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the responsibility for maintaining a viable
market for both buyer and seller.

45/

Even the General Accounting Office, in stating its views on H.R. 11955, questioned the government's ability to monitor and set margins:

"The Federal Government does not have the capa-
bility at the present time to establish and
monitor commodity margin requirements on a day-
to-day basis without the expenditure of a sig-
nificant amount of manpower and funds." 46
Emphasis supplied.]

The situation is unchanged today. The responsible exercise of margin authority by government agencies would still require a significant amount of manpower and funds. This is particularly so in the precious metals markets where the underlying commodities are produced and traded worldwide and markets are influenced by international as well as domestic economic factors. Large expenditures to build up a capability for the government to do what the exchanges are already doing satisfatorily, and at no cost to the taxpayers, seem totally unjustifiable at a time when the government is striving to balance the federal budget. .

Finally, the House directly addressed the issue of CFTC margin authority during floor debate on H.R. 13113. Congressman Vanik offered an amendment the stated purpose of which was,

". . . to enable the Commission to be able to
act effectively to prevent excessive specula-
tion in futures trading by having the power to
deal with the fixing of margins." 47/

Congressman Poage, Chairman of the Agriculture Committee, opposed the Vanik amendment, stating:

45/

46/

Id. 67 (Letter of Frederic H. Corrigan, Peavey
Company).

House Report, id. Note 1, at 67 (letter of the
Comptroller General expressing GAO's views on H.R.
11955).

47/ 120 Cong. Rec. H2952 (daily ed. April 11, 1974).

"This is a subject on which a great many people
have very honestly felt there should be authori-
ty on the part of the Commission to control
these margins. Many of us on the committee felt
that was the situation until we began to study
it a little bit.

but as one begins to study it one finds that this margin is not for the protection of the individual who is buying or selling the contract; this margin is for the protection of the exchange. It is for the protection of the exchange that is handling these deals because the exchange guarantees the performance of the contracts, and if there is failure on the part of a contract then the exchange must make it good. The exchange makes it good through these margins. So we leave the control of the amount of the margin to the exchange itself. We authorize the exchange to set margins, and to change margins as conditions change, and they may change hourly. Conditions may change very promptly as the gentleman said. But then the people who are going to be directly affected are there, and can take steps to protect themselves. If, on the other hand, we were to take away the authority on the part of the exchanges to make these daily and hourly adjustments on margin, we would take away from that exchange the very essential power to protect itself from bankruptcy.

If we place the power to set margins in the hands of the Commission then we have taken it away from the exchanges.

Just bear in mind you cannot have it in both
places . . . we should leave it in the hands
of the exchanges so that they can protect them-
selves and everybody who deals with them. 48/
[Emphasis supplied.]

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Following this statement by Chairman Poage, the Vanik amendments were defeated.

48/ Id., 2953.

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RATIONALE FOR CONGRESS' DETERMINATION TO
GRANT EXCLUSIVE JURISDICTION OVER
REGULATION OF COMMODITY FUTURES TRADING
TO THE CFTC

Introduction

The importance of vesting exclusive jurisdiction over futures trading in the Commodity Futures Trading Commission was debated extensively both in 1974 and 1978. The 1974 debate on this issue focused on the CFTC as an independent agency with exclusive futures regulatory jurisdiction vs. USDA, the SEC, (by implication) all other federal agencies, and the states. The 1978 debate on jurisdiction covered the same areas as discussed in 1974 and, in addition, addressed a number of issues raised by specific proposals by the SEC, the General Accounting Office, the Office of Management and Budget, state securities administrators, and others for the sharing of

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the CFTC's jurisdiction with USDA, the states, the SEC, and the Treasury Department.

This memorandum lists the public policy and other arguments raised in support CFTC exclusive jurisdiction, both in 1974 and 1978. The arguments are illustrated by quotations from the legislative history and other relevant documents.

Briefly summarized, the arguments are:

(1) Duplicative regulation by multiple federal (and possibly state) agencies would be extremely burdensome to the futures markets and the users of the markets.

(2) Duplicative regulation would be a waste of taxpayers' money and a financial burden on users of the markets, who would ultimately bear the cost of compliance.

(3) Duplicative regulation is over-regulation in direct conflict with the policies of both the Carter and Ford Administrations.

(4) Summary of arguments against weakening of CFTC exclusive jurisdiction (this section includes quotes from House and Senate Reports and the Commission summarizing the arguments in points 1-3).

(5) Regulation by the SEC is wholly inappropriate because of differences between the commodities and securities markets.

(6) Other federal (and state) agencies lack the expertise to regulate commodities markets, and where they have tried to do so they have failed.

(7) Vesting futures regulatory jurisdiction in any Executive Branch (i.e., policy-making) agency would constitute an inherent conflict of interest.

(8) Changes in CFTC jurisdiction could change Congressional oversight responsibility and negate the benefits of the experience of the agriculture committees in this complex

area.

1.

Duplicative regulation of the futures industry by multi-
ple federal agencies, and possibly all the 50 states as
well, would be extremely burdensome to the futures mar-
kets and the users of those markets. Regulation by mul-
tiple agencies would cause confusion, uncertainty, dis-
ruption of the markets, and almost certainly costly and
protracted litigation to clarify the jurisdictional
lines.

As noted by Chairman Talmadge at the outset of Senate floor debate on the 1974 Act:

"In establishing this Commission, it is the com-
mittee's intent to give it exclusive jurisdic-
tion over those areas delineated in the Act.
This will assure that the affected entities
exchanges, traders, customers, et cetera
will not be subject to conflicting agency rul-
ings." 1/ [Emphasis supplied.]

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During the 1978 reauthorization hearings, specific proposals for shared jurisdiction with SEC over some aspects of futures trading were being considered. Industry witnesses were unanimous in their opposition to such a proposal. For example, the President of the Chicago Board of Trade stated:

1/ 120 Cong. Rec. S16,128 (daily ed., Sep. 9, 1974).

"In our opinion, the chaos that would result
from dismantling the CFTC's present exclusive
jurisdiction cannot be overstated." 2/

The Chairman of the Chicago Mercantile Exchange stated:

"Moreover, to divide the responsibility for this
complex industry between two or more agencies could
only create a bureaucratic nightmare. Such a move
would be an obvious shift toward inefficiency,
duplication, wasted resources, overregulation and
an intolerable burden which could only cause the
eventual demise of this industry." 3/

This same argument is even more applicable to sharing of exclusive jurisdiction with state regulators. The above-quoted testimony of Mr. Rosenberg, Chairman of CME, continued:

"The foregoing considerations apply even more
strongly to a sharing of authority between Fed-
eral and State agencies. The spectre of 50
subtly different interpretations of the many
provisions of the CFTC Act is truly frighten-
ing. The knowledge and expertise of State Ad-
ministrators acting on a part-time basis cannot
approach that which we have a right to expect
will develop in the Commodity Futures Trading
Commission." 4/

The dangers of duplicative state regulation of the commodities industry had also been considered in 1974. For example, Glenn Clark, a former state securities administrator, testified before the Senate Committee that,

2/

3/

. . . traditional, long-existing, stable commodity trading institutions are now being subjected to a withering crossfire of disparate

Reauthorization of the CFTC: Hearings before the Subcommittee on Agricultural Research and General Legislation of the Senate Committee on Agriculture, Nutrition, and Forestry, 95th Cong., 2d Sess., Part II, 173 (1978) (Statement of Robert Wilmouth, Chicago Board of Trade). (Hereafter, Senate reauthorization hearings.)

Id., 126 (Statement of Larry Rosenberg, Chicago Mercantile Exchange).

4/ Id.

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