“the SEC made Madoff”
Bill Harts, a friend of mine who has, as they say, forgotten more about electronic trading and market structure than most will ever be burdened by, has recently taken an interest in the public letters written to the SEC in response to their requests for public comments on dark pools. Mostly, these letters are funny and reveal people’s propensity to point shoot and aim in that untidy order.
But some are revealing and one in particular is 100% required reading for anyone interested in electronic markets.
The writer introduces himself thusly:
I am Steve Wunsch, the principal inventor of two SEC‐regulated stock exchanges, the Arizona Stock Exchange “AZX” (originally called Wunsch Auction Systems, Inc. “WASI”) and the ISE Stock Exchange, both of which include dark pools. In fact, both of them, like all modern stock exchanges, have both lit and dark components and, thus, have provided me with potentially useful perspective on the dark pool question and on transparency in general. I will focus heavily on the latter, for it is impossible to understand the dark pool issues raised without understanding the value of transparency or, if improperly applied, the lack thereof. The AZX experience was, I believe, particularly instructive in this regard. Its highly transparent call market structure, combined with its unique regulatory status as a “low volume exempt”exchange, enabled me to see transparency and the role of regulation in promoting it from a perspective that I don’t believe anyone else has.
He deftly mixes snark and a historical perspective on regulation with an opinionated and informed view on the forces driving current equity markets’ microstructure arguing that the worst issues are due to regulatory failures. He concludes, logically enough, that the SEC should be disbanded. Perhaps his most inflammatory bit is his claim that the “SEC made Madoff.” For effect, the section is entitled “An American Oligarchy”:
AN AMERICAN OLIGARCHY
It is not in the Commission’s interest to admit failures of policy, such as the ones I have described in this letter, and I have never seen it done. It was not in the Commission’s interest to admit that Bernie Madoff was the SEC’s most trusted and intimate confidante in formulating and selling transparency, electronic trading and
the whole NMS concept to Wall Street, the public and Congress. His legitimate business was the epitome of the kind of transparent electronic competition that NMS’s leveling policies were trying to create, and he occupied the most favored place of all industry advisors on policy and rules as NMS was being created. In a very real and literal sense, Madoff’s legitimate business and NMS were made for each other. NMS cleared a path for the application of continuous transparency by new electronic competitors, very visibly led by Madoff, enabling him to become at one time the third largest market in the United States, even though he wasn’t officially registered as anything but a broker‐dealer.
Had the SEC not emasculated the rules by which the NYSE controlled its members, Madoff would never have happened. In the time before NMS, when the exchange had Rule 390 or the stronger Rule 394 before it, diverting orders away from the floor or selling them to Madoff would have been banned. But on antitrust principles, the SEC wanted to foster NYSE‐busting competition in NMS, and Madoff became its PosterBoy for such competition. In order to make way for him, the SEC opened up a variety of loopholes that allowed orders to be diverted from NYSE to Madoff and printed on regionals like Cincinnati. Rules 19c‐1, 19c‐2 and 19c‐3 were in this vein. There were perennial attempts by the NYSE to plug the loopholes and rein in the membership, but the SEC batted them all away, enabling Madoff to continually grow his business. Eventually, the NMS environment forced the NYSE to abandon Rule 394, then Rule 390 and ultimately its membership organization altogether when it demutualized. This was all very good for Madoff. And Madoff was very good for NMS, giving it industry cred far in excess of what this poorly articulated socialist leveling theory could have had without his support.
In spite of a 457‐page SEC investigation into Madoff and how his Ponzi scheme was missed, the most obvious reasons were not considered, namely, that Madoff played a central role in helping the Commission design and sell NMS, and that NMS made him rich long before the Ponzi scheme. Most importantly, the credibility that theCommission’s collaboration with Madoff on NMS conferred on him was the principal factor enabling him to bring in money for the Ponzi scheme. Although the investigation’s report notes his credibility in the industry, it is mentioned as if itwere just a fact of life and was already there. Not mentioned is that his superior access to the SEC and apparent influence over the Commission, both of which were implicitly proved by his ability to get rich on NMS, are the most important reasons that he had such extraordinary credibility in the industry. The truth is that the SEC made Madoff. He could not have existed as a threat to investors without the Commission’s active and dedicated support over several decades.
Although, in typical blogger fashion, I’ve highlighted his spiciest claim, the rest of the letter is more technical and informative while just as entertaining. I encourage you to read it and then engage in a thought experiment in which You are the designer of an electronic exchange and must balance the needs of a very heterogeneous set of users and stakeholders while ensuring transparency, liquidity, profitability, “fairness”, performance (he references an exchange targeting 100M executions per second) and utterly fail-safe transactional integrity…
I have embedded the full letter below the break…