CFTC loses focus

When my kids are acting particularly nutty and inattentive while my wife is attempting to get them to do a particular task, she often looks them right in the eye moves her hands in a directional motion and says “focus, you need to focus.”

It doesn’t always work but it may be worth a try on some regulators who seem to also display an attention deficit problem. Case in point, last Friday a U.S. District Court vacated the Commodity Futures Trading Commission (CFTC) position limit rule, ruling in favor of a challenge by the International Swaps and Derivatives Association (ISDA) and the Securities Industry and Financial Markets Association (SIFMA).

The rule had taken a lot of time and attention away from the CFTC even though there has been no definitive evidence that over-speculation has distorted the price of commodities as many had claimed to justify the rule. Yet almost immediately after the decision CFTC Commissioner Bart Chilton says they should appeal the ruling and begin drafting a new rule proposal.

There has been quite a bit of debate, pro and con, as to the effect of long only commodity indexes and whether they and other institutional investors accessing the commodity markets on behalf of investors were distorting the market. Most serious studies seemed to come down on the side that it didn’t or that it couldn’t be proven and clearly there has been no consensus that speculators were distorting commodity markets. A CFTC cost analysis put the price tag of the rule at $100 million plus, putting it in the category of a major rule.

The debate split the commission but eventually the rule was passed despite former Commissioner Mike Dunn’s reluctance. Dunn cast the deciding vote but was clearly conflicted. He famously said, “With such a lack of concrete economic evidence, my fear is that, at best, position limits are a cure for a disease that does not exist or at worst, a placebo for one that does.”

Dunn added that lack of position limits were not a critical element to the financial crisis of 2008 and indicated the commission’s focus on them was misplaced.

So what happened while the commission focused on the dubious issue of positions limits? Well, for the first time since the Commodity Exchange Act (CEA) was enacted a shortfall in customer segregated funds at a major clearing firm created a $1.2 billion hole for futures customers forcing  countless farmers, ranchers, introducing brokers and commodity trading advisors out of business. And customer segregated funds were violated a second time. All while the CFTC was busy writing rules and missing deadlines in its responsibilities to regulate the swaps market under the Dodd-Frank Act.

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