BizJournals Portfolio

Bad Cop, Bad Cop

Wall Street can't have it both ways. It wants to be left alone when times are good, but then it rushes to Uncle Sam for help when, as gambling-addiction hotlines advertise in casinos, "the fun stops." Well, the fun has clearly stopped. And now with the financial industry in a rare state of contrition and Washington focusing, at least for the next few minutes, on the sorry state of regulation, the rulemakers need to act fast.

The shakeup recently proposed by Treasury secretary Hank Paulson is a good first step. But beyond organizational flowchart tinkering, it is essential that when the current crisis abates, the government will demand far greater transparency to protect individual investors in the future.

The Securities and Exchange Commission, created in 1934 after the stock market free-for-all that preceded the Great Depression, was supposed to do this by ensuring that markets are fair, transparent, and orderly. But it has never been given meaningful jurisdiction over the very entities that so often determine whether markets are fair, transparent, and orderly: hedge funds (two of which lit the fuse on the Bear Stearns explosion), private equity firms (whose current debt levels are disquieting), and derivative instruments (which could potentially become a huge problem as more corporate defaults occur). Consequently, like some hapless street cop who’s shoved aside when the F.B.I. swoops in, the S.E.C. stood by as the Federal Reserve, fearing a domino effect, orchestrated the Bear Stearns rescue.

The quaint fiction, so convenient for Wall Street, has been that the government need only regulate—and demand full transparency from—commercial banks, publicly traded companies, and the exchanges, while allowing “private” entities to operate in the shadows. Even Barney Frank, the Democratic chairman of the House Financial Services Committee, told the Financial Times in 2006 that if these players want to ride a motorcycle without a helmet, that’s their problem.

The core fallacy has been this: As long as the activities of public companies are subject to rigorous oversight, individual investors are protected. That approach may have made sense in 1950, when retail investors represented 90 percent of direct investment in stocks, but not today, when markets are dominated by private institutions that are all but exempt from disclosure requirements.

What next? Courts have blocked the S.E.C.’s efforts to solicit data from hedge funds, which account for 30 percent of all equity trading, so Congress must grant the agency muscular oversight over them as well as private equity firms to ensure transparency. Banks should not be permitted to omit structured investment vehicles, with their massive potential liabilities, from their balance sheets. Jurisdiction over derivatives needs to be clarified, and the Paulson plan to merge the S.E.C. with the Commodity Futures and Trading Commission is a good start.

This year marks the 75th anniversary of the law that presaged the S.E.C. and made disclosure its hallmark, as chairman Christopher Cox recently put it. It’s long past time for that mandate to be fulfilled.


Comments

If you are commenting using a Facebook account, your profile information may be displayed with your comment depending on your privacy settings. By leaving the 'Post to Facebook' box selected, your comment will be published to your Facebook profile in addition to the space below.

Connect With Portfolio.com

Come on, like us—you know you want to.

Follow us and if you're an innovative entrepreneur, we'll return the favor.

Today's top stories, conversation starters, and the back nine business bites.

spotlight on

Slideshows

500 Startups Hits New York

Dave McClure's brainchild makes its way to New York and introduces East Coast money folks to some intriguing new companies. View Slideshow