Enron 10 Years After -- From Bad to Worse
After all, we're "celebrating" the 10th anniversary of Enron, WorldCom and the other early 2000 scandals. On the surface, I have to admit, it doesn't look good. The financial crisis of 2008 didn't exactly promote confidence in corporate America. But I'm going to try to be as upbeat as possible:
* Sarbanes-Oxley. In hindsight, the primary legislative reaction to Enron was a remarkable piece of legislation. In one sweeping legislative initiative, Congress addressed a number of long-festering issues related to corporate accounting and set up a Public Company Accounting Oversight Board to supervise auditors of publicly traded companies. In retrospect, it's remarkable that SOX was passed at all -- a fete that would be pretty much impossible today. Its provisions on auditor independence were decades overdue. Section 404, requiring management to assess and personally certify internal controls, took aim at one of the primary issues that arose in the Enron scandal.
That's the bright side. The downside is that SOX has been pretty much a paper tiger -- and it was even before the JOBS Act eliminated Section 404 provisions for startups that need top-notch internal controls the most. As one CPA Journal assessment of Section 404 pointed out in 2006, "internal control was not conceptually designed to be a panacea for corporate ills." And if a company complies with Section 404 and confesses that it has poor internal controls, what of it?
American International Group was reporting deficient internal controls as far back as 2004 . So when the massive insurer made the same disclosure in February 2008 for its derivative operations, all those SOX-mandated disclosures didn't do a thing to prevent AIG from careening toward disaster.
At least Section 404 and the auditor independence provisions are enforced. But ever hear of Section 406? That's equally important, but it has never been enforced. It governs corporate ethics, and has been completely ignored. An SEC rule promulgated under Section 406 says that companies must disclose "amendments to, and waivers from, their ethics codes on or after the date on which they file their first annual report in which the code of ethics disclosure is required."
Sure, companies can behave as unethically as they wish without violating SOX. But they have to disclose that their codes of ethics have been waived. If unethical companies don't make that disclosure, they can be prosecuted under Section 406. That's never happened, and we're not exactly in the midst of a golden age of corporate ethics. So whenever you hear about top executives being complicit in unethical behavior, think of this never-enforced SOX provision.