Three years after Congress passed a strict corporate accountability measure designed to make it harder to defraud investors about corporate financial health, companies are experiencing higher audit fees and increased turnover among financial executives.
The Sarbanes-Oxley Act, approved three years ago today, imposed new duties on corporate officials and subjected auditors to discipline from an independent panel. Analysts say the law has induced executives to pay more attention to financial data and prompted board members and accounting firms to take their work more seriously.
"Disclosure is more complete, more timely and more accurate, managers are more serious about their jobs, and boards are more active and questioning," Harvey J. Goldschmid, a departing Securities and Exchange Commission member, said in an interview this week. "All of that is to the good."
Critics including a judge on the Delaware Chancery Court and the chairman of Barclays bank are sounding off about what they call the expense and possible overreach of the law.
In recent months, business groups led by the U.S. Chamber of Commerce have stepped up pressure on the SEC to ease some of the burdens of the law. Audit fees for the Fortune 1000 increased by an average of $2.3 million, or 66 percent, between 2003 and 2004, according to a study issued last month by professors at the University of Nebraska at Omaha. The audit bills of 12 of the 648 companies surveyed rose by more than $10 million each, the study said.
That's not necessarily a bad thing, according to investor advocates who argue that the price of audits declined precipitously in the 1990s as accounting firms slashed audit fees to compete for more lucrative consulting business from clients. Higher fees also mean auditors are better vetting financial statements, they said.
Still, in response to persistent complaints, the SEC soon will hold panel discussions in the Midwest as part of a broader effort to lighten the regulatory burden on small businesses. The agency also has repeatedly extended the deadline for complying with parts of the law that require companies to vouch for the adequacy of their financial controls.
That provision created intense friction among independent accountants, corporate officials and board members, who disagreed on how much work accountants had to perform to sign off on the controls.
It also helped to hasten the departure of many corporate finance chiefs, according to a March study by the recruiting firm Russell Reynolds Associates. Between 2003 and 2004, the overall rate of turnover for chief financial officers in the Fortune 500 increased by 23 percent, the March study said.
Critics argue that parts of the law force executives and board members to spend too much time on formulaic compliance efforts rather than leading their businesses.
"Congress needs to avoid stifling the wealth-creating potential of companies through costly mandates that not only do little to protect investors but also distract boards from their fundamental duties," Judge Leo E. Strine Jr. of the Delaware Chancery Court told executives during a speech in London earlier this month.
The push-back comes at a time of profound change at the SEC. Last night, the Senate approved the nomination of Rep. Christopher Cox (R-Calif.) to lead the agency, replacing former Wall Street executive William H. Donaldson. Donaldson presided over the most active regulatory period in SEC history since the Great Depression.
At a confirmation hearing Tuesday before the Senate Banking Committee, Cox said he would focus on "clarity" and "consistency" in rulemaking and would vigorously enforce securities laws. Cox privately told lawmakers he would not roll back provisions of the Sarbanes-Oxley law, Sen. Charles E. Schumer (D-N.Y.) said.
Nonetheless, liberal groups such as Public Citizen and the AFL-CIO have questioned Cox's stance on regulations. Consumer advocates said they will track Cox's approach to enforcement cases that the agency files against lawbreakers. The SEC and the Justice Department have won lawsuits against executives at Adelphia Communications Corp. and WorldCom Inc., among others.
But the five-member SEC has split over whether to impose stiff financial penalties on corporations and their shareholders, rather than individual employees who are engaged in wrongdoing. Cox's vote on those cases could move the agency in a different direction.
"We just don't know what the balance of the new commission will be," Goldschmid said. "I'm hopeful and concerned at the same time. . . . It would be very foolish and counterproductive indeed for the new commission to lose what we've been trying to build by not following the path we've been on."