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Lawmakers Focus on How S.E.C. Does Its Job

By Peter J. Henning, New York Times

Congress has taken intensified interest in how the Securities and Exchange Commission should enforce the law, introducing several legislative proposals. Although quick passage of the bills is unlikely, they signal how much interest there is, at least among Democrats, about the agency’s work.

The legislation deals with insider trading, waivers from automatic bars imposed on companies that violate securities laws and the revolving door between the S.E.C. and private industry.

Enhancing the insider trading laws has become a hot topic after an appeals court reversed the convictions of two hedge fund managers in United States v. Newman, making it more difficult for the government to prove a violation in the conveyance of confidential information. In response, Representative Jim Himes, Democrat of Connecticut, last week submitted the “Insider Trading Prohibition Act,” the third bill introduced in Congress in the last month that would significantly expand the scope of the prohibition.

This proposal goes about as far as possible to make it illegal to trade while in possession of “material, nonpublic information” by requiring the government to show only that it was obtained “wrongfully.” What constitutes wrongful trading is defined broadly, including information obtained by theft or espionage and that which was received as a result of an “unauthorized and deceptive taking of such information, or a breach of any fiduciary duty or any other personal or other relationship of trust and confidence.” There would be no requirement to prove the source of the information gained a benefit from the disclosure, something now required if the information was tipped for the purpose of trading.

Unlike the other two bills introduced on this topic, Mr. Himes’s legislation has a Republican co-sponsor, Representative Steve Womack of Arkansas, which gives it the patina of bipartisan support. Whether that will improve its prospects remains to be seen.

A separate topic that has drawn legislative scrutiny is the granting of waivers from the “bad actor” rules that automatically bar a company from taking advantage of streamlined procedures for issuing securities or selling shares privately to sophisticated investors. These bars arise when there is an enforcement action or criminal charges against a company and can significantly affect a company’s future operations.

The issue has divided the S.E.C.’s five commissioners.

Kara M. Stein, a Democratic commissioner, dissented last year from granting a waiver to the Royal Bank of Scotland after it pleaded guilty to manipulating the London interbank offered rate, or Libor. She said that the decision “may have enshrined a new policy — that some firms are just too big to bar.”

Daniel M. Gallagher, a Republican commissioner, supported the granting of waivers in a speech in February, saying that “automatic disqualifications are not, and were never intended to be, either remedial or punitive in nature, and therefore historically have been handled outside of the sanctioning process.” In a speech earlier this month, Mary Jo White, the S.E.C. chairwoman, said the bar should not be viewed as a further sanction when a company violates the law but as a means to protect investors if there is a threat of future misconduct.

So what is the goal of an automatic bar: an additional penalty or a means to prevent future violations if there is a clear risk of repeated misconduct? A legislative proposal floated by Representative Maxine Waters of California, the senior Democrat on the House Financial Services Committee, comes down squarely for treating it as a sanction.

The draft legislation states that waivers “should be granted sparingly” and imposes a public meeting requirement before granting a waiver. The S.E.C. would not be permitted to consider the cost to a company from denying a waiver, taking away the argument that the sanction is disproportionate to the violation or will result in unforeseen damage.

Ms. Waters has not yet introduced her proposal in the House, and it is unlikely to garner support among Republicans. It would clarify the purpose these automatic exclusions serve and would allow Congress to consider whether this sanction is better applied in a discretionary manner based on clearly enumerated factors provided to the S.E.C. The “bad actor” rules crop up in several different areas, like government contracts and continued participation in the Medicare and Medicaid programs, so a clear expression of congressional intent for how rigorously they should be applied would be worthwhile.

The final area of legislative interest is the so-called revolving door between the S.E.C. and companies that are the subject of enforcement actions. Representative Stephen Lynch, Democrat of Massachusetts, introduced a bill to slow the practice. His bill would prevent a staff member who participated in an enforcement action filed in the previous 18 months from taking a job with a company named in that proceeding within one year of leaving S.E.C.

It is not clear whether this proposal would curb the movement between government employment and the private sector. Most of those who work on S.E.C. enforcement cases are lawyers, and they usually move to private law firms rather than going to corporations, so the restriction would not affect them. Government ethics rules already prevent former employees from participating in a matter on which they worked while with the government, so the additional bar may do little to stanch the flow.

Bills introduced by the minority in Congress, as the Democrats are these days, have little prospect of enactment. But they can plant the seeds for future legislative efforts, especially if they attract support from the public that can prod the majority to take up the issue.

Read full story at NYTimes.com

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