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“The Big Picture” is written by Matt Kelly, editor-in-chief of Compliance Week. Kelly blogs about the broader context of regulatory developments, legislative actions in Washington, and other events in the area of compliance and corporate governance. Questions, comments and statements from readers are always welcome, and where appropriate Kelly will try to address them in his blog. He can be reached via email at MKelly@complianceweek.com.

 

June 17, 2009

Questions About Obama’s Regulatory Reforms

A quick read of the Obama Administration’s proposed reforms of regulatory oversight leaves you with two impressions. First, for the large majority of compliance officers and financial reporting executives out there not involved in the financial sector, little will change. You still have much bigger concerns about increasingly aggressive folks at the Justice Department and Securities and Exchange Commission you need to worry about in your daily routines.

Second, not much has changed for those compliance officers who are in the financial sector, either: they still face too many voices in the regulatory realm, talking past each other and investors, sending conflicting messages about what financial firms are supposed to do.

To my thinking, the Administration’s proposed reforms fall somewhere between a missed opportunity and a mixed bag of under-developed ideas. Some seem sensible. Others seem to fly in the face of political reality. Most seem to have the potential to do good, but are in such an embryonic state that they could evolve into considerable new burdens or risks for corporations—financial and non-financial alike—by the time Washington is done fiddling with them.

A few high-lights:

  • The agencies endure. Remember that halcyon time when everyone finally seemed to agree that the Commodities Futures Trading Commission and the Securities and Exchange Commission should be merged? Well, everyone in Washington has forgotten it. Both agencies will remain intact, doing what they’ve always done. At least one of them—presumably the SEC—will also start overseeing those over-the-counter derivatives that have caused so much trouble in the last year, but the Obama plan isn’t entirely clear on that point.
  • Creation of a Consumer Financial Protection Agency. I already can envision new types of legal headache here. If an approved financial product fails to deliver on its promise—and good luck defining the scope of that—could an aggrieved investor sue the firm that sold it? Could corporations then claim some sort of pre-emption defense, akin to what drug-makers claim under Food and Drug Administration rulings? We also have no word on who would appoint this agency’s leadership. This is an important detail; remember, plaintiffs have hauled Public Company Accounting Oversight Board in front of the Supreme Court, saying its SEC-appointed leadership is unconstitutional.
  • Enhanced regulatory cooperation internationally. The Administration might as well put this proposal out for comment in MAD Magazine. Politicians on both sides of the Atlantic are so busy pressuring securities and accounting rulemakers to relax the rules as a means of inflating economic growth, nobody will have time to develop a serious framework for international oversight of large institutions. That’s a shame, because we need one.
  • Compensation crackdown! Don’t die of shock, but all public companies would now be required to let shareholders have an advisory vote on executive pay packages. They would also need to establish more independence on the board’s compensation committee, and achieve the fabled “alignment of executive pay with long-term shareholder value.” All of this is about as surprising as sunrise in the east. I was hoping the Treasury Department would decree that all CEOs are to be immediately enslaved.
  • More accounting reforms. Financial firms would be required to use more forward-looking provisions for loan losses. Originators and issuers of securitized loans would be required to keep a financial interest in those loans. And fair-value accounting rules, which always crop up in these discussions, would get yet another examination to see how they can increase the transparency around cash-flows from holding investments. I’m not sure whether that’s code for “letting banks say they’re not going to sell worthless assets, so they don’t need to say the asset is worthless”—but since Congress already forced the Financial Accounting Standards Board to relax fair-value rules, I’m not sure we need to ask.

Alas, nowhere do we see some of the more creative solutions floated in past months, like imposing a small transaction tax on stock trades to curb speculators, or integrating the CFTC and SEC, or re-instating the Glass-Steagall Act to segregate investment banks and their dumb decisions from commercial banks that consumers depend on. Those were good ideas—and to boot, they could help unravel the financial crisis without imposing drastic new challenges on Corporate America and on the chief compliance officers who must ensure those challenges are met.

Instead, we will see a hodge-podge of regulatory reforms meander their way through Washington. Even if these ideas sound good—a statement I don’t know that I support, but it may be true—they will still need enforcement mechanisms. They will need to be quantified in data, which will need to be collected, disclosed, and reviewed or audited. How are you, the corporate compliance or governance executives, supposed to achieve that? Nobody really knows yet.

So like I said at the start—not much has changed.

 

March 17, 2009

The Sorry State of Congress and Fair Value

Let me be sure I remember things correctly: Last fall, Washington was worried about the Europeans watering down accounting rules in the face of political pressure, right?

I ask because last week we witnessed the crisis over fair-value accounting rules devolve into some sad mixture of The Godfather and an accounting textbook. The banking industry didn’t like the rules as written; the banking industry complained to Congress; Congress made the Financial Accounting Standards Board an offer it couldn’t refuse: publish new guidance to ease the pain of fair-value accounting, or else.

And now, miraculously, FASB is rushing to publish two pieces of new guidance that will ease the pain of fair-value accounting.

I could drone on all day long about the appalling political elbow Congress just threw into FASB’s gut, or call out Rep. Paul Kanjorski, chair of the House Subcommittee on Capital Markets, as an uninformed bully for deciding to throw it.

Instead, however, let’s review the comment letter FASB Chairman Robert Herz submitted to the Securities and Exchange Commission about the wisdom of adopting global accounting standards in this country—standards mostly churned out by the International Accounting Standards Board in Europe:

Recent events have demonstrated the significant pressure that can be brought to bear on standard setters and the adverse consequences such pressure can cause, such as suspension of established due process procedures. For accounting standards to serve the needs of users, the standard setter’s governance and financial structure must be designed and operated such that the organization has the ability to maintain focus on the needs of investors and to withstand such undue pressure to the maximum extent possible. We acknowledge recent and ongoing efforts by the International Accounting Standards Committee Foundation to strengthen its governance, oversight, and independence by adopting certain changes to its constitution, including the establishment of a Monitoring Group to provide a formal link between the IASB and its Trustees and major capital market regulators. We support the objectives and await the outcomes of those efforts.

Herz submitted those thoughts to the SEC on March 11. Kanjorski steamrolled him March 12. He’d do well to take Herz’s comments to heart, and try a reform program of his own. 

Posted by: mkelly @ 4:10 pm

Filed under: Congress, FASB, Fair Value Accounting Tags: