By Mark Melin
When the Commodity Futures Trading Commission's most visible and outspoken commissioner, Bart Chilton, announced his resignation from the derivatives regulator on November 5, it surprised certain industry participants for several reasons.
CFTC Commissioner Bart Chilton has led a reform agenda at the Commodity Futures Trading Commission
With the CFTC at perhaps its most critical junction in history, on the precipices of regulating close to $600 trillion in previous unregulated Over the Counter (OTC) SWAP transactions that Chilton says was responsible for the 2008 economic crash, as well as approaching trading controversial position trading limits the commissioner had championed that drew fire from both the banking and exchange community, Chilton's exit from the regulator along with the loss of CFTC Chairman Gary Gensler, who advocated similar positions, comes at an unusual moment in the history.
Questions Regarding Timing of Regulator Exits
The exit of the two primary regulatory reform advocates raises questions if the aggressive agenda will be properly implemented in a timely fashion. While many of the Dodd-Frank Title VII rules have been written, finishing the rule writing - including the controversial Volker Rule - and initially enforcing tougher regulation will be tasked to a new CFTC Chairman and two new commissioners.
"Had the Obama administration come to Chilton earlier in 2013 he would have stayed until the rules were finished"
Is now the appropriate moment to introduce so many new people into CFTC leadership roles? Could the Obama administration have done more to keep these reform minded regulators at this key point in history? At one point Gensler had expressed a desire to remain at the CFTC until after the new rules were implemented, as writing rules and initially setting enforcement benchmarks are two important points in the process. In this interview, Chilton said had the Obama administration come to him early in 2013 he would have stayed at least until the new rules were implemented. The Obama administration didn't approach Chilton early in the year, and faced with a growing desire to explore opportunities in the private sector after a 30 year career in government, Chilton decided to turn the page in his life. Yet questions as to why Obama didn't aggressively act to re-nominate these reform minded regulators at this important moment in history remain.
"There could be delays in implementing the important reforms Gary and I advocated," Chilton said in an exclusive interview. "There are many people in Washington D.C. who would be peachy keen' to see our commission spots remain unfilled and slow down CFTC reforms. If there are valid reasons for holding up a CFTC nominee based on qualifications, that's a legitimate reason to slow down the process. But if it is really a back-door method to slow down reform policy proposals that are called for in law and are important to protect the American people, this borders on being irresponsible."
"If it is really a back-door method to slow down reform policy proposals that are called for in law and are important to protect the American people, this borders on being irresponsible."
In a wide ranging interview Chilton reflected on his time in government, briefly addressed the MF Global investigation, revealed new details regarding many of the initiatives he advocated, provided insight into his motivations and future plans as well as delivered characteristically bold comments that marked the Democratic commissioner's colorful career. What's most interesting are some surprising statements he made regarding hurdles he faced as a regulator advocating on behalf of US consumers and his concerns for the regulatory reform going forward.
Chilton's Unique View of His Role as a Regulator
"I've done the job certainly different from other financial regulator in history," said Chilton, the only person to have worked as a commissioner at a financial regulator before, during and after the economic crash of 2008. To neophytes unfamiliar with Chilton or the CFTC, the commissioner's flowing shoulder length golden blond hair might indicate he is not a "typical" regulator. Those that know him a little better might say his love of music or the guitar he keeps in his Washington D.C. office or his colorful phrases he uses to simplify complex financial topics might be the unique point of differentiation. But to those intimately familiar with international regulatory issues who also support his work, it is Chilton's progressive openness, quest for transparency into previously non-transparent regulatory workings and his outspoken advocacy of derivatives regulation that is meat on the bone.
"What's different is I've tried to be open and have a guiding mantra that is: what's best for consumers'. That had driven all my decisions. From this guiding principle you can back it up to include what's good for the economy, what's good for markets. But it all comes around to what's good for consumers. That's what I've been about my entire life."
There has been no CFTC commissioner who so aggressively and publically advocated progressive positions to actively regulate the largest and most powerful banks as well as place limits commodity positions and high frequency trading (HFT), which made enemies with powerful political forces who shed no tears at Chilton nor Gensler leaving.
"Chilton's regulatory policies made enemies with pretty much every powerful political force in the derivatives industry."
Some industry observers note that Chilton was among the most accessible commissioners in CFTC history with frank and honest analysis of what was really occurring behind the scenes. "Bringing transparency to the commission has been one of my key hallmarks," Chilton said. But such transparency rubbed certain powerful forces the wrong way, particularly when it worked to tighten the screws of regulation.
New Chiltionism: The DC Quadra Kill'
"Wall Street rules the roost in Washington D.C., and that can be unhealthy for everyone except the biggest bankers," Chilton commented, a note of concern on his face. "They contribute more money to political campaigns than any sector in the economy. They have more lobbyists than any other sector in the economy - 10 lobbyists for every single member of Congress. It's incredible. And they've made more profits than any sector of the economy from the point many of them helped crash the economy in 2008," he said, touching on a topic that doesn't have universal agreement among economists. Some financial professionals point the finger at loose loan standards advocated by the government between 2002 and 2007 as the cause of the crash.
"Every single quarter the financial sector makes more money than any single sector of the economy and it is done in part based on the loopholes they create through Congressional lobbying that can endanger the economy," Chilton said, in perhaps his most aggressive tone to date regarding the political power of the financial lobby. "Americans are still hurting today, trying to make ends meet yet the big banks never missed a beat. They received a government bailout in 2008 and their profits, size and power only increased after the crash."
"The statement Citadel's Ken Griffin made (calling for a separation of traditional banking and brokerage operations) was significant."
Aggressively taking on the financial lobby is one reason why Chilton has received popular standing among reform minded financial observers, but this same advocacy only increased the behind the scenes ferocity of the opposition he faced as a CFTC commissioner. Chilton, however, noted the tide is turning, if ever so slowly- and financial professionals are beginning to speak out. "The concept of breaking up the banks is a growing sentiment. The statement Citadel's Ken Griffin made (calling for a separation of traditional banking and brokerage operations) was significant. There are many serious people in the financial industry who have this view, it is not just hippie regulators.' I've been in contact with William Dudley, president of the New York Federal Reserve, on the topic and he made a very powerful speech on bank culture and the need for change just the other day."Another Federal Reserve Presidents who support breaking up the banks is James Bullard President of the St. Louis Fed, Thomas Hoenig, president of the Kansas City Fed and Richard Fisher, president of the Dallas Fed. "Former Congressman Barney Frank, when he left Congress, said breaking up the big banks is a good idea. These are not radical people and questioning the power of the banks is needed," he said, sounding the populist tone being echoed by US Senator Elizabeth Warren (D-MA).
"These are not radical people (calling for banks to separate trading/brokerage from traditional banking) and questioning the banks is needed."
"Conflict is no stranger to Wall Street," Chilton said, as he started to outline the strategy generally used to oppose reform bills. "The financial lobby has a tried and true method of killing things they don't like. I call it the DC Quadra-Kill.' First they try to kill bill,' or kill the bill on the floors of the Congress. Second they try to defund oversight and enforcement efforts. They tried to kill Dodd-Frank in the Congress and when that didn't work they tried to defund CFTC efforts to implement and enforce the regulatory rules, and they've been fairly successful in that regard. If they can't kill or defund the bill then they try to ameliorate the regulation by coming to regulators and first seeking exemptions. If they can't get exemptions then they try and weaken the regulations. If they can't win on these three fronts they go for the fourth prong on the DC Quadra-Kill and they litigate."
While this is what Chilton considers the standard mode of operation to kill regulation, he noted an even more troubling next step.
"CMEGroup Chairman Terry Duffy has called CFTC's position limits rules "the most absurd thing I've ever heard in my life."
"On position limits the bankers have done the Full Monty DC Quadra Kill. But with position limits they are also considering something new which is something not normally part of the Quadra Kill: let's slow things down via holding up nominees. That hasn't happened yet, but I'm concerned that it may."
In 2012 a US Discrict Court vacated a position limits regulation put forth by the CFTC, but this month the agency re-instituted its position limits policy in energy, metal and agricultural markets, slightly favoring cash settled markets (offered by the IntercontinentalExchange, or ICE) while giving harsher regulatory treatment to physically settled contracts (offered by the CMEGroup). In regard to position limits, critics of the program say it could impair liquidity in markets and lead to increased volatility and higher commodity prices. CMEGroup Executive Chairman Terry Duffy has called the CFTC's position limits rules "the most absurd thing I've ever heard in my life." Duffy isn't alone among those with a trading background having issues. "Position limits serve the purpose of limiting transparency and price discovery and hamper the ability of an open market to do its job. The days of an individual trader cornering a market are gone. Position limits will likely force large traders to take risk outside regulated markets into OTC SWAPs transactions that may not have the same transparency," said Jeffery Carter, a former member of the CMEGroup board of directors who now operates West Loop Ventures, a venture capital fund in Chicago.
"The CFTC's new position limits rule is bullet proof," Chilton said. "I expect it may be challenged in court, but I expect the rule to be upheld."
"There is no reason any firm should have enough concentration in a market that they can push prices around. We don't want prices manipulated or people to have the ability to put their thumb on the scale."
When asked if he thought position limits would dampen liquidity and free market mechanisms of price discovery, Chilton responded "not at all," and again took aim at the large banks. "If people think we need banks holding 20%, 30% to 40% of the crude oil market, they are smoking something. That's just not necessary. There are plenty of people speculating in these markets. We want them. We need them. They are good people. It's the excessive speculation we need to be concerned about. There is no reason any firm should have enough concentration in a market that they can push prices around. We don't want prices manipulated or people to have the ability to put their thumb on the scale. It doesn't matter if the price is manipulated higher or lower, our job as regulator is to ensure the price is based on supply and demand and the price discovery process is efficient and effective. Our charge is not to keep commodity prices low, but rather to make sure the markets are fair, efficient and effective."
"Behind the scenes the argument was made to regulators that 'prices were manipulated lower, this is good for the economy.'"
Chilton noted that during deliberations regarding the Libor interest rate fixing scandal, behind the scenes the argument was made to regulators that "prices were manipulated lower, and this is good for the economy."Chilton's answer was "we want fair prices, not manipulated prices. Are you saying we should allow manipulation to one side of prices but not the other?" The CFTC later filed civil suit in the matter against large banks.
Difficulty Identifying Trader Positions
Beyond developing rules for position limits, Chilton says another hurdle is connecting the dots with different holding companies, private partnerships and foreign corporations to identify the positions large traders hold. "You have to put pieces together to understand control of commodities. The fact that one trader at one time had control of 40% of the crude oil market at one time is publically available, but they did it over a variety of exchanges and legal structures. I can't name the firm, but something similar occurred in the natural gas market. There are some issues in the silver market that have yet to come to light when all the pieces of the puzzle come together." Chilton was a vocal advocate in regards to motivating an investigation of price manipulation in the silver market, but the CFTC ended its investigation without any enforcement action.
"We have these large banks owning all sorts of things that we are not unaware of. There is a theoretical conflict of interest and some problems with the law. Do we really want banks influencing our media? Owning our cable companies, phone companies, our grocery stores and movie studios?"
"Where we end up now is we have these large banks owning all sorts of things that we are not unaware of. We do know that they own oil tankers, and will lease tankers, some of them you can see, at times, in the Port of Houston. The tankers will sit at sea and wait to bring oil into the port until they think the market conditions are right. This has an impact on the supply because they are holding tankers and yet they also trade oil in the markets. There is a theoretical conflict of interest and potentially some problems with the law. If you control the supply or the delivery mechanism just on its face it is problematic."
It is not just the energy complex that concerns Chilton. "Goldman and JPMorgan own warehousing for aluminum and some of the largest corporations in America, Coca-Cola and Anheuser Busch have complained about this issue, saying the banks have held onto supply saying this is unfair for markets. All these things are concerning about the banks."
Federal Reserve Had Large Bank Position Limits Information, Wouldn't Share with CFTC
Beyond connecting the dots to piece together who really owns commodities and may be violating position limits, Chilton said access to core ownership information from other regulators is another issue. "The main issue is I don't know what commodities large traders own. I'm a CFTC Commissioner and I've been trying to find out what the banks own in the way of commodities and I can't tell you what their positions are. I've been trying to find out from the Federal Reserve, which has this information, since the end of July 2013. I've asked the Federal Reserve to send me a list, give me a link to the information they have. I receive links but they go to nowhere where I can see the information. The links go to orders that approve Federal Reserve requests for ownership, but don't detail their commodities ownership. My concern is the Federal Reserve isn't providing commodity regulators this information and I'm a regulator who supervises these markets. The American people should have visibility into this issue. People should be able to go to a web site right now, today, and click on pages that detail what the banks own."
"My concern is the Federal Reserve isn't providing commodity regulators this information and I'm a regulator who supervises these markets. The American people should have visibility into this issue."
And here Chilton started to frame the issue from a more significant stance, the control large banks have in society today. "Do we really want banks influencing our media? Owning our cable companies, phone companies, our grocery stores and movie studios? Get back to being banks for god's sake! They were so good at it. This country needs a vibrant financial services sector. Some people say it was the railroads who built the country, but it was really the banks. The banks funded the growth of the nation, they funded the building of the communities and the businesses, provided people the money to build their homes. It was the banks. We need a vibrant financial sector. But get off of all this investing (and controlling) everything under the sun."
MF Global: "CFTC Will Go After Anyone."
When engaging in a conversation about behind the scenes Wall Street influence and control, the topic of MF Global and discussion of the most politically powerful CEO to operate in the financial services sector, Jon Corzine, can't be far behind. Corzine was a former bank president and Democratic US Senator and Governor from New Jersey before he took over at MF Global, a derivatives brokerage firm that collapsed under excessive leverage usage and "lost" $1.6 billion in customer funds in the process. "I think people are concerned regarding MF Global," Chilton said. The CFTC filed a civil lawsuit against Corzine and MF Global back office employee Edith O'Brien for "unlawful use of customer funds." This is the first suit to hold a former CEO of a major Wall Street bank responsible for their actions on the job. While industry participants harmed in the MF Global case had hoped for tougher fraud charges to ensure deterrence was in place, the CFTC lawsuit was considered bold by those in regulatory circles because it defied the wishes of influential Wall Street lobbying powers and political forces centered in Washington D.C. that were apparently trying to keep a lid on proceedings.
"We have a good case against Corzine. We have good evidence and we are going forward."
"Up until the point (the CFTC filed a lawsuit) there had been a lot of conjecture, which is understandable. After the government filed a lawsuit I think people were free to think some malfeasance had taken place," Chilton said. It is not easy for outsiders to understand that defying powerful political forces can be career suicide in government and afterwards in the financial services sector, but this didn't faze the CFTC. "It was a brave lawsuit. It shows the CFTC will go after anyone regardless of political influence. Regulators don't want to litigate a case they think they will lose. We have a good case against Corzine. We have good evidence and we are going forward." In regards to the potential for new evidence coming out at the CFTC trial, "I'm not at liberty to say any more about MF Global," Chilton concluded. The CFTC appears on an aggressive path in regards to MF Global. It is unclear if this path will be altered when new leadership takes the helm.
Is there potential for new criminal evidence to come out at the CFTC trial of Jon Corzine?
Reflecting on His Career and the Most Significant Regulatory Shift in Chilton's Tenure
Reflecting on what can arguably be considered among the most historic points in CFTC history, Chilton leans back in his chair and contemplates all that he has witnessed, much of it non public. "I've been a federal financial regulator before the crash, during the crash and after the crash. I've seen the whole thing. I've seen a lot of things that are not so cool," he said. "Perhaps most significant you need to look at the economic crash in 2008 and what caused it and what has been done since to ensure it doesn't happen again. What caused the crash was over the counter (OTC) SWAPs trading," he says plainly. "There was no, zero, zippity, zilch regulation in OTC derivatives trading. That has changed. The requirement in Dodd-Frank mandated regulation of these dark market SWAPs. We are finally doing that. We started on October 2, 2013 with mini-exchanges' known as Swaps Execution Facilities, or SEFs. These mini-exchanges are going gangbuster. When people talk about Dodd-Frank slowing down economic growth and that it might be an encumbrance, it is exactly the opposite. There is unbelievable competition in the market place, it is vibrant and has opened up opportunities."
"Chilton said the most significant work at the CFTC during his tenure was they brought transparency, the light of day, to these markets that caused the crash of 2008 and that will be the legacy of the CFTC during Dodd-Frank."
What is the significance of the CFTC's work during his tenure? "We brought transparency, the light of day, to these markets that caused the crash of 2008 and that will be the legacy of the CFTC during Dodd-Frank. I think it is possible there won't be much done in the next several months (until new nominees are confirmed), but I expect these people will take our good work and move it forward. My hope is the nominees will be confirmed sooner rather than later, because it would be dangerous if this work was not continued."
As he started to pull back, the look on his face became wary like that of a warrior who had been to battle one too many times. "The influential nature of the financial sector makes it an uphill fight pretty much every day. Gary and I aggressively advocated for derivatives reform, but we are only there for a time certain and then we are gone. The over-arching system in place with an omni-potent financial sector lobbying machine is ever present. Therefore, delaying things by slowing down funding or preventing nominees from being confirmed is just part and parcel to the strategy of those who oppose reform because they will run out the clock just like in a sports game. The strategy is to wait for the guys to leave who are pushing these policies. Recognizing that is the case, publically exposing the issue, is the first step to combating those that simply seek to run out the clock. But we as regulators will never be as influential, we will never have the tools, the resources that the largest of the large players in the financial industry have. But we have something that is every bit as powerful and ultimately more important: we are armed with the truth. We don't have a profit motive. We have the interest of consumers - or let me restate that, we should have the interest of consumers - at the forefront of our minds at all times. We have that going for us."
With this Chilton's energy turned up a notch as he contemplated new opportunities in the private sector that await after he completes his term at the conclusion of 2013. "I expect to write a book," he said, which would be his second. "I certainly won't hold back. I'll tell the real story of how things work, how the behind the scenes and out of view control impacts public policy and how certain people are fighting the good fight. After I leave government service, I'm not turning back. I might take a few months off, but ultimately I want to remain a vocal supporter for derivatives reform and consumer protections even far beyond these markets. That's what I've been all about and I expect to continue that work in some fashion."
Who is CFTC Chairman Nominee Timothy Massad?
By Mark Melin
When the Obama administration appointed Timothy Massad as his choice to be the next CFTC Chairman, many in the derivatives industry were unfamiliar with the "behind the scenes operator" inside the Treasury Department.
Timothy Massad has been selected by the Obama administration to regulate large banks and derivatives traders as chairman of the CFTC.
"None of this bodes well forthe Gensler / Chilton reform agenda."
While he may not be familiar to many in the regulated derivatives industry or even the financial services community at large, he is said to be well known within the elite Wall Street clique and in powerful economic circles in Washington D.C. None of this bodes well for the reform agenda that has been advocated by outgoing CFTC Chairman Gary Gensler and Commissioner Bart Chilton. In fact, sources say Massad's given objective is to reign in the traditionally independent regulator and "play ball" with Wall Street, who has been viewing with alarm the increasingly "Brooksley Born" like culture emerging at the agency with regards to unregulated derivatives.
Outgoing CFTC Chairman
Gary Gensler ran into
Perhaps most telling is the time Massad worked in the Treasury Department implementing the Troubled Asset Relief Program (TARP), supervising government bailout funds delivered to large banks after the economic crash of 2008.
"Massad was frequently at odds with Neil Barofsky... Neil was holding the banks accountable yet Massad had no appetite for fighting the banks."
Massad was frequently at odds with Neil Barofsky, the then inspector general overseeing that TARP funds were properly used by the banks. "Neil was holding the banks accountable yet Massad had no appetite for fighting the banks. They were always at odds both privately and publically," said a senior government source familiar with the situation. "Massad had no qualms with money going to the banks without much if any oversight."
Barofsky declined to comment for this article. However, in "Bailout: How Washington Abandoned Main Street While Rescuing Wall Street" the New York Times bestselling book detailing the bank bailout process written by Barofsky, Massad was described in clear and startling terms for those concerned that Massad might not be up to the task of being a tough bank regulator. In one sentence Barofsky called Massad "irresponsible" and said he "misled the the public about the progress of the AIG bailout."*
"It can't be any clearer," said the source. "Barofsky is highly respected lawyer who held the large banks accountable. Massad let the banks operate without challenging them and even advocated on their behalf inside government. In his book Barofsky essentially said Massad misled the public on behalf of the banks. What do you think you're going to get in a Massad CFTC Chairmanship? It's terrifying, particularly as tough rules still need to be written and implemented."
A Massad CFTC Chairmanship is "terrifying"
If Massad has his way, speculation is the reasonably independent and communicative spirit of Chilton will be a thing of the past; smart and tough regulations Gensler advocated protecting the economy from previously unregulated derivatives will be more "accommodating" to big bank interests; gone will be the days when those within the CFTC will be speaking on or off the record when abuses of power occur (or investigations are blocked). This new and "modernized" big bank friendly CFTC that "plays ball" with other Wall Street regulators, sources say, is more the likely outcome of a Massad CFTC Chairmanship than the aggressive, some say abrasive, advocacy embraced by Gensler and Chilton. While little on the record documentation exists regarding Massad's political leanings - and those who speak about Massad do so off the record for fear their jobs in the Obama administration may be in jeopardy - what can be documented supports this view of a Massad-lead CFTC.
While Massad has no experience in the regulated derivatives industry, as a lawyer with Cravath, Swaine and Moore he helped write the OTC unregulated derivatives contracts used by large banks with their clients, according to Bloomberg. In terms of supporting political causes, Massad's only documented political contribution to an individual politician was a donation to Congressman Jim Hines (D-CT), the former Goldman Sachs banker who is known as the most aggressive proponents of large bank interests on Wall Street. Perhaps most significant is the time Massad spent in his most recent position as administrator at the Troubled Asset Relief Program (TARP). After Barofsky wrote a book highly critical of US Treasury Secretary Geithner and Massad, accusing them of operating in the interests of the large banks, then took a teaching position at New York University and most recently became a lawyer at Jenner and Block involved in investigating white color crime. After his government service, Geithner received handsome payments for his speaking talents and most recently took a job on Wall Street as president of the private equity fund.
"Massad is part of the 'Fed old white boys club.' He is the type of guy that will make Wall Street happy," said one senior regulator based in Washington D.C. "After MF Global, Gensler became significantly more aggressive in regards to the banks. While most Wall Street regulators actively try and accommodate the interests of the largest banks, Gary found it necessary not only to confront the big banks but also regulators who would often do their bidding. This is what it took to implement reforms that protect the American people from unregulated derivatives to help us avoid another 2008 style crash. Massad could surprise us, but I wouldn't recommend anyone holding their breath waiting for this to happen," a different source commented.
*The full quote from page 212-213 of the book "Bailout" reads: "Massad's apparent dissembling about the restructuring was irresponsible, but shortly thereafter, the Treasury team pulled a stunt that flat out misled the public about the progress of the AIG bailout."
Opalesque Futures Intelligence
Thursday, November 21, 2013
CFTC Commissioner Bart Chilton's Exit Interview Is As Rock and Roll as His Personality