In this context, it bears exploring what a broke sovereign looks and behaves like. Of course, there are many such examples to choose from, but not just any destitute sovereign will do. To make the proper analysis one must explore the antics of a sovereign with worldwide military and political reach. A sovereign heretofore known to be possessed of one of the highest standards of living in the world. A sovereign with the unparalleled ability to make and export its version of law and justice. A sovereign recently given to bequeathing to its subjects a far ranging program of largess. And, both finally and most importantly, a sovereign that the world cannot quite imagine being without- this last part having a critical and amplifying effect on the final, desperate efforts to stave off extinction. Of course, there could be no better example than late period Imperial Rome. To wit:
Most emperors continued the policies of debasement and increasingly heavy taxes, levied mainly on the wealthy. The war against wealth was not simply due to purely fiscal requirements, but was also part of a conscious policy of exterminating the Senatorial class, which had ruled Rome since ancient times, in order to eliminate any potential rivals to the emperor. Increasingly, emperors came to believe that the army was the sole source of power and they concentrated their efforts on sustaining the army at all cost.
As the private wealth of the Empire was gradually confiscated or taxed away, driven away or hidden, economic growth slowed to a virtual standstill. Moreover, once the wealthy were no longer able to pay the state’s bills, the burden inexorably fell onto the lower classes, so that average people suffered as well from the deteriorating economic conditions. In Rostovtzef's words, “The heavier the pressure of the state on the upper classes, the more intolerable became the condition of the lower”.5
By 215 AD military spending had been the largest chunk of the Empire's annual budget for at least seven decades at something like 77% of the 1.6 billion sesterces the Empire was costing to run year in and year out.6 Compare this to the United States' spending on Defense and "International Security Assistance" (about 20% of the $3.6 billion in spending in the United States in 2011) and it becomes clear that foreign adventures aren't the major Imperial priority for the United States that they are often taken for.7 But these differences are hardly as dramatic as they first appear. After all, while it seems certain that Bartlett is correct in observing:
Increasingly, emperors came to believe that the army was the sole source of power and they concentrated their efforts on sustaining the army at all cost.
...the United States must also sate at all costs an army of sorts that presently appears to be the sole source of power (and a potent source of danger) for elected officials. Of course, here finem respice refers to the legions of recipients of federal largess.
Federal spending on social security, medicare, medicaid, the children's health insurance fund, various "safety net programs," and benefits for federal retirees and veterans summed up to some 61% of the total in 2011. In addition, the United States has to deal with something the Emperors did not. Interest on the debt constituted about 6% of the total budget in 2011. Suddenly, Rome's supermajority spending on her military seems less and less like a distinguishing feature- particularly where either constituency could easily be said to have the power to depose the Empire's Chief Executive.
At this point, in the third century A.D., the money economy completely broke down. Yet the military demands of the state remained high. Rome’s borders were under continual pressure from Germanic tribes in the North and from the Persians in the East. Moreover, it was now explicitly understood by everyone that the emperor’s power and position depended entirely on the support of the army. Thus, the army’s needs required satisfaction above all else, regardless of the consequences to the private economy.
With the collapse of the money economy, the normal system of taxation also broke down. This forced the state to directly appropriate whatever resources it needed wherever they could be found. Food and cattle, for example, were requisitioned directly from farmers. Other producers were similarly liable for whatever the army might need. The result, of course, was chaos, dubbed “permanent terrorism” by Rostovtzeff. Eventually, the state was forced to compel individuals to continue working and producing.
The result was a system in which individuals were forced to work at their given place of employment and remain in the same occupation, with little freedom to move or change jobs. Farmers were tied to the land, as were their children, and similar demands were made on all other workers, producers, and artisans as well. Even soldiers were required to remain soldiers for life, and their sons compelled to follow them. The remaining members of the upper classes were pressed into providing municipal services, such as tax collection, without pay. And should tax collections fall short of the state’s demands, they were required to make up the difference themselves. This led to further efforts to hide whatever wealth remained in the Empire, especially among those who still found ways of becoming rich. Ordinarily, they would have celebrated their new-found wealth; now they made every effort to appear as poor as everyone else, lest they become responsible for providing municipal services out of their own pocket.8
This seems an appropriate moment to bring up the question of Starr International's (that being Maurice R. "Hank" Greenberg's entity) now notorious and frequently derided suit against the United States.
To say that the United States used the justification of "systemic risk" (and finem respice has never seen a robust attempt to define this particular and critically important term of art) to seize AIG, short circuit the bankruptcy process, pour public capital into the firm, and then use it to bail out other financial institutions (many outside of the United States) might even be a charitable description of the events of September 2008 and since. But thereafter lies the rub:
But the government never received the approval of AIG's owners. The government first delayed a shareholder vote, then held one and lost it in 2009, and then ignored the results and allowed itself to vote as if the common shareholders had approved the deal.
In 2011 Mr. Greenberg's Starr International, a major AIG shareholder, filed a class-action suit in the U.S. Court of Federal Claims in Washington alleging a violation of its Constitutional rights. Specifically, Starr cites the Fifth Amendment, which holds that private property shall not "be taken for public use, without just compensation." The original rescue loans from the government required AIG to pay a 14.5% interest rate and were fully secured by AIG assets. So when the government also demanded control of 79.9% of AIG's equity, where was the compensation?9
The Government's taking of an approximately 80% equity stake in AIG, and ultimately the complete control over AIG that the Government sought, depended on the authorization of additional shares of AIG's common stock. This is so because there was no sufficient common stock authorized under AIG's Charter to transfer the nearly 80% equity stake that the Government intended to take.
The Government fully understood that in order to implement its proposed takeover of AIG and the rights of the Common Stock shareholders, the clear legal rights of existing Common Stock shareholders required that they be entitled to an independent vote to decide whether their Company should increase the number of authorized common shares sufficiently to enable the Government to obtain the nearly 80% interest in the issued and outstanding common stock that the Government sought. Indeed, in a Delaware Court of Chancery proceeding considering the Government's action, AIG expressly represented that this vote would take place.
As set forth in more detail below, not only did the Common Stock shareholders of AIG not agree to the proposed taking of their property ad rights through an amendment of the Charter of their Company, but when the Common Stock shareholders voted to reject the increase in authorized shares, the Government deliberately ignored and evaded that vote.10
Despite AIG's diverse holdings, with assets more than sufficient to meet AIG's obligations to its counterparties, many of AIG's assets were relatively illiquid and would have been difficult to sell quickly, or to sell quickly at prices reflecting their value. AIG's liquidity was also being pressured because of the impact of the crisis on its securities lending program.
Although AIG posted substantial amounts of collateral in or around the summer of 2008 - approximately $14.8 billion in total - AIG did not have liquid assets sufficient to cover these increasing collateral calls. As a result, AIG faced a liquidity squeeze in or around July 2008 and continuing into September 2008.11
The suit goes on to describe the Government's granting access to the discount window, loans and loan guarantees to many other firms, including foreign firms like Dexia, Bank of Scotland, Depfa Bank, and even Arab Banking Corp. (which was at the time partially owned by the Libyan Central Bank) on reasonable terms. It also points out that another insurance firm, The Hartford Financial Service Group, Inc., was permitted to buy a small local bank for $10 million to gain access to TARP funds.12
Of course, none of these firms were required to cede control over to or issue equity to facilitate the holding of a majority stake by the Federal Reserve Board. AIG was denied access to any of these facilities (that may well have solved the AIG liquidity crisis- as distinguished from a solvency crisis- completely) despite numerous requests. As Starr also points out in the suit:
Alternatively, or in combination with the other options available (e.g. purchasing CDOs directly), the Government could have guaranteed AIG's obligations in a manner similar to the $300 billion in guarantees given to Citigroup Inc. If such a guaranty had been given, there would have been no further collateral calls on AIG, its liquidity needs would have been satisfied and, in fact, collateral previously posted by AIG could have been released for other uses.13
The allegations continue, suggesting that the Government directed AIG to alter filings to the SEC to "conceal the fact that it was using the takeover of AIG as a vehicle to provide covert, backdoor bailouts to other entitites", including removing the sentence:
As a result of this transaction, the AIGFP counterparties received 100 percent of the par value of the Multi-Sector CDOs sold and the related CDS have been terminated.
...from AIG's 8-K filing of December 2008 and withholding "Schedule A" from the "Shortfall Agreement" which "...set forth information regarding the [Maiden Lane III] counterparties and the breakdown of payments funneled to those institutions." The SEC noticed the omission and admonished AIG that it must either provide the schedule or apply for confidential treatment. Pushed by the New York Fed, AIG filed a request for confidential treatment with the SEC after the fact. AIG officials were apparently directed not to discuss these bailout efforts with members of Congress.14
Starr International's allegations are still just allegations. But the suit did survive the Government's motion to dismiss back in July. That is not to suggest that the powers that be haven't being doing everything possible to scuttle the suit. To wit, the practice of "moot court" by AIG's Board of Directors this last week:
Among the factors directors considered Wednesday were the odds any suit would succeed, the likely duration and cost of litigation and the suit's impact on AIG's reputation and management, said the person familiar with the company.
Wednesday's session ran from 8 a.m. to 12:30 p.m., with only one brief break, the person said. The mock-trial-like session included presentations by lawyers for Starr, the U.S. Treasury and the Federal Reserve.
Directors decided not only that AIG wouldn't join the suit, thus giving up rights to any potential recovery, but that it would act to prevent Starr from recovering damages for any shareholder other than itself.15
No biting the hand that feeds AIG, apparently. Of course, such stories wouldn't be complete without a little bit of "Nice subsidies you have there. Would be a shame if anything happened to them":
Even as Wednesday's board meeting was under way, the backlash was growing. New York Department of Financial Services Superintendent Benjamin Lawsky called to get a message to [AIG Chief Executive Officer] Mr. [Robert]Benmosche about his concerns, a person familiar with the call said. Mr. Lawsky recommended the company not join the suit, because he believed it would cause reputational harm to AIG that could affect the business and preclude it from getting federal aid again, the person said. Mr. Lawsky's office is a key regulator of AIG's insurance businesses.
The sharp finem respice reader will be gratified to know that AIG's regulator is ever vigilant in guarding the reputation of its many charges against damage from within by having the outrageous temerity to suggest that the Federal Government is prone to overstep its bounds. Surely, against this noble purpose any thin resemblance to a threat to withdraw government support must appear purely coincidental, immaterial, or both.
This forced the state to directly appropriate whatever resources it needed wherever they could be found.17
It will be recalled by longtime finem respice enthusiasts that a substantial portion of AIG's business was providing financial institutions with enhanced leverage via a loophole from certain capital requirements. AIG explains this in its own words via its 10-K filing of March 2, 2009:
A total of $234.4 billion (consisting of corporate loans and prime residential mortgages) in net notional exposure of AIGFP’s super senior credit default swap portfolio as of December 31, 2008 represented derivatives written for financial institutions, principally in Europe, for the purpose of providing regulatory capital relief rather than for arbitrage purposes. These transactions were entered into by Banque AIG, AIGFP’s French regulated bank subsidiary, and written on diversified pools of residential mortgages and corporate loans (made to both large corporations and small to medium sized enterprises). In exchange for a periodic fee, the counterparties receive credit protection with respect to diversified loan portfolios they own, thus reducing their minimum capital requirements.
The regulatory benefit of these transactions for AIGFP’s financial institution counterparties is generally derived from the terms of the Capital Accord of the Basel Committee on Banking Supervision (Basel I) that existed through the end of 2007 and which is in the process of being replaced by the Revised Framework for the International Convergence of Capital Measurement and Capital Standards issued by the Basel Committee on Banking Supervision (Basel II). Prior to the adoption of Basel II, a financial institution was required to hold capital against its assets, based on the categorization of the issuer or guarantor of the assets. One of the means for a financial institution to reduce its required regulatory capital was to purchase credit protection on a group of its assets from a regulated financial institution, such as Banque AIG, in order to benefit from such regulated financial institution’s lower risk weighting (e.g., 20 percent vs. 100 percent) that is assigned to those assets under Basel I. A lower risk weighting reduces the amount of capital a financial institution is required to hold against such assets.18
In effect, this meant that foreign financial institutions could boost their leverage significantly simply by buying default protection on portions of their holdings. The list of types of securities that were eligible for these sorts of benefits was not happened upon arbitrarily, but rather designed in no small measure to encourage the purchase of mortgage and corporate debt by foreign financial institutions subject to Basel I regulations. Determining if this practice had a distorting effect on price signals in these markets is left as an exercise for the finem respice reader.
It is difficult not to get the sense that AIG had been at least a casual tool of the United States Government for some time. Or, to state matters more conservatively in deference to the always cautious finem respice reader, the net effect of AIG's regulatory capital portfolio (to wit: converting demand for domestic mortgage and corporate debt backed securities into a leverage enhancer for foreign financial institutions) was very much aligned with those groups in the United States selling discount prices on the "American Dream of Home Ownership" as the cure for all middle-class ills. Certainly, no one was complaining about AIG's humming business in providing these services while they encouraged foreign banks to snap up debt securities issued by those U.S. entities and industries that, in that particular moment, enjoyed the fickle favor of the legislative and/or executive branch.
Of course, if AIG were to suddenly find itself in bankruptcy it is entirely possible that the securities that enjoyed reduced capital requirements would suddenly be deemed as "uninsured against default" and the capital requirements for the holding institution might jump overnight. Is it possible that some of these institutions would have become (or actually were) insolvent and subject to resolution actions by the regulators in their home jurisdictions in that circumstance?
In this context, the public drubbing AIG took seems awfully unjustified. Wasn't AIG acting exactly as it was encouraged, even directed to by the United States Government, the Basel committee, and the prevailing (if deeply flawed) market wisdom back in 2008? That its shareholders should have been thrown to the wolves where the shareholders of other institutions (some AIG's counterparties) were treated to redemption at par without so much as negotiation could even be said to rise to the level of criminality. Certainly, Starr International seems to think so.
By the end of the third century, Rome had clearly reached a crisis. The state could no longer obtain sufficient resources even through compulsion and was forced to rely ever more heavily on debasement of the currency to raise revenue. By the reign of Claudius II Gothicus (268—270 A.D.) the silver content of the denarius was down to just .02 percent. As a consequence, prices skyrocketed. A measure of Egyptian wheat, for example, which sold for seven to eight drachmaes in the second century now cost 120,000 drachmaes. This suggests an inflation of 15,000 percent during the third century.
Finally, the very survival of the state was at stake. At this point, the Emperor Diocletian (284—305 A.D.) took action. He attempted to stop the inflation with a far-reaching system of price controls on all services and commodities. These controls were justified by Diodetian's belief that the inflation was due mainly to speculation and hoarding, rather than debasement of the currency. As he stated in the preamble to his edict of 301 A.D.:
"For who is so hard and so devoid of human feeling that he cannot, or rather has not perceived, that in the commerce carried on in the markets or involved in the daily life of cities immoderate prices are so widespread that the unbridled passion for gain is lessened neither by abundant supplies nor by fruitful years; so that without a doubt men who are busied in these affairs constantly plan to control the very winds and weather from the movements of the stars, and, evil that they are, they cannot endure the watering of the fertile fields by the rains from above which bring the hope of future harvests, since they reckon it their own loss if abundance comes through the moderation of the weather."19
The actions of the Federal Government of the United States in 2008 and since were and are desperate measures. To the always well-informed finem respice this "revelation" reveals almost nothing new. The Federal Government has joined in a fierce battle with the King of Mathematics,20 a battle it is almost sure to lose sooner rather than later. This is primarily because the Federal Government of the United States is increasingly unused to and unable to cognitively process the possibility that rules might actually apply to it. The United States has never met an opponent quite like the King of Mathematics before and it seems increasingly obvious that recent experience has not remotely prepared the United States for the mathematical certainty (again, do forgive the pun) that it is destined to lose this battle.
As a sovereign the United States has over the last several decades amassed an impressive list of examples where it apparently found it favorable to ignore, rework, reinterpret, or simply break those rules that it happened to find irksome or inconvenient to its increasing mercurial wants and desires at any particular moment. Surely, a frequency count of these sorts of occurrences over the last 6 years must rival any other 6 year period since World War I. Partly, this must be a function of the vastly increased power of the Federal Government vis-a-vis the historical separation of powers endemic to the Republic. But this alone is nothing compared to the shameless abandonment of fundamental principals like equal protection, due process, and equality there were once so critical to the Republic so as to have been codified in its founding documents.
True, recent examples like American International Group, General Motors, Wachovia, Chrysler, Lehman Brothers, are mired in the byzantine complexity of finance, shareholder rights, preferred shares, nuances of bankruptcy law and obscure regulatory enforcement, but even a cursory exploration of other realms is as like to produce dozens more examples ranging from the Hellfiring of United States citizens, to the bullying of foreign governments to extraterritorially enforce U.S. law within their own borders (and indicting those non-U.S. citizens that have the cheek to challenge that state of affairs).
When you have the head of the "independent" Federal Reserve Bank of New York shouting down the head of the Federal Deposit Insurance Corporation to prevent her from faithfully executing her duty to take "prompt corrective action" and seize Wachovia while proclaiming:
We just went to Congress for $700 billion. The policy of the U.S. government is that there will be no more WaMu’s.21
You don't have to throw in the apparent "the Feds told me to omit material disclosures" exception to securities fraud that appears to have been articulated or wonder why members of the Fourth Estate appear to be immune from firearms laws to realize that there simply is no way back short of a total regulatory and executive branch enema- a procedure that appears highly unlikely to be forthcoming.
Unfortunately, the Government's recent victories in these spheres have greatly emboldened it, and the specter of unilateral regulation by Executive Order over subjects that have hitherto been viewed as intractable constitutional mandates isn't an obscure paragraph in the thesis work of a LLM student anymore, but rather the stuff of prime-time (and uncritical) news coverage.
In this context how does it surprise anyone at all that a gimmick as cartoonish as the "Trillion Dollar Coin" has re-emerged as something approaching realistic policy debate? And does it surprise anyone either that the mere appearance of this lunacy has somehow become a rallying cry for the removal of all limits to borrowing, ever? After all, if it is at the expense of listening to arguments about the Trillion Dollar Coin is it even worth it to have a debt limit?
Certainly, the rationale for these sorts of games is often expressed in terms of alleviating "obstructionism" and "gridlock" (and the implicit assumption that these are universally negative features of representative government, a position unfortunately adopted by McArdle in her otherwise interesting piece on the subject).22 The reality is, however, that gridlock has always been part of the design of the Republic. Abolishing the debt ceiling, for instance, because it has the effect of forcing a discussion on spending every once in a while (and this is increasingly viewed as obstructionist by a sovereign so addicted to unbridled spending that even a few weeks halt in the profligacy is said to portend something akin total societal collapse) is cast as the tool of financial terrorists (at least if you are Paul Krugman).
Loyal finem respice readers will recognize all of these sorts of desperate measures, and some of the other measures designed to lock subjects of the Republic into the game as the "thermodynamics" of centralized powers seeking to create a closed or isolated system- particularly as the slow march of the King of Mathematics begins to threaten the city walls.
Constantine (308—37 A. D.) continued Diocletian’s policies of regimenting the economy, by tying workers and their descendants even more tightly to the land or their place of employment. For example, in 332 he issued the following order:
"Any person in whose possession a tenant that belongs to another is found not only shall restore the aforesaid tenant to his place of origin but also shall assume the capitation tax for this man for the time that he was with him. Tenants also who meditate flight may be bound with chains and reduced to a servile condition, so that by virtue of a servile condemnation they shall be compelled to fulfill the duties that befit free men."23
This text could easily be mistaken for any of several agreements concluded between the United States and Swiss financial institutions, or portions of the Foreign Account Tax Compliance Act's punitive 30% withholding tax imposed on any foreign bank that doesn't toe the line, right down to the wanton conflation of freedom and responsibility.
Despite such efforts, land continued to be abandoned and trade, for the most part, ceased. Industry moved to the provinces, basically leaving Rome as an economic empty shell; still in receipt of taxes, grain and other goods produced in the provinces, but producing nothing itself. The mob of Rome and the palace favorites produced nothing, yet continually demanded more, leading to an intolerable tax burden on the productive classes.
"The number of recipients began to exceed the number of contributors by so much that, with farmers' resources exhausted by the enormous size of the requisitions, fields became deserted and cultivated land was turned into forest."24
And so, far from decrying Starr International's attempt to challenge the conduct of the Federal Government starting in September of 2008, finem respice applauds it.
If the freely-elected Federal Government is going to embark on the crony capitalist path and continue to execute overt or covert bailouts and subsidies for everything from mortgage financing to solar power and electric car batteries, if it continues assuming the reins and managing companies, imposing salary rules, bonus guidelines, getting involved in auctions and corporate finance analysis and deciding how, when to issue (or extinguish) equity, and otherwise purport to act like management (AND shareholders) why should it be immune from the consequences of the absurd securities litigation plaintiffs bar it has built into the system over the last 40 years? Why shouldn't the Federal Government feel the sting of the shareholder derivative actions lash? Particularly, when the only game the sovereign has to play in these scenarios is that of a bully.
Alas, finem respice is possessed of no illusions that losing a few cases involving its wanton overreach will have any sort of abating effect on the behavior of this corpulent and diabetic sovereign, after all, the fact that the National Recovery Administration and the Agricultural Adjustment Act fell to the Supreme Court's constitutional sword slowed the creep of the "New Deal" not at all. But, at least to finem respice's way of thinking, rooting for the underdog has a particularly American appeal. Even when the underdog is America.
6. Duncan-Jones, Richard, "Money and Government in the Roman Empire," Cambridge University Press (1994). For a summary of many key mid to late Empire budgetary topics See: Private, Equity, "The State of the Empire is Strong," finem respice (December 7, 2012).
7. Around $718 billion in total of which something like $159 billion (or 4.4% of the overall total) was spent supporting operations in Iraq and Afghanistan.
10. "Starr International Company, Inc. v. The United States of America," Verified Class Action Complaint, Paragraphs 6-8 (Filed: November 21, 2011).
11. "Starr International Company, Inc. v. The United States of America" Verified Class Action Complaint, Paragraphs 39-40 (Filed: November 21, 2011).
12. "Starr International Company, Inc. v. The United States of America" Verified Class Action Complaint, Paragraphs 42-46 (Filed: November 21, 2011).
13. "Starr International Company, Inc. v. The United States of America" Verified Class Action Complaint, Paragraph 48 (Filed: November 21, 2011).
14. "Starr International Company, Inc. v. The United States of America" Verified Class Action Complaint, Paragraph s 141-146 (Filed: November 21, 2011).
15. Scism, Leslie and Lublin, Joann S., "AIG Board Won't Sue Over Terms Of Rescue," The Wall Street Journal (January 9, 20013).
16. Scism, Leslie and Lublin, Joann S., "AIG Board Won't Sue Over Terms Of Rescue," The Wall Street Journal (January 9, 20013).
[Art Credit: unknown artist "untitled," photograph (unknown date), from the author's private collection. Salve, Hank!]
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Today I went up to the barn to grab a bunch of my stuff. Finn is headed back to the MSPCA, where he will be evaluated, and hopefully placed in a foster or adoptive companion home. I had every intention of leaving him in the paddock, but he kept watching me as I brought stuff from the barn to my car, so I ended up bringing him in.
Stuck him on the cross ties, he got a good brushing, and was the most well behaved gentleman, no pawing, no rearing, no dancing around. It was...weird. Decided that things were going so well, so why not stick him on the lunge. Walk, trot, canter, and a direction change, NO ISSUES. He looked amazing too. Tracking up, no cross cantering, listening to me. He really looked better than I have ever seen him. Everyone at the barn said so too.
I left the barn thinking, well, so much for bringing him back to the MSPCA. After thinking nearly all afternoon/evening about it, I realized that I am in an addictive relationship with Finn.... He gives me just enough to keep me coming back for more. We have gone down this road many, many times before. He goes "off", I contemplate the longevity of our future, he gets time off, is brought back, and is wonderful for two weeks, and then the cycle continues.
And I suddenly realized. NO, I can't do it anymore. My emotional well being, and confidence, has gotten shot down so many times these past two years. Finn may be better, what I've done for him may be the fix for him. He may be capable of amazing things, and a lifetime full of wonderful rides.
Its the right decision. I agree with you totally- addictive. It's like trying to fix a "bad boy" that you are dating. We woman want to nurture and fix everything! ;-) And our emotions are strong. But follow your gut and intuition, too. you've done what you can,and find closure and peace in that, too!