How Much Do Companies Really Pay When Settling With The Government? Warren Pushes Bill That Make It Public

In November 2013, JPMorgan Chase & Co. agreed to pay the U.S. government a record $13 billion over its sales of essentially worthless mortgage-backed securities to unsuspecting investors in the lead-up to the 2008 financial crisis. But the megabank could deduct a full $11 billion of that fine from its taxes, as was widely reported at the time. (In an earnings conference call, the company estimated about $7 billion could be written off.) Sen. Elizabeth Warren, D-Mass., and James Lankford, R-Okla., are seeking to make those sorts of deductions public from the get-go — again.

The two lawmakers have pushed similar efforts before, in the face of tens of millions of dollars in lobbying expenditures related at least in part to past iterations of S. 1109, the Truth in Settlements Act, or its 2015 and 2014 House counterparts, H.R. 2648 and H.R. 4324, respectively.

"Government accountability requires transparency, and that's what this bipartisan bill provides," Warren said, in a press release Tuesday reintroducing their bill. "More transparency means Congress, citizens and watchdog groups can better hold regulatory agencies accountable for enforcing laws so that everyone — even corporate CEOs — are equal under the law."

JPMorgan, after all, wasn’t alone in writing off much of its hefty penalty to Uncle Sam. Of the ten biggest settlements announced by the Justice Department, Environmental Protection Agency, Securities and Exchange Commission and Department of Health and Human Services between 2012 and 2014, $48 billion of the $80 billion those companies forked over was eligible for tax deduction, according to a 2015 study by the nonprofit U.S. Public Interest Research Group.

While is doesn’t strive for reform in the tax system that allows those firms to write off huge chunks of their fines, the senators’ measure, which applies to settlement agreements with executive agencies worth at least $1 million, requires the agency in question to "make publicly available in a searchable format" a list of those agreements, including the amount of the penalty the payer can’t deduct. If that settlement amount is kept confidential, the agency has to state, publicly, why it should be kept secret. And lastly, the bill requires executive agencies to report information on the settlements they reach each year.

Matthew Gardner, a senior fellow at the Institute on Taxation and Economic Policy, said he saw the law as a sensible starting point in an effort to clarify big-number fines that are often no more than "window dressing."

"That seems like a pretty straightforward ask," he said. "The dual goal ought to be more certainty and more transparency."

Still, Gardner added, a tax code that allows those firms to deduct enormous amounts of what could be government revenue merited some attention as well — that, or the agency charging the fine should take the expected write-off into account when deciding on a number. But either way, he said, the Warren-Lankford bill should make that task a little easier.

"When do those penalties stop being a normal cost of doing business and start being something else?" Gardner said. He added, hypothetically, "If the federal government intends to fine an oil company $10 billion for an oil spill, they need to anticipate what the tax deduction is going to be. The difficulty is that that level of certainty doesn’t exist, and that level of transparency doesn’t exist."

The current lack of such a level of certainty may have something to do with the millions in lobbying dollars thrown at versions of the bill in recent years. The National Association of Manufacturers, an advocacy group that claimed the measure would be "penalizing manufacturers for a financial crisis they had nothing to do with," spent close to $2.7million in lobbying at least partially related to the bill in the first quarter of 2017, over $1.9 million in the same quarter of 2016 and more than $2.2 million in the fourth quarter of 2015.

Through the lobbying firm Brownstein Hyatt Farber Schreck LLP, JPMorgan spent $20,000 in lobbying at least in part on the 2015 version of the bill in the first quarter of 2016, and $30,000 on efforts involving the same measure in the last quarter of 2015. The bank also spent $30,000 on lobbying related in part to the 2014 Truth in Settlements Act in the third quarter of 2014, and followed that push with expenditures of $30,000 and $60,000 on lobbying efforts involving the bill in the fourth quarter of that year. The bank did not wish to comment on its position on the law. (Lobbying forms list issues and expenditures, but not necessarily a lobbying entity’s stance on those issues.)

Sometimes via the same lobbying firm, sometimes through others and sometimes directly, the U.S. Chamber of Commerce, a business-focused lobbying group, topped them all, with tens of millions in total expenditures related at least in part to versions of the bill between the third quarter of 2014 and the fourth quarter of 2016. In a May 2015 letter to the leaders of the Senate Committee on Homeland Security and Governmental Affairs, the group’s executive vice president for government affairs assailed the bill for its "unintended consequences that would harm both businesses and regulatory agencies." The 2015 version of the measure, the letter said, "would remove the incentive for investigation targets to settle and force the government to prove its assertions in the courts," which "would increase court dockets and tie up agencies in litigation."