The SEC boss doesn't have what it takes to clean up Dodge, writes Susan Antilla
Pop quiz: Name the person who doesn't belong in the category of Tough Lady Sheriffs Who Scare the Bejesus Out of Wall Street.
1) Mary Schapiro, chairman of the Securities and Exchange Commission.
2) Sheila Bair, chairman of the Federal Deposit Insurance Corp.
3) Elizabeth Warren, chairman of the Congressional Oversight Panel on the Troubled Asset Relief Program.
If you didn't choose No. 1, you've got a short memory.
Schapiro, the nation's top securities regulator, is getting lumped together with women known for cleaning up Dodge. Her record, though, includes overseeing an agency where brokers were embraced as part of the regulatory team and aggrieved investors were corralled into a private, back-room justice system.
Time magazine cheered Schapiro, Bair and Warren on its May 24 cover as “The New Sheriffs of Wall Street.” You'll get no argument from me that women increasingly are demanding and getting clout to mop up the mess left behind by financial fraudsters or lazy regulators.
Bair spoke her mind about banks' bad policies even before the financial crisis, without regard to whose custom wing-tipped toes she might step on. Warren had the audacity to suggest that consumers, of all people, have a right to be protected from financial institutions that try to fleece them.
But Schapiro? There's no doubt she cast the deciding vote that allowed the SEC to file its much-debated lawsuit April 16 against Goldman Sachs. And since she became chairman in January 2009, the SEC has revamped its enforcement division and trained its examiners to spot frauds like that little Madoff case they missed.
It's also worth noting that Schapiro has for years appointed other women to senior positions, an enlightened policy that more females at the top should adopt.
Still, I wonder whether Schapiro is an investor advocate in the spirit of an activist like Warren, or just a really good politician who slides into populist posture when the times demand, then relaxes into business-advocate mode when headlines shift.
Schapiro was named president of NASD Regulation Inc., the regulatory arm of the National Association of Securities Dealers and predecessor to Finra, in 1996. Like the SEC she took over in 2009, NASD at the time was a regulator under fire. The Nasdaq stock exchange, which NASD owned, was awash in trading abuses and needed an institutional housecleaning.
Just as she's doing at the SEC today, Schapiro ramped up enforcement and produced results, with fines collected by NASD rising to $125.4 million in 2005. Then she was promoted to chief executive officer amid the euphoric markets of 2006, and as often happens when greed trumps fear among the investing public, memories of fraud receded and brokers started to catch a break.
Fines fell to $87 million in 2006, $48 million in 2007 and $28 million in 2008, according to data from Finra spokesman Herb Perone. The number of new disciplinary actions declined each year from 2005 to 2008. I suspect you can figure out that the drop was not caused by a sudden outbreak of integrity.
In 2007, Schapiro took over as head of the merged regulatory units of NASD and the New York Stock Exchange, a controversial deal that promised streamlined regulation to Wall Street firms to whom streamline means “regulators off our backs.” For investors who were already shut out of public courts when they have a gripe about a broker, the merger narrowed the choice of justice systems from two to one, as the NYSE folded its program into NASD's.
With Finra and the NYSE, Schapiro was twice sued for her role in the merger, accused of using dishonest tactics in her aggressive campaign to persuade brokers to vote for the deal. (A judge dismissed one suit in March, ruling Finra was “absolutely immune” to lawsuits.) A fight to keep certain aspects of the deal quiet got so heated that lawyers for Schapiro and Finra e-mailed adversaries to insist that sealed documents not be shared with the SEC. Seriously.
Finra's own review of investigatory blunders on Bernard Madoff's Ponzi scheme and the alleged fraud by Allan Stanford couldn't avoid describing deficits on Schapiro's watch -- though it never mentioned the former boss's name in its 80 pages.
The report released in September 2009 described a broker exam process that was so flimsy that examiners didn't do so much as an Internet search before they showed up to kick a firm's tires, relying entirely on Finra data.
The review also mapped out -- in a footnote -- an appalling level of nicey-nice between regulators and the regulated. Members of the Madoff family held positions including chairman of Nasdaq, NASD board member and memberships on Finra's National Adjudicatory Council and Compliance Advisory Committee, according to the review.
So there you have it. As Schapiro rose to the top, Ponzi schemes were cooking, unhappy investors were given no choice but to bring their complaints to private Wall Street courts, and hapless examiners didn't Google before an inspection.
Schapiro declined to comment on all but one of a half-dozen questions I raised.
Through spokesman John Nester, she said she had “specifically asked” the SEC's Investor Advisory Committee for a recommendation on mandatory arbitration, meaning the topic had some importance to her. If that was so, she didn't get the message across to the committee's chairman, Mercer Bullard, who said in an e-mail that the decision to examine arbitration “came solely from” the panel.
She makes the right moves when she first gets called in a crisis. But if your portfolio gets robbed, don't count on this sheriff to draw her gun on your behalf if public attention has already moved on.
[Susan Antilla is a Bloomberg News columnist. The opinions expressed are her own.]
