Playing by the rules no longer fashionable?
Published 12:00 am Sunday, March 22, 2009
Right before the national anthem at any baseball game from the pee-wees to the bigs, the coaches and the umpire gather at home plate. The coaches provide lineup cards. The ump explains the ground rules, provisions specific to the field on which the game is to be played. If, for instance, a section of the outfield fence is missing, the ump will explain the effect of a batted ball rolling through the hole or a speedy player darting through it to catch a fly that otherwise would have been a home run.
It doesn’t really matter what a ground rule is. What matters is that everyone knows it before the game begins — and that it doesn’t change while the game is playing out.
This notion of making rules and sticking with them is strong with Americans. It’s not that we mind rules being changed. That’s what Congress and the legislatures do. But there’s a process. Otherwise, deals are deals. Rules are rules. As the saying goes, making them up as you go along leads to confusion, chaos and is just flat wrong.
In criminal law, the term “ex post facto” is Latin shorthand for trying to punish a person for doing something that wasn’t illegal when it was done.
For instance, many Mississippi cities have banned smoking in restaurants. Police, not that they would be tempted to do so, can’t go back and look at restaurant security camera videos and write citations to people pictured puffing before the bans became law. That would be a violation of the U.S. Constitution’s strict and absolute ex post facto ban.
The U.S. Constitution also says “impairing the obligation of contracts” is something states are forbidden to do. It’s a fancy way of saying once a private deal is made, unless it’s an illegal deal it’s a done deal. States cannot intervene. The rules or terms cannot be changed.
The concern in 1789 was that a governor might find it expedient to decree that a political chum’s debts had been paid in full, even if the chum still owed a chunk. So the founders made sure that states didn’t have that power because, yes, there was corruption back then, too.
The “contracts clause” doesn’t apply to Congress.
Anyway, what all this stage-setting leads to is the observation that when it comes to bonuses in private employment contracts, some of the loudest voices in America spent last week shouting, “break the rules.”
Before last fall when federal authorities started providing what has become an eventual $165 billion ownership stake (about 80 percent) through lending public funds, few of us had ever heard of AIG. But since the fact that hundreds of the company’s employees and former employees are due bonuses ranging from $1,000 to $6.5 million each under terms of their signed employment contracts, everybody from President Barack Obama to Bubba at the bus station has been crying foul.
What happened to rules are rules?
These were negotiated contract payments, not performance-based, that have become due and payable. They were no surprise to Congress, having been listed in September 2008. Lawmakers could have attached caps or limits. Instead, Sen. Chris Dodd, D-Conn., who now says he was asked to do so in February by the Obama White House, included an express directive in the bailout legislation that all promised bonuses be paid.
So the position of AIG is that the company really had no excuse for not paying and the position of Dodd and fellow charlatan Rep. Barney Frank, D-Mass., is, well, to flap their lips and call for getting back the money via a 90 percent tax and hope, once again, people are letting their emotions rule rather than identifying the real culprits.
No one can defend the collective self-delusion, lying and greed by the big-time Wall Street money mis-managers who have inflicted economic misery on this nation. Some day and in some fashion the nutso financiers and their chums and enablers in Congress should be held to account. Given our tendency not to look beyond the fast talk, none of us may see that day.
The only thing that will consistently serve us well is to get a grip on reality. Reason and principle have been the nation’s bedrock. There’s room and there’s reason for strong emotions these days. But establishing clear rules and sticking to them is the way out. AIG may have broken lots of rules, but it wasn’t in paying the bonuses. Members of Congress set the ground rules they now say must be changed. That’s what shouldn’t be sitting well in our minds. Not the bonuses, but the fact they were ordained by the “umpires” themselves.