Given the political implications of the rise in commodity prices, this is not the best environment in which to begin regulating markets like election contracts, but the consensus that seems to be building on the relevant questions is rather auspicious. Hedgestreet and I have presented similar legal and regulatory frameworks to allow for at least the types of election contracts we are familiar with through sites like Intrade. Given Hedgestreet’s vigorous and incisive comments, I regret not having argued more for the desirability of non-intermediated exchanges.

In their focus, however, Hedgestreet steered clear of the gaming pre-emption questions and did not present a comprehensive and general framework for event markets. In that respect, their broaching of the CFTC’s plenary option authority opens more questions than it answers, but several interesting and important markets could perhaps be traded without answering all such questions.

I encourage Hedgestreet to begin working with the NFA to develop the infrastructure necessary for the types of trading prohibitions that we each described in our comments. I encourage the CFTC to act decisively in light of the self-evident and massive value of certain event markets — even with the current political pressures, which are mainly relevant to event markets on a superficial level. Perhaps if the CFTC deems that an exercise of emergency powers is necessary at some point, that would be an appropriate day to also make a decision on event contracts public.

We are at a specific point where a little bit of additional regulation might cause an explosion in legal prediction markets, and possibly soon. As a libertarian, I generally dislike regulation, and of course it’s true, pretty much by definition, that over-regulation is bad, but I don’t believe that to be the most effective message for this comment process and the unique opportunity it presents.

Commodity Futures Trading Commission
Three Lafayette Centre
1155 21st St. N.W.
Washington DC 20581
Attention: Office of the Secretariat

Re: Concept Release on the Appropriate Regulatory Treatment of Event Contracts

JURISDICTION AND EVENT MARKETS IN GENERAL

Given the explicit statutory definitions of “excluded” and “exempt” commodities, it is reasonable to conclude that the U.S. Commodity Futures Trading Commission (“CFTC”) has jurisdiction over all exchange-traded event markets. That is, if an “occurrence, extent of occurrence or contingency” does not meet the additional “beyond the control” and “economic consequence” criteria, then contracts on such events should be considered exempt commodities. While currently all exempt commodities are associated with a deliverable other than cash, the open-ended definition of “exempt commodity” considered alongside the definitions of “commodity” and “excluded commodity” in 7 U.S.C. § 1a imply that contracts on events that are not beyond the control of participants or do not involve an outcome of economic consequence are exempt commodities.

This conclusion presents enforcement issues that the CFTC may wish to avoid, such as being obligated to pursue actions against exchanges offering contracts based on the outcome of sporting events. Unfortunately, without further statutory clarification, this conclusion seems like the most defensible one, based on the letter, if not the intent, of the law.

That said, until statutory clarification is attained, given the purposes and history of the Commodity Exchange Act (“CEA”), it would be appropriate for the CFTC to only assert jurisdiction over those event contracts satisfying “economic consequence” criteria, which would include the price discovery aspect of the former economic purpose test. An interpretation to this effect by the CFTC would not be inconsistent with the text of the CEA, and would best serve to minimize the burden on interstate commerce. This policy decision would effectively reconstitute the pre-Commodity Futures Modernization Act economic purpose test for event contracts in a way that avoids unwanted enforcement issues. Such a decision would be unlikely to meet significant resistance until such time that further statutory certainty is forthcoming.

The CFTC would be free to classify such contracts as either excluded or exempt commodities depending on their susceptibility to manipulation, before or after special trading prohibitions are in place. Although the anti-manipulation requirements that apply to exempt commodities are directed towards price manipulation, a fortiori they must also apply to outcome manipulation.¹

The CFTC is free to determine what qualifies as “economic consequence.” As with the economic purpose test, significant hedging and price discovery functions would comprise the principal criteria.² Regarding the latter, since event derivatives have no corresponding “cash” markets, the origination of prices that may improve economic decisions is all the more desirable in these cases. Furthermore, events that may only directly affect a group of private individuals may also have a strong bearing on commercial decision-making. Note that some general events and measures, as categorized and listed by the CFTC in its Concept Release, do in fact correspond to economic measures.³ Even if these events do not predictably correlate with asset prices, they may have predictable effects on market volatility. For example, from 1980 through present, the annualized weekly volatility of the S&P 500 in weeks in which a presidential or mid-term election took place was 19.97%, vs. 15.34% for all other weeks.⁴ It is difficult and ultimately undesirable to provide a quantitative recommendation for a bright-line demarcation between those markets that would satisfy an economic consequence criterion and those that would not. However, if a significant statistical test can easily be found that includes the price series of a more familiar asset, and has a logical basis, we can reasonably say that such events are associated with an economic consequence. In many cases the relevant time series may be unavailable, but in those cases the applicability of a proposed event market to other assets may be obvious. For example, consider a market predicting the likelihood of: (1) ethanol-related legislation, and its relationship to corn prices, or (2) offshore drilling legislation, and its relationship to oil prices, or (3) an attack on Iran, and its relationship to oil prices, or (4) future tax rates, and its relationship to municipal bond prices. In such cases, no quantitative test is necessary. In other cases, we may have moderately strong reasons to suspect that a given event or measure has an impact on asset prices, as we do with demographic trends, but those effects may be difficult to measure empirically.

Many potential markets may improve decision-making for a particular business, but have little bearing on the broader economy and asset prices in general. Examples of these markets include those predicting: (1) the revenue of a particular product, published title, film or performance series, (2) the launch or completion date of a particular product or project, and (3) the success of a particular approach applied to certain problem. The CFTC may find that only broad-based events or measures affecting an entire population, industry or significant percentage thereof would satisfy the economic consequence criteria. This would be nothing new, as commodity derivatives were not intended to be specialized insurance contracts. Such narrow questions also present issues from a manipulation and insider-trading perspective. In aggregate, these sorts of questions are quite relevant to the economy and will at times reflect broad trends, but may be more appropriately served by over-the-counter arrangements or riskless information aggregation, despite the obvious advantages of market incentives.

Contracts satisfying economic consequence criteria need not be approved for listing by the CFTC, though it is hoped that guidelines will be made public and remain flexible. At the limit, the CFTC will recognize that even a purely speculative market might serve an economic purpose in reducing portfolio variance.

Additionally:

The CFTC might levy a special fee on regulated event contracts to recoup expenditures related to a trading prohibition facility and other special demands on resources.

It may be required that exchanges pay interest on binary event contract collateral in order to reduce price distortions near extreme prices (100% and 0%). In illiquid markets, such distortions could be used to disguise transfers of money between anonymous participants.

The CFTC should welcome Securities and Exchange Commission opinion on contracts based on events like earnings and dividend announcements, a group of which might begin to replicate a security. Whenever a market is proposed that reflects the cash flow of a particular business or property, this opinion may be relevant.

To the extent that they subsequently conform to the CEA and CFTC policy, amnesty for any past violations should be considered with respect to Intrade and similar exchanges that have operated legally in their domestic jurisdictions.

ELECTION AND POLICY EVENT CONTRACTS

Election and policy event markets are within the jurisdiction of the CFTC based on the letter and spirit of the CEA. These markets represent the largest reasonably predictable yet unhedgeable risk facing businesses and the public. The regulation of such markets follows from the history of enlightened, flexible innovation exemplified by the CFTC. Because of their importance, election and policy event contracts naturally involve special consideration, although only in the course of satisfying the CEA.

Considering election contracts:

Trading prohibitions should be established such that candidates and proxies cannot participate due to their ability to determine the outcome of the contract. In addition to adhering to the “beyond the control” requirement of excluded commodities and general anti-manipulation precepts, the CFTC will want to consider to what extent such prohibitions might be expanded to act as insider trading restrictions similar in form to those of 7 U.S.C. § 13(f) or the proposed H.R. 2341.⁵ Especially given the all-or-nothing nature of many event contracts, this might be desirable in order to provide for fair and equitable trading.⁶

Upon the death of a candidate, the candidate’s contracts and those of all competitors must settle on the last known price before the event. A new set of contracts reflecting the new set of candidates could subsequently be offered.⁷

Analogous rules could be applied to policy and legislative contracts where appropriate. These rules, either directly administered by the CFTC and related associations, and/or required of exchanges, would firmly address outcome manipulation.

Because of their importance and sensitivity, these contracts also require special measures to ensure against price manipulation. However, it is important to note that election and policy markets have typically been traded as binary event options. Such contracts expire at a specific time according to a well-defined objective event and in that way are more resistant to manipulation than futures and perpetuities, the prices of which are unbound in one direction and always open to interpretation based on unobservable factors and developments in related markets. At the same time, the relative detachment of event contracts from the web of more familiar asset prices may make manipulation more difficult to prove.

As would be expected, large trader lists could be maintained and closely followed. A more powerful option is the enforcement of extraordinarily low position limits, which would greatly reduce the potential of price manipulation. At the same time, position limits should respect outstanding risks participants may have and be otherwise unable to hedge, as with traditional hedging and speculative limits. Low position limits also address trader protection concerns if such contracts were to be offered in a non-intermediated fashion. Leverage might likewise be limited. Several tiers of opt-out protection could be available to traders of various capitalization and expertise. Contracts might also be restricted to limit orders in order to curb short-term feedback trading.

Election and policy contracts ought to be restricted to domestic accounts only. This will avoid possible extradition problems where disciplinary action is required. In the case of event contracts that may reflect tax rates, this restriction will also determine that the Department of the Treasury will not lose revenue on a net basis.⁸

FLEXIBLE LEGAL IMPLEMENTATION

Instead of, or in addition to, claiming jurisdiction over some event markets, the CFTC has at its disposal a range of public interest exemptions, including some that interpret the 7 U.S.C. § 6(c)3(K)⁹ qualification clause liberally in order to include participants who might not normally trade in traditional futures and options markets. From my perspective, such exemptions may allow for a more flexible development of event markets in a less heavily-regulated environment. For example, it might allow for a contract in research science claims where trader-researchers capable of determining the outcome are not readily identifiable, or provide for trading in the sorts of narrow, business-specific questions previously mentioned. From the CFTC’s perspective, a public interest exemption may be desirable in order to avoid making a firm jurisdictional claim. However, the outcome of this comment process should be a decisive policy statement from the CFTC, not a sequence of ad-hoc actions. It is hoped that any future public interest exemptions would be offered alongside a substantial list of requirements and guidelines that would at least signal jurisdiction over a class of event markets possessing certain characteristics. Legal certainty is perhaps the most important outcome in this process, and it is not desirable for the CFTC to extend exemptions in a manner that leaves its jurisdiction completely ambiguous with respect to the markets so exempted.

This leaves aside the question of who may operate such markets. If exempted exchanges are to operate for profit, a jurisdictional statement from the CFTC is all the more necessary in order to ensure their legal standing. Exemptions directed at non-profits may be superfluous from a perspective of legal certainty, especially if such exchanges only offer trading in States where the predominant factor test holds.

The CEA allows that public interest exemptions may be issued for specified time periods. The CFTC may wish to consider to what extent exemptive or no-action letters with renew-by dates attached might be a useful tool in light of evolving legal conditions and technologies.

Note that theoretically the CFTC could also assert jurisdiction over all event markets and then direct no-action letters to the finite list of sports and gaming exchanges as a facility to repudiate jurisdiction over such markets. Typically, exempting markets formed principally for speculation would be considered against the public interest. However, if the CFTC finds no satisfactory way under the CEA to take jurisdiction over only those event markets that are associated with economic consequences, no-actioning sports and gaming exchanges would be in the public interest on a net basis, and would best promote interstate commerce. Furthermore, in some cases such exchanges operate under their own regulatory bodies and protections. It is also seldom that such exchanges allow for leveraged trading by beginner participants. In general, most gaming takes place via over-the-counter transactions.

THE PUBLIC INTEREST

I have neglected to argue for event markets in terms of the public interests they promote as these facts have been covered by others and have no doubt been obvious to the CFTC for a long time. I will only note some cases that are more subtle:

Information and estimates can be revealed in conditional form, as in the “decision markets” hosted on Intrade.¹⁰ One such market pays 100% if a Democrat is elected President in 2008 and the national debt rises in the calendar year preceding October 2011. Since the probability of the former event is also available on Intrade, by P(A | B) = P(A & B) / P(B), we can say that the probability of a Democratic president leading to a rise in the national debt is the decision market price divided by the election market price. This type of market is thus able to predict the result of electoral or legislative decisions, and different decisions can be so compared. With this in mind, consider that while prediction markets are usually described as ways to aggregate information, they are likely also useful in terms of collective problem-solving, even in cases where all information is transparent.

In terms of risk-sharing, eventually the utility of political event markets might begin to address some well-known problems with representative government. Consider the typical special interest problem in which a few relatively well-funded individuals would gain heavily by a particular piece of legislation such as an industry subsidy, and so will lobby heavily for it. Even if the legislation is not in the public interest, the costs will be distributed over so many tax payers that they will not care to argue against it, and most will not even realize what’s happening. When mature legislative and public policy markets are in place: (1) the dispersed interests will have the recourse of hedging against policy they dislike, (2) special interests will also have the option of hedging their legislative fortunes, which might lead to an overall reduction in lobbying, and (3) legislators may find compromises to be easier, since interests would be able to voluntarily “meet each other half way,” with price being the arbitrator. This could ease political log-jams, making law-making itself more flexible and efficient. Sensible yet otherwise politically infeasible measures such as unwinding entrenched subsidies could be made viable.

Even if iterations are required, the outcome of this comment process should be a clear statutory interpretation and policy statement from the CFTC regarding event markets. The CFTC should also publish self-certification guidelines for those markets that it determines are within its jurisdiction. Once jurisdiction and/or a public interest exemption framework is determined, it should not be ambiguous whether, for example, a contract based on a presidential election would be approved by the CFTC in principle.

There is good deal of apprehension among those who study prediction markets that regulation will stifle innovation. In truth, exchange requirements may not be as onerous as they are often portrayed, and in most cases are perfectly appropriate. A related, implied fear is that the CFTC may not approve certain contracts such as those on election and legislative events that undeniably possess economic purpose due only to their political sensitivity and considerations of the CFTC’s source of authorization and funding. I hope that this process will assuage such fears. I encourage the CFTC to act decisively and comprehensively in accordance with its purposes.

Sincerely,
Jason Ruspini

Footnotes:

¹ For example, a market on infrequent terrorist attacks would not be approved for the simple reason that outcome manipulators could not reliably be identified beforehand.
² cf. Robert Hahn and Paul Tetlock, “A New Approach for Regulating Information Markets,” AEI-Brookings Joint Center Working Paper (December 2004).
³ Justin Wolfers and Eriz Zitzewitz, “Using Markets to Inform Policy: The Case of the Iraq War,” NBER Working Paper (June 2004).
Justin Wolfers, Erik Snowberg and Eric Zitzewitz. “Partisan Impacts on the Economy: Evidence from Prediction Markets and Close Elections,” NBER Working Paper (March 2006).
Erik Snowberg, Justin Wolfers and Eric Zitzewitz, “Party Influence in Congress and the Economy,” Quarterly Journal of Political Science: Vol. 2: No 3, pp 277-286 (2007).
⁴ F-test (α = 0.1126). If we instead only consider the Wednesdays following election day compared to all other days over this same period, α = 0.0246.
⁵ The “Stop Trading on Congressional Knowledge Act”.
⁶ Trading prohibitions on insiders will also avoid a situation in which candidates are able to enjoy a multiplier effect on their campaign funds by shorting themselves. For example, Candidate A has a campaign fund of $2, and candidate B has $1. By hedging, candidate A can maintain a $2 risk while spending $4 on campaigning while candidate B can only spend $2 to maintain a $1 risk.
⁷ cf. Intrade rules. A more challenging possible scenario involves manipulation preceding the event such that the forced settlement locks-in profits, presumably just as market power is exhausted. See note below on restricting market access to US-based accounts.
⁸ Such restrictions would however tend to limit the growth of such markets and/or result in risk premia accruing to short tax-rate positions.
⁹ “Such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.”
¹⁰ For background, see: Robin Hanson, “Decision Markets for Policy Advice,” Promoting the General Welfare: New Perspectives on Government Performance, pp 151-173, Brookings Institution Press (November 2006).

Asia Times:

[...] Outperforming Taiwan’s polls shouldn’t be hard. They’re notoriously bad as a forecast of election outcomes. In late 2006, for example, many media polls underrated the pro-independence party’s support – a recurring problem. Taiwan’s prediction markets did a much better job of estimating vote shares (the island’s two markets both called the Kaohsiung mayoral election wrong, but that contest was a statistical dead heat). “Most opinion polls usually have 20 to 30% ‘no answer’,” said Lin Jih-wen, director of the Center for Prediction Markets. “We don’t have missing data or a sampling bias, that’s our strength.”

The market has now picked the strong likelihood of victory by the China-friendly candidate Ma Ying-jeou. Time will tell if it’s got the right guy. But even if it doesn’t, the markets’ enthusiastic reception shows how Asia – like the US and Europe – has embraced such markets as a powerful fortune-telling tool.

A “powerful fortune-telling tool”? Jesus.

“Outperforming” the Taiwanese advanced indicators which they are feeding on? Humm…

[Mike Giberson will write a comment, below, reminding me of Prof Koleman Strumpf's work (PDF file) showing that the historical prediction markets were accurate enough, even though the scientific polls were not invented yet. Yes, I know of that, Mike, but I still don't get whether it's a puzzle or a mystery. ... Do you?]

The French presidential election
France’s chance
Apr 12th 2007
From The Economist print edition

After a quarter-century of drift Nicolas Sarkozy offers the best hope of reform

No French presidential election in 50 years has looked as unpredictable [*] [?? - SEE THE MARKET-GENERATED PROBABILITIES, JUST BELOW] as this year’s, the first round of which takes place on April 22nd. This is so even though the leader in every opinion poll so far has been Nicolas Sarkozy, the candidate of the ruling centre-right UMP party. His support may be overestimated, just as that of the far-right Jean-Marie Le Pen may be underestimated. The rise of the centrist François Bayrou, who at one point almost overtook the Socialist Ségolène Royal, has muddied the electoral arithmetic. And with only ten days to go, more than two in five voters are undecided.

This election matters. France is the euro zone’s second-biggest member and home to ten of Europe’s 50 biggest companies. But it is deeply troubled. It has the slowest-growing large economy in Europe, a state that soaks up half of GDP, the fastest-rising public debt in western Europe over the past ten years and, above all, entrenched high unemployment. Over the past 25 years French GDP per person has declined from seventh-highest in the world to 17th. The smouldering mood of the suburbs (banlieues), home to many jobless youths from ethnic minorities, blazed into riots in 2005 and lay behind new trouble that flared recently at a Paris railway station. The disenchantment of voters is reflected not only in opinion polls but also in their rejection of the European Union constitution in 2005. Tellingly, they have not re-elected an incumbent government for a quarter-century.

The most urgent cure for all these ills is to get the economy growing faster. That requires radical liberalisation of labour and product markets, more competition and less protection, lower taxes and cuts in public spending, plus a shake-up of the coddled public services. None of these things was seriously tackled in the past 26 years, under the presidencies of François Mitterrand, from the left, and Jacques Chirac, from the right. This was a time when other European countries, such as Britain, Spain, the Netherlands, Ireland and the Nordics, transformed themselves for the better, and still largely retained their cherished social models and welfare systems. Here lies the biggest challenge for the next French president.

Worst, worse, bad
How do the candidates measure up? Only three of the 12 are serious runners (see article). A fourth who may shape the outcome is Mr Le Pen, the veteran leader of the racist National Front, who shamed France by edging past the Socialist candidate into the run-off against Mr Chirac in 2002. Mr Le Pen’s poll numbers are better now than they were at the equivalent stage then. It is vital for France and its image that Mr Le Pen be kept out of the second round this time.

Ms Royal would be an asset in the second round, turning it into a satisfyingly direct left-right contest. She has other attractions: the first woman to be a serious contender, the boldness to push past the elephants in her party to win the nomination, a willingness to break with Socialist taboos by praising Britain’s Tony Blair and criticising the French state’s imposition of a maximum 35-hour working week. Unfortunately her policies are woolly even by modern standards. And in economics, she stands squarely behind all the old left-wing shibboleths: state intervention, rigid labour protection and high taxes.

On the face of it, the centrist Mr Bayrou is more promising. His pledge to curb the public debt is more credible than Ms Royal’s and even Mr Sarkozy’s. But he has failed to promote a free-market agenda—he is distressingly fond of farm subsidies and state intervention. Nor is it clear how he would form a government: his centrist party is tiny, and his vague musings of drawing in like-minded leaders from left and right smack of the lowest common denominator.

Faute de mieux
Which leaves Mr Sarkozy as the best of the bunch. Unlike the others, and despite his long service as a minister under Mr Chirac, he makes no bones of admitting that France needs radical change. He is an outsider, born to an aristocratic Hungarian émigré father; he openly admires America; he is enthusiastic about the economic renaissance of Britain. He plans an early legislative blitz to take on hitherto untouchable issues such as labour-market liberalisation, cutting corporate and income taxes and trimming public-sector pensions.

But there are two doubts about Mr Sarkozy. As he showed in his brief stint as finance minister, he has most of the traditional French politician’s meddlesome economic instincts, favouring a strong industrial policy, protected national champions and even interfering in supermarket prices. Recently he has taken to heaping blame on the European Central Bank for France’s self-inflicted failings.

Such economic populism may merely be a ploy to win over an electorate that has long been averse to the market. But in Mr Sarkozy it is yoked to a second unattractive streak: a form of nativism, reflected in his harsh comments about immigrants and national identity. His supporters say he must tack right to lure voters from Mr Le Pen. But he is now so unpopular in the banlieues that—unlike Mr Le Pen—he has barely set foot in them during the campaign. As interior minister, he took great interest in how to improve the lives of French Muslims, but he has dropped all such talk as a candidate.

This may also explain the biggest defect in Mr Sarkozy’s foreign policy: his fierce hostility to letting Turkey join the EU. Ms Royal has bravely supported the principle of Turkish membership. But this is unlikely to be put to the test for at least a decade, and on other EU issues, such as the future of the constitution, Mr Sarkozy has a more sensible, pragmatic approach than either of his main rivals. He is also the most likely candidate to repair France’s tattered relations with America.

On the evidence of his career and his campaign, Mr Sarkozy is less a principled liberal than a brutal pragmatist. Yet he is the only candidate brave enough to advocate the “rupture” with its past that France needs after so many gloomy years. It has been said that France advances by revolution from time to time but seldom, if ever, manages to reform. Mr Sarkozy offers at least a chance of proving this aphorism wrong.

—

BetFair – French President prediction markets

Nicolas Sarkozy: 66%

© NewsFutures

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[*] The Economist has a screw loose. This French presidential election looks predictable. The day before his re-election in November 2004, the George W. Bush event derivative was at 55%.

WARNING: If ever the Centrist Francois Bayrou gets more votes than the Socialist Segolene Royal, he passes the first round and will win over Republican Nicolas Sarkozy in the second round. The prediction markets do not think it is likely (13%), but that could happen.

Previous: The Economist should set up The Open Institute of Prediction Markets.

UPDATE: MIDAS ORACLE PROCLAIMS REPUBLICAN NICOLAS SARKOZY AS THE FRENCH PRESIDENT-ELECT.

Via Steve Roman, Taipei Times:

The market’s predicted winner of the Taipei mayoral election — Chinese Nationalist Party (KMT) candidate Hau Long-bin (???) — was similarly pegged by speculators as earning a vote share that missed the mark by only one percentage point. “Contrast that with media polls,” Liu said. “They were all off in their forecasts of voting shares by around ten percentage points, and even failed to predict the winner.”

Take that, Barry Ritholtz!!