Judge Rakoff Challenge to the S.E.C.: Can Regulatory Capture be Reversed?
Last Monday, Federal Judge Jed Rakoff issued a potentially precedent-setting challenge to the Securities Exchange Commission (SEC) when he rejected the $285 million settlement between the agency and Citigroup. The bank is charged with negligence related to its misleading sale of toxic mortgage-backed securities, which ultimately cost investors nearly $700 million but earned the bank a handsome profit of almost $160 million. Citigroup is a prime example. It is accused of negligence in the loss of $700 million of investor money, and agreed to pay $285 million, which is less than 8 percent of the bank’s profits in just the third-quarter of 2011 alone.
A New York Times analysis found that over the past 15 years, at least 51 cases have involved recidivism by 19 Wall Street firms. In many of these cases, the SEC could bring contempt of court charges, but it has not done so in at least 10 years. Most major banks are repeat violators.
Taking on very large firms and raising the costs of violating the law are not impossible tasks. It can be done. In fact, in 2008 American and European authorities went after Siemens, a German multinational company, for making large amounts of dubious payments globally. By 2010 Siemens had paid out nearly $3.4 billion in investigations, back taxes and fines to end the probe.
Focusing only on the minimum the SEC can do to settle with Citigroup and to satisfy the specific challenge presented by judge Rakoff misses the much larger picture
There should be much more debate on how to stem the undue influence of big banks, which should be revisited, and a spectrum of more stringent measures, even including the breakup of the biggest banks, ought to be seriously considered. Revolving door policies ought to be revisited and cooling off periods should be extended, especially for persons occupying sensitive positions that are particularly vulnerable to capture.
We need judges who will see to it that tougher transparency, regulatory and enforcement incentives would further raise the costs of violating securities laws because companies would face the added risk of investor lawsuits, and possible criminal prosecutions by the Justice Department against executives.
If Judge Rakoff’s ruling will set a precedent is unclear, and it depends greatly on the White House, Congress, the SEC, other judges, civil society and reformists in the private sector to seize this opportunity and to address the persistent and costly phenomena of capture.