Using Financial Reform to Promote Deregulation

Growing public rage over Wall Street misbehavior has snapped the Senate out of its lethargy on financial reform. Amid the get-tough posturing, however, the impulse to lighten the regulatory “burden” on business has not completely disappeared.

When Senate Republicans unveiled their alternative approach to reform on April 26, buried in the document was a provision that called for less rather than more regulation. The GOP proposal would make smaller publicly traded companies exempt from a key provision of the Sarbanes-Oxley Act (Sarbox, for short), the corporate accountability law enacted in 2002 in response to the accounting scandals at companies such as Enron and WorldCom.

The provision in question, Section 404, requires firms to maintain a system of internal controls to ensure the integrity of their financial statements, which must include an audited assessment of the adequacy of those measures. A breakdown in such controls is an invitation to financial fraud.

Senate Republicans would like to provide an immediate exemption to companies with a market capitalization of $150 million or less and would instruct the Securities and Exchange Commission to explore the possibility of setting the cutoff even higher. The SEC has already delayed implementation of the Section 404 requirement for smaller firms, and it convened a business-dominated advisory committee that recommended consideration of Sarbox relaxation for firms with market capitalization up to $787 million. The Commission, however, has refused to create a permanent exemption.

Truth be told, it is not just Republicans who are pushing the exemption idea. The financial reform bill that passed the House in December contains a Section 404 small-business exemption that was proposed – against the wishes of Financial Services Committee Chair Barney Frank – by Democrat John Adler along with Republican Scott Garrett, both of New Jersey. The amendment passed with the blessing of the Obama Administration, with White House Chief of Staff Rahm Emanuel personally lobbying members of the Committee on its behalf.  Senator Dodd, however, did not include a small-business exemption in his financial reform bill.

The Sarbox small-firm carve-out may win some friends in business circles, but it entails serious risks. Chief among them is that the exemption could serve as a stepping stone to further weakening or abolition of the entire law.

This is more than a remote possibility. Republicans make no secret of their distaste for Sarbox in general and have used this as a theme in criticizing the Dodd bill. South Carolina Senator Jim DeMint called that bill “Sarbanes-Oxley on steroids,” adding: “Like Sarbanes-Oxley, it is reactionary legislation that’s more likely to hurt U.S. businesses than reform the financial system.” A recent Wall Street Journal editorial denounced Dodd’s bill as “a souped-up version of the Sarbanes-Oxley bill of 2002 – that is, a collection of ill-understood reforms whose main achievement will be to make Wall Street even more the vassal of Washington.”

Congress is not the only arena where Sarbanes-Oxley is under assault. The U.S. Supreme Court is expected to rule soon on a challenge by the rabidly anti-regulation Competitive Enterprise Institute to the legitimacy of the Public Company Accounting Oversight Board, which was created by Sarbox by regulate public accounting firms. Some legal observers believe that a high court ruling against the Board could lead to the demise of Sarbox in its entirety.

Even if this dark scenario does not come to pass, does it make sense to loosen the controls on smaller firms? Fraudulent behavior is hardly unknown among public companies of modest size. In fact, such companies have long been used as vehicles for criminal enterprises. A 1996 Business Week investigation found that “substantial elements of the small-cap market have been turned into a veritable Mob franchise, under the very noses of regulators and law enforcement.”

Lately, the focus has been on the sins of the financial giants, but that’s no reason to dilute oversight of smaller players. Now’s a time for tightening regulation across the board.

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