Once the bill passes and is signed into law, then things move into the bureaucratic (not pejorative usage) realm. We know about regulatory capture. (from excellent new blog theParetoCommons)
In my view there are many reasons why we have regulatory capture. Fixing the problem is also very complicated, particularly in the American culture. We simply don't take regulation seriously enough as a society. Indeed, because it seems counter to the "free market" philosophy we all share, becoming a regulator is sometimes portrayed as a sign of failure. "Real men" would be out there actually making the economy work.
Here is a new suggested approach. Follow the money. The incentive money. Incentives are calculated and tracked at all times. They may be paid annually, or in the case of some business lines, quarterly or even monthly. But staff knows where they stand at all times. Incentives are the meter that coincides with business drivers. That is how ingrained they have become in the corporate apparatus.
Regulators must be embedded into the Performance Measurement/ Compensation departments of all major firms as well as into their business lines. They should have access to any information they request at any time. They should have robust field communication amongst themselves. They must be given system access. They should take rabbit trails and discover what is going on, like detectives investigating a crime scene. The detective controls the scene. They should gather evidence.
As incentive results are generated, as close to real-time as possible, regulators should look at the transactions that are generating the largest incentives and should look at shifts in the incentive patterns. When they see data, they should be allowed to go direct to the bankers without any intermediary protocols and ask any questions they want. Then they look at the transactions themselves and make adjustments and deploy resources on the fly.
Where do you find and highly motivated regulators? Form a Swat Team that is given a lot of operational latitude. Recruit them from inside the industry and pay them well.
Finally, the institutions need to know that these embedded regulators will have broad powers including the power to refer to law enforcement for fraudulent activity.
Corporations will fight this tooth and nail. But it is no time for Congress and the President to declare victory and go home. There has not been a victory from the standpoint of regulation. Too Big to Fail is still there. Many Fed Regional Bank heads do not believe the regulation has gone far enough. Therefore, the implementation of the regulation must take up some slack. Put Elizabeth Warren or another like her in charge and form a Swat Team. Increase the regulators budget like we did for Homeland Security after 9/11 and get people in there that are not "captured."
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I mean, think about it.... if the system was so bad, inept, corrupt, then why did it take until 2008 for the shit to hit the fan? Why would George Bushs' articulate description of the problem be "wallstreet has been drunk"?
If Al Geenspan had kept rates (fedfunds) at 5.0% and Moodys and Standard & Poors had actually looked at product they had rated, none of this would have happened.
There are 2, and only 2, things at the heart of finance and investment....
Risk and reward.
Theoretically, with all things being equal, you should get low return for doing something when your risks are low. And high returns, if you do something that is risky. The more you have to lose, the more you should win, if it works out. (This is risk assessment brutally dumbed down for 250 words)
So, if you are the SEC, how do you know what to look for, to keep markets fair, and safe from detonation by the Uber-Banks?
You look for high returns. Why? Because there are only 3 possible reasons for the success...
1- They are clever geniuses, but that won't last long, because everybody catches on real fast..
2- They are taking HUGE risk, if they are getting huge returns. (Note that every bellyflop by the financial system, was preceded by outsized returns for somebody)
3- They have, or are getting, predatory information which they shouldn't have in a fair, neutral market.
Its most granular level, would be at the individual compensation level.
Thanks for the analysis. I've fanned as an aging fixed income investor, who after about 2003 started wondering what in the bloody blue blazes was going on with the returns. I asked for and received some CDO prospectus and it didn't take a whole lot of due diligence to discover how perilous the valuations were for the underlying securities . I went into a defensive crouch (albeit 2 years too early), but I'm glad I did. Someone asked J.P. Morgan how he got so rich. His answer was that he sold too early.
I'd add a fourth point. Speaking for myself, I simply never would've anticipated the vast quantities of derivative transactions these guys were willing to engage in whilst so thinly capitalized. We really need to get this stuff into a managed exchange so that the next time some kind of esoteric trading activity starts to rival the equivalent of 2 or 3 years of global GDP, someone looks up from their coffee cup and decides that the activity probably isn't founded in anything of real value. And then moves to wind it down.