Financial Services Reform: Reinstate Uptick Rule and Tighten Circuit Breakers

Posted March 24, 2009 at 10:59am

Meaningful financial services reform can move forward immediately in two areas that will restore confidence in our markets. History shows us the way.The Senate Banking Committee, 77 years ago, released a “list of shame— to the media. The list was comprised of individuals, partnerships and corporations with a total short position as of April 8, 1932, totaling at least 2,500 shares across all stocks. [IMGCAP(1)]This bold action was big news at the time. The Wall Street Journal ran the list on its front page. Colorful names such as “Stuyvesant Fish— were listed as reporters scrambled to pierce the corporate veil. The list caused some bad actors to retreat to the sidelines — but not forever.Why the excitement? Congress had initiated a wide-ranging investigation into shorting and bear raids targeted at certain stocks. In a bear raid, professional traders would organize a pool of capital and then aggressively short the target stock or stocks. Sound familiar?Prior to the Congressional inquiries, the New York Stock Exchange had prohibited short sales on downticks beginning in October 1931. In 1935, the SEC recommended that other exchanges adopt the NYSE rule. The exchanges complied, but the Securities and Exchange Commission took no formal action at the time.In 1937, the Dow Jones Industrial Average fell almost 35 percent from the end of July to the end of December. The SEC looked into rumors of bear raids and saw action concentrated in certain stocks. Sound familiar? The first SEC commissioner, Joseph P. Kennedy Sr., got serious about restrictions on manipulative short selling in 1938, and the SEC issued Rule 10a-1 under the 1934 Securities Exchange Act. Rule 10a-1 is commonly known as the “uptick rule.— It mandates that subject to certain exceptions, that, when sold, a listed security must either be sold short at a price above the price at which the immediately preceding sale was effected or at the last sale price if it is high than the last different price. Kennedy’s uptick rule stood the test of time until July 6, 2007, when the rule was eliminated by the SEC. Since the elimination of 10a-1, volatility and short-selling concentrated in certain stocks has returned. So must the uptick rule. We should also revisit the circuit breaker levels under SEC Rule 80B and adjust to levels that would call for a pause in trading sooner than now set under the existing rule.Financial services reform will take many shapes over the coming months. We don’t need to wait on common-sense measures to restore confidence in our markets. Reinstating the uptick rule and adjusting the circuit breaker levels will start the ball rolling toward the reforms we so desperately need. Former Rep. Larry LaRocco (D) represented Idaho’s 1st district from 1991 to 1995. Before serving in Congress he was a stockbroker.