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David Paul

David Paul

Posted: April 18, 2010 12:49 PM

Goldman Sachs Fraud Case Is a Distraction From the Real Issue of Substantial Financial Reform

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Goldman Sachs is robustly protesting their innocence. The SEC accusations--that Goldman is guilt of fraud and duplicity--are "completely unfounded in law and in fact."

But even if Goldman is proven right, that does not make the SEC wrong.

As the old saw goes,

When the law is against you, pound the facts.

When the facts are against you, pound the law.

When both the law and the facts are against you, pound the table.

It is table pounding time.

In essence, the SEC is raising the question as to whether Goldman created synthetic collateralized debt obligations (CDOs) for the purpose of allowing one group of investors to short the subprime market, while not disclosing this activity to other clients holding or purchasing those same bonds. The SEC is asking whether Goldman benefitted from both sides in a manner that violated their fiduciary obligation to their clients.

And the simple answer is, of course they were.

This is not a legal conclusion, but rather a systemic one. Given the size and scale of its operations, Goldman--like the rest of the financial Goliaths that have emerged from the global financial crisis--cannot help but be on both sides of almost any trade, and ultimately be in a position of advising different clients in opposite directions. But most importantly, Goldman is a trading firm, whose activities inevitably lead them to be putting their own considerable capital to bear against their client's own interests.

Trading has become the most profitable activity in banking institutions, and derivatives trading--including synthetic CDOs and credit default swaps--has magnified potential profitability by allowing firms to realize nearly unlimited leverage as they position their bets in the global markets. While in years past, Goldman had a far smaller share of the market and prospered through a client-centric culture, that was then and this is now. Today, in a world of previously unimaginable trading profits and bonus payouts, concerns for clients and firm culture have been rendered quaint.

The blinding allure of trading profits has replaced raising and lending capital for the real economy as the singular focus of banking industry. This was evident last month when RBS--Royal Bank of Scotland, the largest bank in the world before the crisis that is now 84% owned by the British taxpayers--decried any limits on its trading activities. Trading profits, RBS asserted, were the key to rebuilding its balance sheet.

That RBS would publicly embrace the view that it intended to trade its way to prosperity begged the question of whether there aren't any losing sides of any of these trades. Barely a year has passed since the low moments of the financial collapse--a collapse characterized by highly leveraged bets gone wrong--and dementia has truly set in.

As Congress considers major financial system reform, it is increasingly apparent that what emerges will be far from a stringent restructuring of the financial system that is warranted. Wall Street leaders have made no bones over the fact that they intend to protect their own interests in any legislation that emerges, and in particular will fight any efforts to curtail the highly profitable derivatives trading.

That we have reached a table-pounding moment should have been evident to all on February 7th when, in a front page story in the New York Times, Wall Street publicly expressed its "buyer's remorse" with the Democrats, and now looked to shift their political contributions to Republicans, who eagerly sought to offer Wall Street contributors a more appreciative home for their largesse.

Back in the day, political contributions in exchange for governmental action was viewed as the essence of corruption, and contributors and recipients went to great lengths to deny linkages between the money and legislative outcomes. But apparently there is no longer any shame in--or prohibition against--the buying and selling of political influence.

Today, regulatory reform is being debated publicly between the two largest recipients of banker largesse: Senators Christopher Dodd and Mitch McConnell. Accordingly, instead of focusing on issues of the size and capitalization of banks, the role of deposit insurance, and limitations on derivatives that provide no social utility, debate has focused on consumer protection and the locus of dissolution authority for failed institutions. These may be important questions, but they are predicated on doing nothing to curtail the massive aggregation of financial and political power within the banking sector. Wall Street, it would appear, has spent its money well.

While the debate among Wall Street and Congress continues, others suggest that the issues are not so complicated. One week after the story about Wall Street's buyer's remorse, a clique of octogenarians gathered around former Fed Chairman Paul Volker to support his call for more stringent restrictions on the trading activities of commercial banks.

Standing with Volker were former Citigroup chairman John Reed, Bush 41 Treasury Secretary and Dillon Read Chairman Nicholas Brady, Wall Street legend and former SEC Chairman Bill Donaldson, Vanguard founder John Bogle, among others. For these men, whose days in the trading pits and positions of power were behind them, the answers were simple. As Nick Brady intoned: "If you are a commercial bank and you wish the government to guarantee your deposits and bail you out if necessary, then you can't be involved in speculative activity."

Arguing that the lure of excessive profits and bonuses had undermined the core values of the banking system, Brady pushed back on those who argued that trading and derivatives were important to the banking system and dismissed self-serving the arguments for preserving the status quo. "You draw a line that is too tight, that doesn't bother me a bit."

Volker and his old friends were sending a simple message: Like it or not, we have not yet come close to a real discussion of effective, systemic financial reform. Self-interest--of bankers and politicians alike--stands firmly in the way.

The SEC charges against Goldman may or may not stick, but it should be clear to all that, as Jack Bogle observed, the system has gone badly awry and needs massive reform. That Goldman Sachs has become the poster child for all that ails us is its own fault. Like its banker brethren, Goldman has used the global financial crisis to its own advantage--gathering tens of billions of public dollars as AIG was unwound and gaining access to the Fed window--and has made effective use of political money and influence to perpetuate a system that assures Wall Street freedom to pursue massive profits, while the public continues to bear the risk.

Shame on Goldman Sachs if they have committed fraud. But shame on us if we do nothing to change the rules of the game.