Coyote Blog

The story the other day that AIG was considering suing the taxpayers because the taxpayers did not give them a nice enough bailout was so vomit-inducing that I did not even look much further into it.

A couple of readers whom I trust both wrote me to say that the issues here are a bit more complex than I made them out to be.  The Wall Street Journal sounds a similar note today:

Every taxpayer and shareholder should be rooting for this case to go to trial. It addresses an important Constitutional question: When does the federal government have the authority to take over a private business? The question looms larger since the 2010 passage of the Dodd-Frank law, which gave the feds new powers to seize companies they believe pose risks to the financial system.

That vague concept of "systemic risk" was the justification for the AIG intervention in September 2008. In the midst of the financial crisis, the federal government seized the faltering insurance giant and poured taxpayer money into it. The government then used AIG as a vehicle to bail out other financial institutions.

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?

Greenberg is apparently arguing that he would have preferred chapter 11 and that the company and its original shareholders likely would have gotten a better deal.  Perhaps.   So I will tone down my outrage against Greenberg, I suppose.  But nothing about this makes me any happier about bailouts and corporate cronyism that are endemic in this administration.

I simply cannot believe that the President of the US just ordered an American citizen killed, without trial or due process, and the country just yawns.  And in some cases, cheered.  Are we really going to make the Fifth Amendment, along with the Fourth, the Ninth, and the Tenth, another "just kidding" passage?  Its amazing that the same kids that marched  against Nixon's abuse of power have decided this is perfectly OK.

I suppose I expect Republicans to pile on for this kind of security-state garbage, but an awful lot of Democrats are sitting on their hands as well, just because it was their guy in the Oval office pulling the trigger.  Kudos to a few souls on the left like Glenn Greenwald and Kevin Drum who, however subdued in comparison to their reaction had it been Bush, called out their party's leader for this bit of horror.  Greenwald makes the point to fellow Lefties - how would you feel if Rick Perry or Michelle Bachman had this power?

This latter is a good test I ask folks all the time.  Those who advocate for statist powers generally imagine folks like themselves wielding these powers.  But how realistic is that in a Democracy where power shifts every 8-10 years or so?  I ask folks all the time to picture their worst political enemy, and then imagine that person with the power they advocate.

Ilya Shapiro:

Well of course they aren't "” but that's constitutionally irrelevant:  Corporations aren't "real people" in the sense that the Constitution's protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn't mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the "no rights for corporations" crowd be okay with the police storming their employers' offices and carting off their (employer-owned) computers for no particular reason? "” or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn't because they're "legal" persons, however "” though much of the doctrine builds on that technical point "” but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection "” that "real people" lose some of their rights when they join together in groups of two or ten or fifty or 100,000 "” is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

In the next few weeks, Enron leaders Lay and Skilling will or will not be found guilty of various fraud-related charges (betting is that they will be).  You, in turn, may or may not agree with the verdict. (Disclosure:  I used to work with Skilling at McKinsey.  From my knowledge of his brilliant mind and his attention to detail, I thought that his Congressional testimony that he was unaware of the shenanigans in the SPE's was unconvincing, and so thought at the beginning of the trial he would be found guilty.  However, the prosecution's case has had surprisingly little to do with the SPE's and was weaker than I expected, so I am less sure now).

Wherever you are on guilt or innocence, you should be concerned about the increasingly aggressive tactics that prosecutors are getting away with in this and related cases.  Tom Kirkendall is all over this story, and reports:

the Enron Task Force refused Ken Lay and Jeff Skilling's request to
have the prosecution recommend to U.S. District Judge Sim Lake that
half-a-dozen former high-level Enron executives who have declined to
testify during the trial on Fifth Amendment grounds be granted immunity
from having their testimony used against them in a subsequent
prosecution.

Those witnesses -- several of whom have been mentioned prominently
in testimony during the trial -- would likely provide exculpatory
testimony for Lay and Skilling if they were to testify. The
Lay-Skilling defense team limited their immunity request to those six
witnesses even though the Task Force fingered the unprecedented number
of the Task Force identified over 100 former Enron executives
as unindicted co-conspirators in the case for the transparent purpose
of preventing the jury from hearing the full story of what happened at
Enron.

Another potential outcome may be the weakening of attorney-client privilege.

Today, on the final day of their 2006 term, the Supreme Court ruled in the Olek vs. New London case:

Washington --  The Supreme Court on Thursday ruled that
local governments may seize people's advertising space -- even
against their will -- for alternate advertisers who promote economic development or higher taxes

It
was a decision fraught with huge implications for a country with many
areas, particularly the rapidly growing urban and suburban areas,
facing countervailing pressures of government budget deficits and free speech
rights.

The 5-4 ruling represented a defeat for some Connecticut
residents whose advertisements in the local paper against recent property tax hikes were rejected by the city council in favor of ads for several pro-taxation groups.

As a result, cities have wide power to replace advertising that might favor lower taxes or oppose certain community projects with messages more in the public interest.

Local officials, not federal judges, know best in
deciding whether speech will benefit the community,
justices said.

"The city has carefully formulated an economic
development that it believes will provide appreciable benefits to the
community, including -- but by no means limited to -- new jobs and
increased tax revenue," Justice John Paul Stevens wrote for the
majority.  "We established in Kelo that local governments have broad power to seize property when that seizure serves to maximize taxation, and certainly this applies equally well to unwanted advertising that might work against maximizing tax revenues."

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

At
issue was the scope of the Fifth Amendment, which allows governments to
take private property through eminent domain if the property is for "public
use."  The majority observed that using advertising space in favor, rather than against, public policy certainly qualified as "public use".

Fred Olek and several other homeowners in a
working-class neighborhood in New London, Connecticut, filed suit after
city officials announced plans to remove their newspaper advertisements opposing the upcoming ballot initiative to raise property taxes.

New London officials countered
that the tax initiative served a public purpose of boosting
economic growth that outweighed the homeowners' speech rights, even
if the area wasn't located in North Korea or Cuba.

Justice Sandra Day O'Connor, who has
been a key swing vote on many cases before the court, issued a stinging
dissent. She argued that "This makes me so mad, I could, I could... aw, forget it.  I'm retiring this year to a Pacific island anyway, so y'all are free to screw up this country as much as you want".

Justice Scalia wrote a separate dissent, making the argument that "I have no problem with government limitations on speech per se, but given the fact that 3 readers of this paper lived out of state, such powers per Raich reside with Federal and not local authorities"

Local authorities were careful to point out that Olek was fully compensated at market rates for the removed advertising.  Olek shot back that he was in no way compensated for his loss of free speech rights or participation in the democratic process.  Justices in the majority were unpersuaded by Olek's argument, however, pointing out that in Kelo, the homeowners were in no way compensated for their emotional attachment to their homes nor for their loss of the right to dispose of their property as they wished, "so there".