Lobbyists keep SEC's executive-pay rule in limbo
WASHINGTON Soon after Congress approved the largest overhaul of financial regulation in generations, the Securities and Exchange Commission moved to enforce what it considered one of the simpler parts of a mammoth and complicated law.
The provision required companies to disclose how much more their chief executives made than other employees. All the agency had to do was write a rule telling firms how to comply.
Nearly three years later, the rule remains unfinished, with no sign of when it will be done.
Within six months of the law's passage in 2010, SEC staffers had circulated an early blueprint for the pay rule. They set a deadline for completing it by the end of 2011. The public was outraged over runaway executive compensation, and the pay disclosure seemed relatively straightforward, at least compared with many of the law's other requirements.
What the agency did not count on was the resistance mounted by big business. A lobbying campaign waged by business executives and the nation's most prominent corporate associations undercut the momentum and effectively brought the agency's work on the rule to a standstill, according to interviews with SEC insiders and others familiar with discussions about the requirement.
The efforts of business groups to influence the SEC's work was especially effective because of their success in pressing a court challenge to another part of the financial overhaul legislation in essence, an extension of their lobbying efforts. The threat of additional lawsuits has hung over the discussion between lobbyists and agency officials about the pay rule, and some opponents have warned that the agency could be sued again if it enforces it.
"I don't think folks anticipated the complexity or controversy ... The corporate community pushed back," said Scott Kimpel, former counsel to Republican SEC commissioner Troy Paredes and now a partner at Hunton & Williams. "The lobbying alerted [the commissioners] to the fact that there were issues and dissensions ... People back-burnered it."
SEC officials, who had hoped the pay rule would be completed quickly, missed their 2011 deadline. Then they missed another self-imposed deadline a year later.
As the three-year anniversary of the financial overhaul legislation known as Dodd-Frank approaches this month, the fate of the executive compensation provision exemplifies the problems dogging one of President Barack Obama's signature accomplishments.
Designed to prevent a repeat of the 2008 financial meltdown, the law grants broad powers to federal watchdogs to rein in Wall Street abuses and other corporate practices. Yet the regulators who must enforce it are far behind. Federal agencies writing the specific rules to carry out the law have missed nearly two-thirds of the deadlines set by Congress, according to numbers compiled by Davis Polk, a law firm that represents many financial companies.
Dozens of provisions pertaining to banking, trading in financial securities, mortgage lending and other areas have run into delays for reasons that experts say include their complexity and understaffing at agencies.
And as the economy has recovered from the devastation of the financial crisis, business lobbying has continued even as public attention has moved on.
Business interests, which vigorously opposed much of the law before Congress approved it, have been trying to influence or roll back various provisions with backroom advocacy and courtroom challenges. The pay disclosure which requires public companies to reveal their chief executives' total compensation, the median compensation of all other employees, and the ratio between the two has aroused particular ire.
Lobbyists and former SEC officials described a campaign to weaken or completely block pay disclosure, known as the "pay ratio" rule, that has been fierce and unyielding. Scores of companies and associations have lobbied on the specific provision since Dodd-Frank's passage, including IBM, McDonald's, AT&T and the New York Stock Exchange, lobbying records show. Leading the fight are the Center on Executive Compensation, the U.S. Chamber of Commerce and other corporate associations that represent hundreds of thousands of businesses.
Lobbyists have also targeted Congress. A House committee last month approved a bill to repeal the pay ratio provision, though immediate passage by Congress is unlikely.
"It's lunacy," said Mark Poerio, an attorney for the American Benefits Council, one of many who have pressed the case against the provision in discussions with the SEC. Poerio and others from the council, which represents companies providing employee benefits, met with agency officials in April to argue that it would be extraordinarily difficult for firms which already must disclose the pay and benefits given to five top executives to calculate that information for employees worldwide.
"When you're doing it for five people, it's a pain but it's feasible. Applying that standard to thousands is ridiculous," he said. He noted that lobbying "has certainly slowed down" the writing of the pay ratio rule.
Agency officials dispute criticism that they have "slow-walked" the rule and have repeatedly said their goal is to write a rule that works. They say their emphasis is not speed but effectiveness.
Now, with unions and other pay ratio advocates mounting their own lobbying effort to get the SEC to move, the agency's new chairman, Mary Jo White, is vowing to redouble its efforts to complete the rule and other long-delayed regulations. Testifying before Congress in March, she said there is"no higher priority." But, she added, the task "truly is daunting.''
The pay ratio provision was inserted into the Dodd-Frank legislation at a time when public anger was running high over executive pay. The excesses were symbolized by the hundreds of millions of dollars in bonuses and retention pay that American International Group had paid its employees, not long after the government committed more than $180 billion to rescue the failing insurance giant during the financial crisis.
Sen. Robert Menendez, a New Jersey Democrat with strong union ties, proposed and pushed the pay ratio measure in 2010. It was 18 lines in a 2,300-page bill.
While the bill's sponsors privately expressed doubts about the practicality of the proposal, Sen. Christopher Dodd, D-Conn., agreed to accept it to satisfy Menendez, a key member of the Senate banking committee whose vote he needed, according to several people familiar with the bill's drafting. Dodd said, " 'Let's give it to the SEC and let them figure out how to do it,' " one of the people said. "It didn't get much attention." (Dodd, who did not seek re-election in 2010, is now head of the Motion Picture Association of America.)
Within six months of the law's passage in July 2010, SEC staff members circulated what is known as a "term sheet" -- an early plan for how to proceed on the pay ratio rule, according to a person familiar with the deliberations. It was "one of those things they wanted to move along," said the person, who like others interviewed for this article spoke on the condition of anonymity to discuss sensitive deliberations.
When the document reached the SEC, it triggered questions among the commissioners about how best to carry out the ratio requirement and whether it was even practical. Then came the lobbying buzz saw.
"There were a huge number of meetings," said another person familiar with the SEC's thinking. And nearly all the lobbying over pay ratio in late 2010 and 2011 was on the corporate side, according to lobbying records, disclosures on the SEC website and interviews.
Business officials pushed for ways to ease the requirement, such as including only U.S.-based employees in calculating a firm's pay ratio. These lobbyists strongly opposed an approach, suggested by the AFL-CIO and considered by the SEC, to calculate the ratio using "statistical sampling," a method that could reduce the burden on companies by requiring them to determine compensation for only a small fraction of their employees.
Baker, Donelson, Bearman, Caldwell & Berkowitz, a Memphis-based corporate law firm, flew in lawyers from three cities to meet with the SEC in October 2010. "I think they began to appreciate the complexities of this once we raised it with them," Sam Chafetz, one of the lawyers, said in an interview.
Lawyers from many of the country's premier corporate law firms later wrote to the SEC objecting to the pay ratio requirement and seeking to ease the requirements for businesses.
Corporate officials said calculating the ratio, which would affect all 9,000 public U.S. companies, is tremendously complicated and of little value to investors. These officials noted that most large firms operate in multiple countries, which have different systems for calculating compensation and benefits, and that currency fluctuations make comparisons harder. Smaller firms have high employee turnover and lack the staff to make the calculation, they said.
But advocates for the rule point out that other organizations have calculated a ratio. Last week, for example, the Economic Policy Institute released a report saying that, by one measure, the average chief executive made 273 times what a typical worker made last year.
Advocates contest the notion that calculating the ratio is impractical. "That's absurd. It's not that complicated,'' said Lisa Donner, executive director of Americans for Financial Reform, an umbrella group of organizations pushing for the pay ratio. She accused the SEC of "bowing" to industry lobbyists and "slow-walking" the issue.
By January 2011, Menendez was expressing similar concerns. In a sternly worded letter, he warned the SEC to not "'water down' the provision as some companies are reportedly requesting."
While the SEC was weighing companies' concerns, corporate America took its campaign against the new financial rules to the courts and scored a victory that significantly influenced the agency's work.
A federal appeals court in the District of Columbia in July 2011 blocked the SEC's "proxy access" rule, a requirement under the Dodd-Frank law that would have made it easier for shareholders to oust members of corporate boards and nominate new ones.
In a lawsuit brought by the U.S. Chamber of Commerce and the Business Roundtable, the court blasted the SEC for failing to fully consider the economic impact of the regulation. The decision cast a pall, forcing the agency to devote far more time to analyzing the costs of its proposals, including the pay ratio.
"Doubling and redoubling effort on cost-benefit analysis became necessary, and ultimately slowed the work of the agency," said Mary Schapiro, who was SEC chairman at the time.
Barry Doggett, senior vice president for public and community affairs for Eaton, an industrial manufacturer, said the SEC "recognizes that as soon as pay ratio goes into place, someone is going to challenge it. This is one that people are going to come after."
One month after the SEC missed its first self-imposed deadline in December 2011 for finishing the pay provision, opponents sent Schapiro a sharply worded letter. In it, more than 20 leading corporate associations urged her to "use caution," highlighting what they described as the burdensome costs of the pay ratio rule. That same week, an SEC official said the deadline had been moved back a year.
"It's the threatening side of lobbying," said a person familiar with the negotiations over pay ratio. "There's the side of lobbying where people are trying to help you get it right, and there's the side that threatens, as in, 'We'll sue you if you do this.' "
With work having dramatically slowed, SEC Commissioner Luis Aguilar thrust the issue back into the limelight early this year.
Aguilar, a Democrat and a supporter of pay ratio and other corporate disclosures, had been frustrated with his agency's pace, according to people who have met with him about the issue. In February, he went public and posted an online statement suggesting that corporations reveal the ratios on their own.
It took one day for the Center on Executive Compensation, a business trade group, to fire off a stern letter. The group said it was "disappointed" and urged Aguilar to retract his statement.
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