WASHINGTON—President-elect Joe Biden’s expected pick of Gary Gensler to lead the Securities and Exchange Commission could give Wall Street its most aggressive regulator in two decades.
The finance industry has thrived under the Trump administration’s light regulatory touch. Mr. Gensler, who sources familiar with the transition say is likely to be tapped by Mr. Biden for SEC chairman, has a history of shaking up the status quo. If he gets the assignment, he would be tasked with toughening regulation and enforcement of public companies and the finance industry.
He did that when he ran the Commodity Futures Trading Commission, a smaller regulatory sibling to the SEC, from 2009 to 2013. There, he steamrolled the opposition to write rules from scratch governing the markets for hundreds of trillions of dollars of derivatives. Some of these complex financial instruments were blamed for the 2008-09 financial crisis.
Lawyers, regulators and lobbyists say Mr. Gensler would likely be the most active, pro-regulatory SEC chairman since William Donaldson ran the agency in the wake of the corporate scandals of the early 2000s, or Arthur Levitt’s tenure during the Clinton administration. They also expect a renewed eagerness to pursue enforcement cases against major corporations and Wall Street banks. At the CFTC, Mr. Gensler earned a reputation for an aggressive, sharp-elbow style of management more reminiscent of Wall Street than Washington, at times even clashing with officials in his own party.
“He’s a totally different cup of tea than we’ve had at the SEC,” said Hal Scott, a professor of capital markets law at Harvard Law School. “He will do things that are controversial.”
Mr. Gensler’s nomination hasn’t been formally announced by the Biden transition team. People familiar with the matter say it is no coincidence that his name emerged only after Democrats won control of the Senate following runoffs in Georgia on Jan. 5. The irony is Mr. Gensler is a product of Goldman Sachs Group Inc., a Wall Street giant that attracts criticism from progressives. He made partner at Goldman at 30 and then served in the Treasury Department and led the CFTC after an 18-year stint on Wall Street. Since leaving the CFTC, Mr. Gensler has been teaching at Massachusetts Institute of Technology’s business school.
A spokesman for the Biden transition team declined to comment for this article. Mr. Gensler didn’t respond to requests for comment. Mr. Gensler’s record at the CFTC fits with the Democratic Party’s progressive wing, which hopes to use the SEC as a lever for driving domestic policy goals. These include combating climate change and racial injustice, forcing more transparency around corporate political spending and tilting the balance of power from executives to workers and small investors.GET FOX BUSINESS ON THE GO BY CLICKING HERE
But the firms the SEC regulates are hopeful Mr. Gensler’s understanding of finance and markets would make him a pragmatist when balancing progressive demands against the implications of causing widespread disruption. Among Democrats’ top priorities are for the SEC to require more-comprehensive reporting from public companies about the risks they face from climate change or government efforts to curb it. They say financial disclosures should also include more information about companies’ diversity and worker pay. And Mr. Gensler is already facing calls to further tighten a 2019 rule that stopped short of requiring brokers to put their clients’ interests ahead of their own.
“We are really looking for someone to be bold,” said Lisa Gilbert, executive vice president at consumer-advocacy group Public Citizen, adding that Mr. Gensler has shown an ability to challenge entrenched interests.
Critics of the SEC in recent years have said it focused too much on helping companies raise capital and not enough on investor protections. Rick Fleming, the SEC’s in-house investor advocate, said in a Dec. 29 report that the agency “engaged in numerous rule-makings of a deregulatory nature” last year that “often had the effect of diminishing investor protections.”
Some have also called for the SEC to refocus enforcement efforts on large banks and hedge funds. Under recently departed chairman Jay Clayton, the enforcement program emphasized wrongdoing that harms less-sophisticated investors, including cryptocurrency scams, Ponzi schemes and investment advisers who fleeced clients with murky fees.
Mr. Gensler dealt with the big banks at the CFTC when he oversaw enforcement actions against banks accused of manipulating a key interest rate known as Libor.
Another target of Democrats may be private-equity firms and hedge funds, lightly regulated investment firms that are off limits to small investors. The firms captured 69% of the capital raised in 2019, while the regulated public markets accounted for 31%, according to SEC estimates. At the CFTC, Mr. Gensler faced fierce opposition from Wall Street over his push to make trading of derivatives more transparent as required by the 2010 Dodd-Frank Act. He advanced a series of regulations that required so-called swaps to be traded on public platforms, in an effort to eliminate the unseen buildup of risks that precipitated the 2008-09 financial crisis.
Former colleagues said Mr. Gensler wasn’t afraid to say no to powerful financial firms in meetings at the CFTC and that he was unflappable in sometimes-heated congressional hearings. Mr. Gensler’s nomination could face opposition in Congress from Republicans, Ms. Gilbert of Public Citizen said.
He clashed at times with Republican members of the CFTC, who accused him of leaving them out of key discussions over proposed rule makings. He was accused of implementing rules too fast, exposing the agency to legal challenges. A Republican commissioner in 2013 said in a speech that lawsuits challenging CFTC regulations were evidence of a “flawed rule-making process that prioritized getting the rules done fast over getting them done right.”
But he also demonstrated an unusual ability to navigate the competing interests of industry, lawmakers and other regulators to churn out a prolific volume of work. That track record likely made Mr. Gensler a front-runner for the SEC nomination.
At the SEC, Mr. Gensler would have to manage a much larger staff—4,500 employees to the CFTC’s 700—and a five-member commission that tends to be more partisan. He also has fewer congressionally mandated reforms to tackle than during his tenure at the CFTC, which was dominated by implementation of the Dodd-Frank financial reforms.
“The policy agenda for the SEC is pretty obvious...the question is who can get it done, sequence and prioritize,” said Dennis Kelleher, a Biden transition team adviser who is president of Better Markets, a group that advocates for stricter Wall Street oversight. “Gary proved at the CFTC that he has the ability to operate in multiple arenas at the exact same time.”