How Much is the SEC's Cox to Blame?

John McCain didn't parse any words last week when he called for the firing of Securities and Exchange Commission (SEC) chairman Christopher Cox. The Republican nominee's choice of words may have been more direct than others — and more misguided, since the president can't technically fire the SEC head — but McCain's sentiment was nothing new. For months, calls for the SEC to do something more in the financial markets has been heard all over, from Congress, a midtown Manhattan law firm, the Secretary of the Commonwealth of Massachusetts, cable TV business news and former SEC commissioners. But is all the criticism being hurled at Cox, a corporate lawyer who served in the Reagan White House and as a Congressman from Orange Co., Calif. for 17 years before being plucked to run the SEC in 2005, justified?

Cox has been painted as something of a regulator missing in action — he's still explaining why he wasn't on particular conference calls during the Bear Stearns meltdown in March. (He told the Wall Street Journal he missed one call because the time changed, and he was involved in other calls throughout the weekend.) When he appears alongside Federal Reserve chairman Ben Bernanke and Treasury secretary Hank Paulson at press events he can seem dwarfed in stature, the representative of an agency with its roots not in sweeping monetary policy but in humble consumer protection. Created by Congress in 1934, at the height of the Great Depression, the SEC is charged with making sure that public companies accurately disclose their financials and business risks to investors, and ensuring that brokers who trade securities for clients keep investors' interests first.

In the pro-deregulation ethos that dominated Washington over past two decades, there was little appetite for adding powers to an agency like the SEC: In 1998, when the Commodity Futures Trading Commission proposed regulating the burgeoning derivatives market, the banking lobby, with some help from hedge funds and investment banks, quickly thwarted the measure. And Cox's predecessor at the SEC, William Donaldson, encountered stiff opposition when he tried to push more pro-shareholder measures and subject hedge funds to more oversight. When a court struck down Donaldson's hedge fund registration rule, Cox announced that the SEC would not seek to appeal the ruling — he took the same no-appeal tact when a court shot down an SEC effort to make mutual funds appoint independent chairman. On the other hand, certain types of enforcement — like cases against companies that backdated stock options — have flourished under Cox. And now he's a loud supporter of regulating the $58 trillion credit default swap market that helps companies insure against defaults on their debt — but also links financial institutions together in dangerously opaque ways.

Much has been made of the SEC's failure to spot trouble brewing at the investment banks that fell under its purview. An SEC rule change in 2004 — which didn't generate a lot of attention at the time and passed before Cox came along — let the five largest investment banks significantly raise the amount of money they could borrow. In retrospect, the new ratio — $40 dollars borrowed for each dollar of capital to back it up — was precariously high, considering smaller broker-dealers were capped at a ratio of $12 borrowed for each dollar of capital.

Should Cox have prioritized building an early warning system to detect the risk that was slowly and steadily building at these companies? Perhaps. But that wouldn't exactly be a job the SEC is built for. "I'm not sure the SEC had the manpower or internal expertise to quickly ramp up to being able to spot highly sophisticated risk that, as far as we can tell, no one was good at spotting," says Donald Langevoort, a law professor at Georgetown University and former SEC staffer.

Since earlier this year, Cox has also come under fire for not acting more quickly to curb short sellers — investors who borrow shares and make money when a stock's price drops. After certain financial stocks started diving over the summer, and market players and attorneys began ringing alarm bells about rumor-mongering, the SEC temporarily banned a particularly aggressive form of short selling in 19 financial stocks. A new ban, which prohibits all types of short selling for some 800 financial stocks, went into effect on Sept. 19 and lasts until Oct. 2.

But simply responding to calls to stop the slide in certain stocks — Morgan Stanley CEO John Mack put in a personal call to the SEC — isn't necessarily the best policy. Short sellers, as anyone in finance will tell you, often provide very useful early signals about the weakest players in the market. And there is little rigorous data on whether bans on short selling broadly, or specific modifications to how it's conducted (like whether a stock must tick up before a short can go in), truly reduce volatility in markets. Little wonder that many market observers, including former Federal Reserve chairman Alan Greenspan, have already come out against the temporary short selling ban.

There are, for sure, legitimate criticisms of the SEC under Cox. The agency, by most accounts, could have taken a more active role in going after firms that misleadingly sold long-term auction-rate securities as cash-like investments, as the Secretary of the Commonwealth of Massachusetts, who filed complaints against a number of companies, has suggested. In April, when the Treasury Department put out a blueprint for reforming financial markets, which included a possible abolition of the SEC, Cox probably didn't bolster his staff's spirits by not immediately standing up for his agency's autonomy.

But is Cox the one person, above all others, to spend time pointing fingers at? "I don't think the commission has done as strong a job as it should have, but it wasn't asleep at the wheel," says Joel Seligman, president of the University of Rochester and an SEC historian. "To suggest that Christopher Cox is responsible for what has happened is to trivialize some very serious economic forces."

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