Professor Bainbridge...on law, politics, religion, culture & food

Did Spitzer Clean Up Wall Street?

A CNN reader opines:

Spitzer is the best friend of small investors in this country. While the Fed is sleeping on the wheel, Spitzer cleaned up those fat rats on the Wall Street and the insurance industry. I am not surprised at all that those rats will jump on him whenever they get a chance. The Fed should focus on how to clean up the subprime mess instead of being interested in what is going on in guy’s private bedroom.

Actually, as Megan McArdle relates, Spitzer’s record is rather spotty:

His attacks on Wall Street, meanwhile, were more about grabbing headlines than catching criminals. Some of the things he took on were real abuses, like the disgusting abuse of equity research and retail networks to pump up the stocks of investment banking clients. Others were much more dubious--a pointless-seeming war against insurance brokers for wrongs that were at best trivial. Some of his more bizarre prosecutions, and the weird settlements he demanded, made it clear that he didn’t have the understanding of markets to effectively be the financial regulator he set himself up as.

Worse was how he did it. He couldn’t make cases--the highest profile case he brought to trial basically ended with an acquittal on all counts. Yes, securities cases generally settle, but not like Spitzer’s--precisely because the cases are generally a hell of a lot stronger than any of Spitzer’s, cases where the prosecutors had some hope of proving that someone had actually done something illegal. Spitzer was able to do this through the power of the Martin Act, which gives the New York State attorney general practically despotic powers to go after fraud. Among the provisions: the prosecutor does not have to prove that there was intent to commit fraud, that any transaction took place, or that anyone was actually defrauded; he can interrogate potential defendants with no rights to an attorney or against self incrimination; he can keep the investigation secret or make it public, just as he pleases; and can subpoena just about anything. Practically the only limitation on the AG is his goodwill and sense of fair play. Eliot Spitzer was not overgenerously endowed with either.

Banks and others came to the table because Spitzer would launch these investigations and then use a carefully orchestrated series of press releases and leaks to torpedo their stock price. But many of the more spectacularly incriminating sounding excerpts from subpoenaed documents were so misleadingly taken out of context that they would have been grounds for a libel suit if he’d been a journalist. Don’t get me wrong--many of them were guilty. But this kind of tactic doesn’t distinguish between the guilty and the innocent; anyone in a credit-dependent industry whose stock value is plummeting would have to negotiate, because Spitzer’s inquiry could shut them down. (Can and did, in some cases--indeed, he apparently nearly shut down Merrill’s asset management business until a judge reversed the order.) Often, these shaded into personal vendetta--Dick Grasso’s pay package seems like he was grossly overvalued, but what business is it of Eliot Spitzer’s how much a private body pays it’s CEO? This has nothing to do with the reasons we regulate financial markets.

Moreover, all his quick settlements screwed the investors he was supposed to be protecting. The unjust settlements extorted money from those firms’ shareholders and dumped it into state coffers. And the just ones did nothing for investors: the money went to the states, not to the people who had allegedly been defrauded. Shutting the investigations down quickly forestalled discovery that would have helped clients sue. Eliot Spitzer got the headlines; investors got nothing.