With Financial Bill Looming, What is Impact for Hedge Funds?

The largest financial reform bill in more than 70 years is expected to pass this week and many are asking what impact the bill will have on hedge funds. The impact of the Dodd-Frank bill—named on the hedge fund industry, remains an open question. The legislation is more than 2300 pages, and even a thorough reading won't reveal the ultimate impact of such a bill on hedge funds.

As the current bill reads, hedge funds would face some greater oversight. Hedge funds with more than $150 million in AUM would have to register with the SEC, though more than half of hedge funds are already registered.

One also has to wonder how the SEC, which so miserably failed to oversee the hedge funds and financial institutions it already regulates, will be able to provide competent oversight of even more firms. If the SEC couldn't devote the resources to police banks with trillions in assets, how can we expect them to competently oversee $200 million hedge funds?

The new bill would also introduce a water-down Volker rule which will permit bank holding companies to invest up to 3% of their assets in hedge funds and other alternative investments.

Hedge Funds Hiring...Former Regulators

The good news is that hedge funds are finally hiring again. The iffy news, depending on your perspective, is that they are hiring a number of former SEC officials. And they aren't hiring mid-level guys for their risk management experience. Hedge funds are hiring top-level former regulators, possibly revealing their concerns about greater hedge fund regulation, oversight, and taxation. Surely hedge fund manager John Paulson's recent decision to hire Harvey Pitt, a former SEC Chairman, as an outside director was intended to get him some lobbying clout. Earlier in 2010, hedge fund Millennium Management hired two former SEC Commissioners.

The recent hires of high-profile former regulators raises a host of questions. Is Capitol Hill prepared to take on the financial industry or are they waiting for that chance at a cushy job crusading for multi-billion dollar funds? Are hedge funds hiring these experienced regulators for their ability to guide the firm as new regulations are enacted or are they being hired for their ability to influence the outcome of regulations themselves? Should the SEC, as suggested by Senator Ted Kaufman (D-Delaware), ban senior officials from taking jobs at companies they recently oversaw?

Compromise on EU Hedge Fund Regulations

Despite overwhelming support for increased regulation of hedge funds in the EU, government entities have been unable to finalize a new set of rules. This week it appears, the EU Commission is tabling a possible compromise for hedge fund operating in the EU. Included in this plan are rules that would prevent foreign hedge funds from benefiting from SU passport provisions which allow the entire trading bloc to be treated as a single entity.

The Wall Street Journal is reporting today that the recent compromise proposes national governments maintain hedge fund rules for up to three years. After that three year period elapses, a sytem-wide set of rules for EU hedge funds will take precedence.

Senate Attacks Hedge Fund Tax Loopholes

This week, the US Senate considers a job and small business bill this week that may be funded by closing a tax loophole that allows hedge fund and private equity managers to pay capital gains rates on performance fees instead of ordinary income tax. By some estimats, closing this loophole could double the tax revenue generated by these hedge fund managers.

But of course, there are conflicting points of view. Len Burman, a professor at Syracuse University, describes the current taxation scheme as "a huge windfall to some of the best-off people in society." Meanwhile, those target by the bill claim they are being unfairly attacked. Because almsot a quarter of all investment partnerships involve real estate, these managerse could be hardest hit says, Jeffrey DeBoer of the Real Estate Roundtable. He adds, "What we're trying to do is make people understand this is very much a Main Street tax increase, not a Wall Street tax increase."

The bill, which likely has significant constituent support, will be voted on by the Senate this week.

US Proposal to Regulate Private Equity and VC, Not Just Hedge Funds

Senator Jack Reed (D) is proposing an amendment targeting virtually all private investment pools to a proposed Wall Street reform bill. While the current senate bill would require hedge funds with assets under management in excess of $100 million to register and report to the SEC, it doesn't cover Private Equity and Venture Capital, nor funds with less than $100 million AUM. Senator Reed's amendment would target all pooled investment vehicles, including PE and VC funds, with lighter restrictions on smaller funds on $100 million.

According to Reed, "The financial crisis is a stark reminder that transparency and disclosure are essential in today’s marketplace. Improving oversight of hedge funds and other private funds is vital to their sustainability and to our economy’s stability."

It remains to be seen how effective US hedge fund regulation will be at preventing systemic risks. Insiders widely believe $100 million hedge funds may pose a risk to their investors and some counter parties, but do not threaten the entire system like some multi-billion dollar funds.