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Ex-Regulator Says Lincoln’s Derivatives Bill Not Perfect, but Is ‘Superior’ to Others

Michael Greenberger had to have felt the slightest tinge of vindication last weekend, when former President Bill Clinton admitted he'd been wrong about derivatives when he was in office. 

Greenberger, then a regulator at the Commodity Futures Trading Commission, worked under the leadership of CFTC Chairman Brooksley Born, who's now on the Financial Crisis Inquiry Commission. Together they pressed for regulation of derivatives, and faced some pretty stiff resistance.

"We were advocating regulation of these products back then, and Summers, Rubin, and Greenspan all opposed it," Greenberger told me.

Instead, Clinton went with the advice of Treasury Secretaries Robert Rubin and Larry Summers, and in retrospect, he told ABC's "This Week," felt the decision was a mistake.

"I think they were wrong and I think I was wrong to take" their advice, Clinton said in the Sunday broadcast. "The argument on derivatives was that these things are expensive and sophisticated and only a handful of investors will buy them, and they don't need any extra protection and any extra transparency."

Now one decade and one global financial crisis later, Congress has a reform bill, sponsored by Sen. Blanche Lincoln, D-Ark., and passed by a committee earlier this week, that Greenberger calls "a high water mark" in effective regulation of the derivatives market -- "the market that led us into this maelstrom that we're in."

In a phone interview yesterday, Greenberger told me that the bill, while imperfect, "is a superior piece of legislation." Regulators would have the power to eliminate transactions that are pure financial gambling.

Lincoln's bill has two key provisions. First, according to Greenberger, it brings an estimated 90 percent of the market for derivatives, which are essentially bets on the future price of something, onto a regulated trading exchange -- similar to a stock exchange, where price and volume data are publicly available to potential investors. It leaves certain exceptions for foreign exchange deals and commercial use (such as an airline company's use of derivatives to hedge against prices of fuel skyrocketing). Currently derivatives are traded over the counter, often between private entities, and the transactions are largely unregulated.

The legislation also creates a central clearinghouse for trading. One type of derivative, a credit default swap, functions in a way that's similar to insurance, with one party acting as an insurer and another acting as the insured. The clearinghouse would require the "insurer" party in a swap to post capital up front, to prevent companies such as AIG from taking on too many "insurance policies" without the capital to pay up when they end up on the wrong side of the bet. (Matt Yglesias has further explanation of how the central clearinghouse would work, and Mike Konczal has an explanation of the difference between a clearinghouse and a exchange -- complicated stuff.)

A security guard tries to stop a photographer taking pictures of the offices of Goldman Sachs in London (Leon Neal/AFP/Getty Images)But to apply this to some real-life situations, take the bets (or credit default swaps) made by the hedge fund Paulson & Co., which bet against -- and made $1 billion from -- the failed Goldman Sachs CDO that is now the subject of a SEC lawsuit. Greenberger says that under Lincoln's legislation, Paulson's bet against the Goldman CDO wouldn't have been allowed to trade on an open exchange.

"Goldman, Paulson and ACA, all that was was gambling," he said. "Whether the SEC is right or wrong on fraud, why are we doing this stuff? Does it create jobs ? Better medical care? There's no economic purpose to it except for Goldman racking up transaction feeds, and one of two sides winning the bet. And for the side that loses and doesn't have the money to pay up, the American taxpayer became the banker."

In the very least, said Greenberger, exchange trading would subject derivatives to greater transparency by providing more information on price and volume, which could better inform investors about these products that are currently being traded in the dark. It also imposes standards of business conduct that he said "will be something akin to fiduciary obligations to your customers."

What the proposal doesn't do -- and he pointed to a New York Times op-ed that says the same -- is ban the creation of speculative or abusive swaps altogether. It merely limits regulators to identifying abusive swaps and and reporting them to Congress.

"So they report it to Congress and then what?" I asked.

"Well exactly," Greenberger said. "You know what happens when something goes to Congress. It's a weak remedy ... It may be hard to enforce."

But, he added, "probably in this political environment, it's the best we're going to get."

Not everyone is happy with the bill. It passed in the Senate Agriculture Committee this week with all the committee's Democrats voting in favor, and all but one Republican voting against. Sen. Mike Johanns, a Nebraska Republican, voiced that the bill "goes too far" and could "increase the cost of credit to farmers, rural electric associations and other rural borrowers."

Readers might be interested in viewing (or reading) the House Financial Services testimony by Bill Black
http://fdlaction.firedoglake.com/2010/04/20/transcript-video-bill-black-testimony-on-lehman-bankruptcy/
“You asked earlier for a stern regulator.  You have one now in front of you. And we need to be blunt. You haven’t heard much bluntness in hours of testimony…..”

We now have the week end to play the “will they or wont they game”, before the members start their posturing for the benefactors. Oh, how we in this country have sunk to depths of servicing a few at the expense of the many. Health care is too expensive, so what? Wall Street loots the Public, so what? Corruption is widespread within the ranks of Government, so what? The list goes on. Remember folks, these fine members of our elite Congress, wake up each morning & look into the mirror and chant, yes Mr Special interest, what can I do to serve you today.

The Greatist country in the world, period! Naivete?  Not on your life. (OPINION) Basically, there are 4 men that were in the U.S. Government, (the apparent leader Robert Rubin, Head of the U.S. Treasury, Allan Greenspan (recently admitted, after the fact how he had been wrong about Markets taking care of themselves for over 20 years and as the head of the Federal Reserve, Larry summers (forced out of Harvard University and now a Presidential cabinet? member as the President’s Economic Advisor) and lastly, Arthur Levitt, head of the FEC, who has appologized for his part in attacking Mrs. Brooksley Born, head of the nondescript agency: Commodity Futures Trading Commission, who appeared before an Congressional Commitee to get a small amount of Regulation Authority to control the apparent, malfeasant officials, before, as her attornies had told her that, these Dirivities would bring down the U.S. Government if there was not oversite. The four perpetrators appeared at the Congressional Hearing and, apparent by the congressional members questions and the testimony of the ( 4 ) and their obvious smirks aimed at her, it was a set up to bury her and her request on the spot once and for all, which they did. The U.S. most likely would not have been facing Bankruptcy (if they had a place to go do it) and our economy would, in all likelyhood, not have had to BAIL-OUT the banks, etc. that lost as a result of their failures due to losing their BETS to make more Billions.  I DO NOT understand why the Attorney General has not had the FBI conduct a thorough Investigation of the ( 4 ) and if the evidence was developed, convene a Federal Grand Jury re: the (4) and put them away for LIFE,  prevent, if convicted, for bring ths U.S. to near falling off the cliff. That’s more consideration than they afforded Mrs. Born as she tried to fullfill her duties and save the country, jobs and suicides as a result. Repectfully,  Jack Thurston

Gentlemen:  Any accepable reason why my post (of course, approved by the moderater) dated 04/24/2010 has not been posted under the article “Ex regulator says…........... (above) ?  Respectfuly,  Jack Thurston.

I meant to mention in my previous comment above if you really want to know how this entire “Dirivities” and “Credit
Swap” fiasco with AIG,etc., WAS NOT stopped, Do yourself an eye opening favor and do the following:  WGBH, the Boston PBS station, produces a weekly program, aired nationwide on your local PBS station, named “FRONTLINE”. The October 28 edition named “THE WARNING” tells the story in all it’s sordid, conspiratorial,self-serving detail. You can watch this anytime you choose by typing in your computer’s browser, WGBH.com and when their Website page appears, look for FRONTLINE or search for it if it’s not present and than Scroll down to “THE WARNING”. Best 58 continuous minutes you have probably spent in some time. AND, if I make take a little license here, Thank You, non-partisan, PRO PUBLICA for providing the American People the in depth, inside stuff on what’s really happening in our wonderful country.  Respectfully,  Jack Thurston

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