William K. Black December 13, 2018     Bloomington, MN

The Wall Street Journal published an article on December 12, 2018 that should warn us of coming disaster: “Banks Get Kinder, Gentler Treatment Under Trump.” The last time a regulatory head lamented that regulators were not “kinder and gentler” promptly ushered in the Enron-era fraud epidemic. President Bush made Harvey Pitt his Securities and Exchange Commission (SEC) Chair in August 2001 and, in one of his early major addresses, he spoke on October 22, 2001 to a group of accounting leaders.

Pitt, as a private counsel, represented all the top tier audit firms, and they had successfully pushed Bush to appoint him to run the SEC. The second sentence of Pitt’s speech bemoaned the fact that the SEC had not been “a kinder and gentler place for accountants.” He concluded his first paragraph with the statement that the SEC and the auditors needed to work “in partnership.” He soon reiterated that point: “we view the accounting profession as our partner” and amped it up by calling accountants the SEC’s “critical partner.”

Pitt expanded on that point: “I am committed to the principle that government is and must be a service industry.” That, of course, would not be controversial if he meant a service agency (not “industry”) for the public. Pitt, however, meant that the SEC should be a “service industry” for the auditors and corporations.

Pitt then turned to pronouncing the SEC to be the guilty party in the “partnership.” He claimed that the SEC had terrorized accountants. He then stated that he had ordered the SEC to end this fictional terror campaign.

[A]ccountants became afraid to talk to the SEC, and the SEC appeared to be unwilling to listen to the profession. Those days are ended.

This prompted Pitt to ratchet even higher his “partnership” language.

I speak for the entire Commission when I say that we want to have a continuing dialogue, and partnership, with the accounting profession,

Recall that Pitt spoke on October 22, 2001. Here are the relevant excerpts from the NY Times’ Enron timeline:

Oct. 16 – Enron announces $638 million in third-quarter losses and a $1.2 billion reduction in shareholder equity stemming from writeoffs related to failed broadband and water trading ventures as well as unwinding of so-called Raptors, or fragile entities backed by falling Enron stock created to hedge inflated asset values and keep hundreds of millions of dollars in debt off the energy company’s books.

Oct. 19 – Securities and Exchange Commission launches inquiry into Enron finances.

Oct. 22 – Enron acknowledges SEC inquiry into a possible conflict of interest related to the company’s dealings with Fastow’s partnerships.

Oct. 23 – Lay professes confidence in Fastow to analysts.

Oct. 24 – Fastow ousted.

The key fact is that even as Enron was obviously spiraling toward imminent collapse (it filed for bankruptcy on December 2) – and the SEC knew it – Pitt offered no warning in his speech. The auditors and the corporate CEOs and CFOs were not the SEC’s ‘partners.’ Thousands of CEOs and CFOs were filing false financial statements – with ‘clean’ opinions from the then ‘Big 5’ auditors. Pitt was blind to the ‘accounting control fraud’ epidemic that was raging at the time he spoke to the accountants. Thousands of his putative auditor ‘partners’ were getting rich by blessing fraudulent financial statements and harming the investors that the SEC is actually supposed to serve.

Tom Frank aptly characterized the Bush appointees that completed the destruction of effective financial regulation as “The Wrecking Crew.” It is important, however, to understand that Bush largely adopted and intensified Clinton’s war against effective regulation. Clinton and Bush led the unremitting bipartisan assault on regulation for 16 years. That produced the criminogenic environment that produced the three largest financial fraud epidemics in history that hyper-inflated the real estate bubble and drove the Great Financial Crisis (GFC). President Trump has renewed the Clinton/Bush war on regulation and he has appointed banking regulatory leaders that have consciously modeled their assault on regulation on Bush and Clinton’s ‘Wrecking Crews.’

Bill Clinton’s euphemism for his war on effective regulation was “Reinventing Government.” Clinton appointed VP Al Gore to lead the assault. (Clinton and Gore are “New Democrat” leaders – the Wall Street wing of the Democratic Party.) Gore decided he needed to choose an anti-regulator to conduct the day-to-day leadership. We know from Bob Stone’s memoir the sole substantive advice he gave Gore in their first meeting that caused Gore to appoint him as that leader. “Do not ‘waste one second going after waste, fraud, and abuse.’” Elite insider fraud is, historically, the leading cause of bank losses and failures, so Stone’s advice was sure to lead to devastating financial crises. It is telling that it was the fact that Stone gave obviously idiotic advice to Gore that led him to select Stone as the field commander of Clinton and Gore’s war on effective regulation.

Stone convinced the Clinton-Gore administration to embrace the defining element of crony capitalism as its signature mantra for its war on effective regulation. Stone and his troops ordered us to refer to the banks, not the American people, as our “customers.” Peters’ foreword to Stone’s book admits the action, but is clueless about the impact.

Bob Stone’s insistence on using the word “customer” was mocked by some—but made an enormous difference over the course of time. In general, he changed the vocabulary of public service from ‘procedure first’ to ‘service first.’”

That is a lie. We did not ‘mock’ the demand that we treat the banks rather than the American people as our “customer” – we openly protested the outrageous order that we embrace and encourage crony capitalism. Crony capitalism’s core principle – which is unprincipled – is that the government should treat elite CEOs as their ‘customers’ or ‘partners.’ A number of us publicly expressed our rage at the corrupt order to treat CEOs as our customers. The corrupt order caused me to leave the government.

Our purpose as regulators is to serve the people of the United States – not bank CEOs. It was disgusting and dishonest for Peters to claim that our objection to crony capitalism represented our (fictional) disdain for serving the public. Many S&L regulators risked their careers by taking on elite S&L frauds and their powerful political fixers. Many of us paid a heavy personal price because we acted to protect the public from these elite frauds. Our efforts prevented the S&L debacle from causing a GFC – precisely because we recognized the critical need to spend most of our time preventing and prosecuting the elite frauds that Stone wanted us to ignore..

Trump’s wrecking crew is devoted to recreating Clinton and Bush’s disastrous crony capitalism war on regulation that produced the GFC. In a June 8, 2018 article, the Wall Street Journal mocked Trump’s appointment of Joseph Otting as Comptroller of the Currency (OCC). The illustration that introduces the article bears the motto: “IN BANKS WE TRUST.”

Otting, channeling his inner Pitt, declared his employees guilty of systematic misconduct and embraced crony capitalism through Pitt’s favorite phrase – “partnership.”

I think it is more of a partnership with the banks as opposed to a dictatorial perspective under the prior administration.

Otting, while he was in the industry, compared the OCC under President Obama to a fictional interstellar terrorist. Obama appointed federal banking regulators that were pale imitation of Ed Gray, Joe Selby, and Mike Patriarca – the leaders of the S&L reregulation. The idea that Obama’s banking regulators were akin to ‘terrorists’ is farcical.

The WSJ’s December 12, 2018 article reported that Otting had also used Bob Stone’s favorite term to embrace crony capitalism.

Comptroller of the Currency Joseph Otting has also changed the tone from the top at his agency, calling banks his “customers.”

There are many terrible role models Trump could copy as his model of how to destroy banking regulation and produce the next GFC, but Otting descended into unintentional self-parody when he channeled word-for-word the most incompetent and dishonest members of Clinton and Bush’s wrecking crews.

The same article reported a trade association’s statement that demonstrates the type of outrageous reaction that crony capitalism inevitably breeds within industry.

Banks are suffering from “examiner criticisms that do not deal with any violation of law,” said Greg Baer, CEO of the Bank Policy Institute….”

The article presented no response to this statement so I will explain why it is absurd. First, “banks” do not “suffer” from “examiner criticism.” Banks gain from examiner criticism. Effective regulators (and whistleblowers) are the only people who routinely ‘speak truth to power.’ Auditors, credit rating agencies, and attorneys routinely ‘bless’ the worst CEO abuses that harm banks while enriching the CEO. The bank CEO cannot fire the examiner, so the examiners’ expert advice is the only truly “independent” advice the bank’s board of directors receives. That makes the examiners’ criticisms invaluable to the bank. CEOs hate our advice because we are the only ‘control’ (other than the episodic whistleblower) that is willing and competent to criticize the CEO.

Second, we do our job as examiners best when we make “criticism” of bank actions that are not a “violation of law.” When a bank commits a violation of law relevant to the regulators, it is nearly always a felony. The idea that examiners should not criticize any bank misconduct, predation, or ‘unsafe and unsound practice’ that does not constitute a felony is obviously insane. While “violations of law” (felonies) are obviously of importance to us in almost all cases, our greatest expertise is in identifying – and stopping – “unsafe and unsound practices” because such practices, like fraud, are leading causes of bank losses and failures.

Third, repeated “unsafe and unsound practices” are a leading indicator of likely elite insider bank fraud and other “violations of law.”

The trade association complaint that examiners dare to criticize non-felonious bank conduct – and the WSJ reporters’ failure to point out the absurdity of that complaint – demonstrate that the banking industry’s goal remains the destruction of effective banking regulation. Trump’s wrecking crew is using the Clinton and Bush playbook to restore fully crony capitalism. He has greatly accelerated the onset of the next GFC.

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William K. Black, author of The Best Way to Rob a Bank is to Own One, teaches economics and law at the University of Missouri Kansas City (UMKC). He was the Executive Director of the Institute for Fraud Prevention from 2005-2007. He has taught previously at the LBJ School of Public Affairs at the University of Texas at Austin and at Santa Clara University, where he was also the distinguished scholar in residence for insurance law and a visiting scholar at the Markkula Center for Applied Ethics.

Black was litigation director of the Federal Home Loan Bank Board, deputy director of the FSLIC, SVP and general counsel of the Federal Home Loan Bank of San Francisco, and senior deputy chief counsel, Office of Thrift Supervision. He was deputy director of the National Commission on Financial Institution Reform, Recovery and Enforcement.

Black developed the concept of "control fraud" frauds in which the CEO or head of state uses the entity as a "weapon." Control frauds cause greater financial losses than all other forms of property crime combined. He recently helped the World Bank develop anti-corruption initiatives and served as an expert for OFHEO in its enforcement action against Fannie Mae's former senior management.