It’s been a tough day for the Goldman Sachs haters but they haven’t given up. The thought that the firm might escape the constraints of TARP has been almost too much to stomach but the strategy for keeping them in the fold is emerging tonight. The debt that they and others issued with a FDIC guarantee is being dragged out as evidence that they are still beholden to the government.

The NYT has an article that points out how important this facility was to the banking industry in the darkest days of the credit crisis. Goldman was the first to take advantage of the program and tapped it for $28 billion. Since then 119 deals, according to the Times, have been done.

Participation in this program did not come with the restrictions that were placed on TARP money. The funds were raised from private sources though they repayment is guaranteed by the FDIC. The argument starting to make the rounds is that since Goldman is still benefiting from this guarantee they should not be released from the compensation and other sundry restrictions that accompany TARP money.

By that line of reasoning all financial institutions that benefit from FDIC deposit insurance might or should be subject to the constraints of TARP. Naturally, the proponents are going to argue that there is a difference in guarantees and what they are intended to accomplish. When they finish with that tortured exercise I suppose they will move on to angels and heads of pins.

This could be quite interesting. I believe that an act of Congress established the constraints that accompany TARP. It would seem that they would have to amend or extend that legislation to encompass banks that benefit from FDIC insurance on debt. That might well be an interesting debate if they do take it up. On the other hand, this administration is getting used to governing as they will so they might well “interpret” the legislation as extending to the FDIC guaranteed debt.

Would Goldman take it to the next level in that case? Sooner or later some of this is going to end up in the courts.