Will Financial Regulation Make Us Safe? (Part III)

Posted on Categories Business Regulation1 Comment on Will Financial Regulation Make Us Safe? (Part III)

This is the third post on the topic.  As promised, I will attempt to address whether the currently proposed regulatory overhaul can help mitigate against the risk of excessive risk-taking and speculative behavior.  That is, can the prevention of “too big to fail,” increased capital ratios among large banks, and the 2,315-pages of financial regulatory system legislation act as the “voice of reason” which will prevent future financial crises?

Well, a lot has happened since my past post:

  • Central bank governors and regulators finalized a package that will recommend that banks more than triple the amount of top quality capital they must hold to withstand shocks without state aid (the so-called Basel III requirements);
  • Six banks in the U.S. collapsed, bringing the total to 124 this year as the ramifications of the credit crises continued to take a toll (including one right here in West Allis, Wisconsin); and
  • Gordon Gekko plans his return as the movie Wall Street: Money Never Sleeps premiers in theaters this Friday – I am sure that you will remember the speech from the first movie:  Continue reading “Will Financial Regulation Make Us Safe? (Part III)”

Will Financial Regulation Make Us Safe? (Part II)

Posted on Categories Business Regulation, Corporate Law1 Comment on Will Financial Regulation Make Us Safe? (Part II)

This is the second post on this topic.  Good to see you back for more!  Based on all of the notes that I received following my first post, the readership levels of this site are much higher than I expected.  Thanks for all of the kind feedback and responses.

I think that some of my former colleagues over at Stark Investments are thinking that they created a blogging monster (while at Stark I maintained a blog and I bet that some are thinking that I have taken things to a new extreme….).  While on that topic, I did want to mention a couple of tidbits about Stark Investments (it seems that some folks are still interested in what I have to say on the topic).

The original founders of Stark – Brian Stark and Mike Roth – were true pioneers in the hedge fund industry and played an important role in the evolution of this space and in paving the way for all those that followed into the business (including myself).  At its core, the hedge fund business (or “alternatives business” as it is commonly referred to) is based on the goal of providing absolute returns in an uncorrelated fashion (providing more attractive risk-adjusted returns than can be found from other investment techniques and strategies).  As they say about sports and hitting a baseball, achieving these objectives is one of the hardest things to do in any profession.  In any event, Brian and Mike have been doing this as long as anyone in the business.   I had a great 10 years working for the two of them and I learned much from both of their styles.

 Ok, enough of that stuff.  Let’s talk about financial regulation.  The last major overhaul of the regulatory structure of our financial markets, not surprisingly, occurred following the Great Depression.  The regulatory reaction to the stock market crash was the adoption of two cornerstone pieces of legislation which still provide the backbone of our regulatory structure — the Securities Act of 1933 (the “’33 Act”) and the Securities Exchange Act of 1934 (the “34 Act”). The 33 Act, administered by the then newly created Securities & Exchange Commission (the “SEC”), provides for the registration of the initial distribution of most securities and the 34 Act imposes ongoing reporting and disclosure requirements.

 The policy behind the Acts was that disclosure of material facts and overall transparency in the activities of the securities exchanges would provide confidence in the markets and in the companies issuing securities.  Increased transparency, in turn, would promote much-needed liquidity which makes the markets function in an orderly fashion (the pre-Depression markets were characterized by insider dealing and a significant laissez-faire attitude towards regulation).  This “sunlight theory of regulation” is based on the assumption that if investors are given all of the necessary information they will make wise investment decisions. Commentators have characterized the ’33 Act as follows (these quotes, some of my personnel favorites, can also be found on the State of Wisconsin Department of Financial Institutions website):

  • Congress did not take away from the citizen his inalienable right to make a fool of himself. It simply attempted to prevent others from making a fool of him.
  • As to its efficacy in regulating securities issuers, the sunlight theory may be summed up by a saying: Those who are forced to undress in public will presumably pay some attention to their figures.

Please remember these quotes because I believe that they are instructive in thinking about the role of regulation in light of the current environment.   Notably, it is my view that “full and fair disclosure” was not a major problem during our most recent financial crises – in my mind, the much bigger issue (as noted in my first blog) was excessive risk-taking and greed:  in short, too many people made fools of themselves….

My father recently guided me to some sections of Tony Blair’s newly released memoirs A Journey: My Political Life, which were of interest to me on the topic of financial regulation.  The Prime Minister had this to say of the markets, government and regulation:

 First, “the market” did not fail. One part of one sector did. The way sub-prime debt was securitized, spliced and diced and sold on with no real appreciation of underlying risk or value was wrong, irresponsible and immensely damaging. Some of the rewards, the huge payouts for shuffling around securities, the bonuses, are not just presentationally awful; they can’t be justified and, at worst, have helped create a propensity to “do the deal” whatever the long-term merits for short-term gain, in a way that significantly contributed to the crisis. All this is correct and should be acted on. However, such practice should not define or represent the whole of the banking sector, let alone the whole financial sector, let alone “the market.”

Second, government also failed. Regulations failed. Politicians failed. Monetary policy failed. Debt became way too cheap. But that wasn’t a conspiracy of the banks; it was a consequence of the apparently benign confluence of loose money policy and low inflation. The responsibility for the crisis should be shared, not borne by the market alone or even by the banks alone.

Third, the failure was one of understanding. We didn’t spot it. You can argue we should have, but we didn’t. Furthermore—and this is vital for where we go now on regulation—it wasn’t that we were powerless to prevent it even if we had seen it coming; it wasn’t a failure of regulation in the sense that we lacked the power to intervene. Had regulators said to the leaders that a huge crisis was about to break, we wouldn’t have said: There’s nothing we can do about it until we get more regulation through. We would have acted. But they didn’t say that.

My own beliefs flow from a similar line of thinking.  That is, our financial system has failed by not having a natural governor of its activities.  One of the interesting ironies, in my experience, is that during the creation of bubble-like conditions all of the players in the financial system act as if their interests are aligned.  Investors, speculators, bankers, and policy-makers all tend to act in a manner that is designed to “let the good times roll.”   The markets need a voice of reason in these environments – someone or something that can provide balance in recognizing the signs of a bubble, in recognizing where we are in terms of the investment cycle, in acting as a counter-balance to the “this time its different” mentality, and in ensuring prudent action during these periods.  If we do not find a way to do this then we will repeat these cycles – and in my mind they will occur with even more frequency and ferocity.

So, it will be in the next blog post where I will discuss whether the currently proposed regulatory overhaul can help mitigate against these risks.  That is, can the prevention of “too big to fail,” increased capital ratios among large banks, and the 2,315-pages of financial regulatory system legislation act as the “voice of reason” which will prevent future financial crises….and what does this all mean from an underlying policy perspective?

Will Financial Regulation Make Us Safe?

Posted on Categories Business RegulationLeave a comment» on Will Financial Regulation Make Us Safe?

It is with a bit of fear that I take over the podium as a guest blogger. The thought of coming up with enough substance to satisfy the cravings of an unnamed and faceless reader base is a bit frightening. So, please excuse me if my nervousness shows through in my writing.

So, first a bit about me. I have been very fortunate to have had a fantastic fifteen-year career in the hedge fund business (which does make me a bit of a dinosaur in the industry). Most recently, I was the President and Chief Operating Officer of Stark Investments (one of the oldest hedge funds in the world). During my career working in the business, I have done about everything – from providing legal counsel, to co-managing a large portfolio, to ultimately taking responsibility for the execution of the strategic vision and the overall administration of a large organization. I am a 1993 graduate of the Marquette University School of Law (and have to say that I am thrilled at all of the very positive developments at the Law School – kudos to Dean Kearney and his team!). All of that being said, I have had the fortune (or misfortune as the case may be) of having had a front-row seat throughout this period of financial crises.

It is with this background in mind that I will spend my month at the podium discussing the markets, the financial crises, financial regulation, and the evolving nature of some of the key players in the markets (investment banks, hedge funds, and other investors).  Continue reading “Will Financial Regulation Make Us Safe?”