Hedge funds are controversial these days. Though it’s unlikely that the average citizen or the average congressman could say just what hedge funds do, many are certain they must be reined in by additional regulation because they can—and do—cause widespread damage to our financial system. Almost everyone takes it for granted that regulation of some sort is the solution, ignoring the possibility that at least some of the problems are actually caused by regulation.

What is a hedge fund? The name implies hedging, a strategy that reduces risk. If you bet on several horses in a race, you are hedging your bets—spreading your risk. You can buy gold to hedge against inflation. You can sell interest-rate futures to hedge the risk that rising interest rates would pose to your bond portfolio.

The first hedge fund was created in 1949 by Alfred Jones. He believed he could pick stocks that would outperform and those that would underperform the overall market. But Jones didn’t know where the overall market was going, so he would buy his expected outperformers and sell short the expected underperformers. He thereby insulated his portfolio from general market moves, which would affect about half his holding positively and half negatively.

Most present-day hedge funds don’t do much hedging, but the name persists. Instead, they engage in a bewildering variety of trading methods, including buying on margin (using borrowed funds) and selling short (selling borrowed assets so as to profit from a price drop). They trade stocks, bonds, options, currencies, commodity futures, and sophisticated derivatives thereof. Some try to anticipate global political or economic events, while others seek opportunities in specific industries or companies.

Hedge funds are like mutual funds in some ways. A mutual fund sells shares to investors and uses the proceeds to buy stocks or bonds (usually). A fund’s income and realized capital gains are distributed to shareholders, while unrealized capital gains are reflected in higher mutual fund share prices. Like mutual funds, hedge funds are typically open-ended, meaning they can sell shares to new investors from time to time or repurchase them from existing shareholders.

There the resemblance ends. Anyone can buy mutual fund shares, but hedge fund shares are generally available only to “qualified investors,” defined by an annual income of at least $200,000 and financial assets of $1,000,000. Withdrawals of capital are only permitted at limited times. Shares cannot be offered or advertised to the general public, which can be an advantage because it may make investors feel that they are gaining entrée into an exclusive club.

Hedge fund managers are more lightly regulated than mutual fund managers. They are allowed to charge performance-based fees, for example, which is forbidden to mutual fund managers. Though management fees vary widely, hedge fund managers typically retain 20 percent of any gains. This gives them some “skin in the game,” which presumably motivates them to do well for their investors. However, they do not share in fund losses. Hedge funds typically charge short-term redemption fees to discourage short-term trading and maintain a stable asset base.

Perhaps the biggest difference between the two fund classes is that hedge funds are free to take very large risks, while mutual fund managers are constrained against “excessive” risk-taking.

Stupidity in the Hedge Fund Business

Long Term Capital Management (LTCM) was a hedge fund that collapsed in spectacular fashion in 1998. The immediate cause was the Russian bond default, but, more fundamentally, LTCM relied too much on sophisticated computer models and extreme use of leverage, meaning almost all its capital was borrowed. When the Russian government defaulted on its bonds, it set off a chain of events that LTCM’s models had indicated was essentially impossible. These events produced huge losses that took the fund to the brink of default, threatening big losses for its lenders, including some of the largest and most influential New York banks. So the Federal Reserve Bank of New York came to the rescue, arranging a $3.6 billion bailout, a sum that seems quaint by today’s bailout standards. The same “systemic risk” argument that we hear today went around then: A default on those loans, it was said, would be an intolerable shock to the financial system. “Too big to fail” was the reason; “too well-connected” was perhaps more accurate.

Even though the fund eventually recovered without losses to the bailout guarantors, the LTCM failure represents a missed—and golden—opportunity. Had the fund been allowed to fail, and had the big banks taken their losses, it would have struck some well-deserved fear into the hearts of fund managers, investors, and especially bankers. Our current financial crisis might have been less severe as a result. LTCM was very secretive about its strategies, and the bankers who loaned money to the fund likely knew next to nothing about what LTCM was doing with it until it was too late. They were awestruck by the reputations of the LTCM partners, two of whom had shared the 1997 Nobel Prize in economics. Had LTCM been allowed to go under, its example would have tempered risky behavior by others. If uninsured depositors at these banks had also lost money, they too would have gotten a valuable wakeup call. Instead, a brick was added to the house that came to be called the “Greenspan put.” It said: Go ahead and take risks. If you win you collect the profits. If you lose, we’ll cover you.

Hedge Funds: Bane or Boon?

Is it wise to take high risks as hedge funds do? For most people, no. For those whose resources are large enough that they can afford to lose some capital and who enjoy the thrill of the chase, perhaps yes. We all have different temperaments and different circumstances. A free society respects these differences and does not stop its members from taking risks nor shield them from the consequences.

As long as there is no fraud, hedge funds, like other market participants, produce social benefits. They provide market liquidity, the lubrication that makes markets work well. Successful funds help move capital to where it is most needed and help move prices in anticipation of future events. Unsuccessful funds go out of business sooner or later, and investors in failed funds learn to be more careful about whom they select to handle their money.

But regulation brings unintended consequences, many of them harmful to the people they are supposed to protect. Absent regulation, it is unlikely there would be a separate category called hedge funds, distinct from mutual funds.

Unfortunately, in January the President’s Economic Recovery Advisory Board, headed by Paul Volcker, called for registration of hedge funds and public disclosure of their holdings. Fund managers will likely resist disclosure, which can damage their mystique and invite free riders. The board report addressed not only hedge funds but also any other “systemically significant” financial institution of any type, and the criteria by which systemic significance is to be judged were left vague.  To their credit the board members recognized that “a modest system of registration and regulation can create a false impression of lower investment risk.”

The Hedge Fund Transparency Act (Senate Bill 344) was introduced shortly after the report was released. It has been in committee ever since. It would cover private equity funds and venture capital funds along with hedge funds.

Market participants will very likely find ways to get around any new regulation or to co-opt it, as they generally do.

Regulation: Rationale and Reality

Business regulation almost invariably starts with wide popular support. Most people assume big business must be restrained lest it run roughshod over the little guy. But often, as in the Progressive Era a century ago, it is big business that actually promotes regulation, expecting it to put smaller competitors or would-be competitors at a disadvantage. Often regulators start out conscientiously dedicated to their jobs, but over time familiarity can transform them into advocates for those they regulate. Hedge fund regulation is no different.

Why are people of modest means forbidden to buy hedge fund shares? The presumption is that they lack the knowledge and sophistication necessary for intelligent risk-taking. Common folk must be protected from themselves, lest they get in over their heads. After all, we can’t have people gambling their rent money. (Unless, of course, they’re gambling on state lottery tickets.) The regulation that was supposed to protect small investors actually protects large investors by locking out their smaller competition.

The prohibition on advertising by hedge funds (or other “private placements”) blocks potentially useful information. It is harder for managers and investors to find each other when important information is, in effect, censored. Middlemen, such as financial planners or trust officers, are left to fill the gap, which they do relatively inefficiently.

The rule forbidding mutual fund managers to charge performance-based fees again hurts the little guy by denying access to performance-motivated managers. It also drives up the fees that hedge fund managers can charge by shielding them from mutual fund competition in this respect. Thus both hedge fund investors and mutual fund investors come out on the short end of this regulation.

Regulators sometimes fail to catch the bad guys—see the Bernard Madoff case—but they sometimes destroy good guys as well. Art Samberg has enjoyed a long career as a successful stock-picker. By 2001 he and a colleague had built Pequot Capital Management into the largest hedge fund in the world, riding the technology wave up and later shorting it on the way down. In 2001 the Securities and Exchange Commission began investigating the firm for insider trading, but no charges were ever filed and Samberg strenuously denies any wrong-doing. Guilty or not, by last May the bad publicity had taken such a toll that Samberg announced he would shortly liquidate his fund—sell all its holdings and return cash to the shareholders. (Whether insider trading is something that should really be forbidden is a subject for another time.)

Regulation has many other drawbacks. But a badly neglected one is that government-imposed minimum standards tend to become maximum standards. People take less care to understand what they’re getting into with a regulated investment because they assume that regulators have diligently vetted the offerings. All firms getting a pass from the regulators tend to be treated alike. That’s when trouble begins.

[Editor’s note: this essay first appeared in the Freeman on Oct. 23 2010]