Is it constitutional to vest the appointment of an independent agency, not in the President, but in the members of another independent agency? That is a question presented by a case argued in the Supreme Court on December 7, Free Enterprise Fund v. Public Company Accounting Oversight Board.
I have argued in court briefs and elsewhere that it violates the Constitution's appointments clause, which requires that federal officers be picked by the President and confirmed by the Senate, unless they are inferior officers, who can be picked either by the President, or by the head of a department, or by a court. So have leading law professors like Stephen Bainbridge and Donna Nagy.
As I noted in an earlier commentary, the members of the Public Company Accounting Oversight Board, an agency being challenged in the Supreme Court on December 7, aren't appointed by the President, nor can he remove them. The General Accounting Office describes the PCAOB as "an independent board with sweeping powers and authority"; its rules and red tape cost the economy billions of dollars every year (with a long-term cost of perhaps a trillion dollars).
Yet the Government suggests in its brief that the President has “fully effective control” over the PCAOB (see pg. 46 of that brief). That’s not the only peculiar claim made in the PCAOB’s defense.
The case raises the issue of whether members of an agency (the PCAOB) picked by the members of yet another independent agency (the five SEC Commissioners acting as a group) are, in light of their broad policymaking role, actually “principal officers” who thus should have been picked instead by the President under the Constitution’s Appointments Clause. Alternatively, assuming the PCAOB members are mere “inferior” officers, the case raises the issue of whether they should, as the Appointments Clause requires for inferior officers, have been picked by the "Head" of a "Department," rather than the SEC Commissioners acting collectively (the SEC has a Chairman who manages it and supervises its staff).
Government lawyers argue that the PCAOB is so controlled by the SEC that its members are mere inferior officers, and claim that the SEC is headed by all its Commissioners, not its Chairman.
But as Jonathan Moore
has noted, a long-time SEC Commissioner debunked these claims on December 3. Former SEC Commissioner Paul Atkins took the exact opposite view, in a
panel discussion at the
American Enterprise Institute, which one can
view and listen to
at the following link:
http://www.aei.org/video/101187 (Atkins was the fifth speaker; I also spoke at the event, and Jonathan Moore, who was in the audience, questioned the panel).
Atkins spoke at length
about the PCAOB and how difficult it was for the SEC to influence the PCAOB.
Atkins noted that the PCAOB had enough autonomy to frustrate the SEC’s attempts at oversight. When the SEC sought a business plan from the PCAOB, the PCAOB Chairman said that “the statute was his business plan” and more or less failed to comply. It took 5 years to get something akin to a business plan from the PCAOB.
Atkins said that PCAOB’s “Audit Standard 2” “has a very checkered history” and illustrated the “limits” of SEC oversight. The 400 pages of requirements from Auditing Standard No. 2 made compliance with Sarbanes-Oxley “very difficult” and “very costly.”
Atkins noted that “All five commissioners” were in favor of “radical” changes to it, yet it took years for them to obtain merely “some” changes to that audit standard, owing to the need for consensus and PCAOB foot-dragging.
Atkins recounted how the PCAOB adopts “staff-driven” rules through “informal rulemaking” that apply without being approved by the SEC, regardless of SOX’s formal approval process for rules. He says, for example, that its guidance regarding “stock options” was “not subject to any rule at all,” despite functioning in practice as a rule. While the SEC has to approve formal rules, the PCAOB functions heavily through informal rules never approved by the SEC.
He said that “Peekaboo does have real power,” “investigative power,” and “prosecutorial power.”
Although the SEC theoretically reviews the PCAOB’s budget, Atkins noted that “staff at Peekaboo were not telling the truth” about the PCAOB’s budget system to the SEC, making evaluation of its budget and spending difficult. He noted that on the SEC’s web site, there is video footage of his concerns over this at a recent budget meeting. He noted that because of the PCAOB’s separate status and the SEC’s lack of control over PCAOB staff, the “SEC found it didn’t really have the authority” to control the PCAOB’s budget that it supposedly did.
Atkins noted that the SEC’s “power is not plenary” over the PCAOB; that it was difficult to get a group consensus focused on oversight over the PCAOB; and that oversight of the PCAOB was “like pushing on a string.”
He said that the current set-up under Sarbanes-Oxley is a “very difficult way for the SEC to oversee a separate board”; cited “flawed implementation of [SOX Section] 404” from 2002 to 2006 as an example; and noted the “incredible amount of attention diverted” to accounting issues that were not important as a result of the PCAOB’s internal-controls rules.
He addressed the question of whether the SEC’s chairman is its head for appointments clause purposes. He said that the Founders realized the “committee structure” or the “committee system was not a very effective decisionmaking type of body” for things like appointments, and cited the 1950 Reorganization Plan 10 that vested “authority over the budget” and “HR decisions” in the SEC’s chairman. Although he noted that “consensus” is desired for key posts like the General Counsel, when push comes to shove, “in reality, he [the Chairman] can still appoint who he wants.”
He said that the idea that PCAOB members – or even SEC members – were really accountable to the President was silly, and that the SEC’s own history “illustrates how difficult it is for the President to assert authority” over the SEC, much less the PCAOB.
Atkins’ observations debunk the Government’s suggestion that the President has “
fully effective control” over the SEC – and the lower court
ruling upholding the PCAOB, which claimed that the SEC was not headed by its Chairman, but by SEC Commissioners as a group – a claim based on that court’s
inconsistent reasoning.
Law professor Donna Nagy similarly debunks claims that the PCAOB is "heavily controlled" by the SEC in a forthcoming article in the Pittsburgh Law Review, and a related paper, noting that PCAOB members are "principal officers" "acting with significant discretion and autonomy outside the SEC's control" who constitutionally must be appointed by the President -- not, as is currently the case, by the SEC Commissioners as a group.
Also available on the web is the text of SEC Commissioner Paul Atkins' earlier 2006 speech noting the SEC's limited ability to control the PCAOB (such as the PCAOB's unapproved guidance on subjects like "options grants" and the PCAOB chair's view that the PCAOB is more like the SEC's "cousin" than its subordinate). That speech can be found on the SEC's web site at http://www.sec.gov/news/speech/2006/spch092106psa.htm.
As noted above, video of Paul Atkins' recent speech at AEI is available on the web. Courts sometimes take judicial notice of such statements. See Nebraska v. EPA, 331 F.3d 995, 998 n.3 (D.C. Cir. 2003) (taking judicial notice of statements on web site); Cf. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 780 n. 30 (2006) (Thomas, J., concurring) (quoting from web site); id. at 730, n.14 (plurality) (citing news articles about web site's earlier content).
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