When news broke of Bernard Madoff’s alleged $50 billion worldwide Ponzi scheme, news accounts first protrayed him as a shadowy hedge fund manager outside the scope of regulation by the Securities and Exchange Commission. But as the sheer magnitude of the fraud became clearer, so did the picture of Madoff’s place in the Wall Street-Washington world.

Madoff’s businesses were actually subject to a variety of financial regulations, something Madoff would actually use as a selling point to investors. Last year in a speech, Madoff said, “In today’s regulatory environment, it’s virtually impossible to violate rules.” He registered as an investment adviser in 2006, and had been under the SEC’s extensive regulatory framework for securities broker-dealers since he founded his firm almost 50 years ago.

And far from being a shadowy figure, Madoff was a pillar of the financial establishment. He showered campaign contributions on politicians, mostly Democrats. He was also quite chummy with many of the financial regulators charged with overseeing him.

For instance, Clinton administration SEC Chairman Arthur Levitt, who has championed onerous mandates like the burdensome Sarbanes-Oxley accounting mandates to preserve “market intergrity,” appointed Madoff during his SEC tenure to what the New York Times describes as “a large advisory commission … that explored the rapidly changing structure of the financial markets.”

An even closer connection was SEC assistant inspections director Eric Swanson who, according to CNBC reporter Charles Gasparino, “was part of the team that examined Madoff’s brokerage firm” in 1999 and again in 2004. “During those exams, the SEC team said it found almost nothing wrong,” Gasparino writes in The Daily Beast. In 2007, after leaving the SEC, Swanson married Madoff’s niece Shana, who is the regulatory compliance attorney at her uncle’s firm

While there is no evidence of wrongdoing with regard to Madoff by either Levitt or Swanson, SEC officials, for whatever reason, looked the other way, despite numerous allegations and “red flags,” some received as early as 1992. And since 1999, rival investment manager Harry Markopolos had sent the agency detailed analysis of why he though Madoff consistent postive returns were mathematically impossible without running a Ponzi scheme or insider trading. In a 2005 submission he made to the SEC that was recently made public by the Wall Street Journal, Markopolos charged that it was “highly likely” that “Madoff Securities is the world’s largest Ponzi scheme.”

But despite the SEC’s incompetence in heeding these warnings, many are still arguing that to prevent future Madoff-type frauds, we need more regulations that give more power to the SEC. But it’s hard to see how any additional powers could have made a difference in this case, given that the SEC almost seemed determined to look the other way for violations of the most basic rules against securities fraud that had long been in place.

Since hedge funds were among Madoff’s clients (and biggest victims, as this WSJ editorial points out), calls are again being intensified for further hedge fund regulation to bring them under the cumbersome registration process for investment advisers. (The SEC already has full authority to investigate hedge funds and other unregistered investment entitities if there are suspicions of fraud.) This is what the agency tried to do a few years ago, only to have a three-judge federal appeals court panel throw out the rule in 2006 in a unanimous finding that the agency had stretched the law.

But the SEC can’t argue that this would have helped them prevent Madoff’s fraud, because, as noted above, Madoff had registered as an investment adviser in 2006, and was registered as a broker-dealer for decades.

This broker-dealer registration gave the SEC full power to investigate all affiliated businesses. As MarketWatch commentator David Weidner pointed out (in a column with a curious headline about “lack of regulation” that is the exact opposite of the author’s point — often columnists, unlike bloggers, don’t wite their own headlines), “Broker-dealers are supposed to be the most scrutinized of the investment community. If Madoff was running separate businesses, the SEC and FINRA should have been looking at all of them as a whole.”

In fact, the fact that Madoff was under such heavy regulation probably helped him in constructing the alleged facade. As business reporters Binyamin Appelbaum and David S. Hilzenrath wrote in their perceptive Washington Post article, “the fraud Madoff allegedly constructed was successful in part because it avoided the appearance of risk.” The article quoted an expert as saying that SEC regulators “had to make judgments, and they decided to look at derivatives, short sales, insider trading, all the things that Madoff never had.”

So The SEC was too busy hounding unregistered hedge funds, short-sellers, and entrepreneurial companies for trivial minutiae from Sarbanes-Oxley and other mandates to notice the fraud right in front of them. The regulators didn’t just “drop the ball,” as President-Elect Barack Obama recently asserted. They lost focus on where the most important “ball” was.

Getting that “ball” back by paying attention to warning signs about where the real fraud is, and rolling back the mounds of red tape on honest investors and entrepreneurs that also wastes the time the agency has to go after the real problems, must be the number one priority of newly designated SEC chairman Mary Schapiro.

President-Elect Barack Obama just nominated former Senate Democratic Leader Tom to be his Secretary of Health and Human Services. Much is being written about Daschle being a Washington insider, which he certainly is, but after leaving the Senate after his defeat in 2004, Daschle has commendably taken on the Beltway conventional wisdom on an important issue: The Sarbanes-Oxley accounting mandates.

In late 2005, Daschle became one of the first Democrats to criticize the 2002 law, rushed through Congress in the wake of the Enron and WorldCom falures, for its unintended consequences on entrepreneurs. In doing so he helped make the cause of Sarbox relief and reform biparisan. In a Wall Street Journal op-ed Daschle co-wrote with former Senate Republican Leader Bob Dole, the authors told readers of “small and mid-sized capitalization companies who say that their access to capital from publicly-traded stock markets has been made prohibitively expensive.” They pointed out that “studies have shown that the additional cost per company for compliance averages $1.4 million to $4.4 million,” and explained that “although increased auditing fees amount to a small burden for Fortune 500 companies as a percentage of revenue, the doubling or tripling of auditor bills, accompanied by additional accounting and legal fees, can be the difference between a profit and a loss for emerging businesses.”

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The bailout bill that passed through Congress today seeks to solve the financial mess by massively increasing government involvement in private finance. But more Government cannot be the answer to a government-created problem. The fact is that short-sighted government policies distorted the market in the first place. Bankers were certainly to blame for responding to these signals from government in the hope of a quick buck, but at its base, much of the problem was caused by government.

These are the top twelve articles, stories and papers that we think demonstrate this fact.

1. Fannie Mae and Freddie Mac are at the heart of the crisis, having helped to create an artificial mortgage boom. Fred Smith warned Congress about this in 2000, and was ridiculed for it. Read what happened here.

2. Steven Malanga outlines the “long road to slack lending standards” and just how government encouraged this, at RealClearMarkets.

3. Thomas Sowell explains how economic-populist politicians used their power to help create the problem.

4. The Securities and Exchange Commission requires firms to value their assets in a way that has vastly accelerated the liquidity problem. John Berlau explains why here.

5. A detailed examination of why mark-to-market accounting distorts the market from Peter Wallison of the American Enterprise Institute.

6. Back in 2000, City Journal warned that the Community Reinvestment Act (CRA), which encourages unrealistic aspirations to home ownership, was doomed to failure.

7. Earlier this year, Michelle Minton looked at how the CRA had indeed helped contribute to the subprime crisis.

8. Dan Mitchell argues that government created the problem, and more government will make things worse.

9. Even the International Monetary Fund recognizes that government “bailouts” don’t just merely postpone the inevitable in a banking crisis, they make things worse. This is a long paper, but see p. 4 in particular.

10. One of the oldest forms of government intervention in the financial markets has been deposit insurance. Yet globally it destabilizes capitalism, impedes innovation and makes a bad regulatory regime worse. British economist Andrew Lilico explains how.

11. Harvard economist Jeffrey Miron puts it bluntly: “The fact that government bears such a huge responsibility for the current mess means any response should eliminate the conditions that created this situation in the first place.”

12. Government has been becoming more intrusive when it comes to lending over the years. John Berlau looks at how they want to fingerprint anyone originating a home loan.

The bailout bill is now law, but it does little or nothing to solve the problems government created. As long as they persist, the financial markets will be at serious risk. In the end, we may need to bailout the bailout. Fixing these government-imposed problems must be a priority now if we want to have a strong, free economy.

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It’s been called a ticking time bomb by Investor’s Business Daily. CNNMoney asks if this will be the next disaster. Yet the Feds are delaying one key in bringing stability to our financial markets.

As a $62 trillion dollar over the counter market, CDSs need an exchange or central clearinghouse to provide transparency and collateral requirements. CME (formed from the Chicago Board of Trade and the Chicago Mercantile Exchange) and the Clearing Corp (formed from 17 financial players including UBS and Goldman Sachs) have stepped up to the plate. Clearing Corp could have had a clearinghouse up and running within a week or so; however, the Fed has pushed Clearinghouse to obtain a banking license which will probably delay its opening until next year. But with each bank that is removed from this house of cards the threat of meltdown is increased. The banks are falling one after another internationally, and with the CDSs so intertwined, its only a matter of time until when you take away one more card and they all fall.

According to Bloomberg, “Barclays analysts estimated in February that if a financial institution that had $2 trillion in credit-default swap trades outstanding were to fail, it might trigger between $36 billion and $47 billion in losses for those that traded with the firm. That doesn’t include the market-value losses investors face as the cost to protect companies against a default widens.”

Perhaps it would be a good idea for the Feds to speed their approval process?

At the peak of the real estate boom, there was one group of individuals who said the bubble was about to pop. They pointed to overvalued land and bad underwriting of loans. And they bet their own money on their beliefs. Who are these unsung prophets of the subprime bust: the much-maligned short-sellers, whom both Britain, as Iain Murray reported yesterday, and now the U.S. Securities and Exchange Commission temporarily want to ban in an effort to keep the share price of financials from going further down.

On Thursday, John McCain foolishly called for the ouster of SEC Chairman Chris Cox because Cox hadn’t cracked down on so-called “naked” short sellers and supposedly “kept in place trading rules that let speculators and hedge funds turn our markets into a casino.”

McCain would have been on better ground asking for Cox’s ouster based on his refusal to push for reform of the growth-killing and counterproductive Sarbanes-Oxley accounting mandates and for opposing CEI’s lawsuit against the law’s unconstitutional Public Company Accounting Oversight Board. The “naked” short-selling McCain was referring to — which doesn’t mean that someone is shorting a stock disrobed at their computer, but refers to when someone trades with shares that aren’t there — is already illegal. (Although the SEC steps recently taken to prevent it could have costly effects on broker-dealers who would have to redesign their computer systems. More on that in another blog post.)

But later that evening, Cox would apparently prove the even bigger fool by reportedly telling Congress that the SEC was going to temporarily ban all short selling! According to the Associated Press, “Cox told the lawmakers the SEC may put in a temporary emergency ban on all short-selling — not just the aggressive forms it already has targeted, according to a person familiar with the matter. The ban might apply to stocks of selected financial companies, to all financial companies or even possibly to all public companies.”

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