Friday, November 21, 2008
GM's board takes Broadway
Board members are fiduciaries; that is, they must act in the best interests of the corporation and its shareholders. But when facing a possible bankruptcy, the board must give increasing consideration to the corporations creditors, who often end up as shareholders in bankrtupcy.
GM has stated repeatedly it is not considering bankruptcy as an option. But with the company's cash dwindling fast and a bailout - if it materializes - delayed for weeks, is this strategy of brinkmanship prudent? Could the lack of preparation for a bankruptcy lead to great harm to GM's stakeholders - workers, customers, creditors, etc. - in the event that a bankruptcy does materialize?
It is not difficult to make the argument that GM's board is abdicating its responsibility to take prudent measures in the best interest of the corporation. GM's board would be remiss in not pushing for a bailout, but it is equally irresponsible in assuming it will materialize.
UPDATE: The Wall Street Journal is reporting that GM's board is now considering a bankruptcy filing. According to the Journal, the Board is breaking with GM CEO Rick Wagoner in considering the filing, and "is committed to considering all options in light of circumstances as they may develop." Good, consider their fiduciary exposure covered. Now the nation can turn to hoping they make the tough decisions on restructuring required if GM is to pull through this crisis.
Thursday, November 20, 2008
The fiduciary rubber meets the pension road
This is indeed a hardship on companies. With capital constrained and profit margins declining, companies will have a difficult time procuring that capital. Even those companies with sufficient cash flow may find themselves deferring jobs-creating projects, as the capital for those projects is instead diverted to top-up pension assets. But many companies continue to reward shareholders while asking the government and labor for subsidies. Since shareholders are residual claimants, the government should seek to limit such actions.
The list of petitioning companies includes many - IBM, Rockwell Collins, ITT Corp, Northrop Grumman, to name a few - that are currently paying a dividend. In case their boards forgot, dividends are a way to return excess capital to shareholders. Eliminating these dividends would be an excellent source of cash to divert to pension funds.
While searching for more sources of capital, it would not be unreasonable to examine executive compensation. Executives who generate substantial profits are often paid substantial compensation, and it is unlikely you will find this space arguing for a restraint of the executive compensation market. However, pension accounting can distort earnings. In the current case, if the company needs to inject additional capital to pension funds now, it could mean previous earnings were overstated (see note on pension accounting below). If executives were paid in accordance with the profits generated in the past, and it turns out profits were actually overstated, it follows that executives were over-compensated. Clawing back compensation would free up cash to fund pensions.
But even for responsible companies, deferring payments to pension plans creates a subsidy, born by the Pension Benefit Guaranty Corporation and labor. The PBGC is an insurance scheme that insures pensions. If a company defers payments to underfunded pensions, and then goes bankrupt - and with Ford and Chrysler amongst the companies petitioning for this change, this is a real risk - someone must bear that loss. Retirees could see pensions reduced to the PBGC ceiling, and the PBGC would be obligated to fund any shortfalls to payout the guaranteed PBGC rate. If too many companies default, the PBGC could require taxpayer money to remain in operation, shifting the cost of these deffered payments directly to taxpayers.
So how should policymakers balance companies' legitimate need to defer contributions while minimizing the risk to labor and the PBGC?
First, ensure companies truly are in need of deferral by only allowing companies that ban dividends and share buybacks to participate. This eliminates a company's ability to divert capital to shareholders at the expense of labor or the government.
Second, charge participants a penalty rate to be insured by the PBGC. Currently, companies pay $9 per year for each $1,000 of unfunded, vested benefit. Given that participating companies will be cashflow constrained, they are at much higher risk of bankruptcy and should be made to pay a significantly higher rate - the exact rate to be determined by government actuaries, but in excess of expected losses. The premiums collected from this program could help offset any eventual costs to the PBGC, limiting the exposure to taxpayers, while still significantly relieving the cashflow burden. Instead of being required to fund the full amount of under-funding, companies would simply pay the higher insurance rate of, say, 4% of the under-funded amount.
With these two mechanisms in place, it will be up to the company's board to decide how to best proceed. Since the program is costly, companies should only participate if they have no better option. This will force boards to consider other ways to generate cash - and as noted above, a good place to look may be executive compensation. For those boards that determine funding the plan would be impossible or too costly, they can choose to participate at the costly rate. The board would have to exercise their fiduciary responsibility to choose the course of action that is best for the corporation. Hopefully, the much maligned hedge fund industry can help keep boards honest in making these decisions.
Note on pension accounting
Pension accounting is extraordinarily complex, and far too involved to explain in detail here. But, considering a stylized example should provide a similar benefit. Pensions are a substitute for wages. In short, a pension is part of the cost of paying workers, and therefore is similar to labor cost. The cost of this benefit is simple: the amount of cash the company must deposit today to pay pension benefits to the worker in the future. This cash will be invested, and the proceeds of that investment will be used to pay workers in the future. This amount - the amount of cash contributed today - is an expense, which runs through the income statement and lowers net income.
Now, if a company has to inject more cash today to make up for pension benefits incurred in previous years, that implies the company did not pay enough cash into the fund in the past. If the company did not pay enough earlier, that means its total EXPENSES were UNDERSTATED, and therefore its NET INCOME was OVERSTATED. In short, the company did not really make as much money as everyone thought. This is a particularly challenging issue, mostly due to the fact that the inverse is also true: if a pension is overfunded today, that implies that the company could have injected less cash and shown higher net income in the past. Measuring these changes every year creates significant volatility, and complicates this issue. It is not clear whether the pension fund will show gains or losses in subsequent years or not, creating confusion as to what exactly the appropriate assumptions are for determining "fully funded" pension plans, the expense associated with those plans, and the resulting financial statements.
Wednesday, November 19, 2008
I'll see your executive order, and raise you one
As the Obama administration prepares to takes office, there has been much ballyhoo regarding the speculated decision on the part of the President-Elect to overturn roughly 200 of President Bush's executive orders.
Rulings on these executive orders tend to large be the spoils of war. There has been a long tradition of incoming President of a different party reversing policies of the prior administration. President Reagan enacted a ban on incidental funding of abortion programs overseas through foreign aid restrictions. President Clinton overturned this when he came into office, and President G.W. Bush responded in kind.
On the energy front, the big prize is the 18-year executive order banning offshore drilling in certain areas of the coast of the United States. Both Congress and the President have the authority to enact this ban, and environmental groups are pushing hard for Obama to renege on an election promise to allow these coastal regions to be explored.
Two orders that conservationists are hoping to kill without too much controversy:
1. Order directing agencies to remove some restrictions and regulation regarding distribution of exploration permits to oil and gas companies
2. Order requiring agencies to issue "impact statements" if they adversely affect energy development
The huge irony here is that any action the Obama administration does or does not take is largely symbolic in nature. Any areas of the country that are opened up to exploration as a result of refusing to reinstitute the drilling ban are years away from being able to yield oil and gas. Since the price of oil has dropped dramatically in recent weeks, the impetus to explore and find proven reserves with a high extraction cost has also waned. Therefore, resolving this issue will not help the price at the pump, nor will it make a dent in the US’s dependence on foreign sources of oil.
Any debate on this issue is a total waste of time. Spending time on this debate will only detract from the real problem, which is to put a solution in place that will curb the long-term domestic demand for petroleum.
Tuesday, November 18, 2008
Hank channels Yossarian
Treasury Secretary Hank Paulson must surely understand Yossarian's frustrations. After initial criticisms of the TARP, Secretary Paulson modified the plan to directly inject equity. Treasury was afraid injections would be stigmatized like Fed discount window lending, or worse - that banks not receiving capital would be assumed insolvent. To avoid this issue, Paulson required the biggest banks to take what had been advertised as "voluntary" government capital. Now the Treasury is taking heat for allowing these same banks to pay dividends, acquire foreign banks, and hoard capital instead of loaning it out. Here, Hank really starts to channel Yossarian. If he had restricted banks ability to pay dividends or make certain acquisitions, bank CEOs - and economic conservatives generally - would have been even more livid at being forced to accept government money. Without these restrictions, he watches $7B of taxpayer money flow to China.
The way out of Hank's catch-22 is to force this capital to be deployed to loans and restrict dividends and certain (e.g., foreign) acquisitions. Half of the $700B TARP funds already out the door, and the rest is waiting for the incoming Treasury Secretary. This Secretary will find it better to loan conditional capital to willing banks than to force ineffective loans on unwilling banks.
Monday, November 17, 2008
Review of the CBO’s Annual Report to Congress
In September the Congressional Budget Office (CBO) published The Budget and Economic Outlook: An Update (“The Update” references the September 2008 report). The piece is developed to provide US Congress with a basis for comparison of current legislation to the proposed changes in tax law and spending allocations. The report is developed in accordance to section 202(e) of the Congressional Budget Act of 1974; the CBO is instructed not to make recommendations, to simply report impartial analysis. In addition to the annual report, the CBO publishes monthly results. While the CBO may not be able to explicitly make recommendations, implicitly the CBO recommends that congress reign in spending, increase receipts, or both with the following statement regarding the long-term outlook, “Over the long term, the budget remains on an unsustainable path.”
The Update paints a grim picture for the
The unsustainable path is exacerbated by the aging
Discretionary outlays are set a new each year in accordance to appropriations acts. Discretionary expenditures are divided into defense (59% of discretionary) and non-defense (41%). As noted earlier, defense spending was revised upward by $1.0T over the forecast period as a result of a nearly $0.1T increase in the 2009 budget, which was anticipated to continue annually during the forecasted period. Discretionary outlays are subject to sharp swings and are difficult to forecast with substantial uncertainty in the composition of Congress and Presidential Suite. The Update projects Net interest to jump 17% over the next year, which was developed prior to the passage of the Emergency Economic Stabilization Act of 2008. The Update projected the national debt balance at $9,568B at the end of 2008, growing to $10,247B by the end of FY2009. After recent treasury auctions totaling roughly $1.0T in prior three months, the
With forecasted increases in outlays, receipts will need to increase to narrow the projected deficit. The projected deficits begin to fall in 2012 with the expiration of many tax provisions set in the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) and Jobs And Growth Tax Relief Reconciliation Act of 2003 (JGTRRA) as of December 31, 2010. Absent Congressional action to extend the provisions regarding capital gains, dividends, and ordinary income, statutory rates will increase for the 2011 tax year. The elimination of such provisions will increase receipts to roughly 20% of GDP in 2012 and individual tax receipts will increase from 8.2% to 10.9% by 2018. Over the prior decade capital gains has increased as a percent of receipts substantially, absent the dramatic decline in financial markets, this increase would be expected to continue until the expiration of the temporary decrease in capital gains rate to 15%. Depressed asset prices and an increased statutory rate will decrease the level of receipts from capital gains.
The November 7, 2008 Monthly Budget Review provided preliminary insight on the
Saturday, November 15, 2008
Is what’s good for GM good for the country?
General Motors is about to drive off of a cliff with the U.S. economy riding shotgun – unless Washington intervenes with a well-crafted policy intervention. The GM debate has focused on the two extremes of a spectrum of options. One extreme allows private markets to work without government interference. The other demands government-provided financial assistance. Neither extreme is attractive.
Pure market solutions: an invitation to pro-cyclical downward spirals
Without intervention, GM will declare bankruptcy. When pundits urge no intervention, they probably assume a Chapter 11 bankruptcy. Chapter 11 restructures debts, changes contracts, and modifies strategy. Supervised by a Federal judge, it is politically insulated and a known, existing process. Unfortunately, it is not available to GM because of the lack of debtor-in-possession (DIP) loans at manageable interest rates. DIP loans provide cash necessary for the restructuring. Without DIP loans, Chapter 11 will not work for GM. DIP lenders are unlikely to lend to GM for three important reasons: (1) lack of available funds at banks due to the economic crisis, (2) GM’s inability, even with restructuring, to generate profits or cash flow anytime soon, and (3) assets worth little in a liquidation.
With the Chapter 11 door closed and without government intervention, GM would be forced to file a Chapter 7 (liquidation) bankruptcy. This liquidation process, where GM would shut down all operations and sell its assets, would be an economic nightmare. With constrained available capital and unattractive alternative uses, assets would command low prices. Layoffs of automotive and related workers could approach three million, pushing the unemployment rate towards 10%. Suppliers would lead a wave of bankruptcies ensnaring businesses nationwide. Financial institutions would be weakened by bad loans and credit default swap payments. The Pension Benefit Guaranty Corporation would assume GM’s pensions (which appear funded prior to the financial meltdown, save for Delphi's obligations). Amidst the turmoil, consumer confidence would plunge. It is not difficult to envision an economic meltdown that must be avoided.
Bailouts: distorting economic incentives
While less dramatic, injecting taxpayer capital – no strings attached – has its own faults. Bailouts add to already huge U.S. deficits, reduce the need to make painful restructuring decisions, halt the process of creative destruction, and undermine U.S. calls for other countries to liberalize. Wealth would be transferred from taxpayers to equity or debt holders, retirees, employees and/or customers, depending on structure. With precedent set, every U.S. business would go hat in hand to Washington for their own subsidy. Without meaningful restructuring, a GM bailout would avert economic disaster but come at significant cost to the long-term health of the U.S. economy.
Efficiently restructuring GM requires relying on market forces that will result in necessary economic losses for different stakeholders. Equity holders recover nothing, bondholders face significant losses, suppliers lose business, and employees – whether unionized or not – face layoffs and lower compensation. Unions must rethink work rules, VEBA arrangements, and the Job Bank, while the management that isn’t fired faces reduced compensation and perks. Taxpayers lose wealth to bailout the industry. It is important that these groups face some costs to minimize the moral hazard in subsequent years. While losses are important to the overall functioning of creative destruction through bankruptcy, each group will engage in political maneuvering to avoid these costs by leveraging political power and the threat of liquidation or strikes.
The balancing act
Policy-makers must realize that neither extreme is without substantial cost. A policy solution must balance limiting “collateral damage” to the U.S.’s citizens and economy with the market forces that could shape GM into a competitive company. Limiting collateral damage requires avoiding liquidation at all cost. But how to balance avoiding economic catastrophe on one hand and forcing restructuring on the other? Pure market mechanisms are indifferent to political forces but force restructuring. Policy makers avert economic disaster but cannot overcome political pressure to sufficiently restructure. Conditional DIP financing provided by the government for a Chapter 11 bankruptcy could balance these two aspects.
Attractiveness of Chapter 11 restructurings
Chapter 11 is attractive because it is an established procedure and relies largely on the market mechanism of creditors acting in self interest to achieve efficient outcomes. With Chapter 11, politicians would have difficulty interfering and creditors would act in their own self interests to maximize returns. Managers would not be fired due to political pressure, but rather only if the creditors thought someone else would do a better job. Union contracts would not be renegotiated on the basis of delivering votes in the next election, but on the basis of economic negotiations. This market mechanism would pervade nearly all decisions, with two importation exceptions.
First, DIP loan specifics – size and interest rate – are typically determined by competitive market forces that do not exist in this scenario. Therefore, a substitute must be found to determine loan size and rate. A third party restructuring firm could develop the restructuring plan in coordination with auto company management. By paying that firm based on the return on capital, the incentives would be to minimize both the amount and duration of capital deployed.
Second, a systematic risk regulator would be required to avoid decisions that maximize GM’s returns but threaten the wider industry. An ideal regulator would be from the Federal Reserve, a non-partisan, politically insulated institution that is already tapped to be the systematic risk regulator in a new Treasury proposal. This regulator would ensure that no actions taken by the bankruptcy court would undermine the broader economy. For instance, the regulator would be able to halt liquidations, require additional capital injections, or veto decisions that would cause waves of bankruptcies. This is the critical addition of a limit to the normal market forces that drive a bankruptcy proceeding.
In addition to the benefits described for the high probability that GM ended up in such a system, this mechanism also has the benefit of incentivizing parties to avoid bankruptcy. Currently, GM has a strong bargaining position to argue for a bailout: the alternative is economic disaster. However, if the government announces not that it will prevent a GM bankruptcy, but rather GM liquidation, management teams of GM and similar firms will be strongly incentivized to avoid filing for bankruptcy and the probability they are forced from their jobs.
Conclusion
Modified in these ways, a Chapter 11 bankruptcy system would provide the safeguards required to keep the economy from starting down a negative spiral while imposing the fewest distortions to the effective bankruptcy system already in place. It limits short-term dislocations by ensuring, via regulation, that a firm that is “too big to fail” does not create a procyclical economic decline while requiring painful restructuring that limits firms’ willingness to rely on government intervention.
Friday, November 7, 2008
The future of campaign finance
Individual Contributions vs. Federal Funding- 2008/2004 elections
Democrats had been the strongest supporters of campaign finance reform in recent years, having been out-organized and out-spent by Republicans for the better part of 25 years. Now that they have achieved a degree of parity, it remains to be seen who will emerge as the patron saint of federal election funding. If the program is to remain relevant, the government must either dramatically increase the amount of money available or else remove the spending restrictions altogether.
Perhaps the traditional forms of civic organization whose decay we have been tracing have been replaced by vibrant new organizations. For example, national environmental organizations (like the Sierra Club) and feminist groups (like the National Organization for Women) grew rapidly during the 1970s and 1980s and now count hundreds of thousands of dues-paying members. An even more dramatic example is the American Association of Retired Persons (AARP), which grew exponentially from 400,000 card-carrying members in 1960 to 33 million in 1993, becoming (after the Catholic Church) the largest private organization in the world. The national administrators of these organizations are among the most feared lobbyists in Washington, in large part because of their massive mailing lists of presumably loyal members.
These new mass-membership organizations are plainly of great political importance…For the vast majority of their members, the only act of membership consists in writing a check for dues or perhaps occasionally reading a newsletter. Few ever attend any meetings of such organizations, and most are unlikely ever (knowingly) to encounter any other member. The bond between any two members of the Sierra Club is less like the bond between any two members of a gardening club and more like the bond between any two Red Sox fans (or perhaps any two devoted Honda owners): they root for the same team and they share some of the same interests, but they are unaware of each other's existence. Their ties, in short,are to common symbols, common leaders, and perhaps common ideals, but not to one another.
Detroit Automakers and Fuel Efficiency
As reported here, the original idea for the $25B in aid was that it was supposed to help ease burden on automakers who were mandated to improve their fuel efficiency 40% by 2020 as described in the Energy Independence. Thus, it was meant to be a long-term subsidy designed to help fuel R&D. Unfortunately, due to the economy and Detroit's pattern of behavior, it seems highly unlikely that the federal aid will ever be used for this purpose.
It turns out that October has been a terrible month for the domestic automakers. They have been burning through cash at a faster rate than any had forecasted, and GM and Chrysler are now seeking to merge in order to stave off filing for bankruptcy.
In addition to the $25B in aid, which has yet to be disbursed, GMAC (a GM subsidiary which holds auto mortgages) is looking to convert to a bank holding company in order to access the $700B in TARP funds. Furthermore, GM and Chrysler have asked for an additional $10B in federal funds in order to effect their merger.
What happened to reduced dependence on oil? Politics aside, it seems to me that the $25B will now never find its way into R&D in order to improve fuel efficiencies. Perhaps the money was better spent funding providing equity or debt capital to alternative energy or clean tech start ups and established companies. Indeed, if a private sector solution is not to one's liking, then there are plenty of government funded research programs at academic institutions and government labs which are perfectly equipped to start an organized research effort (see Manhattan Project or Apollo Program) with an end goal in mind.
Perhaps it's not to late. There has been talk of the government taking warrants in a combined GM / Chrysler entity which should allow it to push its energy policy through a private organization. Given that curbing gasoline usage in the transportation sector is the most important way to solve the country's energy needs this will make the government a long term partner in this sector. Thus, the government will create for itself a lever in the marketplace in addition to current regulatory mechanisms (fuel efficiency and emissions standards).