Stay up-to-date with the latest developments in securities law through access to both news and all statutes and regulations. Find relevant corporate filings through a searchable EDGAR database. And...
March 11 — One of the fiercest public critics of financial laws and regulations is poised to shape them from the inside as a member of the Securities and Exchange Commission.
The nomination of Hester Peirce, a scholar at George Mason University's Mercatus Center, to fill a Republican seat at the commission will move forward during a March 15 Senate Banking Committee hearing.
Her sharp, lively, critical commentary of capital markets regulation gives no quarter and reaches into nearly every facet of the industry—she singled out sweeping statutes that give the SEC irrelevant rulemaking mandates, data insecurity at the SEC and an overreliance on investor protection, to name a few.
The committee will also consider Democratic nominee Lisa Fairfax, a law professor at George Washington University, for another opening on the commission.
Peirce has been especially scathing about the Dodd-Frank Act, the sweeping set of financial laws passed in 2010 as a response to the financial crisis of the late 2000s.
“Far from being the cornerstone of a new era of financial stability, however, Dodd-Frank is more likely to be at the root of a future crisis,” Peirce wrote in a January 2015 column.
In her commentary, Peirce said that Dodd-Frank weighed down the SEC with rulemaking mandates outside its core agenda, such as the conflict minerals rule and executive compensation measures.
It is not uncommon for regulators to criticize the regulations their agencies adopt. The commission structure, with seats reserved for both parties, can lead to divided decision-making and biting dissents.
On conflict minerals, for example, former Republican Commissioner Daniel Gallagher frequently and sarcastically attacked the rule, noting that “tantalum would never again take down the likes of Lehman or AIG.”
The agency still has to finish Dodd-Frank rules on executive compensation, including pay versus performance disclosures, clawbacks and prohibitions on certain incentive pay.
In particular, Peirce argued that Dodd-Frank's systemic risk and orderly liquidation authority codify bailouts for large financial institutions and could put taxpayers on the hook for industry malfeasance.
“Dodd-Frank's approach to financial stability simply intensifies the pre-crisis dependence on governmental regulators to shape the financial industry through regulatory prescription and proscription,” she wrote in the January 2015 column. “In weakening the ability of market participants to make their own decisions, the law makes it less likely they will reap the consequences of bad decisions.”
Before working at Mercatus, Peirce was on the staff of Sen. Richard Shelby (R-Ala.), who now chairs the Senate Banking Committee. Before that, she worked at the SEC as counsel to Commissioner Paul Atkins and as a staff attorney in the Division of Investment Management.
Peirce has questioned the SEC's priorities, both its overall mission and how it handles enforcement cases.
Of the agency's three-part mission, it focuses too much on protecting investors at the cost of creating fair markets and facilitating capital formation, she said. “The more the SEC makes decisions on investors' behalf, the more reliant they become on the SEC, and the less vigilant and inquisitive they are,” she wrote in June 2014.
Peirce also warned against heavy-handed enforcement, especially when enforcement serves as a tool to advance a particular regulatory agenda.
After Chairman Mary Jo White was nominated in 2013, Peirce cautioned that White would have to work hard to compensate for the views shaped by her experience as a prosecutor.
“Her extensive litigation experience is not a natural precursor to the job for which she was nominated,” Peirce said. “The SEC is fundamentally a regulatory agency, not a law enforcement agency.”
White was the U.S. Attorney for the Southern District of New York before going into private practice at Debevoise & Plimpton LLP in her pre-SEC days.
In accordance with her view that enforcement is subordinate to rulemaking, “SEC commissioners, as the agency's decision-makers, have an obligation to test the rigor of the staff's work and to reject the staff's recommendations when better courses of action exist,” Peirce said in a 2013 column.
“In the context of enforcement cases, that means an end to rubber-stamping staff-crafted settlements,” she added.
Her views on bad-actor waivers could further a conflict among commissioners over their use.
Under securities laws, financial institutions that commit certain wrongdoings are automatically disqualified from some aspects of securities laws and then have to get waivers from the commission to avoid the automatic sanction.
One such waiver affects well-known seasoned issuer ("WKSI”) status, which allows issuers to use shelf registrations for their offerings rather than seek more exacting approval from the SEC.
“The SEC should not be stingy in granting these so-called WKSI waivers, because they benefit investors by getting more information to them faster,” Peirce said in June 2014.
This could set up a conflict with other commissioners, especially Commissioner Kara Stein, who has repeatedly dissented from granting the waivers and ripped the SEC for doing so .
Among other priority areas, Peirce has called for narrower insider trading laws, criticized the SEC's own internal cybersecurity measures and favored undoing a ban on general solicitations in securities offerings.
To contact the reporter on this story: Rob Tricchinelli in Washington at email@example.com
To contact the editor responsible for this story: Phyllis Diamond at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)