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That Peculiar Odor...
A Jobs Bill for Wall Street
by ROBERT HUNZIKER

It’s about time Congress focuses attention on jobs for Wall Street, and it appears they are going overboard to help in the new JOBS Act that recently passed the House of Representatives by a vote of 380-to-41. After all, last year Wall Street cash bonuses fell 14% to $19.7 billion or $121,150 per employee, and the industry suffered thousands of job cuts.

Before celebrating this new bill too much, and in fairness to balanced opinion, this from the Council of Institutional Investors about the JOBS Act: “We are disappointed that the Senate failed to include investor protections in a bill that would make it easier for companies to raise money… While it’s not at all clear that the legislation will create jobs, it will create greater risks for investors… The bill dismantles many investor protections Congress put in place a decade ago after accounting scandals at Enron, WorldCom….”

The brand spanking new JOBS Act, an acronym for Jumpstart Our Business Startups Act sped through Congress at break-neck speed with huge bipartisan support in large measure because the IPO (Initial Public Offerings) Task Force convinced members of Congress that 90% of job creation comes after companies go public.

According to the messiah of capitalism, Forbes Magazine, “With the JOBS Act, Congress Throws Open the Door for Private Stock Offerings” (March 28, 2012) “… the JOBS Act turns its back on several decades of established securities law practice, which has led to significant restraints on how equity can be raised in private markets. Whether the boost to economic growth will outweigh the risk of defrauded investors remains to be seen.”

The JOBS Act makes sweeping changes to the way small companies, including hedge funds, raise money, according to HFMWeek magazine, which covers all aspects of operating a successful hedge fund.

Imagine the facial expressions of Jeffrey Skilling, former CEO of Enron, who is serving a 24-year sentence in federal prison for a $60 billion fraud, and Bernard Ebbers, former CEO WorldCom, who checked into federal prison in 2006, serving a 25-year sentence for an $11 billion accounting fraud. They’re probably smiling ear-to-ear for the first time since behind bars, knowing Congress has opened the doors for them, assuming they get out early on good behavior. The capital markets need some rambunctious CEOs for job creation, and now it will be much easier to pocket funds from less-sophisticated investors. Wow! This will be a bonanza for guys who have fuzzy reputations.

Well, on the other hand, maybe Jeffrey and Bernie should consider stepping into the hedge fund business because the new JOBS Act opens the spigots up for creative upstart hedgies and the established hedgies raising new capital. Under existing law, private hedge funds are only allowed to market to a small defined group of sophisticated investors with whom they have a pre-existing relationship. However, under the new bill, hedge funds will be able to sponsor sporting events and/or begin advertising their funds in print, promoting their wherewithal to the general public at large. Thus, overturning a ban of marketing to the general public that dates back to the Securities Act of 1933.

The JOBS Act definitely makes it easier for hedge funds to raise capital from the more naïve general public, but one has to wonder if the new legislation will actually help create a lot of jobs, other than openings for Jeffrey and Bernie, and how about Madoff too, if, and when, they change colors from bright orange to subdued dark blue.

In all fairness hedge funds do indirectly create jobs by investing in IPOs and stocks and derivatives and bonds and whatever they fancy will make money. But, are they job creators, really job creators? Um-m-m.

When’s the last time you heard of job openings with a hedge fund? Assuming you do not have a cousin or nephew who recently graduated from an Ivy League school.

According to the North American Securities Administrators Association: State regulators claim the JOBS Act remains a “fundamentally flawed product of a rush to legislate,” but not according to majority leader, Eric Cantor (R.Va.), who dismisses the worries as “phantom concerns.”

And, more authoritatively yet, according to Rep Spencer Bachus (R.Ala.), who famously, or rather infamously, purchased ‘puts’ on the market expecting it to crash, after secretly meeting with Treasury Secretary Paulson in 2008, in support of the bill, “You take the risk out, you take out the reward.” If you have any doubts about the sanctity of this new bill, this is extremely comforting, coming from a professional investor who is also a member of Congress.

The JOBS Act is made up of six bills that will make it easier for companies to go public and raise money, (1) allowing small companies to increase the number of shareholders to 1,000 without filing with the SEC, (2) loosens SEC regulations on small businesses to allow funding from smaller investors, (3) a provision making it easier for small businesses to go public, (4) allows companies to solicit investors via media previously banned by the SEC, (5) reductions in costs for smaller companies to go public, (6) a provision increasing the number of shareholders investing in community banks.

According to Bloomberg news, March 12, 2012, “The Jobs Act Won’t Create That Many Jobs.” Their opinion is the legislation should be named, “JOBS in Theory,” referencing overblown claims about new jobs in the JOBS Act.

The theory behind this bill is that small companies provide the most robust job growth in America, which is a well-documented fact. And, this bill unleashes their animal spirits to create more jobs whilst also opening up brand new vistas for hedge funds. Um-m-m.

On the other hand, and frankly, it is doubtful that good, marketable ideas/products from small companies failed to make it to market under the old rules, e.g., Google and Ebay as two success stories. Google set up a workspace in Susan Wojcicki’s garage at 232 Santa Margarita, Menlo Park, CA in September 1998, proof positive that if a small company has a product the public desires, the company succeeds. This is the history of American capitalism back to Thomas Edison’s days. All of which makes one wonder if there is a hidden agenda behind the rush-to-accomplish-the-legislation for the JOBS Act.

According to the Kauffman Index of Entrepreneurial Activity report, March 12, 2012, a leading indicator of new business creation in the United States published annually, “Entrepreneurship is alive and well in the wake of the Great Recession,”. The index shows 2011 among the highest levels of entrepreneurship over the past 16 years. It appears American entrepreneurship is/was already alive and kicking more so than understood… by Congress. One has to assume the JOBS Act will simply enhance an already vivacious market place. Thus, begging the question(s): Was the new legislation necessary, and why the big rush to finalize it when normally they can’t seem to agree on anything in Congress?

The JOBS Act may be a misnomer. There are detractors who believe it is called the JOBS Act only as a ploy to force the hands of Democrats and the president to sign a bill that was crafted on behalf of the highest ranks of capitalism, not small businesses. Maybe the Wall Street Act would fit better for the new bill, but in an election year, which legislators would sign? Granted this viewpoint may be too cynical because it should be a noble act that helps new businesses hire people.

However, on second thought, if one applies the old rule of ‘follow the money’, the JOBS Act has a peculiar odor… a back-room stale cigar odor.

Robert Hunziker earned an MA in economic history at DePaul University. He lives in Los Angeles.