Saturday, October 25, 2014
12

太大而不能抓

华盛顿—运转良好的司法体系无不具有以下基本原则:不要对法官撒谎,也不要在呈堂证供上耍猫腻,要不然你就会被丢进监狱。违反描述事实的承诺便是作伪证,而在正式呈堂证供上撒谎不但是伪证,更是欺诈。这些都是十分严重的罪名,但显然,如果你身居美国金融体系要职,那么这些都不适用于你。相反,那些要人还因为此种罪行而受到了丰厚的奖赏。

正如Better Market的凯勒赫(Dennis Kelleher)所指出的,最近出现的“机械签名”和解——五家大银行就欺诈性剥夺按揭赎回权的法律责任“和解”一事——是对金融业彻头彻尾的背叛。

首先,该案没有导致任何严重的刑事诉讼——这意味着没有人会被判重罪,也没有人会被丢进监狱。从对高管的激励的影响上说,只有一件事是值得考虑的。

就连用来定义这场讨论的术语也是不恰当的。凯勒赫是一位在私人和公共领域都有着丰富经验的律师,他是这么描述的:“‘机械签名’是一种大规模、系统性的欺诈罪行。”或者——用他的话说——我们也可以称之为“撒谎、舞弊、盗窃。”

其次,改和解案的民事处罚——一笔罚款——对涉案公司来说不啻九牛一毛。正如报道该案的记者之一纳斯里波尔(Shahien Nasiripour)所指出的,“这五家贷款人都认为不会因和解案受到实质性的惩罚。”换句话说,从公司角度来说,民事处罚根本不值一提。

第三,这笔罚款与其他案件一样,是由股东支付的,而不是由高管或董事(他们都有保险保护着呢)支付的。即使在极少数罚款由个人承担的案件中,要么被罚者的保险支付了罚金的大头,要么罚金与犯罪带来的好处比起来不值一提,要么两者兼而有之。

如果说这一切还不够糟糕的话,那么看看这一条:据报道,这些银行将可以使用政府资金来减记按揭贷款的价值,然后用减记额来补贴这笔毫无意义的罚款。

奥巴马政府及其盟友竭尽全力把这桩价值大约200亿美元的和解案包装成能给住房市场带来积极影响的案例。但事实说明了一切。正如凯勒赫所指出的,美国“至少有1 000万房子处于资不抵债状态”(即待缴按揭超过房屋价值)。“两百亿美金扔下去连响都不会响一声:100万套房子,每套贷款2万,就把这笔钱给吞了。”

事实上,奥巴马政府与五家按揭贷款人的和解与其对金融部门的一贯政策是一致的,一言以蔽之,糟糕透顶。但此举又是颇为可疑的。在现今的大环境下,为何奥巴马政府要一再让步,对顶级银行家如此宽宏大量?

实话实说,我并不认为政府立场与腐败有关,罚款不会流入个人腰包甚至竞选活动。此外,就本案而言,我甚至不认为这与金融业大佬的游说能力有关。2010年的多德-弗兰克金融改革之所以不够严厉,如今针对该法案的实际实施的反对声音之所以如此之多(比如,最近围绕限制大银行自营交易的“沃克尔规则”出现了相当激烈的争论)其中显而易见都有游说势力的影子。但按揭贷款人的犯罪行为是另一码事。

事实上,在按揭和解案背后是对法治精神的基础性、系统性的违背,是侵蚀了整个经济的伪证和欺诈。毫无疑问,司法部拥有充分起诉被控罪行所需要的一切权力。但美国的最高执法机构却一直——现在则是完完全全地——倒行逆施。

政府对严重犯罪的纵容背后的主要动机显然是害怕对银行家个人采取严厉措施所造成的后果。政府投鼠忌器或许无可厚非,因为有问题的银行规模相对于经济来说太大了。事实上,这些银行较危机之前比起来规模变得更加庞大了,而正如郭庾信(James Kwak)和我在《13位银行家》(13 Bankers)一书的长文中所指出的,它们较20年前比起来,规模庞大了许多。

顶级银行家想大把赚钱,又不想蹲监狱。政治领导人可以极尽威逼恐吓,但如果没有可信的穷困潦倒、身陷囹圄的危险,银行家就没有理由依法行事。对他们来说,一切都是买卖,不管你是公共政策制定者还是个人借款者,一不留神就会成为银行家刀俎下的鱼肉。

如今,银行高管获得的信息很简单:尽量把你的银行做大,然后保持增长。只要你成功地变得足够大,拟合你的雇员将不仅仅是太大而不能倒,而且还是太大而不能抓。

而奥巴马政府把其他所有人都变成了鱼肉。

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  1. Commentedpeter fairley

    I never read one good robo-signing article and feel it was a very left wing prejudiced issue. Some mistakes were made...but did it really affect millions of people in a criminal way? People don't pay their mortgages and get foreclosed on. That is a clerical issue. A lot of the foreclosures involved homeowners pulling so much cash out their house on re-fi's with alt-a ,subprime and even "normal" loans, they were in effect selling their house to the bank in advance, or even robbing the bank. If you look at the FBI website, you see that the FBI goes after gangsters for doing this same thing. It was a disservice for bank execs, the Fed, the FDIC and state govt overseers to have allowed this, but the homeowners did get the cash and the banks should at least get the keys and be able to take the loss. Mr Johnson has made a bad impression on me in Bloomberg interviews for catering to popular leftist prejudice and would make a better impression here if he detailed exactly how criminal these bankers were to millions of people regarding the robo-signing, otherwise he is just joining the vague left wing and calling names.

      Commentedpeter fairley


      Hi Andrew. Respectfully. The main effect of the robo-signing was to give attorneys a loophole to tie foreclosures up in court for a long time. Nonpaying homeowners got to live rent free for a very long time. Banks were further weakened. Govt purse & taxpayers supporting banks further strained. The markets did not clear, financial crisis prolonged. Have you ever lived in a state like Massachusetts? Lol, I have. Simon Johnson is a famous and somewhat excellent economist but he should not be encouraged to be corrupted by populism & crowd pleasing. That is big part of why we got into this mess.

      CommentedJohn Aho

      Enforcing the rule of law in a democracy is hardly 'left wing'. What are you saying? And since when is defending fraud a "right wing" stance? It certainly isn't a conservative principle. And yes, it really did affect millions of people in a criminal way. Systemic fraud is like that. With respect to prosecuting just the "lawyers", fair enough but they are hired, instructed and paid by their clients to make documentation as complicated as possible. This is what justice has become in America, yet another example of the harm caused by letting the TBTF banks have a free ride to commit fraud against America, that then becomes a defended and honored way of doing business. Meanwhile, the rest of the world is laughing at us. A "disservice". Really?

      Commentedpeter fairley

      Put the lawyers in jail who advised the banks that it was ok to process the paperwork this way. The lawyers generate so much paperwork and complexity, no one can deal with it. How many homeowners were actually harmed by robo-signing? Not many!! This is the worst legal circus since the silicone breast implant lawsuit against Dow Chemical, no evidence of harm but millions paid in damages. The crime was being out of touch with real issues and dangers and this article is following that same out of touch path.

  2. CommentedJohn Brian Shannon

    I think Simon, that your chosen title may be more right than even you may realize!

    No matter which administration would have been in power over the past two years, the result would have been the same. It's not a democrat thing, nor would it have been a republican thing had that party been holding executive power.

    What citizens see as the one-time solution, is merely a down-payment - a dry-run for the next round of financial bailouts for financial institutions, which, according to your calculation is one-tenth, or even less, of what is actually needed to solve the numbers problem.

    I fully expect to see bailout after bailout about every two years, or so, until the numbers return to a stable condition.

    It's no secret that it is up to government to set legislation, regulation and oversight of the financial sector.

    If the government have let standards slide to a certain state of affairs since the 1990's, to now prosecute the individual banks and bankers who merely function under the regulatory controls set and enforced by the government - would seem counter-productive.

    Counter-productive, because those bankers would be only too happy to hold forth in a packed courtroom about the lax regulatory environment they found themselves operating in.

    Rather than air all that in public, the government (any government in power, whether it would have been democrat or republican) just decided to make the problem disappear - using the government two-year installment plan.

    As long as things are kept to a dull roar, the banks will get the money to balance their books, nobody needs to go to jail and the government doesn't need to be embarrassed in the media.

    In the end, all that has really occurred is that the government has acted as the insurer of last resort to the financial institutions that the government were supposed to oversee, but for unknown reasons were unable.

    The Obama administration is merely addressing a problem which evolved into a major event over a time-span of two or three decades.

    If citizens feel they need someone or something to blame, they should at least be told what it is and was, a systemic failure.




      Commentedpeter fairley

      It would be more appropriate here to also give a link or some summary of the lawyers defending the banks. Lawyers get paid to give one side only. Professors should give both sides and additional detail. We need leaders devoted to OBJECTIVE truth and information that includes BOTH sides. Were New England academics banging the table during the Real Estate bubble about too easy credit, subprime & negative amortization loans? about the possibility of a DOWN RE market as well as an UP market? No. They were banging the table and signing formal letters from their colleges that Larry Summers, president of Harvard was sexist and should be censored, or worse.

  3. CommentedSanjeev Chadha

    Isn't their a conflict of interest in possessing such views and yet being a senior fellow at the Peterson Institute.

  4. CommentedAndrew Purdy

    Why should this surprise anyone? Obama has been amazingly good to the Financial Industry. They give only token support to his political opponents (minor hedging of their bets with Romney), and he only pretends to have the DOJ shake a stick at them. A mutually beneficial arrangement.

  5. CommentedPaul A. Myers

    I'm a CPA with a small business practice. The answer to Simon Johnson's question is simple: there's one tax code for "us," and another tax code for "them." Mitt Romney pays taxes in accordance with "them." There are also two sets of "equal application of the law" in this country: one for "us," and another for "them." Banks are "them."

    If you are a small business and taken to court for one the myriad reasons upon which you can be sued, you are forced to settle because you cannot afford to lose and you know that the entire game is rigged against you. The plaintiffs' attorneys' clients will commit perjury like rain coming down on a winter day. In California, the entire civil court system is a temple to perjury and fraud; a system designed to shake down insurance companies. That is why Johnson's opening sentence is naive: false documents and perjury are a commonplace in our system.

    The US Congress has decided to let moral hazard go by the boards. Let the future shift for itself is the message. What we have is what Congress wants: a system of privilege that Congress can hold hostage to campaign contributions and cushy post-retirement jobs (People have been paying Rick Santorum, a truly failed ex-senator, almost a million a year to be a lobbyist. Imagine what someone with some intelligence must make!).

    Once again Simon Johnson is to be commended for making clear the serious fundamental problems with our banking and finance system.

  6. CommentedProcyon Mukherjee

    The article raises the question why big banks should be above law when it comes to punitive actions for crimes committed that led to bail outs with tax-payer funds that were stratospheric in nature. The question is perhaps not about how big the problem could be compounded to merit such a denouement, the moot point is how the process had been rigged right from the start when the bubble had been orchestrated by an ensemble of ‘banker-intermediary-rating agency - legislature-judiciary’ system that was based on the fundamental assumption that prices have only one way to go regardless of all other signs in the economy. But if the corrections have now been made with commensurate fall in net worth of all affected individuals it is noteworthy that big bankers could still stay completely unaffected going by the positive change in their net worth, that in some ways is a malaise for the common good.

    Procyon Mukherjee

  7. CommentedJake Lopata

    You are being very critical here, U.S. law has taken shape over the course of our history. I don't think it's a stretch to assume that some of the biggest players in history have helped shape our Laws (for better or worse).

    Where we are today is only our own fault, we have allowed the legal system to assume its present form.

    If you want to stop bailing banks out, letting crooked bankers off the hook, and create justice for those who were victims; then you fix the system.

    This is the largest and most daunting, yet necessary, task of all.

  8. CommentedPatrice Ayme

    The law was the domineering notion ruling the Roman state. It lasted 5 centuries under the form of a pure republic. And, overall, 21 centuries in maximum extent.

    If there is no respect for the law, there is none for the republic, nor civilization. The non prosecution of some of the most major criminals may have the exact same effect as it did in Rome, namely switching from a republic with elections to a fascist empire with much fewer elections. This is exactly what is happening with the most major bankers right now. Worse: to make sure they will not be prosecuted, they augment their influence.
    By the way, as Goldman Sachs was the biggest private contributor to Obama's 2008 campaign, it is more than curious to claim that corruption played no role in Obama's decisions. The evidence, as history will no doubt remember it, is the exact opposite.

    But distorting even the most basic common sense is what is taught when the law is grossly violated for all to see.
    http://patriceayme.wordpress.com/2011/12/22/no-law-no-republic/

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