Federal Power Grab: Executive Pay

Virtually unnoticed, on Friday, the House of Representatives passed a bill giving the federal government the power to regulate executive compensation at public companies. This bill, sponsored by Comrade Barney Frank, passed 237 to 185, largely along party lines.

Not only is this an amazing seizure of power by the federal government, but the bill’s proponents have been misleading the public about what the bill does. They have sought to give the impression that the bill only requires non-binding votes by shareholders and that it applies only to TARP recipients. Neither contention is true.

What The Bill Does

The bill in question is called the Corporate and Financial Institution Compensation Fairness Act of 2009 (H.R. 3269). According to the introduction to the bill, the bill amends the Securities Exchange Act of 1934:

to provide shareholders with an advisory vote on executive compensation and to prevent perverse incentives in the compensation practices of financial institutions.

Note the second clause, after the word “and,” this is the part of the bill the supporters want you to ignore.

Whenever the bill has been discussed, its supports address only the first part of the bill, and in those discussions they make the claim that the bill “only” requires (1) that shareholders be advised of executive pay arrangements and so-called golden-parachutes, and (2) that shareholders be allowed to vote, in a non-binding vote, on whether or not to approve those compensation agreements. And that is exactly what Section 2 does. So what’s the problem?

The problem is Section 4, which they always fail to mention. Section 4 contains the following legalese:

The appropriate Federal regulators . . . shall prescribe regulations that prohibit any compensation structure or incentive-based payment arrangement . . . that the regulators determine encourages inappropriate risks by financial institutions or officers or employees of covered financial institutions that

(1) could threaten the safety and soundness of covered financial institutions; or

(2) could have serious adverse effects on economic conditions or financial stability.

Let’s put that into English. The Federal government can prohibit any pay practice that the government thinks could harm the company, the economy or the financial markets.

And to whom does this bill apply? It applies to any bank that participates with the FDIC, any credit union, any broker-dealer registered under the SEC, any investment advisor, and “any other financial institution that the appropriate Federal regulators. . . determine should be treated as a covered financial institution.” In other words, the “appropriate federal regulators” will figure out who is covered -- and if the TARP and TALF are any indication, a great many non-financial companies will be surprised to learn they are now financial companies.

So who are the appropriate federal regulators: (1) The Federal Reserve, (2) the Office of the Comptroller of the Currency, (3) the FDIC, (4) Office of Thrift Supervision, (5) the National Credit Union Administration Board, and (6) the Securities and Exchange Commission. Together, these agencies regulate virtually every large company in the country.

And for the record, nothing in this bill limits its application to TARP recipients, as Rep. Jeb Hensarling (R-TX) made clear during a CNBC interview.

What The Public Was Told

So what has the public been told? The Chicago Tribune mindlessly echoed the bills supporters, when it stated:

Say-on-pay votes would be non-binding, would take place months after compensation is handed out and wouldn't force companies to alter the payouts.

They failed to mention Section 4.

The New York Times, on the other hand, grasped the second part of the bill, but only after the bill was passed:

The bill, introduced by Representative Barney Frank, Democrat of Massachusetts, enables regulators to ban payments that give workers what the legislation calls “perverse incentives” to take risks that could hurt the nation’s financial system.

The bill gives the Securities and Exchange Commission, among other federal regulators, nine months to propose rules for regulating compensation packages at institutions whose assets total more than $1 billion.

Before the bill was passed, the Times was a good deal less clear on this point, though they did mention it. That article began:

The bill does not set pay limits. Instead, it gives shareholders the right to vote on pay and requires that independent directors from outside of management serve on compensation committees. The shareholder votes would not be binding on company management.

And then way down the page, they added:

The measure also gives regulators the authority to prohibit inappropriate or risky compensation practices for banks and other regulated financial institutions.

Close. But then they added:

Democrats led by Mr. Frank also agreed to . . . reduce[] the authority of regulators by giving them power to restrict only incentive-based pay arrangements instead of any kind of compensation.

This is a stretch. Section 4 states that the regulators may “prohibit any compensation structure OR incentive-based payment arrangement.” An “or” generally means multiple choices, and rarely means “only.” Thus, claiming that only incentive-based pay arrangements could be restricted was not exactly accurate. Also the use of the word "inappropriate" implies that such practices were already improper, not that they would be made improper by the new regulation. Indeed, reading this article, it's not clear that much of anything would be done by the regulation.

In any event, the real lying was left to Democratic Congressmen like Rep. Gregory Meek, D-NY. Meeks told CNBC prior to the vote that all the bill did was to require disclosure of pay schemes to shareholders and require “non-binding” votes by shareholders. . . it does not cap pay or prohibit the use of incentive-based pay in any way, he assured viewers. And he managed to maintain this lie for some time during the interview, until the anchors confronted him with the wording of the legislation itself.

At that point, he dissembled and rephrased his answer to state that the point of the bill was not to cap executive pay or to take away incentive-based pay, and that “most of the votes is [sic] non-binding.” But then, the point of communism was to make a better world, not to kill a hundred million people, as the practice turned out.

So Does Obama Support This Bill?

You would think there would be no mystery about whether or not Obama supports this bill. But on August 1, the New York Times reported that while Obama has advocated nonbinding votes for shareholders, “the White House has not suggested that federal regulators curb incentive-based pay for risk-taking.”

Of course, this contradicts the New York Times’ July 29th report, which stated that the legislation “closely resembled an Obama administration proposal seeking to impose new restraints on executive pay.”

But it played along nicely with the “we haven’t decided” game played by White House spokesman Robert Gibbs, who stated that no decision has been made yet whether the President will support this bill or not. . . apparently he is “not familiar” with the whole bill.

Sadly for Gibbs, Tim Geithner did not get the obfuscation memo, and he rushed out to issue a statement that said of the legislation:

This is a positive step forward to increase accountability and transparency in executive compensation, and to help ensure that pay encourages long-term performance, not excessive risk-taking.

That sounds like support. It also sounds a bit like central planning. . . comrades.