In an e-mail message sent last week to the heads of Wall Street legal departments, executives of the lobbying group, the Securities Industry and Financial Markets Association, wrote that a bank tax might be unconstitutional because it would unfairly single out and penalize big banks, according to these officials, who did not want to be identified to preserve relationships with the group’s members.
The message said the association had hired Carter G. Phillips of Sidley Austin, who has argued dozens of cases before the Supreme Court, to study whether a tax on one industry could be considered arbitrary and punitive, providing the basis for a constitutional challenge, they said.
Administration officials and other legal experts have called those claims dubious.
Indeed, President Obama urged the financial lobby to stand down when he introduced the tax proposal last week: “Instead of sending a phalanx of lobbyists to fight this proposal or employing an army of lawyers and accountants to help evade the fee, I suggest you might want to consider simply meeting your responsibilities.”
A spokesman for the lobbying group, Andrew DeSouza, confirmed on Sunday that Mr. Phillips was working with the group on a series of regulatory and legislative matters, including the tax. But because no formal tax legislation has been proposed by Congress, Mr. DeSouza said it was “premature to speculate on any potential actions beyond opposing the proposal itself as both punitive and counterproductive to increasing lending.”
A court challenge would open a new front in the banking industry’s assault on additional financial regulation. It might also further splinter the powerful financial lobby. The issue has already pitted smaller banks, which would be exempt from the tax, against their less popular Wall Street peers, and it has even stirred debate within the large banks over whether such an aggressive legal strategy would be politically wise.
Privately, executives at several large banks said they believed a legal battle was doomed to fail in Washington and risked escalating public rage over the bailouts of the banks. These executives say the industry may be better off pushing for a watered-down version of the tax. Most banks are just beginning to consider how, or whether, they would oppose it.
This political tug of war is centered on Wall Street bonuses, which have already returned to precrisis levels. The banks have tried to head off criticism by starting new charitable programs and by structuring executive bonuses in line with principles set by the federal pay adviser, like paying bonuses mostly in stock instead of cash and deferring the payout of some bonus money in case business declines again.
Administration officials hoped their proposed bank tax would serve much the same purpose. Democratic leaders in Congress have welcomed the plan, which could raise up to $117 billion to recoup projected losses from the bank bailout program.
Republicans have remained unusually silent on the tax, hoping to avoid a choice between supporting a tax increase and defending big bankers. Meanwhile, some liberal Democrats have gone further than the administration has, proposing a heavy tax on bank bonuses. Political analysts expect the bank tax to pass easily in the House but face resistance in the Senate.
There may be room for compromise. Administration officials hope to keep the proposed tax limited to major financial institutions with more than $50 billion in assets but consider that a difficult line to draw. For example, the proposed tax would not apply to large hedge funds; the mortgage finance giants Fannie Mae and Freddie Mac; or the carmakers Chrysler and General Motors.
“We believe the lines we have drawn are sound and sensible,” said Gene B. Sperling, a senior Treasury Department official. “We understand these are the type of things we will need to keep an open mind on in negotiations with Congress.”
The financial lobby has insisted that it is unfair for banks to cover the cost of losses tied to nonbank bailout recipients like the automakers and the American International Group, the giant insurer that is now majority-owned by the government. In an appearance on CNBC on Thursday, Representative Barney Frank, chairman of the House Financial Services Committee, called the argument over including the automakers legitimate.
At the lobbying group, the selection of Mr. Phillips of Sidley Austin raised eyebrows because it suggests that Wall Street may be spoiling for a fight. Davis Polk & Wardwell, another white-shoe law firm, has been advising the same lobbying group on legal matters tied to new financial regulation.
Mr. Phillips, who was an appellate lawyer in the Justice Department during the Reagan administration, brought his first case in front of the Supreme Court when he was just 29 years old. Since then, he has appeared before the court more than 60 times. Mr. Phillips declined to comment about his work for the industry, referring all questions to the lobbying group.
The group has hired him before. Last spring, it retained Mr. Phillips to examine similar legal questions after lawmakers prepared to heavily tax Wall Street bonuses in response to the public’s outrage over bonuses for A.I.G. traders. Through an extensive phone campaign and relentless lobbying on Capitol Hill, the financial lobby successfully beat back the legislation without using the courts.
This time around, Mr. Phillips is working with the group to determine whether it has legal grounds to challenge the tax proposal, including the possibility that the tax might amount to a retroactive policy. The original bailout bill, however, spelled out that the government needed to recover that money.
Mr. Phillips’s primary argument, however, might be that a tax so narrowly focused would penalize a specific group. Legal scholars say the Supreme Court has overturned only a handful of laws on those grounds, and those were typically rules that singled out political outcasts like former members of the Confederacy or people accused of being communists.
Officials of the lobbying group suggest that a bank tax would be punitive because it would seek to recoup bailout losses from companies that have already paid back their money — with warrants and interest.
But Mr. Sperling, the Treasury official who was one of the architects of the proposal, said the industry’s claims had little standing. “That sounds more like a political sound bite masquerading as a legal argument,” he said.
Outside legal scholars agree. “It seems to me that it is not even a close question,” said Laurence H. Tribe, a constitutional law professor at Harvard who was a legal adviser to the Obama campaign. Mr. Tribe contends that imposing a fee or requirement to return a sum of money cannot be construed as a punishment. Even more important, the administration’s proposal lays out a clear set of criteria, not a list of individual culprits, Mr. Tribe said.
The Securities Industry and Financial Markets Association, an umbrella group for hundreds of financial institutions, is under intense pressure. It has been weakened significantly by the financial collapse that claimed Bear Stearns, Merrill Lynch and other large, dues-paying members.
Just last week, the group ended an eight-year affiliation with the American Securitization Forum, its bondholder lobbying unit, after the groups failed to resolve how they would treat their members’ increasingly divergent interests.