The unsurprising resignation of Mary Schapiro, head of the Securities and Exchange Commission (SEC), announced on November 26th, was followed by an unsurprising flurry of statements dripping with faint praise.True, the financial markets did not collapse during her tenure, and she was more engaged than her disastrous predecessor, Christopher Cox.
But those are very low bars.
If the goal of the SEC is to serve as the investor’s advocate, there is not much for Ms Schapiro to crow about. Individual investors have begun bailing out of equity mutual funds.
Mutual-fund managers fret that they are losing ground to high-speed traders who, some say, can use their technical wizardry to manipulate prices. Technical failures, most importantly the “flash crash” of May 2010, have raised concerns about market mechanics.
Companies are increasingly opting for costly private capital structures rather than paying the even more colossal costs associated with listing on a public exchange.
Enforcement actions have increased sharply during Ms Schapiro’s tenure, but the SEC’s legal record is imperfect. Under the Dodd Frank Act, it is required already to have written 76 rules, but it has missed the Congressionally imposed deadline on 50, according to Davis Polk, a law firm.
One completed rule was rejected by the DC Circuit Court for faulty economic analysis, a humiliating rebuke for an entity whose reputation is tied to its expertise. In New York, a district judge rejected a settlement from Citigroup, faulting the SEC’s approach of collecting money without any admission of guilt.
Even within the SEC Ms Schapiro found it rough going, most recently in her failed effort to impose new rules on the most conservative corner of its beat, the $2.6 trillion money market mutual fund sector. Instead, the issue was turned over to the Financial Stability Oversight Council for resolution.
Meanwhile, as the SEC’s ability to serve its traditional areas has become frayed, its responsibilities have expanded, with the most extreme example being its assignment to monitor America’s vast supply chain for any evidence of contamination by so-called “conflict minerals” mined in central Africa. It will also be required to assess the diversity practices of every company it regulates, which is to say every company that issues securities in America.
In areas where the SEC has successfully imposed rules, unintended consequences have sometimes followed. Filling out a registration form requires costly legal representation. A generous programme of rewards for whistleblowers has prompted, surprise, surprise, a cacophony of whistleblowing, some of which may be dubious.
People working in finance, and even academics, are reluctant to criticise regulators for fear of reprisals. At the same time, to avoid getting lost in the regulatory maze, financial and law firms are desperate to hire people with regulatory contacts. Ms Schapiro will have no problem finding another job, if she wants one.
Whether she could have achieved more at the SEC is not clear. She came to the job with a long CV, including a spell as head of the Financial Industry Regulatory Authority (FINRA), the industry’s self-regulatory body, immediately prior to her appointment. This gave her good grounding, but it also meant she was part of the regulatory system that President Barack Obama, among others, faulted for failing to prevent the financial crisis.
The new head is Elisse Walter, who was originally appointed to the SEC in 2008 by President Bush, and who previously worked with Ms Schapiro at FINRA. A better choice for the post would have been someone with deep knowledge of the markets and an unrelenting focus on getting their structure and technology right. It might have been smart to pick a poacher-turned-gamekeeper, like the SEC’s first chair, Joseph Kennedy. Surely there was no shortage of candidates.
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