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September 23, 2011

Q&A on the Securities and Exchange Commission with U.S. Senator Chuck Grassley

Q:        What’s the role of the Securities and Exchange Commission?
A:        The SEC was created during the Great Depression, in the wake of the stock market crash of 1929, when the public’s faith in capital markets needed to be restored.  The agency is supposed to strengthen investor confidence by providing transparent, reliable information and rules for fair, orderly and efficient markets.  This should help facilitate the capital formation necessary for economic growth and job creation.  When the agency fails to meet its mission, the negative repercussions can impact anyone with investments monitored by the SEC, including investments in a pension and other retirement funds.

Q:        How did you get involved in oversight of the SEC?
A:        I’m committed to the work of congressional oversight, and there’s a great need for it with the SEC.  Four years ago, based on information from a whistleblower and the work of my investigative staff, I spelled out in a comprehensive report (with then-Senator Arlen Specter) how the SEC Inspector General failed to investigate credible allegations by a former SEC attorney that his supervisor pulled punches in an investigation because of one Wall Street witness’ political clout.  The report hit a nerve and, ultimately, the SEC attorney who blew the whistle was vindicated.  Last year, the SEC finally obtained a $28 million settlement from the capital management company in question and paid the attorney years of back pay in a settlement related to his termination.

Adding to that, last March, a new Inspector General of the SEC issued a stinging rebuke of an agency program created more than 20 years ago to help target insider trading and securities fraud by rewarding agency employees who spoke up and shared valuable information.  Last summer, knowing that the SEC missed the biggest Ponzi scheme in U.S. history in the Bernard Madoff case, a colossal mishap that might have been avoided if the SEC had paid attention to whistleblower information, Congress passed legislation I authored to dramatically beef up a whistleblower office inside the SEC.  I’m still working to make sure that office is strengthened as the law calls for, and not weakened by institutional ego.  Every source of information is needed to combat financial fraud.  Both investors and taxpayers are exposed by wrongdoing.  I want to see the SEC embrace whistleblowers because they can help with the mission.  Whistleblowers could help stop another Madoff.

Q:        How can the public have confidence that the SEC isn’t too close to the industry it oversees, especially the big players?
A:        A revolving door between agency staff and the investment firms and banks they oversee has led to concerns of coziness and the soft-pedaling of potential criminal cases.  Last year, the SEC Inspector General identified cases where the revolving door appeared to be a factor in staving off enforcement actions and other types of oversight, including cases involving Bear Stearns and the Stanford Ponzi scheme.  I offered an amendment to the 2010 Dodd-Frank financial services reform bill to extend the cooling-off period at financial agencies to two years and to require a list of former agency employees who are representing clients before their former agencies.  Unfortunately, my amendment was blocked by the bill sponsors.  These reforms plus better record-keeping by the SEC are needed to help maintain the regulator’s integrity and preserve the public trust in a balanced playing field.

This year, I’m working to make sure the SEC is held accountable for what it does with referrals of suspicious trading activity from one of the biggest and most powerful hedge funds.  How the SEC handled specific referrals will shed light on how the enforcement system works.

I also highlighted the big divide between the stated policy of the SEC and its actual practice of providing information to the securities industry about the criminal law enforcement intentions of the Department of Justice.  The SEC enforcement manual, which was revised after the 2007 Grassley-Specter report, is undermined if the SEC relays to potential targets of investigation exactly what the Justice Department has in store for them.

Separately, I’ve helped to shed light on the actions of the SEC’s former General Counsel David Becker.  After missing the Madoff scam, the top leadership of the SEC let one of its own who profited from a Madoff account craft the commission’s position on how to treat Madoff victims.  The agency let this major conflict of interest slide and then tried to cover it up.  After a comprehensive report, the Inspector General has referred Mr. Becker’s case to the Justice Department, but the SEC’s ethical standards need to be stronger, consistent and uniformly applied from the executive suite to the rank-and-file employees.

Q:        Where else have you scrutinized what’s going on inside the SEC?
A:        This year, an enforcement lawyer at the agency wrote to me and outlined what he said was the agency’s destruction of least 9,000 files between 1993 and 2010, all related to initial inquiries into possible wrongdoing on Wall Street.  The lawyer said these files were destroyed as a routine matter of internal SEC policy, but that the shredding might have compromised enforcement cases against Madoff, Goldman Sachs, Wells Fargo, Bank of America, Deutsche Bank, Lehman Brothers, and the SAC Capital hedge fund.  I pressed for a full accounting.  In response, the National Archives said the SEC “did not have the authority to dispose of” the records in question under federal law.  And, the SEC directed staff to stop destroying preliminary investigative documents until further notice.  Keeping records is common sense in law enforcement.  You never know what might be valuable information.  Complete records also may help keep the agency honest and inoculate against compromised ethics and biases.

The promises of financial system reform will be empty if the top enforcement agency for free and fair markets is ineffective.  I will continue to work for accountability and necessary reforms of the SEC.