Why Private Equity Should Not Exist

(Big issue 7-30-2019)

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Today I’m going to discuss address the nascent political attack on private equity, the financial model in commerce which more than any other defines the Western political landscape. The most important signal of this attack is in the Democratic Presidential campaign, where candidates are being pressured on what they will do about PE. Sure enough, Senator Elizabeth Warren, the standard bearer for sophisticated policy thinking, recently announced a plan to rein in PE. And Bernie Sanders is leading protests against PE acquisitions. Perhaps as important are rumblings on the right; Republican Senator Marco Rubio’s released a report in March attacking the control of the economy by financiers.

In other words, PE is starting to face some of the same headwinds that big tech is experiencing. I’m going to explain what private equity is and why it is facing these attacks. I’ll also go into a bit of history, how private equity, which used to be called the leveraged buy-out industry (LBO), was started by a Nixon administration official who oversaw the both the bankruptcy of New York City and the intellectual attack on antitrust in the 1970s. Finally I’ll also discuss what it would mean to eliminate PE from our economy and politics.

Here’s the man who originated the model, William Simon.

But first…

News Update

(1) Facebook’s Libra: Mark Zuckerberg is still going ahead with Libra. Few noticed this tidbit on Facebook’s earnings call, but it sounds like FB has reoriented its strategy, and is going to start its project building what is effectively a better version of Paypal. Here’s the transcript.

We're very focused on Payments with fiat currencies as well and making it so that when you pay in one service, whether it's WhatsApp or Instagram Shopping or Marketplace, your credentials can be shared and there is a shared payment system across all those things….

And then across the payments landscape, helping people do Payments in existing currencies and also trying some newer approaches that can hopefully bring down the costs of doing payments around the world. We're just very excited about everything in this area, and it's one of the biggest areas that we're focused on for the next several years.

Seems like Zuckerberg will stage the roll-out of his currency differently, starting with a basic money transfer service and then building out a private monetary system.

(2) Boeing Customers In Trouble Until Boeing “Gets Its Shit Together:” Low cost Irish airline Ryanair CEO had choice words for Boeing:

Ryanair has 135 of the 737 Max models on order, the first five of which are due for delivery in the autumn, but they will not be able to fly until regulators have declared the plane safe.

O’Leary warned that Ryanair may not have any of the planes ready by next summer unless Boeing “gets its shit together” in making upgrades required for regulators to allow the plane to fly.

I don’t think anyone in power recognizes just how much trouble Boeing is in. The leadership has no idea what to do because they don’t actually know how to build safe planes. The CEO was hired for his political prowess in covering up problems, not solving them.

(3) Details about the Facebook Settlement: FTC Commissioner Rohit Chopra was on MSNBC on Sunday to talk about the Facebook settlement. Chopra, along with the other Democratic commissioner, dissented from the settlement. He pointed out that the FTC didn’t bother to complete the investigation and that the FTC didn’t get documents from Mark Zuckerberg, in return for which Facebook paid a $5 billion fine. It’s a very ugly situation in what looks like a corrupt deal, Facebook buys a liability release and the FTC gets a headline with $5 billion in it.

Here’s the segment. It’s ten minutes long, and though it’s on cable news, you won’t actually get dumber if you watch it. Then again, I already gave you the summary.

And now…

Why Private Equity Should Not Exist

Earlier this month, a former Toys “R” Us employee named Sarah Woodhams confronted Democratic Presidential candidate Julian Castro. Woodhams told Castro about her experience at the corporation. She worked there for seven years, and then was laid off with no severance because a set of private equity firms bought the company and looted it. What she described is not an isolated instance, but an increasingly common one in America. Woodhams told Castro that “dozens of retail companies controlled by Wall Street have gone into bankruptcy, including RadioShack, Payless, and Kmart,” with 15,000 jobs alone in Pennsylvania having disappeared.

“Billionaires buy up these companies, make huge profits on our backs, and get away with it because there’s no financial regulation,” Sarah Woodhams explained. “As president, what will you do to hold private equity firms and hedge funds accountable for the destruction of our communities and livelihoods?”

Partly because of organizing by workers like Woodhams, partly because of the scale of the industry, private equity is becoming an important part of the political dialogue. Millions of workers working for companies controlled by PE funds. As I noted above, the debate is now hot; Elizabeth Warren released a plan specifically on private equity, paralleled by a report on financial power by Republican Marco Rubio in March. More importantly, Castro was confronted by an activist. Castro was embarrassed because he did not seem to know what PE was, so you can be sure the other Presidential candidates are preparing talking points on PE for their bosses. That’s a big deal, when even the mediocre politicians start to get it.

So what is private equity? In one sense, it’s a simple question to answer. A private equity fund is a large unregulated pool of money run by financiers who use that money to invest in and/or buy companies and restructure them. They seek to recoup gains through dividend pay-outs or later sales of the companies to strategic acquirers or back to the public markets through initial public offerings. But that doesn’t capture the scale of the model. There are also private equity-like businesses who scour the landscape for companies, buy them, and then use extractive techniques such as price gouging or legalized forms of complex fraud to generate cash by moving debt and assets like real estate among shell companies. PE funds also lend money and act as brokers, and are morphing into investment bank-like institutions. Some of them are public companies.

While the movement is couched in the language of business, using terms like strategy, business models returns of equity, innovation, and so forth, and proponents refer to it as an industry, private equity is not business. On a deeper level, private equity is the ultimate example of the collapse of the enlightenment concept of what ownership means. Ownership used to mean dominion over a resource, and responsibility for caretaking that resource. PE is a political movement whose goal is extend deep managerial controls from a small group of financiers over the producers in the economy. Private equity transforms corporations from institutions that house people and capital for the purpose of production into extractive institutions designed solely to shift cash to owners and leave the rest behind as trash. Like much of our political economy, the ideas behind it were developed in the 1970s and the actual implementation was operationalized during the Reagan era.

Now what I just described is of course not the rationale that private equity guys give for their model. According to them, PE takes underperforming companies and restructures them, delivering needed innovation for the economy. PE can also invest in early stages, helping to build new businesses with risky capital. There is some merit to the argument. Pools of capital can invest to improve companies, and many funds have built a company here and there. But only small-scale funds really do that, or such examples are exceptions to the rule or involve building highly financialized scalable businesses, like chain stores that roll up an industry (such as Staples, financed by Bain in the 1980s). At some level, having a pool of funds means being able to invest in anything, including building good businesses in a dynamic economy where creative destruction leads to better products and services. Unfortunately, these days PE emphasizes the “destruction” part of creative destruction.

The takeover of Toys “R” Us is a good example of what private equity really does. Bain Capital, KKR, and Vornado Realty Trust bought the public company in 2005, loading it up with debt. By 2007, though Toys “R” Us was still an immensely popular toy store, the company was spending 97% of its operating profit on debt service. Bain, KKR, and Vornado were technically the ‘owners’ of Toys “R” Us, but they were not liable for any of the debts of the company, or the pensions. Periodically, Toys “R” Us would pay fees to Bain and company, roughly $500 million in total. The toy store stopped innovating, stopped taking care of its stores, and cut costs as aggressively as possible so it could continue the payout. In 2017, the company finally went under, liquidating its stores and firing all of its workers without severance. A lot of people assume Amazon or Walmart killed Toys “R” Us, but it was selling massive numbers of toys until the very end (and toy suppliers are going to suffer as the market concentrates). What destroyed the company were financiers, and public policies that allowed the divorcing of ownership from responsibility.

The Origins of the Model: Building a “Counter-intelligentsia”

If there is a father to the private equity industry, it is a man named William Simon. Simon is perhaps one of the most important American political figures of the 1970s and early 1980s, a brilliant innovator in politics, financial, and in how ideas are produced in American politics. Simon was an accountant, a nerd, but also an apocalyptically oriented conservative financier who was a bond trader and top executive at Salomon Brothers in the 1960s and 1970s. Beyond ruthless, Simon believed in ruthlessness as a moral philosophy. He was, according to a friend, “a mean, nasty, tough bond trader who took no BS from anyone,” and would apparently wake up his children on weekend mornings with buckets of cold water. He was such a difficult person that he was invited onto the Citibank board of directors, and shortly thereafter, essentially kicked off.

In the early 1970s, Simon went into politics, a leader at the Treasury Department under Nixon and Ford. He oversaw not just Treasury but became the the ‘Energy Czar’ in charge of the oil crisis, and a key player in rejecting New York City’s 1975 request for funds to ward off bankruptcy. Simon, along with a few others like Pete Peterson, came out of the Nixon administration with a better reputation than he had going in, perceived as a neutral and competent technocrat. Simon saw both prosperity and poison in Nixon and Ford. He supported the attacks on New York City’s and the forced austerity by the Federal government, but he also despised Nixon’s attempted economy-wide price controls to deal with inflation.

After his time at the Treasury, Simon turned to intellectual organizing, because he believed that the Republicans were soft. Simon though Republicans, even when they had power, as Nixon or Ford of Governors like Nelson Rockefeller of New York, were still liberal, operating as conservative Phyllis Schafly put it, merely “an echo” of the Democrats. So he sought to finance thinkers in academia to restructure how elites did policy, or as he put it, a “counter-intelligentsia.” He became the President of the Olin Foundation, the key conservative foundation providing money to the nascent law and economics movement, the conservative intellectual backlash against New Deal controls on finance and corporate power. Law and economics wasn’t perceived of as a right-wing institutional framework, but a scientific one. Olin gave to Harvard Law to build out a law and economics program, and financial supremacy over corporations was accepted quickly in liberal citadels.

The law and economics movement helped build the intellectual edifice for PE, a model designed to restructure the American economy from the very beginning. In 1965, Henry Manne, a law and economics organizer, wrote about the “market for corporate control,” putting forth financial markets where corporations were bought and sold as the essential mechanisms for firing inefficient managers and replacing them with ones who would look out for the owners.

In 1965, Manne was ahead of his time, because most people thought American businesses were well-run. But in the 1970s, in an inflationary environment and as foreign imports began coming into the U.S. in force, this belief collapsed. In 1970, Milton Friedman put forward the shareholder value of the firm, a theory that the only reason for the corporation to exist is to maximize shareholder value. In 1976, Michael Jensen, the intellectual patron saint of PE, refined these concepts into a paper titled “Theory of the firm: Managerial behavior, agency costs and ownership structure,” arguing that loading up firms with debt would discipline wasteful management, and that placing ownership in the hands of a few would force managers to be attentive to efficient operation of the corporation.

The increasingly widespread belief that American corporations were mismanaged, inflationary chaos, and a crisis of confidence among liberals combined into what was a political revolution in commerce. William Simon was both both a participant in and a moral light for this revolution. In the mid-1970s, he (or his ghostwriter) put pen to paper, and wrote a book popular among members of “the new right” as the large class of 1978 Congressional Republicans (which included a young Newt Gingrich) was known. His book was called A Time for Truth, and along with Robert Bork’s Antitrust Paradox, it gave the New Right a language to marry morality and political economics. Reagan would run on New Right themes in 1980.

A Time for Truth reflected Simon’s hardcore attitude. It was a jeremiad, with terms tossed around like ‘economic dictatorship’, charges of Communism and fascism, and a screed about the perils of government. The book was introduced by the intellectual godfather of the right-wing, the Austrian economist, F.A. Hayek, who lauded it as “a brilliant and passionate book by a brilliant and passionate man.” Simon popularized the pseudo-scientific term, ‘capital shortage,’ or the the idea that businesses simply didn’t have the incentive to invest in factories because of government rules or fear of inflation. This led to inflation, lower productivity, and stagnation. The solution would be simple: cut capital gains taxes, cut government spending, reduce antitrust enforcement, and stop regulating through public institutions.

The Carter administration and Congressional Democrats took Simon’s advice, and slashed capital gains taxes, cutting the maximum rate to 28% from 49% in 1978. They deregulated trucking, finance, airplanes, and railroads. In addition, changes in pension laws enabled American retirement savings to flood into new vehicles, like venture capital and its cousin, what would first be known as leveraged buy-outs and then private equity. The Reagan administration’s further deregulation of finance enabled a long bull market in the 1980s as speculators took control of the economy. Shareholders no longer were content to leave their money in stocks that paid dividends, because they could now keep most of their capital gains. And the chaos unleashed by deregulation opened up the door to corporate restructuring of corporations who had been tightly controlled by public rules, but were now free to enter and exit new businesses.

In 1982, William Simon turned into a leader of the financial revolution. He pulled off the first large scale leveraged buyout, of a company called Gibson Greeting cards, a deal that shocked Wall Street. He and his partner paid $80 million for Gibson, buying the company from the struggling conglomerate RCA. The key was that they didn’t use their own money to buy the company, instead using Simon’s political credibility and connections to borrow much of the necessary $79 million from Barclays Bank and General Electric, only putting down $330,000 apiece. They immediately paid themselves a $900,000 special dividend from Gibson, made $4 million selling the company’s real estate assets, and gave 20% of the shares to the managers of the company as an incentive to keep the stock price in mind. Eighteen months later, they took Gibson public in a bull market, selling the company at $270 million. Simon cleared $70 million personally in a year and a half off an investment of $330,000, an insanely great return on such a small investment. Eyes popped all over Wall Street, and Gibson became the starting gun for the mergers and acquisitions PE craze of the 1980s.

Another business trend intersected with changes in policy encouraging financial dominance: the rise of management consulting. Like law and economics, management consultants rose in the late 1960s with pseudo-scientific theories about business, and they began treating corporations as financial portfolios, with subsidiaries of assets. Many of the organizers of private equity firms in the 1980s came from management consulting firms like the Boston Consulting Group and McKinsey. Mitt Romney was an early innovator around PE. He came from Bain, which was a consulting firm. To give you a sense of what that meant in terms of the philosophy of commerce, here's Bain Consulting today, helping companies find ways to innovate around raising prices instead of productive techniques.

PE firms serve as transmitters of information across businesses, sort of disease vectors for price gouging and legal arbitrage. If a certain kind of price gouging strategy works in a pharmaceutical company, a private equity company can roll through the industry, buying up every possible candidate and quickly forcing the price gouging everywhere. In the defense sector, Transdigm serves this role, buying up aerospace spare parts makers with pricing power and jacking up prices, in effect spreading corrupt contracting arbitrage against the Pentagon much more rapidly than it would have spread otherwise.

More fundamentally, private equity was about getting rid of the slack that American managers had to look out for the long-term, slack that allowed them to fund research and experiment with productive techniques. PE replaced slack with brutal debt schedules and massive upside for higher stock prices, and no downside for the owner-financiers should the company fail. The goal is to eliminate production in favor of scalable profitable things like brands, patents, and tax loopholes, because producers - engineers, artists, workers - are cost centers. Production can also be eliminated by fissuring the workplace, such as the mass move to offshore production to lower cost countries in the 1980s onward. When I reported on the problem of financialization destroying our national security capacity, one of the manufacturers I talked to told me about how the “LBO boys” - or Leveraged Buy Out Boys - took apart factories in the midwest and shipped them to China.

There hasn’t been a lot of analysis of just how profitable private equity really is for investors or lenders, and I’m only touching on part of what is a very complex phenomenon. There are ways PE funds organize fees against pension funds, there’s self-dealing among banks and middlemen, and at this point large PE firms are buying insurance companies and dedicating their insurance portfolios to PE deals. But I found this paper by Brian Ayash and Mahdi Rastad quite useful. What Ayash and Rastad noted is that companies bought by private equity are ten times more likely than comparable companies to go bankrupt. And this makes sense. The goal in PE isn’t to create or to make a company more efficient, it is to find legal loopholes that allow the organizers of the fund to maximize their return and shift the risk to someone else, as quickly as possible. Bankruptcies are a natural result if you load up on risk, and because the bankruptcy code is complex, bankruptcy can even be an opportunity for the financier to restructure his/her investment and push the cost onto employees by seizing the pension.

Elizabeth Warren just put forward a fairly reasonable plan to address the problem. Under her plan, private equity funds who buy companies would themselves responsible for any debt those companies borrow, as well as the pension funds of their subsidiaries. PE firms could no longer pay themselves special fees and dividends, they would lose their special advantages in bankruptcy and in the tax code, and would have to disclose what they charge to investors. Effectively she reunifies ownership with responsibility. Investing would basically become once again about taking modest risks and reaping modest returns, rather than pillaging good companies. (I’d propose a couple of other changes as well, like raising capital gains taxes quite radically, and gutting golden parachutes. We also need to replace capital provided by PE with small business lending by government, as Marco Rubio is organizing. But I don’t want to demand too many policy changes. After all no sense in getting… greedy.)

Warren’s plan has generated some backlash, because she’s making a philosophical point about what kind of society we want to live in. I’ll focus on two quotes from Warren critics.

Steven Pearlstein in the Washington Post noted:

"Unfortunately, Warren’s fixes for these problems... would pretty much guarantee that nobody invests in or lends to private equity firms."

Aaron Brown in Bloomberg said:

A 100% tax on fees doesn’t mean PE funds will work for free; in fact, they won’t work at all… If you strip doctors of all assets if a patient dies, you won’t improve healthcare; you’ll make surgeons and oncologists switch to cosmetic dermatology."

Of course, Pearlstein and Brown are both in one sense right. Warren’s plan will largely eliminate private equity, or at least that which is based on legal arbitrage, which is nearly all of it. In another sense they are entirely missing the point. Brown calls PE firms doctors saving patients. But private equity, for Warren, is bad, a form of legalized fraud shifting money from the pockets of investors and workers to the pockets of financiers. It is also, as she knows, the model that best represents the destructive direction of American political economy over the past four decades.

And though it is not really on stage that often, private equity is an important part of our political debate, though the supporters of private equity in politics are so far quiet. And that is because private equity funds are important vectors for political donations.

In the second quarter, Joe Biden, Cory Booker, Pete Buttigieg, and Kamala Harris have all received donations from one or both of the leaders of the country’s top two private-equity firms, Blackstone and the Carlyle Group. Buttigieg received max donations from 11 high-level Blackstone employees, as well as money from Bain Capital and Neuberger Berman. Biden, Booker, and Gillibrand nabbed donations from employees at at least three of the top 15 private-equity firms.

PE funds are job sinecures for out of power elite Democrats and Republicans, a sort of shadow government of financiers who actually do the managing of American corporations while the government futzes around, paralyzed by the corruption PE barons organize.

What critics of PE are proposing is a profound restructuring of the philosophy of the American political economy, a return to excellence in production as the goal instead of excellence in manipulation. If critics succeeds, those who make and create will have their bargaining power increase radically, which will mean wage growth across the bottom and middle tier. Swaths of elite powerful people will lose power. It'll be really jarring, because we aren't used to a producer-focused economic order anymore. But it is what we need to do.

There’s a lot more to discuss about private equity. There’s a whole financing angle, which in itself is ridiculously complicated and fascinating. There are many financiers who aren’t technically private equity funds, but are effectively the same kinds of vectors of fraud and monopolization.

I’m also leaving out one of the most important parts of the stories, which is the 1980s rise of the financing channels for mergers and acquisitions, and how the social world of Wall Street in the 1980s helped create the modern Democratic Party. But that one’s for my book, Goliath: The Hundred Year War Between Monopoly Power and Democracy, which you can pre-order here.

Thanks for reading, and if you enjoy this newsletter, please share it on social media, forward it to your friends, or just sign up here.

cheers,

Matt Stoller