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From Enron to the Current Meltdown

The question that keeps coming to mind amidst the current financial meltdown is this: why is anyone surprised?

I take no pleasure in asking that question. Along with lots of other people, I’ve watched over the past few weeks as my modest stock holdings shrink into nearly meaningless positions.

But the question remains: given the myriad warnings that came via Enron – and the years-long neglect of any meaningful efforts to have serious policing of Wall Street – why are we surprised to find out that the financial engineers have robbed us blind? The warnings from the Enron meltdown could scarcely have been more clear. Indeed, two key lessons were obvious: financial regulators needed lots more funding, personnel and support; and derivatives markets that operate without proper regulatory oversight and reporting pave the way for financial engineers to privatize profits and socialize costs.

First, the lack of regulators. A key problem with today’s financial markets, as it was when Ken Lay and Jeff Skilling were piloting Enron into the dirt, is simple: we have too few cops patrolling Wall Street. That lack of oversight can most easily be understood by looking at the budget of America’s single most important financial regulator, the Securities and Exchange Commission.

In 2001, the SEC’s budget was $437.9 million. In March 2002, the General Accounting Office issued a report which said that the shortage of money and manpower at the SEC had forced the agency to “be selective in its enforcement activities and have lengthened the time required to complete certain enforcement investigations.” So what has happened since then? Precious little. Yes, the agency has a substantially larger budget today than it did during the Enron era. For 2008, its spending authority is $906 million. And for 2009, the agency’s budget is projected to increase slightly, to $913 million.

But here’s the number that defies explanation: this year, the number of enforcement personnel, the people who go after the financial engineers, is expected to decline. You read that right. Despite the trillion dollar meltdown now underway, the number of SEC enforcement personnel will decline from 1,209 in fiscal year 2008 to to 1,177 in 2009. In all, the SEC expects to have 3,771 employees for 2009.

How does that compare to other federal agencies? Well, for comparison, the Smithsonian Institution budget for 2009 includes funding for 4,324 employees. That’s not a slap at the Smithsonian. It houses a myriad of the nation’s most treasured objects. But the SEC actually guards the nation’s treasure. And yet, Congress treats it like a bastard stepchild. Congress currently doles out more than five times as much money for corn subsidies ($4.9 billion in 2006, the most recent year for which data is available) as it does for the SEC.

It’s not just about funding. It’s also about rigorous accountability for the regulators themselves. Over the past few weeks, it’s become obvious that the SEC was largely co-opted by the companies it was supposed to be regulating. On September 25, the agency’s Inspector General, David Kotz, issued a report which that it is “undisputable” that the SEC “failed to carry out its mission in its oversight of Bear Stearns” – the investment bank the collapsed earlier this year and was taken over by JP Morgan. The report said that the agency missed “numerous potential red flags” prior to the company’s collapse and failed to require the investment bank to rein in its risk taking. (The full text of the report is available at: http://www.sec.gov/about/oig/audit/2008/446-a.pdf.)

But what’s more telling, according to the report, is the lax approach the SEC had in its handling of what was known as the Consolidated Supervised Entity program, a system set up to oversee the biggest Wall Street firms. There were six holding companies in the program: Bear Stearns, Goldman Sachs, Morgan Stanley, Merrill Lynch, Lehman Brothers, Citigroup and JP Morgan. The report found that the SEC approved the inclusion of Bear Stearns in the program “prior to the completion of the inspection process.” Thus, the SEC agreed to regulate Bear Stearns before it even knew if the company was in compliance with the standards it was supposed to enforce.

Perhaps even more unsettling is a new report from Kotz, reported on this week by the New York Times and ABC News, which concludes that the top enforcement officials at the SEC quashed an investigation into possible insider trading at Pequot Capital Management, a big hedge fund. Kotz’s report sides with Gary J. Aguirre, a former SEC employee, who was fired in September 2005 after he tried to get testimony from John J. Mack, the current CEO of Morgan Stanley. Aguirre wanted to talk to Mack about the Pequot investigation. (In 2007, Mack’s compensation totaled $41.7 million even though Morgan Stanley’s earning fell by 57 percent.) Kotz’s report makes it clear that Aguirre was wrongly dismissed for being too vigilant in his investigation of Pequot and it says that the SEC gave “preferential treatment” to Mack during the investigation. It further recommends that the agency’s chief of enforcement, Linda Thomson, as well as two other top regulators at the agency, face “disciplinary and/or performance-based action” for their role in the tawdry affair.

This brings us to derivatives. Before it failed, Enron operated a huge – and almost completely unregulated — derivatives exchange business. According to the Bank for International Settlements, the global derivatives market is now worth some $676.5 trillion. That’s $676,500,000,000,000. That’s a five-fold increase over the value of derivatives that were traded in 2003. Further, that $676.5 trillion is 51 times America’s current GDP.

In 2002, the world’s smartest investor (and my pick for president in 2008)  Omaha billionaire Warren Buffett, issued his annual letter to the shareholders of Berkshire Hathaway. In it, he called derivatives “financial weapons of mass destruction, carrying dangers that, while now latent, are potentially lethal.”

The most toxic element of the current market meltdown are credit derivatives, a financial instrument that was almost non-existent prior to 2000. And the growth of the credit derivatives business is due largely to one of John McCain’s pals, former Texas senator, Phil Gramm. In 2000, Gramm, who was then the chairman of the Senate Banking Committee, sponsored the Commodity Futures Modernization Act, a bill that was passed unanimously by the Senate on December 13, 2001. President Bill Clinton signed it into law eight days later. After it passed, Gramm hailed the measure, saying it “protects financial institutions from over-regulation.” He went on, saying it also “guarantees that the United States will maintain its global dominance of financial markets.”

Global dominance may be a worthy goal, but Gramm’s bill also contained a provision which Congressional aides referred to as the “Enron exemption.” This bit of legislative legerdemain made into law a regulatory exemption on derivatives contracts that was first rushed into place by the Commodity Futures Trading Commission in 1993 when that agency was chaired by Gramm’s wife, Wendy Gramm.

More than any other piece of legislation, the Commodity Futures Modernization Act paved the way for the financial engineers on Wall Street to buy and sell the infamous derivatives known as “credit default swaps” with virtually no oversight. According to one Washington, D.C.-based expert on derivatives who asked that his name and affiliation not be used, the bill that Gramm sponsored “led directly to the current meltdown. In 2000, the total value of the credit derivatives business was less than $1 trillion. By this year, the credit derivatives  business was worth more than $60 trillion.”

Of course, few people listened when Buffett warned of the dangers of derivatives back in 2000. Indeed some of America’s most important financial players dismissed him out of hand. In September 2002, Federal Reserve Chairman Alan Greenspan, Treasury Secretary Paul O’Neill, Securities and Exchange Commission chairman Harvey Pitt and James Newsome, chairman of the Commodity Futures Trading Commission, sent a letter to a pair of U.S. Senators in which they declared that financial derivatives were not a danger. Instead, they said that derivatives “have been a major contributor to our economy’s ability to respond to the stresses and challenges of the last two years.” Further, they declared that a then-pending Senate proposal to regulate derivatives could increase “the vulnerability of our economy to potential future stresses.”

Back in 2002, in Pipe Dreams, my book on the Enron disaster, I wrote that reforms were needed to deal with derivatives. I quoted one financial analyst who called derivatives “Wall Street’s dirty secret.” And I recommended that “Derivatives dealers should be required to post agreed-upon amounts of capital to collateralize their trading positions” and that “the derivatives marketplace must be made more uniform, with policing by regulators who can establish price limits, listing requirements and other trading parameters.”

I’m not repeating that to brag or claim any special foresight. Lots of others were arguing for the same types of reforms.

Enron gave Congress and the Bush administration all of the rationales that were needed to justify proper  regulation of the financial markets. Enron clearly showed the need for more cops – well paid cops who have the backing of their bosses – to patrol the corporate boardrooms and study corporate accounting practices. Enron’s bankruptcy also demonstrated the dangers of uncontrolled derivatives businesses. But those lessons were merrily ignored by Gramm, Greenspan and their cronies on Wall Street.

So I have to ask again: why are we surprised?

ROBERT BRYCE is the author of Gusher of Lies: The Dangerous Delusions of “Energy Independence.”

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