Romney plans to use federal blind trust if elected
WASHINGTON—A week after Republican presidential candidate Mitt Romney disclosed a fortune worth as much as $250 million, his campaign said Wednesday that he plans to put his holdings in a federal blind trust if he is elected president.
A Romney campaign official said there have been long-standing plans to shift the candidate's assets from a trust overseen by a Boston attorney to a stricter blind trust overseen by federal officials if he wins in November. Some assets might be disclosed or sold off before such a move, campaign spokeswoman Andrea Saul said.
"If Gov. Romney is elected president, his blind trust will be terminated and a new federal blind trust will be created," Saul said. "Any assets that are not fully compliant with federal disclosure and other rules applicable to the office of the presidency will be disposed of."
In a divisive presidential campaign where Romney's vast fortune and his long association with the Bain Capital private equity firm have become central issues, the move could serve to insulate Romney politically from criticism about his wealth as well as possible ethics conflicts. But the move might not stop the flow of new payments from Bain, which has been both lionized for its record of successful investments and vilified for mass layoffs at some of the companies it bought.
Just last week, Romney disclosed more than $2 million in new income from Bain, the firm he co-founded and managed until departing in 1999. Finance and taxation experts said this week that the new Bain payments raised the prospect that Romney could continue receiving income from his former company over the next several years.
A Romney campaign official, speaking on condition of anonymity to discuss his finances, said the campaign's analysis of his income stream indicated that any future Bain income pay-outs were unlikely but that such payments were out of his control.
Saul disclosed the plans for a federal blind trust after The Associated Press raised questions about how Romney would deal with any future Bain Capital income.
In his latest federal financial disclosure, filed last week, Romney's trustee revealed that the candidate made $1.9 million from a single "Bain Capital Inc." payment as well as more than $200,000 from three other Bain entities. Although Romney's retirement agreement with Bain expired in 2009, the trustee said the income came in the form of "true-up" payments -- in essence, catch-up payments made to make up for earnings not provided to Romney before the entities ceased operation.
None of the Bain entities had previously been listed on Romney's 2011 financial disclosure.
The details of Romney's severance agreement have largely remained secret, but experts in private equity finance and taxation say that the financial fallout from Romney's retirement plan will continue to reverberate.
Critics have warned that concerns about the steady flow of income from Bain are made more acute by Romney's long-standing decision to withhold crucial details about his Bain separation agreement, leaving voters with little information about his continuing ties to the firm.
"While he may not be actively managing the business anymore, he remains financially linked to them," said Victor Fleischer, a University of Colorado law professor and private equity expert who has testified before Congress on complex finance issues. "The point of financial disclosure is to communicate the full extent of one's potential conflict of interest, and until he discloses the severance agreement, we don't know whether he'd manage the country on our behalf or be influenced by his ongoing relationship with Bain Capital."
Romney's holdings are in what his campaign describes as a blind trust, preventing him from having direct control over his investments. Although the trust would qualify as a blind trust in Massachusetts, where Romney served as governor, critics have complained that the candidate is not totally blind to its contents. Romney's trustee, Boston lawyer R. Bradford Malt, has said that he buys and sells investments that he believes would be consistent with Romney's public policy positions.
Malt bought and sold off a number of investments over the last several years that appeared to conflict with Romney's political positions. Since 2010, as the presidential election neared, Malt has sold off a number of stocks in companies based in China and others that traded with Iran and backed stem cell research -- all stances that Romney has opposed as a candidate.
The broad outlines of Romney's portfolio were signed off by him in annual disclosures in 20111 and 2012 to the federal Office of Government Ethics and the Federal Election Commission, and then shared with the media and with voters.
A federally "qualified diversified" blind trust would have much stricter standards, preventing Romney -- and the American public -- from knowing what is contained in his portfolio. The OGE would qualify both the trust and any nominee for trustee to make sure that the trust's contents were not disclosed.
"In order to be truly blind, an official cannot really know what investments are held in the blind trust," said Stephen D. Potts, an OGE director in the first Bush and Clinton administrations who later served as deputy White House counsel for President George W. Bush.
Even with a federal blind trust, Romney could continue to receive income from Bain throughout his presidency, if he's elected -- even if he remains unaware of the specific payments. Rebecca Wilkins, a senior counsel with the Citizens for Tax Justice, a tax fairness advocacy group, pointed to an obscure note to the Internal Revenue Service that turned up at the end of the 2010 tax returns for a trust for Romney's wife, Ann.
In the note, Romney's trustee told the IRS that the trust would elect to begin receiving interest from a Bain Capital fund known as "Bain Capital Partners (AM) X, LP." Although the fund is not detailed further in the return, the AP has learned that the fund is a partnership that was set up in the Cayman Islands, a foreign base that could allow U.S. investors to defer some of their future taxes under certain circumstances.
The fund is apparently tied to Bain Capital's 2010 purchase of Air Medical Group Holdings, the largest independent U.S. provider of emergency air medical services. The deal cost Bain an estimated $1 billion.
Under typical private equity arrangements, the Romney trust could receive interest from the "Bain Capital Partners (AM) X" investment fund over the next five to seven years, Wilkins said -- meaning that Romney's Bain Capital income might continue flowing through 2017.
And because that income is treated as long-term capital gains, Romney would pay taxes on the earn-outs at the 15 percent capital gains tax rate, well below the higher rates paid by many middle-class American taxpayers.
"He'll be getting this income for a long time," Wilkins said.