The media outlets are abuzz with the AIG Bonus fiasco. First I will state my opinion. I like most of the known world am outraged at the bonus payments. They are unconscionable. Why should the very same people who have brought the world’s financial system to the brink of disaster be paid any kind of bonus after demonstrating at best incompetence and at worst reckless disregard for the world economy?
All of that said, actual situation is both more complicated and less clear. On one hand, we should not worry about millions when the magnitude the crisis is a few order of magnitude larger. 450 million is less than .5% percent of the bailout, and less than .01% of the total AIG Credit Default Swap risk. Still, just because the percentage is small does not mean we should not do the right thing. Sadly, however, the clear right course of action is neither implementable nor practical.
Much of the problem is cultural. I found the graph below from EconomicPicData very illustrative of how Wall Street and the financial world views bonuses.

In the case of AIG, the employees effectively negotiated as if they were in the lower right quadrant. The threat was that they would go elsewhere and leave AIG and the Government in a lurch. Part of the problem is that eleven of top 73 best compensated employees already have left. If million dollar plus bonuses for employees who have demonstrated abject failures of judgement isn’t enough to maintain a 90% retention rate than I don’t know what would be?
For too long individuals in the financial world have held other effectively to gun to get what they want (more money) regardless of outcome. The retention plan was put in place before the avalanche of the financial crisis, before AIG was bailed out. The retention plan was put in place by management under a gun. They worried that these employees who had managed to accumulate 2.3 trillion in exposure would walk. Even though it was already clear at this point, the business was going to lose hundreds of billions, there was still more to be lost if AIG were left in a lurch. These positions had to be managed, and the current employees were probably still the best people to do so despite the massive losses. It’s disgusting that employees who were pushing the company across the cliffs of doom thought they could still squeeze more for themselves despite the havoc they already wrecked. These retention bonuses are little more than blackmail. The employees had effectively accelerated the car to dangerously reckless speeds, and were now basically threatening to cut the breaks if they didn’t get paid to slow the car down. Disgusting.
While the right and wrong of the matter seems clear enough to laymen like myself, the legal issues are much less so. AIG did sign these contracts, and the sanctity of the law should be upheld. Nor, do I believe we should be setting up specific laws to target specific individuals. That is a very dangerous precedent. Allowing and supporting a government that retroactively targets individuals just because it doesn’t like them is akin to fascism. That said, had AIG actually gone bankrupt these bonus payments would not be paid. When a company enters bankruptcy, broad authority is given to determine who and when people are paid. Many bondholders are not paid despite being under the auspices of contract law. There is no question that AIG would have had to file for bankruptcy protection if not for the Government intervention. The Government failed in giving itself more broad authority on controlling these payments in the haste of bailing out AIG. While the Government did place clawback provisions when it first issued TARP money, these provisions however were limited and not applicable to the bonuses being paid.
Some believe that some of the AIG particpants should be convicted of fraud. They are certainly guilty of bad, risky, behavior, but are they guilty of breaking any laws? That is unclear. AIG has wrought more financial destruction than Enron but it seems like most if not all of its employees will escape prosecution. There were no laws or regulation that prevented from selling more CDS than the could actually insure. Should not reckless endangerment of the whole financial system be a crime? Misleading investors affects millions of people, reckless leveraging of the entire financial system endangers billions of people. What is a greater crime? Even if such laws were in place, in practice they would likely cast too wide net that makes for abuse. As I’ve stated before, it’s not that we need more regulation, just better regulators. Would AIG behaved a little differently had regulators at the SEC come down and questioned their behavior. What if they had been threatened by the regulars with criminal action? Might they have given their actions a second thought?