Commentary

The Secretive Industry Devouring the U.S. Economy

Private equity has made one-fifth of the market effectively invisible to investors, the media, and regulators.

THE ATLANTIC, Rogé Karma, November 3, 2023

The publicly traded company is disappearing. In 1996, about 8,000 firms were listed in the U.S. stock market. Since then, the national economy has grown by nearly $20 trillion. The population has increased by 70 million people. And yet, today, the number of American public companies stands at fewer than 4,000. How can that be?

One answer is that the private-equity industry is devouring them. When a private-equity fund buys a publicly traded company, it takes the company private—hence the name. (If the company has not yet gone public, the acquisition keeps that from happening.) This gives the fund total control, which in theory allows it to find ways to boost profits so that it can sell the company for a big payday a few years later. In practice, going private can have more troubling consequences. The thing about public companies is that they’re, well, public. By law, they have to disclose information about their finances, operations, business risks, and legal liabilities. Taking a company private exempts it from those requirements.

That may not have been such a big deal when private equity was a niche industry. Today, however, it’s anything but. In 2000, private-equity firms managed about 4 percent of total U.S. corporate equity. By 2021, that number was closer to 20 percent. In other words, private equity has been growing nearly five times faster than the U.S. economy as a whole.

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Elisabeth de Fontenay, a law professor at Duke University who studies corporate finance, told me that if current trends continue, “we could end up with a completely opaque economy.”

This should alarm you even if you’ve never bought a stock in your life. One-fifth of the market has been made effectively invisible to investors, the media, and regulators. Information as basic as who actually owns a company, how it makes its money, or whether it is profitable is “disappearing indefinitely into private equity darkness,” as the Harvard Law professor John Coates writes in his book The Problem of Twelve. This is not a recipe for corporate responsibility or economic stability. A private economy is one in which companies can more easily get away with wrongdoing and an economic crisis can take everyone by surprise. And to a startling degree, a private economy is what we already have.

America learned the hard way what happens when corporations operate in the dark. Before the Great Depression, the whole U.S. economy functioned sort of like the crypto market in 2021. Companies could raise however much money they wanted from whomever they wanted. They could claim almost anything about their finances or business model. Investors often had no good way of knowing whether they were being defrauded, let alone whether to expect a good return.

Then came the worst economic crisis in U.S. history. From October to December of 1929, the stock market lost 50 percent of its value, with more losses to come. Thousands of banks collapsed, wiping out the savings of millions of Americans. Unemployment spiked to 25 percent. The Great Depression generated a crisis of confidence for American capitalism. Public hearings revealed just how rampant corporate fraud had become before the crash. In response, Congress passed the Securities Act of 1933 and the Securities Exchange Act of 1934. These laws launched a regime of “full and fair disclosure” and created a new government agency, the Securities and Exchange Commission, to enforce it. Now if companies wanted to raise money from the public, they would have to disclose a wide array of information to the public. This would include basic details about the company’s operations and finances, plus a comprehensive list of major risks facing the company, plans for complying with current and future regulations, and documentation of outstanding legal liabilities. All of these disclosures would be reviewed for accuracy by the SEC.

This regime created a new social contract for American capitalism: scale in exchange for transparency. Private companies were limited to 100 investors, putting a hard limit on how quickly they could grow. Any business that wanted to raise serious capital from the public had to submit itself to the new reporting laws. Over the next half century, this disclosure regime would underwrite the longest period of economic growth and prosperity in U.S. history. But it didn’t last. Beginning in the “Greed Is Good” 1980s, a wave of deregulatory reforms made it easier for private companies to raise capital. Most important was the National Securities Markets Improvement Act of 1996, which allowed private funds to raise an unlimited amount of money from an unlimited number of institutional investors. The law created a loophole that effectively broke the scale-for-transparency bargain. Tellingly, 1997 was the year the number of public companies in America peaked.

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From the November 2018 issue: The death of the IPO

“Suddenly, private companies could raise all the money they want without even thinking about an IPO,” De Fontenay said. “That completely undermined the incentives companies had to go public.” Indeed, from 1980 to 2000, an average of 310 companies went public every year; from 2001 to 2022, only 118 did. The number briefly shot up during the coronavirus pandemic but has since fallen. (Over the same time period, the rate of mergers and acquisitions soared, which also helps explain the decline in public companies.)

Meanwhile, private equity has matured into a multitrillion-dollar industry, devoted to making short-term profits from highly leveraged transactions, operating with almost no regulatory or public scrutiny. Not all private-equity deals end in calamity, of course, and not all public companies are paragons of civic virtue. But the secrecy in which private-equity firms operate emboldens them to act more recklessly—and makes it much harder to hold them accountable when they do. Private-equity investment in nursing homes, to take just one example, has grown from about $5 billion at the turn of the century to more than $100 billion today. The results have not been pretty. The industry seems to have recognized that it could improve profit margins by cutting back on staffing while relying more on psychoactive medication. Stories abound of patients being rushed to the hospital after being overprescribed opioids, of bedside call buttons so poorly attended that residents suffer in silence while waiting for help, of nurses being pressured to work while sick with COVID. A 2021 study concluded that private-equity ownership was associated with about 22,500 premature nursing-home deaths from 2005 to 2017—before the wave of death and misery wrought by the pandemic.

Eventually, the public got wind of what was happening. The pandemic death count focused attention on the industry. Journalists and watchdog groups exposed the worst of the behaviors. Policy makers and regulators, at long last, began to take action. But by then, much of the damage had been done. “If we had some form of disclosure, we probably would have seen regulatory action a decade earlier,” Coates told me. “But instead, we’ve had 10-plus years of experimentation and abuse without anyone knowing.”

Something similar could be said about any number of industries, including higher educationnewspapersretail, and grocery stores. Across the economy, private-equity firms are known for laying off workers, evading regulations, reducing the quality of services, and bankrupting companies while ensuring that their own partners are paid handsomely. The veil of secrecy makes all of this easier to execute and harder to stop.

Private-equity funds dispute many of the criticisms of the industry. They argue that the horror stories are exaggerated and that a handful of problematic firms shouldn’t tarnish the rest of the industry, which is doing great work. Freed from onerous disclosure requirements, they claim, private companies can build more dynamic, flexible businesses that generate greater returns for shareholders. But the lack of public information makes verifying these claims difficult. Most careful academic studies find that although private-equity funds slightly outperformed the stock market on average prior to the early 2000s, they no longer do so. When you take into account their high fees, they appear to be a worse investment than a simple index fund.

“These companies basically get to write their own stories,” says Alyssa Giachino, the research director at the Private Equity Stakeholder Project. “They produce their own reports. They come up with their own numbers. And there’s no one making sure they are telling the truth.”

In the roaring ’20s, the lack of corporate disclosure allowed a massive financial crisis to build up without anyone noticing. A century later, the growth of a new shadow economy could pose similar risks.

The hallmark of a private-equity deal is the so-called leveraged buyout. Funds take on massive amounts of debt to buy companies, with the goal of reselling in a few years at a profit. If all of that debt becomes hard to pay back—because of, say, an economic downturn or rising interest rates—a wave of defaults could ripple through the financial system. In fact, this has happened before: The original leveraged buyout mania of the 1980s helped spark the 1989 stock-market crash. Since then, private equity has grown into a $12 trillion industry and has begun raising much of its money from unregulated, nonbank lenders, many of which are owned by the same private-equity funds taking out loans in the first place.

Meanwhile, interest rates have reached a 20-year high, posing a direct threat to private equity’s debt-heavy business model. In response, many private-equity funds have migrated toward even riskier forms of backroom financing. Many of these involve taking on even more debt on the assumption that market conditions will soon improve enough to restore profitability. If that doesn’t happen—and many of these big deals fail—the implications could be massive.

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The industry counters that private markets are a better place for risky deals precisely because they have fewer ties to the real economy. A traditional bank has a bunch of ordinary depositors, whereas if a private-equity firm goes bust, the losers are institutional investors: pension funds, university endowments, wealthy fund managers. Bad, but not catastrophic. The problem, once again, is that no one knows how true that story is. Banks have to disclose information to regulators about how much they’re lending, how much capital they’re holding, and how their loans are performing. Private lenders sidestep all of that, meaning that regulators can’t know what risks exist in the system or how tied they are to the real economy.

“Everything could be just fine,” says Ana Arsov, a managing director at Moody’s Investors Service who leads research on private lending. “But the point is that we don’t have the information we need to assess risk. Who is making these loans? How big are they? What are the terms? We just don’t know. So the worry is that the leverage in the system might grow and grow and grow without anyone noticing. And we really don’t know what the effects could be if something goes wrong.”

The government appears to be at least somewhat aware of this problem. In August, the SEC proposed a new rule requiring private-equity fund advisers to give more information to their investors. That’s better than nothing, but it hardly addresses the bad behavior or systemic risk. Nearly a century ago, Congress concluded that the nation’s economic system could not survive as long as its most powerful companies were left to operate in the shadows. It took the worst economic cataclysm in American history to learn that lesson. The question now is what it will take to learn it again.

Source: THE ATLANTIC