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Sarbanes Oxley News, October 2009
Do you remember the day Senator Paul Sarbanes (D-Md) introduced the Bill 2673 (that would become the Sarbanes Oxley Act) to the Senate?
It was June 25, 2002.
Do you remember what had happened the same day?
WorldCom publicly announced that it had overstated earnings during the past five quarters by $3.8 billion.
Within three weeks, Sarbanes’s bill was passed in the Senate, and two weeks thereafter, the bill had been reconciled with a very similar House Bill that passed as the Sarbanes-Oxley Act of 2002.
This was too quick. Investor confidence had to be restored as soon as possible. And it worked.
What about the constitutionality of the Act?
Is the Public Company Accounting Oversight Board violating the Appointments Clause of the United States Constitution or the separation of powers doctrine?
At least, this is what is described in the complaint in the Unites States District Court for the District of Columbia, alleging that the Sarbanes-Oxley Act of 2002 violated the United States Constitution.
Since February 7, 2006 the Free Enterprise Fund of Washington D.C., a nonprofit organization, along with Beckstead and Watts, LLP, a Nevada accounting firm, filed the above complaint, and SOX professionals started to discuss what could it mean.
A. The complaint alleged that the Board violated the Appointments Clause. What does it mean?
The Appointments Clause is Article II, Section 2, Clause 2 of the United States Constitution.
It empowers the President of the United States to appoint certain public officials with the "advice and consent" of the U.S. Senate. This clause also allows lower-level officials to be appointed without the advice and consent process.
The full text of the clause:
"The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments"
The complaint (of the Free Enterprise Fund) stated that members of the PCAOB are PRINCIPAL officers whose appointments must be made by the President by and with the advice and consent of the Senate.
Alternatively, if the members of the Board are inferior officers, according to the complaint, the appointment of PCAOB members by the SEC violated the Appointments Clause because the SEC is not a department within the meaning of the Clause.
B. The complaint alleged that the PCAOB violated the separation of powers doctrine. What does it mean?
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