Financial Cryptography

SEC bans illegal activity then permits it...

Whoops:

SEC Spares Market Makers From `Naked-Short' Sales Ban

July 18 (Bloomberg) -- The U.S. Securities and Exchange Commission exempted market makers in stocks from the emergency rule aimed at preventing manipulation in shares of Fannie Mae, Freddie Mac and 17 Wall Street firms.

The SEC granted relief for equity and option traders responsible for pairing off orders from a rule that seeks to bar the use of abusive tactics when betting on a drop in share prices. Exchange officials said limits on ``naked-short'' sales would inhibit the flow of transactions and raise costs for investors.

``The purpose of this accommodation is to permit market makers to facilitate customer orders in a fast-moving market,'' the SEC said in the amendment.

A reader writes: "that lasted what, 12 hours ?" I don't know, but it certainly clashes with the dramatic news of earlier in the week from the SEC, as the Economist reports:

Desperate to prevent more collapses, the main stockmarket regulator has slapped a ban for up to one month on “naked shorting” of the shares of 17 investment banks, and of Fannie Mae and Freddie Mac, the two mortgage giants. Some argue that such trades, in which investors sell shares they do not yet possess, make it easier to manipulate prices. The SEC has also reportedly issued over 50 subpoenas to banks and hedge funds as part of its investigation into possibly abusive trading of shares of Bear Stearns and Lehman Brothers.

Naked selling is technically illegal but unenforceable. The fact that it is illegal is a natural extension of contract laws: you can't sell something you haven't got; the reason it is technically easy is that the markets work on delayed settlement. That is, all orders to sell are technically short sales, as all sales are agreed before you turn up with the shares,. Hence, all orders are based on trust, and if your broker trusts you then you can do it, and do it for as long as your broker trusts you.

"Short selling" as manipulation, as opposed to all selling, works like this: imagine I'm a trusted big player. I get together with a bunch of mates, and agree, next Wednesday, we'll drive the market in Microsoft down. We conspire to each put in a random order for selling large lumps of shares in the morning, followed by lots of buy orders in the afternoon. As long as we buy in the afternoon what we sold in the morning, we're fine.

On the morning of the nefarious deed, buyers at the top price are absorbed, then the next lower price, then the next ... and so the price trickles lower. Because we are big, our combined sell orders send signals through the market to say "sell, sell, sell" and others follow suit. Then, at the pre-arranged time, we start buying. By now however the price has moved down. So we sold at a high price and bought back at a lower price. We buy until we've collected the same number we sold in the morning, and hence our end-of-day settlement is zero. Profit is ours, crack open the gin!

This trick works because (a) we are big enough to buy/sell large lumps of shares, and (b) settlement is delayed as long as we can convince the brokers, so (c) we don't actually need the shares, just the broker's trust. Generally on a good day, no more than 1% of a company's shares move, so we need something of that size. I'd need to be very big to do that with the biggest fish, but obviously there are some sharks around:

The S&P500 companies with the biggest rises in short positions relative to their free floats in recent weeks include Sears, a retailer, and General Motors, a carmaker.

Those driven by morality and striven with angst will be quick to spot that (a) this is only available to *some* customers, (b) is therefore discriminatory, (c) that it is pure and simple manipulation, and (d) something must be done!

Noting that service of short-selling only works when the insiders let outsiders play that game, the simple-minded will propose that banning the insiders from letting it happen will do the trick nicely. But, this is easier said than done: selling without shares is how the system works, at its core, so letting the insiders do it is essential. From there, it is no distance at all to see that insiders providing short sales as a service to clients is ... not controllable, because fundamentally all activities are provided to a client some time, some way. Any rule will be bypassed *and* it will be bypassed for those clients who can pay more. In the end, any rule probably makes the situation worse than better, because it embeds the discrimination in favour of the big sharks, in contrast to ones regulatory aim of slapping them down.

Rules making things worse could well be the stable situation in the USA, and possibly other countries. The root of the problem with the USA is historical: Congress makes the laws, and made most of the foundational laws for stock trading in the aftermath of the crash of 1929. Then, during the Great Depression, Congress didn't have much of a clue as to why the panic happened, and indeed nobody else knew much of what was going on either, but they thought that the SEC should be created to make sure it didn't happen again.

Later on, many economists established their fame in studying the Great Depression (for example, Keynes and Friedman). However, whether any parliament in the world can absorb that wisdom remains questionable: Why should they? Lawmakers are generally lawyers,and are neither traders nor economists, so they rely on expert testimony. And, there is no shortage of experts to tell the select committees how to preserve the benefits of the markets for their people.

Which puts the lie to a claim I made repeatedly over the last week: haven't we figured out how to do safe and secure financial markets by now? Some of us have, but the problem with making laws relying on that wisdom is that the lawmakers have to sort out those who profit by it from those who know how to make it safe. That's practically impossible when the self-interested trader can outspend the economist or the financial cryptographer 1000 to 1.

And, exactly the same logic leads to the wide-spread observation that the regulators are eventually subverted to act on behalf of the largest and richest players:

The SEC’s moves deserve scrutiny. Investment banks must have a dizzying influence over the regulator to win special protection from short-selling, particularly as they act as prime brokers for almost all short-sellers...

The SEC’s initiatives are asymmetric. It has not investigated whether bullish investors and executives talked bank share prices up in the good times. Application is also inconsistent. ... Like the Treasury and the Federal Reserve, the SEC is improvising in order to try to protect banks. But when the dust settles, the incoherence of taking a wild swing may become clear for all to see.

When the sheepdog is owned by the wolves, the shepherd will soon be out of business. Unlike the market for sheep, the shareholder cannot pick up his trusty rifle to equalise the odds. Instead, he is offered a bewildering array of new sheepdogs, each of which appear to surprise the wolves for a day or so with new fashionable colours, sizes and gaits. As long as the shareholder does not seek a seat at the table, does not assert primacy over the canines, and does not defend property rights over the rustlers from the next valley, he is no more than tomorrow's mutton, reared today.

Posted by iang at July 20, 2008 08:01 PM | TrackBack