The STOCK Act is intended to make clear that the SEC can successfully bring insider trading cases against members of Congress who trade on the basis of material nonpublic information. The practical question that will be posed by passage of the Act is whether the SEC will actually dare bite the hand that feeds it. With that in mind, consider Broc Romanek's argument that:
I've written repeatedly how absurd it is for a so-called independent federal agency - like the SEC - to be subject to the very real political pressures and whims of Congress. And the political pressures faced by the SEC have only grown since the passage of Dodd-Frank a mere two years ago. You may recall that the Senate's version of Dodd-Frank envisioned a self-funded SEC - a concept to be lost during the House-Senate conferencing leading up to the bill's enactment (if I recall, House conferees had accepted self-funding but some Senators stripped it from the final bill). Dodd-Frank also was supposed to dramatically bolster the SEC's resources, a notion that was quickly buried after it became law.
So what to do with the front-page article in the Washington Post today that Rep. Spencer Bachus (R-Ala.), Chair of the House Financial Services committee - the one that oversees the SEC - is being investigated for insider trading by the Office of Congressional Ethics? The case is the first of its kind involving a member of Congress.
It's a legitimate problem. On the one hand, there have to be mechanisms for holding the SEC politically accountable and control of the budget is a critical mechanism for doing so. Second, we know from watching law enforcement agencies enforcing laws that allow them to get a slice of money forfeited by defendants that self-funding leads to abuses, some very serious. Third, in a democracy founded on the principle of no taxation without representation, the people's House is supposed to control the purse strings.
On the other hand, will the SEC bite the hand that feeds it? I'm not at all sure.
My preference would be to find ways to encourage the SEC to enforce the STOCK Act without moving to a self-funding model.
