As a Watchdog Starves, Wall Street Is Tossed a Bone

Daniel Rosenbaum for The New York Times

Robert Khuzami, the Securities and Exchange Commission’s head of enforcement, said his division was underfunded even before Dodd-Frank expanded its responsibilities.

By JAMES B. STEWART

Published: July 15, 2011

The economy is still suffering from the worst financial crisis since the Depression, and widespread anger persists that financial institutions that caused it received bailouts of billions of taxpayer dollars and haven’t been held accountable for any wrongdoing. Yet the House Appropriations Committee has responded by starving the agency responsible for bringing financial wrongdoers to justice — while putting over $200 million that could otherwise have been spent on investigations and enforcement actions back into the pockets of Wall Street.

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Times Topic: Securities and Exchange Commission

A few weeks ago, the Republican-controlled appropriations committee cut the Securities and Exchange Commission’s fiscal 2012 budget request by $222.5 million, to $1.19 billion (the same as this year’s), even though the S.E.C.’s responsibilities were vastly expanded under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Charged with protecting investors and policing markets, the S.E.C. is the nation’s front-line defense against financial fraud. The committee’s accompanying report referred to the agency’s “troubled past” and “lack of ability to manage funds,” and said the committee “remains concerned with the S.E.C.’s track record in dealing withPonzi schemes.” The report stressed, “With the federal debt exceeding $14 trillion, the committee is committed to reducing the cost and size of government.”

But cutting the S.E.C.’s budget will have no effect on the budget deficit, won’t save taxpayers a dime and could cost the Treasury millions in lost fees and penalties. That’s because the S.E.C. isn’t financed by tax revenue, but rather by fees levied on those it regulates, which include all the big securities firms.

A little-noticed provision in Dodd-Frank mandates that those fees can’t exceed the S.E.C.’s budget. So cutting its requested budget by $222.5 million saves Wall Street the same amount, and means regulated firms will pay $136 million less in fiscal 2012 than they did the previous year, the S.E.C. projects.

Moreover, enforcement actions generate billions of dollars in revenue in the form of fines, disgorgements and other penalties. Last year the S.E.C. turned over $2.2 billion to victims of financial wrongdoing and paid hundreds of millions more to the Treasury, helping to reduce the deficit.

But the S.E.C. has become a favorite whipping boy of those hostile to market reforms. Admittedly the agency has given them plenty of fodder: revelations that a few staff members were looking at pornography on their office computers; a questionable $557 million lease for new office space, subsequently unwound; and the agency’s notorious failure to catch Bernard Madoff. Nonetheless, in the wake of the recent Ponzi schemes, evidence of growing insider-trading rings involving the Galleon Group and others, potential market manipulation in the still-mystifying flash crash, not to mention myriad unanswered questions about wrongdoing during the financial crisis, the need for vigorous securities law enforcement seems both self-evident and compelling.

A bribery scandal at Tyson Foods — a scheme that Tyson itself admitted — resulted in charges against the company earlier this year. But no individuals were charged. While the S.E.C. wouldn’t disclose its reasons, the case involved foreign witnesses and was therefore expensive to investigate and prosecute. The decision not to pursue charges may have involved many factors, but one disturbing possibility was that the agency simply couldn’t afford to, given its limited resources.

Robert Khuzami, the S.E.C.’s head of enforcement, told me his division was underfunded even before Dodd-Frank expanded its responsibilities and that the proposed appropriation would leave his division in dire straits. The S.E.C. oversees more than 35,000 publicly traded companies and regulated institutions, not counting the hedge fund advisers that would be added under the new legislation. While he wouldn’t comment on Tyson, he noted that with fixed costs like salaries accounting for nearly 70 percent of the agency’s budget, “you have to squeeze the savings out of what’s left, like travel, and especially foreign travel, at a time we see more globalization, more insider trading through offshore accounts. It’s highly cost-intensive.”

An S.E.C. memo on the committee’s proposed budget warns: “We may be forced to decline to prosecute certain persons who violate the law; settle cases on terms we might otherwise not prefer; name fewer defendants in a given action; restrict the types of investigative techniques employed; or conclude investigations earlier than we otherwise would.”

It’s not just that cases aren’t being adequately investigated and filed. Under Mr. Khuzami and the S.E.C.’s chairwoman, Mary L. Schapiro, the enforcement division has tried to be more proactive, detecting complex frauds before they cost investors billions. Mr. Khuzami stressed that analyzing trading patterns involves a staggering amount of data, especially the high-frequency trading that crippled markets during last year’s flash crash, and requires investment in state-of-the-art information technology the S.E.C. lacks. Sorting through the wreckage of the mortgage crisis, with its complex derivatives and millions of mortgages bundled into esoteric trading vehicles, is highly labor-intensive.

By way of comparison, in 2009 Citigroup and JPMorgan Chase, two institutions the S.E.C. regulates, spent $4.6 billion each — four times the S.E.C.’s entire annual budget — on information technology alone. Under the House’s proposed budget, the S.E.C.’s resources for technology would be cut by $10 million and a $50 million reserve fund earmarked for technology would be eliminated.

If anything, the agency’s failure to detect the Madoff scheme despite four ineffectual investigations would argue in favor of more, not less, enforcement spending. One investigation foundered when the Madoff team was abruptly shifted to mutual fundmarket timing, since the S.E.C. lacked the manpower to do both. An important tip got lost in the system because of inadequate tracking mechanisms. Another Madoff investigation didn’t get logged into the computer system, so one office didn’t know what the other was doing. And the most glaring problem identified by the S.E.C.’s inspector general was that investigators lacked the expertise to ask the right questions.

Mr. Khuzami said the agency had addressed all the Madoff issues that didn’t involve additional funding. But “at some point you have to develop the expertise. We’ve done some hiring, but that is threatened now.” One consequence of the proposed appropriation is “to essentially freeze hiring for 2012,” according to the S.E.C. memo.

It’s hard to believe that enforcing the securities laws — most of which long predate the recent Dodd-Frank reforms — would be a partisan issue. Yet it has sparked a fierce ideological clash, with Republicans lining up to criticize the agency and withhold funds. “Republicans are falsely invoking the deficit to effectively repeal Dodd-Frank,” Representative Barney Frank, Democrat of Massachusetts, said. “These people are ideologues.” My requests for comment to two vocal critics of the S.E.C. in Congress —Representatives Spencer Bachus, the appropriations committee chairman from Alabama, and Scott Garrett of New Jersey, both Republicans — went unanswered.

Given the magnitude of the S.E.C.’s task, Congress could make Wall Street firms pay more and not less to police the mess they helped create. A government that wants to hold wrongdoers’ feet to the fire and prevent future abuses could finance an S.E.C. enforcement surge analogous to the military’s strategy in Iraq and Afghanistan. Congress could fully finance the S.E.C.’s requested $1.4 billion — and add another $100 million for technology spending. The $1.5 billion would be paid entirely through fees. Financing the S.E.C. adds nothing to the federal deficit and, on the contrary, will help reduce it. It is an investment that would most likely generate increased fines and penalties that could be returned to defrauded investors and taxpayers.

“People say we aren’t charging enough individuals,” Mr. Khuzami said. “But we have a strong enforcement record. We aren’t acting recklessly, or operating in the gray areas, but rather bringing cases involving real frauds and misconduct and returning funds to victims.  We need funding to continue those efforts, efforts that even Milton Friedman” — the noted free market economist — “conceded were an appropriate role for government.”