The regulatory principles of the United States Securities and Exchange Commission were established three-quarters of a century ago and have been copied by securities regulators throughout the world.

The SEC sets forth its principles on its web site:

The mission of the U.S. Securities and Exchange Commission is to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.

The laws and rules that govern the securities industry in the United States derive from a simple and straightforward concept:

All investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it, and so long as they hold it.

To achieve this, the SEC requires public companies to disclose meaningful financial and other information to the public.

This provides a common pool of knowledge for all investors to use to judge for themselves whether to buy, sell, or hold a particular security.

Only through the steady flow of timely, comprehensive, and accurate information can people make sound investment decisions.

This high-sounding institutional promotional jive is called ‘non-merit regulation’. The SEC requires issuers to make certain information available to investors, and if investors are too stupid, uninformed, uneducated, busy, or lazy to make use of this information, the SEC washes its hands of the matter.

The SEC does not judge the merits of a security offering or give investors any clue in this respect — it is the investor’s responsibility to determine this, no matter how unqualified the investor may be for the task.

	Are investors smarter ... or dumber?

The Securities Market in 1933 and Today

There have been drastic changes in the securities market since 1993, but no significant changes in the principles of security market regulation, which have become obsolete with the passage of time.

Here is what has changed:

• Dumber Investors: The percentage of the population investing in equities has increased from less than 5% in 1933 to almost 50% today. Most investors in 1933 were businessmen, buying and selling securities directly for their own account. Today, most investors are employees, generally with only a high school education, passing off their investment decisions through a chain of multiple fiduciaries in tax-deferred savings plans funded by payroll deductions. Although there are no statistics to prove it, commonsense and a glance at the Bell Curve suggests that today’s investors, on average, are most certainly less intelligent and less able to decide on the merit of securities than were investors in 1933.

• Lawyered-Up Prospectuses: The information on which these less capable investors are supposed to make an “informed judgment” is delivered in the form of gray, dull “offering statements” and “company reports”, packed with legal boilerplate, all-encompassing disclaimers, mind-numbing warnings, SEC-approved, but misleading tables, endless footnotes, irrelevancies, and information “included by reference” (i.e., not in the prospectus, but somewhere else that the investor is unlikely to ever see). A typical prospectus would take a college graduate trained in financial analysis days to examine in detail and consider, especially when loaded with references to exotic derivatives and devoid of information that provides sufficient context regarding the issuer’s business.

• Fiduciary Confusionary: The US securities laws have little to say about fiduciary responsibility, and even less about the responsibilities of “chain-fiduciaries“. Is a corporate director responsible to the mutual funds that are the first-in-line shareholders, or to the custodians of mutual fund shares who are trustees for the 401(k) investment plans of workers, or to the plan administrators, or even to the final, eventual beneficiary, the workers who have their life savings tied up in 401(k) plans? This whole structure of “chain fiduciaries” has blossomed into a dominant force in the market since the 1970s, two generations after the SEC was formed. ERISA only requires that that fiduciaries act with the “care, skill, prudence, and diligence under the circumstances then prevailing” that a prudent person “acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” Whatever that means.

• The Rise of Collective Investments: Most US investors put their savings in collective investment vehicles, like mutual funds, closed-end funds, money market funds, variable annuities, and exchange traded funds. However, the SEC has caved in to Wall Street lobbyists and generally granted issuers exemption from providing meaningful information about funds that would be useful to an intelligent investor trying to make an informed decision. Instead, the SEC allows phony marketing numbers like “total returns” to substitute fundamental facts. Collective investment funds need not provide investor basic data about portfolios, such as weighted average price-earnings ratios, dividend yields, dividend coverage, book-to-market ratios, corporate leverage, earnings growth rates, or dividend growth rates. Indeed, in many cases issues are excused from even revealing to investors the content of their portfolios, until months after the fact, and then often “by reference” to documents filed elsewhere.

• The Rise of Mercenary Economic Quackery: In the 1930s, leading economic theory about investments was provided by actual market practitioners, like Benjamin Graham and John Burr Williams, whose observations were heavily grounded in commonsense and market experience. Today, we have Nobel laureates in “economic science” (non-existent in the 1930s), who put forth theories ‘ex cathedra” and who are often hired as consultants to Wall Street, pushing ideas such as the “Efficient Market Hypothesis”, which says that whatever the price of stocks, it is the right price, because of the “efficient market”. In the 1930s, stock market quackery was confined to certified “nut cases”, like W. D. Gann with his “Theory of Vibrations” and “Fludd’s Devine Monochord”. Today, such nonsense is cloaked in partial differential equations and unrealistic assumptions and earns their proponents Nobel prizes and contracts to help Wall Street in its marketing efforts. What chance does our less intelligent investor stand?

• Vastly More Complex Financial Instruments: Finally, we have the development of a multitude of derivatives, largely relegated to brief mention in scanty footnotes in SEC-mandated prospectuses, and barely understood by almost everyone, especially when recast and combined into bizarre new financial products. Although puts and calls existed in the 1930s, they were traded in obscure over-the-counter markets and were unlikely to find their way into portfolios of the average investor. Today, with collective investments, chain fiduciaries, and lawyered-up prospectuses, it is hard to see how the SEC can still claim (as it does on its website) that, “the SEC requires public companies to disclose meaningful financial and other information to the public.”

• Substitution of Dividends by Unrealized Capital Gains: In the 1930s, investor could count on two-thirds or more of their return on investment to come in the form of cash dividends, paid equitably to all investors pro rata. In this context, the SEC’s idea of “non-merit regulation” was at least workable, because investors were smarter, companies were simpler, and the main question an investor had to ask was, “Does this company have the financial capacity to continue paying dividends?” Today, many companies pay no dividends at all; stocks of “blue chips” trade at fifty or sixty times earnings, and the SEC doesn’t bat an eye when such “investments” are put into portfolios of widows and orphans. Prices are jacked up by corporate manipulation through stock buybacks, while the SEC grants an exemption from prison to executive miscreants with conflicted interests. Because the SEC has been sleeping at the switch for so long, the retirement of millions of Baby Boomers now depends upon their ability to sell financial assets to smaller, future generations, who may by then, perhaps, be smarter.

Is the SEC’s Regulatory Philosophy Obsolete?

	Who sells stock door-to-door today?

In the 1920s, the historical background against US securities laws were drafted, there were three major problems that legislators sought to address:

• Dishonest Door-to-door Stock Salesmen: During the 1920s, new issues were often sold door-to-door with selling arguments that were lacking in relevant information and often related to phony companies and fraudulent propositions.

• Unprofessional Stock Exchanges: Even serious, informed Investors, Like Benjamin Graham, dealing on the major stock exchanges, complained of the lack of data on listed companies and rampant stock manipulation.

• Bankers’ Improper Involvement in the Stock Market: Misuse of margin accounts and banker’s use of depositors’ money to buy stocks, contributed to the crash of 1929 and hundreds of bank failures.

The new federal securities laws of the 1930s did much to effectively clean up these problems. By requiring that securities salesmen and stock brokers be licensed and regulated by the SEC, and by mandating the use of selling prospectuses, blatant fraud in door-to-door selling was cut drastically. Regulation of the stock exchanges and continuous disclosure requirements for issuers, improved the quality of exchange business. Finally, the separation of banking from the investment business eliminated a major cause of bad practices in financial markets.

But that was then. What about today?

New Markets; New Problems, Old Laws

Today, the average investor doesn’t buy stocks from door-to-door salesmen, or even by going downtown to visit a brokerage office. Rather, investors are likely to buy stocks indirectly, through mutual funds, often offered by the personnel departments in the companies at which they work (401k plans), or by phoning in orders in response to magazine ads touting mutual fund “total returns” with “star ratings”.

	Things have changed since the SEC was young ...

The SEC has gotten into bed with fund marketers, allowing them to promote funds based on misleading “SEC total return” figures and granting exemption from requirement to include fundamental information from fund selling documents (which are, in many cases, not seen by investors anyway).

The funds are in custody with big name banks , audited by famous public accountants, registered with the SEC (’the investor’s watchdog’), and packaged with slick, ‘official’ documentation, with frequent mention of laws and seriousness of purpose, all designed to inspire confidence.

To boost prices of equities and produce rosy “total returns” figures for fund marketeers, the SEC grants company executives exemption from stock manipulation rules, allowing them to divert investor’s dividends and jack up equity prices to give value to their own stock options.

The SEC and the Federal Reserve have also kow-towed to banks, allowing them back into the securities business — with a vengeance. Some of the largest banks now have much of their capital and depositor’s money, invested in speculative proprietary trading portfolios of over-the-counter derivatives.

The typical investor (say, a holder of mutual funds through a company 401k plan) has several problems:

1. No effective way to influence corporate executives who are paying themselves obscene salaries and other forms of remuneration with stockholder’s money, due to poorly regulated “chain-fiduciaries” that effective separate highly-diversified beneficial ownership from the hired managers who have administrative control over public corporate assets.
2. No effective knowledge of even what stocks are beneficially owned, due to drastic relaxation of fund disclosure requirements by the SEC and diversification to a point that it would be uneconomical to focus on a single company, even if the investor had the intelligence and talent to do so.
3. No effective advice as to the appropriateness of a certain investment for the investor’s needs, from any of the fiduciaries in the chain that handles the investor’s money: the plan administrator, the bank custodian, the fund directors, the fund managers, to company directors, or the company executives. The investor doesn’t have the skill, information, or intelligence to do this himself, and the SEC, quite frankly, my dear, doesn’t give a damn!

Because there are tens of millions of American investors in this position, holding retirement funds composed of diversified portfolios of over-priced equities, dependent upon hoped-for future capital gains to be realized when selling into a market ten or fifteen years from now, just as the “Baby Boomer retirement effect” reaches a peak, this is a problem with large social implications.

However, so far, neither political party seems to be exercised about this and the investors themselves won’t know they are in trouble until they try to cash in their retirement funds at the same time.

Will Things Get Better For Investors?

Don’t expect Congress to reform US security laws any time soon. The SEC philosophy of “non-merit regulation” is enshrined in security legislation throughout the world, thanks largely to IOSCO and consulting services provided to third world countries without charge by USAID, the World Bank, the Asian Development Bank and similar grantors of economic aid.

The entrenched interests of securities regulators, lawyers, accountants, and market participants in the existing system are simply too great to allow change without strenuous opposition.

In fact, in the United States, there is even a movement to close operations of state securities regulators, leaving the SEC supreme — the one and only “defender of the small investor”.

So what does this have to do with Capital Flow Analysis?

What I think it means is this:

• About the only potential “defenders” of the interests of the collective investor that now dominates the US market are — I hate to say — mercenary tort lawyers seeking class action damages from breach of fiduciary duty on the part of corporate executives, fund managers, and the multiple fiduciaries in the chain from the 401(k) or IRA plan holder to the issuer.

• It will take a market crash as Baby Boomers start liquidating in ernest, some years from now, before Congress wakes up — if then.

• The Irrationality Axiom is alive and well.

• Don’t count of the Efficient Market Hypothesis to protect you.

Millions of investors put money for retirement into mutual funds selected on the basis of “SEC total returns” and the name of the fund.

For example, many investors are likely to chose “XYZ Long-Term Nest Egg Fund” with SEC 10-year total returns of 8%, over “ABC Fund” with total returns of 5% in the same period.

In the ABA “Business Law Today” (March/April 2000), article, “When Performance Is An Issue: The SEC vs. Ad Claims“, Charles J. Zangara questions statistics used in mutual fund promotion:

“If an investor sees that a fund has had fairly stable average annual returns at the 10-, five- and one-year periods, isn’t it reasonable for that investor to conclude that those stable returns are likely to continue into the future?”

“What’s missing from the information is the measure of risk involved in achieving such performance.”

Most people do not read fund prospectuses. They make selections based almost solely on total returns in advertisements or on the Internet. Many 401(k) investors never see a prospectus at all.

Few investors heed the SEC-mandated disclaimer, “Past Performance Is Not Indicative of Future Results”.

Investor Confidence and the Flow of Funds

If, in coming years, millions of investors discover that SEC total returns have been misleading and systematically overstated and that, because of this, their savings have fallen far short of their retirement goals, a long-term modification in investment behavior may follow.

This may significantly alter capital flows, damage SEC credibility and lead to a restructuring of the mutual fund industry.

The importance of the use of total returns numbers in mutual fund marketing can hardly be over-stated.

One might say that total returns claims are the mother’s milk on which the Common Stock Legend has grown and thrived.

Without the ability to tout total returns, fund marketers would be in a tight spot. Equity fund sales might languish.

Certainly, the motivation behind the stock buyback-options movement would change.

More »

On August 3, 2020, by a vote of 93 to 5, the US Senate passed the “Pension Protection Act of 2006″, already approved by the House of Representatives on July 28, 2020 and now going to President Bush to be signed into law.

This massive bill (907 pages) is a major piece of legislation that, like ERISA in the 1970s, will effect capital flows in the US market over the next generation.

Links to the full text of this law and related discussions can be found on BenefitsBlog.

A Boon For Wall Street?

The Wall Street Journal has already headlined some of the expected effects on capital flows.

In the lead editorial on August 4, 2020, “The Pension Era, R.I.P.”, the Journal announced that this law “signals the end of the old, defined-benefit pension era.”

In an article on August 7, 2020, the WSJ announced, “Pension Bill Promises Windfall for Fund Firms”, citing research by the Vanguard Group projecting an additional 5.5 million new savers in 401(k) plans.

The article also states that passage of the bill was helped along by heavy lobbying by the mutual fund industry trade organization, the Investment Company Institute. The Act allows, but does not require, automatic enrollment in 401(k) plans and permits employers to give “investment advice” to plan participants.

The Law of Unintended Consequences

History suggests that a law as complex as the Pension Protection Act of 2006 is likely to be laced with obscure provisions that will have unintended consequences.

More »