I should have known it was too good to be true. Readers may recall my December, 2011 column where I celebrated the passage of the Stock Act, which made it illegal for congressmen and their staffs to profit from insider information just like the rest of us. It was one of the few actions of a do-nothing congress (their approval rating at the time was just 9%) that I applauded as overdue and a step in the right direction.
It wasn't the first time I had written about the insider profits both Senators and Congressmen had been making over the years. In my May, 2011 column "Gordon Gekko should run for congress" I explained:
"On average, the lower house members beat the market by about 6% a year while those of the higher chamber wrack up a 10% level of outperformance annually. Now, if you believe that's purely coincidental, well, I have a bridge I can sell you cheap."
Shortly before my second column on the subject, a 60 Minutes report brought national attention to this scandal, highlighting profits made by political figures such as Democratic Senate Majority Leader Harry Reid. The public outrage was such that the Stock Act passed both houses of congress quickly. I complained at the time that the act was loaded with loopholes. For example, the rules apply to only information obtained by "pending legislation," however, tons of other kinds of insider information obtained from governmental sources such as a regulatory briefing would be allowed. Unlike existing public insider trading laws, which are deliberately broad and vague, the politicians's guidelines are quite specific and narrow.
The original law required extensive disclosure of financial holdings by Congressional staffers and 28,000 senior executive branch employees. Our elected officials, including the president, are already required to disclose their financial activities. The disclosures were to be posted in an online database open to the public. This database was an important part of the law since it would allow public watchdogs to quickly identify profitable trading activity by thousands of staffers.
Prior to the Stock Act, the financial positions of staffers was part of the public record but were not readily available, making scrutiny deliberately difficult. Information had to be requested on a name by name basis from individual agencies. The process was so time consuming and onerous that it effectively blocked the public from obtaining information buried in these records.
In the name of "national security," this new change within the law removes the requirement to create a searchable index of financial trading activity and ownership in an online database. As a result, it makes it extremely difficult, if not impossible, for researchers to monitor compliance with the law or even obtain records of these public employees. In effect, the law has been gutted.
If you are wondering why this modification was passed by unanimous consent in the middle of the night, a year after it was originally passed, consider this. The elections are over and the politicians figure you will forget all about this by the time 2014 rolls around. In addition, a unanimous vote does not require any specific legislator to be singled out by name in this most blatant act of self-dealing. Oh, and by the way, guess who sponsored the legislative change-- your friend and mine, Senator Harry Reid. Enough said.
Bill Schmick is registered as an investment advisor representative and portfolio manager with Berkshire Money Management (BMM).