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What to Do With Goldman Sachs?

Goldman's grilling before a Senate subcommittee puts the onus back on lawmakers, who must figure out a way to address their own concerns. Wall Street won't do it for them.

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Republicans and Democrats in Congress may finally have found something on which they can agree: that Goldman Sachs is Public Enemy No. 1.

In a marathon Congressional subcommittee session Tuesday that stretched well into the evening, irate senators spent hours subjecting current and former executives of Goldman Sachs to intensive and occasionally hostile interrogation about their dealings with their clients. Even Republican John McCain of Arizona, a relatively friendly presence compared to Carl Levin, a Democrat from Michigan, and Claire McCaskill, a Democrat from Missouri, said that while he didn’t know whether Goldman had done anything illegal in its dealings with its clients, as the SEC has alleged in a lawsuit filed nearly two weeks ago, “there’s no doubt that their behavior was unethical.” Now there are reports today that federal prosecutors in New York are weighing criminal charges against the firm.

And yet despite the bipartisan outrage, GOP members of the Permanent Subcommittee on Investigations used one of the few adjournments in the hearing to join their fellow Republicans in voting against moving forward with legislation aimed at protecting the financial system from a repeat of the 2008 meltdown. That 57-41 procedural vote reflects the deep differences of opinions that still linger surrounding the kind of reform that should be pursued. The banking bill is now headed to a vote on the Senate floor, albeit without any sort of Senate consensus.

Should legislators create a consumer protection agency for financial products—a body that President Barack Obama has indicated that he strongly favors? Can legislators agree to regulate derivatives—and, if so, what kinds of derivatives and what kinds of regulation?

And what might happen to those lawmakers who rely heavily on Wall Street for campaign contributions if they vote in favor of a reform package that boosts not only the regulatory burden on financial firms but eats into their profit margins by forcing them to hold more capital or abandon certain business lines?

Intriguingly, the hearings into Goldman’s dealings in the mortgage securities world, convened as part of the subcommittee’s probe into the causes of the near collapse of the entire financial system in 2008, did demonstrate the need for greater adult supervision of parts of this universe—and both Republicans and Democrats lost no time in pointing that out, playing to a Main Street audience.

McCaskill blasted Goldman’s involvement in the synthetic CDO market—made up of securities that didn’t hedge a real economic exposure to anything, but rather a bet between two parties, one of which wanted to go “long” a specific risk, while its counterparty “shorted” the same risk. “It’s gambling, pure and simple,” she pointed out.

Even Goldman CEO Lloyd Blankfein, who had to sit on the sidelines until 5:30 p.m. before taking his turn in front of a battery of clicking cameras and hostile senators, eventually admitted that—just possibly—Wall Street shouldn’t be allowed to market every security that its brightest minds could dream up. But his apology for anything that Goldman did to contribute to the crisis sounded uncannily like someone apologizing “for anything that I may have done to upset you”; an apology that tries to make those demanding it feel guilty for taking offense at something the apologizer has said or done.

Still, in Blankfein’s eyes, just because the senators grilling him didn’t understand what purpose synthetic CDOs served for Goldman Sachs clients didn’t mean that there wasn’t such a purpose. It wasn’t up to Goldman Sachs to demand why hedge fund manager John Paulson wanted to short mortgage-backed securities, or to wonder why German bank IKB—which eventually lost a bundle on the Abacus transaction at the heart of the SEC lawsuit, as well as myriad other CDO deals—wanted to take a “long” position. (For more on CDOs, take a look at this interactive feature.)

Goldman, Blankfein repeatedly explained, was there to facilitate these transactions. Clients, he insisted, don’t care about Goldman’s view of what might happen to a specific market and are quite able to calculate the risks they are running for themselves.

Ironically, the element of Goldman’s dealings in the mortgage securities world that seemed to trouble senators from both sides of the aisle is one that isn’t even incorporated into any financial reform bill or regulatory proposal. Blankfein was blunt and to the point in declaring the reality that Goldman Sachs is a counterparty and not a fiduciary. Therefore, it doesn’t owe a duty of care to its trading clients of the same magnitude that, say, a financial adviser or trustee owes to someone who entrusts them with his or her life savings.

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