For the past four years, Elisse Walter has served diligently as a commissioner at the Securities and Exchange Commission. But compared to the scope of the responsibilities she took on in December, as the agency’s next chairman, “I thought I’ve been on vacation,” she joked.
Although Walter’s term as a commissioner has technically expired, by law she can continue to serve in this role until next December. Many securities lawyers speculate that President Barack Obama will appoint a new chair before then, and they flag Richard Ketchum, head of the Financial Industry Regulatory Authority, and Sallie Krawcheck, a former Bank of America executive, as potential successors. Walter could also be appointed for another term and be tapped to stay put.
But future shuffling aside, Walter is the commission’s new chair. And in her first appearance after Obama tapped her to succeed Mary Schapiro, she touched on a wide range of issues, including the implementation of the Dodd-Frank and Jumpstart Our Business Startups (JOBS) acts; and oversight of investment advisers, the agency’s budget, and its new whistle-blower program.
Walter appeared at The National Law Journal ‘s regulatory summit, a one-day conference in December that included perspectives from law firm leaders about the direction of regulatory practices, and analysis from lawyers on the impact of the election on workplace issues. Walter stressed that she was “not speaking as the incoming chair of the SEC” and that since it was still a few days before she took office, she refused to “talk about my agenda.” Still, her remarks gave an indication of her priorities and approach to her new job.
At the top of the agency’s to-do list: implementation of the Dodd-Frank Act (the SEC has finalized just 32 of 95 required rules) and the JOBS Act. “We are way behind schedule. We know that. We didn’t want to be,” she said. “Unfortunately, [rules] take a lot of time.”
Walter flagged regulations dealing with swaps oversight under Title VII of the Dodd-Frank Act as “one major piece . . . still lacking. What we are awaiting in order to make final determinations,” she said, is a “template for how cross-border transactions and entities doing cross-border business will be treated. That is the next thing up on the hit parade.” She was hopeful that the agency would complete its work in early 2013.
Walter also encouraged stakeholders to get involved in the rule-making process. The SEC pays “a lot of attention to the comments we receive,” she said. “Please comment. . . . Tell us what you like, and if you hate something or think something should be changed, tell us why, give us analytics, give us data, give us suggestions of how to fix it.”
At the same time she pointed out that the SEC in many cases has limited discretion in enacting rules—including recent controversial actions dealing with conflict minerals and CEO pay disclosures. “Congress told us to pass a rule on this, and they gave us parameters,” she said. “Our job is to do it.”
The new chief did not shirk from talking about frustrations. The “worst” part of Dodd-Frank is the lack of self-funding for the SEC. The agency is one of the few financial regulators still subject to the annual appropriations process. She called her agency “strikingly short-staffed” and technologically hindered. “If we had the dollars to put into technology,” she said, more agency workers could focus on sophisticated projects rather than routine tasks.
She also said that the SEC is “not doing an adequate job of examining investment advisers. We don’t have the resources.” Dodd-Frank mandated the registration of certain hedge fund and private-fund advisers—so far, about 1,500 new entities have registered. “This is a whole new category,” Walter said, and the goal is to “examine the areas that we think create the highest risk.” The first reviews are focusing on marketing, portfolio management, conflicts of interest, and the safety of client assets.
While many new registrants are “doing a pretty good job,” she continued, there are also “many instances of really poor controls, and worse than that, potential misconduct, especially around fees and expenses.” Problems include advisers who miscalculate fees, collect fees to which they are not entitled, or use fund assets to cover personal expenses.
Walter also discussed the agency’s new whistle-blower program, which in fiscal year 2012 received 3,001 tips—about eight a day. The program provides cash awards in certain circumstances to those who report wrongdoing. “The early returns are good,” she said, describing the tips as “of higher quality, higher credibility . . . than tips and complaints that come in through other forms.” The program paid out its first award in August—$50,000 to a whistle-blower who stopped a multimillion-dollar fraud—and Walter said the SEC is reviewing other potential awards.
While Walter painted a picture of a vigorous agency, firm managers on an earlier panel at the summit agreed that regulatory practices are likely to continue to buoy Washington law offices. R. Bruce McLean, the chairman of Akin Gump Strauss Hauer & Feld, said his firm saw increases in 2012. “I think 2013 is going to be an active year from a regulatory standpoint,” he added.
Bobby Burchfield, cohead of McDermott Will & Emery’s Washington office, predicted that Obama would ramp up regulation in the second term because he doesn’t have a filibuster-proof Senate. “We think the administration will use regulation rather than Congress to handle its business,” he said. “We expect quite a bit of administrative litigation to challenge the validity” of the new rules.
Matthew Huisman, Andrew Ramonas, and Don Tartaglione contributed to this report.
A version of this story appeared in The National Law Journal, a sibling publication of Corporate Counsel.