Why Might We Need Good Constitutional Orders?

This past Tuesday, September 17th, was Constitution Day here in the U.S. While I am hesitant as an American to write about my country in the abstract, the idea of a written constitution providing for citizen sovereignty, checks and balances and rights for individuals against the state has universal ethical implications.

Today, we see great commotions over these issues around our world: a test of an unwritten constitution in the U.K., the evolution of a constitutional order in the European Union as a federation, the unconstitutional order in Venezuela and autocracy in Turkey, theological supervision of the state in Iran, protests against the state apparatus in Hong Kong and Moscow and progressive American presidential candidates such as Bernie Sanders and Elizabeth Warren suggesting that checks and balances are oppressive and should be abandoned or bypassed so that a majority can enjoy its will to power.

The points to contemplate, I suggest, are two: one is the purpose of a state as set forth in our Constitution. This is an ethical statement about the use of public power in trust. The preamble sets forth the legitimate business of government:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

(I am, I hope, not unduly immodest in these days of political discord in my country to acknowledge my pride that one of my mother’s forebearers, Gouverneur Morris, wrote these words.)

The legal form of the U.S. Constitution, I suggest, is a deed of trust. The sovereign people, acting through state conventions, entrust limited powers to a government for all of them. The powers are to be used in trust so the Constitution provided the text of an oath which qualifies a person to become president. That person must swear to rise above party, religion, self-interest and all personal prejudices in order that he or she may “faithfully execute the office” of president.

Constitutional government is one of office, not of will. Constitutional government rejects the will-to-power ethics of Herbert Spencer’s social Darwinism and of Nietzsche’s nihilism.

The reason for this constraint lies in keen and truthful conclusions about our human nature. In Federalist Paper No.55, written by James Madison, it holds that:

“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

Economic Inequality Isn’t Unique to U.S.

I recently saw a report on real income growth in Russia. American capitalism is not alone in favoring the top over the middle and bottom of the socioeconomic order. In Russia, from 1989 to 2018, income for the top 1% grew 429% and for the top 10% by 171%, but for the bottom 50%, income shrank 20%.

Overall growth in income was 41%.

Political power everywhere is fungible with money and power. One breeds the other.

In Honor of Labor

Last Monday, September 2, marked the 125th anniversary of the adoption of Labor Day as a federal holiday in the U.S. The event was the culmination of the adoption of Labor Day, which had union backing, as an official holiday by 30 states. Today, Labor Day falls on the first Monday of September in both the U.S. and Canada.

Labor Day was perceived as a less radical alternative to May 1, which is International Workers Day in every other country in the world. Ironically, that date was chosen to commemorate the Haymarket affair in Chicago on May 4, 1886.

On that day, several hundred workers demonstrated for the adoption of an eight-hour day. As darkness fell, Chicago police ordered the demonstrators to disperse. A bomb exploded, killing several police and demonstrators.

More demonstrators were shot or wounded by police fire. No one knows who planted the bomb or whether it had perhaps been the work of an agent provocateur trying to create a crisis. A number of labor leaders were arrested despite a lack of evidence that any had a hand in the bombing. Four leaders were hanged and others sentenced to lengthy prison terms.

The violence of the Haymarket affair seems to have summarized the 19th century understanding of industrial capitalism – capital on one side, labor on the other – with the state aligned with capital. Socialism, labor unions and later the welfare state or social democracy sought to level the playing field with a balance of economic power between the two essential factors of production.

But what if the conviction of a zero-sum conflict between capital and labor was a misunderstanding of economic reality? What if labor was too a capital asset, albeit a different kind of asset from money, plant or equipment? Then, the issue for owners and managers would have been how to get the optimum result from a partnership between capital and labor. That alternative is recommended by our Principles for Business.

On a related note, our colleague Richard Broderick composed a poem about Labor Day we wanted to share with you:

World of Our Fathers

The world of ill-fitting suits,
of baggy knees and elbows
and hand-me-down shoes.

The world of corns and bunions,
lame men, missing fingers.

The world of bad haircuts
and barber shop chatter,
nicks and cuts from straight-razors,
bay rum and styptic pencils.

The world of beer in cardboard buckets.

And the world of lunch buckets.

The world of stone fences,
brickyards and the foundry,
the rough and the thicket,
the six-day workweek
and the company picnic.

And the world of day trips
to the country where the sun
burned their pale skin,
and they gathered us like wild honey,
like the blackberries that wept
in the baskets beside them
on the train ride home.

Digital Currencies: A Moral Good?

The foundation of global financialization of capitalism in government created fiat currencies and bank credit may face disruption. Facebook seeks to use computers and the internet to provide private money.

The analogy comes to mind of “gold,” which was once the atlas supporting paper money and national credit. The modern administrative state has moved beyond gold to fiat currencies and central banking.

Facebook proposes to issue a digital currency called Libra. Facebook has 27 partners in this innovation in finance. Facebook will provide a government-free currency and a payment system through which to use it in the settlement of buy/sell transactions.

But the significant question is: how many Libras will be created?

The prudence associated with gold as support for money was that there was not so much of the ore available and more gold could not be made and disbursed on command by those prone to excessive consumption in the short run. If the amount of Libra in circulation can be gamed for short-term advantage, the currency will encourage boom/bust cycles and periodic collapses of financial markets as in the tulip mania, the South Sea Company, the Mississippi Company, 19th century bank crises in the U.S., one after another, the stock market crash of 1929, the dot-com bubble and the subprime mortgage crisis of 2008.

Government regulators, to date, are not opposed to the Libra. They just want it regulated in the public interest.

I have mixed feelings about the innovation. Competition with government fiat currencies may provide new opportunities for ordinary people to access goods and services or receive as wages. But the history of money and credit is one of many false hopes and manipulation of amounts in circulation contrary to the common good.

Comparison of Business Roundtable Statement with CRT Principles for Business

In the last day or so, several people have asked to see just where the new and very significant Business Roundtable “Statement on the Purpose of the Corporation” does indeed track the Caux Round Table for Moral Capitalism’s (CRT) Principles for Business of 1994. So, I made this document (PDF) putting provisions of the CRT Principles below the associated provision of the Business Roundtable Statement.

Frankly, I am impressed with how well and how extensively the CRT Principles anticipated the Business Roundtable’s statement.

I’m sharing this in large part to honor the forethought of those CRT leaders from Japan, Europe and the U.S. who articulated this new theory of the firm 25 years ago.

Thoughtful Comments from former Dutch PM Balkenende

I have received a particularly thoughtful email from former Dutch Prime Minister Jan Peter Balkenende, now Chairman of the Dutch Sustainable Growth Coalition. I have his permission to share his observations with you.

He wrote:

Dear Steve,

The statement of the Business Roundtable attracts a lot of attention. It is important to hear about your observations. In your email to Herman, you have explained that the declaration is a kind of tactical maneuver. A statement to avoid tougher policy steps. But … at the same moment, the statement is there and people, also from politics, the business sector, NGOs, universities and media, will start asking questions about the real meaning and significance of the statement and practical consequences.

I think three elements are key regarding this statement.

1. The discussion about capitalism. In the Dutch newspaper Financial Daily, a reference was made to the Rhinelandic model which is more focused on long-term thinking and solidarity than the Anglo Saxon, neo-classical economic model. I would like to know how the subscribers of the statement really think about the future of capitalism. You cannot deliver such a statement and leaving capitalism for what it is now. The Dutch newspaper I mentioned published an article today saying that at this moment, in practice, the shareholder still clearly is number one. Buying own shares is only one example. You recently wrote about this issue.

Regarding capitalism, there are in fact three routes. The first is the liberal, neo-classical capitalism. More and more, you can feel this capitalism is under attack. The second variant is the government-oriented type of capitalism. Joseph Stiglitz’s recently released book Progressive Capitalism is an example of this approach. The third version is moral capitalism, of which you are one of the clearest advocates. There are also connections with conscious capitalism, inclusive capitalism, etc. In my opinion, it is essential to choose for the last variant: moral capitalism.

2. A new view on business models. Traditional capitalist views are connected with the views of Milton Friedman: The business of business is business. In fact, the supremacy of the shareholder. Today and tomorrow, it should be about creating shared value, about the full integration of sustainability into business models, about making the Sustainable Development Goals of the United Nations a reality, also in the business sector. I would like to know what the subscribers of the statement will do in this regard. It is possible to change business models. You know about my role as Chairman of the Dutch Sustainable Growth Coalition, a coalition of eight Dutch multinationals.

3. The essence of metrics and valuation. When the discussion about new, sustainable business models started, frontrunners were convinced that this should not be a story of good intentions but a matter of clarity and honesty. Therefore, companies have to redefine their KPIs, have to choose for life cycle analysis and must have the willingness to be transparent about the real results: integrated reporting. You are playing a fantastic role in the debate about valuation. It is necessary to invest in these measurement tools. If the subscribers of the statement take their intentions seriously, they also have to choose for new valuation techniques. I hope we will get clarity about this issue.

I am happy with the statement. It’s an important document that offers inspiration and a new view on the role of the corporation. But the success of the declaration only depends on its implementation: practicing moral capitalism, sustainable business models and valuation.

Wishing you all the best.

Warm regards,
Jan Peter

A Very Constructive Inflection Point for Global Capitalism

Twenty five years ago, the leaders of the Caux Round Table for Moral Capitalism (CRT) from Japan, Europe and the U.S. published our Principles for Responsible Business to affirm that modern capitalism should seek the wellbeing of stakeholders. Yesterday, the Business Roundtable, composed of 200 CEOs, issued a statement affirming that core belief and recommendation of the CRT:

Statement on the Purpose of a Corporation

Americans deserve an economy that allows each person to succeed through hard work and creativity and to lead a life of meaning and dignity. We believe the free-market system is the best means of generating good jobs, a strong and sustainable economy, innovation, a healthy environment and economic opportunity for all.

Businesses play a vital role in the economy by creating jobs, fostering innovation and providing essential goods and services. Businesses make and sell consumer products; manufacture equipment and vehicles; support the national defense; grow and produce food; provide health care; generate and deliver energy; and offer financial, communications and other services that underpin economic growth.

While each of our individual companies serves its own corporate purpose, we share a fundamental commitment to all of our stakeholders. We commit to:

Delivering value to our customers. We will further the tradition of American companies leading the way in meeting or exceeding customer expectations.

Investing in our employees. This starts with compensating them fairly and providing important benefits. It also includes supporting them through training and education that help develop new skills for a rapidly changing world. We foster diversity and inclusion, dignity and respect.

Dealing fairly and ethically with our suppliers. We are dedicated to serving as good partners to the other companies, large and small, that help us meet our missions.

Supporting the communities in which we work. We respect the people in our communities and protect the environment by embracing sustainable practices across our businesses.

Generating long-term value for shareholders, who provide the capital that allows companies to invest, grow and innovate. We are committed to transparency and effective engagement with shareholders.

Each of our stakeholders is essential. We commit to deliver value to all of them, for the future success of our companies, our communities and our country.

On behalf of the CRT board of directors, I welcome this statement as an inflection point in the evolution of modern capitalism towards achieving the common good. This validation of CRT efforts over many years now is reassuring. It is also an opportunity to continue forward with determination, good sense and high purpose in line with our principles to make them useful to all companies, large and small.

Valuation of Intangibles Could be a Slippery Slope Down to Fraud

Last Wednesday, I spoke with our Chairman Emeritus, Lord Daniel Brennan. He brought me up to date on the current and heated public discussion in London over a report by Muddy Waters Research on Burford Capital Ltd. as it pertains to the importance of company valuations.

Burford has a market capitalization of 2.45 billion English pounds. Its business is to invest in litigations and share in any proceeds recovered from defendants. The assets of the firm are mostly contract claims for a share of future winnings. These are very intangible assets. The underlying factors which determine the probability of winning the selected lawsuits are human skills in judgment as to the merits of the plaintiff’s case, research, data analysis, legal argument and persuasion of judge and jury. Rather like betting on who will win a prize fight or a football or soccer game. The bet is only a contract claim to be paid a sum of money depending on an outcome. How, then, should the chances of winning be valued in either case?

The Muddy Waters Research report concluded:

We are short BUR. For years, it was the ultimate “trust me” stock. Thanks to a light disclosure regime, the esoteric nature of its business, and unethical behavior by its largest shareholder, Invesco, it turned Enron-esque mark-to-model accounting into the biggest stock promotion on the AIM. This has all recently changed though. Just this year, BUR began publishing more detailed investment data. This data proves that BUR has been egregiously misrepresenting its ROIC and IRRs, as well as the state of its overall business. We have identified seven methods by which BUR manipulates Concluded Investment ROIC and IRR.

BUR’s top management, through their shareholdings (and sales), is in effect primarily compensated for aggressively marking cases in order to generate non-cash fair value gains. Until now, BUR has gotten away with aggressive and unwarranted marks by touting ROIC and IRR metrics. We show that BUR heavily manipulates these metrics. BUR then actively misleads investors about how its accounting for realized gains works. As a result of this deception, we believe investors give credence to BUR’s fair value gains. In actuality, BUR’s net realized returns have relied on a very small number of cases. Just four cases have produced approximately two-thirds of BUR’s net realized gains since 2012. (One of the four outsized contributors was actually a loss at trial, and was bailed out by BUR’s largest shareholder, Invesco, at the direction of Neil Woodford protégé Mark Barnett. Absent the bailout, the case almost certainly would have been a total loss.)

BUR is a perfect storm for an accounting fiasco. BUR’s governance strictures are laughter-inducing. The CFO is the wife of the founder/CEO. Under the best of circumstances, this should alarm investors; however, with a company that consistently books non-cash accounting profits, it is unforgivable. BUR has cycled through four prior CFOs or senior finance managers (none of whom stayed for long). These facts beg the question “Is (current CFO) Elizabeth O’Connell the only CFO who can be relied upon to approve the accounts?” (see here)

The full Muddy Waters Research report can be found here.

The issues around Burford’s accounting and valuation estimates raise very difficult questions about the valuation of intangibles. One set is how to do this responsibly. Another set is how to prevent misrepresentation and fraud in the use of assumptions about the probability of future events. And a third set is what rules and standards should be adopted to constrain forecasts which will easily and quickly slip-slide away into fairytales and artfully constructed ratios and financial categories which will mislead even sensible investors.

Since it is more and more accepted that in today’s global economy, intangible assets are growing in importance as drivers of profits, getting them measured properly and their valuations disclosed properly is also more and more necessary.