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  • Court Strikes Down CFTC Regulation to Limit Excessive Speculation

    Michael Greenberger: Legal and lobbying assault by finance sector blocks regulation of excessive speculation, will lead to higher prices for food and other commodities -   October 16, 2012
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    Michael Greenberger is a professor at theUniversity of Maryland School of Law, where he teaches a course entitled "Futures, Options and Derivatives."Professor Greenberger serves as the Technical Advisor to the United Nations Commission of Experts of the President of the UN General Assembly on Reforms of the International Monetary and Financial System. He has recently been named to the International Energy Forum’s Independent Expert Group that provided recommendations for reducing energy price volatility to the IEF’s 12th Ministerial Meeting in March 2010. Professor Greenberger was a partner for more than 20 years in the Washington, D.C. law firm of Shea & Gardner, where he served as lead litigation counsel before courts of law nationwide, including the United States Supreme Court.


    Court Strikes Down CFTC Regulation to Limit Excessive SpeculationPAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I'm Paul Jay in Baltimore.

    On September 29, in the District Court of the District of Columbia, Judge Robert Wilkins threw out U.S. Commodity Futures Trading Commission's new position-limits rule, sent the regulation back to the agency for future consideration. Wilkins ruled by law, the CFTC, which was required to prove that the position limits in commodity markets are necessary to diminish or prevent excessive speculation—. So why does that matter? It may sound a little technical if you haven't been following this story, but this decision might affect the cost of your food, the cost of your fuel, and many other basic necessities of life.

    So now joining us to talk about the significance of this decision, why it took place, is Michael Greenberger. Michael is a professor at the University of Maryland School of Law, where he teaches homeland security and financial law classes. He's a former division director at the U.S. Commodity Futures Trading Commission. Thanks very much for joining us, Michael.


    JAY: So the decision, if I understand, was on a technical point, which was: did Dodd–Frank actually tell the CFTC they have to regulate position limits? And for the—just quickly, quick definition of position limits.

    GREENBERGER: Position limits are the tool in place to limit Wall Street speculators from gumming up commodity markets. If they are not limited in their speculative bets that they place, they have a tendency to unmoor commodity prices from supply-demand fundamentals.

    So, for example, if you look at crude oil, the price of crude oil is way above what it should be if supply-demand just played a role. In fact, you know, most of the big oil companies say crude should be at about $70, $75. It's now—it was up to $100 this week, went down to $91. The simple point is, look at gasoline, which is the main derivative of oil. You're paying a premium that has nothing to do with production and has everything to do with lining the pockets of Wall Street.

    JAY: Okay. But that was part of the—was contended at the case. So position limits say no individual player or finance institution can have more than x percent of any specific commodity market. And that used to be the case, right? It used to be.

    GREENBERGER: Well, it still is the case, ironically enough. But Congress, in passing Dodd–Frank, wanted the position limits to affect a much broader market, which Wall Street uses to speculate on food and energy prices. So the more limited rule is still in effect that emanates from pre-Dodd–Frank. But Congress—well, the question was: did they order the CFTC to put these position limits in effect, or tell the CFTC, only do it if you think it's necessary and appropriate? And that was the essential issue.

    And the argument that the CFTC made, and many market reformers, including myself, is that Congress couldn't be clearer that they were very worried about the role speculation was playing in inflating food and energy prices—they demanded the CFTC to do something about it, and they said the vehicle you should use are position limits as appropriate.

    The district court judge said the word "as appropriate" also applies to whether or not you do the project to begin with. So he sent it back to the agency and said, now you've got to tell me by a majority vote—it's a five-person commission; the original rule came out on a three-two vote—now a majority of the commission have to tell me that you're doing this in a way that's appropriate. So he's added a burden on that many, including myself, and many members of Congress, by the way, view was never intended.

    JAY: So he kind of shifted the terrain, because if the legislation says, do it, you don't have to study whether you need to do it, and they had a three-to-two vote in the commission, which already agreed with that interpretation, saying—in fact, the third vote, Dunn, it was at—he has left now, but when he was a commissioner he actually said, I don't really agree with the substance here, but I do agree we've been told we have to do it. So they already had a vote—


    JAY: —with that interpretation.


    JAY: The judge has gone back and said, but really you go back and argue about the substance anyway, even though that isn't what you had already said you had to do.

    GREENBERGER: Well, there's two things that need to be said. Getting a third vote on the original rule was no mean feat. Wall Street had the CFTC under siege with a scorched-earth policy fighting this rule. And the chairman, Gary Gensler, who in my view is a hero through all of this, and another commissioner, Commissioner Chilton, felt strongly that not only did the rule have to be done, but it had to be done in a very tight manner. To get the third vote, they loosened the rule. This commissioner, Dunn (a Democrat, by the way), provided the third vote. But what he said was, I think we can't do this, because we have to make this finding of appropriateness, but I'll vote with you.

    JAY: Okay. Let me read a quote from Dunn, 'cause this quote is quoted by the judge in his final decision, and clearly this probably is the thing that swung it for the judge.

    GREENBERGER: I agree with you.

    JAY: So here's Mr. Dunn:

    "Position limits are, in my opinion, a sideshow that has unnecessarily diverted human and fiscal resources away from actions to prevent another financial crisis. To be clear, no one has proven that the looming specter of excessive speculation in the futures markets we regulate even exists, let alone played any role whatsoever in the financial crisis of 2008. Even so, Congress has tasked the CFTC from preventing excessive speculation by imposing position limits. The law is clear, and I will follow the law."

    Talk about a—what is it?—a backhanded compliment here.

    GREENBERGER: Yes. Well, essentially you have—this was argued on February 27. Interestingly enough, it took all this time for the judge to make up his mind. But in any event, you have got a brand new judge, an Obama appointee, who doesn't, I believe, have experience in financial markets. But leave that to the side. Judges have to grasp new issues, and he's confronted with an agency rule that's on a three-to-two vote, with this commissioner, Dunn, wobbling all over the place. And it was clear in the argument that the fact that the third vote was such an uncertain vote—.

    JAY: But how do you respond to Dunn? I mean, Dunn's saying there's still no objective scientific evidence that speculation affects commodity prices. That's their basic thesis.

    GREENBERGER: There were many comments filed on the proposed rule—I filed one, and many others did, too—that listed dozens and dozens of studies. I think at one point it came up to 105 studies that showed unless you limited Wall Street speculation, you were going to have inflationary commodity prices that had nothing to do with supply-demand fundamentals. The idea—Commissioner Dunn said that when the rule first came out, there was no proof. He was flooded with proof. Didn't seem to convince him. And in essence there's no doubt the judge was very troubled by being confronted with a three-two ruling that was really in his mind a two-three ruling.

    JAY: Yeah, 'cause Dunn says, I don't agree with the substance; I'm doing this for process reasons.

    GREENBERGER: So he's—the judge has essentially sent it back and raised the threshold for now you have to show that the rule is necessary and appropriate. I have a strong degree of confidence that will be demonstrated. But in the meantime, this is important regulation, which not only deals with what United States citizens pay for their gasoline, their heating oil, their energy products, and their food products, but in the Third World, many Third World countries believe, is leading to starvation because it's so inflating the price of food beyond that which market fundamentals would dictate.

    So, whatever happens, this goes back to the agency, and the earliest they'll be able to get something out will probably be another half year. Doubtless, that will be challenged in court. So you have this constant delay of something that—by the way, amicus briefs were filed in the case by members of Congress saying, this was exactly what we intended—not a discretion; the CFTC had to do this.

    Now, Commissioner Dunn says this had nothing to do with the 2008 financial crisis. Well, it depends what you view the crisis to be. If you mean the subprime mortgage meltdown, he's right. But if you mean oil went to $147, a world record high, in July 2008, that was part of the financial crisis. And what this rule was designed to do was to get out of the market speculators who were sending false demand signals by buying paper contracts, and get it down to commercial users who understand supply-demand fundamentals and would bring the price of these products down. ExxonMobil estimated about a year ago the price of oil should be $70 to $75.

    JAY: Yeah. The head of the—I think he testified in Congress, did he not?

    GREENBERGER: Yes, yes, under careful examination by Senator Cantwell of Washington, who was one of the biggest proponents of getting this very tough position-limit rule in place. So what this judge has done is essentially set this thing aside. For at least a half-year, maybe a year, we will not have the kind of regulation that Congress demanded. And of course you've got the problem that the Republicans are fighting this agency by limiting its appropriations through the House of Representatives so it doesn't have enough personnel, doesn't have enough enforcement personnel. And if a President Romney was ever elected, this agency would disappear and there'd be no limits whatsoever.

    JAY: Now, there's a very serious drought in southwestern United States. There's all kinds of predictions of food prices going up and, like, undermining the corn crop and such. So why isn't that the reason prices are going to go up? What has that got to with speculation?

    GREENBERGER: Well, the short answer is we'll never know the answer, because the big banks are so inflating the market with buying paper contracts that they never have to act on, that send out a false demand signal. So we'll never get a clear picture of what the supply-demand market really is.

    But let's look at the price of oil, which you don't have droughts and everything else. Everybody who knows anything about the oil markets tells you that we're flooded with oil right now. Cushing, Oklahoma's where oil is stored, they can't find enough places to store the oil.

    JAY: Yeah. Well, I was reading—I've been following this story for a while now, partly because of the recession. I don't know. But for some reason, the price of supertankers went from something like—I think it was $70,000 a day to rent a super oil tanker down to $16,000. And now, because it's so cheap, they've got dozens of these things sitting out in the ocean 'cause they don't want to land the oil.

    GREENBERGER: There've been allegations that many of the big banks have used tankers to take oil off the market and just send it around the world, and it never stops. So there are all sorts of problems here.

    But the minute this rule came down, I thought the rule was very weak. I didn't think it was strong enough. But the minute the rule came down, the banks raced into court, challenged the rule, and as a result, today we've got this rule off the books. And the American public will pay inflated prices for, certainly, energy. And my belief is, even with the droughts, that they will pay a premium over what the supply-demand problems are, because Wall Street is in the market generating paper contracts that send a false demand signal to the market and have the prices way above that which the public should be paying.

    JAY: Well, part of Dunn's argument—I mean, there's an interesting quote from him, where he says this is either a solution to a problem that doesn't exist or a placebo for a problem that does exist, that he's saying that the problem, if it's as serious as you're saying, this rule's not going to deal with it anyway.

    GREENBERGER: Well, the only problem is that Congress—a Democratic Congress, to be sure, but the Congress could not have been clear that their view was (A) the problem exists, and the one way to solve the problem was limit the participation of big banks in these markets. Franklin Roosevelt in 1936 reached the same conclusion, but his regulatory regime had been weakened by several Republican administrations. And what Congress was doing here was saying, we've got to go back to the Roosevelt theory of getting speculators—not all speculators; the word is excessive speculation—getting excessive speculation out of these markets.

    JAY: And that's—excessive means too big a player in one particular market.

    GREENBERGER: It—what it means not is just too big a player, but too many players in the market who do not touch the underlying commodity and are only in—.

    JAY: And one of the dynamics now—it used to be, what, 80 percent physical users? And now it's the other way around.

    GREENBERGER: When I was a regulator back in the late '90s, it was thought to be a market was functioning smoothly if it was 70 percent commercial, 30 percent speculative. As we sit here today, for example, the crude oil markets are 80 percent speculative, 20 commercial. So it's actually flipped on its head. Most of the people in the market have nothing to do with supply-demand. All they're doing is betting that the price will go up. And, in fact, they've so disoriented the market that people who really understand supply-demand fundamentals don't want to take part in the market at all. So this ruling exacerbates a problem.

    The president has now three times said—March 2011, March 2012, April 2012—the problem here is not supply-demand. America is a net exporter of oil right now for the first time since Harry Truman was president. The problem is speculation.

    JAY: Well, then, the president probably should have appointed someone to replace Dunn who would be very strong on this. But that's not so clear, is it?

    GREENBERGER: Well, he's—there is a replacement for Dunn, and interestingly enough, the judge wanted to know, now that Dunn has gone—.

    By the way, Dunn has gone to take a lobbying job at a big lobbying law firm. He's not a lawyer, but he's representing Wall Street, which I think is very noteworthy in and of itself. But there's a new commissioner: Commissioner Wetjen's in place. He's new. We don't know how he's going to vote. He's an Obama appointee. He worked for Senator Harry Reid.

    JAY: But do we know where he stands on this?

    GREENBERGER: We do not know where he stands on this, but his vote is going to be critical.

    JAY: Okay. So we're going to follow this story, and we'll see where he ends up.

    GREENBERGER: Yes. And what I would also say is, for people watching this, that you should stay on top of this and let your congressman know and let the CFTC know that you want the strictest limits on Wall Street speculators. Without the public weighing in on this, it's sort of an issue that's out in the ether.

    JAY: Alright. Thanks for joining us.

    And thank you for joining us on The Real News Network.


    DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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