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New SEC Chair Elisse Walter in the Hot Seat
The National Law Journal
For the past four years, Elisse Walter has served diligently as a commissioner at the U.S. Securities and Exchange Commission but compared to the scope of the responsibilities she'll take on starting December 14 as the agency's next chairman, she joked, "I thought I've been on vacation."
In Walter's first public appearance since President Barack Obama tapped her to succeed Mary Schapiro as head of the SEC, she touched on a wide range of issues before the agency, including implementation of the Dodd-Frank and Jumpstart Our Business Startups (JOBS) acts, oversight of investment advisers, the agency's budget and its new whistleblower program.
Walter appeared last week at The National Law Journal's regulatory summit, a one-day conference that also included perspectives from law firm leaders about the direction of regulatory practices, analysis from lawyers on the impact of the 2012 election on workplace issues and predictions from a panel of former top lawmakers from both sides of the aisle on the fiscal cliff.
Walter stressed that she was "not speaking as the incoming chair of the SEC" and that she has "steadfastly refused pre-taking office…to talk about my agenda." Still, her remarks give 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." Walter said she was hopeful the agency would complete its work in the next two to three months.
Walter also encouraged stakeholders to get involved in the rulemaking 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 chief executive officer pay disclosures.
"Congress told us to pass a rule on this and they gave us parameters," she said. "Our job is to do it. Our job is not to redo the congressional mandate."
To Walter, "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 the agency "strikingly short-staffed" and hindered technologically. "If we had the dollars to put into technology," she said, it would allow more agency workers to focus on sophisticated projects rather than routine tasks.
She also said the SEC is "not doing an adequate job of examining investment advisers. We don't have the resources to do so." Dodd-Frank mandated the registration of certain hedge-fund and private-fund advisers so far, about 1,500 new entities have registered with the SEC.
"This is a whole new category," Walter said, and the SEC's goal is to "examine the areas that we think create the highest risk." The first examinations are focusing on marketing, portfolio management, conflicts of interest ("which will, I'm sure, be a perennial topic," she said), the safety of client assets and valuation.
According to Walter, while many new registrants are "doing a pretty good job," 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 whistleblower 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 whistleblower who stopped a multimillion-dollar fraud and Walter said the SEC is currently reviewing other potential awards.
UNDER THE SURFACE
As Walter painted a picture of a vigorous SEC going forward, law firm managers speaking 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 public policy and regulation during 2012. "I think 2013 is going to be an active year from a regulatory standpoint," he said.
Bobby Burchfield, the co-head of McDermott Will & Emery's Washington office, said that Obama would likely use regulatory policy more in the second term in part because he does not have a filibuster-proof Senate. "We think the administration will use the issuance of regulation rather than Congress to handle its business," he said. "We expect quite a bit of administrative litigation to challenge the validity of those regulations."
Speakers on another panel about workplace issues also predicted more activity by federal regulators.
"The way I view it is that it's a slingshot, so they've been pulling back and pulling back, and at some point they're gonna release it and it's all gonna go," said Joe Trauger, vice president of human resources policy for the National Association of Manufacturers.
In turn, the agencies can expect more scrutiny from Congress. Ed Gilroy, director of workforce policy for the House Education and Labor Committee, said he expected his committee to "give increased attention" to the U.S. Equal Employment Opportunity Commission and the U.S. Department of Labor's Office of Federal Contract Compliance Programs. "These are important agencies, but they haven't garnered the same level of attention on the Hill and within the committee [as], say, the National Labor Relations Board," he said.
Of course, the most pressing issue now for the federal government is the looming fiscal cliff. Former leaders of Congress speaking at a luncheon discussion agreed that a deal averting the financial crisis was likely.
"You don't see a lot of stuff going on right now," said former House Speaker Dennis Hastert (R-Ill.), a Dickstein Shapiro senior adviser. "But I think under the surface, there are people who are trying to figure this out."
Added former senator John Breaux (D-La.), now senior counsel to Patton Boggs, "I think that if they did go over the fiscal cliff, it would really be an admission by the entire Congress that they're incapable of governing."
Matthew Huisman, Andrew Ramonas and Don Tartaglione contributed to this report.
This article originally appeared in The National Law Journal.