美国证券交易委员会(SEC) 7月16日决定，接受高盛(Goldman Sachs)支付5.5亿美元，就该银行在美国住宅市场崩溃之初出售的一种次贷产品上误导了各类投资者的指控达成和解。SEC由此错失了一次重新定义自身角色的绝佳机会。在成立SEC的立法中，美国国会赋予了SEC保护投资者和确保市场公平有效的权力。与高盛的和解或许实现了第一个目标，但这也表明，SEC仍未能朝着更有进攻性的方向发挥其更广泛的监管职能。
和解方案对各类投资者的损失做出了赔偿，责令对高盛抵押贷款部门员工进行一些补救性培训，并要求高盛加大内部监控力度。鉴于高盛第二季度利润大幅下滑，这给高盛带来了少许痛苦。尽管如此，在当前这个呼吁更有力监管和更明确公众预警信号的时期，SEC的决定仍延续了以往尝试与华尔街达成妥协的模式，一次针对一宗欺诈。
最近一直有强烈的呼声，要求将SEC与目前负责监管衍生品的另一家机构――美国商品期货交易委员会(CFTC)――合并，甚至取缔SEC，理由是两家机构职能重叠，而SEC在近些年一直无所作为。在这种背景下，SEC直到4月份才对高盛提出的起诉，似乎预示着该机构已重振旗鼓。人们曾希望，对高盛的胜利，其意义不只在于解决了一宗欺诈，还将树立一个更广泛的监管先例，即高盛的经营方式无论是在社会层面、还是在经济上都是无法接受的。这还有可能让华尔街文化开始一些必要的改变――或许至少会降低未来发生危机的可能性，同时还可能证明，SEC对市场安全和公平的关切，比向银行巨头索取那么一点点赔偿更重要。
但SEC又一次让人失望了。尽管作为美国公司支付的最高金额之一，此次和解看上去很严厉，但实际上是SEC屈服了。断定与SEC作对不符合自身利益的高盛，实际上得以用从长远来看不值一提的一点小钱，堵住了美国政府的嘴。SEC没有让高盛做出任何管理上的改变，或让高盛承认有一丁点儿的悔恨。通过接受和解而不是提出起诉，或至少争取一段"像样的间隔"，SEC表明自己仍无意开拓更广泛的监管职责。更重要的或许是，这向华尔街发出了信号，SEC的诉讼没有什么好怕的。
此类案件中的严格执行是一项重要职责。但SEC似乎也未能理解自己至关重要的象征作用。对高盛一查到底，至少更尽力一些，本会向金融界和普通民众发出一个明确信号：SEC更在乎保护公众利益，而不是投行的健康。
之所以达成和解，也许是因为SEC认为自己不可能赢得诉讼，或者决定不去承担胜诉的代价。但如果这是真的，那么它一开始就没有理由提起诉讼。不管它招惹的对手规模如何，SEC在法律上就不具备威吓资格。在一般的法庭上，控方律师有权就预期将和解的案件提起诉讼，但可用的手段远比SEC有限。一旦起诉的是重量级对手，以美国民众的名义起诉的SEC就有责任获胜。
SEC未能加劲与高盛较量，再一次证明了它的无关紧要。如果胜利了，它会看到银行家少有地扪心自问，甚至承认，他们之所以能获准经营，是由于公共赋予的特权，而不是天赋的权利。若想恢复自己作为美国最重要监管机构的名誉，SEC现在必须找到另一个自己愿意对抗的敌人，提出另一次起诉。否则，要求废除它的呼声只会越来越高，越来越有理。
本文作者为美国乔治华盛顿大学(George Washington University)法学院Theodore Rinehart教授
译者/何黎
http://www.ftchinese.com/story/001033857
The Securities and Exchange Commission blew a perfect opportunity to redefine its role with its decision last week to accept a $550m settlement with Goldman Sachs over accusations that the bank misled various investors in a subprime mortgage product at the start of the US housing crash. In its founding legislation, Congress empowered the SEC both to protect investors and to ensure a fair and efficient market. The settlement may have accomplished the first goal. But it also showed the SEC's continuing failure to take its wider regulatory role in a more aggressive direction.
The settlement compensated the various investors for their losses, and mandated some remedial training for Goldman mortgage department employees. It also required greater internal monitoring at the bank. It caused Goldman some limited pain, in the light of its significant drop in second-quarter earnings earlier this week. Despite this, the SEC's decision continued a previous pattern of attempting to compromise with Wall Street, one fraud at a time, in times that call for more muscular regulation and clearer public signals.
The SEC has recently seen serious calls for its merger with the Commodities Futures Trading Commission � another body now charged with regulating derivatives � or even its abolition, given the two agencies' overlapping functions and the SEC's failures to act over recent years. Against this background, the SEC's Goldman suit, launched only in April, seemed to signal that the agency was back in the fight. It was hoped that a victory against Goldman would do more than redress a fraud; it would set a wider regulatory precedent that its manner of doing business was socially and economically unacceptable. It would also have held out the possibility of beginning necessary cultural changes on Wall Street that might at least diminish the chances of future crises, while demonstrating that the SEC's concern with market safety and fairness was more important than recouping a few bucks for big boy banks.
But once again, the SEC disappointed. The settlement, which was one of the highest paid by a US company, looks tough. But in truth, the SEC caved. It let Goldman, which decided that fighting the commission was not in its self-interest, effectively pay off the government with what amounted, in the long run, to pocket change. The SEC did so without making any management changes, or without a confession of all but the slightest regret. By accepting this settlement rather than holding out for a prosecution, or at least by fighting for a decent interval, the commission signalled it is still unwilling to carve out a wider regulatory role. More important, perhaps, it signalled to Wall Street that it has little to fear from SEC lawsuits.
Narrow enforcement in such cases is an important role. But the commission also appears to have failed to understand its critically important symbolic role. Chasing Goldman to ground, or at least trying harder to do so, would have sent a strong signal both to the financial community and the general public that the commission cared more about protecting the public interest than the health of investment banks.
It may be that the commission settled because it did not think it could mount a winning case, or that it chose not to bear the expense of winning. But if that is true, it had no business bringing the suit in the first place. The commission is not legally entitled to be a bully, no matter how big the guy it picks on. In a normal court, prosecution lawyers are entitled to bring cases they expect to settle. But they work with tools that are much more limited than those available to the commission. Once the commission aimed at the king, it had a responsibility, to the American public in whose name it sued, to win.
In failing to push harder to take on Goldman, the SEC again demonstrated its irrelevance. Had the commission won, it would have seen bankers engage in the unfamiliar act of consulting their consciences, and even acknowledging that it is by public privilege, not divine right, that we permit them to run their businesses. If it is to have any hope of restoring its reputation as America's premier regulatory agency, the SEC now must find another legitimate case, against an enemy it is willing to fight. If not, calls for its abolition will only grow louder, and more justified.
The writer is Theodore Rinehart professor of business law at George Washington University Law School
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