Treasury: Why didn't WE think of that?

Warren Buffett came up with some bailout terms for Goldman Sachs to which folks at the Treasury Department should have paid closer attention. As the Financial Times reports today, top Goldman executives are prohibited by the Buffett deal from selling their company shares until October, 2011, or until all of Buffett´s preferred shares have been bought back. This poses a problem for Jon Winkleried, one of Goldman´s two co-presidents, who is leaving the bank at the end of the month. Winkleried will be stuck with his Goldman shares until the bank has enough money to buy out Buffett.

It´s a clever scheme. The obligation executives have to repay Buffett is a more effective way to assure Goldman´s stability in the future-at least in the medium-term-than any executive pay caps could be. Its genius is that it has harnessed the already existing incentive of a large payout without having to offer bankers any more money. They´re handsomely rewarded, though, if they succeed in steering their company into calmer waters.

Buffett announced his $5 billion investment in Goldman on Sept. 23, and the limits on executives selling shares are in the terms of that investment. It was completed before the bailout plan was much more than a twinkle in Treasury Secretary Henry Paulson´s eye. Yet the Treasury took no notice; no similar provision appeared in the terms of the Capital Purchase Program it launched in October.

Since the Emergency Economic Stabilization Act allows the Treasury to retroactively impose new conditions on Tarp recipients, it´s not impossible for the government to go back and require banks that received the first few rounds of bailout money to adopt this condition. But the effects wouldn´t be the same. Bankers are already itching to pay back their tarp money, with uglier, more urgent motivations. The opportunity to follow the example set by the Oracle of Omaha has come and gone.