Comments Posted By Mycoma
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Not to question the validity of the Gallup data...okay, I'm very much questioning the validity of the Gallup data. They identified my home state, Oklahoma, as "leaning Democratic." Perhaps Gallup was not aware that in the 2008 Presidential election, all 77 counties voted for McCain, with McCain winning 65% of the vote.

OK is represented nationally by an all-Republican contingent, except for OK-2 Rep. Dan Boren (obvious name-recognition there).

The Republican party holds a 61 to 40 advantage in the state House and a 26 to 22 advantage in the state Senate.

Does that really put OK in the "leaning Democratic" camp?

Comment Posted By Mycoma On 19.05.2009 @ 15:45


Good point about the court's selective application. I wonder if they would apply the doctrine if this case were brought up. The shape of the court would also influence whether they ascertained an essential nexus. There is also the issue of the government providing funds to the "corporation" while limiting certain individuals' compensation. While the individual is a representative of the corporation, there is still a question as to whether the government can impose restrictions on that invidividual's earning potential.

In the long run, I still think a case like this could be better argued on the Constitutional language (Article I, Section 2, the Ninth and Fourteenth Amendments), rather than doctrinal. Like you say, the salary caps may indeed be legal, but I, for one, would like to see the Court weigh in on it. I doubt we'll get that chance.

Thanks for the dialogue and your point of view.

Comment Posted By Mycoma On 14.02.2009 @ 15:25


Your point: "Summary:If you voluntarily choose to meet the obligations imposed by the bailout program, then stick your maw in the trough. Don’t like the terms? Don’t accept the money."

This makes perfect sense in the private sector where there are different bargaining rules than those imposed in the public sector where specific settled law applies.

In particular, the doctrine of unconstitutional conditions. It basically says that the government cannot compel a citizen to waive his constitutional rights as a condition of government assistance. For example, what if Congress required, as a condition of a bank receiving TARP money, that they first be allowed to rummage through the bank CEO's sock drawer to see if he's stashing extra cash in there? This would require the CEO to waive his Fourth Amendment rights and, therefore, violates the unconsititutional conditions doctrine.

For lack of a better source, this is a decent paper on the doctrine:

It is a point for debate, but there is a decent case that Congress is requiring CEOs to waive their rights under the Ninth and Fourteenth Amendments if they accept government assistance. In your previous example of welfare queens, the Constitution does not afford the right to buy liquor, so the doctrine doesn't apply in that case.

Now, there is no way I'd want to be the CEO or the lawyer of a CEO to take this complaint to a court. But I'd lay odds you'll hear of at least one challenge to this provision in the stimulus bill from a CEO who doesn't care about his public reputation.

Comment Posted By Mycoma On 14.02.2009 @ 10:59

I truly enjoy your blog. Keep up the good work.

I think you have made some valid arguments, so I would like to offer you a counter-argument: Unless the banks are fully nationalized, salaries paid by a bank to a CEO are considered private contracts. Any cap imposed on the CEO's salary would then violate Article I, Section 2 of the Consitution (contract provision).

Another argument would be that salary caps also violate the Ninth Amendment (unenumerated rights) and the Fourteenth Amendment (due process). By imposing a salary cap, the government is, in fact denying the CEO his right to property without due process of the law.

Comment Posted By Mycoma On 13.02.2009 @ 16:55



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