Less regulation in the case of SEC?

U.S. Securities & Exchange Commission member Paul Atkins recently co-wrote an article claiming that enforcement issues are so egregious that the SEC needs to set up an independent review panel. The last time the SEC had one was 36 years ago.

These are excerps from the article:

Financial markets and their regulatory landscape have changed markedly in the past three and a half decades since an independent panel reviewed the SEC's enforcement program. It is time to convene a similar panel to bring the program up to date. The Division of Enforcement of the U.S. Securities Exchange Commission has a proud history and many dedicated attorneys, accountants and other staff. Thirty-six years after its creation, the Enforcement Division is larger, stronger and more visible than anyone at the time could have imagined.

In the 36 years since the Wells Committee set out its recommendations, financial markets have changed tremendously, and corporate scandals have rocked both Wall Street and Main Street. In response, Congress gave the SEC significantly more enforcement authority, much of it penal in nature. The SEC now can impose multimillion-dollar penalties against corporations and individuals, bar individuals from serving as officers and directors of corporations, and prevent professionals such as accountants and securities lawyers from practicing before the SEC. Some believe that in exercising these new punitive powers, the SEC has shifted its focus without adjusting its due process protections along the way. It is time for the commission to convene a new advisory committee, in a spirit similar to that of the Wells Committee, to conduct an independent review of the SEC's enforcement program and to recommend any needed changes to modernize enforcement practices. As the Wells Committee did, this new committee also should examine whether the SEC is taking appropriate steps to protect the rights of defendants and to provide appropriate due process. Although much has changed since the original Wells Committee did its work, the same philosophical and practical concerns exist today. Therefore, the new advisory committee could adopt essentially the same mandate as that of the Wells Committee in 1972.

Among the many issues that would fall under this broad mandate would be the implementation of mechanisms to provide more efficacy, predictability and transparency to the enforcement program. As an agency tasked with enforcing laws and regulations mandating transparency, the SEC itself must provide transparency to the public in its enforcement practices. Predictability and transparency provide for a fair process that respects the rights of all parties involved and ensures adherence to the rule of law.

The SEC is governed by a five-member commission, each of whom is appointed by the president with Senate confirmation. The commission delegates to the career staff investigative authority, but the commission retains the decision by majority vote to issue subpoenas and to sue defendants or settle with them. The most important Wells Committee recommendation was that the enforcement staff should give notice to a prospective defendant of the potential charges to be asserted against him before the enforcement division seeks authority from the commission to sue. This policy change was a key protection of due process, and gave a defendant the ability to defend himself on the basis of facts and the law. Thus, the formal defense submission in response to the notice came to be known as a "Wells Submission." Often, the facts uncovered in investigations indicate that no action should be taken against a potential defendant, or a Wells Submission may be persuasive in arguing against an action. Sometimes, however, institutional and other factors may make it difficult to drop a matter altogether. The ability of the Enforcement Division to recommend that no action be taken in a particular matter based on the facts and law should be encouraged and institutionalized. This will require a re-evaluation of the incentives for bringing actions and obtaining penalties, such as through promotions, awards and public recognition of SEC staff. An evaluation system should focus on rewarding high-quality efforts and professionalism regardless of the outcome of particular actions. In some instances, exercising discretion may not be appropriate. There should not be institutional encouragement for using discretion to formulate theories of liability that overstep the boundaries of existing law.
Standards are set through the legislative process in Congress and through the SEC's rule-making process; it is not the function of the Enforcement Division. Rule making through enforcement violates the fundamental principles of due process that Congress established in the Administrative Procedure Act, which requires regulatory agencies to give notice and seek (and respond to) comment from the public before adopting or changing rules. In the recent past, federal courts have nullified various SEC rule-making attempts because the agency did not follow proper procedure or overstepped its authority in adopting rules.

The U.S. General Accountability Office in 2007 strongly criticized the Enforcement Division for not promptly closing investigations at their conclusion. When the commission or its staff determines that an investigation should be closed or action is not warranted, the agency should promptly send a closing letter, not only to those who have made a Wells Submission but also to any significant nonparty who has been involved in the investigation. The advisory committee also should consider bolstering the Wells Submission process by permitting a proposed defendant to appear before the commission to oppose the initiation of an enforcement proceeding. Although it would be both unnecessary and unmanageable to allow such an "oral Wells Submission" in every matter, it may be beneficial to both the commission and proposed defendants for the commission to have a discretionary avenue to hear from proposed defendants prior to taking action, particularly in complex cases or those in which character assessment is important. A review of the enforcement process would not be complete without a review of the costs to parties responding to an investigation. The SEC must ensure that its investigations and enforcement actions do not impose unnecessary costs. Overly broad subpoenas or document or interview requests add to a responding entity's costs--and not every responding entity becomes a defendant. Compliance with notices to preserve--and subsequent requests to produce--electronic data, including e-mails, voice mails and server backup tapes, is undeniably burdensome and can be very expensive.

It is critical for the SEC to have certain electronic data, but preservation notices and requests for their production are often generic and extend well beyond the boundaries of an existing investigation. The new advisory committee should recommend ways to minimize costs while still ensuring that the SEC can get the information it needs for its investigations. With respect to enforcement policies, the advisory committee should examine the usage, effects, amount and appropriateness of corporate penalties in financial fraud cases, to determine if they are consistent with the SEC's mission to protect investors; maintain fair, orderly and efficient capital markets; and facilitate capital formation.

When evaluating the use of penalties against issuers of securities in financial fraud cases, the advisory committee should, for example, ask, Do penalties protect investors? Do they harm or benefit shareholders? Is the circularity of "Fair Fund" penalty distributions (the company pays--meaning, in effect, the shareholders pay--a penalty, which is put into a fund and then distributed to the company's shareholders) consistent with ensuring fair, orderly and efficient capital markets? Is capital formation impeded by the threat of large, unpredictable issuer penalties? Do we create a moral hazard if we permit officers of companies to agree to a large corporate penalty to avoid or soften actions against culpable individuals? Are individuals deterred from wrongdoing if they expect that shareholders will pay the penalties for the misconduct? And, most important, does the prospect of large issuer penalties and the inevitable press coverage cause the SEC to misallocate resources to use the government's power to pursue weaker cases to the detriment of other types of enforcement actions?.

But thigs may are not giving the reason to Mr. Atkins. The SEC is getting into the act as well with its “emergency order” restricting short trading — not in general, but specifically in the shares in Fannie Mae and Freddie Mac, both of whom are protectorates of the federal government anyway. The SEC’s supposed target is “unlawful manipulation,” which is illegal.

All this in a not very serious maner. Normally in a functioning democracy, lawmakers and federal agencies craft rules through a deliberative process, and those rules apply prospectively across the board. When the government acts through orders rather than legislation or established administrative procedurees to identify emergencies and bogey men, and then seeks to outlaw their practices with hastily drafted decrees — well, that’s when the market makers, who depend on freedom and the established rule of law, should start to worry.

Paul S. Atkins is a commissioner at the U.S. Securities and Exchange Commission. Bradley J. Bondi is legal counsel and policy adviser to Commissioner Atkins. Their article is extracted from “Evaluating the Mission: A Critical Review Of The History And Evolution Of The SEC Enforcement Program,” first published in the Fordham Journal of Corporate and Financial Law.