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Full Chapter Good Regulation Bad Regulation The Anatomy of Financial Regulation 2015Th Edition Moosa PDF
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Basingstoke, Hampshire RG21 6XS, England.
Good Regulation,
Bad Regulation
The Anatomy of Financial Regulation
Imad A. Moosa
Professor of Finance, Royal Melbourne Institute of Technology (RMIT), Australia
© Imad A. Moosa 2015
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First published 2015 by
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Lest we forget
Contents
vii
viii Contents
References 220
Index 240
Preface and Acknowledgements
Imad A. Moosa
November 2014
x
List of Abbreviations
xi
xii List of Abbreviations
Before discussing the pros and cons of regulation in general and finan-
cial regulation in particular, we have to understand what regulation is
all about and what forms it takes. Although there are arguments for
and against regulation in general (hence against and for deregulation),
some arguments are type-specific. For example, environmental regula-
tion is motivated by the desire to protect human health from the effect
of pollution (which provides an argument for regulation) whereas a
primary argument for financial regulation is corruption in the financial
sector. Regulation in general is a form of government intervention in
economic activity and interference with the working of the free-market
system. According to some views, regulation is “synonymous with
government intervention in social and economic life” (Moran, 1986).
Free marketeers dislike regulation because they do not like any form of
government intervention and prefer to feel the full power of the mar-
ket. However, those who believe that government intervention may be
necessary (even a necessary evil), and that people should not be exposed
to the full tyranny of the market, find regulation to be tolerable, even
desirable.
Regulation can be defined in more than one way, as suggested by
Mitnick (1980), who presents the most comprehensive review of com-
peting definitions. Moran (1986) argues that “regulation is a contested
concept, its essential nature being the subject of continuing argument”.
However, he goes on to define regulation as “an activity in which the
discretion of individuals or institutions is restricted by the imposition
of rules”. Likewise, Den Hertog (2000) argues that “in the legal and
economic literature, there is no fixed definition of regulation”, then he
1
2 Good Regulation, Bad Regulation
Regulation may take several forms. It may take the form of legal restric-
tions imposed by the government. It may also take the form of public
standards or statements of expectations issued by regulators. In many
cases, regulation requires registration or licensing, whereby the regula-
tor approves and permits (or otherwise) some economic activity. The
regulator may conduct periodic inspections to ensure compliance
with prescribed standards, including the reporting and management
of non-compliance. Licensing implies the possibility of de-licensing,
whereby a firm that is deemed to be operating unsafely is ordered to
stop operating or suffer a penalty for acting unlawfully, improperly or
recklessly. In extreme cases, regulation takes the form of prohibition of
an entire activity such as insider trading, money laundering and short
selling. Distinction may be made between private (or self-) regulation
and public (government) regulation. However, Moran (1986) suggests
that this distinction is “difficult to maintain” since self-regulation is
effective only because it is underwritten by state power. He points out
that “unusual hybrids of public and private regulation are constantly
developing”. However, experience shows that “selfie”, which is what
bankers like and advocate, is tantamount to allowing the inmates to
run the asylum.
Viscusi et al. (2005) distinguish between economic and social regula-
tion. Two types of economic regulation can be identified: structural
regulation and conduct regulation (Kay and Vickers, 1990). Structural
regulation pertains to market structure, including issues such as restric-
tions on entry and exit, and rules mandating firms not to supply
professional services in the absence of a recognised qualification (for
example, financial planning). Conduct regulation, on the other hand,
pertains to the behaviour of producers and consumers—examples are
price controls, the labelling of products, advertising rules and minimum
quality standards. Economic regulation is exercised primarily on natural
monopolies and market structures with imperfect or excessive competi-
tion. The objective in this case is to offset the negative welfare effects
Definition and Theories of Regulation 5
The public interest theory was developed initially by Pigou (1932). The
underlying proposition is that the supply of regulation comes in
response to the demand of the public for the correction of inefficient
or inequitable market practices. The basic assumption is that regulation
benefits society as a whole rather than a particular vested interest. Other
assumptions are that markets may operate inefficiently or inequitably
and that regulatory bodies represent the interest of society. Criticism
directed at the public interest theory is based mostly on scepticism
about the validity of these assumptions.
In the public interest theory, the government steps in to regulate
markets when they are unable to regulate themselves (which the propo-
nents of regulation believe to be the rule rather than the exception). In
other words regulation is government intervention triggered by market
failure, a situation where the price mechanism breaks down and the
allocation of resources is sub-optimal. Public interest can be described
as the best possible allocation of the scarce resources available for a par-
ticular economy. In theory, it can be demonstrated that, under certain
conditions, the allocation of resources as dictated by market mechanism
8 Good Regulation, Bad Regulation
which was good for bankers and stock traders but bad for the economy
and people at large. In the aftermath of the crisis, the Fed has indulged
in quantitative easing on a massive scale to provide cheap funds for
banks while taking the risk of igniting hyperinflation (Moosa, 2013a).
In his book, End the Fed, Congressman Ron Paul explains how, why and
for whom the Fed has been pulling the strings of the American financial
system for nearly a century (Paul, 2009).
The capture theory is criticised on the following grounds. The first
is that the theory cannot be distinguished sufficiently from the public
interest theory, because it also assumes that public interest provides the
motivation for the initiation of regulation. The second criticism is that
it is not clear why a firm can succeed in subjecting a regulatory agency
to its interests but cannot prevent its establishment. Third, regulation
often appears to serve the interest of groups of consumers rather than
the interest of firms. Regulated firms are often obliged to extend their
services beyond the voluntarily chosen level of service (for example, the
supply of telecommunication services to consumers living in sparsely-
populated areas and the granting of credit to subprime borrowers to
buy houses). Fourth, firms typically oppose most forms of regulation
because of the perceived negative effect on profitability (examples are
environmental regulation and the regulation of product safety and
labour conditions). Finally, the theory does not explain why a firm is
able to take over a regulatory agency but consumer groups fail to pre-
vent this takeover.
These arguments do not invalidate the capture theory because it is
highly consistent with empirical observations that confirm the propo-
sition that under certain conditions regulators serve the interest of
the firms they are supposed to regulate. Furthermore, it is not hard
to respond to these criticisms. While the public interest theory and
capture theory may be similar with respect to the motive for initiating
regulation, the two theories are different in all other aspects. A firm
that is powerful enough to control a regulatory agency will not want to
prevent the establishment of that agency for the very reason that the
agency will serve the firm’s interest. The proposition that regulation
appears to serve the interest of consumers rather than the interest of
firms is not always true, particularly in the case of financial regulation.
Measures of deregulation, which serve the interest of firms, may come
from the regulators or their bosses. Not all forms of regulation are bad
as far as the regulated firms are concerned—regulation may provide
and sustain monopoly power, not to mention financial assistance and
subsidies. As to why consumers cannot prevent firms from taking over
12 Good Regulation, Bad Regulation
a regulatory agency, the answer is simple: big firms are more powerful
and politically connected than consumers.
D. Kaufman (2009) describes capture as “one neglected dimension
of political corruption”, whereby powerful companies (or individuals)
bend regulatory policy and legal institutions for their private benefit.
This is typically done through high-level bribery, lobbying or influence
peddling. He distinguishes between small jobs, such as bribing a bureau-
crat to obtain a permit to operate a small firm, and big jobs such as a
telecommunications conglomerate that corrupts a politician to shape
the rules of the game, granting it monopolistic rights, or an investment
bank influencing the regulatory and oversight regime which governs it.
He also points out that as a country becomes industrialised, corruption
does not disappear—rather, it becomes more sophisticated (transfer
of a briefcase stashed with cash becomes less frequent). He introduces
the concept of “legal corruption”, which he describes as “subtler forms
of capture”, such as an expectation of a future job for a regulator in a
lobbying firm, or a campaign contribution with strings attached. The
influence is often legally exercised by powerful private interests, which
in turn influence regulatory policies and laws.
Some proponents of the capture theory, who dislike regulation,
seem to say the right thing for the wrong reason because the theory
can be interpreted to mean that regulation does no good. The theory
may indeed be used to support deregulation to prevent the capture of
regulators by regulated firms. The problem here is not regulation as
such but rather corruption, as capture is a form of corruption. The fact
that the Fed serves the interest of its owners, the banks it is supposed
to supervise, does not mean that the Fed should be abolished and
the alternative of free banking pursued. Rather, it means that the Fed
should be nationalised and scrutinised so that it serves the interest of
the economy and people at large rather than the interest of banks. Good
things can be abused, and regulation is no exception.
Strictly speaking, the capture theory is not a theory that explains the
initiation or the supply of regulation as is the case with the public inter-
est theory. In both theories it is more plausible to argue that regulation
is initiated and supplied for the declared objective of protecting public
interest than to suggest that an influential financial institution initiates
the establishment of the regulatory agencies that supervise financial
markets and institutions. Capture is not pre-meditated, it evolves with
the passage of time, following the establishment of a regulatory agency.
The capture theory is about how and why regulatory agencies are
captured, in which case it is not a competing theory or an alternative to
the public interest theory. The two theories are actually complementary.
Definition and Theories of Regulation 13
“It was always the French and the Germans,” grumbles a senior
financial regulator, blaming counterparts from those two countries
for undermining international efforts to increase capital ratios for
banks. Every time the Basel committee, a grouping of the world’s
bank supervisors, neared agreement on a higher standard, he says,
a phone call from the Chancellery in Berlin or the Trésor in Paris
would send everyone back to the table. Similar phone calls almost
certainly inspired the committee’s decision on January 12th [2014]
to water down a proposed new “leverage ratio” for banks.
The main difference between the capture theory and the special interest
groups theory is that the latter conveys the message that competition
among special interests can be both widespread and intense. Special
interest groups are also called pressure groups, advocacy groups, lobby
groups, campaign groups and interest groups. They can be firms, con-
sumers or consumer groups, regulators or their staff, legislators and
unions. As political pressure intensifies, political influence strengthens
and the financial yield obtained from the pressure exerted rises.
Scholars advocating the special interest groups theory reject the cap-
ture theory’s emphasis on the control of individual agencies by a firm or
one narrow group of powerful firms. Instead, they suggest that multiple
groups compete for the control of an agency’s activities, including con-
sumers and the regulators themselves. According to this theory, power-
ful groups fight among themselves for the use of the coercive power
of the government to introduce rules and regulations that would help
their businesses. As in the capture theory, regulation is not regarded by
the regulated firms as an inherently bad thing—rather, regulated firms
demand regulation if regulation is conducive to the preservation of
power and enhancement of profitability.
Macey (1989) uses the special interest group theory to argue that
politicians are not necessarily greedy or evil when they enact laws that
exalt the preferences of narrow special interest constituencies over the
public good. The alternative view he expresses is that the preferences
14 Good Regulation, Bad Regulation
JASKA. Ei, ei! Minä vaan, että onko se oikein ulkomaaa verkaa?
EPRA. Ja rahakirstu!
EPRA. Ha, oli sanonut, oli sanonut… Kyllä minä sen asian
paremmin tiedän. Hölmölän vanhat ihmiset tietävät kertoa, että
minun taatani taata sen omisti.
JASKA. Ja minun isääni harmitti se, että sinun isäsi kuoli ennen,
siitä harmista otti ja kuoli.
JASKA. Kultasapeli.
EPRA. Ja rahakirstu.
JASKA. Mikäs tuo korea mies on, jolla on kukon pyrstö päässä.
EPRA. Kyllä Akianteri on yhtä hyvä kuin joku muukin, pysy sinä
Amalia säädyssäsi.
EPRA. Maa-asiasta?
EPRA. Niin, kun minä sitä asiaa tuumailen, niin suostun minäkin
siihen.
JASKA. Sanokaahan minulle kahden kesken, onkos tässä
aarretta?
EPRA. Johorimuikkus!
JASKA. Johorimuikkus!
MAAILMAN-MATTI. Se on hepreiskaa!
EPRA. Hää!
EPRA. Niin, nyt tuli talooni makian leivän päivät. En minä enään
viitsi makkaratikkuja veistellä.
AKIANTERI.
Esirippu.
TOINEN NÄYTÖS.
JASKA. Mutta sepäs oli sukkela temppu, minä teen heti saman
tempun, minulla on vielä pönttöössä kultamaalia, jolla minä maalasin
"keisarin saunapiippuni". — En minä viitsi maalata taloani mutta
posliinipiippuni pitää aina olla kullattu, se on paras piippu koko
Hölmölässä, ja Epran käy sitä niin kateeksi, ai, niin kateeksi — Mutta
sanokaas, minkästähden te niin komiasta kodosta läksitten?