What do you do in Steamboat Springs when autumn arrives at the Botanic Park? Why, have a Food & Wine Festival of course!

Meanwhile the derivatives festival in equities continues, thanks to the SEC, which through Rule 6c-11 is now blanket-exempting the greatest financial mania of the modern era, Exchange Traded Funds (ETFs), from the law governing pooled investments.

I’ll explain what this means to companies and stock-picking investors.

Look, I like Chairman Clayton, Director Redfearn, and others there.  But the SEC isn’t Congress, legislating how the capital markets work (one could argue that the people never delegated that authority to government through the Constitutional amendment process at all. But I digress).

The point is, the SEC is supposed to promote free and fair markets – not one purposely tilted against our core audience of stock-pickers.

The problems with ETFs are they’re derivatives, and they foster arbitrage, or profiting on different prices for the same thing. If arbitrage is a small element – say 15% – it can highlight inefficiencies. But thanks to ETFs, 87% of volume (as we measure it) is now directly or indirectly something besides business fundamentals, much of it arbitrage.

Do we want a market where the smallest influencer is Benjamin Graham?

ETFs in fact can’t function without arbitrage. ETFs have no intrinsic value.  They are a traded substitute for a basket of underlying stocks that depend on prices of those stocks for a derivative price applied to the ETF shares. So, unless brokers trade both ETF shares and stocks simultaneously, ETF prices CAN collapse.

That was an outlier problem until ETFs became the fastest-growing financial instrument of all time outside maybe 16th century Dutch tulip bulbs.

But collapse is not the core threat from ETFs. Arbitrage distorts the market’s usefulness as a barometer of fundamentals, warps the market toward speed, and shrivels liquidity.

How and why are these conditions tied to ETFs and arbitrage?  I’m glad you asked!

The motivation for arbitragers is short-term price-changes.  The motivation for investors is long-term capital formation. These are at loggerheads.  The more arbitrage, the faster prices change.  Price-instability shrinks the size of trades, and liquidity is the amount of something that can trade before prices change. It’s getting smaller as the market balloons.

If money can’t get into or out of stocks, it will stop buying them and start substituting other things for them. Voila! ETFs.

But.

We’ll get to that “but” in a minute.

ETFs are a fantastic innovation for ETF sponsors because they eliminate the four characteristics that deteriorate fund-performance:

Volatility. ETF shares are created off-market in big blocks away from competition, arbitrage, changing prices, that war on conventional institutional orders.

Customer accounts. ETFs eliminate asset-gathering and the cost of supporting customers, offloading those to brokers. Brokers accept it because they arbitrage spreads between stocks and ETFs, becoming high-frequency passive investors (HFPI).

Commissions. ETF sponsors pay no commissions for creating and redeeming ETF shares because they’re off-market.  Everyone else does, on-market.

Taxes. Since ETFs are generally created through an “in-kind” exchange of collateral like cash or stocks, they qualify as tax-exempt transactions.  All other investors pay taxes.

Why would regulators give one asset class, which wouldn’t exist without exemptions from the law, primacy? It appears the SEC is trying to push the whole market into substitutes for stocks rather than stocks themselves.

The way rules are going, stocks will become collateral, investments will occur via ETFs. Period.  If both passive and active investors use ETFs, then prices of ALL stocks will become a function of the spread between the ETFs and the shares of stocks.

Demand for stocks will depend not on investors motivated by business prospects but on brokers using stocks as collateral. Investors will buy ETFs instead of stocks.

If there is no investment demand for stocks, what happens when markets decline?

What would possess regulators to promote this structure? If you’ve got the answer, let me know.

And if you’re in IR and if you play guitar (Greg Secord? You know who you are, guitar players!), start a rock band. Call it Six See Eleven. Book some gigs in Georgetown. Maybe Jay Clayton will pop in.

Meanwhile, your best defense is a good offense, public companies and investors. Know how the market works. Know what the money is doing. Prepare for Six See Eleven.