Commentary
Another run at rolling back corporate regulation
By Jerry Mazza
Online Journal Associate Editor


Nov 14, 2006, 01:35

Just when you thought those big-time crooks from corporate business were getting a taste of their own medicine, a full frontal attack on the Sarbanes-Oxley Act is being planned.

That landmark post-Enron legislation placed major auditing and governance requirements on companies, and also put some teeth into the interpretation of malfeasance by the Securities and Exchange Commission (SEC).

Now crybaby business and its godfathers in the Bush administration want to us to forget Enron, Tyco, Global Crossing, et al, and the fabulous philanderers who brought the whirlwind down on their massive corruption. Let’s review. Ex-WorldCom chief exec Bernard Ebbers got 25 years in March 2005 for his role in orchestrating the biggest corporate fraud in the nation's history.”

Ebbers was convicted . . . for his part in the $11 billion accounting fraud at WorldCom that was the biggest in a wave of corporate scandals at Enron, the [cable supplier] Adelphia and other companies. WorldCom, now known as MCI, filed the largest bankruptcy in U.S. history in 2002. The company's collapse led to billions of dollars in losses for shareholders and employees.

Ebbers was convicted in March of nine felonies.

Then, in September 2005, Tyco’s former CFO Dennis Kozloswki Gets up to 25 years, ditto for former Tyco CFO Mark Swartz, the latter fined $35 million, Kozlowski $70 million, total fines and restitution $230 million, for ”their part in stealing hundreds of millions of dollars from the manufacturing conglomerate. The former Tyco executives were ordered to start serving their sentences immediately and were led from the courtroom in handcuffs.” Bravo!

Then, there’s my epitaph to former CEO of Enron Jeffrey Skilling. Enron's Kenneth Lay we’ll let rest in peace for now so we can get back to the central issue. That is, the desire of bullish businessmen and Bushites to protect big-time bilkers from due prosecution for super-size crimes via the Sarbanes-Oxley Act. Originally drafted in response to these debacles by Senator Paul Sarbanes (D-Md.) and Representative Michael G. Oxley (R-Oh.), approved by the House by a vote of 423-3, the act is a rare bi-partisan flight from corruption and greed, which a handful of power brokers would now revisit to compromise.

Proposals Will Be Introduced After Election Day

In fact, their proposals will be introduced after Election Day, just so their backers won’t loose a vote or two for their favorite politicians. But know who they are now and what they propose. We have Robert K. Steel, former head of the US Chamber of Commerce, sworn in last month as new Treasury undersecretary for domestic finance, making him senior advisor on Treasury’s views on these issues, which will predictably be Bush’s views.

A second committee was put together by Harvard Law Professor Hal Scott, along with R. Glenn Hubbard, a former chairman of the Council of Economic Advisers for President Bush. Add to them John L. Thornton, former president of Goldman Sachs, where he worked with Treasury Secretary Henry M. Paulson, Jr.

This second group has earned the name around DC as the Paulson Committee, because, well, the new Treasury chief spoke enthusiastically about it when it was formed last month. Of course, what’s good for Wall Street is good for Main Street. Or is it? Nevertheless, the administration brushed off any chance Paulson was playing a role in the group-think. Sure, guys, sure.

Members of the Paulson Committee include, “Donald L. Evans, a former commerce secretary who remains a close friend of President Bush; Samuel A. DiPiazza, Jr., chief executive of PricewaterhouseCoopers, the accounting giant; Robert R. Glauber, former chairman and chief executive of the National Association of Securities Dealers, the private group that oversees the securities industry; and the chief executives of DuPont, Office Depot and the CIT Group,” as lively a group of foxes to be let in the henhouse on any given day.

In fact, Mr. Paulson leaned on the groups to gather in discussion and finish their work to roll it out right after November elections. Their goal, committee members claim, is to limit what they see as “overzealous state prosecutions by such figures as the New York State Attorney General [and now Governor-elect] Elliot Spitzer and abusive class action lawsuits by investors.” And of course, the groups will want to cut what they see as “excessive costs associated with the Sarbanes-Oxley Act,” so that crime pays again and not that law-breakers pay for their crimes, in keeping with their magnitude.

Fortunately, critics see this as a chance for Bush & Company to heel to the well-heeled, and shield connected companies from the shock of prosecution, despite the costs to investors for like companies’ misguided forays, especially those like Enron and the late “Kenny Boy” Lay, whose turn at the helm bankrupted thousands of investors, thousands of employees’ retirement or profit sharing plans.

This is not to mention Lay’s efforts on the Bush/Cheney Energy Commission, which, among other things, helped bankrupt California by manipulating energy prices upwards, thereby unseating Governor Gray Davis as the culprit (he wasn’t), and vetting Arnold Schwarzenegger as governor before Davis even finished his term. Talk about tampering with the system. And people like this should walk away with lesser penalties.

In fact, I thought Spitzer’s fine of $1 billion dollars to AIG for bid-rigging was a slap on the wrist, considering the billions of dollars the company takes in profit, and that its subsidiary Marsh McLennan ended paying off $800 million or more of the fine.

Culpable Individuals Rather Than Corrupt Corporations?

One proposal of the Bush committees is that only “culpable individuals” be prosecuted rather than corporations and auditing firms. Well, that has been the going-in philosophy, but when the “culpable” tend to come in multiples throughout companies, as in the Arthur Anderson debacle, it just may be necessary that the whole nest needs to go. Do we go after one mobster and not send entire mobs to jail under the RICO act, citing them for group conspiracies to defraud? Why should the white-collar criminals get a better deal?

Mr. Paulson actually had the audacity to criticize the Sarbanes-Oxley law, at Columbia University’s Business School, saying it contributed to “an atmosphere that has made it more burdensome for companies to operate.” Well, ta, ta. They are big smart boys. Teach them to operate honestly, transparently, without salivating with unmitigated greed. Hopefully, that won’t be “burdensome.” His capper was, “Often the pendulum swings too far and we need to go through a period of readjustment.”

Think of the French Revolution, Mr. Paulson, when the pendulum of ire swung against courtly greed and corruption so far that it turned into a guillotine and heads fell. Remember history, Hegel, the dialectic at work, abuse creating its counterpart in correctional magnitude. In fact, some experts see Paulson’s whine as a step backward. I would say so.

James D. Cox, securities and corporate law professor at Duke Law School, rightly said, ”This is an escalation of the culture war against regulation.” And he correctly added, it “would be a dark day for investors.” Cox who as The Times noted studied 600 class action lawsuits over the last decade, said it was difficult to find “abusive or malicious” cases, especially given new laws and court decisions making it harder to file such suits.

He argued that the amount of securities class action lawsuits dropped substantially in each of the last two years, and that the real net result of the proposals from the business groups would be that “very few people would be prosecuted.”

On the other side of the aisle, Mr. Hubbard, now dean of the Columbia Business School, said that the committee he aids would hone in on the lack of proper economic regulation. His questionable answer was that “the current political environment is simply not ripe for legislation.” I don’t know about that. There are overly pro-business types on the Democratic aisle as well as among the mass of Republicans.

Improving “Attractiveness” of US Capital Markets?

The committees’ view was to improve the attractiveness (i.e., put some lipstick on this pig) by “scaling back” rules whose costs outweigh their benefits to American capital-raising markets,” which is just another way to say give theft a chance, give the scaly a mere “scaling back.”

Professor Scott, director of one of the committees singled out by Mr. Paulson, claimed, “We think of the legal liability issues as the most serious ones. Companies don’t want to use our markets because of what they see as the substantial, and in their view excessive, liability.” Ah, so the problem has shifted to excessive liability. Forget the substantial corruption cited in the opening paragraphs that created the liability to protect us all, investment corporation personnel and investors.

Members of both committees claimed they’d reached consensus that Section 404 of S-O, along with increased threat (god forbid) of investor lawsuits and government prosecutions (god permit), “was discouraging foreign companies from issuing new stocks on exchanges in the US in recent months.” In other words, our standards were effectively protecting investors from shoddy stocks. Power to the people, I say, a Columbia chant from years back.

This exposure to liability, not unexpectedly, is drawing the most flack. Yet Bill Daley, former commerce secretary in the Clinton administration and co-chair of the Chamber of Commerce group, claimed that changes affecting accounting firms are of most importance in stopping further decline in competition. Only four major firms were left after Andersen’s collapse.

Well, folks. I don’t know if that’s a plea for honesty and transparency or Washington-speak for do what needs to be done. As in, why, I never had sex with that woman. By my accounting it was only a b______. Tasteless? Perhaps. But so is the subtle call to bless shoddy accounting for market expansion. If companies are built on being totally reputable, they will become bulwarks of their industries, not the other way around.

Professor of securities law John C. Coffee at Columbia Law School, adviser to the Paulson Committee, recommended that the SEC adopt the exception to Rule 10b-5, so that only the commission could bring such lawsuits against corporations. I say if the SEC had been doing its job in the first place, Spitzer and others would not have had to step in and slam-dunk a number of these hot shots into huge repayments and prison sentences. Coffee’s suggestion would be a major body check on corporate wrongdoing.

Harvey J. Goldschmid, a former SEC commissioner and law professor at Columbia University, agreed: “Private enforcement is a necessary supplement to the work that the SEC does. It is also a safety valve against the potential capture of the agency by industry.” Amen.

One has only to remember what Bush & Company did to Tort Reform. It offered a big payoff for corporations by curbing the lawsuits that hold corporations accountable in order to protect the public from the dangers of their products. This attempt to deflate the Sarbanes-Oxley Act is more of the same, only on the corporate governance and accounting level.

Ultimately, it is the people who work for those companies, and the consumers of their goods and services, that end up paying when controls are rolled back. So, too, as federal controls on drugs, foods, safety, you name it, have been rolled back to keep the corporate contributions rolling in, they prove to be of a single mind: invitations to the foxes to come to the henhouse for dinner. No thanks. I like my Sarbanes-Oxley Act tough, like the guys it’s meant to monitor.