On Wednesday, former SEC Chairman Christopher Cox offered his own interesting perspective on the SEC’s use of administrative proceedings. In his remarks at Securities Enforcement Forum West 2015 entitled, “The Growing Use of SEC Administrative Proceedings: An Historical Perspective from Congress and the Agency,” Chairman Cox pointed out that APs have now developed to the point that they often take the place of trials — despite bearing little resemblance to civil courts and their accustomed rules of civil procedure. This has occurred, Chairman Cox stated, through a combination of federal agencies using their rulemaking powers to maximum effect while Congress has remained largely absent from the discussion.
Chairman Cox, who is now a partner at law firm Morgan Lewis & Bockius, stated that even when Congress did take action on APs in the Dodd-Frank Act, there was still “little in the way of policy development through educational hearings, or considered congressional analysis of how the Article III courts should interact with the quasijudicial functions of the so-called fourth branch.” In 2010, Congress added Section 929P(a) of Dodd-Frank that expanded the SEC’s authority to impose monetary penalties in an administrative proceeding. Chairman Cox observed that
