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By Richard Helppie

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Capital markets require confidence that all market participants have fair access to the same relevant information about a company and its prospects. Laws governing the trading of securities have been in existence since stocks were first traded. It seems as if each piece of legislation, from the Securities and Exchange Act of the 1930’s through to the 2002  Sarbanes-Oxley Law fought the prior corruption as successfully as preparing an army to fight the last war.

Curiously, the issue of insider trading by members of Congress is not a partisan issue. If behavior is any indication, certain Republicans and Democrats are fond of having the ability to profit from access to material, nonpublic information. Others of both parties are introducing legislation to block illegal insider trading.

Congress has passed laws that prohibit people with insider knowledge from trading on non-public information, and from sharing that non-public information with others who may trade stocks based on that information. The former is known as “illegal insider trading” and the latter as “tipping.” There exists legal insider trading, which is bound by rules of disclosure and third-party decision makers, but we will leave that for another day. Illegal insider trading is enforced through Federal Agencies including the Securities and Exchange Commission (SEC), Internal Revenue Service (IRS) and the Department of Justice (DOJ), as well as by regulations on major stock exchanges such as the New York Stock Exchange (NYSE) and National Association of Securities Dealers Automated Quotation Systems (NASDAQ).

While there is universal agreement that executives, board members, employees and others with access to non-public information may not use that information to trade stocks, members of Congress and their staffs face few practical barriers. And in more recent months, members of the Federal Reserve and their staffs have made questionable, if not downright suspicious trades of stocks.

History is littered with cases of both average citizens and celebrities like Martha Stewart being prosecuted for insider trading. Stewart was ultimately prosecuted and jailed for obstruction after denying insider knowledge.

There are members of both the US Senate and US House of Representatives who want to stop illegal insider trading by their peers. For example, in 2012, President Barack Obama signed the Stop Trading on Congressional Knowledge (STOCK) Act to prevent insider trading by members of Congress and Congressional Staff. However, there have been no prosecutions under this statute to date. The reason is that the “Speech and Debate” clause prohibits questioning an elected Senator or Congressional Representative.

Moreover, much of the disclosure of material, non-public information that would establish a foundation for illegal insider trading occurs outside the public eye. Members of Congress cannot act on information obtained from companies themselves. The difficulty arises in proving that a member of Congress or Congressional staff knew of material, non-public information acquired in a confidential congressional meeting. Let me rephrase that. There is no way of knowing what transpired in the confidential committee meeting so there is no provable path to a stock trade benefiting the member of Congress or their staff.

Suppose two publicly traded defense contractors were bidding on a new weapons system. In a confidential committee, a Department of Defense (DOD) recommendation to accept the bid of company A versus Company B was made and endorsed by the committee. At that point, everyone with access to the non-public information about the weapons system bid would know that it would be good for the stock of Company A and bad for the stock of Company B.

Take this a step further. Company A and Company B are notified about the confidential decision and advised to keep this material, non-public information protected. At this point, if any executive, board member or employee with that knowledge traded in the stock of Company A or Company B they would be subject to prosecution, including fines and imprisonment. Also, if any person at the company provided that material, non-public information to another person, including a member of Congress, that action would be subject to investigation and potential prosecution.

Now suppose a Senator, Congressional Representative or staff member, after receiving the news of the weapons system award went to their broker, computer or telephone and bought stock in Company A while selling (or shorting in another way) Company B. Or perhaps communicated to a friend or family member on a trade “suggestion.”  Relaying or exploiting information – material, non-public information —  behavior that would land any other person in an investigation and make them subject to prosecution, cannot be practically pursued because there is no way to use the committee deliberations as evidence.

When Senators Richard Burr (R-NC), Kelly Loeffler (R-GA) and Diane Feinstein (D-CA) were accused of insider trading, instead of being subjected to investigation and potential prosecution through the SEC, IRS, or DOJ, their actions instead were reviewed by the Senate Ethics Committee. The Senate Ethics Committee, made up of other US Senators, found no wrongdoing.  Let me rephrase that –  other US Senators, who might benefit themselves from insider trading – decided to give suspicious behavior a pass. Even if the conduct of the Senators was on the up-and-up, the optics do not inspire confidence.

The US Senate does not have a monopoly on suspicious trading. For example, Congresswoman Lois Frankel (D-FL), was accused of trading stocks of companies in the fossil fuel industry while a sitting on a Congressional subcommittee that oversees funding for the Department of Energy.

Legislation to Block Insider Trading by Congress and the Federal Reserve

US Senators and Congressional Representatives have made proposals to improve public perception of their ranks with more practical solutions and stiffer penalties. Pre-eminent among the reformers is Senator Elizabeth Warren (D-MA), a person with a strong background in financial matters. Senator Warren appears to be the leading voice in calling for members of the Federal Reserve and their staffs to also be subject to laws prohibiting illegal insider trading and tipping. These restrictions are long overdue, as statements by the Fed has caused wild gyrations in the prices of securities. Senator Warren’s ideas are recommended reading on her web site at

https://www.warren.senate.gov

. Enter “Insider Trading” on the search bar of the Senator’s web site for 61 references.

Senators Jeff Merkley (D-OR) and Sherrod Brown (D-OH) have offered the “Ban Conflicted Trading Act.”  Under the legislation, elected persons and their staffs would be required to either sell or freeze their stock holdings, or put them in a blind trust. Introduced in 2018, the legislation has stalled. Last winter, Representative Alexandria Ocasio-Cortez (D-NY) and others have indicated they would introduce the same legislation in the House.

Earlier this month, Senators Jon Ossoff (D-GA) and Mark Kelly (D-AZ) introduced the Ban Congressional Stock Trading Act. If it becomes law, every member of Congress—as well as their spouses and dependent children—would be required to place their stock portfolios into a blind trust. One benefit of an outright ban or blind trusts would mean that clerical matters would no longer be a concern of those elected. Kelly himself, according to news reports, did not make a timely disclosure about a stock option exercise.

Senator Josh Hawley (R-MO) announced he will introduce the Banning Insider Trading in Congress Act. Wryly pointing out that politicians manage to outperform the stock market year after year, Hawley’s bill would prohibit members of Congress and their spouses from buying and trading individual stocks. Those who violate it would have to disgorge their profits.

Congress: Keep it simple and fix this

The singular, clear way to avoid abuses of insider information is to ban the trade of individual stocks and industry-specific Exchange Traded Funds (ETF) by members of Congress, Congressional staffs, members of the Federal Reserve and their staffs. Double blind trusts (where neither the owner or trustee knows identity of the other) would be an acceptable form of investing. Finally, add stronger criminal penalties for tipping insider information.

This is one of the few things that seem to enjoy bipartisan support, and would seemingly be welcomed by nonpartisans and those on the political poles as well.

Of course, like everything political, proposals of these types do not enjoy absolute, clear-cut support. As House Speaker Nancy Pelosi (D-CA) said about her opposition to such restrictions “We are a free market economy,” Pelosi, purported to be one of the 25 wealthiest members of Congress, continued, “They (Congress) should be able to participate in that.” Pelosi’s recent financial disclosure is said to have 48 transactions made by her family valued at a total of some $50 million so she is sympathetic to serving in Congress and participating in trading.

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SEC REPORT: https://www.seclaw.com/insider-trading/

MADOFF: https://www.msn.com/en-us/news/world/convicted-fraudster-bernie-madoffs-sister-husband-found-dead/ar-AAU6px4?li=BBnbfcL

FRAUD: https://www.msn.com/en-us/money/companies/founder-of-collapsed-dollar17-billion-mutual-fund-charged-with-fraud/ar-AAU3PEF?li=BBnb7Kz

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CITE: https://www.r2library.com/Resource/Title/082610254

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Filed under: Ethics, Experts Invited, Glossary Terms, Investing | Tagged: Common Bridge, insider trading, Investing, Madoff, Richard Helppie, Sarbanes-Oxley Law, SEC, Securities fraud, stock market scams, trading scams | Leave a comment »