At the January 2012 SRO Outreach Conference, I stated that we were at a crossroads with respect to the status of self-regulation. I posed fundamental questions to the audience, such as whether we should continue to have exchanges with statutory self-regulatory responsibilities when the vast majority of those responsibilities have been outsourced to another SRO and whether the Commission should impose limits on the ability of SROs to contract with others.Well, we're still at that crossroads, and the questions discussed at that conference are still pressing today. . .
Troubling for me is Gallagher's foray into the creation or perpetuation of the whole self-regulatory organization ("SRO") construct for the RIA community. My inference is that he appears to favor an SRO for RIAs, and I fear that he may be leaning towards some role for FINRA as the solution.BrokeAndBroker Blog readers know that I believe the current form of Wall Street self-regulation is a failure and should be abandoned. Similarly, I do not believe that FINRA has been an effective SRO, and I see no laudatory track record commending FINRA as a candidate to take on an even more expansive regulatory docket pertaining to an industry with which it has virtually no experience. If Commissioner Gallagher is leaning towards expanding FINRA's reach into the RIA community, he is terribly mistaken. Hopefully, he will keep an open mind on this issue.Still -- I have to compliment Gallagher for not shying away from controversy and having the guts to wield his sledge-o-matic down upon far too many sacred compliance procedures and sacrosanct regulatory policies.
In doing so, we must evaluate the SROs and markets as they are today and acknowledge that, in many cases, SROs today are fundamentally different from what Congress conceived of as self regulation decades ago. The circumstances under which the self-regulatory framework was put into place almost eighty years ago - private, mutualized, self-regulating exchanges and a simple association of dealers - no longer exist.The fact that the majority of the equities exchanges outsource their SRO obligations and market surveillance to FINRA, for example, calls into question the very meaning of the SRO concept as it exists today. There are benefits that arise from the consolidation of oversight in a single entity with access to market data from transactions on multiple exchanges. With the majority of exchanges subject to FINRA's rules, market participants know what to expect in the event of disciplinary action, and a single arbitration regime facilitates the dispute resolution process.For all these advantages, however, we still need to ask whether this is the optimal solution. Indeed, we need to ask whether exchanges that outsource their regulatory responsibilities to FINRA are still SROs at all, or whether they've instead effectively become FROs - FINRA-regulated organizations. A related question is whether the benefits of rule standardization amongst exchanges are canceled out by the lack of a competition of ideas among exchange regulatory regimes contributing to the development of best practices.And as for FINRA itself, we need to ask whether it has inappropriately exceeded its mandate, or is simply evolving with the markets. Regardless of the answer, we need to consider what that means for both the SEC and SROs. This is especially pressing as we continue to consider the possibility of subjecting investment advisers to self regulation. Although FINRA has ceased to actively pursue the possibility of expanding its mission to encompass IAs, were Congress to pursue new legislation to establish an investment adviser SRO, the conversation would inevitably turn to FINRA as a possibility again.In addition, as I have noted in the past, leveraging the current resources and expertise of broker-dealer SROs to serve as third-party examiners for investment advisers examinations could greatly facilitate our ability to examine "dual-hatted" investment advisers without having to rely on Congressional action to create a new investment adviser SRO out of whole cloth.Regardless of the path we ultimately end up taking to strengthen our examination program for investment advisers, one thing is clear: an "SEC-only" approach would not work for investment advisers any more than it did for broker-dealers. In other words, the answer is not to exponentially expand the SEC staff by adding a brigade of new investment adviser examiners when there are third parties that could perform that role.. . .The fact that the investment adviser industry has operated without SRO supervision offers an opportunity for what could be considered a control experiment: two regimes alongside one another, one with SROs, one without. Even as we continue to ponder whether that situation needs to be changed, we should compare and contrast the two industries to better examine some of the strengths and weaknesses of self-regulation. We certainly must do this before even considering a fiduciary duty rulemaking for brokers.
Although FINRA has ceased to actively pursue the possibility of expanding its mission to encompass IAs, were Congress to pursue new legislation to establish an investment adviser SRO, the conversation would inevitably turn to FINRA as a possibility again.
SIDE BAR: For a more detailed consideration of my antagonism towards FINRA's assumption of the role as the investment adviser SRO, see "Crony Politics Of Congress Wants Crony Regulation Of Investment Advisers" (BrokeAndBroker.com Blog, June 4, 2012).