concept of rights and responsibilities go together, and when the taxpayer was required to take on responsibilities, those rights obviously start following, and I appreciate your working on this part

of it, breaking very new ground. Let’s just hope it is not ground

that we have to cover ever again in the future, and let’s work on

that.

I think that your comment about the regulation that we are considering, one of the concerns I see is basically continuing the process of the Federal Government deciding salary rather than empowering stockholders, who are actually the ones who bear the financial responsibility and should have it. Wouldn’t you agree that is

the vehicle that we probably should be looking at, is those who pay

play and determine who get——

Mr. FEINBERG. I think that is right. As I said earlier, the asterisk

to that general view, which I share, is that at least as to these

seven companies, Congress spoke and said that since the taxpayer

is the primary creditor of these seven companies who received the

most TARP assistance, as to these seven, and only these seven,

there should be more monitoring and determination of pay.

Mr. BILBRAY. Because rights and responsibilities—the fiscal responsibility leads the right to be able to intervene. What worries

some of us is that we are starting to see this as being an excuse

to intervene in other companies where the responsibility has not

been taken over but the right is being proposed to be preempted.

Mr. FEINBERG. I can’t speak for the Federal Reserve or others.

I know that I have publicly and again today expressed the view

that my jurisdiction should not be extended beyond these seven

companies, and only as long as they still owe the taxpayers money.

Mr. BILBRAY. And I appreciate that. How many members of your

team were drawn from your private law firm?

Mr. FEINBERG. I think myself and two others.

Mr. BILBRAY. Would you mind naming them?

Mr. FEINBERG. Ms. Camille Biros, who is sitting right here, and

Ms. Jacqueline Zins, who is also sitting next to Ms. Biros.

Mr. BILBRAY. OK.

Mr. FEINBERG. The rest are all Treasury officials.

Mr. BILBRAY. OK. All the rest of them are Treasury.

Mr. FEINBERG. Yes, I believe so.

Mr. BILBRAY. Do you have the names of the Treasury officials?

Mr. FEINBERG. They are all here; I can get you those names, yes.

Mr. BILBRAY. OK. Appreciate that.

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Now, there are a lot of reports going around, but the latest is,

according to those reports, your team includes academic consultants.

Mr. FEINBERG. Two, Professor Lucian Bebchuk from Harvard and

Professor Kevin Murphy from the University of Southern California.

Mr. BILBRAY. I appreciate that. And that is the kind of clarity I

think that President Obama really wanted to set as a new example, rightfully so, pointing out the previous administrations have

not been as transparent as we hope; and that creates concerns that

really so many times just don’t need to be there.

At this time, will you provide to the members of this committee

the names and the subjects and the venues of all the individuals

that you rely on to work out this issue?

Mr. FEINBERG. I would be glad to do that. I can tell you right

now, summarily, there are the two academics at Harvard and

Southern Cal, and there are the people here at Treasury with two

others from my law firm, and that is about it, about 15 people. But

I will get you the information and, in transparency, lay it out to

you and let you have all that information.

Mr. BILBRAY. Thank you very much. That is how we avoid all of

the he says/she says or we hear reports and we don’t have it.

Thank you very much.

Mr. ISSA. Would the gentleman yield?

Mr. BILBRAY. I yield to the gentleman from California.

Mr. ISSA. Being an old employer, I couldn’t resist asking one

question. You have had more than half of the key 25 of AIG and

B of A depart. How many outside individuals under similar pay to

the people that you are losing did you hire? In other words, not

from within, not people that are already No. 26 or 28, but how

many new outside people have entered the ranks of the top 25 of

those two companies under the conditions you are willing not pay?

Mr. FEINBERG. I don’t know the answer to that, Congressman. It

is a fair question and I will try to get you that answer.

Mr. ISSA. If you would get back to us on that.

Additionally, Madam Chair, I would like to enter

Bloomberg.com’s article into the record at this time because it has

been brought, and then just ask one closing question, which is if

the credit default swaps had not been paid at full value, but at 60

cents on the dollar, which was the negotiated amount, wouldn’t

that amount that wouldn’t have gone to Goldman Sachs and other

companies, wouldn’t that have been greater than all of the executive compensation that you are going to handle over your tenure?

Mr. FEINBERG. I am not sure, but I——

Mr. ISSA. By a magnitude of many?

Mr. FEINBERG. I am not sure, but I will assume, based on the

ranking minority member’s question that the answer is a definitive

yes.

Mr. ISSA. Thank you.

Thank you, Madam Chair. I yield back.

Mr. BILBRAY. I yield back.

Mrs. MALONEY [presiding]. Thank you very much.

Mr. Foster is recognized for 5 minutes.

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Mr. FOSTER. Thank you, Master Feinberg, for appearing today.

I really appreciate it.

The first question I have is sort of technical. When you attempt

to align compensation incentives with long-term company performance using stock that has to be held over time or vests over time,

do you encounter problems in preventing employees from simply

hedging against a possible decline in the stock value?

Mr. FEINBERG. Prohibited by our rules and regulations. Very

good question.

Mr. FOSTER. And who enforces this, especially for former employees that are holding the stock that is going to vest over time?

Mr. FEINBERG. I would guess with any of our final compensation

determinations, if there is a violation, I would assume that would

be referred to the Department of Justice.

Mr. FOSTER. OK, but do they have to report? If you leave the

firm and then, you know, for the next several years you have to

go and file some piece of paper that says I have not taken a hedging position in some offshore derivative market that you don’t know

about?

Mr. FEINBERG. I think we would monitor that and be required to

do that, yes.

Mr. FOSTER. OK, so there are financial statements that have to

be filed——

Mr. FEINBERG. I think so.

Mr. FOSTER [continuing]. Years after you are terminated. OK.

And your staff is at least not shaking their head. OK.

All right, so now——

Mr. FEINBERG. I may get corrected in the next hour, and, if so,

I will let you know.

Mr. FOSTER. OK, thank you. Now, down the hall in the Financial

Services Committee, that I also serve on, we have broader concerns

about the compensation structures for systemically important

firms, and not just TARP recipients. So based on your experience

in dealing with the corporate culture and so on, I was wondering

if I could have your reaction, in writing if you are not comfortable

doing it now, to two possible structural changes in compensation

that might help going forward in systemically important firms.

The first one is the requirement of periodic stress tests for systemically important firms with negative implications for executive

compensation in the case that the stress test didn’t come out well.

So that if you are seen to be operating a company that will not

withstand a 20 percent decline in asset values, or whatever the

stress test would be based on, that actually that would have a negative implication for the bonuses this year. So that is suggestion

one.

Suggestion two is that, as you probably are aware, the administration or the Treasury and the Financial Services Committee staff

jointly proposed industry-wide assessment into an FDIC-like insurance fund, and it would be post-funded so that this would be

after—if a too-big-to-fail firm failed, the whole industry or at least

firms above, I believe, $10 billion in assets effectively have to pay

into this fund to cover the losses. And I was wondering if you have

a reaction, or could provide one, against making that assessment

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not only against the firms themselves, but against the highly compensated individuals, perhaps even using a clawback provision.

Mr. FEINBERG. Again, those are questions I will get back to you.

Those corporate governance questions are very important. They are

all part of the total determination of what constitutes credible compensation. To the extent that over the next few months we are

dealing in designing compensation structures for employees 26 to

100, which is on my watch, it is suggestions such as yours, Congressman, that we should take a look at. I don’t know if it should

be part of my report or be part of the broader corporate governance

reform effort that is underway. But clearly those are suggestions

that ought to be considered, yes.

Mr. FOSTER. So what I am looking for is a response of you personally, not as special master, because you have been on the front

lines of this, you have dealt with the corporate culture, you have

seen what makes people jump and what makes them shrug, and

that is what we have to understand.

Mr. FEINBERG. I will honor your request and get back to you,

then, as a layman, as a private citizen.

Mr. FOSTER. Thanks very much.

Mr. FEINBERG. Thank you.

Mr. FOSTER. With that, I yield back.

Mrs. MALONEY. Thank you.

Mr. Jordan from Ohio.

Mr. JORDAN. I thank the Chair.

And I apologize, I was over on the floor handling a few suspensions for this committee, so if I ask some things that have already

been asked, bear with me, if you would.

Mr. Feinberg, we appreciate your being here, and your staff as

well.

In some of your responses to Congressman Bilbray you talked

about the independence of your place. Was there any coordination

last week when your findings came out along with what the Fed

is planning to do? And as I read what the Fed is planning to do,

I think about Security National Bank in Urbana, OH. It looks like

the president there could be, in fact, potentially having the Government look at his or her compensation. So was there any coordination or is it just the luck of the way the world works that they happened to come out the same day?

Mr. FEINBERG. We have been—it was the luck that it came out

the same day, frankly. We have coordinated with the Federal Reserve in terms of keeping each other apprised of what I am doing.

We had no input that I am aware of, none, in terms of what the

Federal Reserve released last week in terms of the content of its

proscriptions.

Mr. JORDAN. So not relevant to content, but relative to timing

there was——

Mr. FEINBERG. No, no. As a matter of fact, we did not. I had no

contact with the Federal Reserve concerning the timing of their release, no.

Mr. JORDAN. Complete coincidence that those two came out the

same day.

Mr. FEINBERG. All I can tell you, Congressman, is that there was

no coordination and no communication in that regard.

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Mr. JORDAN. All right. Again, sort of picking up where Congressman Bilbray was, in the big picture sense, are you troubled—you

know, you think about car czar, pay czar, TARP program, energy

czar, stimulus package, bailouts for the auto industry. As you look

back—and you can probably guess where I come from—do you

think we might have been a little better off if we had never started

down this road in the first place?

Mr. FEINBERG. I am not going to second guess Congress; I have

learned over the years that is a mistake.

Mr. JORDAN. The American people sure do and I sure do.

Mr. FEINBERG. I can only say, Congressman, as I have said it

publicly, that my role is relatively very, very limited. It is these

seven companies that are owned by the American people that I am

focused on, and that is all I am focused on.

Mr. JORDAN. Let me ask you this, Mr. Feinberg, then. The slippery slope argument. Are you nervous—in light of comments by

people like Senator Schumer, who has talked about expanding this

to any publicly traded company—I guess I just look at this and I

am thinking who would have thought, in the United States of

America, we would have the Federal Government, the special master of executive compensation telling a private American citizen

what they can make?

Sometimes, if you step back and ask the fundamental question,

I think you stop and think wow, this is amazing where we are at

today in the United States of America, and that is a concern. And

it is also a concern that, when you think about it, you know, we

are a country of over 300 million people and we have this huge

market. We are the largest economy in the world and now one person, one single person is deciding what people make. To me, that

is a dangerous, dangerous place we are going.

And then when you couple it with, again, what Senator Schumer

has said, where this potentially can take us as a Nation, it is no

wonder Americans are frightened, and, frankly, some Members of

Congress are pretty scared too where we are headed.

Mr. FEINBERG. I have two answers to your concern. One, my job

and my office and what I am doing was established by Congress

in a Federal statute, accompanied by official Treasury regulations.

I am serving under the law and I am obligated to serve under the

law.

Mr. JORDAN. Mr. Feinberg, I understand that, and I get it, and

I get the fact that these companies, these firms held out their

money and took the taxpayer dollars. I get that. My question is

does it trouble you, as the person who has that responsibility,

where it could potentially lead and the implications of taking this

step, when you already have Members of Congress, frankly, important Members, influential Members like Senator Schumer, talking

about where it goes next?

Mr. FEINBERG. I am troubled, and I say so in my public statement. I am troubled at the notion that my role currently with these

seven companies, I am troubled at the notion that it could be expanded. That is a mistake.

Mr. JORDAN. Well, it is important that you emphasize what you

said earlier: it stops here. That is what scares people, and God

bless you for saying it, but it is important that you stick to it.

187

Now, let me ask you one quick question; I have a couple seconds

left. It seems to me that the administration has gone to great

lengths to keep you. You met with the Treasury Secretary a couple

times, you don’t meet with the Obama administration. So tell me

about that, tell me the relationship you have with Treasury Secretary Geithner.

Mr. FEINBERG. I have an excellent relationship not only with the

Secretary of the Treasury, I would like to think, but with other officials at Treasury and at the Federal Reserve in terms of consulting

with them concerning these decisions that I am making, suggestions that I am making. They have been extremely cooperative in

offering their advice to me at my request.

Ultimately, the decision is mine, but I have sought out a wide

range of views—the academics that I mentioned earlier that are

our consultants, individuals at Treasury, individuals at the Federal

Reserve—in an effort to come up with a report that I think is balanced, that is fair, and, most importantly, complies with the statute and the regulations.

Mr. JORDAN. Thank you, Madam Chair.

Mrs. MALONEY. Thank you. The gentleman’s time has expired.

Dr. Chu.

Ms. CHU. Thank you, Madam Chair.

And thank you, Mr. Feinberg, for testifying before us today. I

know you have the limited purview of these seven companies, but

Goldman Sachs, JP Morgan Chase, and Morgan Stanley, of course,

had substantial loans. They have paid it off since and they are no

longer under executive pay restrictions. However, with their profits

recovering from the Government bailouts, all three firms are expected to make huge payments to their executives this year and,

in fact, according to Attorney General Cuomo, Goldman earned

$2.3 billion in 2008, yet paid out more than twice that amount,

$4.8 billion, in bonuses.

What authority would it take to stop such negligent and reckless

behavior? What can we do to stop this? This is very upsetting to

the American people, as you know.

Mr. FEINBERG. Well, that is a huge legitimate question, what authority. Historically, the authority has been the self-regulating

marketplace. Now, to the extent that is supplemented by the Federal Reserve, by the regulators like the SEC, the FDIC, that is a

subject that Congress may want to revisit.

I want to emphasize my reluctance to attempt in any way to

broaden my jurisdiction beyond these seven companies where I am

trying to collect money representing the taxpayers as a creditor. I

am not saying it is not a legitimate concern, I am just saying that

it is a subject that goes well beyond my jurisdiction, it seems to me.

Ms. CHU. Well, there is one company, GMAC, which is under

your jurisdiction, and it has already received $12.5 billion of TARP

money. However, they are asking for a third bailout. How do you

plan to ensure that the additional $5.6 billion that they are requesting doesn’t go toward these unscrupulous compensation practices?

Mr. FEINBERG. We are very vigilant in making sure that the compensation practices that we have articulated in this report are fair,

are reasonable, and will be paid by GMAC to its employees as part

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of this program. I am not sure where that extra requested funding

will go, but we want to make sure, under the law, that there are

sufficient funds at GMAC to pay these officials, and we will make

sure of that.

Ms. CHU. And for them to control their compensation practices?

Mr. FEINBERG. They control their compensation practices subject

to our rules and regulations, which we have mandatory jurisdiction, Congresswoman, to make sure that we are monitoring those

compensation practices.

Ms. CHU. Well, let’s talk about AIG. I know that you made some

major exceptions to pay cuts for three senior AIG executives who

had signed contracts for multi-million dollars bonuses prior to your

appointment. You stated that you are reluctant to invalidate contracts prior to the enactment of this current law, but do you have

the authority to override these contractual rights? What can be

done about this situation? You have AIG employees who—well, let’s

see, four employees made over $4 million, one employee made $10.5

million.

Mr. FEINBERG. We have authority under the law to attempt to

work with the company in renegotiating those contracts. We have

been successful in almost every case, although that is the exception

that you have referenced, three individuals at AIG. What we did

with those three individuals at AIG, they had a contract, they insisted on honoring that contract, they had every right to insist on

honoring that contract, and, therefore, under the law, I took those

contracts into account in reducing their 2009 compensation. Beyond

that, I had no authority to act, and I think that is what I did under

those circumstances.

Ms. CHU. OK, well, there are alarming findings that executive

compensation is actually increasing, even though there is this outrage by Americans. Now that you have had the experience with

these seven companies, what would be your recommendation on a

going forward basis?

Mr. FEINBERG. I think, going forward, we will continue, first, to

implement the recommendations in our report that call for a reduction in cash compensation of around 90 percent; a reduction in

overall compensation of around 50 percent, cash plus stock. In addition, I am hoping—and we have also reined in perks; we have

also tied compensation to long-term performance; and I am hoping

that our recommendations will be followed not only by these seven

companies, which are required to follow them, but I am hoping that

some of our recommendations will voluntarily be adopted by other

companies seeking to improve their compensation practices. We

shall see.

Ms. CHU. Thank you.

I yield back.

Mrs. MALONEY. The gentlelady’s time has expired.

Mr. Cummings is recognized for 5 minutes, to be followed by Mr.

Connolly.

Mr. CUMMINGS. Mr. Feinberg, I want to thank you for your testimony. I have listened to you very, very carefully and I do believe

that you have done what you have been instructed to do, and I

think you have done an outstanding job.

Mr. FEINBERG. Thank you.

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Mr. CUMMINGS. Let me just try to get down to where the rubber

meets the road. You know, I think part of the reason why this is

going on, why you are doing what you are doing and why the Congress asked you to do what you are doing is so that—and you have

implied this in your testimony. Part of the reason is to try to get

other companies to do this, beyond the seven.

I know you have gotten maximum cooperation, I think you said,

with AIG and I have had an opportunity to meet with the former

head of AIG, Mr. Liddy, and to listen quite a bit to what he had

to say, and I read the papers just like you do. I have absolutely

no confidence, none, that the things that you are able to do—and

it has nothing to do with you. There is a culture along Wall Street

that will cause them to reduce salaries consistent with what you

just said a minute ago. And you are a very bright and straightforward person. What would cause them to even do it? Because my

dealings with them is like we are on two different planets. I think

when they talk about multi-million dollar bonuses, it is like shoe

shine money to them. I am serious.

And when I talked to Mr. Liddy about my constituents, who were

being thrown out of their houses because of foreclosure, losing their

savings, everything, and they still wanted to give money to the financial products division, and to seem to not even have a clue or

not give a hoot about these folks, and at the same time handing

out millions. I mean, I just can’t see how, with all your fine work,

that is going to be turned around. I just don’t. I have been around

a long time.

No. 2, I was wondering what advice—do you have conversations

with the President? Because, let me tell you, I believe that the

American people—in order for all of the things that the President

is trying to do to right this economic ship, if the American people

aren’t there and if they feel like they are getting screwed every

which way, and certainly it goes beyond these seven companies, so

the question becomes, what do we see, what do you see?

I mean, I know what you are hoping, but Mr. Barofsky said

something the other day that really impressed me, when he was

giving us a little talk about his report. He said that Secretary

Geithner and others, whenever he comes before us, they listen. So

here you are before us. You are the man with the seven companies.

I am trying to figure out what will it take, if anything—this may

be a culture that is impossible to turn around—to make these folks

move in another direction.

Mr. FEINBERG. Congressman, you are asking a political science

question about the gap, the gap between Wall Street and Main

Street thinking on this subject. A, I can play whatever role I can

play, hopefully, in impressing upon Wall Street generally the value

of what is in this report. Whether or not Wall Street will pick up

on any of this I do not know.

Mr. CUMMINGS. And give me your best argument. That is what

I want to hear. You are talking to Wall Street and you say, Wall

Street, we have a great rapport here. This is why you should do

this. Your best argument.

Mr. FEINBERG. My best argument would be to Wall Street that

this is why you should do this, because if you don’t do this, there

may be a time when Congress or others will rein in pay and will

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limit your discretion and will limit your unilateral ability to determine what to pay people. I mean, to the extent that these modest

proposals—modest in the sense that they only apply to seven companies—to the extent that they are ignored in the private marketplace, ignored, well, I mean, the question is will Congress, in its

wisdom, sit by and allow compensation to go forward under the old

regime and the old way of doing things. I don’t know.

I have enough problems, as you have witnessed this morning,

dealing with these seven companies, and suggesting that my role

should definitely not go beyond these seven companies, to express

a view on what global decisions should be made by Congress to try

and rein in Wall Street. That is a subject beyond my jurisdiction

and one that I wisely don’t want to get near because I don’t want

to undercut my credibility and my effectiveness in terms of dealing

with these seven companies.

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

Chairman TOWNS [presiding]. We might need another Master to

do that.

Congressman Connolly.

Mr. CONNOLLY. Thank you, Mr. Chairman.

Mr. Feinberg, thank you for your willingness to serve. You know,

in listening to some of the rhetoric about this subject on the other

side of the aisle, one would think, if one knew nothing, that Congress and the Federal Government just have this irrational compulsion to interfere in the private sector and arbitrarily set compensation limits. Well, what is your understanding of why your job was

created, Mr. Feinberg?

Mr. FEINBERG. My job was—it is clear. My job was created by

Congress and the Treasury to establish compensation determinations designed with one primary objective in mind, to get the taxpayers’ money back. And that is the primary objective. Now, how

we do that——

Mr. CONNOLLY. Mr. Feinberg, I understand that, and thank you.

But why? Did something go wrong? Why did we decide on these

seven companies?

Mr. FEINBERG. These are the seven companies that were allowed,

I guess, to survive on the back of the taxpayers’ willingness to contribute these funds.

Mr. CONNOLLY. Ah. So the private sector, the free market, in

fact, had failed, is that correct?

Mr. FEINBERG. Correct.

Mr. CONNOLLY. Let’s take one of the seven companies you oversee, AIG. The largest corporate quarterly loss in American history

was in the last quarter of last calendar year, and it was none other

than AIG, is that correct?

Mr. FEINBERG. Correct.

Mr. CONNOLLY. And AIG has been the biggest recipient of bailout

funds, is that correct?

Mr. FEINBERG. I think that is—yes, that is correct.

Mr. CONNOLLY. So it had the largest loss and the largest single

taxpayer bailout in American history, is that correct?

Mr. FEINBERG. Correct.

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Mr. CONNOLLY. Does the public have any interest at all in wanting to see some kind of rational compensation limits in a company

it has bailed out, the biggest in its history?

Mr. FEINBERG. Insofar as the public’s view is reflected by the

statute that I am working under, yes.

Mr. CONNOLLY. Does that seem a rational concern on our part to

you?

Mr. FEINBERG. No.

Mr. CONNOLLY. You think it is not rational?

Mr. FEINBERG. I think it is, it is a rational response to the crisis,

yes.

Mr. CONNOLLY. In protecting the public’s interest.

Mr. FEINBERG. Yes.

Mr. CONNOLLY. Thank you.

Let me ask you this question. One of the four broad mandates

that Congress gave you in creating the statute that created the

special master was to review prior payments. When your office reviewed prior payments to senior executives in AIG, what did you

find? Because presumably you found something wrong in the fact

that you have chosen to roll back some of that compensation.

Mr. FEINBERG. With most of the companies we found that, prior

to the enactment of the law, there had been prior payments actually made. There was nothing nefarious or illegal about it; those

were contracts that were entered into prior to the enactment of the

statute creating my office.

What we did find, going forward under my tenure, we did find

that there were pending payments that were obligated to be made

under prior contracts, and we were able, through negotiation with

the companies, in almost every respect except two or three cited

earlier, to get those contracts voluntarily invalidated; and, instead,

we rolled the amounts that were involved in those contracts into

prospective performance-based stock.

Mr. CONNOLLY. Ah, performance-based.

Mr. FEINBERG. Yes.

Mr. CONNOLLY. When you looked at compensation, prior compensations, and in your report you are submitting today, looking

forward, I assume that there is some rational basis for your coming

up with the recommendations you came up with. For example, we

have heard some rhetoric here today that would seem to suggest

that the sky is the limit; we have no business even talking about

limiting executive compensation, even in companies we have bailed

out. And you agree that within some reason any limit is arbitrary.

Mr. FEINBERG. I think that is right.

Mr. CONNOLLY. But, would you not agree, however, if I said the

CEO’s compensation in Company X ought to be 200 percent of

Company X’s entire profit for the year, that would be an irrational

compensation, would it not?

Mr. FEINBERG. I think it probably would.

Mr. CONNOLLY. So it is not entirely arbitrary.

Mr. FEINBERG. Oh, no. Our decisions weren’t arbitrary. Our decisions absolutely, I think, were based on reasonable evaluation of

the data and the anecdotal information we received from the seven

companies. I would defend my report as being not at all arbitrary,

but very, very principled, very rational, and very reasonable. Now,

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people may disagree, but I think it is clearly a reasonable and defensible report that was submitted to the Secretary.

Mr. CONNOLLY. And you used the words performance-based.

Could you just elaborate on that? Because that is where we get into

the rational or arbitrary here. It is tied to some kind of rational

expectation of financial performance on the part of the company, is

that correct?

Mr. FEINBERG. That is absolutely correct. We rejected out of

hand the notion that regardless of company performance there

should be guaranteed salaries, guaranteed bonuses, guaranteed

commissions, guaranteed perks, guaranteed, guaranteed, guaranteed. And what we said in our report, and what I recommended,

is that the era of the compensation guarantee is over and, instead,

other than small cash-based salaries, the remainder of the compensation package should be tied to performance; and not only tied

to company performance, but tied to company performance over a

period of time so that you cannot simply short the stock, sell it

after a year, roll it over, you have to hold it for up to 4 years.

And then we are hoping the long-term benefit of holding that

stock will tie the officials’ compensation to the overall value of the

company as reflected in the stock. In addition, one other point, we

also offered up the notion of long-term incentive-based stock, in addition to salary. But that stock cannot be redeemed, it cannot be

sold until and unless the taxpayers get their money back.

That is the formula we tried to use to correct what we thought

in our report were the problems with executive compensation practices in these seven companies.

Mr. CONNOLLY. I thank you.

My time is up, Mr. Chairman. Thank you.

Chairman TOWNS. Right. Thank you very much.

I yield 1 minute to the gentleman——

Mr. JORDAN. Oh, I appreciate the chairman yielding.

I just want to make a point on my friend and colleague from Virginia. They talked about the private sector failing. I think this is

important to understand. The private sector didn’t fail; we had

some institutions that had some major problems. But to argue that

the private sector failed is just, in my judgment, fundamentally

wrong. Institutions fail in the private sector every single day in

this country and across the planet. That is part of capitalism. The

problem is once we start down the road, that is when we get into

all these questions and all these problems.

Chairman TOWNS. Thank you very much.

Let me just say this before I yield to the gentlewoman from New

York. There is a lot of concern about these folks who failed going

to another company. I am not sure that anybody would be too excited about hiring people that fail. I don’t think you have to worry

about that too much. One company in the ground and then you expect to get big money to go to another one and do the same thing?

So I don’t know that is a real concern.

Mr. FEINBERG. Well, we hear the argument all the time, and the

argument goes—you expressed one view and the ranking minority

member has expressed a view. There are a lot of vacancies. The

question is those vacancies are now gone and whoever was going

to leave would have left. I don’t know. We are trying to implement

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the statute keeping in mind both of those positions. It is a balancing act.

Chairman TOWNS. You know, I think about Members of Congress. We think we are so great, but when we leave somebody

takes our seat. They do real well.

I yield now 5 minutes to the gentlewoman from New York.

Mrs. MALONEY. Thank you, Mr. Chairman.

First, I would like to welcome Mr. Feinberg and mention his

truly outstanding work as a special master for 9/11 during a very

difficult period in our country. With a very difficult topic you did

a very fine job.

I would like to ask how we are faring internationally in terms

of our compensation compared to foreign countries. We are in a

global market now; we are competing with firms across the world.

How does U.S. executive pay compare to, say, pay in Japan and in

European countries?

Mr. FEINBERG. I can get you that data, Congresswoman. I can

tell you that what I do know is that there has been a great deal

of recent G–20 and other cooperation between Treasury and the

Secretary and other countries in trying to come up with a common

set of international standards governing compensation. How much

American compensation varies from Japan or Germany or Italy, I

don’t know, but I can certainly get you that data.

Mrs. MALONEY. I would like to know. I also have read that the

United Kingdom adopted say on pay rules or a shareholder vote on

executive pay. Are you aware of that and has that made any difference in pay scale? Have you followed what has happened in the

United Kingdom?

Mr. FEINBERG. Again, I think that is of recent vintage. I will,

again, try and secure some information concerning the impact of

that in the United Kingdom.

Mrs. MALONEY. The United Kingdom’s five largest banks have

reportedly agreed to abide by the G–20 executive compensation

rules. Have U.S. banks, likewise, agreed to accept these conditions,

which include an independent compensation committee and

clawbacks for poor performance?

Mr. FEINBERG. Not on my watch. I don’t know. I am limited to

these seven companies. And, again, at the risk of disappointing

you, I will get you answers to these questions, Congresswoman.

Mrs. MALONEY. Are you aware of any other legislative fixes or actions that we should be taking in terms of tying executive pay more

to performance?

Mr. FEINBERG. Well, that raises the whole question that I have

discussed earlier about corporate governance and what Congress is

considering, as I understand it, in both the House and the Senate

concerning both corporate governance reforms in Federal legislation and corporate regulatory reform. And both of those subjects

certainly are part of the overall concern about total compensation,

even though those two subjects aren’t directly part of my jurisdiction.

Mrs. MALONEY. OK, the law gives firms the right to appeal within 30 days of the compensation determination. Do you anticipate

appeals, and, if so, how will they be conducted?

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Mr. FEINBERG. I haven’t received any appeals as yet. I am hopeful there won’t be any appeals. If there are, under the law, we will

certainly give due consideration to those appeals, but as of today,

Congresswoman, we don’t have any appeals.

Mrs. MALONEY. The New York Times reported that Citigroup, as

well as other banks, continue to offer grant guaranteed bonuses to

employees. Does that violate the Treasury regulations?

Mr. FEINBERG. It all depends whether those employees that are

getting those grants, allegedly in the New York Times, fall within

my jurisdiction of 1 to 25 or 26 to 100. Citigroup and other companies under my jurisdiction at least legally have the authority to act

independently if they are not part of my mandatory jurisdiction.

Now, I could, under the law, issue some advisory opinion if I knew

more about such bonuses, and we will look into that.

Mrs. MALONEY. Do you have the authority to override contractual

rights?

Mr. FEINBERG. No. If the contractual rights are found by my office to be valid, legal, and binding, then we give due deference to

the Constitution and the fact that the sanctity of contracts should

be upheld. But, as I said earlier, we do have under the law two

ways to deal with these old contracts that might be found to be

valid: one, we can seek to renegotiate those contracts with the company—we have been very successful in doing that—and getting the

company to voluntarily yield on those contracts and roll it over into

performance-based stock. Second, if a company refuses to voluntarily modify the contract, we can take those contracts into account

in establishing prospective compensation. So we do have some

weapons at our disposal.

Mrs. MALONEY. Thank you. My time has expired. We have been

called to a vote. Thank you again for your service to our Nation.

Mr. FEINBERG. Thank you again. And, Congresswoman, thank

you for all your help on 9/11. You were a stalwart in convincing

your constituents to come into the fund, and I will always be in

your debt for that. Thank you.

Mrs. MALONEY. Thank you.

Chairman TOWNS. Thank you very much.

Let me thank you for your testimony. You were an outstanding

witness, no question about it. We want to let you know we appreciate that, appreciate the work that you have done, and we really,

really want to continue to stay in touch with you as we move forward, because, as I indicated earlier in my opening statement, the

American people are angry; and, of course, you are helping to sort

of calm them down. Thank you so much.

Mr. FEINBERG. Mr. Chairman, you and the ranking minority

member need only call and I will be up here as soon as possible.

Thank you all very much.

Chairman TOWNS. Thank you very much. Thank you.

Now, our second panel consists of two witnesses, Professor Black

and Professor Roberts. As with the first panel, it is the committee’s

policy that all witnesses are sworn in, so please stand and raise

your right hands as I administer the oath.

[Witnesses sworn.]

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

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William K. Black is associate professor of economics and law at

the University of Missouri, Kansas City, and author of the book,

‘‘The Best Way to Rob a Bank Is to Own One.’’ Of course, we welcome you to the committee.

Russell Roberts is professor of economics at George Mason University and a research scholar at Stanford University, Hoover Institution. Welcome.

Your entire statement will be placed in the record and I would

like to ask you if you would assume the time. The clock starts on

green, then goes to yellow and then it turns red, so we would like

for you to do it within 5 minutes. We might have to stop you because of the fact we have votes on the floor but we want to get as

far as we can before.

Thank you very much. Why don’t we start with you, Mr. Roberts?

STATEMENTS OF RUSSELL ROBERTS, PROFESSOR OF ECONOMICS, GEORGE MASON UNIVERSITY; AND WILLIAM K.

BLACK, ASSOCIATE PROFESSOR OF ECONOMICS AND LAW,

UNIVERSITY OF MISSOURI-KANSAS CITY

STATEMENT OF RUSSELL ROBERTS

Mr. ROBERTS. Thank you, Chairman Towns, Ranking Member

Issa and distinguished members of the committee.

Americans are angry about executive compensation. Rightfully

so. The executives at General Motors and Chrysler do not deserve

to make a lot of money. They made bad products that people did

not want to buy.

The executives on Wall Street do not deserve to make a lot of

money. They were reckless, they borrowed huge sums to make bets

that did not pay off and they wasted trillions of dollars of precious

capital, funneling it into housing instead of health innovation, high

mileage cars or a thousand investments more productive than more

and bigger houses.

Everyday folks who are out of work through no fault of their

own, want to know why people who made bad decisions not only

have a job but a big salary to go with it. No wonder they are angry

at Wall Street, but if we keep getting angry at Wall Street, we will

miss the real source of the problem. It is right here in Washington.

We are what we do, not what we wish to be, not what we say

we are, but what we do. What we do here in Washington is rescue

large companies, large financial institutions and rich people from

the consequences of their mistakes. When mistakes don’t cost you

anything, you do more of them.

When your teenager drives drunk and wrecks the car, you keep

giving him a do-over, repairing the car and handing him back the

keys, and he is going to keep driving drunk. Washington keeps giving bad banks and Wall Street firms a do-over. Here are the keys,

keep driving. The story always ends with a crash.

Capitalism is a profit and loss system. The profits encourage

risk-taking. The losses encourage prudence. Is it a surprise that

when the government takes the losses instead of investors, that investing gets less prudent. If you always bail out lenders, is it surprising that firms can borrow enormous amounts of money living

on the edge of insolvency?

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I am mad at Wall Street, but I am a lot madder at the people

who gave them the keys to drive our economy off a cliff. I am mad

at the people who have taken hundreds of billions of dollars of taxpayer money and given it to some of the richest people in human

history. I am mad at President Bush, President Obama, Secretary

Paulson, Secretary Geithner and Chairman Bernanke, and I am

mad at Congress. You helped risk-takers continue to expect that

the rules that apply to the rest of us, don’t apply to the people with

the right connections. You have saved the system, but it is not a

system worth saving. It is not capitalism, it is crony capitalism.

Using a special master for compensation to get our money back

is too little, too late. Many people argue that because the government handed out the money, the government has a right to dictate

how it is spent, but in a constitutional democracy like ours, it is

not the government that has rights. We, the people, have rights.

The Constitution exists to restrain government, not to empower it.

Whether government has the right to limit pay is not the question. The question is whether it is a good idea for the government

to have the power to set compensation. Despite our anger, the answer is no.

Haye, the Nobel Laureate economist, said: ‘‘The curious task of

economics is to demonstrate to men how little they really know

about what they imagine they can design.’’ The special master

imagines he can design compensation packages that ‘‘align incentives,’’ while ‘‘retaining key talent,’’ but it is impossible for any one

person, no matter how wise, to anticipate the consequences of such

decisions. Nor does he have any incentive to acquire that knowledge. He has no skin in the game.

A single individual has been given enormous arbitrary power

with insufficient accountability or transparency. This is not good

for the rule of law, democracy or capitalism. By focusing on those

who owe the government TARP money, the special master distracts

us from other firms that benefited from government rescue such as

Goldman Sachs and JP Morgan Chase.

The comfort we receive from seeing compensation reduced distracts us from the policies that created the problem in the first

place, the rescue of Wall Street from its own recklessness. It is a

charade of political window dressing to make crony capitalism look

respectable.

I want my country back. Let us get the government out of the

auto business, out of the banking business, and out of the compensation design business. We need explicit timetables to disengage from government ownership, including a plan for how the

Federal Reserve will draw down its balance sheet. Most of all, we

need to stop trying to imagine we can design housing markets,

mortgage markets and financial markets and compensation.

I want my country back. I want a country where responsibility

still means something, where rich and poor, Main Street and Wall

Street live by the same rules. We don’t need a special master to

level the playing field; we just need to take the crony out of crony

capitalism so we can get back to the real thing.

Thank you very much.

[The prepared statement of Mr. Roberts follows:]

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Chairman TOWNS. Thank you very much.

Professor Black.

STATEMENT OF WILLIAM K. BLACK

Mr. BLACK. I join Russ in thanking you all for having us and

making this opportunity. I would certainly agree with him strongly

that what we have is crony capitalism, but it isn’t crony capitalism

that occurs simply because of bail-out. That is critical to understand. The same process occurred when creditors were wiped out,

when subordinated debt holders were wiped out, when shareholders were wiped out, it happened when there were absolutely no

bail-outs, Enron and WorldCom. All of these circumstances, it was

the same mechanism, executive compensation that drove those

frauds. It is what is produced, the crony capitalism.

You can stop the bail-outs, and I think you should, but you are

still going to have this problem unless you deal with pay. You have

to deal with not simply executive compensation, you have to deal

with compensation more broadly. Look what happened.

In the savings and loans crisis, there was an exhaustive investigation of what happened. The National Commission found that in

the typical, large failure, fraud was invariably present and that the

means of the fraud was accounting fraud and that the way you convert the firm assets to the benefit of the CEO is through modern

compensation mechanisms. You saw that in abundance with Enron

and WorldCom, the use of the rank and yank system to incent people to commit frauds.

In other words, we have known for at least 35 years how to do

incentives. It came, not from government, but from a very conservative libertarian, Michael Jensen who said, ‘‘We’re doing it all

wrong, we need to change compensation. We need to go to much

more aggressive performance-based pay,’’ and he set out how you

should do it.

What did Mr. Feinberg just report? That 35 years later, even

after these disastrous failures, they could not get it right, that they

designed systems and tried to run it past him which obviously further misaligned the interests of shareholders from those of the

managers.

We need to stop that system. That is the system that has caused

this crisis. Why did loan brokers bring in bad loans, consistently?

Because they were put on incentive systems based solely on volume

and not on quality. Why did appraisers get inflated? It is because

compensation created a Gresham’s dynamic in which bad ethics

drove good ethics out of the marketplace. There are really good

quantitative numbers on this.

Chairman TOWNS. Professor Black, we are going to have to interrupt you. We have to run to vote and we will be back 10 minutes

after the last vote.

[Recess.]

Chairman TOWNS. Let me apologize, Professor Black. We thought

we would be able to get your testimony finished, but we ran out

of time. You have to vote around here and if you don’t vote, you

constituents will talk about it. We talk about anger, that is the

same kind of anger we get with this compensation, if you don’t

vote, so we had to run over to make the vote.

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If you will continue, please?

Mr. BLACK. To resume, the critical thing to understand about accounting control fraud in connection with executive compensation

is that it is a sure thing. It is a very simple formula for how you

optimize. You grow really rapidly, you make very, very bad loans,

you have extreme leverage and you put in minimal loss reserves.

If you do those four things, you will produce, not just profits, but

record profits. Then you can use seemingly normal, corporate mechanisms of compensation to convert firm assets to your benefit as

the CEO. It is the perfect crime, if you do it without giving orders

to engage in the accounting fraud. You can give that order through

modern executive compensation.

I cannot send a memo at Fannie Mae that says to 10,000 employees, we want to commit accounting fraud, but I can do the same

thing with my compensation system. All I have to do is extend it,

not just to the top 100, these modern compensation systems go

much farther down in the organization, and you will get, as a relatively junior officer, an incredible increase in your income, and as

a more senior officer, even more. All you have to do is fudge the

numbers. Then all I have to do as the CEO is not care and pay you

a maximum bonus based on those fudged numbers.

The degree of this fudging is extraordinary. IndyMac losses on

Alt A, liars loans, are running roughly 80 percent it appears. OTS,

the Office of Thrift Supervision, reports overall, Alt A loans are

causing losses of 55 percent. Those are staggering numbers. The

FBI has publicly testified that it would be irresponsible to discuss

the current crisis without discussing the role of fraud in it.

So, no, compensation isn’t what directly causes the largest losses.

Compensation, incents you to make deliberately bad loans to grow

very rapidly to produce financial bubbles. That produces catastrophic losses and that is the system we have right now.

I don’t know where I am in terms of time. I think I have probably done 5 minutes and I will stop. I know the day is not young.

[The prepared statement of Mr. Black follows:]

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Chairman TOWNS. Thank you very much. Let me thank both of

you for your testimony. Again, I apologize for the break and the

interruption that we had.

Let me begin with you, Professor Black. Please explain the relationship between what you term accounting control fraud and excessive executive compensation.

Mr. BLACK. This exists both in the criminology literature and the

economics literature, and indeed, we work together on it. The most

famous piece is by the Nobel Prize winner, George Akerlof, and

Paul Romer, then at Berkeley, now at Stanford. They had an article in 1993 entitled, ‘‘Looting, Bankruptcy for Profit.’’ This is how

it works.

I gave you the optimization condition. You grow really rapidly,

make deliberately very bad loans, you have extreme leverage, you

don’t put on loss reserves. If you do those things, it must be the

case that you will record record earnings. That was true in the savings and loans crisis where Lincoln Savings and Vernons, the two

worst control frauds in America, recorded at different time periods

obviously that they were the most profitable savings and loans in

America.

By the way, as a footnote, this also screws up any econometric

analysis. It produces perverse results.

So, now we have record income. Directly, of course, under modern executive compensation which is extremely large and heavily

oriented toward short term accounting gains, this produces maximum bonuses. Frank Raines, in the context of Fannie Mae, when

he was still running it, was asked by Business Week, why do we

have all these frauds, referring to the Enron and WorldCom frauds,

and he said, it is because of modern executive compensation, that

when you put enough money in front of people, good people will do

bad things. The exact quotation is in my testimony, but that last

line is, I think, word for word.

Chairman TOWNS. Thank you, very much, Professor Black.

Professor Roberts, I understand your aversion to the bail-out, but

given the existing relationship between the government and the

seven largest bail-out firms, how would you address executive compensation issues until such time as the government has been repaid and able to get out of the companies?

Mr. ROBERTS. Special Master Feinberg, I thought, did a masterful job defending what he is doing in those seven firms. As he said,

he is helped by consultants, Lucian Bebchuk and Kevin Murphy,

two economists I have a lot of respect for, but unfortunately, there

is no way that they can successfully figure out the consequences of

their decisions. The mix of short term and long term pay, the special master talked about it as if it is a science. It is not a science;

it is really a wild guess. I think the real danger of his enterprise,

besides the violation of the rule of law, the arbitrariness, the nontransparency, the lack of accountability, the biggest problem is that

it distracts the American people. It makes them feel good; oh, we

are taking care of these seven firms, but it distracts people from

the real cause of the crisis and the real reason they were so over

compensated which is those government bail-outs.

I think we ought to be focusing on the incentives that those bailouts created for egregious executive pay and outrageous pay. I

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think if we do that, we have a chance of preventing it from happening again in the future. If we stick with this system of trying to

knock it down, ex post in an ad hoc way, I am worried we are going

to miss the real lesson.

Chairman TOWNS. You don’t think that through this process that

the folks on Wall Street would get the message?

Mr. ROBERTS. No, I don’t think they will actually. I don’t think

they will get the message at all. I think we have seven firms being

told that they have to behave; the rest of the firms are getting

away with it. Goldman Sachs and JP Morgan Chase and some of

the other members mentioned are making record profits. The reason they are making those record profits is, with my money as a

taxpayer, because of the incentives we created for them and their

expectation that they would get bailed out.

That expectation came true and they acted profligately and irresponsibly. I think the whole system needs to be fixed. The only way

to fix it is not from the top down with these ad hoc, arbitrary decisions, but rather, by taking away the very system that allowed

them to thrive which is the government rescue. That is what has

created the expectation and that created the current problem, and

it will create the next problem if we don’t fix it.

Chairman TOWNS. What else do you think we need to do?

Mr. ROBERTS. Well, politically, since there is a lot of anger on

Main Street, I would go after some folks over whom you have direct

legislative control. I think it is a good time to get rid of some corporate welfare; it is a good time to get rid of payments to millionaire agribusiness folks; it is a good time to get rid of the sugar

quota which makes ever American pay more for food, takes jobs out

of America into Canada where they don’t have such sugar quotas.

Politically, I think it is a great time to do some things that are

often hard to do. I would love to see Congress do that.

In terms of the financial crisis, I think we are going to have to

have recognition of the Government’s role and I hope the housing

market will change. I hope we have learned something about the

challenges and dangers of trying to create home ownership for

every American. That is not the American dream; it is the dream

of the National Association of Homebuilders and the National Association of Realtors. That has been a mistake. Fannie and Freddie

are going to cost us at least $100 billion. You budgeted $400 billion

and I am worried it is going to be more than that. The Federal Reserve holds $1 trillion or so of their loans, many of which will turn

out to be bad loans, so I am worried about where that is going.

I would like to see, if possible, Congress put some pressure on

the Fed to get out of that business, get out of the mortgage business which it is in now, have the Federal Government get out of

the mortgage business, but most importantly, we have to get out

of the banking business. I don’t want a banking system that is run

implicitly or explicitly by Washington. It is not going to work. It

is just going to create the next set of problems like the ones we are

in the middle of now.

Chairman TOWNS. We have to get our money back.

Mr. ROBERTS. I am worried about that too. I understand that

urge and politically, it is very important to get your money back,

but I hate to say this, it might be a mistake to get the money back.

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It could be that by propping up these organizations in desperation

to keep them going, we are going to cause other distortions, other

problems, other waste that we don’t see because we want our

money back.

The special master is worried about losing key personnel. Maybe

he ought to lose them. Maybe they ought to go do something else.

Maybe these organizations ought to go out of business and let some

other organization thrive. We are still funneling capital and scarce

resources into them.

We talked earlier about GMAC. GMAC wants another bail-out.

Maybe we ought to say, hey, enough. It is a mistake. We are not

going to get our money back. I am not going to keep throwing good

money after bad because that is the risk we are playing right now,

that we are going to continue to throw money at these folks. It is

what we are doing with Freddie and Fannie, it is what we are

doing with AIG. Maybe we ought to cut our losses and get out.

I understand the political pressure on you to get our money back,

but may be that is a bad risk. To be honest, the special master has

no incentive to care about whether that is a good decision or not.

He is tasked with trying to get the money back. Again, I understand the advantages of that politically, but economically and for

citizens as a whole, it may be a mistake.

Chairman TOWNS. My time has expired and I yield to the gentleman from California, Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

I will start with Professor Roberts. Ironically, the 1992 act felt

that executives were not linked to enough risk. In other words,

their pay was not at risk in those days and it was going up, so peoples’ compensation was less linked to performance. The law, particularly double taxing, was designed to minimize the growth in the

base pay and maximize the growth in risk win.

Can you comment on what we should do differently if we want

to see a change in that?

Mr. ROBERTS. Earlier I quoted Frederick Hayek, the Nobel Laureate, an economics economist, who talked about the purpose of economics to be to tell people that what they imagine they can design, they cannot really design. There is an inevitable tendency on

the part of Congress, and everyone wants to do this, to try to create

the perfect system as if it is like the engine of a car. We are going

to tweak the carburetor, add some more oxygen and gasoline and

a mix of this, and it is a bit of a fantasy to think that the wisest

people in the world could tinker and fine tune the mix of current

and future compensation to get the right level of risk taking, especially if in the background you have the feeling, and the expectation, and it turns out to be true, that if you mess up, someone is

going to rescue you and bail you out. Particularly the bail out of

lenders to those folks is what is really dangerous. That is what we

have done over and over again.

Mr. ISSA. Thank you for answering my question and describing

the Fed. That is what they do. They sit there saying, we can tinker

with the economy and there will be no recession, there will be no

inflation, everything will be perfect until it isn’t.

Professor Black, you talked about Franklin Raines. We have a

special regard for Franklin Raines here at the dais. What part of

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the catastrophe that the world felt do you put on Freddie and

Fannie taking on, knowingly, willingly and in fact, demanding to

take on, trillions of dollars of loans which had no underlying net

value? In other words, they had no equity, no skin in the game by

the individuals and thus, no skin in the game for the banks once

they got them onto Freddie and Fannie, or Countrywide.

We are talking executive compensation, you are complaining

about it, but in a sense, wasn’t a great deal of this growth in financial communities profit at the expense of the taxpayers from day

one because we were taking the risky investments deliberately

under the Federal balance book?

Mr. BLACK. No. It is actually a more complicated story.

Mr. ISSA. I appreciate the more complicated, but no deserves an

explanation. No, the GSEs did not take sub prime onto their books?

Mr. BLACK. Fannie and Freddie took less of it onto their books

than did purely private entities.

Mr. ISSA. Let us go through that. Freddie and Fannie took trillions onto the books, right?

Mr. BLACK. No.

Mr. ISSA. $1.9 trillion?

Mr. BLACK. Of sub prime?

Mr. ISSA. Of sub prime?

Mr. BLACK. No.

Mr. ISSA. What figure do you have?

Mr. BLACK. For sub prime, they have very little actually. Relatively speaking, they have relatively little sub prime. They have

much more of Alt A.

Mr. ISSA. You are talking about liars loans?

Mr. BLACK. You may be under the impression I am here to defend Fannie and Freddie. I assure you I am in a very different position.

Mr. ISSA. Let us go through it. If you take AIG’s FP division providing AAA rating for products that were sub prime, you take

Freddie and Fannie taking on sub prime and Alt A, you are right

about one thing, Alt A is the other name for that basket of loans

which did not have ordinary income ratios and equity.

The fact is the banks that took that and flipped did very well and

their executives deserved all that great pay because they managed

to make money with no risk if they got it off their books. Isn’t that

right?

Mr. BLACK. In general, no. In general, these things were sold

with recourse put backs.

Mr. ISSA. So you bought a credit default and then you wrap or

ensured the failure?

Mr. BLACK. Perhaps you did. We don’t know about the credit default swap market, you have to understand. That market is still almost completely opaque.

Mr. ISSA. Professor Roberts, perhaps you have more transparency

in this particular area if you don’t mind answering the same question?

Mr. ROBERTS. The question is, what about Fannie and Freddie’s

involvement?

Mr. ISSA. And Franklin Raines who was compensated incredibly

well.

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Mr. ROBERTS. Ninety million dollars over a 6-year period. He had

to give some of that back with an accounting fraud problem in

2004, but he did very well and those are the facts.

As you point out, sub prime is an elusive definition. The way it

should be defined is troubled loans which could be for many reasons. The most interesting statistic that I know of Fannie and

Freddie is that in 2007 at the beginning of the collapse when almost everyone started to realize this was going to have trouble, 23

percent of Fannie and Freddie’s home purchase loans that they

purchased, loans they purchased that were used to buy a house,

had less than 5 percent down. One in every four loans they were

buying had very little skin in the game. I think right those loans

are on the books of the Fed. I don’t think they are going to turn

out very well when they reset.

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

I would only note that Chairman Kucinich was actually holding

a hearing during that time in which those loans were still being

put on, showing the destruction that was happening in Cleveland

at the time and the foreclosure rate that was climbing.

Chairman TOWNS. Thank you very much.

I yield 5 minutes to the gentleman from Missouri, Mr. Clay.

Mr. CLAY. Thank you, Mr. Chairman.

I want to thank the witnesses for participating today.

Professor Black, you have stated that government regulation and

prosecution are the only solutions that can prevent an issue like

this from occurring again. We now see corporations going so far as

to sell derivatives on life insurance policies greatly increasing their

risk. One can easily see the slippery slope at work here. Corporations will risk more, assuming that taxpayer dollars will be used

to save them once again.

You have referred to the need for effective regulators. In your

view, what jurisdictional power would these regulators have?

Mr. BLACK. We should be regulating the financial lenders of

America. Not regulating the loan brokers and mortgage bankers

was a disastrous policy. My counterpart talked about how you can

screw up regulation. That is quite true. That is why we don’t do

it that way.

Let me tell you what we did and why it was so effective in dealing with non-sub prime crisis of 1991–1992. We didn’t try to adopt

perfect rules. We looked in the industry for their best practices. We

didn’t go al the way to the best practice. We said what do the prudent lenders do? We had rules that said, you have to act in accordance with prudent members of the industry. That worked phenomenally well. It stopped what would have been a sub prime crisis in

those years.

We deregulated and de-supervised after that point and thought

it was illegitimate, impossible to regulate. It isn’t, but you don’t do

it by creating every dot and jot. That is not the way good regulators do it.

Mr. CLAY. Professor Roberts, anything to add to that?

Mr. ROBERTS. Yes. There is always the hope that this time will

be different. When we find ourselves back in the same place, you

do start to think that maybe there is some fundamental mistake

we are making. I think there is a strong desire to see an improved

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regulatory system. We are going to get a different regulatory system, but the question is, is it going to be improved.

The challenge is that Fannie and Freddie, to take an example,

had their own regulator, OFAO which wasn’t distracted by anything. Why did OFAO stand by and watch Fannie and Freddie

make worse loans than they did before, increasingly risky loans,

loans without documentation, zero down payment loans, loans with

103 percent of the value of the house? Why did they sit and do that

and also stand by and catch accounting fraud way too late after it

had already been spiraling out of control?

The answer is, politics. The people involved in the regulation got

leaned on, partly by Congress, partly by Fannie and Freddie, as is

well known. They were got in a vice, Congress wants Fannie and

Freddie to be more active in getting loans to people who can’t otherwise get a loan. That is a wonderful idea. Can’t disagree with it.

Everybody likes it. Fannie and Freddie want to make a lot of

money, so they are all of a sudden pushing to take riskier loans.

Everybody is happy until the taxpayer foots the bill.

The fundamental question is, why is the next regulatory system

going to be insulated from that kind of political pressure. The answer is, it won’t be. I would suggest we look for a different mechanism. I would say again, as long as lenders and financial institutions think they will be bailed out of their mistake, this problem

will happen over and over and over again.

Mr. CLAY. You left out Treasury and Federal Reserve.

Mr. ROBERTS. In which part?

Mr. CLAY. As far as OFAO?

Mr. ROBERTS. They are also involved. They were also involved in

regulation, but I would even go further. We could go to Basel II

and Basel II’s role in trying to regulate investment banks. Think

about how great this was. Basel II said, we have to have stiffer

capital requirements to make sure that these investment banks are

sufficiently capitalized so that they will not go broke. We are going

to make sure they are AAA and we are going to give them more

leverage if they are backed by housing because we know housing

can’t go down.

That was a bit of an error that helped, not just create, but was

a huge factor in this because it gave banks an incentive to create

something that looked like AAA, which it was not, the toxic assets

which we are talking about.

Mr. CLAY. Going back to compensation, these regulations that

you speak of, should they apply to compensation for all corporate

employees or just executives? I would like to hear from both, Professor Black and Professor Roberts.

Mr. BLACK. You don’t want to make the cutoff the executives because they can define that in any way and get around anything.

I put a quotation in here, since we are talking about Fannie Mae.

I was an expert witness for the government against Frank Raines,

you do understand, on these issues in which the complete internal

audit system at Fannie Mae was destroyed by the compensation

system.

If you leave it to private structures, we know empirically what

they will do and that they have done for 35 years. They will systematically misalign the incentives to produce precisely this disasVerDate 11-MAY-2000 11:13 Feb 18, 2010 Jkt 000000 PO 00000 Frm 00230 Fmt 6633 Sfmt 6633 U:\DOCS\54553.TXT KATIE PsN: KATIE
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ter which, again, did not arise because of government bail-outs.

There were no government bail-outs of Enron or WorldCom. There

were no government bail-outs of Drexel Burnham Lambert which

was the big investment banking firm before this.

Under the theory we have heard, private market discipline

should have been very effective because there were no bail-outs. It

was completely ineffective. It was completely ineffective this time

again. If you rely on private market discipline, you will be back

here and the only question is whether it is 3 or 5 years from now,

with a bigger disaster on your hands.

Chairman TOWNS. Thank you very much. The gentleman’s time

has expired.

I now yield for 5 minutes to the gentlewoman from Ohio, Marcy

Kaptur.

Ms. KAPTUR. Thank you, Mr. Chairman.

Mr. Roberts, I am hearing you say that regulation was the problem. Am I simplifying too much your statement?

Mr. ROBERTS. Not so much regulation, but the anticipation of a

bail-out.

Ms. KAPTUR. Anticipation. Thank you.

If we go back to the 1980’s when the S&Ls were bailed out, that

was a big green light.

Mr. ROBERTS. Yes.

Ms. KAPTUR. And they went and did more and much worse and

now bailed out again.

Mr. ROBERTS. Yes.

Ms. KAPTUR. You heard the testimony this morning and, Mr.

Black, you did as well. I want each of you to react to the special

master’s statements about 2 and 4 year bonuses and stock opportunities and whether you think that time period will really work to

exert any restraint inside the system.

My big question to you really is, looking at the mess we have

now, what do we do as a country to put the wheels back on this

financial system? There are all kinds of proposals up here for consumer credit agencies, new powers for Treasury, systemic risk

councils and all of the rest. Cut through all of that. What do we

need to do to restore a banking system to prudence in this country

and to get our hands on the bank holding companies and all these

other contortionists that turn themselves into something every

time they get into trouble? What do we do? What would you advise

the President? What would you advise us?

Mr. ROBERTS. I would put away the checkbook. That would be

the first thing I would advise because I believe, contrary to Professor Black, although we agree on a lot. I agree that the availability

of that government checkbook is a huge driver of the irresponsibility that we have seen.

I totally agree with you about the 2 to 4 year thing; that is window dressing. That gives the illusion that it is long term. First of

all, 4 years is not long term. Second, 3 years into it, 4 years is not

long term. They are going to have an incentive and unfortunately,

it has happened in the past, to have the stock price go up and

down a lot because when it goes down a lot, then you get your options at a low price. When it goes up a lot, you exercise them. So

it takes a year and you only get a third of them, or 2 years you

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only get a third of them but still a bad incentive under the current

system.

One of the common things you hear is we need to recreate

securitization, get into the old model. People are scared of

securitization. They should be.

Ms. KAPTUR. I am scared of it. Look what it did to us.

Mr. ROBERTS. Right. People say we have to recreate Fannie and

Freddie. You know what the benefit of Fannie and Freddie was for

the person who took out a mortgage? It was a quarter of a percent.

That is dwarfed by the hundreds of billions of dollars that we as

taxpayers are going to be on the hook for. I want more transparency. Let us not try to recreate what we have but make it safer

which is a mirage and an illusion. Let us be cautious. We should

be cautious, we had a very bad experience.

My first lesson is, don’t try to recreate what we had before but

safer. That is an illusion. Second, don’t think you can arbitrarily

steer this and that like the 2 to 4 year thing and think, oh, we

have solved the problem because we have the right incentives.

Take away the checkbook so that people have to bear their losses.

My view is if we are back here in 5 years with the kind of crisis

that Professor Black is worried about, I will say good riddance. You

drove your company into the ground, too bad. We are not going to

bail you out. You lost your money, you took your chances. It is over

and people learn a lesson from it and it will improve.

The current system has no incentive for learning or improvement. It is a disaster.

Ms. KAPTUR. Mr. Black.

Mr. BLACK. I certainly agree that the bail-out is a disaster. I

think probably 98 percent of Americans believe that the bail-out is

a disaster. You are always going to hear from anyone who teaches

economics and teaches criminology you have to change the incentive structure. The incentive structure is broken. It will produce recurrent, intensifying crises. It produces perfect crimes under this

system. If you allow that to continue, the idea that we are going

to have a cleansing every 5 years of a global crisis, is not appealing

to me. We can do better and we have done better.

If you appoint people to run agencies who do not believe in regulating, of course you will have a disaster. There is an article by the

FHA/HUD person, very conservative, Hudson Institute, about

Fannie and Freddie who was in charge of monitoring the regulation

of Fannie and Freddie. What does he say? It had nothing to do

with incentives for housing. It is entirely driven by compensation

and profit. He is a very conservative gentleman in a position to

know.

The person running OFAO, I met with the Director as part of all

this. This is a conservative, partisan, Republican who hates regulation. OFAO had perfectly adequate regulatory powers to stop Frank

Raines and his successor, Mudd, who was every bit as bad from

doing what they did which is going to cost America $200-plus billion. They did nothing because they didn’t believe it was legitimate

to regulate. I met with these people—we can’t regulate a place.

How could we affect compensation? That is their decision. Maybe

if the losses have actually occurred, then maybe we could act.

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In the savings and loan crisis, because we recognized accounting

fraud, we targeted Lincoln Savings while it was reporting it was

the most profitable savings and loan in America. Can you imagine

how different that is than the modern world? You talk about putting up with pressure. Charles Keating wrote, ‘‘Get Black. Kill him

dead.’’ He hired private detectives twice to investigate me. He sued

me for $400 million in my individual capacity in a Bivens action.

He got a majority of this House to co-sponsor a resolution calling

on us not to go forward with re-regulation and got the Speaker of

the House, James Wright, Jr., to go after us. One of the proposed

charges of the Independent Ethics Counsel was the effort of James

Wright to fire William K. Black and we got five Senators who I

blew the whistle on, the Keating Five.

We took it and we re-regulated the industry and we stopped control frauds that were growing at an average of 50 percent a year

and would have produced a crisis of this magnitude if it had been

allowed to go on.

Yes, you are right. The leadership is vital and we have to have

a system in which we have real Civil Service and where we have

a real Justice Department. Your effort to get at least 1,000 additional FBI agents assigned to deal with these frauds is absolutely

critical. The Justice Department, in terms of prosecutors, needs

help as well.

We have to change the incentive structures. One way is through

deterrence, the whole theory of conservatives about how you deal

with crime, but another is to get rid of the perverse incentives that

now produce the perfect crimes.

Chairman TOWNS. The lady’s time has expired.

The gentleman from Maryland?

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

Following up on what you just said, Professor Black, the President of the United States calls you in tomorrow and asks the question I think Ms. Kaptur asked of Professor Roberts, what do I do

to fix this mess and no matter what I have to do, I am going to

do it, even if it is just one term because I don’t want to see my

country go through this again. What would you do, Professor

Black?

Mr. BLACK. Change your senior leaders of your effort because

they don’t believe in regulation. I mean Summers, and I mean

Geithner.

Mr. CUMMINGS. All right.

Mr. BLACK. Two, we have a series of actings running most of our

Federal agencies and to the extent we don’t, for example, Sheila

Bair at FDIC, trying to do things, we have Treasury fighting a war

against Sheila Bair. Stop that. Put the Brooksley Borns, the Sheila

Bairs, the Mike Patriarcas—a name you probably haven’t heard

of—in charge of these agencies.

Increase the FBI immediately. Increase the Justice Department.

Direct that the priority in these cases be against the large specialty

entities. The FBI currently has one-fifth as many agents working

this crisis as it had working the savings and loan crisis. In this crisis, the only question is how many orders of magnitude worse is

it than the savings and loan crisis. It is a farce. They are being

overrun.

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It is 21⁄2 years since the secondary market collapsed and there

has not been a single indictment, much less conviction of anyone

for the related loans. There are specialized actions on Bear Stearns

on insider trading mostly and false disclosures.

We need to do those things. We need to fix executive compensation and not just executive compensation. It is what is destroying

our system of appraisals. Is there anybody in America that doubts

that they can get a highly inflated appraisal?

Mr. CUMMINGS. Let me ask you this. I want to sit right where

you are. When I look at the Wall Street crowd, I believe there are

certain things that may be illegal, but I believe there are other

things that are not illegal but to me are unethical and wrong. I am

not sure where the line is drawn there.

To give you an example, the New York Times reported last Friday that many former Freddie Mac employees had signed non-disclosure or secrecy agreements as part of their severance package.

However, now both Freddie Mac and its Government Conservator,

the Federal Housing Finance Agency, are invoking those secrecy

agreements in class action securities litigation lawsuits against the

mortgage giant. Do you think such secrecy agreements are reasonable corporate tactics? While criminal investigations can penetrate

these agreements, civil securities litigation can be thwarted by the

silence of key departed decisionmakers. This seems to run counter

to your testimony on the defeating fraud control. I am just curious.

Mr. BLACK. I agree. I think that it is terrible public policy—those

things should be void as against public policy. I will give you an

example. After I gave one of my talks on control fraud, a gentleman

came up to me and said, I was the guy that hired the elite MBAs

for Exxon and it is true that we lost a number of folks originally

to Enron in those years, but you know what, I kept getting phone

calls a year later, 2 years later saying, is that job still open, this

is not a place I want to be.

This kind of executive compensation, when it rewards fraud,

think of what it creates as a culture. Whenever we talk business

ethics, it is incessantly tone at the top. When the tone at the top

is fraud, they create a culture of fraud. The folks at Enron were

not the smartest guys in the room, they were the least moral guys

left at the place after the best people had left.

By the way, the average CFO in America lasts 3 years. You can

talk all you want about long term perspective but until we change

that, it ain’t going to happen. That is one of the reasons why you

are going to have very high turnover at any of these places.

Mr. CUMMINGS. Let me ask you this. When we see Goldman

Sachs giving all this money in bonuses and whatever, let us say

the money didn’t go there, would it then go to shareholders? Should

shareholders be playing a bigger role? Do you follow? If you have

billions of dollars going out the door in bonuses, it seems to me

that money should be going somewhere and the logical place for it

to go would be shareholders.

Mr. BLACK. Well, it is worse than that. We, first, have gimmicked

the accounting rules at the behest of the industry. This is something where Congress has culpability, frankly, in my view. You put

pressure on FASB so that banks no longer have to recognize their

losses.

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Second, the quotation in my testimony from Standard & Poor’s

about how they never, ever looked at the quality of the loans, put

those two things together and we are paying bonuses based on purported profits that are accounting gimmick numbers. Why would

we allow bonuses until they clean up the accounting and find the

actual loan quality by reviewing a sample of the underlying loan

files which nobody is doing and which that farcical stress test

never even looked at.

Mr. CUMMINGS. Thank you, Mr. Chairman.

Chairman TOWNS. Thank you very much. Let me ask a couple

questions.

Professor Black, you stated in your written testimony, Americans

are not nearly as angry as they should be about executive compensation. If they knew more, they would be angrier. Could you

look into the camera and in one or two sentences, summarize what

more they need to know or what more they need to do?

Mr. BLACK. They need to know that it isn’t merely a populism

issue, that it is the key driver along with non-regulation that produced recurrent, intensifying crises and will do so again in the near

term unless we fix it. They are producing perfect crimes and people

will act on incentives, they will commit these perfect crimes.

The way you commit this perfect crime is to make huge amounts

of bad loans with extreme leverage. What does that produce? It

produces a bubble and it produces a crisis. It does so whether you

bail them out or not. You shouldn’t bail them out, we agree on that.

We agree that it makes the incentives work, we agree on that. It

is not a necessary condition.

Chairman TOWNS. Let us reverse positions for a moment. You

are now a Member of Congress. When they come to us and say this

particular company is too big to fail, what do we do then, when

they come and tell you that? It is too big to fail?

Mr. BLACK. That is nonsense. The idea that you could keep them

alive if it were true is worse than nonsense because they have just

defined these. In their lexicon, they want a good word, so they call

them systemically important, gold star. It sounds good. They are

systemically dangerous institutions. By definition, if a single one of

them fails, under Treasury’s logic, it causes a global economic crisis.

Why would we allow such entities to exist and then unhinge further any discipline and maximize moral hazard? It is like we were

trying to produce a bigger and badder disaster. We have closed

very large institutions in the past, we do it through receiverships.

We do a pass through receivership and the place closes on a Friday

and it opens on a Monday and the ATMs work most of the weekend. This is something that can be done. What is lacking is the

will.

Chairman TOWNS. Professor Roberts, do you want to add something to that?

Mr. ROBERTS. Yes. I want to tell a story. I was interviewing Alan

Meltzer for my weekly pod cast, econ talk, and he mentioned the

power of FDICIA, the FDIC Improvement Act, and he told me how

it could have been used to help this transition. It would let some

people go out of business, some would have and some wouldn’t

have. I said why didn’t anyone suggest that to the Treasury? He

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said, I told Secretary Paulson that we should use FIDICIA and he

said, well, I asked the bankers and they were against it. I guess

they would be.

It really is a question of will and the challenge is, as you say,

too big to fail. Guess who thinks they are too big to fail, the people

whose money they want to get back, and it is up to politicians and

policymakers, it is up to Bernanke, Paulson and Geithner to say

no.

Bear Stearns is a perfect example. In March 2008, Bear Stearns

was insolvent, there was a worry it was going to have systemic

risk. It is an interesting question of whether it would or would not.

I don’t know but when we decided to bail them out, Lehman Brothers which had a very similar balance sheet, decided to double

down. They borrowed more money because I think they thought

they were going to be bailed out.

One of their largest lenders was a money market fund which is

supposed to be extremely conservative. Reserve Primary, actually

the very first money market fund, was lending money to Lehman

Brothers to finance their mortgage-backed securities. Why would

they do that? I suggest it is because they probably thought they

would get baild out.

They weren’t, as it turned out, the only one, and we have drawn

the lesson that was our mistake that we didn’t bail them out. I

think our big mistake was bailing out Bear Stearns. By the way,

even when we did not bail out Lehman Brothers, the stock market

didn’t tank for a week. Everyone said that was the crisis, that was

when it started. It actually may have been when Secretary Paulson

came up here and said, if you don’t give me a blank check $700

billion, the world is going to hell in a hand basket, we are going

to have an apocalypse. The whole economy of the world is going to

be dissolved. That kind of scare talk I think had a big effect. John

Taylor from Stanford has written about this and how it affected

how people behave. I think we have made some terrible mistakes

in not having the will to say no.

Mr. BLACK. Can I add it is not even a matter of deciding to use

FIDICIA, the Prompt Corrective Action Law was passed after the

savings and loan crisis in the belief that excessive regulatory forbearance had helped cause the crisis. The act, in general, is mandatory, particularly for deeply insolvent places but it has a terrible

weakness we told people about back when they were considering it.

It can be gamed by accounting and it is gamed by accounting. That

is why these places aren’t closed. You actually tried to mandate it.

Chairman TOWNS. I now yield 5 minutes to the gentleman from

California.

Mr. ISSA. Thank you, Mr. Chairman.

This is a sort of an anecdotal question. Do either one of you believe for a moment that the executives who took their deferred

compensation that had become due—in other words, their accrued

contracts before Mr. Feinberg took over and rolled them into future

stock appreciation plans, meaning they rolled that many dollars

into a plan that would mature in 3 to 5 years that would essentially execute at the price of the stock—believe, for example, at

BofA that was not simply people saying am I better off taking my

money here or better off taking it here, realizing that the top 25

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at Bank of America, I assume, are the most knowledgeable, best

negotiators and smartest bankers on the planet, notwithstanding

the crisis?

Remember, all bankers on the planet don’t look as smart as they

used to, but do either of you doubt for a moment that when we

went to negotiate that part, we basically were negotiating an if it

is better for you, you will roll it over and if it isn’t, you will do

something else situation, the idea that we would negotiate out existing contracts? It is sort of a comment on the quality of those people that we gave a deal.

Mr. ROBERTS. I was deeply inspired by the special master’s comments about his respect for the Constitution. They were then followed by remarks where he said, if they didn’t voluntarily agree,

we would make them. I think it is a very bad situation when the

power of a single individual with no appeal and very little transparency was relying on the Wall Street Journal, unfortunately, to

find out what was really going on. We will find out in more detail

how accurate that is, I assume. He disputes it naturally, but I

think it is a very bad situation.

I am very sympathetic to Chairman Towns’ point of what alternative do these folks have? The standard view is, they are the best

people in the business, they have lots of alternatives. The alternatives are a lot smaller, there are fewer than there used to be, so

I think a lot of these folks were maybe doing the best they could.

They certainly did the best they could for themselves. There is political pressure on the special master from them, lobbying him to

do what is good for them.

Mr. ISSA. I agree.

I wanted to continue the line you were already on, Professor

Black. That was that our bail-out was inherently the wrong statement. In other words, we put in new money as basically subordinated money. We are a preferred stock and preferred stock comes

after all debt.

Do either of you doubt for a moment as a practical matter that

the world would have been different had we told the creditors and

stockholders of these entities that we would come in only if we

came in as senior debt? In other words, we will come in, we will

provide x-amount but you will subordinate your existing debt in

order for us to keep your companies alive. Wouldn’t that have

changed the dynamics dramatically of where we would be, which

would be in the first position, what their interest would be to get

us out so that their other lenders and stockholders would have a

value again?

I realize there are some regulatory questions at FDIC about how

you legitimize that as equity, not debt, but we had the power to

call it whatever we wanted. We called it equity so that we could

say that their capital position was improved. Bill Isaac and other

people who gave us lots of alternatives felt that we ignored every

one except the one we took and the one we took was the one that

froze the markets when Secretary Paulson said you have to do it

now, it is a crisis, we can’t go the weekend.

Would either of you comment on that alternative from a purely

incentive basis to cause their interests to be aligned with ours?

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Mr. BLACK. I said not very nice things about Geithner and Summers. Let me add Paulson to the list as well.

Mr. ISSA. They are all going to have to write their own books.

Mr. BLACK. I would not want him negotiating on my behalf if I

was the United States of America. I don’t believe that is how he

acted when he was at Goldman. I think he was a very unfaithful

agent to the interests of the American people.

Mr. ISSA. Professor Black, I am going to followup on that. Earlier, I talked about the fact that Secretary Geithner’s operation,

maybe not him but his operation at the New York Fed took an opportunity to negotiate credit defaults at some amount—probably 60

cents on the dollar, maybe less, they were certainly worth less at

that point—and put on 100 cents on the dollar. Do you believe the

New York Fed acted in the best interest of the American people

when they paid out 100 cents on the dollar with our tax dollars?

Mr. BLACK. No. I think they acted completely contrary to the interest of the American people. More than that, why were we baling

out AIG anyway?

Mr. ISSA. Or at least the British division.

Mr. BLACK. AIG was never federally insured. I am a signatory

with a number of folks, including some very conservative folks,

about what we propose should have been done at AIG which is a

separate bankruptcy for the trading arm. These two things you put

together for a reason.

In both cases, even if we were going to do a bail-out, which we

shouldn’t have, we did it in a way that was incredibly harmful to

the American people and so obviously harmful that an experienced

Goldman Sachs executive would never do that accidentally.

Mr. ISSA. Or several of them.

Professor Roberts.

Mr. ROBERTS. I think the key point is the idea that you would

only pay 50, 60 or 80 cents on the dollar, any of those would have

been better than the complete bail-out of creditors because creditors are the people who restrain risk taking. The creditor only

cares about one thing, down side. They want to make sure that the

organization stays solvent. Stockholders get the up side benefit.

By taking the skin out of the game for creditors, which is what

we have consistently done with these bail-outs and the bail-outs

starting in 1984, Continental of Illinois basically says to creditors,

lend money, you will get it back in the first case scenario. That is

a disaster.

The story you are talking about, which was reported by

Bloomberg, that when Tim Geithner was head of the New York

Fed, he interrupted a negotiation where they were only going to

pay 60 cents on the dollar and said, we will pay the whole thing,

it is terrifying.

If a Martian came down and said, what is the U.S. financial system designed to do, I am afraid they would say, it is designed to

funnel money to Goldman Sachs. That may not be true, but the

fact that it looks to be true is not a healthy thing for a democracy.

Mr. ISSA. No, not at all.

Mr. BLACK. And in the most opaque way possible.

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Mr. ISSA. On that note, Mr. Chairman, we continue on a bipartisan basis, to want to audit the Fed, so perhaps that could be one

of the things we glean from it.

Mr. Chairman, in closing, I just want to say that I think today’s

hearing has created an opportunity for us to revisit how we would

effectively look at Freddie and Fannie, and our friend, Franklin

Raines, and their participation in the disaster that befell America.

I would ask that we do some background discovery in preparation

for a hearing where we could work together to find a common way

to figure out what their role was and how to prevent it since the

GSEs are here, at least for the time being.

I yield back.

Chairman TOWNS. I understand your concerns and these are

things we can look at as we move forward but also remember that

we are running out of time in terms of this session.

Is there anyone of this side seeking to be recognized before I recognize Mr. Burton? Yes, Congresswoman Kaptur.

Ms. KAPTUR. Thank you, Mr. Chairman.

When I think back to last fall, Mr. Paulson used the tactic of fear

that intimidated the Congress, in my opinion, and many people in

the country. The argument that was used was, if we don’t do this,

TARP and the bail-out, the country would be worse off for it.

I keep looking back at what has happened and I am thinking

what could be worse in a district like mine with over 13 percent

unemployment, foreclosures up by 94 percent, no credit being lent

because the supervisory fees and the FDIC fees being paid by the

banks that didn’t do anything wrong have gone up 20 times. Credit

unions are being asked to pay these exorbitant additional fees.

They ground credit to a halt. I am thinking what could be worse

than what has been done.

You are saying that if we had resolved this in a different way,

perhaps the American people would have taken some nicks, but I

am saying to myself, didn’t they do it in the worst way. My question to you is how do you react to their argument today if we hadn’t

done that, it would be worse?

Mr. ROBERTS. That is always the argument. They can always

come back with that. The first question is, were they right and the

second question is, did they actually make it better, can we point

to things they did to make it better?

The thing I think that is often forgotten is the connection between Wall Street and Main Street. The claim is if we hadn’t saved

these organizations, these financial giants, the turmoil would have

spilled over into Main Street and the average American would have

paid a fierce price.

As you point out, they paid a fierce price anyway. We have unemployment on the rise headed toward double digits. Contrary to

all the economists who think they can see the future, I want to let

you know they can’t. They don’t know whether it is going to get

better or not, we don’t know if we are on the mend.

I would suggest the single biggest mistake we have made, whether it was for the right or the wrong reasons, whether you are cynical or whether you are an idealist, the biggest mistake we have

made is that we have created an incredible environment of uncertainty about the future for both policy, compensation, who is runVerDate 11-MAY-2000 11:13 Feb 18, 2010 Jkt 000000 PO 00000 Frm 00239 Fmt 6633 Sfmt 6633 U:\DOCS\54553.TXT KATIE PsN: KATIE
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ning the auto industry, what is health care going to be, what about

the environment. We have all this great stuff we are trying to do,

but no matter whether it is good or not, whether you agree with

this piece or that piece, the fundamental situation is that for the

average American businessperson who has to take risks with their

own money on the line outside of Wall Street, there is still this

thing that if you go out of business, you lose all your money.

The biggest problem right now is that for small business and any

business that is not on Wall Street, they are scared and rightly so.

Ms. KAPTUR. Do you know what they are doing, Mr. Roberts?

They are now talking about going after the small business sector

and securitizing any loans made to them. They are trying to vacuum what is left in the country of equity again.

Mr. ROBERTS. It is a mistake. My point is that because of the uncertainty about what is coming down the road, in a desperate attempt to give people ad hoc power to fix, as a result we have created an atmosphere where people don’t know what the rules of the

game are, they can’t plan for the future. Everybody is waiting to

see maybe I will get mine, maybe I will get a bail-out, maybe I will

get a tax increase. Everybody is sitting on the sidelines waiting.

Until that gets fixed, I would suggest that Main Street will not

recover. All the stimulus money in the world, all the new improved

this and that, until we get people confident about the future, we

are not going to make progress.

Ms. KAPTUR. Mr. Black and Mr. Roberts, one effort that you

might put in the area of game theory, if they had put you two in

charge, even though you have different points of view on some

things, you have come together on others and it would be very interesting for me and perhaps other Members, going back to September, involving others in our country. You mentioned Mr.

Patriarca. I happen to think a lot of Mr. William Isaac who resolved a lot of institutions back in the 1980’s. Put some of those

minds in the room and say, if you could unwind what was done and

you could start from scratch, what would you have done, just in the

form of game theory, to resolve these big ones.

I will tell you what is being said to us. Well, Congresswoman,

you don’t really understand because you never really understood

credit default swaps and collateralized debt obligations. Because

those were involved, we couldn’t resolve the institutions and take

them into receivership as we normally would with the FDIC. You

get all this flak.

Mr. BLACK. The truth is they didn’t know. The truth is this was

an entire marketplace built on don’t ask, don’t tell where no one,

and I mean no one, looked at the underlying loan files until Fitch

does in November 2007 because the secondary markets tanked and

they are not going to lose any business. Then they say the results

were disconcerting, that there was the appearance of fraud in nearly every file. You could see it on the face of the files. So they don’t

want to look because what they are going to see in that box is a

bad thing, not a good thing. Let us put the burden on them. Make

them make the case publicly with full disclosure exactly why they

made these decisions, what decisions they made and when they

made them, and who made them.

Chairman TOWNS. The gentlelady’s time has expired.

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I now yield to the gentleman from Indiana, the former Chair of

this committee, Mr. Burton.

Mr. BURTON. That is my picture up there. Do you think I look

like that?

Chairman TOWNS. Your high school picture.

Mr. BURTON. Thank you, Mr. Chairman. I apologize for not getting back quicker. We had two Foreign Affairs meetings and I

couldn’t get back.

Do you think the pay czar is constitutionally permissible? What

do you believe the implications are for giving somebody this kind

of authority, a czar like this, either of you?

Mr. BLACK. I think it probably will pass a constitutional test,

particularly with this Supreme Court. I don’t know there will even

be a challenge to it on a timely basis. I think everybody agrees it

is not the right way and it is not even a theory of 2nd best—maybe

it is somewhere like 12th best—on the way to approach these

things.

The best way was not to do nothing in the sense of allowing the

incentives to remain perverse. If you are going to close the places,

of course that takes care of the perverse incentive.

Mr. BURTON. What do you think about the approach that he has

taken by reducing compensation for these people say guys making

$12, $13 million, including bonuses, and he says, we are going to

cut your salary to $450,000 and will give the rest to you in stock

as time goes by? What do you think that does to the competent people who run these companies? What do you think is going to happen or what is happen? I think Bank of America has lost half of

their people, their top management people.

Mr. BLACK. As I said, senior officers in America have incredibly

short tenures without this program. CFOs average 3 years, so you

are going to get huge turnovers at these places and turnover is particularly high on Wall Street because all of these guys have zero

loyalty to the organization. They are always in play.

Mr. BURTON. So you don’t think this would increase the likelihood that they would leave faster?

Mr. BLACK. I think it will increase the likelihood of some people.

In economics, we think about things on the margin. On the margin,

it has to do that but that is inevitable whenever you go to performance pay.

Mr. BURTON. I would disagree with you. I think if I were a person who had that kind of salary commitment and they said they

were going to cut it to $450,000 a year, I would say, I think I will

go out on the street, take my $13 million and see if I can’t get a

job with the same kind of compensation. What do you think about

that, Professor?

Mr. ROBERTS. Some of them, maybe they can’t which means you

are stuck with whoever you have but as you say, I think a lot of

them left because they saw the handwriting on the wall and knew

they could do better somewhere else and they are gone. Again, I

want to emphasize it is clear we want to try to get back that

money. Obviously the taxpayer would rather have more money

than less money. The idea that we are going to pour money into

AIG or into Bank of America or into City Group with the idea that

we have to get our money, maybe they ought to disappear.

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Mr. BURTON. What does that do to the management people who

may have the talent and know-how to help get a company out of

this kind of mess and they leave and you go to second or third tier

executives?

Mr. ROBERTS. And you are counting on them looking forward to

getting that stock bonus down the road in 2, 3 or 4 years. What

is their optimism about that if they know the best people are gone?

It is really not a good system.

Mr. BURTON. I just think the taxpayers who are the stockholders

ought to be very concerned about having top notch people in these

executive positions to try to get some of their money back.

I have a couple more quick questions. The Fed has indicated that

they may start talking about expanding the salary conditions on all

banks. What do you think about that, what do you think the possibility is?

Mr. ROBERTS. Everybody likes more power, except for the special

master. He said he didn’t want any more, he is happy with seven.

Mr. BURTON. I know he said that.

Mr. ROBERTS. That is what he said but the Fed, I am sure, would

grow and survive. I think as I said before, that is the wrong way

to fix the problem. The wrong way to fix the problem is to say, you

are out of control, you take too much risk, so I am going to take

away some of your goodies so that you behave better in the future.

It is not good for our financial systems, it is not good for our capital

system or investment. It is not good for productivity and innovation.

As Professor Black said, a lot of people went out and took loans

that they didn’t investigate. Why would they do that? The answer

was because they had the incentive to do that, but we have to keep

our eye on the prize that they were financing those lousy investments with borrowed money, money from the other players in the

game. Why would people lend folks money for lousy, risky loans?

The answer is, because they thought they were going to get the

money back.

If we solve that problem, we don’t have to have this top down,

micromanaging of salaries. Forget whether it is possible, the political implications of it are extremely destructive.

Mr. BURTON. I have two more quick questions and then I will let

the chairman adjourn the meeting if he so chooses.

Do you think Freddie Mac and Fannie Mae should have the same

kind of salary restructuring done on them?

Mr. ROBERTS. I think it is shocking that they don’t. They put us

$100 billion in the red so far and I think it is on the way to maybe

$200–$400 million. We don’t really know and I think if you do

audit the Fed, I would really like you to look at those mortgages

they are holding because they are not market to market.

Mr. BURTON. The thing that bothers me is that we have done

this to these executives and they were responsible, at least in part,

for this, but Freddie Mac and Fannie Mae haven’t done anything

about that.

The last thing I would like to ask, can you compare the crisis we

face now with the financial institutions to what happened in the

S&L crisis back in the last 1980’s?

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Mr. BLACK. The crisis is vastly larger. It was a much easier crisis

to stop; this was far more obvious. There was almost complete destruction of regulation this decade. It started in the decade before.

Mr. ROBERTS. I see it as a spillover of the same mistaken attempts for a free lunch. Everybody wants a free lunch. I want a

very high return investment but no risk, of course. I want it safe

and an extremely high rate of interest. That desire of the American

people, of every human being, for that kind of free lunch should not

be indulged.

Mr. BURTON. They handled the S&L crisis much differently than

they did this one.

Mr. ROBERTS. That is correct.

Mr. BURTON. And it worked out.

Mr. ROBERTS. Unfortunately, the roots of it are the same, an attempt to tell people there is no risk. You put in your deposits, don’t

worry about it. It is all taken care of. The government guarantees

it. That government guarantee explicit there, implicit with Fannie

and Freddie, implicit with the investment banks, is the fundamental source of the problem. It is a desire to deliver politically a free

lunch. You will make your money but no risk of loss.

We ought to be treated like grown-ups. I would like to be treated

like a grown up. I take my risk, I profit if I make a good choice,

I am prudent. I make a bad choice, I lose my money. That is what

capitalism is about and we have lost and have to get it back.

Chairman TOWNS. Thank you very much. The gentleman’s time

has expired.

I yield to the gentleman from Maryland, Mr. Cummings.

Mr. CUMMINGS. Thank you very much.

Earlier, I asked Mr. Feinberg where are we going from here. It

was his hope that if he controlled the compensation for the seven

companies, that they might follow by example. I told him that I

just don’t see that happening. I wish it would.

I am just wondering as I listened to you talk about what you

might do, it is hard for me to see some of those things happening.

What do you foresee? Let us be realistic. Let us assume the things

you talked about don’t happen. Mr. Black, Geithner is not going

anywhere. I am just telling you that—probably not. I am not trying

to take away from what you have said, so what do you foresee?

Mr. BLACK. First, our motto was it is not necessary to hope in

order to persevere. I would say the circumstances were vastly

worse in the savings and loans crisis in terms of the correlation of

political forces.

President Reagan’s Justice Department threatened to indict the

chairman of our agency criminally for re-regulating the industry

under the Anti-Deficiency Act under the argument that we were

closing too many insolvent institutions. That was the world that we

lived in, so I don’t give up.

I know these things seem improbable, I know the forces opposing

us seem unbeatable, but America has not been characterized by

crony capitalism and it is up to us to keep it from going that route.

If we give up and aim real low in terms of reforms, that is exactly

what we will get because the master is frankly wrong on that point

you asked about.

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Some well run corporations may listen to him. That is not where

the problem is. The problem is in the majority of corporations, that

is what the statistics show, that they deliberately and egregiously

misalign the interests through their compensation system. They

will not listen to the Master, they will continue to produce further

crises whether or not we bail out the institutions.

Mr. CUMMINGS. Professor Roberts.

Mr. ROBERTS. On an optimistic note, whether most corporations

or some corporations adopt the idea of incentivizing long term incentives through stockholdings, many corporations already do that.

Of course some are flawed, some make mistakes, but most of them

don’t come to Washington with their hand out. That is a problem

right now of the auto industry because of their special political pull

and the financial sector through an even more special political pull,

their long term relationship with Washington. That is what has to

be stopped.

On the optimistic side, true, Mr. Geithner is not going anywhere

but you here in Congress want to stay in office, you are going to

listen to the American people. If the American people say, we had

to have these rescues, we have to recreate what we had before and

make sure we stay as before, you are right, nothing is going to

change.

If they say, which I think they are increasingly saying, we want

to stop giving money to really rich people and the right way to fix

that is not to take it away at the last minute from seven of them

but to destroy the incentives that allow them to take it in the first

place, then I think we have a chance to really fix the problem.

It is not going to be easy. As Professor Black said, it is a long

road. We all, I hope, have something to contribute, some of us a

very small bit, some of you a lot larger, but it is not a force of nature. It is a matter of will and that will be bolstered by the American peoples’ outrage not just at the fact that people make a lot of

money, but the way they made it, through taking risks with money

that was borrowed on the presumption that it would be paid back

by the taxpayer.

That is corrupt. That is the crony capitalism we have to stop and

it is in your hands. The next time the Congress as a whole confirms a candidate for the Chair of the Fed or Secretary of the

Treasury, I would like you to have him make a commitment—they

may not keep it—that they will not return money dollar for dollar

to lenders who make bad risks and finance bad bets.

Ask them to commit to 50 cents on the dollar. Ask them to commit to encouraging losses. They may not keep that promise but

that is where it starts, people putting at least their reputation on

the line. I think there is hope there.

Mr. CUMMINGS. We see people being thrown out of their homes

because of foreclosure. The Washington Post just had an article

saying how in some instances it has doubled over last year and

then you see people losing their jobs and what have you. Are you

surprised there is not more of a balance here? In other words, we

hear about spending $180 billion for AIG but we have people in our

district that it would probably take, at best, $10,000 and they could

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stand it, it makes no sense. I think that adds insult to injury, the

loss of jobs, savings, etc.

Mr. BLACK. That is why crony capitalism destroys democracies

over time as well, corrupts them. People understand after a while

that it isn’t what they do, it is who they know.

One of the things that is unusual about America in polls is how

few Americans have that view compared to other places. It is a real

productive process not to have that view, to believe that merit really is something important. It is perfectly rational, as people see

more and more cases of the rich getting bailed out, to say no, it

is mostly a matter of who you know. It is a sick system and people

start withdrawing from that system. Nations and even societies

break down when it happens.

Mr. CUMMINGS. Thank you, Mr. Chairman.

Chairman TOWNS. Thank you very much.

Let me thank the gentleman from Maryland, his time has expired.

Let me begin by thanking all the witnesses, Mr. Feinberg, you,

Professor Black, and Professor Roberts.

Let me thank the Members on both sides of aisle who attended

the hearing. The American people are angry. They are angry that

while millions of hardworking Americans are losing their homes,

their life savings, that bank executives are rewarding themselves

for failure.

The idea that hundreds of thousands of dollars in salary, plus

millions of dollars in stock options, is not enough for the executives,

bailed out by the American people, is exactly the type of thinking

that got us into this financial crisis in the first place.

We need to link bank executive compensation to performance. I

have never seen or heard of people that fail getting a bonus. Of

course the answer is that if we do not give them a bonus after they

have failed, they might leave. I think that you should say goodbye.

That is exactly what the special master and Obama administration

have done. Without this crucial link, we will continue to have perverse incentives for bank executives to take unjustified risks with

taxpayers’ money. This is unwise and unacceptable and must be

stopped.

Again, let me thank you, the witnesses, for being here and thank

the Members for attending.

The committee is now adjourned.

[Whereupon, at 3:17 p.m., the committee was adjourned.]

[The prepared statements of Hon. Dennis J. Kucinich, Hon. Gerald E. Connolly, Hon. Dan Burton, and additional information submitted for the hearing record follow:]

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Æ