New Haven Independent

Against the relentless nudging of an angry constituency, bad public policy and even worse laws are often debated and sometimes even passed. Thankfully we have the courts to remind legislators every now and then their power is not absolute and their thinking is often awash in emotion and devoid of common sense.

The latest example and almost the definition of pandering: the attempt by Congress to tax 90 percent of the bonuses given to a select group of AIG employees.

There is no argument these fellas don’t deserve a penny. While the financial system burned, these “wunderkinder” continued to slice and dice debt and risk into products that almost no one understands or how to value.

But they managed to get their “masters of the universe” bosses to write them contracts guaranteeing the same income they received in the prior year. It is a dealmakers’ dream. No matter how badly you foul up, you still get a hefty bonus at the end of the year.

This time it was taxpayer’s money that funded the bonuses which fueled the latest round of finger pointing.

“We’ll get that money back!” scream Congressmen, the president and just about everyone else within the range of a TV camera lens.

Enter Congress and the 90 percent tax, and watch common sense fly out the window.

That sometimes inconvenient little document called the The Constitution says, “No bill of attainder or ex post facto law shall be passed.” In English: A bill of attainder singles out people for punishment while an “ex post facto law” adds an after-the-fact punishment for past conduct.

Sure sounds as though a 90 percent tax on those who earn more than a quarter million in 2009 and whose company received more than $5 million from the treasury is a “bill of attainder,” doesn’t it?

And it sure sounds like the law is an after-the-fact punishment. Even if it weren’t, using the tax code as a form of punishment is just miserable public policy.

This isn’t the first time emotions got in the way of good public policy. Remember Terry Schiavo, the 41 year-old Floridian in a ten-year coma ? Her husband wanted to remove from life support and her parents opposed it .

The at-that-time Republican-led Congress was hauled back into special session to “save” her. Ultimately the badly authored, ghoulish law was overturned on appeal and the woman died in peace.

In that case, Federal Appeals Court Judge Stanley Birch Jr. rebuked the White House and lawmakers for acting “in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution.”

Fits nicely, doesn’t it?

You want the money back? My guess is you could find some smart group of lawyers to argue the contracts with the particular employees and AIG aren’t worth the paper they are printed on, if only because the company is broke. It survives only thanks to the largesse (and sanity) of the federal government which is currently propping it up only until it can figure out how to close some of its operations.

That seems to be a much better argument.

I think the more important question that needs to be asked revolves around what a “job” is worth. Is Vikram Pandit, CEO of Citigroup, really worth $38 million? Or Bank of America President Ken Lewis over $20 million? Especially when their companies are barely treading water and are alive only thanks to TARP money?

From my vantage point they each deserve $1 a year. Now that would be an incentive to get things fixed, wouldn’t it?