The Supreme Court’s Sarbanes-Oxley Ruling in Plain English- Free Enterprise Fund et al. v. Public Company Accounting Oversight Board et al., No. 08-861 (U.S. June 28, 2010)
If you’re like me, you’re not that smart. And when you read complicated articles like this New York Times breakdown of Monday’s Supreme Court decision involving Sarbanes-Oxley, your head starts to hurt a little. Wait? What exactly happened? Will this change anything for companies?
Fortunately, Anand Rao, partner at Diamond Management & Technology Consultants, is an expert in the history of and the controversy surrounding Sarbanes-Oxley and can clearly explain exactly what you need to know about the Supreme Court’s ruling.
Jared: What was the main controversy about Sarbanes-Oxley that the Supreme Court was ruling on?
Rao: Sarbanes-Oxley was passed in 2002 as a response to some of the accounting issues related to Enron and Worldcom. The law created the Public Company Accounting Oversight Board (PCAOB) to regulate the accounting industry. The five board members were accounting specialists appointed by the Securities and Exchange Commission. The SEC could remove board members if there was a good cause to do so.
Free Enterprise Fund, a nonprofit advocacy group, along with a small Nevada accounting firm Beckstead and Watts challenged the creation of the PCAOB in Sarbanes Oxley, specifying that the removal of board members by the commission for just cause contravened the separation of powers in the U.S. Constitution as it gave wide-ranging executive power to board members without subjecting them to presidential control.
Jared: Why did the Court rule against this structural set-up?
Rao: With a 5-4 majority ruling, the Supreme Court declared that the act “not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists.” It claimed that “by granting the Board executive power without the Executive’s oversight, this Act subverts the President’s ability to ensure that the laws are faithfully executed.” To remedy this situation the Supreme Court has ruled that the SEC now may remove the Board members at will, without the need to demonstrate a good cause.
However, the Supreme Court made it very clear that this had no bearing on the remaining aspects of the Sarbanes Oxley Act by stating that the “unconstitutional tenure provisions are severable from the remainder of the statue.” So for all practical purposes, there will be no change to the way PCAOB operates.
Jared: Will the change have any effect on companies? How about risk and compliance employees? Insurance companies?
Rao: Although the Supreme Court ruling impacts how board members may be removed, it has no impact on what public companies need to do. All public companies will continue to be subject to the same requirements as before under the Sarbanes Oxley Act and there will be no change to the operational functioning of the public companies. Similarly, there will be no impact to risk and compliance employees or insurance companies – it’s just a re-validation that the act is here to stay.