Securities Regulation 
Class Outline
1. Introduction [Framework of Securities Regulation ]
 

[last updated 21-Dec-2005 ]

Framework of Sec Reg
  • Federal law
    • Securities Act of 1933 ("truth in securities")
      • response to 1929 stock market crash
      • ex ante disclosure, not merit regulation
      • reliance on intermediaries
      • expanded ex post antifraud liability
    • Securities Exchange Act of 1934 ("integrity in securities markets"
      • temper stock speculation
      • ongoing disclosure 
      • anti-manipulation and anti-fraud rules
      • regulate market intermediaries
    • Securities & Exchange Commission ("industry captive or securities police?")
      • institutional competence
      • divisions / no-action letters
  • State law 
    • origin of blue sky laws: projectionist? 
    • nature of merit regulation
    • 1996 preemption
  • Stock markets
    • primary markets / secondary markets
    • institutionalization of ownership

The Crash of 1929

 What goes up must come down.  To understand the bust, we should look at the boom.  The general euphoria of the 1920s, which lead Hoover to predict the country would eradicate poverty. Permanent prosperity, some say.  Great wealth, access to consumer goods through consumer credit.  Wall Street gets credit.

Wall Street power:  

  • Durant (creator of Gm and now financier) would manipulate market as part of $2 billion pool.  
  • Livermore (born to play the market) had made $100 million on winning in stock speculation, living by the numbers.
  • Mitchell (president of Citibank) had bank sell to small investors, on margin, and became largest stock seller in world
Popular interest
  • Groucho Marx puts life's savings into stock market / while making fun of Florida land speculation
  • RCA manipulation by pool, which acquires interest, creates appearance with journalists (including WSJ) on take and wash sales, eventually pool operators sell to small investors
No government involvement 
  • JK Galbraith (on whose book show modeled) describes laissez faire govt, not involved in economy
  • Attitude of Coolidge and then Hoover administration
But cracks begin to show 
  • industrial production falters, car sales drop, poverty and consumer credit up (Shiller describes press complacency)
  • Federal Reserve worried about margin, but does nothing
  • March 25 - selling, mkt falls / margin calls, but Citibank puts in $25 million / Federal Reserve sits on sideline
  • October 23 - Hoover celebrates 60th anniversary of Edison's light bulb
Market falls
  • Sep 3 - Labor Day weekend / mkt hits all-time high
  • Roger Babson predicts crash / dip, even though JP Morgan writes Hoover saying "things look brilliant"
  • Oct 23 - week stumbles / bad on Monday, even worse on Tuesday, October 29 (Black Tuesday)
  • fortunes lost at sea on the Berangetia
Aftermath
  • Durant tries hand at various things, dies believing in comeback
  • Livermore commits suicide, game over
  • Mitchell becomes successful Wall Street banker - again
  • Hoover fishes - "before fish, all men are equal"

You are on the Senate Banking Committee. 

It is March 1933.  The committee is charged with the grave task of restoring the U.S. financial markets after the devastation that began with the stock market crash of 1929.  Ferdinand Pecora, the committee's chief counsel and former New York prosecutor, presents some data:

  • Stock market expanded in 1920s from 4 million to 18 million stockholders / 55% of savings in stocks
  • Market collapse:  $50 billion in new securities in 1920s, now worth 1/3
  • 1929 NYSE worth $89 billion, in 1933 worth $15 billion - $74 billion loss ($18 billion in value lost on Oct 29)
  • bond losses of additional $19 billion
  • Foreign investment:  from 1923-1930 $6 billion in foreign bonds, 50% in default
  • New capital depleted:  $9 billion in new issues in 1929, $840 million in 1933

What do you do?  How do you deal with --

Deceptive stock offerings - "liar sitting on top of empty gold mine shaft"
Banks both lend money to investors and underwrite securities they sell to investors 
Financial sector run amuck - market pools, wash sales, manipulation 
Market speculation / JK Galbraith - "Market moves on rumor" / Wm O Douglas - "Investors are fools"
No market information - 57% of NYSE companies not even report revenues
Purchases on margin (10% down) aggravate any fall in prices 
State blue sky laws can only operate intrastate / an interstate sale from one state to another is interstate commerce
 

FDR has a mandate to solve the financial crisis. 

The original Huston THompson bill, proposed by the FTC chair, builds on the state blue-sky model of merit regulation -- only "sound investments" will be available for investors.  Thompson bill calls for registration with FTC, revocation if disclosure inadequate or fraudulent, review based on "sound principles" and "public policy" with liability for promoters, directors and officers. 

James Landis (HLS professor, administrative agencies are 4th branch of govt), Tom Corcoran (Wall St attorney and RFC administrator) and Ben Cohen (corporate practitioner) redraft the Thompson bill and model their revisions on the English COmpanies Act, which requires disclosure, not investment quality.  The new bill applies only to distributions, not trading.  It introduces an administrative procedure to slow down the coming to market, requires independent accountants, imposes investigation duties on directors and officers, covers half-truths and omissions, applies to the distribution of securities by underwriters and broker-dealers.  

The Securities Exchange Act of 1934 would have to wait.  Eventually, SEC created and Joseph Kennedy is first SEC chair.  "Takes a thief to catch a thief."

Consider how "new era" thinking infected views of the stock market in the 1920s:

The Wall Street Journal
Friday, March 7, 1997

Understanding 1929
By Wayne Angell [Mr. Angell, formerly a Federal Reserve governor, is chief economist at Bear Stearns]

Alan Greenspan is concerned about excessive optimism in the stock market. It is not that he doesn't want prosperity -- he wants to take steps to "help extend the period of sustained growth."

He knows, first, that this expansion promises to be long lived because the Federal Reserve did not acquiesce to an upcreep in inflation in 1994, and he promises that the Fed will remain vigilant in 1997. Second, he is warning that "participants in financial markets are susceptible to waves of optimism," which can feed through asset-price inflation to the market for goods and services. And he believes that stock market excesses can act to amplify any downturn in economic activity.

His notification to financial market participants that monetary policy continues to seek price level stability is right on target. If price level stability requires a temporary increase in interest rates, of course, that is the judgment call of the Federal Open Market Committee. It would be a mistake, though, to assume that the run-up in stock prices is an indication that monetary policy is too easy. If Mr. Greenspan and the Fed would like lower stock prices and lower bond prices, indeed, the clear prescription is to make money easier -- that is, to lower the value of money through inflation. The fact that the FOMC is not going to tolerate an increase in inflation most likely will contribute to the bull market continuing.

Mr. Greenspan was warning us that the worst of all worlds would be to have an upturn in inflation, which would require higher interest rates, at a time that might coincide with or set off a reversal of stock market excesses. He seems to be worry that declining stock prices would have a "wealth effect" on consumer and business spending. If wealth drops in a stock market crash, and the result is a fall in consumer spending, which then leads to a fall in profits setting off another round of wealth losses, then that kind of downward spiral could culminate in a depression. In other words, a repeat of what is commonly believed happened in 1929.

But is that what happened in 1929? Was money easy? No. Wholesale prices fell 8% from 1925 to 1929. Gov. Benjamin Strong and the open market committee mistakenly tightened the monetary purse strings in response to what they believed was an asset "bubble" caused by too much money. Thank goodness, there is no danger of today's FOMC tightening money to the point where we have a deflation, as the Bank of Japan recently did.

The prevailing view of the 1929 stock market crash and the ensuing economic depression is decidedly Keynesian with its Marxist business cycle roots. Capitalism, said Marx, generates ever worsening business cycles that eventually culminate in a revolution. The Keynesian version is that fiscal and monetary policy adjustments can provide offsetting stabilizing action to smooth the cycle and thus save a socialized market system. The notion that business cycles have not been repealed ignores monetary policy mistakes as a business cycle generator.

It is time to set the record straight.

The stock market crash of 1929-34 was due to misguided monetary policy that led to deflation and protectionism and then to the ruinous policies of the New Deal. And the New Deal's heavy-handedness was justified because only the New Deal saved us from a Marxian revolution. Many refused to discover and to believe that the 1929 crash was the result of a serious monetary policy mistake and the resulting rise of protectionism.

They ask, how can monetary policy have initiated such a disaster when we were on the gold standard? The answer is that we were not on a gold standard. The Federal Reserve Act of 1913-14 repealed the gold standard and replaced it with a system that ensured that the U.S. dollar would be a better store of value than gold. The Federal Reserve Act guarded against inflation, but permitted deflation.

The Federal Reserve System was a "managed money standard" system. Being managed meant that policy makers were not required to increase reserve bank credit automatically when gold flowed to the U.S. as the rest of the world failed to deflate as fast as the U.S. Rather, they could choose to watch something else, for example the stock market, as a signal that money was too easy.

The 1914 act prohibited the Federal Reserve from inflating by specifying that Federal Reserve bank credit, central bank funny money, could never be larger than 2 1/2 times gold certificates held by reserve banks. As Great Britain, France and other countries struggled to get back on the gold standard, it became apparent to international investors that they would not make it. In a way, they could never make it, since the Fed's gold managed system refused to allow gold inflows to inflate the U.S. price level. This meant other countries would bear all the price level adjustment -- a significant deflation.

In the 1920s, prices and wages were extremely flexible to adjust to supply and demand conditions. So the Fed was free to pursue a deflationary policy -- the only problem was that real estate prices -- farmland, houses or factories -- eventually adjusted downward to be in equilibrium with falling commodity prices.

Falling commodity prices and the ensuing deflation forced real interest rates up and nominal interest rates down. It was a paradise for lenders and a torment for borrowers. Market interest rates were forced down. But the Federal Reserve looked at the stock market and was reluctant to match the lower interest rates determined in the market.

What was happening to the price of gold? It remained at exactly $20.67 an ounce; the secretary of the Treasury was required by law to support the price of gold at the official rate. Gold was the first commodity held up by a Federal price support. As a result of the disparity between falling commodity prices and stable gold prices, Irving Fisher proposed a commodity price standard. He invented a system of index numbers for measuring changes in commodity prices, which could have guided the Fed away from deflation. But the Fed's governors were not focused on falling commodity prices; they were sure that rising prices in the stock market meant money was too plentiful.

It is hard to imagine circumstances in which U.S. stock prices would not have soared. Falling oil prices, courtesy of the Standard Oil monopoly, created a new market for automobiles. This led to innovations in assembly line production, allowing Henry Ford to show the way with rising wages and profits. World War I ended, leaving Europe in need of costly rebuilding while the U.S. could build on the war-induced industrial stimulation. And we had relatively free trade.

If you look at the nearby chart depicting stock prices (see accompanying chart -- WSJ March 7, 1997), it is apparent that stock prices in 1929 were not so far above the historic trend line. And this trend line encompasses the adverse impact on the U.S. economy of all the stupid policies that we instituted in the name of averting another 1929. If we had simply avoided deflation, the Smoot-Hawley tariff, bank failures, unemployment rates up to 25%, bankruptcies, New Deal regulation, big government and the ruinous inflation of the 1970s, then real stock prices today could have been twice as high as they are. And if the Federal Reserve and European central banks had worked as hard on economic policy convergence as the Europeans are today, there may have been a way of enabling Germany to repay war reparations without bringing Hitler to power, and of having such a prosperous world that Soviet communism would have been brought to its knees much earlier.

Think how much better off the world could have been if policy had been better. Wouldn't it have been something if we had looked back on 1929, asking why stock prices had not yet reflected the world's very bright future. Just think about a world in the 1930s lowering tariffs, increasing trade, shedding the elitism of Europe's class system, promoting independence with market economies in Asia, South America and Africa. Colonialism could not have survived free markets and increasing prosperity.

Our job is not to rewrite history, but to free ourselves from the phobia created by the Marxian-Keynesian interpretation of history. The point is that our future can be much brighter. Stock prices can continue upward if we continue this "new era" brought on by a favorable economic environment which surely begets a yearning for freedom and democracy.

Please, Mr. Greenspan, stop worrying about the stock market. And read the minutes of the Board of Governors from 1926-29. Note that they focused on the stock market and not on commodity prices. By focusing on the stock market they continued to maintain interest rates at levels above market equilibrium and thus continued the deflation that would wreck the banking system.

We have a right to expect that the Federal Reserve will continue to pursue a very gradual disinflation, which will provide even more abundance of capital as effective tax rates on real investment income fall to the statutory level. More capital will mean increased labor productivity, rising wages and an improved well being for the American people and for the people of the world.

And stock prices will go higher. If the Greenspan Fed is satisfied with keeping inflation closer to the 2.5% achieved over the past three years then stock prices will surely continue to reflect these new-era levels. Of course with lower interest rates, lower stock yields and higher price-to-earnings ratios, investors will need more wealth to buy their preferred retirement lifestyle. But workers will never have had it so good.