Applying insider trading law to congressmen, government officials, and the political intelligence industry

This chapter, from Research Handbook on Insider Trading (Stephen M. Bainbridge ed., Edward Elgar 2013), considers the Stop Trading on Congressional Knowledge Act, or STOCK Act, passed by Congress by overwhelming margins in 2012 and signed by the President. The STOCK Act’s goal was to apply insider trading prohibitions contained in the Securities Exchange Act to members of Congress, their staffs, and the executive and judicial branches. This chapter will sketch the boundaries of application for the new STOCK Act, both with respect to government employees and to outside traders on political intelligence, and will explore some of the uncertainties all of these parties face in the wake of the STOCK Act. Two questions are considered. First, what unforeseen doctrinal challenges will be presented by the STOCK Act’s application of insider trading principles to members of Congress and government employees? Secondly, does the STOCK Act indirectly extend insider trading liability to outsiders trading on the basis of information that is obtained from members of Congress or government employees, and if not should the Securities and Exchange Commission (SEC) extend application to them? This chapter points to some serious doctrinal inconsistencies in the STOCK ACT’s application of insider trading doctrine under the Securities Exchange Act of 1934 to government employees.