To the dismay of anti-poverty activists worldwide, last week Congress gave the administration some $2 billion less than it sought to support aid programs in developing countries and U.N. relief efforts. But there’s another source of “aid” these critics ought to consider: the U.S. Securities and Exchange Commission. The SEC is doing far more to promote healthy economic growth in the world’s poorest countries than any congressional appropriation or U.N. initiative could.
The reason? Sarbanes-Oxley, the controversial 2002 legislation designed to prevent future Enrons, Worldcoms and Tycos, has become a powerful force for reducing graft and bribery in the Third World. Much to the surprise of corporate lawyers and good-governance champions, the law that chief executives and their boards love to hate has conscripted the private sector as a partner in fighting global corruption. And corruption is the single largest obstacle to economic growth in poor countries, according to the World Bank.
When it was passed in the wake of corporate scandal, Sarbanes-Oxley’s potential impact on global corruption wasn’t even an afterthought. But by requiring corporate directors and CEOs to personally certify their companies’ internal controls—and by criminalizing false certifications—the law inadvertently fostered a new industry of global compliance auditors. In the United States, these auditors identified fraudulent “special purpose entities” that permitted Enron to shift losses off its balance sheets. In the rest of the world, they sniffed out the “offshore intermediaries” that helped companies seeking to sidestep provisions of the 1977 Foreign Corrupt Practices Act (FCPA) prohibiting payoffs to foreign officials.
The result has been a sharp increase in the number of companies “discovering” questionable or illegal payments overseas. The number of government investigations into potential FCPA violations more than doubled from 2002—the year Sarbanes-Oxley was enacted—to 2004. Previously the government initiated most of these inquiries, but today’s investigations are generally triggered by “self-reporting,” which strongly suggests that more companies are cleaning up their overseas acts.
As a result, many of the world’s best-known companies are changing the way they operate in the developing world. Bristol-Myers Squibb disclosed an SEC inquiry into payments by the company’s German subsidiaries. Lucent employees were accused by the SEC of paying off Saudi Arabian
government officials. Halliburton revealed that employees may have bribed Nigerian officials in connection with a liquefied natural gas facility. The SEC charged ABB’s U.S. and foreign units with paying $1.1 billion in bribes to officials in Angola and Kazakhstan between 1998 and 2003.
Aggressive enforcement is the logical extension of U.S. policy to improve governance and transparency in the developing world. Corruption destroys confidence in markets and jeopardizes the integrity of nations. It is a regressive tax on the poorest of the poor.
Corrupt governments—governments whose officials ignore laws or, worse, violate them with impunity—undermine our own laws and defy our stated policy. Through support of the Millennium Challenge Account and aid programs in the Middle East, this administration has, with bipartisan backing, clearly shown the links between transparency, the rule of law, free markets and democracy. But these new programs are dwarfed by the size and scale of the private business activity in the targeted countries.
U.S. policy has wisely recognized that American business—companies protected by our laws and funded by our public markets—can reinforce healthy transparency through its commercial and investment practices. If the FCPA enlisted companies as foot soldiers in the global war on corruption, Sarbanes-Oxley has drafted their CEOs and corporate directors as senior officers.
This alone should cause Congress to resist efforts to repeal or weaken Sarbanes-Oxley. Yes, compliance undoubtedly imposes costs, but building a global community of governments that value transparency and the rule of law is a good strategic investment for American business.
At the same time, this administration and its congressional allies must push other industrialized countries to aggressively engage in the fight against corruption. As things stand, U.S. companies that comply with Sarbanes-Oxley compete at a disadvantage against European and Asian firms for which bribes and payoffs are just another business expense.
That is politically and economically indefensible. The certification requirements of Sarbanes-Oxley, warts and all, demonstrate how corporate power can effectively be aligned with public policy to fight global corruption. Rather than removing or limiting them here, we should be promoting them abroad.