More On Legal & Compliancefrom The Advisor's Professional Library
- The New and Improved Form ADV Whether an RIA is describing its investment strategy in advertisements or in the new Form ADV Part 2, it is important the firm articulates material risks faced by advisory clients and avoids language that might be construed as a guarantee.
- Client Commission Practices and Soft Dollars RIAs should always evaluate whether the products and services they receive from broker-dealers are appropriate. The SEC suggested that an RIAs failure to stay within the scope of the Section 28(e) safe harbor may violate the advisors fiduciary duty to clients, so RIAs must evaluate their soft dollar relationships on a regular basis to ensure they are disclosed properly and that they do not negatively impact the best execution of clients transactions.
"Send me a bill that bans insider trading by members of Congress and I will sign it tomorrow,” President Obama proclaimed in his State of the Union on Jan. 24, 2012.
After receiving a rousing applause and more than two months later, Obama finally signed the STOCK Act into law on April 4. (STOCK is an acronym for “Stop Trading on Congressional Knowledge Act.”)
The STOCK Act is supposed to prevent members of Congress from trading stocks based on the nonpublic information they obtain in their dealings with business leaders. But the guts of the Act left out some major things.
A Few Years Tardy
Interestingly, the original STOCK bill was first introduced back in 2006, during the Renaissance period, by Rep. Louise Slaughter (D-N.Y.). The only reason it was even resurrected from way back then was because of a CBS 60 Minutes news report that exposed House speaker John Boehner (R-Ohio) and Rep. Nancy Pelosi (D-Calif.) over trading in their personal investment accounts.
The investment portfolios of congressmen and senators, according to academic research, consistently beat stocks indexes like the Dow (DIA) and the S&P 500 (SPY).
“We find strong evidence that Members of the House have some type of nonpublic information which they use for personal gain,” stated a 2011 paper titled “Abnormal Returns from the Common Stock Investments of Members of the U.S. House of Representatives” by academics Alan J. Ziobrowski, Ping Cheng, James W. Boyd and Brigitte J. Ziobrowski.
Under the new STOCK Act, members of Congress, their aides and many members of the executive branch cannot use inside information they learn on the job to trade stocks or other securities. The law requires public disclosure of any trades within 45 days and reports to be made available online in a database that anyone can search.
The new STOCK Act law also limits members of Congress and executive employees to participating only in those initial public stock offerings that are available to the general public. Why this rule wasn’t already a law is being studied closely by legal students who are planning to be divorce attorneys.
What’s most disturbing about the STOCK Act is not so much what it contains, but what it omits.
When a hedge fund or an influence peddling individual wants inside information, they can still buy it — by paying members of Congress or other high level officials for something called “political intelligence.” This rogue but still legal practice of gathering information from lawmakers and Hill aides is regularly used by Wall Street to steer money into profitable investments. It’s nothing more than legalized cheating, because those with the most money and political influence win.
CASE STUDY: Then Treasury Secretary Henry Paulson sold political intelligence when he tipped off hedge funds about Fannie Mae’s rescue in 2008 while he was serving at the Treasury’s top job. Paulson’s hedge funds pals made billions in illicit profits. That type of unethical conduct is still legal under the “new and improved” STOCK Act.
Here’s another gaping omission: The STOCK Act still allows elected officials to own stock in industries they can affect with their political power. For example, a senator who owns an energy stock can still draft and pass laws that benefit his investment holdings. Isn’t it obvious that allowing this kind of seedy behavior badly waters down the effectiveness of the STOCK Act?
In summary, don’t be hoodwinked by news headlines proclaiming the STOCK Act will end congressional insider trading. Lying, cheating and stealing are still legal and the latest legislation is weaker than previous versions. Worse yet, it still doesn’t stop the sale of political intelligence.
Maybe the real reason the STOCK Act was even passed was so that political leaders can make themselves look good when fall elections take place. No doubt, they’ll be using the STOCK Act to promote the misleading idea they are doing everything in their power to stop high level corruption. •
Ron DeLegge is author of Gents with No Cents: A Closer Look at Wall Street, Its Customers, Financial Regulators and the Media (Half Full Publishing, 2011)