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A looming battle over re-regulation
Amid the economic chaos of 2008, Arthur Levitt Jr. stands out. He's one of the very few regulators of the Clinton and Bush eras to take responsibility for the current financial disaster—to admit that he botched things, big time. "All tragedies in life are preceded by warnings," the former chairman of the Securities and Exchange Commission told me in an interview Tuesday. "We had a warning. It was from Brooksley Born. We didn't listen to that." Brooksley Born was the head of Commodity Futures Trading Commission (CFTC) under Clinton. Beginning in the spring of 1998, she pushed for the regulation of derivatives trading. She warned of the dangers of a vast global financial market that was going unchecked by governments. But she was silenced by the then all-powerful team of Federal Reserve Chairman Alan Greenspan and Treasury Secretary Robert Rubin. Levitt, who along with Greenspan, Rubin and Born was part of the four-person President's Working Group on Financial Markets, opposed her efforts as well. Today, Levitt says he was wrong. "It may well have been that the proposal was ill thought-out," says Levitt, who served as SEC chairman longer than anyone, from 1993 to 2001. "But we could have taken that opportunity to refine it, to make it forward-looking. I think that the explosive growth of a product that was unlisted and unregulated should have occasioned greater reaction."
Levitt's concerns go beyond assuaging his conscience about the past. Along with other financial markets experts, he is worried that the incoming Obama administration, populated with protégés of Rubin and Greenspan, may continue to resist the necessary regulation needed to restore confidence in Wall Street and prevent another subprime-type disaster in the future.
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Can the president's two top financial regulators repent their past sins?
I think we're safe in calling it, for posterity, President Obama's "Day of Reckoning" speech (it's not FDR's "Rendezvous With Destiny," but it's not bad). In his address to a joint session of Congress this week, Obama said America was paying for the mistakes of the past, when difficult decisions about our economy were put off and "regulations were gutted for the sake of a quick profit." Now, he said, our day of reckoning has arrived.
What the president didn't say was that the people he has placed in charge of the reckoning are sometimes the ones who did the gutting. Or at the very least, they're the ones who obstructed the reckoning for years.
This is particularly true of the two people Obama has named to be the nation's top financial regulators: Mary Schapiro, chairman of the Securities and Exchange Commission, and Gary Gensler, whose hearing to be confirmed as head of the Commodity Futures Trading Commission was held on Wednesday. Schapiro failed to assert control over derivatives trading as the head of the CFTC in the mid-'90s, a time when it was already beset with fraud and manipulation. When a successor, Brooksley Born, came in, she called the unregulated derivatives market "the hippopotamus under the rug." As CFTC chair, Born tried to rein things in but was rebuffed by the Treasury Department, of which Gensler was a part.
Later, when Schapiro was running the Financial Industry Regulatory Authority (FINRA), she also missed Bernie Madoff's Ponzi scheme and now, we learn, R. Allen Stanford's alleged mini-Madoff scam. According to Reuters, associates of Stanford's, as was the case with Madoff's family, even served as advisors to FINRA, the industry's ostensible "self-regulator" (though it was widely seen as a joke in the industry). In both her jobs Schapiro followed a pattern: she tended to aggressively investigate relatively minor violations while failing to see the hippopotamus-size frauds in the room.
Gensler's past efforts to block derivatives regulation are no secret, and Sen. Tom Harkin, chair of the Senate Agriculture Committee, wasted no time in reminding Gensler of one such case on Wednesday. At a hearing on May 15, 1999, Harkin noted, Gensler said he "positively, unambiguously" agreed with then–Treasury Secretary Larry Summers in his testimony to the committee opposing additional regulation of the institutional over-the-counter derivatives market (in other words, the market that traded off exchanges). At the time, Harkin said, Gensler went on to argue that the "vibrancy and importance" of the global over-the-counter derivatives market "put the burden on those who are suggesting changes and further regulation … before we tamper on some of the successes of this marketplace for the economy." Well, said Harkin, "that's quite a resounding, unqualified and categorical statement, no second thoughts or ambiguity."
At the hearing, Gensler expressed some contrition and said he's seen the light.
Or they may just be full-blown coconspirators and confederates.