Here we go again. FINRA says that it's going to listen to you. The self-regulatory organization promises. Reform is coming. Fairer regulation is coming. More effective pro-consumer industry oversight is coming. This time, FINRA says, it will be different. Sure, this time it will; except, you know, the last "this time" when FINRA said it was going to be different, turns out, it wasn't.
If you read all the breathless press releases coming out of FINRA lately, the air is ripe with anticipation. FINRA is inviting us to tell them (yet again) what's wrong and what needs fixing. Armed with all this solicited advice, FINRA will likely impanel committees and hold roundtables and create working groups in order to consider all the ideas and suggestions. After the deliberations, I suspect we're going to be regaled with lots of progress reports about how various proposals are being drafted into formal rules. Of course, next comes the endless varieties of status reports, which are mainly clever devices to cover the fact that nothing has actually gotten done but, hey, we want you to know that we're working on it, tirelessly, and we're on top of all this reform stuff. After a year or so of drafting, revising, amending, commenting, further revising, further amending, more commenting, and a final draft, the whole shebang gets submitted to the Securities and Exchange Commission, where yet another round of masturbatory bureaucracy will delay and further dilute and send back an approved version that is likely unworkable but, not to worry, by the time we arrive at this stage there will be a new cast of characters at FINRA (or whatever the regulator will be renamed at that point).
Does anyone know where the lever is to stop this idiotic merry-go-round?
Nothing ever changes -- at least not for the better. And by "better" I mean in tangible ways that offer more substantive protections for the investing public and more effective, fairer regulation for the industry. Why? In my opinion, it's because behind the scenes, the same withered hands are pulling the strings and the same co-opted interests are still calling the shots. The goal is not about accomplishment: the purpose is spectacle. We get pageantry without change. Those in power prefer it that way. When you have six- and seven-figure salaries dependent upon the status quo, why risk altering the landscape?
Of course, along with these paroxysms of this time reform proposals, we find that there are lots and lots of published articles in which various industry figures are interviewed and asked to weigh in on the exciting news coming out of FINRA. If you compare the recent crop of news coverage about FINRA, you won't find much difference from those published a few years ago or even a decade or more. The names of some of the folks interviewed change but, at its core, it's all little more than a tired rehash of the same complaints and the same suggestions. Just as nothing truly changes at FINRA, nothing truly changes within the industry. Folks grouse. They complain, They threaten to take action. As we all know, however, after the articles get framed and nailed up in an office, that's about the extent of all the angry talk.
As a founder of the NASD Dissident Movement, which became the FINRA Dissident Movement, I have watched this nonsense for two-plus-decades. As a card-carrying grouser, complainer, and threatener-of-action, I play my role in this play. Frankly, I too sleepwalk through my lines and my passion for the drama is waning.
Let me pull out some yellowed clippings of my past performances. You will note in some of the re-posted BrokeAndBroker.com Blog articles below that some content is over a decade old. Some of the material is so old that it references the NASD, which has come and gone and now we're confronted by FINRA.
"Bill Singer Submits Rare FINRA Comment" (BrokeAndBroker.com Blog, June 1, 2017)
"Wall Street Critic Bill Singer Revisits His 2009 Reform Proposals" (BrokeAndBroker.com Blog, April 22, 2016)
"End The Politics Of Wall Street Regulation: Decentralize FINRA And The SEC" (BrokeAndBroker.com Blog, November 16, 2011)
= = = = =
OFFICE OF THE
INDUSTRY'S ADVOCATE a proposal by Bill
as first published on September 8, 2006
1. Enforcement is best suited for willful violations and most taxpayers' errors are inadvertent;2. Public policy prefers voluntary compliance rather than enforced;3. IRS' limited resources are already strained by its current enforcement agenda; and4. "harsh enforcement measures against inadvertently noncompliant taxpayers may increase distrust of the IRS and create deliberate noncompliance."
Direct registration by individual not firmFully transportable registration from employer to employerPublic database using user-friendly interface
Protect against dilution of definition by special interest groupsRestrict (or eliminate) transaction-based compensationFull disclosure of compensation by firm and individual
Two-year program (Compliance/regulatory component; product updates; third-party, industry groups, regulators, and employer providers)initial certification of individuals to sell each each designated productbi-annual update module every two-years (limited to materially new product developments or regulatory events)
-Impose annual fee on member firms for their rating (incentive to limit hiring of troubled professionals)-Impose annual fee on individual professionals for their rating
-Limit fund compensation to compensatory damages and reasonable fees/expenses-Require proof of insolvency of respondent or defendant
-SRM may object to issuance of new product-Implement rapid administrative process to resolve objections or sustain "hold."
-Impose size and monetary limits-Establish "tripwires" for escalation to "Alert" status
-Permits specific regulatory organizations to take steps to review, limit or suspend increases in float, sales, etc.
-Authorize a Systemic Risk Czar to take emergency steps-Provides for accelerated appeal process=====
On November 15, 2011, I delivered the afternoon Keynote Speech at the Fall Symposium of the National Association of Independent Broker Dealers (NAIBD). The topic of my remarks was "The Failed Partnership Between Wall Street's Regulated and Regulators."
Frankly, I found the moment an awkward one. For much of the last decade from my perch in what was referred to as the NASD Dissident/NASD Reform/NASD Dissident-Reform Movement (and now known by the preamble of FINRA), I have banged heads with NAIBD. That my shadow crossed over the threshold of one of that organization's events was as much a surprise to me as a likely uncomfortable shock for some in attendance.
On the other hand, it is only from the clash of ideas in the marketplace that innovation emerges, and as readers of my columns know, I love robust debate and a frank, blunt exchange of ideas - provided it's civil and done in the spirit of testing one's core beliefs with an openness to a change of opinion and position.
Below is the version of my remarks as contained in the script that I used during my speech. As with any lawyer, I edited as I went along - some things were left out and some things were expanded. Nonetheless, as raw and honest as is possible, here's what I said:
Good afternoon. As you've likely figured out from the promotional material for today's program and from that introduction, my name is Bill Singer. Yes, I know, I'm much older and shorter in person. Frankly, it's not that big a mystery. The photo that I use for my websites, and for my Forbes and Registered Rep magazine columns is about ten years old.
As the program notes indicate, I've chosen a cheery, upbeat topic for my speech: The failed partnership between Wall Street's regulated and regulators. My intent is that my remarks be received in a constructive manner, but I warn you - these are difficult times and I have no desire to be mistaken for a cheerleader or a face-painted fan in the stands. For some two decades, I've been on the field, tackling and getting tackled, and I've seen enough penalty flags thrown to last a lifetime. So, put on your pads, strap on your helmet. The Halftime Show is over.
At its high water mark around 1999, there were nearly 6,000 member firms in what we used to refer to as the NASD member firm community. By 2006, after the Tech Wreck, after 9/11, and after the IPO scandals, the NASD membership was down to about 5,000 firms. Then came The Great Recession, Stanford, Madoff, Bear Stearns, Lehmann, AIG, TARP, and, life as we knew it pretty much ended.
Last I looked, the newfangled FINRA membership is about 4,500. How much devastation is that? Do the simple math, for every 6 of you sitting here today, imagine that in another decade about one or two of you will be gone.
Today, FINRA is a house divided against itself. We have arrived at this abomination not by accident but by what I view as the social engineering done to reinvent FINRA as an organization of financial superstores and large regional firms - and this has been accomplished to the detriment of FINRA's Small Firm community and with the complicity of larger member firms; former and present NASD/FINRA board members, executives; and more than a handful of industry cronies.
Pursuant to Article I of FINRA's By-Laws, FINRA's Board has been intentionally divided into three separate constituencies:
Using that small, middle, and large firm formula, the FINRA Board is now a gerrymandered disgrace of 22 members, that seats:
FINRA's May 3, 2011 Election Notice informed us that there were 4,189 small firms and 173 Large Firms.
I find those numbers intriguing.
There are over 24 times the number of small firms as there are large firms. Small firms represent about 90% of FINRA's 4,500 members. So, how many votes on FINRA's Board do the 4,189 small firms have? Three votes - the same number of votes as 173 large firms. Given that there are 24 times as many small FINRA member firms as large ones, the small firms should have 72 votes versus the large firm's 3.
Then there's that ticklish fact that 90% of FINRA's member firms are small firms. As such, given that there are 22 Board seats, the small firms should have something like 20. Instead, the small firm community has only 3 seats.
Alas, life isn't always fair and FINRA has often been a testament to that fact. A self-regulatory organization that was founded by smaller, dynamic firms, has abandoned its founding members and now caters to the needs of a minority of larger firms. Instead of truly proportional representation and input at your self-regulatory organization, small firms are marginalized. Worse, you lack the tools to undo that bias because the SRO that you helped create, support, and grow views you as a nuisance rather than its lifeblood.
During the Great Depression, Will Rogers said that "If stupidity got us into this mess, then why can't stupidity get us out of it?" In recent years, I have looked at Wall Street and often wondered the same thing. The heart and soul of FINRA, you members with fewer than 150 registered persons have sat by as your influence and input was diminished by regulations and regulators seeking to tear down your business. FINRA, a Too-Big-To-Work self regulator paved over the empty space you left behind and built a Wall Street landscape with toweringToo-Big-To-Fail financial supermarkets. Sadly, the reconstruction was flawed, the contractors and their materials shoddy, and that lovely new Wall Street is now falling apart at the seams.
The small fry, the little guy, the mom-and-pops - you all watched for too many years as larger broker-dealers who could afford to employ former NASD, FINRA, and SEC attorneys and examiners expanded with seeming ease. It took you, a smaller firm, months to get yourMembership Agreement amended to allow for another branch or more brokers or a new product line - but that big firm nearby, the one with the TV ads and the former FINRA exec or the former SEC administrator, well, geez, they just seemed to send in their wish-list and, voila, in a snap they got what they wanted.
Then of course was the explosion in FINRA fines - fines for this, fines for that, fines for inadvertent mistakes, fines for things that no firm used to get fined for. What is the rationale, what is even the point of fining a registered person or a member firm when he, she, or it makes an inadvertent error? As if, what? - that dollar-sign enforcement has been such a success in recent years?
You small fry get charged with violating Rule X and FINRA wants a $20,000 fine. A large firm with thousands of brokers gets hit with violating the same Rule X and FINRA wants the same $20,000 fine. To some, that flat rate of fines seems fair. However, to those of us in the small firm end of things, we see through that charade and realize it is only a facade of fairness.
First off, the too-big-to-fail FINRA member firm that failed and is now part of a too-big-to-fail bank holding company never actually pays those $20,000 fines out of its own pocket - no, if that member is a publicly traded company, the fine is actually paid by the public shareholders. All of which fosters a mind-set at larger firms that since the bucks don't actually coming out of some human being's pockets - hell, fuhgeddabouit.
Then there's that other aspect of the one-size-fits-all fines. The $20,000 fine FINRA takes in an AWC from a big boy doing hundreds of millions in revenue doesn't have quite the same sting as that same $20,000 fine coming out of the bank account of the small FINRA member doing $1 million a year. For the big boys, it's the cost of a day's worth of toilet paper, for you, it's a few months rent.
Meanwhile, the cost of daily compliance weighs heavy upon your shoulders. With every new regulatory initiative comes more paperwork. And with that paperwork comes the need to hire more non-producing folks. And as all the one-size-fits-all regulations pile up, well, you're paying someone to essentially sit at a desk filling out forms that affirm that you're not doing anything that even needed to have the form filled out. You're paying someone to check off "not applicable" or "does not apply."
Meaningful reform is never achieved by simply issuing more rules or imposing higher fines. What's required are more intelligent and workable rules and a system of fines designed to achieve the same impact upon large firms as with small. Moreover, without the willing participation of those regulated, any regulatory regime is destined to fail as an army of unwanted occupation rather than a partner in maintaining fair and honest markets.
FINRA is a monopoly that aspires to the properties of a gas, which as you may recall from High School chemistry, can expand to fill virtually any size container. Lately, FINRA hasn't seen a violation that it didn't want to impose a fine or a suspension for. And speaking of expanding gas, FINRA now eagerly eyes the registered investment advisory sector. Just what the small firm broker-dealer community needs. Your three Board seats will go to two. Your needs will be further buried under a larger stack of papers in some in-box.
As FINRA balloons to thousands of employees and far too many over-compensated executives, the SRO loses its flexibility and becomes even slower to adapt to new challenges. The once vibrant partnership between the regulated and the regulator that was envisioned when the Maloney Act created self-regulatory organizations nearly three-quarters of a century ago - that partnership is dead. And in its place is an ossified, inflexible, ineffective and often incompetent bureaucracy that sees the majority of its membership - you, the 90% - as adversaries.
Through the prism of a rose-colored lens that softens the view of larger firms, FINRA sees unavoidable human error at large firms as an inadvertent mistake; but that same miscue at a small firm seems to get tagged as willful fraud or negligence. The formal regulatory Complaint against the small firm that names the CEO, the FINOP, and the CCO is often in marked contrast to the Complaint against the large firm which assumes that organization is run by robots.
FINRA is no longer about regulation. It is a bureaucracy that has managed to morph into the same creature as virtually all agencies that are based in Washington, DC.
A generation ago, much of America's regulatory and law enforcement operated on what I call the American model of a localized command and control structure. Frankly, it's always been the best way to manage warfare, government, regulation, and criminal prosecutions. Local police precincts, local FBI offices, local US Attorneys offices - you work a neighborhood beat, you get a feel for your turf.
Over recent decades the American way of governing, regulating, and prosecuting has been displaced by what can only be called an old Soviet system of centralized command and control. It's a cancer that has spread throughout our society. It's the belief that some career bureaucrat nestled away from the real world in the political corridors of Washington,DC knows better than those yahoos who live and work in the boonies. And talk to the government workers and regulators who are in the local outposts - you will hear their complaints how how they've lost control and flexibility, how it now takes weeks to get their paperwork reviewed in Washington, DC by some make-work artist. Off the record, in a hushed whisper, they will tell you that things were better when there was more localized control.
It should come as no surprise, then, that I am not here today to praise FINRA but to bury it.
I don't hate FINRA. I hate what it has become because I know what it can be.
But let's not reinvent history simply to bolster my thesis. Few things in life are unblemished. No regulator or business should aspire to sainthood - it is not a practical business plan. FINRA's predecessor, the old NASD, was not without its faults. It was the soil from which pennystock hucksters grew and from which the price-fixing of NASDAQ by the market making community was nurtured. And many of the complaints that I raise about biased regulators and ineffective regulations are always raised by regulated entities and have been raised not merely for years or decades but for generations.
So, no, let's not pretend that when FINRA was the smaller NASD it was better -NASD had its faults, some of which were severe. And let's not pretend that somehow being small automatically imbues a member firm with decency and compliant behavior, it does not.
For all its warts, the old NASD, offered an alternative to the stodgy New York Stock Exchange. In the old NASD community, we had the vibrancy of NASDAQ rather than the increasingly outdated specialist system of the antiquated Floor. The old NASD community was driven by smaller firms with a vision and more oriented to the retail investor than their NYSE counterparts. Notably, the old NASD was built on District Offices and District Committees planted in regions around the country; whereas, NYSE remained a monolithic presence literally on Wall Street.
But that was then and this is now - and now, we must deal with the fact that NASD was hijacked by regulators and members not interested in offering an alternative to the New York Stock Exchange but in seeking to emulate it. In the end, the NYSE is a wasting asset that failed to adapt to the new realities of the marketplace and is in danger of becoming increasingly irrelevant. And that is what FINRA chose as its model. And that is why we are falling down the same slippery slope.
I propose that FINRA be dissolved as it is presently constituted and that we replace this unwieldy bureaucracy with three new broker-dealer self-regulatory organizations:
I submit that three autonomous SROs with their own Boards, their own staffs, their own members, and their own rules is a quick, easy, and effective first-step in fixing the broken regulatory regime on Wall Street. Overnight, we could end the age of one-size-fits-all regulation. Simply breaking up FINRA into its three constituencies would get us back to neighborhood policing and permit each of FINRA's three broker-dealer segments to create rule books tailored to their needs and the realities of their business.
Restoring trust and confidence in the fairness of our industry's regulation would likely rebuild the fractured partnership between the regulated and the regulator. It would eliminate the internecine warfare inherent in this glorified trade organization of FINRA that regulates three differently sized factions according to rules that are too often premised upon a zero-sum game. As presently structured, FINRA regulates in a manner that results in what is good for large firms is bad for small ones, and vice versa. You got round and square pegs but only round holes - and that's stripping a lot of edges off small firms when FINRA tries to pound you into one-size-fits-all regulation.
How did we arrive at our present predicament with a broken regulatory partnership and a patronizing self-regulatory organization? We stand here today trying to deal with the mess that is FINRA because of decisions made a few years ago - and five or ten years from now, we will be deeper into the muck because of decisions that FINRA makes today and that you failed to correct.
By way of example, let me turn the clock back about five years to a September 15, 2006, when NASD posted a job on its Career Opportunities website. More than anything, this posting typifies how we got into this mess. The September 2006 job opening was for a Director of the NASD's new Office of Member Relations. What I want you to focus on is the nature of the job duties. So as to not be accused of making up some of the tortured language in that notice, let me quote directly from the job posting :
Major Purpose of Job:The Director, Member Relations, assists the Vice President of Member Relations with all aspects of the department's operations. . .
As with all bureaucracies, we start off with the simple premise that the more titles there are in a department, the more important the department sounds. So in the heady days of 2006, NASD was advertising for a Director of Member Relations whose job involved assisting NASD's Vice President of Member Relations. And we all know how this cascades out of control. The Director soon needs a Deputy Director, and that leads to an Assistant Deputy Director, who needs a Deputy Assistant Director, and, of course, once you get to that point, you absolutely must hire an Assistant Director to the Deputy Assistant Director. Of course, when you call any of these folks you get voicemail telling you to press 1 to continue in English.
Further on in the job posting, NASD explains that among the operations that this new Director of Member Relations will perform is to:
facilitate effective feedback loops between member firms and NASD departments to affect positive change. . .
God Bless Washington, DC and all the bureaucracies and little bureaucrats it has spawned. When I see prose such as "facilitate effective feedback loops," I immediately know what's going on. Someone is desperate to make a simple task sound very important and complicated.
For godsakes, who the hell talks like that? Certainly no one who has run a small broker-dealer on a daily basis speaks like that. Feedback loops - fruit loops, what's the difference and why are we even hiring someone at your expense to perform such a job? Speaking of performing that job, here's another nugget from that 2006 NASD Job Posting:
Essential Job Functions:The Director serves as ambassador to member firms. . .
An ambassador? Okay, so even five years ago our self regulator grudgingly admitted that it viewed its members as foreign entities - not really partners in self-regulation. Of course, I thought that in diplomatic relations, countries exchanged Ambassadors. Where is the ambassador from the small firm community in all of this? And there's more. The NASD Job Notice stated that among the tasks for this new job would be:
* Key message development, including identification of key themes to deliver as well as general talking points for NASD senior management . . .
How nice. This newfangled ambassador would be hired to also focus on identifying "key themes" to deliver. I'm not exactly sure where they were proposing to deliver these key themes but, hey, I'm cranky to begin with. Look, we all know why NASD wanted to hire this Director and why FINRA continues to fill such silly positions. They wanted this Director to be the NASD's snowblower. And the snow job is to give you in the small firm community the touchy-feely impression that someone's listening, someone cares, and someone is working behind the scenes to implement changes in your favor. Yeah, right.
FINRA still doesn't get it. We in the small firm community are not children or idiots. We can see through FINRA's spin and doubletalk. Not only did NASD publish this nonsense of a job opening - for all to read - but they clearly didn't realize or care how insulting it was. I mean, seriously, is senior management at our industry's self-regulator so out of touch with the members it regulates that NASD needed to hire someone to generate "general talking points for NASD senior management?" Senior executives at NASD and now FINRA can't figure out what's appropriate to discuss when addressing industry groups? Hey, anyone ever hear of old-fashioned sincerity? Finally, there's this nonsense:
Other Responsibilities:The Director is also responsible for:* Preparing, reviewing, monitoring, and providing guidance on written communications to members, including messaging priorities, tone, and delivery mechanism.* Oversight of tone and messaging delivered at standing and district committee meetings. . .
Did NASD really need to hire an executive to worry about messaging priorities, tone, and delivery mechanism? Worse, the Director will also have "oversight of tone and messaging delivered at standing and district committee meetings. . ." Funny, I just can't find any reference to developing "sincere content" or to timely responding to complaints from the industry. I also note that despite this job being for the Director of a member relations department, there is nary a word about delivering messages from the industry to NASD. Frankly, that was the legacy and remains the inheritance of FINRA. Why does that matter? Because past is prologue, and this bureaucratic mind-set is what has brought us to the brink of disaster in 2011 and, if not reversed, will take us over the edge. If you're going to get rid of the weeds on your lawn, you have to pull them out by the roots.
Lest I be accused of unfairly singling out FINRA, let me also shine a dim light on the Securities and Exchange Commission, which recently posted on its website a very impressive document titled:
Report on the Implementation of SEC Organizational Reform Recommendations / As Required by Section 967 of the Dodd-Frank Wall Street Reform and Consumer Protection Act
I was planning on waiting for the DVD release of the Report but figured that I would plow through the 25-page document. For starters, literally, we are informed in the preamble of the Report that:
The Dodd-Frank Act directed the U.S. Securities and Exchange Commission (SEC) to engage an independent consultant to conduct a broad and independent assessment of the SEC's internal operations, structure, funding, and the agency's relationship with Self-Regulating Organizations (SROs).
Ah, yes - yet another supposedly broad and purportedly independent review of yet another inefficient and overblown federal agency. As with so many of these high fallutin' government consulting projects, this one will cost taxpayers a bundle and result in little more than a batch of unworkable recommendations (most of which will likely never be implemented). Okay, sure, call me a cynic - it's a badge that I proudly wear.
The bureaucratic doublespeak and tortured English in the Report are truly impressive. In terms of make-work and giving the impression of accomplishment, this effort truly warrants a standing ovation. For starters, consider these lovely bits that are in the document's Executive Summary:
Issued in March 2011, the consultant's study provided 16 optimization initiative recommendations designed to increase the SEC's efficiency and effectiveness.
Aren't you thrilled to learn that our tax dollars have already purchased "16 optimization initiative recommendations." An optimization initiative recommendation? What does that even mean - really? Did the folks at NASD or FINRA lend one of their copywriters to the SEC or its independent consultant? Since the issuance of the March 2011 Boston Consulting Group's study, the Report informs us that:
In the six months since the study was issued, the SEC has developed the necessary program management and oversight infrastructure to address the next step in the agency's on-going multi-year change initiative: conducting a thorough analysis of each recommendation and designing appropriate approaches for those recommendations selected for implementation.
And y'all wonder why the regulation of Wall Street seems clueless and impotent? I'm absolutely thrilled to learn that it took the SEC only six months to develop the "necessary program management and oversight infrastructure." Program management and oversightinfrastructure? I sort of understand infrastructure as taking the form of a bridge, a tunnel - something made with concrete and steel. How does that all get transformed into some managerial and oversight function? Did we at least get a highway overpass to the new managerial and oversight function? Can we directly drive from the SEC to FINRA?
Hey, be thankful, it only took six months to develop that necessary program infrastructure thingamagig. Now what - a bridge to nowhere? Amazingly, the SEC apparently anticipated my sarcasm because it preemptively noted in the Report:
Over the next six months, significant work will have been done within each workstream to analyze the Boston Consulting Group's (BCG) recommendations and recommend what, if any, actions should be taken.
You like that "workstream" thing? Maybe the SEC will get caught up its workstream with a paddle? Okay, that seems reasonable. Lemme see if I got this.
First, ya got yer six months to develop the infrastructure whatchamacallit.
Second, ya got another six months to analyze the consultant's recommendations before you actually do anything with that infrastructure that's now rusting away.
Then, whew, lemme catch my breath here - then, after that year of heavy-duty developing and analyzing, the SEC will probably get around to recommending "what, if any, actions should be taken."
Six months here. Six months there. Why at this rate we could easily waste an entire year just ruminatin' rather than doing something about anything. Of course, that is what passes for government these days, right? And that's also what passes for regulation. Finally, what does the SEC propose to to with the second six months of post-infrastructuring analysis? Well, here it is from the horse's, umm, mouth. The SEC is apparently prepared to:
[D]evelop implementation options, then create a time-phased, multi-year implementation plan that accounts for constraints in the agency budget, management time, and agency priorities. The agency will focus on assessing the schedule, costs, and management bandwidth required for each initiative; identifying cross-work-stream integration points; and developing a detailed prioritization and implementation plan that sequences the various implementation activities.
Implementation options? Time-phased, multi-year implementation plan? Management bandwidth? Cross-work-stream integration points? Did some comic write that or does the SEC truly believe that such gobbledygook passes for intelligible English? How about we just stop here. Enough is enough. Hopefully, you get my point. Business as usual can't continue. Not at FINRA. Not at the SEC. And frankly, not here, at NAIBD.
In concluding my remarks this afternoon, I look around and wonder why I'm here. I don't like FINRA. I don't like the SEC. I don't like NAIBD. I've long been disappointed with NAIBD's failure to do what was necessary to advance a credible small-firm trade group among the old NASD and now FINRA community. Frankly, I'm a dyspeptic curmudgeon when it comes to the failed regulation of Wall Street.
In the mid-1990s, I was one of the founders of the old NASD Dissident Movement, which became the old FINRA Dissident Movement. Since the onset of the Great Recession, the NASD/FINRA Dissident Movements have turned into the We Don't Care About FINRA Because We're All Going Broke and Out of Business Anarchist Movement.
My relationship with NAIBD goes back to when this organization was known as the California Association of Independent Broker Dealers. I first came into contact with CAIBD when various dissident and reform factions joined forces in 1998 to run the first slate of contested candidates in the history of the NASD's Board. Within a few weeks, from concept to realization, we managed to patch together a slate of four candidates. Although I was one of the two losing candidates, we did manage to elect two of our four nominees that year, and set the stage for future successful efforts at the national and local levels.
After we all scored that first historic contested NASD election victory, the small firm coalition collapsed. In the 1990s, I believed that the small firm community needed to challenge NASD's Board nominees in order to retain control over the character of the self-regulatory organization. Even way back in the mid-90s, I saw signs that NASD was trying to refashion itself into an SRO by, for, and of member firms that were vying to become financial superstores
If you travel around this country, you become struck by the sad fact that every major American city is beginning to look alike. The regional charm and character is vanishing. Go to any major US city and the landscape is eerily and sadly similar: Barnes And Noble, Staples, Best Buy, Citibank, Sephora, Starbucks, Walmart, Costco, Whole Foods. And what have those big box stores and national retailers replaced? Smaller, family owned businesses. And what have those chains left in their wakes? Devastated downtown shopping districts, lousy customer service, and a lost sense of community.
Once the local yokels were driven out of business by cutthroat predatory pricing, those discounts quickly vanished. And by the time everyone began to ask questions and understand the trade-offs that were made, well, by then, it was just too late. Consequently, it should come as no surprise to you that I have long been a staunch advocate of smaller, indie and regional NASD and now FINRA member firms. Google my name and you'll see some two decades of small firm advocacy.
Unfortunately, I was a lone voice in the wilderness. NASD died and was supplanted by an even worse behemoth: FINRA. Clearly, as of today, the battle to retain FINRA's mission as one informed by the small firm majority of its membership has been lost. Today, FINRA is little more than another Washington, DC-centric organization that believes bigger is better and that is engaged in socially engineering smaller member firms out of business.
It's not that FINRA is populated with evil career regulators. That is a comic book dumbing-down of reality. The problem is that FINRA is little more than a glorified trade group dedicated to servicing the needs of member firms with hundreds and thousands of registered persons - which would be wonderful, but for the fact that the overwhelming majority of FINRA's member firms are 100 and fewer registered persons. Consequently, the problem with FINRA is FINRA's mission and FINRA's agenda.
To be blunt, for too many years, I and others in the small firm community had looked to NAIBD as a possible ally, as a possible advocate for small firm issues. Instead, for many of us outside of your organization, we have come to distrust NAIBD as little more than NASD's and more recently FINRA's proxy - unwitting or otherwise. Worse, for those of us in 2006 and 2007 who fought against the merger of the NYSE and NASD into FINRA, NAIBD was an adversary and a vocal opponent. Many of us in the dissident and reform movement have never forgiven NAIBD for its pivotal role in creating FINRA.
As a result of the failure to maintain an effective small firm coalition, I believe, in part, that we paved the way for the disastrous state of affairs now confronting FINRA's small firm community. Over the years, not only have FINRA's smaller firms lost their influence in the SRO's affairs, but you have been marginalized to the point where it is almost impossible to regain your due and fair representation. Moreover, the leadership of the small firm community is now in the hands of individuals who seem only interested in creating a cult of personality - theirs; and if they can't secure the adulation and worship that they seek, they are intent on pulling everything down among us.
As with the American political scene today, the cost of disenfranchising or alienating segments of the electorate is that you cultivate radicalism. Lost in the world of extremists is the middle ground and common cause.
As such, my presence here today is a testament to my desire to give it one last shot at prompting, provoking, and motivating NAIBD to fashion itself into a credible trade organization that will professionally advocate the needs of FINRA's small firm community. No, I'm not asking you folks to grab pitchforks and torches and take to the streets, nor am I asking you to occupy Wall Street or dress up in silly revolutionary era costumes. What I am asking is that you stand for something, that you espouse principles that you will abide by, and that you not only force your small firm members to take their medicine when it's necessary but you also recognize that standing up to FINRA or the SEC may at times be your proper role. I'm not advocating trench warfare but, at the same time, I'm not advocating that you retreat in response to every charge from FINRA or the SEC. If you don't stand for anything then you stand for nothing.
Ladies and gentlemen, our industry and the small firm community are in disarray. The times call for honest leadership with a sincere agenda to reform Wall Street's regulatory scheme. I call upon NAIBD to assume that leadership role and to take on the difficult task of setting the reform agenda. Please, I beg you, rise to the occasion.