This year's notorious Supreme Court decision on campaign finance found that corporations have the full rights of individuals, at least in that area. The truth is, most of us do approach big companies as if they were people -- and then, when those companies wreak havoc on the country, no one can be found to hold accountable. Congress can pass new regulations, but that's little consolation to the victims. Anyway, both the Wall Street meltdown and the Gulf spill unfolded not only because regulation was lacking, but because enforcement was lax where regulations did exist. In both cases, then, we see signs of "regulatory capture," with the SEC and the Minerals Management Service applying existing regulations in ways which, at a minimum, permitted the persistent risks that eventually led to disaster. In the quest for accountability, there also inevitably will be lawsuits. But that may not produce real accountability either. The companies may not survive to pay any judgments; and when they do, the costs fall to its current shareholders. The executives whose decisions actually brought on the crisis are left unaccountable - a moral hazard of the first degree -- and the rest of us are left unsatisfied.
Some of the public's outrage about both crises probably stems from people's assumption that large companies do operate like people, at least in respecting broad social norms. So, we expect our bank to be concerned about our personal finances, a view implicitly encouraged by the sketchy form of the neoclassical economics that dominates public discourse. In an abstract world of the perfectly efficient market, that market constrains banks to offer us goods and services that serve our interest; in the real world, our banker's retail job is simply to sell us his bank's products based on how profitable they are to that bank. And even when we recognize the difference, we assume our bank won't abuse our trust, because the law will prevent it and, anyway, educated people just don't act that way.
Similarly, whether or not Gulf residents expected oil companies to share their concerns about their regional environment -- and many certainly did have those expectations -- the market was supposed to ensure that the risk of incurring $20 billion or more in liability costs would prevent reckless operations of deep-water rigs. For how this works in the real world, think of Toyota: Like Toyota, BP adopted a calculus in which cost-saving measures outweighed those risks; and in deep-water drilling, that often involves less stringent safety systems and standards. So, even as BP was fined much more often than its rivals for deep-water rig safety violations, BP shareholders enjoyed years of higher returns.
If we can't depend on regulation or potential liability to stop reckless corporate decisions, it's time to focus less on the corporate "person" and more on the actual people who make those reckless decisions. The laws of corporations have long shielded a company's decision makers from personal liability for corporate decisions, based once again on the idealized view that market competition will reliably drive executives to make decisions based on their shareholders' best interest. But economists have long recognized -- it's called the "agent-principal problem" -- that the interests of executive decision makers (the agents) can diverge sharply from those of the shareholders (the principals). And how those executives are rewarded for their decisions can make that divergence very wide and deep if, as with both Wall Street and BP, they can earn huge bonuses for steps that boost short-term earnings even when the decisions that generate those earnings eventually bring down the company. While Paul Volcker and a few others have called for a ban on such compensation schemes, Congress has bowed to Wall Street protests, in a form of "legislative capture" as dangerous as its regulatory counterpart.
The result are nearly perfect conditions of moral hazard for America's top executives, especially in critical areas like finance and energy, where their moral hazard can be most dangerous to the rest of us. Since moral hazard affects the top decision makers, perhaps more than their institutions more generally, the Wall Street and Gulf disasters suggest that it's time to revise the limited personal liability provisions of the corporate form: The government should be able to sue executives personally for decisions that turn very bad for the rest of us - involving costs of, say, at least $25 billion -- when those decisions entail risks that rise to a standard of negligence. This change could even be part of broader tort liability reform. But whether it is or not, it's time to pierce the veil of the corporate "person" and get to the real people whose personal interests repeatedly lead them to embrace risks that end up harming tens of millions of others.
Cross posted at the NDN blog.
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