Will Democracy Invade the Boardroom?

Life has been tough for the Securities and Exchange Commission, what with the power grab at its expense by the Federal Reserve and new revelations that its investigators acted like Keystone Kops when looking into tips about the suspicious behavior of Bernie Madoff. Now the SEC has the opportunity to do some good. The question is whether it has the nerve to stand up to powerful corporate interests.

In May the SEC voted to propose rule changes that would enable shareholders to nominate directors for corporate boards. The Commission issued a 250-page description of the proposed changes in June and asked for public comments. A decision is expected this fall.

The process of selecting board candidates makes a mockery of the idea of corporate democracy. Except in those rare instances when a takeover effort leads to a proxy fight, potential directors are chosen by management and run unopposed. This helps ensure that the ranks of outside (non-executive) directors, who are supposed to function as watchdogs, are filled with agreeable souls.

The proposed SEC rules would be a vast improvement, but they would allow shareholders to name no more than one-quarter of the candidates, and they would limit nominating rights to large shareholders (those with at least 1 percent of big companies and larger percentages in smaller ones). However, alliances of shareholders would be able to use their combined holdings to meet the threshold.

Comments flooded into the SEC over the summer. As a review of the comments conducted by the Wharton School of Business shows, the reactions have been highly polarized, with large companies warning of doom and proponents such as large pension funds predicting the changes would be a boon for shareholder rights.

The Business Roundtable weighs in with more than 150 pages of comments, posing dozens of plausible and not-so-plausible objections, including the hilarious claim that the rules would violate a corporation’s First Amendment rights by forcing it to include comments by outside candidates in its proxy statement.

Revealing a fear that the rule changes would undermine the clubbiness that characterizes the current system, comments submitted by McDonald’s Corporation fretted that shareholders might nominate someone “who may not have even met the existing members of the Board.” Another laughable objection is one made, for example, by Sara Lee Corporation claiming that the change would result in directors who represent a special interest rather than the interests of all shareholders. Sara Lee conveniently forgets that under the current system outside directors are often chosen because of their affiliation with a financial institution or other entity that has a significant relationship with the company—a suspicious practice known as corporate interlocks or interlocking directorates.

Some commenters, including a joint submission by 26 large corporations, support a compromise that, instead of imposing new proxy rules on all publicly traded companies, would make it easier for shareholders to seek changes in the nominating process on a company-by-company basis. This seems like little more than an attempt to undermine the whole idea.

But perhaps the saddest thing about the comments is the surprisingly large number of submissions by owners of small businesses—from a dog bakery called For Pampered Pooches to Dreamland Daycare—who have somehow been brainwashed by some trade association into thinking that a reform aimed at major corporations is somehow going to threaten their privately held enterprise.

Here’s hoping that the SEC ignores the preposterous arguments of both large and small companies and injects some measure of democracy into Corporate America.