Three days before the Iowa caucuses, Sen. Elizabeth Warren has released what might have been her closing argument had she been a candidate in the presidential race.
It’s a thorough indictment of a rigged system in Washington that allows corporate criminals to go free while those without the same power and influence get severely punished.
The report — a 12-page booklet titled “Rigged Justice: How Weak Enforcement Lets Corporate Offenders Off Easy” — cites 20 well-documented civil and criminal cases from 2015 “in which the federal government failed to require meaningful accountability.”
Of the 20 cases, which span Wall Street, the auto industry, pharmaceuticals, natural resources, and more, only one resulted in any convictions to executives, and that was for a misdemeanor — in the Upper Big Branch mine case, where 29 Americans died.
The focus on how laws are enforced rather than the intricacies of the law itself carries on a theme Warren has stressed throughout primary season — that personnel is policy, that who you will put in power in those key regulatory positions matters as much as your 10-point plan.
The Hillary Clinton and Bernie Sanders camps — and their allies in the press — have been arguing increasingly harshly over who has the most perfect or most attainable policies. But the real issue, as Warren sees it, comes in installing the personnel to carry out the laws on the books that protect public safety and the economy.
Both Clinton and Sanders have called for stiffer penalties and more aggressive Justice Department enforcement on financial crimes. The Warren report suggests how far we have to go, and how intensely she will be watching developments as they unfold.
The report is the first in a promised annual series from Sen. Warren, where she will highlight the most egregious cases of unprosecuted corporate crime from the previous year.
In virtually all the cases she cites — from Standard & Poor’s delivering inflated credit ratings to defraud investors during the financial crisis, to Novartis giving kickbacks to pharmacists to steer customers to their products, to an explosion at a Bayer CropScience pesticide plant that killed two employees — the Department of Justice declined to prosecute individual executives or the corporations themselves, resorting to settlements with minuscule fines that barely disrupt the corporations’ business models.
The report also gives new meaning to the term “1 percent.”
JPMorgan’s settlement for giving conflicted advice to its clients over wealth management products was less than 1 percent of annual operating profits.
GM paid under 1 percent of company revenue to settle claims on the faulty ignition switch that killed multiple vehicle passengers.
For-profit college EDMC ripped off students with false promises of well-paying jobs, and paid below 1 percent of its student loan revenue over the period of violations.
Warren further documents how in some settlements, the headline dollar figure looks tough until you read the fine print. A settlement with Graco Children’s Products for selling defective car seats yielded $10 million, but $7 million of it went toward developing safety programs, which any responsible manufacturer would do in its normal course of business. The BP civil settlement over the Deepwater Horizon for $20.8 billion sounds massive until you learn that $5 billion could be deducted as an ordinary business expense for tax purposes.
Warren singles out the Securities and Exchange Commission as “particularly feeble,” letting corporate offenders off the hook with weak civil settlements, and then routinely granting the wrongdoers waivers from automatic penalties triggered by the violations. Sen. Warren has been at odds with the SEC and its chair, Mary Jo White, whose tenure has been “extremely disappointing,” in her view.
Some of the enforcement gaps stem from under-resourced federal agencies dealing with bad laws, Warren says. She points out that the Occupational Health and Safety Administration could only fine DuPont $372,000 for an incident at a factory in LaPorte, Texas, where four workers died from methyl mercaptan inhalation. The National Highway Traffic Safety Administration’s maximum possible fine for Honda for concealing the harm from its violently exploding Takata airbags was $70 million, again around 1 percent of the company’s total profits.
This could get worse, Warren warns, if Republicans succeed in inserting a provision into a bipartisan criminal justice reform bill that would raise the bar for federal prosecutors to indict corporate criminals. The Koch Brothers have pushed for the provision. “If adopted,” Warren writes, “this amendment would severely weaken the already anemic enforcement of federal white-collar criminal laws.”
But Warren insists that the bigger problem is a failure to “use the tools Congress has already provided to impose meaningful accountability on corporate offenders.” She even argues that bank regulators had the tools they needed to stop the 2008 financial crisis, but chose not to.
Despite multiple promises by President Obama’s Department of Justice to stiffen enforcement of corporate misconduct, including a 2015 memo creating new guidelines for prosecutions of individuals, almost all major instances lead to toothless settlements, she writes. “Accountability has been shockingly weak.”
Warren also published an op-ed in the New York Times on Friday discussing her report. “Enforcement isn’t about big government or small government,” she writes there. “It’s about whether government works and who it works for.”