Neoliberalism, deregulation and sabannes oxley

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Neoliberalism, deregulation and sabannes oxley

  1. 1. Neoliberalism, deregulation and Sarbanes-Oxley The legitimation of a failed corporate governance model Barbara D. Merino and Alan G. Mayper University of North Texas, Denton, Texas, USA, and Thomas D. Tolleson Texas Wesleyan University, Fort Worth, Texas, USA Abstract Purpose – The paper aims to use a neoliberal ideology to frame an analysis of how the power of ideas can be used to maintain a failed corporate governance model based on stockholder primacy. Design/methodology/approach – The paper employs the concept of corporate hegemony to provide an understanding of the conditioning environment in the USA in the 1990s. It examines the tactics that neoliberals used to gain consensus for their ideology and to skillfully deflect criticism in the face of significant policy failures that have had a global impact. Findings – The paper highlights the power of ideology to create a desired outcome. It finds that Sarbanes-Oxley represented a neoliberal victory in that it legitimated shareholder primacy and continued use of a failed corporate governance model. Practical implications – Sarbanes-Oxley did not address the systemic problems associated with deregulation; it will not resolve the basic problem of how to prevent corporate malfeasance in an economic environment that rewards arbitrage capitalism, high risk and a focus on short-term profits. Originality/value – If shareholder primacy weakens accountability, as the paper suggests, then accounting researchers need to develop models that focus on deregulation rather than on regulatory capture and the use of state power to promote private interests. Accounting academics need to assume the role of public intellectuals and to reject Milton Friedman’s focus on negative freedom as the sole objective of economic activity and examine economic well being in terms of positive freedom. Keywords Corporate governance, Shareholders, United States of America Paper type Conceptual paper Introduction Neoliberalism has been called “the defining political economic paradigm of our lives; it refers to the policies and processes by which a relative handful of private interests is permitted to control as much as possible of social life” (McChesney, 1999, p. 1). While couched in the language of classical liberalism, neoliberalism should be not viewed as a simple extension of either classical or neoclassical economic theories. It is much more draconic. Classical liberal theorists stressed the need for competitive markets and posited a minimum role for government, but they recognized that markets were amoral and some government oversight was needed. Neoliberals extol one aspect of Adam Smith’s theory, i.e. free market competition, but, as George (1999) notes, they omit the moral aspects of Smith’s treatise. Michalitsch (2004, p. 4) concluded that Hayek and his neoliberal followers limit the functions of the state “to preventing violence and deceit, The current issue and full text archive of this journal is available at www.emeraldinsight.com/0951-3574.htm AAAJ 23,6 774 Received October 2008 Revised 27 July 2009 24 November 2009 Accepted 10 February 2010 Accounting, Auditing & Accountability Journal Vol. 23 No. 6, 2010 pp. 774-792 q Emerald Group Publishing Limited 0951-3574 DOI 10.1108/09513571011065871
  2. 2. protecting property, assuring observance of contracts and recognizing equal rights for all individuals to produce and sell in any quantity”. Neoliberalism fosters corporate hegemony since it treats the market as an omnipotent God that should direct the fate of human beings. Critical theorists of all persuasions, e.g. Gramsci (1971), Dugger (1989), Polanyi (1944), have long warned of the dangers of allowing economic interests to dictate societal norms. Polanyi (1944, p. 73) argued that “to allow the market mechanism to be sole director of the fate of human beings and their natural environment would result in the demolition of society”[1]. He erroneously predicted after the Second World War that the Keynesian revolution had permanently ended the domination of society by the economic elite. There are basic contradictions in the neoliberal message that unregulated markets will lead to the greater social good. But, the failure of neoliberal policies and the related frequent corporate crises have not had an impact on neoliberal rhetoric. The savings and loan crisis, the stock market crash of 1987, the corporate scandals of the 1990s and early 2000s, abusive tax shelters, use of new financial instruments such as credit default swaps in high risk ventures, and excess leverage all served to create enormous pain for the global economy. Tabb (2003, p. 25) concluded that neoliberalism “has succeeded as the class project of capital. In this, its unannounced goal, it has increased the dominance of transnational corporations, international financiers and sectors of local elites”. This paper builds on the work of Soederberg (2008), Stein (2008) and Cooper (2005). Each of these studies considered the effect of neoliberal policies from a critical perspective. Our study adds to these previous works by linking neoliberalism, agency theory and the regulatory aspects of Sarbanes-Oxley (S-OX) to the shareholder value concept of corporate governance. One objective of our paper is to create a better understanding of the tactics that neoliberals used to gain consensus for their ideology and to skillfully deflect criticism of deregulatory policies that led to a US market-driven global recession in 2008/2009. A second objective is to make accounting academic researchers aware of the need for more realistic research frameworks to address the adequacy of the shareholder value corporate governance model in a global economy. In short, we are asking accounting academics to serve as public intellectuals, critical commentators who unmask neoliberal myths, examine the socioeconomic impact of deregulatory policies and assess the effect of continued reliance on the traditional corporate governance model on the lives of ordinary people. Outline of the study The paper is organized as follows. In the first section, we describe the relationship between neoliberalism, corporate self-governance and global corporate hegemony. In the next section, we discuss how neoliberals used various types of power to promote their deregulatory agenda. In the following section, we appraise the role of profit in neoliberal ideology and the incentives this created for corporate malfeasance. In the next section, we examine the neoliberal and media responses to the corporate scandals in order to demonstrate that despite strong rhetoric, reforms centered on the traditional shareholder value corporate governance model. In the penultimate section, we link the influence of neoliberal thought to the legislative and regulatory responses to the scandals and discuss how the Securities and Exchange Commission used its philosophy of corporate self-governance to apply the key provisions of S-OX to the corporate environment. We concur with Soederberg (2008) that such an approach Neoliberalism, deregulation and S-OX 775
  3. 3. preserves the status quo, i.e. the traditional corporate governance model, leading us to question if S-OX will prevent future corporate malfeasance. In our conclusion, we call for accounting researchers to assume the role of public intellectuals and to develop new concepts to measure the effectiveness of corporate operations and to debunk the neoliberal notion that maximization of “pecuniary” profit will lead to maximization of social welfare. A return to the road to serfdom Hayek (1944) traced the antecedents of neoliberalism in his book The Road to Serfdom. The seeds of Hayek’s neoliberal message found fertile ground in the USA at the University of Chicago. Milton Friedman, considered the father of the Chicago School of Economics, became the leading advocate of Hayek’s philosophy in the USA. Friedman’s (1953, 1981) works advocated a laissez-faire approach by government to the marketplace. Ronald Reagan’s election in 1980 provided neoliberalism with a charismatic and effective spokesman in the highest office in the USA. With the demise of communism, neoliberals waged an effective media campaign to promote “free market” competition and deregulation as essential to the nation’s well being. Pointing to a similar phenomenon in the UK, George (1999, p. 1) argued that “the central value of Thatcher’s doctrine and of neoliberalism itself is the notion of competition – competition between nations, regions, firms and of course between individuals”. Neoliberals envisioned a world made better by competition. They argued that competitive forces: . allocate all societal resources efficiently; and . result in a morally superior form of political economy. Therefore, they suggested the government could limit its role to preserving order, protecting individual freedoms and enforcing contracts. We view neoliberalism as an instrumental discourse that mystifies, justifies, naturalizes and universalizes inequality and elite economic status. Giroux (2005) depicted neoliberalism as wedded to the belief that the “market should be the organizing principle for all political, social, and economic decisions, neoliberalism wages an incessant attack on democracy, public goods, and non-commodified values”. Everything is for sale; public lands are privatized, airwaves are handed to corporate interests, the environment is polluted, all in the name of profit. We concur with Giroux’s (2005, p. 2) scathing indictment of neoliberalism as a “virulent and brutal form of market capitalism”. Neoliberalism can be viewed as a return to a primitive form of individualism. It is reflective of the Social Darwinists’ message, popular at the end of the nineteenth century. Social Darwinists viewed Nature as exercising an “invisible hand” that ensured the survival of the fittest. Neoliberals repackaged that message and sold Economic Darwinism, survival of the wealthiest, as “natural” at the end of the twentieth century[2]. Klein (2007, p. 56) denounced Milton Friedman for arguing that government “must remove all rules and regulations standing in the way of the accumulation of profits”. Accounting agency or positive theorists accept Economic Darwinism in that they depict the free market as inviolable and a mechanism that promotes both economic and social well being. Positive Accounting Theory mirrors the Chicago School of economics. Contracting enables shareholders to regain power and become the pivotal factor to ensure the traditional corporate self-governance model works (Watts and AAAJ 23,6 776
  4. 4. Zimmerman, 1979; Reiter, 1998). The theory absolves government from responsibility for ensuring equity among the populace; in fact, to do so would harm society[3]. Neoliberal strategists disseminated this message far and wide, and they succeeded in creating a hegemonic environment that rendered inequalities invisible and social welfare questions moot. We define hegemony as a state of being where all sectors of society appear to be in harmony with those in power and control. It involves a way of seeing things and convincing people that this particular way of seeing is “natural” and right. Corporate hegemony results when economic interests become the dominant interests in a society, and all other independent institutions become means by which to promote economic interests (Dugger, 1989). The Italian Marxist philosopher, Antonio Gramsci (1971), described hegemony as the organization of different social forces under the political, intellectual and moral leadership of a particular social force and its intellectuals. He used the term hegemony to reflect manufactured consent which resulted from control of cultural outlets and led to voluntary subjugation of the non elite classes[4]. Gramsci understood the importance of ideas in enabling power. Ironically, neoliberals seem to be the only group that heeded Gramsci’s message that ideas matter. Susan George (1999) succinctly outlined the strategy that neoliberals have used: If you can occupy peoples’ heads, their hearts and their hands will follow . . . the ideological and promotional work of the right has been absolutely brilliant. They have spent hundreds of millions of dollars, but the result has been worth every penny to them because they have made neo-liberalism seem as if it were the natural and normal condition of humankind. No matter how many disasters of all kinds the neo-liberal system has visibly created, no matter what financial crises it may engender, no matter how many losers and outcasts it may create, it is still made to seem inevitable, like an act of God, the only possible economic and social order available to us (George, 1999, p. 3). Neoliberals have sponsored a cadre of Gramsci’s “organic intellectuals” who have promoted an ideology that paved the way for the economic elites to exercise power, almost invisibly. Subjugation has been voluntary. The key to the corporate governance debate is, and always has been, power. Berle and Means (1932) argued that managers had become the princes of industry and no effective means existed to control them. The neoliberal response has been to reposition the shareholder at center stage. Shareholder primacy has become the mantra that makes the perception of corporate self-governance work. Power asymmetries between shareholders and managers become moot since neoliberals assume that contracting will solve agency problems (Jensen and Meckling, 1976; Reberioux, 2007). They also assume that the relationship between managers and principals occurs on an “even playing field” and that the “state is neutral and separate from the economy” (Soederberg, 2008). That is not to say that neoliberals were unaware that power asymmetries exist. They used various forms of power to gain voluntary acceptance of financial deregulation and corporate hegemony not only in the USA, but also globally. Concepts of power The concept of power has been difficult to operationalize but there has been consensus that there are three types of power – coercion, agenda setting, and manufactured consent – with the latter form being the most effective form of power. The corporate elite have exercised all three types of power since the 1980s, creating an amoral (if not immoral) environment that facilitated financial reporting abuses and resulted in a spate of scandals. Neoliberalism, deregulation and S-OX 777
  5. 5. Coercive power Dahl (1957) defined coercive power as the ability of one individual to coerce another into doing something they would not otherwise do. Coercion is the most blatant form of power but, generally, exercise of coercive power is transparent and can invoke public criticism. Corporations exercise coercive power whenever they legitimately threaten to move when a locality demands some form of social benefits, such as higher wages. Public visibility renders coercive power less appealing than agenda setting or manufactured consent, and neoliberals prefer to use these less visible means to achieve their goals. Agenda setting Mills (1956) outlined how power elites exercise a more effective and less transparent form of power through agenda setting. Agenda setters determine which issues will be discussed and also determine what items to keep off the agenda. Neoliberal strategists made agenda setting an art form. Political campaign contributions, lobbying and control of the media affected the public policy agenda. Blyth (2002) pointed out one reason that neoliberalism became the dominant ideology in the USA in the last quarter of the twentieth century was because the “business class” united and used money to promote neoliberal policies. Money talked. While a complete analysis of the effect that the corporate sector had on bringing deregulatory legislation to the top of the political agenda in the USA is beyond the scope of this paper, we do examine the effect of deregulation on three important groups, accountants, financial analysts, and the media, all of whom theoretically serve as watchdogs to protect investors and the public interest. Accountants actively lobbied Congress to reduce their legal liability; the profession donated $7.7 million dollars to members of Congress in the 1994 election cycle. Congress listened to the profession’s message, passing the Private Securities Litigation Reform Act (PSLRA) (1995)[5]. Passage of the PSLRA made it less risky for one group of gatekeepers, auditors, to allow management greater latitude in selecting financial reporting methods as it limited auditors’ legal liability. The financial services industry also made enormous political contributions to members of both parties of Congress in an effort to formally repeal the Glass Steagall Act, formally known as the Banking Act (US Congress, 1933). After the crash of 1929, Glass Steagall was passed to separate retail and investment banking in order to curb financial speculation and protect retail investors. Beginning in the 1980s, Citigroup spearheaded a long and successful lobbying effort to slowly erode the provisions of Glass Steagall. By the 1990s, retail banks could earn 25 percent of their revenue from brokerage activities. The passage of the Financial Services Modernization Act (US Congress, 1999), better known as the Gramm, Leach, Bliley Act (GLBA), repealed Glass Steagall and reunited investment and retail banking. The GLBA allowed another group of gatekeepers, financial analysts, to benefit from the investment banking activities of their firms. Bonuses were based on all earnings, and investment banking had a much higher return than retail banking. Analysts had little incentive to issue earnings warnings to retail investors if their bonuses were about to benefit from an Initial Public Offering (IPO). Gutting regulation allowed corporations to bend, if not break, the law and the public’s watchdogs to aid and abet fraud through indifference to their fiduciary responsibilities. The cynical might say AAAJ 23,6 778
  6. 6. that corporate generosity paved the way for massive deregulation and that the repeal of New Deal safeguards created a climate conducive to scandals. Finally, as is often the case with deregulation, unbridled competition soon led to an oligopolistic media industry. Five corporations, Bertelsmann, Disney, News Corporation, Time Warne and Viacom, effectively controlled the US media. The corporate controlled media rarely mentioned corporate influence on political agenda setting and carried the standard neoliberal message. Bagdikian (2004, p. 14) examined media messages concluding that “political slogans advocating a shrinking government and arguments involving that idea filled the reportorial and commentary agendas of most . . . major news outlets”. The mass media also sought to control costs by limiting investigative reporting and focusing on feature and consumer stories (Greenwald and Bernt, 2000). Events such as the financial industry lobbying efforts to relax Glass Steagall beginning in 1987 went virtually unreported in the press or among academic accountants[6]. While neoliberal discourse extolled shareholder primacy, the neoliberal political agenda served to undermine the fiduciary responsibilities of professional gatekeepers and limit press coverage of the effects of proposed legislation on consumers, stockholders and citizens. The media’s bashing of government provided framing for the neoliberal message that facilitated voluntary acceptance (manufactured consent) of that message. Manufactured consent – the power of ideas The third form of power, manufactured consent is the most effective means of exercising power. Gramsci (1971) noted that establishment of both intellectual and moral hegemony is a condition of voluntary conquest. More recently, Lukes (1994, p. 23) clarified that message, asking “Is it not the supreme exercise of power to get another or others to have desires that you want them to have – that is to secure their compliance by controlling their thoughts and desires?” Voluntary subjugation will not generate resistance, since false consciousness renders the iron chains that grip the public mind invisible[7]. Neoliberals effectively used the rhetorical technique called framing to gain manufactured consent (Lakoff, 2003). One of the most compelling examples of framing is to depict regressive tax policy as “tax relief”. Relief implies an affliction and a hero (the neoliberal) to remedy the affliction; thus, although neoliberal tax policies clearly privilege higher income groups, the public accepts this because “tax relief” is seen as just. Michalitsch (2004) provided a similar observation about the power of neoliberalism. She argued that neoliberalism influences the cognitive, emotional and social dimensions of individuals. At the cognitive level, neoliberalism results in standardized thinking. The language of neoliberalism fades out real contradictions and social conflicts. The goal of neoliberal discourse is to achieve voluntary subordination under dominant conditions, which results in individuals thinking there is no alternative. Competition becomes legitimated and the “naturalness” and “unchangeableness” of social conditions produce socially incompetent individuals. The global standardization of the social dimension manifests itself as the standardization of thinking (Michalitsch, 2004). An important ideological justification of deregulation is that it would deliver wealth and security, globally, if market forces were freed from regulatory intervention. Court (2003) demonstrated how corporations have shaped public opinion by arguing that regulation increases consumer costs and destroys business. He noted that corporations have been so successful with these arguments that the public has accepted Neoliberalism, deregulation and S-OX 779
  7. 7. deregulation as a natural process. The Washington Consensus, composed of three institutions, the World Bank, the International Monetary Fund, and the US Treasury, instituted lending policies that rewarded developing nations that made structural changes and penalized those that did not. They carried the neoliberal message that promoting the special interests of the economic elite was in the general interest of a society. Citizens are creatures of the economy and politicians are “stewards of the economy” whose “overarching political mission is to insure that more and more goods and services are available to be consumed” (Staats, 2004, p. 591). Neoliberalism frames free markets as natural not self-constructed; markets fire people, markets crash and human efforts to control markets are doomed to failure (Dugger, 1989; Cooper, 2005). The role of profit in neoliberal ideology Neoliberals not only extol individual freedom, but they also suggest that freedom, individual liberty and well-being cannot be achieved if there is an interference with market forces. Friedman (1981) stresses one form of freedom, the freedom of an individual to carry out activities without interference or coercion, a negative form of freedom. Positive accounting researchers, borrowing from Friedman, depict economic freedom as a subset of equality of rights in that it is the right to enter into voluntary contracts. This freedom is the dominant form of freedom in accounting empirical research. This effectively disregards an equally important freedom, equality of opportunity, a positive form of freedom (Rawls, 1971). Positive freedom requires subsidies. There is a tradeoff between negative and positive freedom. Taxes curb some individuals’ activities, but if those taxes provide a subsidy for education, they create freedom for others by offering more opportunities from which to choose. We rarely see discussion of positive freedom in the academic archival literature, but it is critical to any democracy. This same research stream also fails to examine whether voluntary contracting is a relevant model if we have structure coercion created by unregulated markets (Rothschild, 2003). Neoliberals have powerful think tanks that promote the neoliberal message because they understand the importance of “training” willing subjects. Aune (2001, pp. 40-1) examines how neoliberal rhetoric promotes “economic correctness” in order to produce compliant subjects. He points out that neoliberals adopt a realist perspective; this allows them to separate power from its textuality and to “craft an aesthetically unified world of sheer power and constant calculation”[8]. Accounting (pecuniary) profit plays an important role in legitimating the neoliberal message. The “free” market metaphor is deeply engrained in Anglo American culture; an autonomous market, constrained only by competition (the invisible hand), ensures that self-interested profit seeking maximizes social well being. There is no ambiguity about accounting profit; it is the end, not a means to an end. Capitalism Magazine, one of the many outlets for a conservative “think tank,” echoes this message loud and clear: In an unfettered free market the desire for profit is satisfied by honest, long range, rational behavior: by innovating, by hiring the best people, by selling quality products and by providing accurate information to the owners of the corporation – shareholders. As for short-range managers the market will not tolerate them (Brook and Epstein, 2002, p. 2). Profits at all (or perhaps any) cost became the mantra of the 1990s (Chomsky, 1999; Stiglitz, 2003). AAAJ 23,6 780
  8. 8. During the halcyon days of the 1990s, increasing accounting profits and/or revenues reinforced the neoliberal message that everyone could be rich. Arthur Levitt (1998), SEC chairman, warned about managed earnings, but his concerns drew limited attention from the popular press and threats from Congress to cease and desist[9]. Whether through pension plans or direct investment, the neoliberal message was that the USA had become an “ownership” society in which all, except the clearly undeserving who could not compete, would prosper. Despite neoliberal arguments that the market will not tolerate amoral behavior when greed is extolled as a virtue and accounting profit is reified, moral lapses can be expected to occur. Neoliberals argue that Enron, WorldCom, and Health South were exceptions; given time, the market would have self-corrected. Vidal (2002, p. 2) suggests that when profit becomes the focal point “then everything else, from product quality to the workforce, becomes cost to be controlled and reduced. Profits over people, profits over environment, profits over community, (fake) profits, even, over shareholders.” He concludes that “only a fool would believe that a lecture in ethics would trump the incentives of profit over everything else” (Vidal, 2002, p. 2). Deregulation, promoted by neoliberal ideology, created an environment that fostered corporate malfeasance and earnings management. Corporate malfeasance – the deregulatory environment The Conference Board’s 2003 Commission on Public Trust and Private Enterprise indicates a perfect confluence of events led to the abuse of the public trust by corporations[10]. These events include the excessive compensation of top management, inappropriate corporate governance mechanisms, and the inadequacy of accounting controls and audits (Conference Board, 2003). We agree that these events provided some impetus for the malfeasance; however, we concur with Coffee’s (2003) conclusion that deregulation led to fiduciary neglect from traditional gatekeepers, i.e. external auditors and financial analysts. Deregulation led not only to individual misconduct but also to systemic corporate governance problems. Neoliberal rhetoric stressed stockholder value, but incentives, such as stock options, designed to align managerial and investor interests, failed. The Conference Board documented the dramatic increase in the use of stock options in the 1990s which created incentives for maximize short-term earnings to increase share prices. Contemporaneously, the Government Accountability Office (GAO – at the time referred to as the general accounting office) provided the US Senate’s Committee on Banking, Housing and Urban Affairs with a report on financial restatements (GAO, 2002). The report documented (through estimation) the number of restatements, due to accounting irregularities, from January 1997 to July 2002. Restatements are associated with a drop in investor confidence in the market place. The report states that restatements increased considerably over time; large corporate restatements increased at a greater rate than that of small listed companies (GAO, 2002). The restatements clearly had a negative impact on market valuation where hundreds of billion dollars were lost. In the five-and-a-half-year analysis, the GAO estimates that “one in ten corporations restated their financial statements due to accounting irregularities” (GAO, 2002, p. 16). Executive compensation, in the form of stock options, was an enormous incentive for misbehavior (Coffee, 2003); top managers re-focused the problems onto lower level Neoliberalism, deregulation and S-OX 781
  9. 9. managers, primarily non-US middle managers; tone at the top or ethics reform was not considered; auditors, in some of the cases may have been misled, but in other cases they appeared to be asleep at the switch. Jensen and Meckling (1976) promoted stock options as a means of reconciling shareholder and managerial interests and increasing shareholder value. Archival research, based on agency theory, proliferated throughout the last quarter of the twentieth century and has spread globally. However, at the turn of this century, critics, including Jensen (2001, p. 3), concluded that “typical executive stock options are not structured properly and, as a result, reward managers for taking actions that destroy value”. Stock options provided a means of redistribution of corporate wealth to managers, and the costs were borne by all other societal groups, labor, consumers, taxpayers and shareholders. Ball (2009) disagrees with the above assessment. He argues that stock options, conflict of interests of fiduciaries or financial deregulation were not major contributors to the corporate scandals. He concludes markets worked “surprisingly well in detecting but not preventing the problem” and does not recommend change (Ball, 2009, p. 323). We strongly disagree with Ball that it is sufficient to employ a market system that detects but does not prevent corporate malfeasance. Ball’s position supports Cooper’s (2005) argument that the US environment has become hostile to public intellectuals who challenge the status quo. The neoliberal responses to corporate scandals Conrad (2004) examined neoliberal rhetorical responses to the corporate scandals and found that the reaction occurred in two stages. The first stage involved symbolic placation of an outraged public. Once it became clear the scandal could not be denied, both politicians and business leaders joined the public in expressing their outrage and held public hearings. During those public hearings, neoliberals began to develop rhetorical strategies to limit damage. One of the first moves was to label each scandal a crisis. The crisis label has a therapeutic effect, it calms emotions, but more importantly it delays the need for policy reforms. The second rhetorical stage seeks to narrow the definition of victims and to narrow the problem from one of governance to a more tractable issue, such as accounting. The neoliberal response first sought to narrow victims to ownership interests, i.e. outside investors or employee investors, and to individualize moral lapses that occurred (Conrad, 2004). The employee as employee disappears from the scene and attention is diverted from any systemic failure. Once the moral lapses had been individualized, then the “few bad apples” explanation becomes predominant (Conrad, 2004, p. 316). It should be noted that the response in the academic community, the rediscovery of the need to teach ethics, perpetuates the bad apple syndrome. If the crisis stems from individual bad behavior rather than from corrupt incentives or a corrupt system, then criminal sanctions or whistle blowing protection provide viable solutions. Similarly, defining the problem of corporate misbehavior as an “accounting crisis” rather than a crisis of corporate governance also suits the neoliberal agenda very well. It, too, diverts attention from corporate governance and systemic failures and switches the debate to arcane auditing and accounting issues. Cornehls (2004) documents the trend in the press to individualize blame for the current scandals, placing the blame on a handful of rogues, executives, board of directors, audit firms, financial analysts, etc. AAAJ 23,6 782
  10. 10. Historically, accounting issues have not generated public fervor as such issues appear to be “mere” technical problems to be solved by the experts[11]. The media response Williams (2003) investigated media reports associated with the corporate scandals and found those accounts contained two basic discourses: the discourse of attribution and the discourse of recovery. Attribution discourses followed immediately upon public disclosure of scandals. They focused on a broad range of issues, including: . executive wrongdoing and the manipulation of financial accounts; . audit failures and conflicts-of-interest in the accounting profession; . ineffective corporate governance; . deceptive stock recommendations and conflicts-of-interest in the investment banking industry; . deregulation of energy, technology, and telecommunications markets; and . regulatory failure and political influence peddling (Williams, 2003, p. 6). The subsequent discourses, which Williams (2003) labeled discovery discourses, focused on “remedies” for the crisis and at this stage the deregulation issue and political influence peddling virtually disappeared from the media accounts. The remedies focused on criminal penalties for individual wrongdoers, reforms of accounting standards and oversight, elimination of conflicts of interests for individuals, i.e. separating auditing and consulting and divorcing analysts’ compensation from investment banking activities. Thus, neoliberals effectively used political and media control to reframe the corporate scandals as a matter of a “few bad apples” and conflict of interest problems for the “gatekeepers” of the public trust. Schiller (1992) attributed the acceptance of corporate domination of the media to a marriage of economics and a corporate controlled economic media. He mentions four forms of mind manipulation (myths) that neoliberals successfully used to gain the unforced consent of the populace. The neoliberal myths were: (1) individualism and personal choice; (2) the neutrality of other key social institutions; (3) of unchanging human behavior as economically rational; and (4) education. It is not surprising that neoliberals’ efforts to diffuse the public outrage centered reform on the traditional self-regulatory-model based on shareholder primacy. Their efforts resulted in one significant “remedy,” the Sarbanes-Oxley Act (US Congress, 2002) (S-OX). S-OX: neoliberals preserve the status quo When President George W. Bush (2002, p. 1) signed the Sarbanes-Oxley Act on July 30, 2002, he characterized S-OX as “the most far reaching reform of American business practices since the time of Franklin Delano Roosevelt”. Ironically, Bush, in an era dominated by neoliberalism, referred to the New Deal, which neoliberal critics associate with big government and market regulations. His words may be interpreted as a rhetorical device aimed at appeasing shareholders (Soederberg, 2008). Neoliberalism, deregulation and S-OX 783
  11. 11. Congressional leaders believed, or at least publicly professed to believe[12], that S-OX would improve corporate governance and strengthen corporate accountability to the extent that investors will not see future corporate frauds such as Enron and WorldCom (Peters, 2004). The CEO of NASDAQ noted that S-OX was a necessary but tough prerequisite to the restoration of investor confidence through increased transparency, strict accountability and improved corporate governance (Greifeld, 2006). To the extent that corporate governance practices were strengthened, contracting (agency theory) proponents viewed S-OX as realigning the interests of agents and principals (Ribstein, 2002). But as Reberioux (2007) noted S-OX reaffirmed shareholder primacy, which he believes led to the weak corporate monitoring systems that produced financial scandals such as Enron and WorldCom. The politically charged debate over faulty corporate governance practices and shareholder primacy allowed neoliberals to use S-OX to convince the public that the egregious scandals of the day were due to the greed of corporate executives, the lack of transparency and the absence of accountability rather than the fault of deregulation. Soederberg (2008) posited that by focusing on symptoms such as executive compensation, murky disclosure and little or no accountability, neoliberals framed the debate in terms of how companies should control their internal processes and the failure of accountants, auditors and other gatekeepers to protect shareholder interests[13]. This position parallels Conrad’s (2004) previously mentioned rhetorical device of drawing attention to particulars, like internal controls, rather than systemic corporate governance reform. Because of its length and complexity, a thorough discussion of S-OX is beyond the scope of this paper. Some of its key provisions, however, are pertinent to a discussion of how neoliberal ideology was preserved in the crafting of S-OX. In Section 101 of S-OX, legislative architects created the Public Company Accounting Oversight Board (PCAOB) and gave it broad powers, such as authority to set auditing standards (Section 103) and to inspect the audits of public accounting firms (Section 104). These same legislators granted the Securities and Exchange Commission (SEC) authority over the PCAOB (Section 107). S-OX, Section 404, focused on internal control processes as the primary means for ensuring the validity of a firm’s financial statements (SOX-online, 2009). SEC oversight of S-OX and the emphasis on internal processes provided neoliberals with the mechanisms to recreate the status quo rather than allow a restructuring of neoliberal capitalism. Neoliberals continue to challenge the constitutionality of the PCAOB. In May of 2009, the Supreme Court agreed to place the case on its docket. From its creation in the Securities Exchange Act (US Congress, 1934), the SEC has operated as a quasi-government agency charged with the oversight of information about and sale of securities offered to the public. Soederberg (2008) noted that technical experts administer the SEC and that society views the agency as a quasi regulatory body that is characterized by objectivity, impartiality and neutrality in its efforts to protect investors and police corporate management. Such a viewpoint serves an important role in the SEC’s attempt to maintain the status quo, i.e. the current corporate governance model, while it carries out congressional mandates. Through the years, the regulatory philosophy of the SEC has basically been one of corporate accountability via self-regulation. The SEC’s response to prior federal legislation provides evidence of the SEC’s deference to corporate self-policing. In 1970 Congress, reacting to a market crisis, passed the Securities Investor Protection Act (US Congress, 1970). The Act created the Securities Investor Protection AAAJ 23,6 784
  12. 12. Corporation and gave the SEC more powers to regulate brokers and their firms. In October, 1996, Congress enacted the National Securities Market Improvement Act (US Congress, 1996), which redistributed regulatory authority between federal and state securities regulators. The objective of each of these new laws was to give the SEC supplemental powers to investigate questionable securities transactions and to control corporate actors. With each new law, however, the SEC continued its reactive stance to corporate malfeasance and its philosophy of corporate self-governance (Weismann, 2004). The SEC’s reactive stance is nothing new. Longstreth (1983), a former SEC commissioner, noted that the SEC has repeatedly abdicated its role as a reformer and has chosen corporate self-regulation with regulatory oversight. This creates a gap between the statutory powers that Congress has given the SEC through the years and the SEC’s reluctance to bring about systemic reform. Thus, the SEC has consistently chosen self-governance as its regulatory modus operandi. SEC’s use of self-regulation through S-OX On the surface, S-OX provides the SEC with additional tools to its arsenal to combat corporate fraud and wrongdoing. For example, auditors are prohibited from performing most non-audit work for their audit clients (Section 201), and engagement audit partners must rotate off an audit every five years (Section 203). These requirements, along with other S-OX provisions, may give the investing public a false sense of security, an illusion that S-OX healed what ailed corporate governance and the external audit. On a deeper level, however, the SEC is using a self-regulatory approach in its oversight of S-OX. Such an approach allows S-OX to preserve rather than to challenge the underlying neoliberal philosophy now embedded in the general corporate governance framework. Instead of developing mechanisms for establishing the oversight of internal processes of publicly traded firms, the SEC has continued its corporate self-governance approach by allowing companies to self-police themselves (Previts and Merino, 1998). To achieve its goal of continued self-regulation post-S-OX, the SEC has required management and boards of directors to be more proactive in overseeing and monitoring financial reporting, particularly internal control processes (Tracey and Fiorelli, 2004). This approach of self-policing improves disclosure but, with no corresponding internal scrutiny by the SEC, fails to provide an accurate measure of corporate risks (Weismann, 2004). Although S-OX appears to reduce the conflict between agents and principals by requiring greater accountability on the part of agents, it never attempts to reverse the underlying dependency of self-regulated corporations on deregulated financial markets (Soederberg, 2008). Thus, S-OX recreates the dependency conditions that resulted in fictitious shareholder value for the investors negatively impacted by corporate scandals such as Enron, WorldCom and Tyco International. In addition, S-OX inadequately addresses the divergence of shareholder interests and management control identified by Berle and Means (1932). The power and information asymmetries that existed between shareholders and managers before S-OX still exist after the passage of S-OX. These shortcomings lead us to agree with Stein (2008) that S-OX was more about government rationalization of existing neoliberal thought and practices encompassed in the state and less about protecting investors. We posit that S-OX was largely symbolic and that its discourse fails to question the validity of the fallacious, Neoliberalism, deregulation and S-OX 785
  13. 13. but prevailing, viewpoint that a corporation is a nexus of contracts, best regulated by free market forces as defined by neoliberalism. The SEC’s laissez-faire approach to its regulatory oversight and application of key S-OX provisions to the corporate world causes us to question whether S-OX will deter self-interested behavior, earnings management and fraudulent financial reporting in the future. Because S-OX was constructed to fit the prevailing neoliberal corporate governance framework, it neglects to examine the broader forces of neoliberalism – deregulation, the promotion of free markets as being “moral” forces reflecting societal resource allocations and the greed fed by stock market-related incentives. The ineffectiveness of S-OX can be seen in stock options backdating abuses that followed the passage of S-OX: Tenet Healthcare – 2003, American International Group – 2005, Take-Two – 2009, and Quest Software – 2009, just to name a few. S-OX was also unsuccessful in addressing the boarder forces of neoliberalism that contributed to the subprime mortgage crisis. While upper-level management of companies such as Citigroup, Lehman Brothers, New Century and Washington Mutual made millions in bonuses and stock options, S-OX did not provide other stakeholders, including regulators, with the transparency to see the risks associated with collateralized debt obligations (CDOs) or mortgage-backed securities (MBS) and the resulting exigencies of such speculation. This has been a spectacular failure of the policies of the Washington Consensus, not only impacting the USA but also contributing to a world-wide recession. Conclusion Despite the passage of S-OX, neoliberals continue to promote shareholder primacy based on traditional corporate governance measures (self-regulation) and financial deregulation. We have tried to highlight how the standard explanations for the recent corporate failures mask the underlying systemic problems that exist in deregulated market economies. Neoliberals skillfully used rhetoric to frame issues defusing criticism; they understand the importance of support from a cadre of Gramsci’s (1971, p. 330) “organic intellectuals”. They have think tanks and a media infrastructure that propagate the free market “faith”. They also have an impact on higher education, through endowed chairs and centers. The corporate scandals have shown that mere facts will not break the hold that neoliberalism has had globally and, particularly, on the American mind; it will take a concerted effort by critics to reframe the issues in a manner that highlights the growing contradictions between neoliberal theory and societal well-being. Corporate managers (the economic elite) exacted a premium from all other stakeholders by manipulating earnings. This not only allowed them to receive excessive compensation, but also resulted in the loss of jobs to thousands of workers and huge losses to investors. We argue that Sarbanes-Oxley preserved the status quo; it reflects an effort to maintain shareholder primacy in the face of ever-growing evidence that the traditional model, corporate self-regulation and financial deregulation, has been detrimental from a societal perspective. Neoliberals successfully diverted attention from the systemic failures of deregulated markets. Despite neoliberal assertions that the omnipotent “free market” would not permit managers to adopt a short-term perspective nor to issue “false financial reports”, financial reporting abuses continue. Reberioux’s (2007, p. 508) claim that “shareholder primacy as a corporate governance mode is the main driving force behind the crisis” and that “shareholder primacy weakens, rather than AAAJ 23,6 786
  14. 14. strengthens managerial accountability” deserves further examination. Models that reflect actual corporate relationships need to be developed. We posit that Sarbanes-Oxley served only to legitimate the traditional shareholder value corporate governance model. S-OX masked the inadequacies of the current model by focusing on technical solutions, such as transparency and internal processes, in a last effort to resurrect a failed governance system. Accounting academics could have an important role in reshaping public opinion. Berle and Means (1932) warnings about the effect of separation and control need to be reasserted. The message should be clear – contracting (agency theory) does not work in a global economy. We strongly disagree with Ball (2009) and other positive accounting theorists who suggest that it is sufficient to employ a market system that detects but does not prevent corporate malfeasance. We need new models that accurately reflect the power asymmetries between managers, owners, and the public. Rather than developing models that focus on regulatory capture and the use of state power to promote private interest, academic researchers need to develop models that focus on deregulation. This implies that archival researchers must rethink the dominant paradigm, shareholder value and agency theory that has been used to examine issues of corporate governance. We need a new research framework that requires researchers to examine government inaction rather than government action. More importantly, we need accounting academics to reject Milton Friedman’s focus on negative freedom as the sole objective of economic activity and examine economic well being in terms of positive freedom. Equality of opportunity should be at least as important as an individual’s right to pursue activities without interferences. Government needs to be more, not less, active in controlling the economic elites that have dominated the global economy for over a quarter of a century. All accounting academics should be cognizant of the limitations of our current theoretical frameworks to raise and address significant accounting issues. Empirical researchers need to question whether or not a model, designed to explain the impact of accounting, can be based on models that do not reasonably reflect actual economic relationships. In a world of arbitrage capitalism that leads to extensive use of credit derivatives to enhance short-term profit maximization, funded primarily by workers’ pension funds, a deregulated economic system creates undue economic risk. We need to develop new concepts to measure the effectiveness of corporate operations and to debunk the neoliberal notion that maximization of “pecuniary” profit will lead to maximization of social welfare. Neoliberals successfully narrowed the impact of the scandals by limiting the losses to “investors” (either owner or employee); the thousands of employees who lost their jobs have only been mentioned tangentially in the debate. Critical accounting researchers need to strive to make those employees visible again. We need to expand the concept of corporate performance measurement to reflect “full earnings” not just profit to the owners and to recognize that the shareholder primacy and the traditional corporate governance model will not work in a complex global economy. We also should begin to exam the impact of accounting on positive freedom and begin to examine measures that will increase the opportunity for individuals to succeed. Finally, we concur with Cooper (2005) who concludes that the harrowing effects of neoliberalism on the daily lives of people require that we have more academics who serve as public intellectuals. We need more critical commentaries on the impact of accounting on socioeconomic well being. Neoliberalism, deregulation and S-OX 787
  15. 15. Notes 1. In a very interesting book, Pollin (2003) outlines three fallacies associated with neoliberalism, the Marxian (wage), the Keynesian (speculation) and the Polayni (social) problems. He argues that neoliberalism exacerbates inequalities of individuals and nations. 2. Social Darwinism became far more popular in the USA than in the UK where Spencer lived; Andrew Carnegie (1901) carried the message forward in his Gospel of Wealth, which was published in book form in 1962. William Graham Sumner (1963) was its most eloquent academic proponent. 3. See Goldstein (2002), who quotes Alan Greenspan (1963), who argued the free market system is a “superlatively moral system that the welfare statists propose to improve upon by means of preemptive law, snooping bureaucrats and the chronic goad of fear”. 4. Gramsci (1971) and Gramsci and Smith (1985) examined nineteenth century hegemonic cultural forms, such as newspapers, novels, and theater; Gramsci noted that to be effective these cultural forms required both widespread literacy and technological advance. He suggested these bourgeois cultural forms, functioned to exert control over the working classes by making their interest appear to be tied into the interests of the dominant classes. 5. See OpenSecrets.Org, the web site of the Center for Responsive Politics (2009) that documents all political contributions in the United States by source. Accountants’ contributions were evenly split between Democrats (51 percent) and Republicans (49 percent). With this dollar amount, the accounting industry ranked 22nd out of 80 industries in campaign contributions. (Center for Responsive Politics, 2009). See also, Huffington (2003) who documents the auditing profession’s use of money and media “to grease the way” for passing favorable legislation and for lobbying Congress to block SEC action. 6. Schlesinger (2002) provides an excellent overview of the financial services industry’s efforts to repeal Glass Steagall beginning in 1987. GLBA, which allowed for full integration of underwriting, securities and insurance activities, went into effect on March 11, 2000. 7. See original institutional economists (OIE) like Dugger (1989), who regard emulation as a central attribute of corporate hegemony. Foucault (1980) recognized that a dominant discourse often leads to voluntary subjugation of the disciplined. 8. The commodification of all aspects of life, subject to cost benefit calculation, finds an extreme application in the work of Gary Becker’s work. Becker (1986) defines marriage as a two-person firm for the production of children. 9. See Schlesinger (2002) and Frontline (2005) for discussion of Congressional and corporate threats to limit the SEC efforts; see Barr and Lambert (1998) for the profession’s earlier reaction to Levitt’s proposals. 10. The conference board is an independent not-for-profit organization advocating in the public interest from a large corporation point of view. 11. Previts and Merino (1998) discuss the public’s reaction to “accounting” crises in the USA in the twentieth century. 12. In terms of neoliberalism rhetoric, the political leaders of both parties enthusiastically endorsed S-OX as a regulatory instrument capable of restoring the vibrancy of free markets. On July 15, 2002, the US House of Representatives passed HR 3763 [107th] Conference Report, i.e. the Sarbanes-Oxley Act, by a roll call vote of 334-90. Ten members of the House were not present to vote. Ten days later on July 25, 2002, the US Senate vote on HR 3763 [107th] Conference Report was 99-0. One senator was not present to vote. 13. Over the past several decades, corporate internal control processes have become a first-order policy option to respond to a plethora of national problems. The early 1970s saw overseas AAAJ 23,6 788
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