WASHINGTON — Try to keep up: The CFTC is supposed to be investigating ICE because the FSA won't, even as members of the asset class make a killing off speculating and create a super bubble that could burst, making the subprime mess look like an economic hiccup.
And that's why many of you were sitting home this July Fourth weekend while the price of gasoline sets record highs on a near-daily basis.
At least, that's how U.S. Sen. Maria Cantwell sees it. And the Evergreen State Democrat is not alone.
One oil-and-gas industry analyst recently told Congress he couldn’t think of any reason to explain the run-up in crude oil prices besides “excessive” speculation. Of the $4 and change you’re paying per gallon, a consumer group estimates at least $1 is the result of speculation. Even the Saudis are blaming it on the speculators.
"These guys are looking at it like a Monopoly game," Cantwell said.
While some in Congress call for increased drilling in the Arctic and offshore and others want to impose a windfall profits tax, Cantwell has focused on what she believes is the out-of-control speculation in the oil markets.
Cantwell is no stranger to the issue. She spent several years prodding federal regulators to investigate the 2000-2001 West Coast energy crisis during which electricity prices spiked by 300 percent. Eventually, energy companies were ordered to pay millions of dollars in refunds.
Cantwell and others have called for stricter oversight of the trading in oil contracts and closing a loophole that a Texas senator inserted at the last minute in a 1,600-page must-pass bill that essentially exempted energy markets from regulation. It’s known as the Enron loophole.
Other bills pending before Congress would require speculators to have larger cash reserves, limit how much big pension funds can invest in commodity markets and restrict how many oil contracts a single trader can hold.
"It's just crazy," Cantwell said in an interview. "There is nothing wrong with people speculating and investing. But something is wrong when there aren’t any rules."
Federal regulators say they have taken steps to tighten their supervision of oil futures trading, though they continue to insist there is no evidence speculators are responsible for crude oil prices moving north of $140 per barrel.
"We have not found a smoking gun, but we are not sitting still," Walter Lukken, acting chairman of the Commodities Futures Trading Commission (CFTC), testified at one congressional hearing.
Instead, administration officials blame the increase in crude oil prices on the rising demand in China and India, OPEC's decision to keep a tight lid on supplies, perceived supply disruptions in such places as Nigeria and the shrinking value of the dollar. Others blame environmental regulations or the move to eliminate sulfur from diesel fuel in the United States and Europe.
"Not surprisingly, there is a growing body of inconsistent opinion on the many issues surrounding futures market behavior and oil prices and little systematic and comprehensive analysis," Gay Caruso, head of the federal Energy Information Agency, told one congressional committee.
But over the past five years, Caruso said, the number of light sweet crude oil futures and options contracts traded on the New York Mercantile Exchange (NYMEX) grew five-fold while at the same time the price of crude oil rose from $30 a barrel to $125 a barrel.
Once, the markets were dominated by airlines, trucking companies, refiners and others who bought oil futures as a hedge against future price increases. These "commercial" traders actually took delivery of the oil.
That has changed. By some estimates, speculators are now responsible for more than two-thirds of the trading in crude oil.
Wall Street investment houses, pension funds, major financial firms and big investors are playing the market, buying long, buying short, buying swaps, derivatives and other sophisticated products that require an MBA to understand.
Cantwell said 90 percent of the trades in the futures market involve strictly financial transactions and not the actual physical delivery of oil.
Of the 161 internationally traded crude oils, two of them — West Texas Intermediate Crude and Brent from the North Sea — represent the benchmark in oil pricing worldwide. WTI is considered a "sweet" crude because of its low sulfur content and is the favorite of U.S. refiners. The United States continues to be the world’s largest gasoline consuming market.
About 70 percent of WTI contracts are traded on the New York exchange, and the other 30 percent on the Intercontinental Exchange . Though it is based in London, ICE is owned by an Atlanta company, has trading terminals in the United States and trades mostly West Texas Intermediate crude, said Michael Greenberger, a University of Maryland law professor who tracks the oil markets.
U.S. regulators consider ICE a foreign exchange under the control of the United Kingdom's Financial Services Authority. Speculators have flocked to ICE because it is not regulated as tightly as the New York exchange.
And, though it is smaller, ICE has a lot of sway in determining oil prices.
"The ICE price is driving the New York price," said Cantwell.
The U.S. Commodities Futures Trading Commission could step in and exert more control. That's what Cantwell and others want. The commission is working with British regulators and ICE to gather more information about the trading. But Cantwell said that is only a small step.
"These guys (CFTC) are in denial about what their role is," Cantwell said. "They have abdicated their responsibility."
Cantwell called ICE a "dark" market that is essentially unregulated.
"A lot of money has flown there and no one knows who is doing what," she said.
Cantwell said there's a big difference between regulating pork bellies and crude oil. The CFTC was created in 1974 to regulate commodity futures and option markets in the United States.
Three of the four CFTC commissioners come from the agriculture sector, including one who is a former counsel for the Senate Agriculture Committee and another who is a former Department of Agriculture undersecretary. The Senate and House agriculture committees have jurisdiction over the CFTC.
"The CFTC is stuck in the agriculture area," said Cantwell.
Since the CFTC was created, Lukken said, the volume of futures exchanges have risen 8,000 percent while the agency's staff has shrunk by 12 percent. One bill introduced in Congress would pay for 100 additional staffers.
Even as Congress considers several dozen bills designed to rein in speculators in the oil markets, Wall Street has lobbied against new regulations, and lawmakers warn against a knee-jerk reaction.
"Simply assigning blame will not result in lower prices," said Sen. Saxby Chambliss of Georgia, the top Republican on the Senate Agriculture Committee.
Wall Street is following the developments closely.
"The CFTC action appears designed in part to deflect growing political pressure on Capitol Hill," according to an analysis by Goldman Sachs economic research division. The analysis said even though it was unlikely there would be any "significant" legislative changes this year, the "debate itself could break the rise in energy prices for a brief period..."
Cantwell said there is still time for lawmakers to act.
"Congress needs to do its job," she said.