This article originally appeared in Bloomberg View on September 19th, 2011.
In a dusty, Wichita, Kansas, re-creation of a frontier town last week, while state securities regulators slapped at mosquitoes and swapped stories about cagey financial crooks over cocktails, a spurs-and-boots-clad sheriff drew his weapon and staged a faux gunfight in the town square.
It was a perfect metaphor for the way things have been going in the real-life work of securities cops.
State regulators, the steadfast advocates of mom-and-pop investors, helped sentence crooks to 1,100 years of jail time and returned more than $12 billion to victims last year. Especially in these times when commerce at any price seems to trump protecting your Aunt Matilda, state investment watchdogs are often a lonely and unwelcome force pushing for tough rules. The nerdy investor advocates even have a geeky name: the North American Securities Administrators Association, or Nasaa.
Kansas was the choice for the group’s annual meeting this year because 100 years ago a Wichita politician pushed through legislation that made the state the first to enact laws to regulate securities — a shield against “fakers with worthless stock to sell,” in the words of Joseph Dolley, Kansas’s banking commissioner at the time.
Were he alive, Dolley probably would be taking to his Twitter account to malign the marquee-name U.S. politicians who work for Wall Street, not Main Street, and to blast federal securities regulators who have let the public down. His successors have their hands full with today’s regulatory battles.
Confused Customers
Few issues have been more important to the Nasaa folks in recent months than the push to ensure that stockbrokers work in the best interest of customers — a so-called fiduciary standard — and improving the regulation of investment advisers. Last week, they faced off against representatives from Wall Street and the insurance industry at a hearing of a subcommittee of the U.S. House Financial Services Committee. Stockbrokers since the 1990s have been working the word “adviser” into their job descriptions, leaving confused customers to believe that stockbrokers and registered advisers were pretty much the same even though only advisers have a fiduciary duty. Nasaa’s point is that all people who give advice to investors should be expected to act in their clients’ interest. Brokers — no matter what they call themselves — aren’t usually obliged to.
Reasonable People
Although a reasonable person — in short supply, needless to say, at a government hearing — might conclude that a broker should do what’s best for the client who’s paying him, the hearing was replete with reasons that could be a really bad idea. Particularly if you’re the broker.
A second question at the hearing was whether federal securities regulators or so-called self-regulatory organizations paid by financial firms should inspect the investment advisers. Sadly, the best option — to use a federal regulator accountable to the public — comes up short when that agency is the Securities and Exchange Commission. This month, the agency’s inspector general plans to release four investigations that stand a good chance of making the SEC look even worse than it already does.
Years of embarrassing failures at the SEC are leading some policy makers to conclude that the best way to police advisers is by outsourcing to the Financial Industry Regulatory Authority, which is technically overseen by the SEC but funded by financial firms. If this isn’t a formula for the lame leading the conflicted I don’t know what is. Making it even better for Wall Street is that, as a private corporation, Finra over the years has said that it can’t supply investigative information about its members. How cool is that if you’re a Finra member getting into some mischief?
Good Fight
It’s reassuring, I guess, that those state regulators at least continue to fight the good fight. But I can’t help but get the feeling they aren’t so welcome in the debate about what’s best for investors. Those Washington hearings last week coincided with the third and last day of the states’ meeting in Wichita, and if I didn’t know better, I’d wonder if the politicians didn’t want them there. The finance committee members “were aware of the timing of the Nasaa conference and they chose not to accommodate them,” said Barbara Roper, director of investor protection at the Consumer Federation of America, a frequent ally in Nasaa’s causes.
Here’s My Card
After a somber opening ceremony on Sept. 11 and a lot of angst over battles with financial firms looking to defang the Dodd-Frank Act and its efforts to police the financial industry, Nasaa’s 100th year didn’t exactly ring in with champagne corks popping. But the scrappy investor advocates haven’t lost their spirit.
Keith Woodwell, a division director with the Utah securities regulators, told colleagues the story of finishing up a meeting in his office with a rogue broker one day only to have the fellow hand over his business card “with the longest string of credentials I ever saw.” Woodwell looked at the alphabet soup of dubious pedigrees and spotted an accreditation he hadn’t come across before. “I asked him what ‘C.H.S.G’ stood for,” he recalled. The broker blushed, then came clean: It was an abbreviation for “Certified High School Graduate.”
The group roared in the standing-room-only session. It was no doubt a packed house because it covered matters dearest to the state cops’ hearts: fraud, sales practice abuses and the vast inventory of deceptions that take money out of the pockets of citizens.