The Many Sins of Ken Lewis

lewisIt always helps to put a face on one’s adversary in a protest campaign, and whether he likes it or not, Kenneth Lewis’s mug has become the lightning rod for criticism of the ongoing bailout of Big Finance. This post is being written on the eve of the most challenging day in Lewis’s 40 years as a banker. There is a chance that the shareholders of Bank of America, where Lewis has been chairman and chief executive since 2001, will oust him from the board or take away his chairmanship.

Lewis’s scalp is being sought by many. The Service Employees International Union, which has made removal of Lewis the centerpiece of its “Bad for America” campaign against BofA, this week joined forces with Moveon.org to press the issue. Major institutional investors such as the California public pension funds CALPERS and CALSTRS announced they had voted their millions of shares against Lewis. Muckraking filmmaker Robert Greenwald issued a video to further the crusade.

Those calling for Lewis’s ouster have mainly been focusing on his recent misdeeds: his still unclear role in the takeover of failing Merrill Lynch and the fat bonuses received by Merrill employees just before that deal took effect; his decision to jack up interest rates on credit card accounts; and BofA’s role in corporate organizing against the Employee Free Choice Act.

Yet Lewis has a lot more to answer for. In fact, his entire career, which has been spent exclusively at BofA and its predecessor companies, symbolizes what has gone wrong with the U.S. banking system over the past three decades.

When Lewis graduated from Georgia State University in 1969, he went straight to work as a credit analyst for a regional financial institution called North Carolina National Bank (NCNB). He rose through the ranks and eventually came to the attention of Hugh McColl, a brash ex-Marine who took over as chief executive of NCNB in 1983 and set out to transform the bank.

McColl launched an aggressive campaign to become a financial superpower. Taking advantage of the weakening of longstanding restrictions on interstate banking, he engineered a series of takeovers, first in Florida and then among big players in Texas crippled by the 1980s real estate meltdown in the Lone Star State. In 1989 McColl was rebuffed in his attempt to acquire Citizens and Southern, Georgia’s largest bank, which instead merged with Virginia-based Sovran Financial.

Two years later, after C&S/Sovran was hit with a sharp increase in its volume of bad loans, the combined company could not resist a new takeover effort by McColl. The deal turned NCNB into one of the country’s most powerful “superregional” banks, an achievement that McColl celebrated by grandiosely changing his company’s name to NationsBank.

As McColl made his various conquests during the 1980s, it was usually Ken Lewis who was sent in as a viceroy to run the newly acquired institution and integrate it into McColl’s empire. As Fortune once put it, “Lewis achieved stardom in the late 1980s and early 1990s by parachuting in to impose consistent sales and expense practices on the hodgepodge of banks that NCNB was acquiring.”

By 1993 Lewis was president of NationsBank and McColl’s heir apparent as the two men continued their relentless consolidation drive, which culminated in the 1998 purchase of California’s Bank of America and the adoption of its name. Three years later, McColl stepped down and Lewis took the reins, using them to carry out what was widely seen as a reckless deal to acquire Boston’s Fleet Bank.

BofA also got itself involved in a series of scandals—such as the one involving the Italian company Parmalat—which seemed to be an outgrowth of a need by the behemoth bank to increase revenues any way possible. It was later tied to the misdeeds of the major corporate villains of the early 2000s, paying, for example, $69 million to settle a lawsuit over its role as an underwriter for Enron and $460 million to settle an action brought by investors in WorldCom. The controversies continue into the present, not to mention the dubious business practices that would force taxpayers to provide $35 billion in capital infusions.

The history of BofA over these past few decades, including Lewis’s own trajectory, epitomizes the dangerous consolidation of power and spread of venality that have overtaken much of the banking industry. Removing Lewis would not be a matter of slaughtering a sacrificial lamb but rather a long overdue move against one of those most responsible for the financial mess we are in.

Bayer Fights Safety Board “Terrorists”

bayerblastCorporations will go to great lengths to avoid close scrutiny of their operations, but Bayer CropScience reached a new height of brazenness in its behavior following a massive explosion (photo) last year at its chemical plant outside Charleston, West Virginia. Company chief executive William Buckner admitted in testimony the other day before the House Energy and Commerce Committee that Bayer managers invoked a 2002 law designed to protect ports from terrorists to justify their initial refusal to share information about the accident with the federal government’s Chemical Safety and Hazard Investigation Board.

Apparently, what Bayer did not want the “terrorists” from the board to learn was that the company’s safety procedures were a mess. Video monitoring equipment had been disconnected, and air-safety devices were not operating. What made this disarray more disturbing was that the accident came close to causing the release of a large quantity of methyl isocyanate (MIC), the same pesticide component that killed several thousand people near a Union Carbide plant in Bhopal, India in 1984. The explosion at the West Virginia plant (which was run by Union Carbide until 1986 and taken over by Bayer in 2001) resulted in two deaths and injuries to half a dozen emergency responders.

Shortly after the accident, Bayer managers dropped the preposterous idea that they did not have to cooperate with the safety board, but they came up with other forms of obstruction. They provided thousands of pages of documents but labeled them “security sensitive” so that they could not be disclosed by the safety board. They also claimed that the plant was under the jurisdiction of the Coast Guard, given its use of barges on the Kanawha River, and thus it was up to that agency to decide which documents could be released.

Beyond Buckner’s qualified admissions, the House Energy Committee issued a report charging that “Bayer engaged in a campaign of secrecy by withholding critical information from local, county, and state emergency responders; by restricting the use of information provided to federal investigators; by undermining news outlets and citizen groups concerned about the dangers posed by Bayer’s activities; and by providing inaccurate and misleading information to the public.” Among the company documents obtained by the committee was a “community relations strategy” for dealing with a local activist group and the newspaper that diligently followed the story: “Our goal with People Concerned About MIC should be to marginalize them. Take a similar approach to The Charleston Gazette.”

All this may come as a surprise to consumers who think of Bayer Corporation as a purveyor of aspirin and other benign products such as Aleve, Alka-Seltzer, Flintstones Vitamins and Phillips’ Milk of Magnesia. But the company’s ultimate parent, Bayer AG of Germany, has one of the most shameful histories of any major corporation: During the Second World War, it was part of the notorious IG Farben conglomerate that made use of slave labor to serve the Nazi war machine and produce the lethal gas used in the death camps.

What Bayer did in West Virginia does not begin to approach its war crimes during the Nazi era, but it shows that the company still has a lot to learn about corporate ethics.

Note: For more material on Bayer’s checkered environmental record, see the website of the Dusseldorf-based Coalition Against Bayer Dangers. Charleston Gazette reporter Ken Ward Jr., who has written extensively on the Bayer explosion, also contributes pieces about the accident to the paper’s Sustained Outrage blog.

Barofsky’s Bailout Bible

sigtarp-logoRejecting the evasion and obfuscation that has characterized most official pronouncements about the federal bailout of the financial and auto industries, Neil Barofsky has a talent for cutting through the crap. The Special Inspector General for the Troubled Asset Relief Program (or SIGTARP) speaks plainly and makes no compromises in his pursuit of accountability.

Barofsky’s aggressive watchdog style is in full display in a document he just submitted to Congress and released to the public. Despite having the unassuming title of Quarterly Report, it is actually the most lucid and comprehensive analysis of the bailout program published to date.

The part of the report that has received most press attention is the warning that the Public-Private Investment Program promoted by Treasury Secretary Geithner to deal with toxic bank assets is quite vulnerable to fraud. This is just one of a slew of ways that Barofsky argues that the TARP program lacks adequate safeguards. To help make up for these limitations, the SIGTARP office is proceeding with half a dozen audits and is coordinating its efforts with various federal law enforcement agencies.

Barofsky’s 250-report also contains what amounts to a textbook and statistical abstract about the bailout. He reminds us that TARP is not one but a dozen different programs with various objectives. (Citigroup, for instance, has gotten three different forms of assistance.) He carefully explains each one and provides a wealth of quantitative as well as qualitative detail. There’s even a tutorial on securitization. Among the data that I believe are being made public for the first time are a table showing the dividends paid by banks receiving capital infusions and an eleven-page appendix providing the status of every one of the common stock warrants the Treasury Department received from TARP recipients.

Also included are details of the administrative and operational costs incurred by the Treasury Department in connection with TARP, including $6.9 million to PricewaterhouseCoopers, $5.7 million to Bank of New York Mellon and $2 million to Ernst & Young as well as about $10 million to various law firms.

This single SIGTARP document, produced by an entity with a staff of only 35, does more to clarify the bailout than the combined efforts of the Treasury Department, the Federal Reserve and other banking regulators over the past seven months. This is not a case, however, in which clarification creates greater confidence. One comes away from Barofsky’s report with the sense that the bailout is a vast Rube Goldberg contraption that requires careful monitoring. Fortunately, Neil Barofsky is on the case.

Note: Another useful new resource on TARP is the website just launched by Bailout Watch, an initiative led by the Center for Economic and Policy Research, Economic Policy Institute, OMB Watch, OpenThegovernment.org, Project On Government Oversight, and Taxpayers for Common Sense.

Geithner’s Own Stress Test

geithner-obamaTreasury Secretary Timothy Geithner and federal bank regulators have been conducting what they call “stress tests” of the nation’s 19 largest banks. Yet the biggest test is the one confronting Geithner himself and ultimately President Obama: Are they willing to abandon the ruinous policy of propping up major institutions that should be dismantled while simultaneously spending large sums of taxpayer funds to buy stakes in healthier banks that don’t need or want that government involvement?

The sad truth is that Obama’s financial policy is as incoherent as that of the previous administration. It veers between tough talk and complete coddling of the banks. In the case of the stress tests, the results of which are expected to be released early next month, Geithner has put himself in an impossible bind. If all the banks are deemed to have passed the test, the exercise will be seen as meaningless. If any fail, there will be pressure on the Administration to take them over—something Geithner seems dead set against.

And how will Geithner’s desire to use yet more public money to shore up the banks—whether through subsidized purchases of their toxic assets or additional capital infusions—play against a backdrop of rebounding earnings in the financial sector? JPMorgan Chase just announced a healthy profit of $2.1 billion in the first quarter, which followed a $3 billion posting by Wells Fargo and $1.7 billion by Goldman Sachs. Even struggling Citigroup managed to net $1.6 billion for the three-month period.

Like his predecessor Henry Paulson, Geithner believes that in order to avoid stigmatizing truly needy large banks the federal government has to give assistance to all of them. Sticking to that position has made Treasury look foolish as institutions such as Goldman and JP Morgan loudly proclaim their intention to buy back the federal government’s stakes in their firms, as some smaller institutions have already done. Large banks are reported to be urging the Administration to curtail new aid linked to stress test results.

To make matters worse, evidence continues to emerge that the fundamental objective of the bank bailout—freeing up credit for households and businesses—is not being met. Loan volume by the big bailed out banks continues to decline, while large institutions such as Bank of America are boosting their credit card interest rates. It is also telling that within the financial results just announced by JPMorgan, the sector of its business with the most dramatic profit growth was investment banking. In other words, it is making a lot more money from deals and securities than from lending. The same held for Citigroup.

If the “teabag” protestors who rallied around the country this week had any sense, they would have focused on the bank bailout rather than mounting a pointless attack on the validity of the income tax. The question is whether liberals and progressives, who may support Obama on many other issues, will seriously challenge his wrong-headed approach toward the financial crisis.

Note: If you are looking for a handy guide to the bewildering list of federal handouts to the financial sector, check out Pro Publica’s new Eye on the Bailout website.

Reforming Whose Entitlements?

private-healthAside from the dubious continuation of bank-coddling bailout policies, perhaps the most dissonant domestic policy theme expressed by President Obama is “entitlement reform.” He just used the phrase again in a speech on the economy at Georgetown University. In fact, he went so far as to equate it with health care reform.

Surely, the President knows that the concept of entitlement reform has long been used by fiscal conservatives as a euphemism for making substantial benefit reductions in Medicaid, Medicare and Social Security. Time and time again, these “reformers” have used overheated rhetoric and misleading projections to try to steamroll the country into gutting these vital social insurance programs. Their effort in 2005 to privatize Social Security—fronted by George W. Bush—was met with a firestorm of opposition.

It remains unclear whether the Obama Administration plans to travel along the same path or is appropriating the rhetoric about “fiscal responsibility” to serve a more progressive agenda. It is encouraging that the Administration is willing to spend heavily on social programs as part of the Recovery Act plan for addressing the recession. But health care policy is still an open question.

Obama’s effort to unite health care reform and entitlement reform is rooted in the idea that large cost savings are possible in the medical system. In the past, it was assumed that cutting costs went hand in hand with limiting treatment or reducing the income of doctors and hospitals. Obama offers a different paradigm. He wants us to believe that investments in health information technology, such as those contained in the Recovery Act, will bring down costs by raising efficiency.

Computerization of medical records may solve the problems caused by poor penmanship among physicians, but it is hard to see it bringing down costs to any great extent. On the contrary, it has all the makings of an expensive boondoggle benefitting big service providers such as McKesson Corporation.

What President Obama and other Democratic Party leaders seem unwilling to acknowledge is that the most effective way to cut costs is to take the profit out of health coverage. A single-payer or Medicare-for-All system, such as that proposed in Rep. John Conyers’ HR 676 and promoted by groups such as Healthcare-NOW, would save hundreds of billions of dollars by eliminating the vast and oppressive bureaucracy of the private insurers. That would be real entitlement reform.

Credit Card Companies Punish their Best Customers

credit-card-squeezeThis blog has not exactly been kind to the big banks receiving billions in federal bailout funds, so when a letter arrived in my mailbox this week from Bank of America I couldn’t help but wonder if they were getting back at me. The letter said that BofA, which manages my Visa card, had decided to jack up the interest rate from a somewhat tolerable (by today’s standards) 9.99% to a more usurious 14.99%. “We are making this change,” it said, “due to a change in our business practices, and due to the pattern of payments and Annual Percentage Rates on the account.”

The fact that I always pay my bills on time and typically send in much more than the required minimum made me all the more suspicious. When I called to complain I got no clarification. Then I opened the Wall Street Journal and read that BofA had sent similar letters to several million cardholders who, like me, carry a balance from month to month. It used to be that credit card issuers encouraged people to follow that practice, since that is how the interest charges pile up. Now it seems that anyone who fails to immediately pay in full is a credit risk who must be punished with a higher rate—no matter how good their payment record.

BofA’s move is part of a pattern among credit card issuers to boost rates before restrictions on increases instituted by bank regulators last year take effect in July 2010. Similar moves have been made in recent months by the likes of Citigroup, JP Morgan Chase and American Express. AmEx went so far as to offer cardholders some several hundred dollars if they paid off their balance and closed the account.

I was angry at being treated as a potential deadbeat by a bank that contributed greatly to the near meltdown of the financial system and had to be propped up by $35 billion in federal capital infusions. Yet when I called customer service I was told that, not only could I terminate my old Visa and gradually pay off the balance at the existing rate, the bank was prepared to offer me a new card at that same interest rate—and transfer the unused credit line from the old card.

I don’t know how many of the millions of people affected by BofA’s new policy were also offered an identical replacement account. In my case, at least, all that BofA has accomplished is incurring additional costs from administering a second card. With a business model like this, taxpayers should probably kiss our $35 billion investment in BofA goodbye.

Were Big Banks Fools or Knaves in WMD Conspiracy?

morgenthau1The big U.S. banks have been accused of helping bring about the near destruction of the world financial system. According to an indictment just announced by Manhattan District Attorney Robert Morgenthau, the banks also played a role, albeit unwittingly, in a conspiracy involving the proliferation of actual weapons of mass destruction.

Morgenthau (photo) brought a 118-count indictment against Chinese national Li Fang Wei and his metallurgical company LIMMT for conspiring to deceive half a dozen major U.S. banks into transferring funds used in the sale of banned weapons material to the Iranian military. The banks are JP Morgan Chase, Bank of New York Mellon, Citibank, Bank of America, Wachovia and American Express Bank.

The banks themselves were not charged, but it is remarkable how easily they were duped by Li, whose company had been placed on a Treasury Department blacklist in 2006 because of its dealings with the Iranians, which allegedly included the sale of components for long-range missiles capable of delivering WMDs.

Morgenthau’s press release says that “U.S. banks employ sophisticated anti-fraud and anti-money laundering computer systems to detect illegal payments from sanctioned entities and people.” Yet it seems that all Li had to do to circumvent that system was to tell his customers that the English-language name of his firm had changed (he used dubious aliases such as Blue Sky Industry Corporation). In some instances he did not even bother to change his telephone and fax numbers.

Morgenthau went out of his way to exonerate the banks, but he couldn’t resist mentioning that there are “parallels” between the LIMMT case and his office’s ongoing investigation of “stripping,” a practice in which banks remove identifying information from wire transfers to enable clients to avoid restrictions on transactions involving countries under U.S. sanctions. In January, Morgenthau’s office announced that British bank Lloyds TSB would pay $350 million in fines and forfeitures in connection with a deferred prosecution agreement involving the practice. Lloyds was accused of helping Iranian and Sudanese clients circumvent the Treasury blacklist.

Is it possible that by alluding to the Lloyds case Morgenthau was hinting that the banks in the LIMMT matter were not purely innocent parties? After all, there have been numerous other cases in which large banks have been accused of helping shady clients by failing to enforce rules designed to thwart money laundering. For instance, a decade ago Citibank was accused of doing nothing to stop the brother of Mexico’s former president from transferring large sums allegedly linked to drug smuggling and influence peddling. In 2004 Japan ordered the closure of Citi’s private banking operations in that country for violations that included a failure to implement money-laundering prevention procedures. In 2007 the NASD, now the Financial Industry Regulatory Authority, fined a securities subsidiary of Bank of America $3 million for violating anti-money laundering rules in failing to collect adequate information on certain high-risk accounts.

The banks may have been the fools in the LIMMT case, but they have often been knaves when it comes to the enforcement of international banking rules that may stand in the way of profit.

Banks Seek Windfall from Reshuffling their Portfolios

If the story had been dated April 1st rather than the 2nd, I would have assumed it was a prank. The Financial Times has just posted an article on its website headlined “Bailed-Out Banks Eye Toxic Asset Buys.” In it the London paper reports that major U.S. financial institutions that received bailout funds and capital infusions from the federal government are giving serious thought to buying up toxic assets from one another under the “Public Private Investment Partnership” scheme proposed by Treasury Secretary Timothy Geithner last week.

Yes, that’s right: the banks we’ve been told desperately need to rid themselves of those mortgage-backed securities are thinking about buying more of them. There are only two possible explanations for this. Either the banks have been bamboozling the federal government and U.S. taxpayers from the start about the supposed burden of these holdings. Or the Geithner plan is such a lavish giveaway to major investors that the banks believe they can potentially make a killing simply by reshuffling their portfolios.

The FT mentions that Goldman Sachs and Morgan Stanley are among the banks looking at toxic asset purchases. That’s not surprising, since Goldman, for example, is in good enough shape that it reportedly wants to buy out the $10 billion holding that the feds acquired in the firm last year. Yet also mentioned is Citigroup, an out-and-out basket case. If Citi thinks it can find a way to participate, you know this is the deal of the century.

This bizarre development further highlights the profound disparity between the way the Obama Administration is treating the banks and the troubled auto industry. If Detroit were getting the same kid-glove treatment as Wall Street, General Motors and Chrysler would be receiving big federal subsidies to buy each other’s unsold vehicles.

Instead, the head of GM was forced out by the feds, and the company is now being edged toward some form of bankruptcy, which would undoubtedly result in the decimation of what remains of contract protections for UAW members. Meanwhile, Vikram Pandit remains the chief executive of Citi and Kenneth Lewis continues to run Bank of America as Treasury goes through endless contortions to avoid the obvious conclusion that at least some of the large banks are insolvent and should be taken over and reorganized. One wonders how much longer the Obamans will cling to the dubious notion that only the bankers who caused the current mess can clean it up—and should be allowed to do so using what amounts to a blank check from the taxpayers.

Are Banks Fleeing Accountability?

It may be a coincidence, but some banks are repaying the aid they received from the federal government just as some real accountability is finally being injected into the massive financial bailout that has been going on since last fall. The repayment moves so far involve relatively small regional banks, but there have been reports that Goldman Sachs, the recipient of a $10 billion federal capital infusion, is eager to buy out Uncle Sam’s holding.

The stricter accountability that the banks may be responding to is coming not from the Treasury Department but rather from the watchdog bodies that were created in the bailout legislation enacted last year—especially the Office of the Special Inspector General for the Troubled Asset Relief Program. The SIGTARP himself, Neil Barofsky (photo), just offered some remarkable testimony to the Senate Finance Committee.

First of all, he provided a clear estimate of how much the federal government is potentially on the hook for in the dozen different bailout-related programs: up to $2.976 trillion, not counting the yet-to-be-determined cost of the capital that will be offered to banks after they are subjected to a stress test. (A breakdown of the costs can be found in the attachment at the back of his prepared testimony.)

Second, Barofsky reported that he demanded and received reports (still being analyzed) from every one of the 364 TARP recipients about how they are using federal funds and whether they are complying with restrictions on executive compensation.

Barofsky is also conducting special audits on external influences over the TARP application process, the various forms of assistance going to Bank of America, the controversial bonus payments at AIG and the payments AIG made to counterparties using federal bailout funds.

Whereas other federal officials have presented the TARP programs as impenetrable black boxes, Barofsky wants to shine a light on everything—even the initiatives that were designed before he took office and do not explicitly provide for SIGTARP oversight.

Barofsky emphasizes that his office is the only TARP watchdog that has criminal law enforcement powers, and he clearly intends to use them. He’s launched “more than a dozen criminal investigations” of possible bailout fraud and is working with the New York division of the High Intensity Finance Crime Area program, an initiative launched in the Treasury Department in 1999 to coordinate the prosecution of money laundering. Barofksy has even set up a whistleblower hotline (877-SIG-2009).

He is also working with the other TARP watchdogs, two of whom just testified with him in the Senate: Prof. Elizabeth Warren, head of the Congressional Oversight Panel, and Gene Dodaro, acting head of the Government Accountability Office.

Together, these entities are beginning to cut through the cloud of obfuscation that former Treasury Secretary Henry Paulson and, to an extent, his successor Timothy Geithner have built up around the bailouts. And some day in the not too distant future, some of the miscreants who caused the crisis and then abused the bailout may find themselves behind bars. That would be real accountability.

The Two Tim Geithners

Will the real Timothy Geithner please stand up? In recent days it has seemed as if two men with the same name are serving as Secretary of the Treasury. On the one hand, we have the wimpy Tim Geithner, who let AIG get away with its bonus outrage and who has come up with a new scheme to get rid of toxic assets of banks that is a massive giveaway to hedge funds. On the other hand, this week has seen the lionhearted Tim Geithner, who is proposing what appears to be an audacious expansion of federal regulation of financial markets.

The wimpy version has been around for quite a while, characterizing the Geithner who headed the Federal Reserve Bank of New York for five years before he was chosen for Treasury. A look through the online archive of the New York Fed turns up the texts of numerous speeches in which Geithner acted as a cheerleader for the forms of financial “innovation” that paved the way to the current calamity of the world economy. Geithner was not oblivious to the escalation of risk that derivatives and the like were creating, but he expressed confidence that the system could accommodate it. At most, some tinkering with the regulatory structure might be necessary.

For example, in a May 2006 speech to the Bond Market Association, Geithner stated: “The efficiency, dynamism and resilience of the financial system are strategic assets for [the] U.S. economy.  The relatively favorable performance of the U.S. financial system is the result both of the wisdom of past choices made to foster a very open and competitive financial system, but also is the result of good fortune and some of the special advantages that have come from the unique role of the United States and the dollar in the world economy and financial system.”

Later in the same speech, he suggests that “we need to be creative in identifying areas where market-led initiatives, rather than new laws, regulations or formal supervisory guidance, are likely to be successful and possibly more efficient in achieving certain policy objectives.”

Compare this to the Tim Geithner who just told the House Financial Services Committee that “our system failed in basic fundamental ways…To address this will require comprehensive reform.  Not modest repairs at the margin, but new rules of the game.” These rules would: give the feds the power to seize failing non-bank entities, create a kind of super-regulator to oversee all large financial entities, impose stronger capital requirements, tighten hedge fund registration requirements, extend regulation to credit default swaps and over-the-counter derivatives, etc.

All these proposed measures are welcome and long overdue, but they may not go far enough. Perhaps what we have here is the wimpy Geithner only giving the appearance of being bold. The Treasury Secretary (and presumably the Administration) would have us believe that banks, insurance companies and other financial institutions can continue gambling with other people’s money as long as they put more of it aside in reserves, act in a somewhat more transparent manner and pay more attention to risk management.

If there were a truly intrepid Geithner, he would be talking about regulations that put an end to the most speculative financial transactions, rebuild a wall between commercial banking and investment banking, and dismantle huge financial institutions such as Citigroup. That Geithner has yet to appear on the scene.