Clashing Titans

While Karen and I consumed Arctic Char in Iceland, stock exchanges sued the SEC.

Talk about a big fish story.

The NYSE, Nasdaq and CBOE, representing about 57% of trading volume over a combined twelve platforms, asked a federal court to halt the SEC’s plan to test changes to trading fees and credits via a Transaction Fee Pilot program set to begin late in 2019.

It’s the more curious because investors transacting in markets generally support the planned study. Reading through hundreds of comment letters (including our own, offered in support), we tallied around $24 trillion of assets backing the test.

What’s got the exchanges in such a tizzy about a probationary effort – not an actual rule-change, mind you – that they’ve lawyered up?

The answer lies in the four key tenets of Regulation National Market System, a sort of current Magna Carta for stock-trading in the USA.  Every investor-relations professional and investor should know baseline facts about it.

In 1975 when the USA was mired in screaming inflation, a plunging dollar loosed from its gold moorings in 1971, an oil crisis, and failure in Vietnam, the US Congress decided to throw a fence around stock markets as a vital strategic interest.

So they passed the National Market System amendments to the Exchange Act of 1934, now part of the leviathan United States Code, 15 USC, Section 78c.

Oh boy.

The wheels of regulation mire in swampy muck, so it was thirty years later when the SEC finally got around to fulfilling the vision (no longer needed, in my view) Congress saw in 1975.  Enter Reg NMS.

The regulation has four pillars.  First, exchanges must ensure that stocks trade only at a single national best price (the Order Protection Rule). Second, the SEC – and this is the essence of the Fee Pilot – capped (the SEC said “harmonized”) what exchanges could charge so nobody would be priced out of access (The Access Rule) to stock quotes. It also required a spread between the bid to buy and offer to sell. No locked (same bid, offer) or crossed (higher bid than offer) markets.

Third, the law prohibited stock-quotes (unless under $1 in value) in increments of less than one penny (in effect, guaranteeing speculative traders a profit, because while quotes are in pennies, trades are often in far smaller increments at variations of midpoints) so every stock would have a bid and offer separated by at least a penny.

Finally, the law changed how revenue from data (Market Data Rules) would be allocated.

Reg NMS was implemented in 2007.

I think a legal case could have been made that both decimalization and Reg NMS six years later were unconstitutional. Nowhere does our governing charter give Congress the power to set prices and commandeer property not for public use.

Yet it did so by forcing exchanges to share what before had been proprietary intellectual property – data – and setting what they could charge for services. So how ironic is it that now exchanges are suing to keep this structure?

Not ironic at all when you realize that big exchange groups (the newest entrant IEX is not suing, supports the fee pilot, and didn’t build business on data and technology services) have exploded in size, profits, revenues and influence under Reg NMS.

Humans are an intelligent species. We adapt. The exchanges discovered that they could pay traders to set the bid and offer, and sell the data generated in that process – and then sell all kinds of services for using that data effectively.  Genius!

The pilot plan threatens this construct.

You’ll read that the concern is brokers routing trades for payments instead of where it’s best. That’s to me a red herring.

We oppose prices set by participants wanting to own nothing. They distort fair value, supply, demand, and borrowing. If you use our analytics, you know it’s 44% of trading volume directly, and over 70% indirectly (we calculate that 94% of SPY volume is arbitrage).

If half the volume is intermediation, the market is a mess.

The stock market is supposed to match investors and public companies. Reg NMS derailed the market’s central purpose. That’s my opinion. Predicated on data. I run a technology firm that for the entirety of the Reg NMS regime has measured the collapse of rational thought and capital-formation consequent to this regulation.

The stock market today is a great place to trade stuff. Exchange Traded Funds have prospered because they’re by law dependent on arbitrage, profiting on different prices for the same things. The regulatory structure requires different prices for the same things.

Let’s summarize what’s occurring. The exchanges have invested billions of dollars to make money under Reg NMS. And they’ve succeeded.

The SEC now realizes that Reg NMS hurts the root purpose of equity capital markets and it wants to test ways to roll back rules promoting short-term trading.

The exchanges are opposed because short-term trading is the very cornerstone of profitable data and technology services.

I don’t fault them.  But come on, guys. The SEC has finally seen how the market has devolved into a laser light show of speculation and fleeting intermediary profiteering that has pushed meaningful capital-formation into private equity.

That in turn defrauds mom and pop investors of the Intel Effect (I don’t have to explain it), and my profession, investor relations, of a thriving job market.

Could we run this test, please, and see what happens, exchanges?