The legal team led by Kerry W. Kircher, who was appointed House General Counsel by Speaker John Boehner in 2011, claimed that the insider trading probe violated the separation of powers between the legislative and executive branch.
In 2012, members of Congress patted themselves on the back for passing the STOCK Act, a bill meant to curb insider trading for lawmakers and their staff. “We all know that Washington is broken and today members of both parties took a big step forward to fix it,” said Rep. Bill Johnson, R-Ohio, upon passage of the law.
But as the Securities and Exchange Commission made news with the first major investigation of political insider trading, Congress moved to block the inquiry.
The SEC investigation focused on how Brian Sutter, then a staffer for the House Ways and Means Committee, allegedly passed along information about an upcoming Medicare decision to a lobbyist, who then shared the tip with other firms. Leading hedge funds used the insider tip to trade on health insurance stocks that were affected by the soon-to-be announced Medicare decision.
Calling the SEC’s inquiry a “remarkable fishing expedition for congressional records,” Kircher and his team claimed that the SEC had no business issuing a subpoena to Sutter. “Communications with lobbyists, of course, are a normal and routine part of Committee information-gathering,” the brief continued, arguing that there “is no room for the SEC to inquire into the Committee’s or Mr. Sutter’s purpose or motives.”
Wall Street investors routinely hire specialized “political intelligence” lobbyists in Washington to get insider knowledge of major government decisions so that they may make trades using the information. But little is known about the mechanics of political intelligence lobbying, which falls outside the scope of traditional lobbying law, and therefore does not show up in mandatory lobbying disclosure reports.
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