Since Kara Stein became a commissioner on the SEC, we’ve heard a lot about the agency’s waiver policy. Basically, if a financial institution commits a crime, the SEC has a series of automatic penalties that are “automatic” in name only, because the agency routinely waives the penalties. Stein’s outcry at this turn of events always makes people like Matt Levine, in his usual role of intentionally missing the point, completely befuddled, because the punishments wouldn’t fit the crimes, and banks would lose access to entire lines of business for some unrelated transgression, and that just wouldn’t be fair, now would it?
The point, of course, is that automatic penalties are either automatic or not. If the punishment of banning institutions from managing mutual funds or working with private companies to find investors, or forcing SEC approval for any stocks or bonds that the firm issues on its own behalf, is simply too harsh as a consequence of committing a crime, then the SEC can go ahead and eliminate the automatic trigger. But having them in place, and then routinely waiving them, makes a mockery of any sort of accountability whatsoever. I personally believe that having these penalties in place are a solid way to ensure compliance across business lines, with the only threat that matters – a threat to the pocketbook – in reserve. If it would be too costly for banks to break the law, well maybe they’ll be a little more careful. But I would rather just eliminate the penalties altogether than have the SEC bow and scrape to ensure that committing fraud doesn’t lead to anything bad happening to the perpetrator.