Public Choice Theory and the Private Securities Market

58 Pages Posted: 1 Feb 2013

See all articles by Zachary James Gubler

Zachary James Gubler

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: June 1, 2012

Abstract

One of the most important developments in the capital markets over the past decade presents a puzzle that needs to be solved. The development is the dramatic expansion of the unregulated market for private securities in the United States. The puzzle is that public choice theory, the dominant theory for explaining SEC behavior, fails to account for it. After all, the traditional public choice account predicts that the SEC will grow its regulatory turf, not erode it. In this article, I develop a theory that solves this puzzle. The argument is that the traditional public choice account overlooks an important class of cases where regulators have incentives to expand the unregulated portion of their industry. With respect to the SEC, I argue that by growing the private securities market, the SEC maximizes its career support in the face of uncertainty over how to reinvigorate a dysfunctional public market.

The theory developed in this article has important implications for securities regulation and beyond. With respect to securities regulation, it suggests that any attempts to minimize the potentially high social costs of an expanding private securities market will need to take into account the effect of underlying political forces. To this end, I sketch the outline of a novel approach for dealing with an expanding private securities market, the centerpiece of which is an entity (independent from the executive branch and accountable to Congress) whose goal it would be to focus greater public scrutiny on the SEC for the purpose of counteracting the political forces underlying the growth of that market. This theory also has important implication for the literature on regulatory arbitrage and optimal policy-making more generally. In particular, it suggests that the conclusions drawn in these literatures are misleading to the extent that they downplay or ignore the possibility that political forces may favor regulatory arbitrage and that these same political forces may cause regulators and lawmakers to avoid uncertainty in policymaking altogether, just as the SEC has sought to avoid the uncertainty associated with reform of the public securities market.

Keywords: Public choice, political economy, securities regulation, IPO, restricted securities, Rule 144

JEL Classification: K2, K22, K23, P16, G18, L51

Suggested Citation

Gubler, Zachary James, Public Choice Theory and the Private Securities Market (June 1, 2012). North Carolina Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2210105

Zachary James Gubler (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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