Saturday, April 19, 2014

Ethics, Incentives and Enforcement

I suppose a lot of us are talking about Wall Street, greed, CEOs, bankers, bonuses... much of the discussion that I read, and hear, centers around a lack of ethics on the part of people in positions of leadership. With crisis comes opportunity. We have a unique opportunity to improve our financial system.
I am going to write about business but this could just as easily be a piece on doping.
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A lot of poor decisions are rationalized by a belief that the action was justified by the actor being a good person. Given that we each have to live with ourselves, it is reasonable to believe that nearly every poor decision is followed by a post-fact rationalization.
Once we start living a lie, even a small one, we can find ourselves on a slippery slope that eventually leads to moral ambiguity. Far easier to stay a mile away from "the line" then risk the public humiliation that comes from high profile ethical lapses.
During times like these, one can easily see the costs from ethical lapses but it important to remember that our current situation started with a series of small decisions where the benefits appeared to out-weigh the costs. Step by step, the situation progressed until we have a crisis caused by lack of enforcement, excessive leverage and skewed incentives.
So now society, as a whole, pays the price. People are upset and human nature will seek vengeance. I suppose this article is my attempt to help channel that vengeance towards productive progress.
I like to remind myself that we win (individually, and collectively) by maintaining high ethics. Over a lifetime, there is much financial gain to be had by being reliable and extremely trustworthy. Greater than finances alone, there is much love and friendship to be received. There can appear to be short term trade-offs but there is no long-term cost to avoiding false gods (easy money, sex, alcohol, pride, false performance...).

As humans, we need to be wary of situations that screw up our ability to think clearly:
  • weak peer group (social pressure)
  • intoxication (drugs & alcohol)
  • fear or anger (emotional overload triggering automatic response)
  • all-or-nothing outcomes (perception of nothing to lose)
As citizens (coaches, managers, leaders), we also need to consider the incentives that we are putting in place. Are we creating systems that reward cheating? When we experience a lot of undesirable outcomes then it is more effective to change the incentive structure, rather than punish a never ending line of cheaters.
It's for this reason that you'll never get the drugs out of a big money sport, until the money starts to leave because of the drugs. The money is the incentive and sport rewards performance. Speaking from experience, Investment Banking faces a similar challenge.
It is also why draconian penalties don't work all that well to clean up a corrupt culture. The people on the inside have spent years justifying their actions and likely see the rules as the problem. You don't need a code of silence to enforce a corrupt culture because human nature does the enforcement for you. By increasing the all-or-nothing nature of the outcome, massive penalties can make it more difficult, not less, to break the chain.
To really change a dysfunctional culture, one needs to change the incentives.
So what were the incentives that appear to have created our financial crisis:
Top of my list is leverage -- we had plenty of warning that allowing companies, and investment vehicles, massive amounts of debt was systemically risky. We tolerated laws and investment structures that created a massive shadow banking system. LTCM happened about ten years ago. However, we didn't recognize the need to change back in 1998. You'd have be be a fool not to see it now.
The regulations are going to come. If your livelihood, or business model, depends on plentiful leverage then you had better start thinking about your back-up plan. Industries that rely on easy leverage are going to be decimated. I wouldn't be surprised to see laws making hedgefunds illegal. There is going to be coordinated global re-regulation.
Once you reduce the leverage in a system, you immediately reduce the profits available from gaming the system.
I also suspect that we will see laws banning many unregulated financial instruments as well as statutory limits on personal and corporate leverage.
Next is lack of transparency and disclosure. The act of telling the whole world (or at least your board of directors, bankers, employees and shareholders) what you are doing can help clear the mind. Disclosure needs to be compelled because human nature works to keep most of us pretty quiet in group situations.
Compelling disclosure can protect highly motivated people from themselves. Make it a crime (punishable by fine) for a company to have off balance sheet vehicles. If you are not willing to hold an asset on your main balance sheet... then should you be holding it at all?
In the UK, it is a crime (punishable by fine) not to share conflict of interest information with fellow directors. The law goes even further in that one needs to share the conflicts of other directors, if one has knowledge. I suspect that the US has similar laws on the books. So I don't think that a bunch of new laws are required. Rather, I think that consistent application of a straightforward code of conduct is required.
Next is enforcement. How much money does a white collar crime need to involve before there is a legal obligation to call the cops? I asked that question the other day and a lawyer couldn't tell me. A manager could misallocate hundreds of thousands of dollars and there isn't any obligation to call the police. I was amazed.
There is too much judgement given to directors in how they handle ethical issues. The upper echelon of any industry (or pro sport) is a club, the key players know each other and many outsiders are keen to get a seat at the table. If society has a problem with the culture of that club then we need to provide incentives for insiders to clean it up.
Which brings me to public humiliation, the single best deterrent available. While it might be fun to "win" -- letting down our peers and being disgraced... human nature sees that as HIGHLY unattractive. Elites pay attention when those around them are caught in ethical violations. Imagine how Eliot Spitzer's kids felt -- one really needs to be drunk on hubris not to think through how that situation had to end up.
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Forgiveness and rehabilitation -- I'm not from the ban-them-for-life school of ethical punishment. My preference is to disclose; criminally convict (where appropriate); fine; ban for a reasonable period; and log the information on the public record.
Coming back to where we started this article, good people can make bad decisions and a lot of good can flow from a crisis that resulted from ethical lapses. Some examples:
Campaign finance reform -- McCain's actions on reform appeared to flow from the Savings & Loan crisis. Regardless of one's politics, you have to admit that John McCain has achieved tremendous good for his country. Did you watch the video? They should open each session of Congress by having the legislature watch the Obama campaign's "documentary". The 13 minute clip scared the crap out of me and I'm not even a politician.
Cycling reform -- David Millar (our photo this week) has become an advocate for cycling reform. He was caught, he did his time, his actions are on the public record -- now he appears driven to change the direction of his sport.
There are many more examples of good people getting caught (or not caught), coming clean then becoming a positive force for change (via personal foundations or crusades).
I suspect there are many CEOs and bankers that want to do the right thing for themselves, and their country. What we need to do is reduce the leverage they have available; limit their ability to sell unregulated products; enforce existing regulations; and publicly pursue/ban those that choose the break the rules.
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Finally a few specific items that have been swirling in my head.
Mark to market accounting waivers -- John Mauldin is calling for the government to waive the obligation for companies to mark asset values to market. He is making his case by selecting certain assets that are clearly trading below long term value. We are in this mess because of a culture of non-disclosure, hiding bad assets and moral hazard from companies not having to live with the results of their decisions.
Advocating changing the rules, hiding the problem, giving banks time... that is how we got into the mess in the first place. John is a great writer, I read his letter every week, he has most things right, but I think he's got this one wrong. If you don't want to mark assets to market then don't buy those assets.
Compel full, and open, disclosure to create trust. If banks are allowed to hide their problems then we will never get the interbank market going again. Get everything out in the open and, where necessary, grant short-term waivers for capital adequacy ratios.
Government investments in bank equity -- our governments are shortly going to guaranty all our banking deposits as well as invest massive sums of capital into the balance sheets of our banks. I was amazed when Secretary Paulson said that the government wasn't going to seek board representation, or other rights. Would Goldman Sachs invest $700 billion without board representation, veto rights and disclosure requirements?
I suspect that the government is going to get taken to the cleaners on its investments. I couldn't invest $700,000 effectively if I had to rush -- $700 billion? It is likely to be a mess either way.
The money is the incentive, we must drive change at the same time as investment. As an investor, your power is strongest the moment before you invest. Once you've got a couple billion in a company, human nature creates massive inertia. This is a unique opportunity. There will be zero change if not driven by the governments that are saving these institutions. I take a lot more comfort in the British approach, so far.
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Next week, I'm going to change direction and talk about Fit Pregnancy! Monica says that she really appreciated reading articles that athletic women wrote about their baby experiences. She's not a writer (but she makes really nice handmade cards...) so you'll have to read the story second-hand from Papa G.
Happy Fall,
gordo

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