Why Facebook IPO Is a Bonanza for Wall Street

By John Carney, Senior Editor, CNBC.com

NEW YORK (CNBC) -- Wall Street is about to make $100 million thanks to a once obscure law passed nearly 50 years ago.

The law is a 1964 amendment to the Securities Exchange Act of 1934 that requires companies with over $10 million in assets and 500 shareholders to register under the Exchange Act.

Since registration carries all the costly disclosure of going public, many companies that hit the threshold decide that they might as well go public. Facebook is in no hurry to go public. It has unlimited access to private capital, as last year's Goldman Sachs(GS) sponsored deal demonstrated. Even after Goldman excluded U.S. investors from its offering, its Goldman funds were oversubscribed.

But because Facebook has far more than $10 million in assets and exceeded the 500 shareholder limit last year, the company is required to register with the SEC by April 29, 2012. It is likely to go public when it registers or sometime shortly afterwards.

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Although the 500 hundred shareholder rule is often thought to be a shareholder protection provision, it has really never been anything more than a hidden subsidy for Wall Street. The principal beneficiaries of the rule are Wall Street investment banks and the stock exchanges.

The rule was passed following the publication of the 1963 "Special Study of the Securities Markets," an investigation into the markets called for by President John F. Kennedy following an insider trading scandal involving an AMEX market maker.

The lobbying of SEC Commissioner Bill Cary is often described as one of the main drivers of the passage of the 1964 Amendment. Cary, a former Columbia law professor, has been described by one of his former assistants as "an intellectual snob" who "was not someone with sparkling genius intelligence, but with a discipline and a drive, and a clarity of where he wanted to go, that took him far beyond what other people with his abilities would do."

To this day, Cary is very well thought, regarded as one of the great reformers of the SEC and the securities industry. Not only was he instrumental in the passage of 1964 Act, he also helped turn policy-maker views against Wall Street's specialists. (A stance adopted by many snobs who followed Cary.) In many ways, the current market structure--for better and for worse--can be seen as the embodiment of Cary's vision.

Even as the 1964 Amendment were being passed, critics noticed that it was pressuring companies to register on the New York Stock Exchange. A paper of the Amendment published last year by business school professors Robert Battali, Brian Hatch, and Tim Loughran included this citation:

In an article in Barron's National Business and Financial Weekly, Ralph Colman Jr., publisher of the Over-the-Counter Securities Review, noted with respect to the 1964 Amendments that "while purporting to extend the long arm of federal regulation over-thecounter, its thrust is aimed at the bigger unlisted companies, many of which long ago voluntarily embraced full disclosure. Small, speculative or fraudulent O-T-C ventures, which led to the heaviest losses in recent years, will come under no greater SEC scrutiny in future than in the past... What the new law has done, however, is more disturbing than what it fails to do. In particular, the looming threat of regulation has touched off a massive flight of corporate enterprise from the over-the-counter market to an organized exchange."