THE OBVERSE SIDE OF THE COIN: Should a Company “Too Big to Fail” be Governed by Rules Applicable to Companies that Are Not?
January 2, 2009
I confess to having a strong partiality for deductive logic. Conclusions that have been derived deductively are not refutable, save only if one’s main premises are faulty. Inductive logic on the other hand, like all axiomatic theories, may give us innumerable points on a curve so as to lull us into a sweet semblance of security, but is always susceptible to that one case that we have not as yet found that proves the rule. Moreover, it is based upon that most fundamental of logical fallacies; namely that of “post hoc, ergo propter hoc” (or, for those of you disdainful of classical Latin, “after this, therefore because of this”). For those reasons, in structuring any analysis I endeavour to tarry as long as possible in that perfect, halcyon tranquility of the analytic a priori, before venturing forth into the unknown, treacherous shoals of those Sirens who beckon unsuspecting thinkers with the temptations of their “scientific method.”
It was with this approach in mind that I began to wonder what exactly was entailed in our government’s concern that the money-centered institutional banks together with the Big Three Automakers “had” to be bailed out with hundreds of billions of our tax dollars. Those who have written on the subject begin and end with the question of when it is that a firm becomes “too big to fail.” Whilst defining where on the spectrum of size and importance an enterprise crosses that gossamer line of infallibility is a subject that I intend to explore another day, I am prepared, for purposes of this exposition, to deal with only the obvious, undisputed cases wherein we may apply by analogy the Supreme Court’s “stand-up-and-be-counted” definition of pornography to this situation: we may not be able to define it, but we know it when we see it. Rather, my concern is with the implications of a firm being “too big to fail;” implications which have been almost universally ignored, but which, like a two-ton, long dead elephant in the middle of the living room that everyone is trying to ignore, is beginning to stink.
For the standpoint of purely normative logic, therefore, what then does it mean to say that a firm is “too big to fail”? What do the attributes of a “failure” entail? Why and how did our society provide for the firm to achieve such status? On the macroeconomic level, such behemoths have become so inextricably intertwined in the very functioning of our economic structure that their sudden demise would lead to a chain reaction of failures and, ultimately, the collapse of the system itself. At some crucial point in their development, the nurturance provided by our capitalistic and governmental structures made them peers of those systems, with the resulting consequence that they, in turn, developed their own, independent gravitational sphere of influence. From that point forward, a symbiotic equilibrium began to develop with their environment: the larger they grew, the more they became a source of economic prosperity off of which other enterprises could feed, and this added prosperity in turn, because, they were a principal beneficiary of the political-economic environment, increased the prosperity, power and influence of these multi-national titans.
But just as a black hole warps the space around it, so do these “black holes” of economic power and social influence warp the normal rules that we take for granted and which are applicable to small to medium sized enterprises. That is also why we have different rules for our governmental units than we do for private firms. By way of example, at the beginning of the twentieth century, minimum wage laws and laws limiting the number of hours that women or children could work were held to be unconstitutional violations of the right of freedom of contract. But by 1937, however, it had become clear that the rapid and unbridled growth of the power of the barons of industry effectively had eliminated any meaningful right of “free contract” such that the new facts of economic life warranted the repudiation of the old law. Thus it became appropriate to burden industry with minimum wages and maximum hours to counterbalance the unintended economic power that our system had enabled them to acquire. Clearly, neither any American nor any of its leaders foresaw or intended industry to obtain such power; but we did encourage and intend to create an environment that would reward excellence, punish incompetence, and provide a comparative advantage to economies of scale. The adverse effects from their accumulating too much power was just an unintended consequence, although one that, in hindsight, seems obvious.
So it is with these behemoths that have grown to the point of being “too big to fail.” As with their early twentieth century ancestors, their status in our society may not have been the result of any intentional plan on their part, but was nonetheless a direct result of their having taken advantage—albeit properly—of the nurturance that our society had established. In this sense, the result too was foreseeable. So now we must ask the next question: With their having nonetheless grown in power and influence to the point whereby society cannot permit their demise so that special rules become applicable to them, have not the rules also been altered with respect to times of plenty? Putting this question another way, with their having chosen—intentionally or not—to have crossed the Rubicon of size and power so that they are so infected with a public interest that their failure is no longer a private concern, have they not also forfeited their right to claim to be governed by private company rules in general? That is, as their fate affects us all and their fortunes must be supported in lean times, should not the benefits of their success be shared as well in times of bounty? Should not as well their management be answerable to all stakeholders in the enterprise, rather than only to those transient investors who happen to hold shares of stock at any given time?
Think, too, about the fact that the Fortune Global 100 would rank between the 32nd and the 96th largest countries in the world if their revenues were simply called “gross domestic product.” Yet these companies’ governance structure is effectively a dictatorship with legal obligations only to serve the interests of a small stockholder oligopoly. Is such a governance structure for any political and economic organization of such a magnitude and influence proper in a civilized and democratic society?
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