Posts Tagged ‘corporations’

01

Special mention

20180515edwas-a  6ee4dab5b7b6ed631e3f093de8b57d8e

maxresdefault

Austin O’Brien is a J.D. Candidate (Class of 2019) at the Fordham University School of Law and a former student of mine at the University of Notre Dame. He sent the following response to my recent piece on “utopia and markets,” which I am pleased to publish here as a guest post.

Dear Professor Ruccio,

I have been enjoying your recent blog posts on various dimensions of utopia. The one about “utopia and markets” struck a particular chord with me as I had my Corporations exam last Tuesday. Throughout the course, I noticed that corporate law itself has certain utopian elements. The very notion of a fiduciary duty to the corporation and shareholders (and creditors, when the business is on the brink of insolvency or is insolvent) enshrines the notion that an officer or director should maximize shareholder value, that is, the surplus to which they have access through their holdings and dividends. But, what I find to be most interesting is the flipside of this: it is not only the case that officers/directors should maximize value, but also that they are obliged to do so and, when a shareholder prevails in demonstrating that this duty has been breached, the breaching party must be punished. I think this counters the notion that profit-maximizing behavior is “natural.” The utopia that these duties try to build is one where officer/directors maximize (surplus) value at the behest of those who have claims on the surplus. So, the maintenance of capitalism takes extraordinary (legal) efforts just to compel officers/directors to act in the manner prescribed (as opposed to merely discovered or described) by neoclassical theory. Thus, the hegemonic economic utopian project is an active project that makes legal recourse an option when officer/directors take actions that do not allow investors to benefit from the exploitation that is at the heart of the firm’s consumption of labor power.

Let me try to explain what I mean. Corporate law is premised on the notion that it governs voluntary exchanges among sophisticated parties who seek to maximize profits.  Those individuals subject to corporate law are none other than the economic actors that fit neoclassical economists’ understanding of human nature: rational decision-makers who maximize utility or profits under conditions of scarcity. Well, that is at least the set of individuals corporate law deems itself to oversee. Perhaps it is more likely that this type of actor is the type of actor that corporate law intends to create. This rational actor is the dream of corporate law. Indeed, perhaps this homo economicus is proscribed by corporate law. In fact, if corporate law is largely in place to assist in profit-maximization, then this is the type of actor it must demand so that its project may succeed

The very heart of corporate governance lays bare corporate law’s project. At least with regard to the enforcement of particular norms among corporate officers and directors, the notion of a fiduciary duty is central to corporate law. Fiduciary duties arise in many contexts. In corporate law specifically, a fiduciary duty typically refers to the duty owed by a corporate officer or director to the corporation’s shareholders. The duty of care (i.e., the duty to make informed business decisions) and duty of loyalty (i.e., the duty to not use their position as officer or director to further their private interests) are hallmark examples of such a fiduciary duty. Now, the idea of these fiduciary duties is that they protect a corporation’s shareholders by ensuring that a corporation’s officers and directors are actually acting for the benefit of the shareholders and, more generally, the corporation itself. And what is the benefit of being a shareholder of a corporation? In short: a share of the profits. Shareholders benefit from a corporation’s increasing (rate of) profit(s), especially when profits are used to issue dividends.

This seems fairly innocuous at first glance. It is this mass of shareholders, after all, who vote for and elect the directors. And, it is this group of directors who select the corporation’s officers. But the tension is hidden in plain sight. If corporate law (and neoclassical economics) takes as given the idea that firms maximize profit and that such behavior is natural, then why the need to ensure that profit-maximization occurs? While corporate law is premised upon the notion that it oversees the activities of sophisticated rational individuals interested in profits, the ultimate scandal is when an officer or director is this very individual who behaves accordingly but to the detriment of the class that has claims on a corporation’s profits. See, the problem for corporate law is the possibility that a rogue officer or director might maximize their own gains to the detriment of the shareholders.

In trying to address this tension, corporate law, by way of imposing and enforcing fiduciary duties, unwittingly brings in class through the back door. One of the many problems with capitalism is, of course, rooted in the fantastical belief that self-interested individuals acting selfishly somehow bring about, in the aggregate, the best possible social results. Well then, why the need to punish these self-interested officers and directors? Shouldn’t it be the case that, by the invisible hand, capitalists benefit in the aggregate when capitalists act selfishly? The answer is, simply, no because capitalism is a class system that must be vigorously maintained to reproduce itself across time. In this case, it is maintained not only by proscribing (as opposed to merely discovering) how corporate officers and directors behave, and not only obliging them to act to the benefit of a specific class of capitalists, but also legally punishing such officers and directors when they do not act to the benefit of corporate shareholders. For the maintenance of capitalism, this is a necessary fix. It is a needed measure to build the neoclassical utopia by ingraining specifically neoclassical values into the decision-making of corporate officers and directors. So, when corporate officers and directors do act for the benefit of the corporate shareholders, they are not doing so because of some innate nature, but rather according to a specifically proscribed set of values that are enforced by the specter of shareholders seeking legal recourse for a breach of a fiduciary duty.

It becomes increasingly clear that corporate law itself is an active project shaping the way corporate actors behave as economic agents. In the end, if corporate shareholders are not able to successfully lay claim to a share of the profits arising out of the private and productive consumption of labor power, then what good is it to be a capitalist? For capitalism to (re-)produce itself across time and space while maintaining legitimacy within the capitalist class itself, capitalists must be able to do as capitalists do: extract surplus-value from the production process through the consumption of labor power.

Thus, celebrating when ill-behaved corporate directors are caught and punished as if such a victory is yet one more blow to the legitimacy of capitalism misses the point: punishing such actors maintains, indeed even reinforces and reinvigorates, the capitalist organization of society. Shareholders taking legal actions for a director’s or officer’s breach of a fiduciary duty is part and parcel of furthering the utopia envisioned by neoclassical economists. The ideal corporate officer or director, according to the neoclassical utopian vision, is a quasi-religious one that directly contradicts the neoclassical view of human nature: an officer or director who acts selflessly to the benefit of the shareholders. Of course, such directors and officers are far and few between. It should then come as no surprise that corporate directors regularly bestow lavish compensation packages upon corporate officers to ensure that these officers take actions to maximize (surplus) value for shareholders. And, if a director or officer does breach their duties, they are a bad capitalist who are nearly certain to be replaced by a good capitalist, that is, one who maximizes corporate profits. So, a bad corporate actor, at least in the terms of corporate law, is really an actor who fails to uphold specifically neoclassical values that sustain the capitalist system of relations. And one should not forget that, in light of the Marxian critique of these capitalist social relations, this fight over profits is a fight over the surplus-value extracted from workers.

Perhaps one can readily imagine a different set of values and an alternative alignment of duties. Imagine a scenario in which workers are the shareholders and elect the boards of directors. This would be remarkably different. Rather than being incentivized to further extract value in the consumption of labor power, directors (and their corporations’ duly appointed officers) would have an incentive to reward workers with the value created by the workers’ very labor. But this is antithetical to capitalism and corporate law as they stand today. This set of values would turn the system on its head. And turning this system on its head means first pointing out corporate law’s blind spots, tensions, contradictions, and values that it takes for granted yet furthers in its quest to build a very particular vision of society. This task of criticism is rooted in the recognition that corporate law actively maintains capitalism all the while providing active measures to bring legal actions to those with claims on the surplus against those officers and directors who stand in the way of shareholders enjoying the fruits of others’ labor.

Screen Shot 2018-05-09 at 11.12.34 AM

Special mention

FellP20180507_low  Rose,J20180511_low

Company-Boneus_1024

Special mention

20180420edhoc-a

download

Tax cuts and spending increases enacted by Republicans over the past four months will lead to wider than previously expected budget deficits, according to the Congressional Budget Office. The federal budget deficit would total $804 billion this year, 43 percent higher than it had projected last summer, and exceed $1 trillion a year starting in 2020.

Larger deficits will, of course, add to the national debt: debt held by the public will hit $28.7 trillion at the end of fiscal 2028, or 96.2 percent of gross domestic product, up from 78 percent of GDP in 2018.

Those estimates assume current law will remain in effect, meaning Congress would allow some tax cuts to expire and spending caps to take effect again in the coming years. If Congress extends the tax cuts, as many Republicans want to do, the CBO predicted higher deficits and publicly held debt of about 105 percent of GDP by the end of 2028—a level exceeded only once in U.S. history, in the immediate aftermath of World War II.

So, what do these escalating deficit and debt numbers mean?

Clearly, in the first instance, the Republican deficit hawks have gone the way of moderate Republicans and all other extinct species of politicians and other mammals. They existed for decades, always in an attempt to cut entitlement programs and other public expenditures for poor and working-class Americans. But once it was possible to pass massive tax cuts for corporations and wealthy individuals and boost military spending, the deficit hawks on the Republican side of the aisle simply disappeared into the walls of Congress.*

Fig 1

source

But there’s a second, perhaps even more important, angle we need to take into account: wealthy individuals and large corporations—the chief beneficiaries of the Tax Cuts and Jobs Act—would rather lend money to the government, at interest, than pay taxes on the surplus they receive. As federal deficits and debt grow, they end up receiving, not paying for, a larger and larger share of federal expenditures.

debt

I have illustrated the structure of federal debt over time in the chart above. By the end of 2017, the federal debt (the red line) had reached $20 trillion, of which $14.5 trillion was held by the public (the green line).** Private investors (the blue line) own the bulk of debt held by the public (about 83 percent), while foreign investors (both private and public, the yellow line) hold less than half (43 percent) of U.S. public debt.

As we can see, private holders of U.S. public debt—mostly wealthy individuals and large corporations—the majority of whom are based in the United States, are the ones who stand to gain. They have been granted lower tax rates and, at the same time, will receive a mounting share of the interest that is paid out on the growing debt ($310 billion for fiscal year 2018).

In the current political economy of the United States, nothing can be said to be certain, except growing debt payments and lower taxes—all for the benefit of wealthy individuals and large corporations.

 

*But, as Michael Hiltzik [ht: sm] explains, the species of Republican economists and politicians who aim to cut entitlements, such as Medicare and Social Security, is still thriving.

One would have thought that after saddling the U.S. economy with a tax cut costing $1.5 trillion over 10 years, conservatives and their patrons in corporate America would soft-pedal the usual attacks on Social Security, Medicare and Medicaid.

One would be wrong.

**The difference between federal debt and debt held by the public is made up of intergovernmental holdings, Government Account Series securities held by government trust funds, revolving funds, and special funds (as well as Federal Financing Bank securities).

rs-19081-rectangle

The economic crises that came to a head in 2008 and the massive response—by the U.S. government and corporations themselves—reshaped the world we live in.* Although sectors of the U.S. economy are still in one of their longest expansions, most people recognize that the recovery has been profoundly uneven and the economic gains have not been fairly distributed.

The question is, what has changed—and, equally significant, what hasn’t—during the past decade?

DJCA

Let’s start with U.S. stock markets, which over the course of less than 18 months, from October 2007 to March 2009, dropped by more than half. And since then? As is clear from the chart above, stocks (as measured by the Dow Jones Composite Average) have rebounded spectacularly, quadrupling in value (until the most recent sell-off). One of the reasons behind the extraordinary bull market has been monetary policy, which through normal means and extraordinary measures has transferred debt and put a great deal of inexpensive money in the hands of banks, corporations, and wealth investors.

profits

The other major reason is that corporate profits have recovered, also in spectacular fashion. As illustrated in the chart above, corporate profits (before tax, without adjustments) have climbed almost 250 percent from their low in the third quarter of 2008. Profits are, of course, a signal to investors that their stocks will likely rise in value. Moreover, increased profits allow corporations themselves to buy back a portion of their stocks. Finally, wealthy individuals, who have managed to capture a large share of the growing surplus appropriated by corporations, have had a growing mountain of cash to speculate on stocks.

Clearly, the United States has experienced a profit-led recovery during the past decade, which is both a cause and a consequence of the stock-market bubble.

banks

The crash and the Second Great Depression, characterized by the much-publicized failures of large financial institutions such as Bear Stearns and Lehman Brothers, raised a number of concerns about the rise in U.S. bank asset concentration that started in the 1990s. Today, as can be seen in the chart above, those concentration ratios (the 3-bank ratio in purple, the 5-bank ratio in green) are even higher. The top three are JPMorgan Chase (which acquired Bear Stearns and Washington Mutual), Bank of America (which purchased Merrill Lynch), and Wells Fargo (which took over Wachovia, North Coast Surety Insurance Services, and Merlin Securities), followed by Citigroup (which has managed to survive both a partial nationalization and a series of failed stress tests), and Goldman Sachs (which managed to borrow heavily, on the order of $782 billion in 2008 and 2009, from the Federal Reserve). At the end of 2015 (the last year for which data are available), the 5 largest “Too Big to Fail” banks held nearly half (46.5 percent) of the total of U.S. bank assets.

door.jpg

Moreover, in the Trump administration as in the previous two, the revolving door between Wall Street and the entities in the federal government that are supposed to regulate Wall Street continues to spin. And spin. And spin.

median income

As for everyone else, they’ve barely seen a recovery. Real median household income in 2016 was only 1.5 percent higher than it was before the crash, in 2007.

workers

That’s because, even though the underemployment rate (the annual average rate of unemployed workers, marginally attached workers, and workers employed part-time for economic reasons as a percentage of the civilian labor force plus marginally attached workers, the blue line in the chart) has fallen in the past ten years, it is still very high—9.6 percent in 2016. In addition, the share of low-wage jobs (the percentage of jobs in occupations with median annual pay below the poverty threshold for a family of four, the orange line) remains stubbornly elevated (at 23.3 percent) and the wage share of national income (the green line) is still less than what it was in 2009 (at 43 percent)—and far below its postwar high (of 50.9 percent, in 1969).

Clearly, the recovery that corporations, Wall Street, and owners of stocks have engineered and enjoyed during the past 10 years has largely bypassed American workers.

income

One of the consequences of the lopsided recovery is that the distribution of income—already obscenely unequal prior to the crash—has continued to worsen. By 2014 (the last year for which data are available), the share of pretax national income going to the top 1 percent had risen to 20.2 percent (from 19.9 percent in 2007), while that of the bottom 90 percent had fallen to 53 percent (from 54.2 percent in 2007). In other words, the rising income share of the top 1 percent mirrors the declining share of the bottom 90 percent of the distribution.

wealth

The distribution of wealth in the United States is even more unequal. The top 1 percent held 38.6 percent of total household wealth in 2016, up from 33.7 percent in 2007, that of the next 9 percent more or less stable at 38.5 percent, while that of the bottom 90 percent had shrunk even further, from 28.6 percent to 22.8 percent.

So, back to my original question: what has—and has not—changed over the course of the past decade?

One area of the economy has clearly rebounded. Through their own efforts and with considerable help from the government, the stock market, corporate profits, Wall Street, and the income and wealth of the top 1 percent have all recovered from the crash. It’s certainly been their kind of recovery.

And they’ve recovered in large part because everyone else has been left behind. The vast majority of people, the American working-class, those who produce but don’t appropriate the surplus: they’ve been forced, within desperate and distressed circumstances, to shoulder the burden of a recovery they’ve had no say in directing and from which they’ve been mostly excluded.

The problem is, that makes the current recovery no different from the run-up to the crash itself—grotesque levels of inequality that fueled the bloated profits on both Main Street and Wall Street and a series of speculative asset bubbles. And the current recovery, far from correcting those tendencies, has made them even more obscene.

Thus, ten years on, U.S. capitalism has created the conditions for renewed instability and another, dramatic crash.

 

*In a post last year, I called into question any attempt to precisely date the beginning of the crises.

208689.png

Special mention

SiersK20180404_low  600_208710