Unfortunately, whatever new financial regulation emerges from Congress will not be so funny, with all sorts of unpredictable, unintended consequences. I anticipate also at least three predictable, unintended consequences: Government bureaucracy and costs of financing in the United States will increase; the new legislation will widen the relative advantage of the largest firms, like Goldman Sachs, as regulation always favors the incumbents; and financial practices that are inhibited here will simply move offshore.
The moribund venture capital industry is an example of unintended consequences of government regulation spawned during political frenzies. A decade ago, the U.S.'s vibrant venture capital industry was the envy of the rest of the world. Since 1980, in the U.S., companies no more than five years old have accounted for approximately all of net new jobs: On balance, older companies have hired no one. A decade ago, in technology-driven areas like Silicon Valley, Boston, and Austin, venture capital financed about a third of all start-up companies. Moreover, professional venture capitalists backed many of what are now the most important companies in the U.S.-- including Apple, which currently has the second or third highest market capitalization of any company in the S & P 500.
Today, all but a handful of venture capital general partnerships are struggling to replace the capital in their expiring funds. Over the last decade, the venture capital industry's returns to its limited partners have been abysmal, and limited partners have been responding by cutting back or eliminating their investments in venture capital. Consequently, the venture capital industry is losing the capacity to back start-ups, particularly in capital-intensive industries.
Historically, the venture capital industry has been extremely cyclical, and the nadir of a cycle has been the ideal time to invest in venture capital. But the venture capital industry is now not just in a cycle: Much of the infrastructure that supported venture capital has been destroyed by unintended consequences of government reforms. Over the past 14 months, the stock market has rallied more than it has in any such span of time since the Great Depression. If venture capital's pains were going to be alleviated by an upward cycle, such relief should have evidenced itself by now in robust initial public offerings of venture capital-backed companies.
Successful initial public offerings enable venture capital firms to earn a return on their investments, return capital to limited partners, and attract capital from limited partners to invest in new partnerships. The credible alternative of an initial public offering also enhances the price that a venture capitalist can negotiate for the sale of a portfolio company to a more established company. Rapidly growing companies based on proprietary technologies typically have negative cash flow for many years. Absent the initial public offering, or the sale, of a portfolio company with negative cash flow within a commercially reasonable time, a venture capital firm either has to accept dilution of its ownership interest in the portfolio company, put more capital than budgeted into the portfolio company, or liquidate it.
The government's inadvertent destruction of the infrastructure that supported venture capital began in the late 1990s with decimalization of stock trading. Prior to decimalization, which permits bids and offers for stocks at spreads as low as a penny per share, stock prices had always been traded at spreads quoted in fractions of a dollar per share, as determined by competition between market-makers-- typically, $0.75, $0.625, $0.50, $0.375, $0.25, $0.1875, $0.125, $0.0625, etc. The government also took away the market-maker's information advantage by requiring market-makers to show their best ("inside") quotes publicly, rather than exclusively to other market-makers. As a result of these reforms, market-makers could no longer make a profit dealing in any but the very largest companies' securities, and they ceased making markets in securities of smaller capitalization companies. Without the liquidity previously provided by market-makers, institutions became reluctant to buy securities of smaller capitalization companies; and securities analysts could afford to spend time following such companies only by participating in any investment banking revenue that such companies generated for their firms. The narrow spreads and lack of liquidity also meant that individual brokers with a retail clientele could no longer make a good living by specializing in smaller capitalization companies.
Next, the government inadvertently completed the destruction of research coverage of smaller capitalization companies by banning participation of securities analysts in investment banking revenues. Analysts were also restricted in helping to market initial public offerings. So if an institution bought an initial public offering, it would have to do so with limited analytic assistance in understanding the new company, with little or no subsequent research coverage of the company, and with no market-maker standing ready to commit capital to facilitate any subsequent buying or selling of the new company's shares.
Just in case a smaller company somehow manages a successful initial public offering, it now has to deal with the requirements of the Sarbanes-Oxley Act, a poorly drafted piece of legislation passed in the dead of night during the political frenzy over World Com and Enron. Congress and the Securities and Exchange Commission had no idea what it would cost companies to comply with Sarbanes-Oxley. The deleterious result for smaller companies was that it became prohibitively expensive for most of them to go pubic. Moreover, in a small public company, the CEO and the CFO in particular now have to divert significant amounts of their time from running the business to complying with Sarbanes-Oxley. Thus, an unintended consequence of Sarbanes-Oxley was to entrench large companies by building a barrier blocking smaller companies from access to the public capital markets. There has been some talk in Washington about modifying Sarbanes-Oxley's requirements for smaller companies. But the accounting firms-- which have a very strong lobby in Washington-- have used the pretext of Sarbanes-Oxley to raise auditing fees to multiples of their former levels, and they would be unlikely now to sign off on less expensive audits that transferred less risk from the accounting firms to their clients.
To be fair, even if the government had not unintentionally throttled initial public offerings, they would have had obstacles to hurdle. It is now well documented that initial public offerings, as a class of investment, produce substandard returns, as measured from the initial price at which they trade in the marketplace (which is typically higher than the price at which underwriters price the deal to their favored clients). Investors have new instruments with which to speculate-- from publicly traded SPACS, ETFs, etc., to private, leveraged bets on bets designed by financial engineers. Many investment banks and institutional investors have grown to be so large that only a big initial public offering could be of interest to them. And many speculators were burned a decade ago in the dot-com boom and bust.
Ironically, the government historically extolled and passed legislation to help the venture capital industry and never targeted it for reform. From time to time, there will still be a few reasonably successful initial public offerings. More frequently, venture capital firms will sell portfolio companies to larger companies. More rarely, a venture capital-backed company like Google will become so dynamic that it will stage a wildly successful initial public offering. But initial public offerings and the venture capital industry as we knew them are moribund. They were just collateral damage.