March 2010 Archives

A “Poster Child for Corporate Malfeasance”

One of the cardinal criticisms of large corporations is that they put profits before people. That tendency has been on full display in the recent behavior of transnational mining giant Rio Tinto, which has shown little regard for the well-being not only of its unionized workers but also of a group of executives who found themselves on trial for their lives in China.

The China story began last July, when four company executives — including Stern Hu, a Chinese-born Australian citizen — were arrested and initially charged with bribery and stealing state secrets, the latter offense carrying a potential death penalty. The charges, which most Western observers saw as trumped up, were made during a time of increasing tension between Rio and the Chinese government, one of the company’s largest customers, especially for iron ore.

Earlier in the year, debt-ridden Rio had announced plans to sell an 18 percent stake in itself to Chinalco, the state-backed Chinese aluminum company, for about $20 billion. Faced with strong shareholder and political opposition, Rio abandoned the deal in June 2009. The arrests may have been retaliation by the Chinese for being denied easier access to Australia’s natural riches.

Although Rio claimed to be standing by its employees, the case did not curb the company’s appetite for doing business with the deep-pocketed Chinese. Rio continued to negotiate with Beijing on large-scale iron ore sales. It seems never to have occurred to the company to terminate those talks until its people were freed. In fact, only weeks after the arrests, Rio’s chief executive Tom Albanese was, as Canada’s Globe and Mail put it on August 21, “trying to repair his company’s troubled relationship with China.”

Before long, Rio was negotiating with Chinalco about participating in a copper and gold mining project in Mongolia. One thing apparently led to another. In March 2010 — after its still-imprisoned employees had been officially indicted and were about to go on trial — Rio announced that it and Chinalco would jointly develop an iron ore project in the West African country of Guinea.

When that trial began a couple of weeks later, the Rio managers admitted guilt, but not to the more serious charge of stealing trade secrets. Instead, they said they had engaged in bribery — but as recipients rather than payers. While the four defendants may have been guilty of some impropriety, it is likely that the admissions were a calculated move to gain a lighter sentence in a proceeding whose outcome was predetermined. And that was the case in large part because their employer decided that its business dealings were more important than demanding justice for its employees.

Rio is no more interested in justice when it comes to its operations outside China. It has been accused of human rights violations in countries such as Indonesia and Papua New Guinea. And it has a track record of exploiting mineworkers in poor countries such as Namibia and South Africa while busting unions in places such as Australia. Recently, Rio showed its anti-union colors again in the United States.

On January 31 its U.S. Borax subsidiary locked out more than 500 workers at its borate mine in Kern County, California. The workers, members of Local 30 of the International Longshore & Warehouse Union had the audacity of voting against company demands for extensive contract concessions. The company wasted no time busing in replacement workers.

In a press release blaming the union for the lockout, U.S. Borax complained that ILWU members earned much more than workers at the company’s main competitor Eti Maden. The release conveniently fails to mention that Eti Maden’s operations are in Turkey.

Also missing from the company’s statement is the fact that the biggest driver of demand for boron – a material used in products ranging from glass wool to LCD screens – is the Chinese market. If U.S. Borax busts the ILWU in a way that keeps down boron prices, then the ultimate beneficiary may be Rio Tinto’s friends in China.

It is no surprise that mining industry critic Danny Kennedy once wrote that Rio Tinto “could be a poster child for corporate malfeasance.”

Throw the Bums Out — of the Boardroom

The financial reform bill just released by Senate Banking Committee Chairman Chris Dodd is facing a great deal of criticism for being too weak. Let me pile on by focusing on one of the less noticed parts of the bill: the provision dealing with the composition of financial institution boards of directors.

Among the many reasons for the financial debacle of the past few years was the failure of board members at the big commercial and investment banks to exercise any kind of meaningful oversight while the executives of those companies were applying the business principles of Charles Ponzi. This was a replay of what happened during the Enron and other corporate scandals of the early 2000s.

One of the key causes of feckless boards is the phenomenon of interlocking directorates — the tendency of large and powerful corporations to share directors. This happens when the chief executive of a big company or bank sits on the board of another corporate leviathan, or when retired business executives join multiple boards. In these cases the outside director can usually be counted on to endorse the strategies put forth by top management and to be generous when it comes to setting executive compensation policies. And perhaps be willfully ignorant when management is cooking the books.

According to the recent report from its bankruptcy examiner, that was the case when Lehman Brothers was engaged in its Repo 105 scam to hide the fact that its balance sheet was becoming overwhelmed by toxic assets. Prior to its collapse in 2008, the chair of the audit committee of Lehman’s board was the retired chief executive of Halliburton.

Tucked in Dodd’s 1,336-page bill is a short section (no. 164) that addresses the board issue by proposing a modification in what is known as the Depository Institutions Management Interlocks Act (DIMIA), an obscure law from 1978 that prohibits someone from sitting on the boards of more than one bank, depending on the size and location of the institutions. Dodd wants to apply DIMIA to the large nonbank financial companies that would be subject to additional regulation under his bill. In doing so he would bar the Federal Reserve from allowing any interlocks between those nonbank financial companies and large bank holding companies.

There’s nothing wrong with that, but it does not begin to address the corporate governance lapses that helped bring about the Wall Street meltdown. Those lapses showed that existing rules on corporate boards, such as those contained in the 2002 Sarbanes-Oxley Act, are not up to the task.

And we certainly can’t count on big financial institutions themselves to choose the best board members or even to exclude those whose track record should disqualify them. Citigroup made a big show last year of revamping its board, but the person it chose to chair that body was Jerry Grundhofer, who, in addition to being the former CEO of U.S. Bancorp, had served as a director of Lehman Brothers during its last ignominious year.

Another bailed out institution, Bank of America, also chose some new directors last year. Its choices included two former regulatory officials – Susan Bies of the Federal Reserve and Donald Powell of the Federal Deposit Insurance Corporation – whose agencies did little to detect or prevent the crisis. B of A also brought on Robert Scully, a former executive of Wall Street giant Morgan Stanley.

In the wake of the Enron scandal, groups such as the AFL-CIO called on companies on whose boards Enron’s outside directors also served to ease them out when they came up for reelection. In 2005 board members at Enron and at WorldCom had to pay millions of dollars of their own money to settle lawsuits brought by investors in the two companies brought down by fraud.

So far, those who served on the boards of the large banks have avoided a similar fate. It would be good to see them face litigation and public disapprobation, but at least they should be barred from continuing to serve on the boards of institutions where future financial crises may occur. Strengthening the rules against interlocks in a meaningful way would also help diminish cronyism in the boardroom.

Big Money requires the kind of strong external regulation that financial reform could conceivably bring about. That regulation should also make sure that institutions also have a decent first line of internal regulation in the form of truly independent and diligent board members.

Attacking the Wrong Earmarks

Congress is once again talking tough about budget earmarks. House Democratic leaders announced that they are banning earmarks designed to benefit for-profit entities, while House Republicans upped the ante by calling for the abolition of the practice across the board.

Even if this latest in a long line of anti-earmark initiatives takes hold, it will have limited impact on the channeling of taxpayer dollars to favored interests. The earmark database compiled by Taxpayers for Common Sense indicates that in the current fiscal year they amount to only $16 billion. And many of the 11,860 individual items cannot be linked to a specific recipient, making targeted bans meaningless.

Even the largest items linked to individual corporations—such as $19.5 million to Boeing for “Maui Space Surveillance System Operations and Research” in Hawaii; $12 million to BAE Systems for “Mk 45 Mod 5 Gun Depot Overhauls” in Kentucky; and $9.6 million to Northrop Grumman for “B-2 Advanced Tactical Data Link” in California—are drops in the bucket of $1 trillion in overall federal discretionary spending and a military budget of $530 billion.

It’s amusing to watch the posturing about these small amounts at a time when Congress may be about to endorse what can be seen as perhaps the largest earmark ever: the healthcare subsidies that will pass from lower-income Americans to private insurers in a public-option-less system. A new report from the Congressional Budget Office estimates that premium and cost-sharing subsidies under the current (pre-reconciliation) Senate version of the bill would cost $337 billion over the next decade. The TARP bailout was bigger, but in that case the taxpayers are recouping much of the outlay.

Healthcare is not the only example of how reform gets built on corporate handouts. The climate bill that passed the House last June (and got stalled in the Senate) would have essentially given away many of the emission allowances for the cap and trade system rather than requiring corporate polluters to pay in full for their greenhouse gas output.

Corporate subsidies are also at the heart of the job-creation initiatives making their way through Congress. Most Democrats have embraced the Republican notion that the best way to increase employment is to decrease business taxes. The same goes for federal efforts to promote renewable energy. At the center of the green jobs initiatives in the Recovery Act were corporate tax breaks such as the $2.3 billion Advanced Energy Manufacturing Tax Credit, which the Obama Administration would like to expand by $5 billion. The Administration also wants to give $8 billion in loan guarantees to the Southern Company to build a nuke in Georgia.

In addition to the direct contracts and tax breaks, corporate America is also in effect being subsidized by the unwillingness of much of Congress to tighten regulation of business, even in cases of reckless behavior. The delay and dilution that have characterized financial reform are worth billions to the banks. The moves to exempt sectors such as payday lenders from federal oversight is an enormous boon to those businesses.

Healthcare reform, climate-crisis mitigation, job creation, renewable energy development and financial reform are all laudable goals, but it is frustrating that they are all being pursued in ways that often reward the same large corporations that created many of the problems these initiatives are meant to address. And it is mind-boggling that the critics of this business-friendly agenda repeatedly denounce it as socialistic.

Democrats should spend less time posturing on earmarks and more time trying to figure out how they can fix what’s wrong with the country without giving away the store to big business.

The Risk of Green Offshoring

The United States may be indirectly subsidizing the movement of renewable-energy equipment production to low-wage havens such as China and India. That’s the finding of a new report just released by the Apollo Alliance and Good Jobs First. I co-authored the report in my capacity as the research director of Good Jobs First.

My responsibility was to analyze the recipients of Advanced Energy Manufacturing Tax Credits, a component of the American Recovery and Reinvestment Act. The program, also known as 48C because of its place in the Internal Revenue Code, provides a tax credit equal to 30 percent of the value of investments in new, expanded or re-equipped facilities in the United States that produce materials used in renewable energy generation or carbon capture.

In January the Obama Administration released of list of 183 projects in 43 states that had been approved for the initial $2.3 billion round of credits. Obama’s new budget calls for expanding the program by $5 billion.

I focused on the 116 projects involving wind and solar, the two forms of renewable energy that have the most growth potential. Those projects received $1.6 billion, or 68 percent, of the total 48C credits. There are 90 unique parent companies involved (some firms have more than one project).

While the 48C projects themselves are all located in the U.S., many of the companies are also investing in wind and solar manufacturing facilities in other countries. This is not surprising, given that 25 of the 90 firms are based outside the United States, mostly in Europe and Scandinavia. They have operations in their home countries as well as other in developed economies.

What I examined, instead, was the extent to which both the U.S. and foreign 48C recipients are also expanding output in the low-wage countries we typically refer to in discussing offshoring. It turns out that a quarter of them are doing so.

Most of these are companies from places such as Germany and Spain that are leaders in the global clean-energy manufacturing market—the likes of Gamesa, Nordex, Siemens and Winergy. Thirteen foreign 48C recipients produce in China, three in India and two in Mexico. There are also six U.S.-based 48C recipients with operations in China, Mexico, Malaysia and the Philippines.

In total, the U.S. has awarded $458 million in advanced energy tax credits to 23 companies that are also investing money and creating jobs in low-wage nations.

One might argue that companies have to produce abroad in order to supply foreign markets, especially in a booming economy such as China. Yet I found that some of the 48C recipients have adopted a business model that relies heavily on low-wage production for serving global markets. Here are three examples:

Advanced Energy Industries Inc. (based in Colorado; received $1.2 million in 48C credits). In its most recent 10-K annual report, the company states: “The majority of our manufacturing is performed in Shenzhen, China, where we produce our high-volume products. The remainder of our manufacturing locations, in Fort Collins, Colorado; Hachioji, Japan; and Vancouver, Washington, perform low-volume manufacturing, service and support.”

First Solar Inc. (based in Arizona; received $16.3 million in 48C credits). In December 2009 the company announced plans for the addition of eight production lines for its solar module manufacturing operation in Kalim, Malaysia. The Malaysian operation was already more than ten times the size (in square footage) of First Solar’s original plant in Perrysburg, Ohio.

SunPower Corporation (based in California; received $10.8 million in 48C credits). Although 90 percent of SunPower’s sales come from the United States and Europe, it has been doing almost all of its manufacturing in Asia. It produces solar cells at two facilities in the Philippines and is developing a third solar cell manufacturing facility in Malaysia. Almost all of its solar cells are combined into solar panels at the company’s solar panel assembly facility in the Philippines. Other solar panels are manufactured for the company by a third-party subcontractor in China.

Given their preoccupation with offshoring, there is a significant risk that such firms will follow in the footsteps of Evergreen Solar, which is not on the 48C list but which received some $44 million in state subsidies for its plant in Devens, Massachusetts. In November 2009 the company announced that it would transfer its solar-panel assembly operations from Devens to a plant in China.

Using programs such as the Advanced Energy Manufacturing Tax Credit to try to encourage renewable-energy companies to invest in the United States is good policy. But does it make sense to include firms that have put their primary emphasis on offshoring and may be using their 48C projects as little more than fig leaves to obscure where they are putting the bulk of their money? Are U.S. taxpayers indirectly subsidizing those foreign operations?

At the very least, the Apollo Alliance/Good Jobs First report recommends, the federal government should employ a clawback mechanism so that any company that later shifts its 48C jobs offshore would have to reimburse the Treasury for the tax credit. We also need to explore other ways of making sure that workers in the United States and other developed countries are not denied a place in the clean-energy manufacturing sector of the future.