Business and politics

Aetna’s Deception and the ACA Crisis

One of the decisive moments in the 2016 election campaign came last summer, when major insurance companies cut back their involvement in the Affordable Care Act exchanges after claiming they were losing money in the market. This was seized on by Trump and other Republicans to further denigrate the ACA and argue the need for repeal and replace.

Evidence has now emerged suggesting that the insurers’ claims were more of the lies that tainted the whole campaign and that those lies were motivated by an attempt to influence the federal government’s policy on mergers.

What was often overlooked during discussions of the health insurance industry last year was that the biggest concern of the major firms was the fate of their attempt to capture greater market share through giant acquisitions. Aetna was seeking to acquire Humana, and Anthem wanted to join forces with Cigna. The two proposed deals, worth about $85 billion, would reduce the number of major players to three (the other being UnitedHealth).

The Obama Administration and multiple states challenged the mergers, which ended up in court. Recently a federal district court judge sided with the Justice Department in the Aetna-Humana case; another judge is expected to rule soon on the Anthem-Cigna deal.

In his 158-page ruling on the Aetna matter, U.S. District Judge John D. Bates cited evidence indicating that the company’s decision to leave ACA exchanges in 17 counties in three states (Florida, Georgia and Missouri) was designed to “improve its litigation position.” In other words, its main reason for dropping out was not the profitability of those markets but rather the attempt to make it more likely that the Humana acquisition would be approved.

The opinion reveals (on p.125) that when Aetna met with officials at the Justice Department and the Department of Health and Human Services prior to the filing of the government’s complaint it “connected this lawsuit with its future participation in the exchanges” and threatened (p.126) to withdraw from those exchanges if the merger were not approved.

Also included in the opinion is an excerpt (p.127) from an e-mail in which Aetna CEO Mark Bertolini stated that “the administration has a very short memory, absolutely no loyalty and a very thin skin.” Asked in a deposition what he meant by that, Bertolini expressed resentment that the administration was opposing the merger despite Aetna’s role in supporting the ACA during the battle over its enactment.

The judge went on to cite (p.129) internal company e-mails in which, in the words of the opinion, “Aetna executives tried to conceal from discovery in this litigation the reasoning behind their recommendation to withdraw from the 17 complaint counties.” That effort was unsuccessful.

Overall, the court found that the exchange counties from which Aetna was withdrawing were a mix of profitable and unprofitable ones, thus undermining the claim that the move was purely a business decision.

While Aetna’s deception failed to sway the government or the lawsuit, it had a significant political impact amid a heated campaign. Now that the campaign is over and the ACA opponents prevailed, Aetna and the other insurance giants are staying silent as Republicans move to gut the law.

It’s unclear whether the firms expect the exchanges to survive in some form or they are rooting for a return to the old days of minimal regulation. In either event, it’s clear that companies like Aetna and Anthem are putting their desire for oligopolistic control above all else.

Obama’s Final Blows Against Corporate Crime

$335 billion: that’s what has been paid by companies in fines or settlements in cases brought by federal agencies and the Justice Department during the Obama Administration. The estimate comes from the amounts associated with entries already in Violation Tracker and an update that is in the works.

Preparing that update has proven to be a challenge because of the remarkable flurry of cases that the Obama Administration has resolved in the waning days of its existence. Since the election the penalty tally has risen by more than $30 billion, much of that coming this month alone. The past ten days have seen four ten-figure settlements: Deutsche Bank’s $7.2 billion toxic securities case; Credit Suisse’s $5.3 billion case in the same category; Volkswagen’s $4.3 billion case relating to emissions fraud; and Takata’s $1 billion case relating to defective airbag inflators.

Here are some of the next-tier cases that would normally get significant coverage but may have gotten lost in the stream of announcements:

Moody’s agreed to pay $864 million to resolve allegations relating to flawed credit ratings provided for mortgage-backed securities during the run-up to the financial crisis.
Western Union agreed to pay $586 million to settle charges that it failed to guard against the use of its system for money laundering.
Shire Pharmaceuticals agreed to pay $350 million to settle allegations that one of its subsidiaries violated the False Claims Act by paying kickbacks to healthcare providers.
Rolls-Royce agreed to pay $170 million to resolve foreign bribery criminal charges; the military contractor was offered a deferred prosecution agreement.
McKesson, a large pharmaceutical distribution, was fined $150 million by the Drug Enforcement Administration for failing to report suspicious bulk purchases of opioids.

Although a few of these cases — including Volkswagen, Takata and Western Union– have involved criminal charges, for the most part the Obama Justice Department has kept its focus on extracting substantial monetary penalties from corporate wrongdoers.

While this approach has served the purpose of highlighting the magnitude of business misconduct, it remains unclear whether it has done much to deter such behavior. One of the aims of Violation Tracker is to document the problem of ongoing recidivism among corporate offenders by listing their repeated transgressions. JPMorgan Chase, for example, has racked up $28 billion in penalties in more than 40 cases resolved since the beginning of 2010. The list is likely to continue growing.

The steady stream of big-ticket cases has provided a constant source of new content for Violation Tracker, but it would have been preferable if federal prosecutors and regulators had figured out a way to get the bank and others like it to behave properly.

The Obama Justice Department’s rush to complete the recent settlements seems to be based in part on uncertainty as to whether the Trump Administration will continue to give priority to the prosecution of corporate crime. Attorney General nominee Jeff Sessions has not said much on the subject, while the President-elect has been uncharacteristically silent — both during his campaign and since the election — about corporate scandals such as the Wells Fargo bogus-account case while being outspoken in his critique of regulation.

We may soon look back fondly at the Obama approach as the new administration takes an even weaker posture toward the ongoing corporate crime wave.

Corporate Crime and the Trump Administration

With all that’s happening in the chaotic Trump transition, less attention is being paid to the announcement that Volkswagen is pleading guilty to felony charges and paying more than $4 billion in penalties while a half dozen of its executives face individual criminal indictments.

A development of this sort should represent a turning point in the prosecutorial handling of the corporate crime wave that has afflicted the United States for years. Yet because of its timing, it may end up being no more than a parting gesture of an administration that has struggled for eight years to find an effective way of dealing with widespread and persistent misconduct by large companies. And it may be followed by a weakening of enforcement in a new administration led by a president whose attacks on regulation were a hallmark of his electoral campaign.

First, with regard to the Obama Administration: The treatment of Volkswagen is what should have been dished out against the banks that caused the financial meltdown, against BP for its role in the Deepwater Horizon disaster, against Takata for its production of deadly airbags, and against the other corporations involved in major misconduct ranging from large-scale oil spills and contracting fraud to market manipulation and wage theft.

Instead, the Obama Justice Department continued the Bush Administration’s practice of avoiding individual prosecutions and offering many corporations deferred and non-prosecution deals in which they essentially bought their way out of jeopardy, albeit at rising costs. These arrangements, which are catalogued in Violation Tracker, imposed a financial burden but appear to have had a limited deterrent effect.

In a few instances, companies did have to enter guilty pleas, but the impact was softened when, for examples, the large banks that had to take that step in a case involving manipulation of the foreign exchange market later got waivers from SEC rules that bar firms with felony convictions from operating in the securities business.

It remains to be seen how much VW’s guilty plea affects its ability to continue doing business as usual. Yet the bigger question is how corporate criminals will fare in the Trump Administration.

Trump the candidate said little or nothing about VW, Wells Fargo and the other big corporate scandals of the day and instead parroted Republican talking points about the supposedly intrusive nature of regulation. Corporations that have supposedly been put on notice about moving jobs offshore or seeking overly lucrative federal contracts apparently are to have a free hand when it comes to poisoning the environment, maiming their workers or defrauding customers.

Although some have speculated that Jeff Sessions will be tough on corporate crime, a Public Citizen report on his time as Alabama’s attorney general in the 1990s provides evidence strongly to the contrary.

While Sessions took pains during his confirmation testimony to claim that he would not be a “rubber stamp” for the new Administration, he has strong political ties to Trump and worked hard to legitimize some of his more extreme positions during the campaign. Trump is unlikely to pay much heed to the traditional independence of the Justice Department, and Sessions is unlikely to adopt policies that rub Trump the wrong way.

Despite the inclinations of Sessions, the appointment of anti-regulation foes to head many federal agencies will mean that fewer cases will get referred to the Justice Department. And if Trump’s deregulatory legislative agenda gets enacted, the enforcement pipeline will dry up even more.

Corporate misconduct may very well decline during the Trump era because much of that conduct will become perfectly legal.

Trump’s Real Message to Corporate America

Much has been made of President-elect Trump’s use of his bully Twitter pulpit to get companies such as Carrier and Ford Motor to adjust their investment plans and to warn military contractors about escalating costs. The Washington Post went so far as to publish a piece last month claiming that Corporate America is “unnerved” by Trump.

Any CEOs still feeling such anxiety have not caught on to the way Trump operates. These moves serve two purposes: to give his base the impression that he is promoting the interests of the working class while deflecting attention away from his larger agenda that caters to the corporate elite.

The latter has come through loud and clear in his cabinet nominees. Not only has Trump shunned the idea of including a token Democrat, the purported populist has not picked anyone for the cabinet who can in any way be construed as representing the interests of working people. Along with generals and right-wing zealots, the choices instead include a slew of billionaires, wealthy investors and corporate executives.

These individuals are not exactly from the corporate social responsibility wing of the business world. The man chosen to run the Labor Department, fast-food executive Andrew Puzder, openly promotes wage suppression, while the choice for Treasury Secretary, Steven Mnuchin, was responsible for thousands of dubious foreclosures after he took control of a struggling bank.

Yet perhaps the clearest signal that Trump is favoring the worst elements of big business is the decision to give prominent roles to individuals associated with two of the most controversial large corporations around: Exxon Mobil and Goldman Sachs.

By proposing Rex Tillerson as Secretary of State, Trump is implicitly endorsing the polices of a giant oil company which has long been a symbol of corporate irresponsibility. Exxon was widely condemned for its inadequate response to the disastrous 1989 accident in which one of its supertankers spilled 11 million gallons of crude oil off the coast of Alaska. During the past three decades, the company has been involved in a long series of other spills and accidents, and it became notorious for its refusal to acknowledge the climate impacts of fossil fuel production. Violation Tracker shows that since the beginning of 2010 it has racked up more than $80 million in federal regulatory penalties.

Another corporate pariah embraced by Trump is investment bank Goldman Sachs, the alma mater of several key figures in the new administration, including Mnuchin, chief strategist Steve Bannon and Gary Cohn, selected to head the National Economic Council.

Goldman became one of the leading symbols of the reckless behavior of financial institutions in the period leading up to the financial meltdown, thanks to its key role in packaging and distributing toxic securities. Rolling Stone reporter Matt Taibbi’s depiction of Goldman as “a giant vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money” and Greg Smith’s reference to Goldman as “toxic and destructive” in a New York Times op-ed announcing his departure from the firm were two of the most frequently quoted phrases about the financial crisis.

According to the Violation Tracker tally, Goldman has had to pay more than $9 billion in legal penalties since the beginning of 2010, putting it in eighth place among all companies.

While repeatedly being found in violation of financial regulations, Goldman has enjoyed taxpayer largesse. Like other big banks, it received vast amounts of support from the federal government, including a $10 billion TARP bailout loan and billions more from the Federal Reserve. It has also received large subsidies from state and local governments, including a $425 million package to keep its headquarters in lower Manhattan after 9-11.

By associating his cabinet so closely with the likes of Goldman and Exxon, Trump is sending a message that his administration is, despite the rhetoric of his campaign, embracing corporate cronyism and irresponsibility. Given Trump’s own checkered business record, this should come as no surprise.

If anyone should be unnerved by the way the Trump Administration is shaping up, it’s not big business but those voters who supported a man they thought would challenge the corporate elite but is instead giving it more power than ever before.

Trump and the Reverse Revolving Door

Late in his presidential campaign Donald Trump seized on the issue of government ethics, and since the election he has talked about putting stricter limits on the ability of federal officials to move into jobs with government contractors. That process, called the revolving door, creates the possibility that an official will skew decisions in favor of a future employer.

What Trump has not discussed is a related phenomenon that can also have a pernicious effect on federal policymaking: the appointment of lobbyists and corporate executives to public posts in which they are likely to pursue policy in a way that benefits their former (and probably future) employers and business interests. This is known as the reverse revolving door.

Not only has Trump not challenged that practice, he has embraced it with gusto — and personally embodies it. Along with retired generals and conservative zealots, his proposed cabinet includes hedge fund investor Steve Mnuchin as Treasury Secretary, vulture investor Wilbur Ross as Commerce Secretary and fast food executive Andy Puzder as Labor Secretary. And now comes the coup de grace: the nomination of ExxonMobil chief executive Rex Tillerson as Secretary of State.

Despite claims that Trump is breaking all the rules, his decision to include prominent private sector figures in his cabinet is far from novel. There are ample precedents for such an approach, especially but not exclusively in Republican administrations.

The pattern has been most pronounced with the Treasury Secretary. Over the past 60 years, that post has frequently been awarded to members of the financial and corporate elite. Eisenhower, for example, gave the job to George Humphrey of the steel company M.A. Hanna. Kennedy chose C. Douglas Dillon, who had been with the Wall Street firm Dillon, Read. Carter tapped W. Michael Blumenthal, who had headed the manufacturer Bendix International.

Clinton’s second Treasury Secretary was Robert Rubin of Goldman Sachs. Reagan’s first Treasury Secretary was Donald Regan, head of Merrill Lynch. George W. Bush turned to the corporate sector three times, choosing Paul O’Neill of Alcoa, John Snow of CSX and Henry Paulson of Goldman Sachs. Obama’s second Treasury Secretary was Jack Lew, who had worked at Citigroup.

While Trump has picked a retired general to run the Pentagon (a separate problem), the position of Secretary of Defense is another top cabinet post that has often been filled by corporate figures. Eisenhower’s choice was Charles E. Wilson, the former General Motors president who in his confirmation hearing famously said: “For years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Kennedy tapped Robert McNamara, who had just been named president of the Ford Motor Co. Reagan’s first Defense Secretary was Caspar Weinberger, who had joined the engineering giant Bechtel Corp. a few years earlier after a career in the public sector. George W. Bush chose Donald Rumsfeld, who had stints as chief executive of G.D. Searle and later General Instrument.

Looking at cabinets as a whole, it was during the Reagan Administration that an overall business presence first became quite pronounced. In addition to Regan and Weinberger, the corporate veterans in Reagan’s cabinet included Secretary of State Alexander Haig, who had become president of United Technologies after his military career. After Haig resigned in 1982, Reagan replaced him with George Shultz, who had headed Bechtel Corp. during the 1970s. Commerce Secretary Malcolm Baldridge had been chairman of Scovill Inc. Even the Secretary of Labor, Raymond Donovan, had a business background as an executive at a New Jersey construction company.

This pattern was repeated in 2001. The elevation of George W. Bush and Dick Cheney to the two highest posts in the land could itself be seen as a significant case of the reverse revolving door. Bush, after all, spent much of his career as a businessman in the oil & gas industry and then as a part-owner of the Texas Rangers baseball team. Bush had not risen to great heights in the corporate world before running for governor of Texas, but he had clearly been shaped by that world. Cheney had spent five years as the chief executive of the controversial Halliburton Co.

Bush chose as his chief of staff Andrew Card, who had been a vice president of General Motors and a lobbyist for the auto industry. In addition to selecting Alcoa CEO Paul O’Neill to head Treasury and one-time corporate executive Donald Rumsfeld to run Defense, Bush chose oil executive Donald Evans as Secretary of Commerce and Anthony Principi, an executive with a medical services company, to be Secretary of Veterans Affairs. Secretary of State Condoleezza Rice had not been a corporate executive but was on the board of Chevron, which had named an oil tanker after her.

Trump’s corporate cabinet picks may be in keeping with some past practices, but they are troubling nonetheless. As with Reagan and Bush II, the nominations are clearly intended to foster an attack on regulation and the promotion of corporate-friendly policies.

With Tillerson there an even bigger issue. The main problem with reverse revolving door appointments is the danger of conflicts between the interests of a particular corporation and the public interest on specific issues. A corporation of the size and influence of Exxon Mobil is not just another company — it is in effect a state unto itself.

Trump praises Tillerson for the extent of his dealings with foreign leaders. Yet he did not develop those relationships representing the interests of the United States. Exxon Mobil has its own foreign policy that has frequently gone in different directions than that of the country in which it is nominally base.

Much attention is being focused on Tillerson’s dealings with Russia, which are indeed disturbing. Yet those dealings are just one example of how Exxon Mobil pursues its business interests without regard to other considerations such as human rights — an issue in the U.S. Secretary of State is supposed to champion.

In the 1950s GM’s Charlie Wilson could get away with identifying the interests of his company with those of the country as a whole. Tillerson cannot do the same.

Note: This report draws on a chapter I wrote for a 2005 report published by the Revolving Door Working Group.

Unequal Spoils

In his 2009 utopian novel Only the Super-Rich Can Save Us, Ralph Nader conjures up a scenario in which a group of enlightened U.S. billionaires spark a populist uprising against excessive corporate power. Calling themselves Meliorists, people such as Warren Buffett, George Soros, Ted Turner and Bill Gates Sr. use their wealth to bankroll creative efforts to undermine the stranglehold of big business and promote an agenda of universal healthcare, a living wage, sustainable energy, public financing of elections and other forms of popular democracy.

It is unlikely that Donald Trump has read the 733-page volume, but his emerging administration is well on its way to becoming an ugly variation on Nader’s theme. Rather than enlightened billionaires promoting a progressive agenda, Trump is building a government that will be run by wealthy proponents of reactionary policies. After a presidential campaign in which he railed against elites and suggested that he would shake up the system, he is filling his cabinet and other top jobs with individuals who, like himself, have exploited it to the hilt.

Trump’s pick for Treasury Secretary, Steve Mnuchin, worked for 17 years at Goldman Sachs but made his real money purchasing distressed IndyMac Bank amid the financial crisis in 2009, and after engaging in controversial foreclosure practices resold it at a hefty profit. The proposed Commerce Secretary Wilbur Ross, whose personal wealth is estimated by Forbes at $2.9 billion, has an even longer track record as a vulture investor who has turned around failing businesses but often at a high cost to employees. Betsy DeVos, Trump’s choice for Education Secretary, is a school privatization zealot who comes from a wealthy family and is married to an heir to the Amway fortune.

According to news reports, Trump is likely to name even more members of the 0.1 Percent to his administration. Plutocracy, once used as a rhetorical flourish, is increasingly a literal description of where things are heading.

Even those members of the Trump team who are not listed on the Forbes 400 are known for promoting policies that benefit the billionaire class rather than the workers who voted for the Republican ticket. Health and Human Services nominee Tom Price is a pharma-friendly, anti-Obamacare fanatic who seems to want to create a system of bare-bones coverage that is highly profitable to the insurance industry. Seema Verma, named to head the agency that oversees Medicare and Medicaid, is a pro-privatization consultant. And then there are the dozens of industry lobbyists installed on the landing teams for individual federal agencies who are helping target a wide range of regulations that protect consumers, workers and the general public.

Perhaps out of an awareness that his supporters may be starting to look askance at this power grab by corporate interests, Trump has taken pains to fulfill his campaign promise to help workers at the Carrier Corporation plant in Indianapolis whose jobs were being sent to Mexico.

The president-elect has just announced a deal in which some 800 of the 1,400 affected workers will save their jobs. This is welcome news for those workers and their families, who probably don’t care that Mike Pence used his soon-to-expire powers as governor to grant the company the kind of special “incentives” that Trump frequently denounced during the campaign.

For the rest of the country, it difficult to avoid thinking that Trump and Pence are using the Carrier situation mainly as a way to boost their popularity and distract people from the overwhelmingly pro-business bent of the rest of the transition.

We are likely to see more of this as the Trump Administration creates a new form of inequality: big and lucrative policy gains for the powerful and smaller, mainly symbolic benefits for the rest of the population. The question is: will Trump’s working class enthusiasts settle for crumbs while the powerful gorge themselves?

The Trump Transition and Wage Theft

If Donald Trump really were a champion of the working class, one place you would expect to see it reflected would be in his plans for the Labor Department. The supposed champion of blue collar Americans should be making sure that the agency most concerned with the world of work is reoriented to their needs.

Given what we have learned about the Trump transition so far, it will come as no surprise to hear that things seem to be moving in a very different direction. The person put in charge of the DOL transition is J. Steven Hart, chairman of the firm of Williams & Jensen, which calls itself “Washington’s Lobbying Powerhouse.” Hart is a lawyer and an accountant who worked in the Reagan Administration but his firm now lobbies mainly on behalf of large corporations such as the health insurer Anthem and Smithfield Foods.

He may provide other services for big business. In a 2007 article in The Washingtonian about DC’s top lobbyists, Hart was described as “the man corporations call when they are having trouble with labor unions.” There is not much in the public record on Hart’s activity as a union buster, which may mean only that he worked behind the scenes.

One thing that is known, according to the BNA Daily Labor Report, is that Hart has lobbied recently on behalf of the International Association of Amusement Parks and Attractions (IAAPA) on the rule formulated by the Labor Department to update overtime eligibility to thwart abusive employer practices. That association has made no secret of its strong opposition to the rule, which is scheduled to take effect on December 1. It put out a press release denouncing the rule as “burdensome” and vowing to work with other business interests to fight it.

The board of directors of the IAAPA includes a representative of the Walt Disney Company, which had has compliance problems with the Fair Labor Standards Act. For example, in 2010 Disney agreed to pay more than $433,000 in back wages to settle DOL allegations regarding off-the-clock work.

The overtime rule is a glaring example of the contradictions in the emerging Trump Administration. The rule would be of enormous benefit to many struggling lower-income workers who are denied overtime compensation under exemptions that were supposed to apply only to high-paid salaried employees. Their plight has amounted to a form of wage theft.

One group of employers that have frequently been implicated in overtime abuses are dollar store chains such as Family Dollar and Dollar Tree. These cases often involve assistant managers who are not really managers and are compelled to perform routine tasks in stores that are chronically understaffed. After losing an overtime lawsuit and hit with $36 million in damages, Family Dollar appealed the case all the way to the Supreme Court (and lost).

It’s likely that Trump supporters are a lot more familiar with dollar stores than those who voted for Clinton. Do they really want to make it easier for those corporations to engage in wage theft against relatives and friends?

A Mandate for Corporate Misconduct?

Many analysts of the presidential election are depicting it as a victory for workers, at least the disaffected white portion of the labor force. It remains to be seen whether Trump can deliver much in the way of concrete economic benefits for them.

Trump’s triumph may actually turn out to be a bigger boon for corporations. Although his candidacy was not actively supported by much of big business, which remains nervous about his posture on trade, Trump put forth other arguments that evoke less a populist uprising than the lobbying agenda of the U.S. Chamber of Commerce , which has just issued a statement embracing the election results for preserving “pro-business majorities” in the Senate and the House.

Trump’s position on big business has been difficult to pin down. He has often criticized crony capitalism but it has usually been part of attacks on Hillary Clinton or the Obama Administration. He has criticized some companies for sending jobs offshore yet has made tax proposals that would be a windfall for Corporate America.

One area in which Trump’s position has been unambiguously pro-corporate is the issue of regulation, where his stance has been indistinguishable from the Chamber and its allies. Trump has expressed a broad-brush condemnation of federal rules as job-killing, using the usual bogus numbers on their economic costs while ignoring the benefits. He has vowed both to eliminate many of the Obama Administration’s initiatives and to put a moratorium on most new rules. Trump has called for slashing the budget of the Environmental Protection Agency and for repealing much of Dodd-Frank, which could mean the demise of the Consumer Financial Protection Bureau.

Trump’s embrace of traditional Republican regulation bashing is all the more troubling as it comes at a time when corporate misconduct remains rampant. It is remarkable that so little attention was paid during the campaign to the scandals involving companies such as Volkswagen, whose emissions fraud has been pursued by the EPA, and Wells Fargo, which was fined $100 million by the CFPB for creating millions of bogus accounts. By threatening these agencies , Trump is undermining future cases against other corporate miscreants.

It’s possible that Trump’s attacks on regulation are nothing more than campaign rhetoric, but he is now allied with those pro-business majorities in Congress that are dead serious about dismantling as much of the federal regulatory framework as possible. Corporate lobbyists must be salivating at what lies ahead.

Is that what Trump supporters signed up for? Do residents of oil and gas states whose water supplies have been contaminated want the EPA to dwindle? Do blue collar workers confronted by predatory lending practices want the CFPB to disappear? Do families with serious health problems want to go back to a system in which insurance companies can discontinue their coverage? Do victims of wage theft want to see funding cut for the Wage & Hour Division of the Labor Department?

Trump has promised to drain the swamp in Washington, yet when it comes to regulation at least he has jumped into the muck feet first and is already becoming part of the problem rather than the solution.

Note: For a reminder of the myriad ways in which the Trump Organization itself has run afoul of federal, state and local regulations, see my Corporate Rap Sheet on the company.

Corporate Criminals and Public Office

Donald Trump’s candidacy is based to a great extent on the notion that a successful businessman would make an effective President. Democrats have shot holes in Trump’s claims of success, but they have not done enough to attack the underlying claim that private sector talents are applicable to the public realm.

The conflation of business and government acumen is all the more dangerous at a time when the norm in the corporate world is increasingly corrupt. The observation by Bernie Sanders during the primaries that “the business model of Wall Street is fraud” applies well beyond the realm of investment banking. Have those calling for government to operate more like business been paying attention to Wells Fargo, Volkswagen and EpiPen-producer Mylan?

It used to be that the main threat was that unscrupulous corporations would use investments in the political and legislative process to bend policymaking to favor their interests. Trump has shown that a corporate miscreant can use a pseudo-populist platform to try to take office directly.

Trump is not unique in this regard. Take the case of West Virginia, where a controversial billionaire coal operator is leading the polls in the state’s gubernatorial race. Jim Justice brags that he is a “career businessman” not a career politician, yet that career includes racking up some $5 million in fines imposed by the Mine Safety and Health Administration, according to Violation Tracker. To make matters worse, NPR and Mine Safety News reported in 2014 that Justice resisted paying these fines. An NPR update says that $2.6 million in MSHA fines and delinquency penalties remain unpaid even as the Justice mining operations continue to get hit with more safety violations.

On top of this, NPR estimates that the Justice companies face more than $10 million in federal, state and county liens for unpaid corporate income, property and minerals taxes. About one-third of the total is owed to poor West Virginia counties. Like Donald Trump, Justice has failed to follow through on charitable commitments yet has managed to pump several million dollars into his campaign.

Did I mention that Justice is the Democratic candidate? He is not, however, supporting Hillary Clinton though he is tight with conservative Democrat Sen. Joe Manchin. Justice’s Republican opponent is state senate president Bill Cole, whose super PAC received a $100,000 contribution from a super PAC funded by the Koch brothers. This was after Cole spoke at the Koch’s private conservative donors conference in Palm Springs last February, reportedly using his remarks to emphasize his commitment to getting a “right to work” law passed in West Virginia. While in the legislature Cole has also been cozy with the American Legislative Exchange Council and has pushed the crackpot supply-side economic prescriptions of Arthur Laffer. Cole is also an enthusiastic supporter of Trump.

It is difficult to know which is worse: a candidate in the pocket of unscrupulous corporate special interests or one who is himself one of those corporate miscreants. It is troubling to think that our elections increasingly come down to such an untenable choice.

The Real Crime Wave

Donald Trump’s recent economic policy address portrayed an economy crippled by “overregulation.” This came on the heels of his convention acceptance speech depicting a country afflicted by a wave of street crime perpetrated by “illegal immigrants.”

As with most of Trump’s statements, these comments took real issues and distorted them to the point that that they no longer had much resemblance to reality. There is a regulation crisis in the United States, but the problem is inadequate business oversight, not an excess. And there is a crime wave taking place, but the culprits are not immigrants but rather rogue corporations.

It was particularly odd that Trump chose to mention the auto industry in his rant on regulation. It has apparently not come to his attention that just about all the major carmakers are embroiled in some of the biggest safety and compliance scandals in the industry’s history.

Volkswagen exhibited contempt for the law in its long-standing scheme to circumvent auto emission standards. Since the brazen cheating came to light the company has been scrambling to make amends. It had to agree to spend nearly $15 billion (mostly to compensate customers) to resolve some of its legal entanglements, and it may still face criminal charges with larger potential penalties. While the amounts may seem high, VW is lucky it is being allowed to remain in business.

Then there’s the Japanese company Takata, whose airbags have turned out to be deadly and now is reported to have routinely manipulated test results of its products. General Motors had to pay a $900 million fine and Toyota $1.2 billion, both for safety reporting deficiencies. Electric car producer Tesla, which has taken advantage of a lax regulatory regarding self-driving technology, now faces scrutiny in the wake of several serious accidents involving vehicles operating on autopilot.

Automobiles are far from the only industry with serious regulatory compliance problems. In case we had forgotten the severity of the 2010 Deepwater Horizon catastrophe in the Gulf of Mexico, BP provided a reminder recently when it estimated that its legal and clean-up costs will reach more than $61 billion.

And we must not leave out the banks. In a report I put out in June to accompany the expansion of Violation Tracker, I found that since the beginning of 2010 there have been 144 cases settled against major banks with penalties in excess of $100 million each. In all, the banks have had to pay $160 billion in these cases to resolve allegations relating to a wide range of misconduct: mortgage abuses, defrauding of investors, manipulation of foreign exchange markets and interest rate benchmarks, assisting tax evasion, and much more.

Rampant corporate misconduct is one of the missing issues of the presidential race, especially since Bernie Sanders dropped out. Hillary Clinton’s website has some decent language on the subject but she has hardly made it a central issue in her campaign. In her convention acceptance speech she presented an upbeat picture of American business, and her reference to the auto industry was not to criticize its misconduct but to celebrate that it “just had its best year ever.”

Neither Clinton nor Trump can be expected to be a crusader for corporate accountability, but we need to make sure that whoever is the next occupant of the White House feels pressure to rein in and not unleash big business.