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Jan. 18, 2022, 7:59 a.m. EST

The SEC’s next regulatory target could be index providers

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By Chris Matthews

Few ideas hold sway over U.S. markets and the economy today more than the wisdom of passive index investing. Vanguard founder Jack Bogle’s once-eccentric belief — that an individual investor’s best recipe for long-term gains is a diversified portfolio of securities and a relentless focus on keeping fees low — is now the market’s most widely held philosophy. 

It wasn’t just the strength of Bogle’s ideas, however, that created an environment where funds that passively track a broad market index like the S&P 500 /zigman2/quotes/210599714/realtime SPX +2.47% now manage more than half of the roughly $11 trillion invested in domestic equity funds. A series of legal and regulatory changes over the past 50 years laid the foundation for passive investing’s dominant role in today’s markets, and the Securities and Exchange Commission may now be set to rein in some of the unintended consequences that previous reforms wrought, according to interviews with current and former regulators. 

“Fundamentally, millions of American families don’t choose what they invest in, an index provider chooses what they invest in,” Robert Jackson, who served as an SEC commissioner from 2018 to 2020, told MarketWatch.  

“The choice to include or not include a company in the S&P 500 moves billions of dollars of American families’ money in and out of that company,” he added. “That choice is subject to very little oversight and it raises potential conflicts of interest that have never been addressed by financial regulators.”

The Center for American Progress, a left-leaning think tank, issued a report Friday, previewed exclusively to MarketWatch, that argues that the SEC and other financial regulators “should adopt a comprehensive regulatory regime for financial products tied to indexes,” including setting minimum standards for governance of indexes and mandating transparency regarding methodology, licensing fees and potential conflicts of interest.

The SEC, which is headed by Gary Gensler, may soon act on this recommendation. In its recently published regulatory agenda , the agency said it would consider asking the public to comment on the role index providers play in the asset management industry.

SEC Commissioner Caroline Crenshaw told MarketWatch in a statement that she supports the agency investigating the topic.

“Trillions of dollars are tied to the performance of indexes, yet it’s not always clear how indexes are constructed or governed,” said Crenshaw, a Democrat. “Investors who depend on indexes for their retirement or their children’s education deserve to know how their money is being invested and that the investment is in their best interest.  The commission should consider ways to ensure these goals.”

Index membership for sale?

Andres Vinelli, vice president for economic policy at CAP and the former chief economist at the Financial Industry Regulatory Authority, pointed to new research that indicates index providers could be adjusting their inclusion criteria to benefit issuers with which they have a financial relationship. 

In November, academics Kun Li and Xin Liu of Australian National University and Shang-Jin Wei of Columbia University published research which argued that S&P Global’s index division has significant discretion over which firms ultimately end up in the S&P 500 and that “the discretion is often exercised in a way that encourages firms to buy fee-based services from the S&P.” 

“This happens to issuers that are companies, but could happen with whole countries,” Vinelli said in an interview. “If you’re managing a bond fund, countries might want to have their bonds in your fund and there might be levers countries can use to induce you to do that.”

S&P disputes the accuracy of the report.

“This non-peer-reviewed paper is flawed and contains a number of misleading and inaccurate statements about the S&P 500, its methodology and eligibility rules, and the impact of index inclusion,” April Kabahar, a spokesperson for S&P Global /zigman2/quotes/208931849/composite SPGI +2.32% said in a statement to MarketWatch. “S&P Dow Jones Indices and S&P Global Ratings are separate businesses with policies and procedures to ensure they are operated independently of one another. Our Index Governance segregates analytical and commercial activities to protect the integrity of our indices.”

The Wall Street Journal reported in 2019 that MSCI Inc. /zigman2/quotes/202905332/composite MSCI +3.56% , the provider of the closely followed Emerging Markets Index, was pressured by the Chinese government to include domestic Chinese stocks in the index. The report cited unnamed sources which said that the Chinese government directed asset managers in the country to withhold business from MSCI after it had previously declined to include those stocks. MSCI said in response to the article that its index-inclusion process is run by a separate division than its commercial operations and that its criteria are public and transparent.

Investment advising in disguise

SEC rules require that that mutual funds select a benchmark index and to report the fund’s performance relative to that index, and this mandated practice of benchmarking has produced a legally enshrined source of revenue for index providers, who charge fund managers licensing fees.

/zigman2/quotes/210599714/realtime
US : S&P US
4,158.24
+100.40 +2.47%
Volume: 2.17B
May 27, 2022 5:49p
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/zigman2/quotes/208931849/composite
US : U.S.: NYSE
$ 360.64
+8.17 +2.32%
Volume: 2.18M
May 27, 2022 4:00p
P/E Ratio
26.03
Dividend Yield
0.94%
Market Cap
$125.18 billion
Rev. per Employee
$379,431
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/zigman2/quotes/202905332/composite
US : U.S.: NYSE
$ 448.17
+15.39 +3.56%
Volume: 540,484
May 27, 2022 4:03p
P/E Ratio
49.17
Dividend Yield
0.93%
Market Cap
$36.36 billion
Rev. per Employee
$584,934
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