Can An SEC Nominee With Ties To Goldman Regulate Wall Street Impartially?

Jan 5, 2017
Originally published on January 5, 2017 7:25 pm

President-elect Donald Trump is nominating Jay Clayton, a Wall Street lawyer, to be the head of the Securities and Exchange Commission. Some who know him say Clayton is a good man for the job, but critics say his ties to big financial firms create too many conflicts of interest.

The big question is whether Trump has chosen a fox to guard the henhouse.

Clayton works as a lawyer for a firm that has represented Goldman Sachs for decades. He also represented Ally Financial and other financial firms when they struck settlements related to wrongdoing in the subprime mortgage scandal.

And Clayton's wife currently works for Goldman Sachs.

"I do think that having a chairman of the SEC whose spouse works at Goldman Sachs or another large investment bank is a serious problem," says Richard Painter, a law professor at the University of Minnesota and the former chief White House ethics lawyer under President George W. Bush.

Painter says Goldman and other big banks had their business models severely restricted by the Dodd-Frank Wall Street Reform Act, and there is already pressure building to scale back that law during the Trump administration.

"The decision about whether to repeal Dodd-Frank, or how to enforce Dodd-Frank and rulemaking under Dodd-Frank — all those decisions will have an enormous impact on Goldman Sachs," Painter says. "And to have Goldman Sachs have a controlling influence over the career of the SEC chairman's spouse, I think could be an untenable situation."

Still, Painter says he is withholding judgement until he watches the nomination hearing process. Maybe there's a way to resolve that and other conflicts. And he says just because Clayton is a Wall Street insider, that doesn't mean he'd be a bad SEC chairman.

"There are plenty of good Wall Street people who could actually aggressively regulate Wall Street. They know where the bodies are buried; they know where the reforms are necessary," Painter says.

So, is Clayton that kind of Wall Street insider — or the kind that would be soft on enforcement?

"What I understand about him is that he's a very, very capable lawyer, very knowledgeable, practical and very results-oriented," says Bill McLucas, who was head of enforcement for the SEC under the administrations of George H.W. Bush and Bill Clinton.

And, McLucas says, if Clayton makes it through the congressional hearing and vetting process, if past SEC chairs are any guide, "once they are confirmed it is rare that the public interest is not their guiding principle."

Still, there are plenty of skeptics. Former Rep. Barney Frank says he sees more of the same here — a series of nominations by Trump of people who are too beholden to Wall Street.

"It is one more example of the biggest bait-and-switch, I believe, in American history — namely Trump winning by claiming he was going to stand up to Wall Street and be tough and then becoming the best friend Wall Street and the opponents of regulation have ever had," Frank says.

Frank says the Dodd-Frank law that bears his name gave the SEC strong powers to protect the financial system as well as everyday Americans who are buying stocks or buying their first home. But, he says, "You cannot make laws that are self-enforcing."

Frank says he's worried that even if Republicans don't have the votes ultimately to repeal laws such as Dodd-Frank, the appointments Trump is trying to make could still severely weaken regulation. And, Frank says, that could make the financial system and everyday Americans less protected from wrongdoing.

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Multiple news outlets are reporting that President-elect Trump is expected to nominate former Indiana Senator Dan Coats as his director of National Intelligence. NPR has not yet confirmed that pick.

Trump has already named Jay Clayton, a Wall Street lawyer, as his pick to head the Securities and Exchange Commission. That's the agency that oversees financial markets. Some who know Clayton say he's a good candidate for the job. Critics say his ties to big financial firms create too many conflicts of interest. NPR's Chris Arnold reports.

CHRIS ARNOLD, BYLINE: The big question here is whether Donald Trump has chosen a fox to guard the henhouse. Jay Clayton works as a defense lawyer for a firm that's represented Goldman Sachs for decades. He also represented Ally Financial and other financial firms when they struck settlements related to wrongdoing in the subprime mortgage scandal. Also, Clayton's wife currently works for Goldman Sachs.

RICHARD PAINTER: I do think that having a chairman of the SEC whose spouse works at Goldman Sachs or another large investment bank is a serious problem.

ARNOLD: Richard Painter is a law professor at the University of Minnesota and the former chief White House ethics lawyer under George W. Bush. He says Goldman and other big banks had their business model severely restricted by the Dodd-Frank Wall Street Reform Act, and there's already pressure building to scale back that law during the Trump administration.

PAINTER: The decision about whether to repeal Dodd-Frank or how to enforce Dodd-Frank and rulemaking under Dodd-Frank - all those decisions will have an enormous impact on Goldman Sachs. And to have Goldman Sachs have a controlling influence over the career of the SEC chairman's spouse I think could be an untenable situation.

ARNOLD: Still, Painter says he's withholding judgment until he watches the nomination hearing process. Maybe there's a way to resolve that and other conflicts. And he says just because Jay Clayton is a Wall Street insider, that doesn't mean that he'd be a bad SEC chair.

PAINTER: There are plenty of good Wall Street people who could actually aggressively regulate Wall Street. They know where the bodies are buried. They know where the reforms are necessary.

ARNOLD: So is Jay Clayton that kind of Wall Street insider or the kind that would be soft on enforcement? Bill McLucas was a former head of enforcement for the SEC under the first Bush and then the Clinton administrations.

BILL MCLUCAS: What I understand about him is that he's a very, very capable lawyer, very knowledgeable, practical and very results-oriented.

ARNOLD: And McLucas says if he makes it through the congressional hearing and vetting process, if past SEC chairs are any guide...

MCLUCAS: Once they are confirmed, it is rare that the public interest is not their guiding principle.

ARNOLD: Still, there are plenty of skeptics. Former Congressman Barney Frank says that he sees more of the same here - that is, a series of nominations by Donald Trump of people who are too beholden to Wall Street. We reached Frank on his cell phone at the airport today.

BARNEY FRANK: It is one more example of the biggest bait-and-switch I believe in American history, namely Trump winning by claiming he was going to stand up to Wall Street and be tough and then becoming the best friend Wall Street and the opponents of regulation have ever had.

ARNOLD: Frank says the Dodd-Frank law that bears his name gave the SEC strong powers to protect the financial system as well as everyday Americans who are buying stocks or buying their first home. But...

FRANK: You cannot make laws that are self-enforcing.

ARNOLD: If you've got a policeman who's got his feet on his desk, you're not going to be chasing around too many bad guys.

FRANK: Yep.

ARNOLD: So Frank says he's worried that even if Republicans don't have the votes ultimately to repeal laws such as Dodd-Frank, the appointments that Trump is trying to make could still severely weakened regulation. And Frank says that could make the financial system and everyday Americans less protected from wrongdoing. Chris Arnold, NPR News. Transcript provided by NPR, Copyright NPR.