U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

23–133 PDF 2005

THE IMPACT OF THE SARBANES-OXLEY ACT

HEARING

BEFORE THE

COMMITTEE ON FINANCIAL SERVICES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 21, 2005

Printed for the use of the Committee on Financial Services

Serial No. 109–21

(

(II)

HOUSE COMMITTEE ON FINANCIAL SERVICES 

MICHAEL G. OXLEY, Ohio, Chairman

JAMES A. LEACH, Iowa 

RICHARD H. BAKER, Louisiana 

DEBORAH PRYCE, Ohio 

SPENCER BACHUS, Alabama 

MICHAEL N. CASTLE, Delaware 

PETER T. KING, New York 

EDWARD R. ROYCE, California 

FRANK D. LUCAS, Oklahoma 

ROBERT W. NEY, Ohio 

SUE W. KELLY, New York, Vice Chair 

RON PAUL, Texas 

PAUL E. GILLMOR, Ohio 

JIM RYUN, Kansas 

STEVEN C. LATOURETTE, Ohio 

DONALD A. MANZULLO, Illinois 

WALTER B. JONES, JR., North Carolina 

JUDY BIGGERT, Illinois 

CHRISTOPHER SHAYS, Connecticut 

VITO FOSSELLA, New York 

GARY G. MILLER, California 

PATRICK J. TIBERI, Ohio 

MARK R. KENNEDY, Minnesota 

TOM FEENEY, Florida 

JEB HENSARLING, Texas 

SCOTT GARRETT, New Jersey 

GINNY BROWN-WAITE, Florida 

J. GRESHAM BARRETT, South Carolina 

KATHERINE HARRIS, Florida 

RICK RENZI, Arizona 

JIM GERLACH, Pennsylvania 

STEVAN PEARCE, New Mexico 

RANDY NEUGEBAUER, Texas 

TOM PRICE, Georgia 

MICHAEL G. FITZPATRICK, Pennsylvania 

GEOFF DAVIS, Kentucky 

PATRICK T. MCHENRY, North Carolina 

BARNEY FRANK, Massachusetts 

PAUL E. KANJORSKI, Pennsylvania 

MAXINE WATERS, California 

CAROLYN B. MALONEY, New York 

LUIS V. GUTIERREZ, Illinois 

NYDIA M. VELA ́ ZQUEZ, New York 

MELVIN L. WATT, North Carolina 

GARY L. ACKERMAN, New York 

DARLENE HOOLEY, Oregon 

JULIA CARSON, Indiana 

BRAD SHERMAN, California 

GREGORY W. MEEKS, New York 

BARBARA LEE, California 

DENNIS MOORE, Kansas 

MICHAEL E. CAPUANO, Massachusetts 

HAROLD E. FORD, JR., Tennessee 

RUBE ́ N HINOJOSA, Texas 

JOSEPH CROWLEY, New York 

WM. LACY CLAY, Missouri 

STEVE ISRAEL, New York 

CAROLYN MCCARTHY, New York 

JOE BACA, California 

JIM MATHESON, Utah 

STEPHEN F. LYNCH, Massachusetts 

BRAD MILLER, North Carolina 

DAVID SCOTT, Georgia 

ARTUR DAVIS, Alabama 

AL GREEN, Texas 

EMANUEL CLEAVER, Missouri 

MELISSA L. BEAN, Illinois 

DEBBIE WASSERMAN SCHULTZ, Florida 

GWEN MOORE, Wisconsin, 

BERNARD SANDERS, Vermont

ROBERT U. FOSTER, III, Staff Director 

(III)

C O N T E N T S 

Page 

Hearing held on: 

April 21, 2005 ................................................................................................... 1

Appendix: 

April 21, 2005 ................................................................................................... 35

WITNESSES 

THURSDAY, APRIL 21, 2005

Donaldson, Hon. William H., Chairman, Securities and Exchange Commission ........................................................................................................................ 7

McDonough, William J., Chairman, Public Company Accounting Oversight 

Board ..................................................................................................................... 10

APPENDIX 

Prepared statements: 

Oxley, Hon. Michael G. .................................................................................... 36

Hinojosa, Hon. Rube ́n ....................................................................................... 38

Hooley, Hon. Darlene ....................................................................................... 40

Kanjorski, Hon. Paul E. ................................................................................... 41

Donaldson, Hon. William H. ............................................................................ 43

McDonough, William J. .................................................................................... 62

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Frank, Hon. Barney: 

Equity Group Investments, L.L.C., prepared statement ............................... 88

Tiberi, Hon. Patrick J.: 

American Bankers Association, prepared statement ..................................... 90

McDonough, William J.: 

Written response to questions from Hon. Joseph Crowley ........................... 122

Written response to questions from Hon. Vito Fossella ................................ 105

Written response to questions from Hon. Rube ́n Hinojosa ........................... 113

Written response to questions from Hon. Deborah Pryce ............................. 121

Written response to questions from Hon. Nydia M. Velazquez .................... 107

Donaldson, Hon. William H.: 

Written response to questions from Hon. Ginny Brown-Waite .................... 128

Written response to questions from Hon. Joseph Crowley ........................... 133

Written response to questions from Hon. Rube ́n Hinojosa ........................... 113

Written response to questions from Hon. Dennis Moore .............................. 141

Written response to questions from Hon. Deborah Pryce ............................. 125

Written response to questions from Hon. Patrick J. Tiberi .......................... 126

Written response to questions from Hon. Nydia M. Velazquez .................... 132

(1)

THE IMPACT OF THE SARBANES-OXLEY ACT 

Thursday, April 21, 2005

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON FINANCIAL SERVICES, 

Washington, D.C. 

The Committee met, pursuant to call, at 10:05 a.m., in Room 

2128, Rayburn House Office Building, Hon. Michael G. Oxley 

[chairman of the committee] Presiding. 

Present: Representatives Oxley, Leach, Baker, Bachus, Royce, 

Tiberi, Kennedy, Feeney, Hensarling, Brown-Waite, Barrett of 

South Carolina, Neugebauer, Price of Georgia, Fitzpatrick, 

McHenry, Frank, Kanjorski, Waters, Sanders, Maloney, Gutierrez, 

Velzquez, Watt, Hooley, Sherman, Meeks, Lee, Moore of Kansas, 

Capuano, Crowley, Israel, Baca, Matheson, Miller of North Carolina, Scott, Green, Cleaver, Bean, Wasserman Schultz, and Moore 

of Wisconsin. 

The CHAIRMAN. The Committee will come to order. Pursuant to 

Rule 3(f)(2) of the rules of the Committee of Financial Services for 

the 109th Congress, the Chair announces he will limit recognition 

for opening statements to the Chair and Ranking Minority Member 

of the full Committee and the Chair and Ranking Minority Member 

of the Subcommittee on Capital Markets, Insurance and Government-Sponsored Enterprises, or their respective designees, not to 

exceed 16 minutes evenly divided between the majority and minority. The prepared statements of all members will be included in the 

record. The Chair recognizes himself for an opening statement. 

Good morning. And today we meet to discuss the impact of the 

Sarbanes-Oxley Act of 2002. The Committee will hear from the two 

regulators, Chairmen Donaldson and McDonough, charged with implementing key provisions of the Act. We welcome both of you back 

to the Committee and look forward to hearing your views on the 

benefits, and the costs of Sarbanes-Oxley, affectionately known as 

SOX. 

Although the legislation was passed less than 3 years ago, the 

benefits to investors and the capital markets have already been 

quite dramatic. Not entirely measurable in all areas, but dramatic 

nonetheless. The primary purpose of the Act was to restore investor faith in the reliability of corporate financial reporting. In this 

regard, the Act has been an unmitigated success. The audit process 

has clearly been strengthened. Now subject to rigorous oversight 

and precluded from offering certain non-audit services to audit clients, accountants have refocused on the audit, achieved, greater 

independence from their clients, and are insisting with success, on 

more transparent financial reporting. 

2

Replacing decades of ineffectual industry self-regulation, the 

Public Company Accounting Oversight Board conducts inspections 

of all registered accounting firms—annually for the largest firms—

and has the authority to investigate and discipline accountants and 

firms that violate Board rules, SEC rules, or securities laws. This 

oversight by the PCAOB has served and will continue to serve, in 

my opinion, as an effective deterrent to unethical and illegal conduct. 

Oversight of management activities by corporate boards has been 

significantly improved. Directors, particularly audit committee 

members, are more engaged, more informed, and more independent 

of management and working harder. Corporate leaders, subject to 

stiffer criminal penalties and greater director oversight, are focused 

on the financial statement like never before. The certification provisions have been successful. Financial statements are more reliable 

today than they were before the Act was passed. 

Does this mean that Sarbanes-Oxley will eliminate fraud altogether? Of course not. No legislation can deliver such a benefit. But 

we are reducing the opportunities for fraud, making fraud more difficult to commit, and holding accountable those who break the law. 

The most famous, or infamous, section of the Act, of course, is 

section Section 404. Nothing is more central to sound financial reporting than the strong internal controls contemplated by Sarbanes-Oxley. I may have heard a complaint or two about the costs, 

but the benefits have not been disputed. And make no mistake, the 

costs associated with section Section 404 are higher than anyone 

expected. That is a cause for concern, and I am particularly sensitive to any undue burden on small and mid-sized companies 

whose compliance costs are a higher percentage of total revenues. 

The question then becomes, can we achieve the unquestioned 

benefits of strong internal controls at a more reasonable cost. I believe we can and that we will. For starters, there seems to be a 

consensus that Section 404 costs will be reduced by as much as 

one-half next year, due to the fact that systems will be in place and 

documentation will be completed. I am encouraged by Chairman 

McDonough’s recent comments about costs and his announcement 

that additional implementation guidance is forthcoming. 

The PCAOB standard instructs auditors to exercise professional 

judgment when performing the attestation required by the statute. 

Upcoming Board inspections will seek to determine whether a onesize-fits-all approach is being used on some audit engagements. We 

would also like to commend Chairman Donaldson for his leadership 

in this area. The Commission has rightly given small companies 

and foreign companies a delay in complying with Section 404. The 

Chairman has also organized a useful roundtable discussion on 

Section 404 to hear concerns from a broad spectrum of market participants and assembled an advisory committee of smaller public 

companies. 

And, finally, I am pleased that there is a consensus, or close to 

one, on the question of whether legislative modifications are necessary. Congress, regulators, accountants, issuers, and other interested parties generally agree that, to the extent changes are necessary, they can be done within the regulatory framework. 

3

I look forward to the testimony, and I yield to the gentleman 

from Massachusetts for an opening statement. 

Mr. FRANK. Thank you, Mr. Chairman. 

I think it is time for us to address a very important issue involving corporate governance, and it is a matter of increasing expense, 

significantly increasing expense to corporations, and an expense 

which I do not believe is justified by value given. That is, I agree 

with some of the critics who think that we are facing a situation 

in which corporations, public corporations, in particular large ones, 

are spending far more than they should on something for which 

they do not get sufficient value and which in fact impinges on the 

shareholders. I am talking about executive compensation. 

Executive compensation is increasingly out of control. I have put 

up some charts here—actually, I haven’t put them up; some very 

nice people who work for me have put them up at my request, and 

I appreciate it. 

That chart compares what CEOs are doing compared to shareholders. The blue line is CEOs, the red line is shareholders. To the 

extent that that correlates to red States and blue States, it was unintentional, but it is not a bad mix, as a matter of fact. The enormous increase percentage-wise in CEO compensation is compared 

to what shareholders are getting. That is, CEO compensation goes 

up substantially when the S&P index goes down. 

The next chart. This one compares the pay of CEO to the average 

worker from 1980 to 2003. We have a ratio of 42 to 1 in 1980, we 

have a ratio of 500 to 1 today. 

In the next chart, lest people think I am talking here merely 

about envy, because I think we are talking about a serious social 

and economic problem. The compensation that is rapidly increasing 

for the people who run corporations has become macro-economically 

significant. This chart shows the percentage of company profits 

that are paid to the top 5 executives in the Fortune 500 companies. 

It was 4.8 percent in 1993, it was 10.3 percent in 2003, the last 

year for which we have gotten figures. When you are talking about 

that significant an increase, you are getting into things that affect 

performance. And I should say that I raise that in the context of 

this hearing for two reasons: One, we are told that the compliance 

costs with section Section 404 Sarbanes-Oxley are a significant 

drag on corporations. Well, not compared to the money they pay 

the top people. Now, if it were necessary to pay these people this 

amount of money to get them to run the corporations, then of 

course we wouldn’t have a problem. I think the evidence is overwhelming that CEOs are compensated far beyond, on the whole, 

what would be economically justified. 

And I want to acknowledge here that I am drawing on work done 

by Professors Lucian, Bebchuk, and Jesse Freed, and the book that 

they have published on the subject, and also articles by Professor 

Bebchuk and Professor Yaneff Grinstein. It is very clear from their 

studies, it is clear as we see this, there are very few constraints 

on what the CEOs get. The boards of directors—and this is the second reason I mention this. It is relevant to corporate governance. 

Some of the corporate leaders have told us that they feel terribly 

beleaguered that they have been put upon by that unlikely combination, Sarbanes and Oxley; that they have, in fact, had imposed 

4

on them staggering burdens which interfere with their ability to 

function. Well, I think it is very clear that at least in one area of 

some importance to them, setting their own salaries, Sarbanes and 

Oxley might as well be Donald and Daisy Duck, because nobody 

lays a glove on these people when it comes to setting their own salaries, and I think that this is something that we have to address. 

We are in a difficult period in America today. We have growth 

going forward at a reasonable level, but inequality is a concomitant 

to that growth. Employment growth has stagnated to some extent. 

As I noted when Secretary Snow testified, in 2004, the President’s 

Council of Economic Advisors said that we would get 325,000 jobs 

a month in this current growth. 

This year’s Council of Economic Advisors’ report unheraldedly 

projected 175,000. I asked Mr. Snow, he said, well, the chairman 

of the Council of Economic Advisors’ went back to Harvard; he 

couldn’t fully explain it. The trouble is, he took 150,000 jobs a 

month with him back to Harvard. Things must be going very well 

in Cambridge. 

But we have this problem of a slowdown in job growth. We have 

a problem even more so of wages stagnating. And for CEOs to be 

enjoying skyrocketing compensation which becomes statistically 

significant, 10 percent to the profits in 2003, at a time when wages 

also are stagnating, that causes a series of problems politically and 

socially. 

So as we look at the questions of corporate governance, I hope 

we will look at this. Because I believe that Sarbanes-Oxley has 

worked well. I think with the distinguished leadership of these two 

gentlemen, we are going to be able to make some adjustments that 

would be appropriate, as is always to be expected when you do 

something new. But the agenda for corporate governance should be, 

what do we do next? Not, how do we go backwards? Thank you, 

Mr. Chairman. 

The CHAIRMAN. The gentleman’s time has expired. The gentleman from Louisiana, Mr. Baker. 

Mr. BAKER. I thank the Chairman, and wish to first acknowledge 

his good work and that of Senator Sarbanes in a time of business 

corporate governance of which few of us are proud, and that strong 

action was required and strong action was taken. 

I don’t think there is any question that the implementation of 

Sarbanes-Oxley has brought to the corporate board room an awareness of their professional responsibilities and appropriate accountability for actions which are not consistent with the highest of 

standards. I do believe that there are elements to Sarbanes-Oxley, 

which have enhanced business function, and I think that on one aspect there is a tangible element to the implementation of SarbanesOxley directly beneficial to shareholders. 

Since the passage of the Fair Fund in Sarbanes-Oxley, I am ad- vised to date there have been in excess of $5 billion recouped from 

those who have engaged in fraudulent conduct for the benefit of 

shareholders directly. To my knowledge, this is the first time a program has been implemented to use government resources to recoup 

losses for shareholder benefit without the necessity of going to the 

trial bar. It is exceedingly successful, and some questioned its validity at the outset saying it would only amount to a small pizza 

5

for most shareholders. I would suggest modestly that a $5 billion 

pizza would be something to behold. 

On the other hand, no legislation of this magnitude can possibly 

be implemented without flaw. And I do believe the chairman’s comments with regard to the cost of implementation and compliance of 

section Section 404 is something that warrants further study by 

the Committee, and action that might necessarily require legislative effort. 

Specifically, with regard to the PCAOB’s methodology for assessing cost for the audit function, it is a statutory requirement that 

the PCAOB would not have the regulatory authority to visit should 

it even choose to do so. But I would certainly like to hear from the 

experts if there is an alternate methodology other than market cap, 

which might be more appropriate. It would seem to me, were there 

corporate misdoings and the market would respond by a runoff of 

market cap, that the subsequent assessment resulting from that 

audit would then be unnecessarily adversely impacted. So it might 

be an area where this Congress should act if the professionals tell 

us it is warranted. 

And, finally, with regard to the issue of corporate governance and 

that of executive compensation, I thought for a moment we were 

talking only about Fannie and Freddie. If they were pulled from 

the pile, it might bring the bell curve back in more in normal 

range. I recall just in bonuses only there were $245 million paid 

out in a 5-year period on which the financials cannot be relied that 

the earnings per share were indeed accurate. I share the concern 

about corporate abuse, but think we should go slowly in areas 

where the United States Congress really has no business. 

Mr. Chairman, I compliment you on good work and yield back. 

The CHAIRMAN. The gentleman yields back. The gentleman from 

Pennsylvania, Mr. Kanjorski. 

Mr. KANJORSKI. Mr. Chairman, nearly 3 years ago after a surge 

of corporate and accounting scandals we adopted the SarbanesOxley Act. As you know, I was intimately involved in every stage 

of the law’s development from the first congressional hearing on 

the collapse of Enron through the final meeting of our bicameral 

conference committee. We are meeting today to review the effects 

of this historic law on our capital markets. In general, I believe 

that the landmark legislation has strengthened responsibility and 

enhanced investor confidence. In recent months, the Public Company Accounting Oversight Board and the Securities Exchange 

Commission have continued to pursue an ambitious agenda as they 

have worked to implement the reforms that Congress mandated. 

Today’s hearing will help us to better appreciate their hard work 

in turning this functional statutory outline into an active regulatory system. It will also help us to understand the progress that 

we have made in bolstering investor confidence, restoring the integrity of financial statements, and rebuilding trust in our securities 

markets. Since the enact of Sarbanes-Oxley Act, we have also 

heard regular complaints from some about the cost of complying 

with the law. Most recently the statutes’ provisions regarding internal control audits have become the subject of considerable public 

debate. I would therefore like to focus my comments this morning 

on this area of the law. 

6

We designed section Section 404 to require public traded companies and their auditors to assess internal controls, which is a firm’s 

policies, practices, systems, and procedures to prevent abuse, protect against fraud, and ensure proper accounting. This section of 

the law requires companies to report their material weaknesses 

and their internal controls and work to fix these problems before 

financial reporting failures occur. As a result of this mandate, public corporations are decreasing their risk of future shareholder 

losses. 

Section 404 is another important benefit. It is helping corporate 

executives to better understand the financial reporting shortcomings within their companies, allowing them to recognize the nature of the problems earlier and adopt reforms and account procedures expeditiously. Such internal analysis by a company and external verification by an outside auditor is also helping to provide 

important assurances to the chief executive and financial officers of 

public companies who now must sign statements attesting to the 

accuracy and veracity of their financial statements under section 

302 of the very same law. 

Today, we are fortunate to once again have before us the leaders 

of the Securities Exchange Commission and the Public Company 

Accounting Oversight Board. In their comments. I hope they will 

examine the implementation of and complaints regarding section 

Section 404. I know that both organizations have been diligently 

working to address these concerns, particularly by conducting outreach, holding forums, and providing assistance in these matters. 

It is my hope that both organizations will continue with these efforts, particularly for the smaller issuers that will have disproportionate costs in implementing these well-intentioned reforms. I 

know that the Public Company Accounting Oversight Board intends to issue next month additional guidance in these matters. I 

expect that such guidance will maintain the spirit of the reforms 

that Congress envisioned but offer auditors greater flexibility in 

tailoring their examinations of internal controls to match the size 

and complexity of the kind. Such guidance should also help to improve the effectiveness of the law. 

In closing, Mr. Chairman, we cannot and should not remove the 

risks associated with investing. Our capital markets work well because of that risk. We should, however, ensure that every corporation plays by the rules; that all investors have access to reliable information needed to make prudent decisions; and that each party 

who violates our securities laws is held accountable. As the Securities and Exchange Commission and the Public Company Accounting Oversight Board work to achieve these objectives, it is appropriate for us to review their progress. Thank you, Mr. Chairman. 

[The prepared statement of Hon. Paul E. Kanjorski can be found 

on page 41 in the appendix.] 

The CHAIRMAN. The gentleman yields back. 

We now turn to our distinguished witnesses today. And, again, 

gentlemen, thank you for once again appearing before the Committee. We have always appreciated your information that you 

bring the Committee and your hard work as dedicated public servants in dealing with some very tough issues. 

And, Chairman Donaldson, we will begin with you. 

7

STATEMENT OF HON. WILLIAM H. DONALDSON, CHAIRMAN, 

SECURITIES AND EXCHANGE COMMISSION 

Mr. DONALDSON. Thank you. Chairman Oxley, Ranking Member 

Frank, and members of the Committee, thanks for inviting me to 

testify on behalf of the Securities and Exchange Commission concerning the implementation of the Sarbanes-Oxley Act of 2002. 

A little over 2 years ago when I became chairman of the Commission, the headlines were still dominated by reports of financial 

fraud, lapses, and audit, corporate governance responsibilities, and 

intentional manipulation of accounting rules. Congress acted swiftly in the face of this breakdown by enacting the Sarbanes-Oxley 

Act which called for the most significant reforms affecting our capital markets since the Securities Exchange Act of 1934. 

Since enactment, the Act has affected dramatic change across 

corporate America and beyond and is helping to reestablish investor confidence and the integrity of corporate disclosures and financial reporting. Your strong support of the Act, along with the support of your counterparts in the Senate demonstrates Congress’s 

demonstration to ensuring the integrity and vitality of our markets. 

Before turning to the particular provisions of Sarbanes-Oxley 

Act, I want to start by saying that I am pleased to be testifying 

today alongside of Bill McDonough, the chairman of the Public 

Company Accounting Oversight Board. While he will testify more 

fully on the board’s activities, I can assure you that the PCAOB 

has developed as a respected and effective organization under 

Chairman McDonough’s leadership, and that Chairman 

McDonough has personally been instrumental in helping to forge 

the close bond between our organizations. 

The goals of Sarbanes-Oxley are far reaching, and aim to restore 

investor confidence in and ensure the integrity of the markets. 

Consequently, reforms in the Act address nearly every aspect of the 

Act in our Nation’s capital markets. The Act called on the Commission to undertake nearly 20 rulemakings and studies. The Act also 

set ambitious deadlines for the Commission and, in most cases, required us to implement the final rule speedily. 

The Commission has completed the required rulemaking under 

the Act, having considered the thousands of letters of public comment that we received. The Nation’s largest companies, comprising 

more than 95 percent of U.S. market capitalization, are now fully 

subject to the regulatory requirements of the Sarbanes-Oxley act. 

Just as the SOX Act was a landmark piece of legislation for Congress, the successful implementation of that legislation will be seen 

as a watershed in the history of the Commission. 

Given the scope and the scale of the task Congress placed before 

us, I am pleased to report that, with the dedication and hard work 

of our staff, the Commission’s overall discharge of its rulemaking 

responsibility has been exceptionally on the mark in fulfilling the 

Act’s objectives while avoiding unnecessary problems. Collectively, 

these accomplishments should have an enormous positive impact 

on the management and governance of U.S. public companies in 

the decades ahead, and they will safeguard the fundamental imperative that our markets be characterized by levels of investor confidence and participation that are second to none. 

8

Although most of the Act’s benefits have been accomplished without substantial expense for market participants, we should not 

minimize the cost to public companies and their investors of 

achieving the full measure of the Act’s objectives. In particular, the 

internal control reporting and auditing requirements which companies are dealing with for the first time have required significant 

outlays of time and expense. The short-term costs to improve internal control over financial reporting are, in my view, best seen as 

an investment, because over the long term, these improvements 

will result in structurally sounder corporate practices and more reliable financial reporting. 

While these critical goals now firmly in view call to roll back or 

weaken Sarbanes-Oxley generally as a result of concern over the 

cost of internal control reporting are, in my judgment, unjustified. 

At the same time, the Commission and the PCAOB must be sensitive to the need to recalibrate and adjust our rules and guidance 

to avoid unnecessary costs or unintended consequences. To this 

end, the Commission and the PCAOB will remain committed to the 

implementation of the Act in the most efficient and effective way. 

I would like to review briefly a few specific accomplishments. A 

central focus of Sarbanes-Oxley was to enhance the integrity of the 

audit process. We believe the new rules have already had a beneficial effect in strengthening the integrity of the independent audit. 

We have also seen that audit committees are taking their responsibility seriously, and they are much more sensitive to auditor independence issues. 

The Act has strengthened our ability to enforce the Federal securities laws. One of the toughest challenges facing the Commission 

has been recovering and, when appropriate, returning funds to injured investors. The Act gave the Commission two powerful tools 

to help meet this challenge: The fair funds provision, and the authority to seek a temporary freeze on extraordinary payments by 

an issuer. Before the Act, by law all civil penalties were paid into 

the U.S. Treasury. Now, the Commission has authority in certain 

circumstances to use civil penalties to help compensate injured investors. The Commission has authorized fair funds in over 100 

cases with a total value of over $5.4 billion for anticipated distribution to harmed investors. 

Another objective of the Act was to improve executive responsibility and, quote, the tone at the top of public companies, a key 

theme that dates back to President Bush’s 10-point plan of March 

2002. Among the government’s reform, Sarbanes-Oxley called on us 

to institute, the CEO and CFO certification provisions that perhaps 

have perhaps had the greatest immediate impact by reinforcing executive responsibility for the financial reporting process of public 

companies. While CEOs and CFOs already had responsibility for 

company disclosures in the filings in question, the certification requirements have focused their attention on the completeness and 

accuracy of disclosure in new and very important ways. 

Complementing the focus on executive responsibility, the Act 

takes several important steps toward improving disclosure in the 

old financial reporting process. Accurate and reliable financial reporting is the bedrock of our disclosure-based system of Securities’ 

regulation. Investor confidence and the reliability of information in 

9

a company’s filings with the SEC is fundamental to the vibrancy 

of our markets. The Commission has adopted a number of reforms 

in this area to implement the Act. Although each of the reforms is 

important in its own right, the reform that has drawn the most attention recently is section Section 404’s requirement that management and external auditors report on the effectiveness of a company’s internal control over financial reporting. As I have said on 

other occasions, I believe the requirements of section Section 404 

may have the greatest long-term potential to improve financial reporting by companies. Much of the recent discussion about Section 

404 has focused on the costs of implementation. There is no doubt 

costs have been higher than we and public companies anticipated, 

though I believe it important to note that a substantial portion of 

the cost may reflect initial startup expenses as many companies for 

the first time conducted a systemic review and documentation of 

their internal controls. 

In this regard, a number of commentators have suggested that 

costs in the second and subsequent years will decrease significantly. Nevertheless, we are monitoring the costs of section Section 

404 implementation closely to ensure that its benefits are achieved 

in the most sensible way. We have actively sought feedback about 

our first-year experiences in implementing section Section 404 requirements in order to determine if commission rules and the 

PCAOB standards are operating as intended. 

Just last week, we held a public roundtable to review the firstyear experience with implementation of the internal control requirements. We are paying particular attention to the impact on 

smaller companies, and our new advisory committee on smaller 

public companies held its first meeting last week also. Based on 

this feedback, we are now evaluating ways to make the process 

more efficient and effective while preserving its benefits. We are 

closely coordinating with the PCAOB, and I have instructed our 

staff to consider as quickly as possible how we could improve the 

guidance available to management and auditors in order to finetune the process. While we can and will do more on the subject of 

section Section 404. Any reflection upon the scandals that gave rise 

to the Sarbanes-Oxley Act will reveal the enormous costs to investors of corner cutting and internal controls. 

As I have said before, I believe that the time, energy, and expense that companies are now investing in their internal controls 

will earn a handsome return in the years to come. 

I have covered our activities under the Sarbanes-Oxley in greater 

detail in my prepared statement for the Committee, and I, of 

course, would be happy to elaborate further this morning. Before 

concluding, however, I would offer my own observation that the 

real key to achieving the great potential of the Sarbanes-Oxley Act 

lies not with the Commission or the PCAOB, but with the dedicated and serious efforts of American businesses and their managers who probably have the most to gain from preserving the reputation of our markets as the best place in the world for investment capital. 

A wise man once remarked that capital will always go where it 

is welcomed and stay where it is well treated. I believe that a company that recognizes the true benefits of the Act in strengthening 

10

our capital markets will have no trouble seeing that effective compliance with Sarbanes-Oxley, doing the right thing is not only in 

the best interests of its investors but the long-term interests of the 

company itself. 

In conclusion, let me thank you again for your leadership and 

vital support in reestablishing and strengthening investor confidence in the integrity of our nation’s capital markets. And, of 

course, I would be happy to answer any of your questions. Thank 

you. 

[The prepared statement of Hon. William H. Donaldson can be 

found on page 43 in the appendix.] 

The CHAIRMAN. Thank you, Chairman Donaldson. 

And Chairman McDonough, again, welcome back.

STATEMENT OF WILLIAM J. McDONOUGH, CHAIRMAN, PUBLIC 

COMPANY ACCOUNTING OVERSIGHT BOARD 

Mr. MCDONOUGH. Thank you, Chairman Oxley, Ranking Member 

Frank, and members of the Committee. I am pleased to appear before you today and once again to be appearing with my friend Bill 

Donaldson. The President and the Senate brought him to Washington. He brought me here, and most days I am grateful, including today. 

With the Sarbanes-Oxley Act, the Congress took a giant step toward restoring investor confidence in financial reporting and auditing. The Act did not merely create a regulatory environment conducive to investor protection, it also reflected the powerful demand of 

the American people for fairness and honesty in the U.S. markets. 

I would like to commend this committee under Chairman Oxley’s 

leadership both for its work in passing Sarbanes-Oxley and for its 

continued stewardship of our markets on behalf of American investors. It is the faith of those investors that fuels the growth and 

competitiveness of our economy. 

In response to the people’s demand, the Sarbanes-Oxley Act created the Public Company Accounting Oversight Board to oversee 

the auditors of public companies and bolster investor confidence in 

public company financial statements. The Act provides a great deal 

of regulatory flexibility so that we can meet new challenges as they 

develop. Today, the PCAOB is well on its way to maintaining a 

continuous program of auditor oversight. The PCAOB staff numbers 319 in 8 cities, of whom 138 are inspectors. By the end of 

2005, we expect to have approximately 450 staff, and of those 219 

will be inspectors. 

Our main growth area is in the experienced accountants who inspect the accounting firms that are registered with the PCAOB. 

Our goal is to inspect roughly 300 accounting firms per year. 

Our highest priority at this time is the continued implementation 

of our standard for auditing companies’ internal control over financial reporting. Section 404 of the Sarbanes-Oxley Act requires public companies annually to provide investors an assessment of the 

quality of their internal control over financial reporting accompanied by an auditor’s attestation on the same subject. 

In the simplest terms, internal control provides reasonable assurance that the financial data being collected by a company provide 

11

meaningful and reliable information that can be used to produce 

accurate financial statements. With such assurance about internal 

control, investors can have much more confidence in the reliability 

of the corporate financial statement. 

Now, although the term internal control over financial reporting 

has only recently entered our common parlance, internal control is 

a familiar concept to most auditors who are required, under existing standards, at least to gain a basic understanding of internal 

control, as part of the financial statement audit. Companies have 

been required to have internal control over their accounting since 

Congress enacted the Foreign Corrupt Practices Act in 1977. 

However, the Sarbanes-Oxley Act’s requirements took the responsibility of management and auditors to a different level. Today, 

under PCAOB Auditing Standard Number 2, auditors of public 

companies must not only obtain an understanding of internal control, but they must also examine its design and operation in order 

to reap the most benefit and to make the overall audit process as 

efficient as possible. 

We designed our standard around an integrated model. An integrated audit combines an audit of internal control over financial reporting with the audit of the financial statements. We believe this 

approach both enhances the overall reliability of company financial 

statements and is cost effective. Given the tight deadlines for 2004 

implementation, however, many auditors were unable to fully integrate their work. This problem should be corrected for 2005, which 

should bring costs down considerably. 

Many companies have already reaped benefits from the internal 

control reporting process. For example, 74 percent of 222 financial 

executives recently surveyed reported that their companies benefited from compliance with the Act. Of those, 33 percent said that 

compliance lessened the risk of financial fraud. By identifying 

weaknesses before financial reporting failures occur, these companies are reducing the risk of a future loss of shareholder value. 

Although the benefits of enhanced internal control to investor 

confidence are potentially great, there have been concerns about 

the associated costs. Through our inspections of registered accounting firms, we will assess whether auditors implement new standards appropriately and effectively. Meanwhile, we have carefully 

monitored implementation of our internal control standard and on 

occasion have issued additional guidance to promote a consistent 

rational approach. 

Some have charged that auditors are implementing Auditing 

Standard Number 2 with a check-the-box mentality that focuses on 

minutia unlikely to affect the financial statements. Our guidance 

emphasizes that the focus should be on what is material to the financial statements, not on the trivial. Auditing Standard Number 

2 expressly permits auditors considerable flexibility to rely on the 

work of others, including internal auditors, to complete some of the 

more detailed, time consuming tasks. 

In addition, some smaller companies have charged that they are 

disproportionately burdened because auditors are not tailoring 

their audit procedures to the nature and complexity of the client. 

Smaller, less complex businesses typically need less complex controls. Our guidance continues to reflect that view. 

12

Another area of concern for us is the misconception that companies may no longer look to their auditors for advice on difficult accounting issues. Auditors have long advised public companies on 

accounting issues and on internal control matters, and Auditing 

Standard Number 2 does not preclude that kind of advice and discussion. 

We are working to help auditors better understand our views on 

this matter so that they will have the confidence we won’t secondguess their reasonable judgments on this area. Last week, we participated in the SEC’s Roundtable on Internal Control to explore 

additional implementation questions. And there I pledged that the 

PCAOB would issue more guidance on May 16th, including guidance that explains the top-down approach encouraged by auditing 

standard 2, and more clearly describes how the auditor’s assessment of risk affects the amount of work that must be done to comply with the standard. 

Although public attention on the work of the PCAOB has recently focused most intensely on section Section 404, the longer 

term effects of our work will be the product of our inspections and 

our other oversight activities. PCAOB oversight is causing a profound shift in the character of public company auditing. We have 

seen changes in auditors’ attitudes toward their accountability. The 

old system relied primarily on enforcement tools after a problem 

had already occurred. The risk that an auditor’s errors would come 

to the attention of regulators was too often not sufficient to motivate auditors to take the tough stance necessary to head off potential misstatements in financial reports. 

Under the new system, auditors understand that their work is 

much more likely to be reviewed by the PCAOB’s inspectors. Last 

year, our inspectors reviewed portions of more than 500 audits performed by the largest 8 firms. Our inspectors have identified and 

encouraged appropriate resolution of numerous accounting and auditing problems that will improve the reliability of financial statements. 

Now, 2 years of inspecting the audits of the big four accounting 

firms has done nothing to shake my view that these firms operating at their best are capable of the highest quality auditing, and 

it has also done nothing to shake my view, Mr. Chairman, that the 

Congress, this committee led by you, acted wisely in creating independent oversight of the profession to help move firms in the direction of consistently operating at their best. 

I cannot say, and I do not believe that you would expect to hear 

that after only two inspection cycles we have identified and uprooted all the causes of auditing failures, nor would it be prudent 

to assume that the repercussions of pre-Sarbanes-Oxley failures 

are behind the firms. But we have plainly made a start that amply 

vindicates the decision that Congress and this committee made in 

creating the inspection process. 

Over time, I believe this process is the most promising means we 

have available for protecting firms from their own failures due to 

audit risks and ultimately restoring investor confidence in the reliability of audits. 

In addition to the eight largest U.S. firms, we also oversee more 

than 900 small U.S. audit firms and more than 550 foreign firms. 

13

Early on, some expressed concern that the Act might pose a barrier 

to small firms’ ability to compete for public company audit clients. 

However, a number of small firms have actually increased the 

number of public companies that they audit. As for our oversight 

of non-U.S. accounting firms, we have used the flexibility afforded 

us in the Act to develop a framework that relies on cooperation 

with local country regulators. 

Over the past 18 months we have engaged in a constructive dialogue with relevant regulators in certain key non-U.S. jurisdictions. 

As I speak, PCAOB inspectors are sitting side by side with inspectors from the Canadian Public Accountability Board, reviewing the 

work of the Canadian firms that audit U.S. public companies. We 

are also far along in working out similar arrangements with the 

United Kingdom, Australia, France, and Japan. With our counterparts, we hope to do what we can to reduce overall risk to investors 

in securities markets throughout the world. 

Mr. Chairman, I am happy to answer any questions. 

[The prepared statement of William J. McDonough can be found 

on page 62 in the appendix.] 

The CHAIRMAN. Thank you, Mr. Chairman. And thanks to both 

of you. And particularly, I want to publicly acknowledge and appreciate your sincere efforts to follow the intent of the Act. I think too 

many times we, as policymakers, legislators pass legislation only to 

see it totally misinterpreted at the regulatory level much to our 

disgust. In this case, it is clear from the beginning that both of you 

gentlemen and the people that you work with have made it a point 

to follow the dictates of what the Congress passed in the Act and 

to make it as flexible as possible. 

I have to say that I guess all of us would do things differently 

and certainly in the context of the legislating during that white-hot 

period of corporate scandal. In looking back on it, I think to give 

you some more flexibility probably would have been the right thing 

to do. But having said that, I think there—and from the feedback 

we get from the roundtable discussions that you both participated 

in last week, a very positive way of getting to what all of us in the 

Congress wanted to do was restore investor confidence and make 

it work, and to that I want to publicly thank both of you. 

Let me describe Section 404, and ask you, Chairman 

McDonough, that it appears to me that maybe most of the cost of 

the implementation in Section 404 was at least partially due to 

some deferred maintenance in the internal controls system already 

existent. Is that a fair assessment? 

Mr. MCDONOUGH. I think it is, Mr. Chairman. It varies with the 

company. Some of the companies which have very complex internal 

financial structures already had very good internal control, probably had to do some documentation improvement of them. For medium and small-sized firms, very frequently the internal control is 

existent, but was kind of in the head of the guy who ran the place, 

and therefore there is deferred maintenance in actually establishing written documentation of what the controls are. 

Some of these controls are not very exotic; it is making sure that 

you are actually reconciling the bank statements with your cash 

book to make sure your cash account is right. 

14

A lot of this is very straightforward stuff. And I think that in the 

second year, a lot of companies will find that they have done the 

deferred maintenance and their internal costs should come down 

significantly. And we are making it very clear to the auditors that 

we expect their costs to come down, that there should not be unnecessary work. We also have to be careful at the same time that auditors really have to be working hard to make sure that they are protecting investors’ rights. It is a very, very fine balance both for 

them and for us overseeing them. 

The CHAIRMAN. What is your assessment, Chairman McDonough, 

on the claim that auditors are engaging in perhaps defensive auditing, too conservative of auditing because of the potential threat of 

litigation? And, in addition, what are your views on whether we 

ought to look for ways to reduce potential liability particularly in 

light of the fact that we now have four accounting firms doing 

about 99 percent of the accounting? And lastly, is there the opportunity or the possibility of some of the mid-level or regional auditing firms to ultimately become one of the top nationwide auditing 

firms? 

Mr. MCDONOUGH. I think there is no question that auditing 

firms of all sizes, given the Sarbanes-Oxley Act arising out of scandals, that people are running very concerned about the threat of 

litigation either by civil suits against them or by the criminal authorities at either the Federal or State levels. 

Human beings, what we are, if you are scared, you tend to act 

very defensively. And I think there is no question that there is a 

certain amount of this defensive posturing, which is taking place. 

Whether or not there should be a limitation on liability for accounting firms is a very tough balancing act. On one side, you 

would say the positive is that it would make the firms less concerned, less scared, and therefore, they would use their judgment 

more effectively. On the other hand, they ought to do that anyway. 

And, therefore, I think that when and if the Congress in its wisdom 

should decide to provide limited liability, I would support it. In the 

meantime, we will proceed on the basis that the accountants 

should be doing their jobs properly anyway. 

On the very complex issue of whether there will be a number 5 

adding to hopefully the big four remaining alive and well, the Government Accountability Office, as required by the Sarbanes-Oxley 

Act, did a study and came, I think we would all agree, to the conclusion that it is not very likely that any firm in the number 5, 6, 

7, or 8 position, or even something which is completely unlikely to 

happen, that all 4 of them would get together, it would still be a 

relatively small number 5. What I think should happen is that 

there are issuers—community banks come to mind—who use very 

large accounting firms because somehow they think that that is 

something that maybe their regulators or the rating agencies would 

like. 

And it really seems to me, to be very direct, Mr. Chairman, much 

more appropriate that they use an accounting firm more appropriate to their size. Therefore, I would like to see the numbers 5 

through 8, and then the smaller accounting firms grow, become 

healthier and stronger, but I don’t think we can hold out a realistic 

15

likelihood that that will result in another firm anywhere near the 

size of the big four. 

The CHAIRMAN. But you do think that the market can work, that, 

given time, we can have a leveling; that is, some of our—and I 

think it is a good point on the community banks, for example; it 

clearly would be much, and a lot cheaper probably, too, to engage 

with the mid-sized firms. 

Mr. MCDONOUGH. I think the market should evolve in a way that 

will have stronger accounting firms right through the size structure, and that is very much to be desired. 

The CHAIRMAN. Thank you. 

Chairman Donaldson, one of the contributions in the conference 

committee was the addition of the Fair Fund; Chairman Baker offered the amendment during the conference that created this fair 

fund. And I know you testified that there were $5.4 billion—that 

is with a B—in that fund. And of course that fund comes from fines 

and disgorgements for cases that the SEC undertakes. Could you 

give us a little more detail on how that fund is working and whether, in fact, it needs any kind of amendments at our level? Or can 

the SEC take care of some of the potential problems with regulatory means? 

Mr. DONALDSON. Thank you. I think that, as I said, there is a 

large amount of money that has been designated for the Fair 

Funds. I think that the— 

The CHAIRMAN. If I could interject. That is less than, what, less 

than 3 years? 

Mr. DONALDSON. Right. 

The CHAIRMAN. And it has grown to 5.4 billion, which I guess—

there is no way to predict, I guess, by any of us how that fund 

would grow. But, anyway, I interjected. Go ahead and continue. 

Mr. DONALDSON. It is a tremendous benefit that we can now convey to harmed shareholders. The actual distribution of the money 

is a complicated process. Basically, it requires retroactive reconstruction, if you will, of records as to who the harmed shareholders 

were at a particular period of time. I think you can see how complicated that gets. Fortunately, now, as we have moved ahead we 

are able to put the costs of doing that off on the companies that 

we have fined. In other words, we didn’t do that at the beginning. 

We now have the authority to do that, so that the actual cost of 

this retrofitting is being borne in addition to the original—or built 

into the penalty to the company. 

The CHAIRMAN. I see. And are we talking in this case in terms 

of harmed investors? What is the universe? There are thousands, 

tens of thousands, millions? 

Mr. DONALDSON. Millions. 

The CHAIRMAN. Millions. 

Mr. DONALDSON. Yes. If you add it all up, millions. 

The CHAIRMAN. Okay. 

Mr. DONALDSON. And, again, it is a very difficult exercise to identify the exact period, if you will, where the malfeasance took place. 

The CHAIRMAN. I understand. 

Mr. DONALDSON. And within that to the intellectual exercise of 

determining who got hurt. 

The CHAIRMAN. Thank you. 

16

Mr. DONALDSON. But we are making great progress. I think our 

administrators of the Fair Funds are getting more and more experienced in doing this. 

The CHAIRMAN. Thank you. 

The gentleman from Massachusetts. 

Mr. FRANK. To begin, to both the chairmen, we talked about this 

a little bit before. I think Mr. Donaldson had some reference to it. 

There was a troubling article in The Washington Post earlier this 

week by David Brown suggesting that the interpretation of accounting rules regarding when you could give yourself credit for receiving revenue were interfering with the ability of the government 

to stockpile pediatric vaccines. And it did seem to me that this was 

something that, if it were a real problem, we could solve. And 

maybe it wasn’t a real problem. Although obviously, somebody interpreted it that way. And as you know, I wrote to both of you and 

asked if there was anything that needed to be done in terms of regulation or legislation to clear that up, but I assumed it was something we could do quickly. 

So I would be interested, you said you had a chance to look at 

that, Mr. Donaldson. Did you have some response on that? 

Mr. DONALDSON. Sure. Of course, I read The Washington Post 

article as did all of our people in charge. The basic thrust of that 

article, as you know, that many manufacturers have decided to 

stop participating in part because they may not recognize revenue 

when vaccines are placed in the stockpile. We are concerned, but 

I am also concerned that it may be slightly more complicated than 

just an accounting problem. It is not clear to us that the accounting 

is the real issue as opposed to perhaps the business economics of 

the existing program. 

But we certainly don’t want to be an obstacle. We will sit down 

with any drug company that comes to us to see if we can work this 

out. There may be other ways to deal with the problem. For example, the contract with the government could perhaps be restructured to handle a particular problem. But we are willing and will 

sit down with any drug company and try to work through their 

particular problem. 

Mr. FRANK. Thank you. And let me urge people, any drug company that has said that, and also to the people at the Department 

of Health and Human Services, if they get that answer, let us have 

them come and talk to you. And if a change is needed, we can do 

that. I had my own sense that maybe accounting was being used 

as an excuse for something else. But people may be erring on the 

side of being extra cautious, and I understand that. But I appreciate that, and I would hope we could get this one resolved fairly 

quickly. I don’t see any kind of obstacle, if people are getting the 

money, there isn’t a problem. 

I have spoken to others here, I have spoken to Henry Waxman 

who has been very involved in all this. And I appreciate what you 

are saying. I would hope that we could all follow up now and that 

the companies involved—I am going to ask HHS to make sure that 

the companies involved are in touch with you and your people. And 

I would hope we could get this one resolved pretty quickly. I am 

encouraged by what you say. 

17

Now, back on the subject of compensation. And I know, I guess 

there was some reference to whether or not this was really all 

Fannie Mae and Freddie Mac’s fault. I guess, if it rains tomorrow, 

we will complain to them, too, and send to them for the umbrellas. 

But, in fact, we are talking about billions of dollars in compensation, so, in fact, their presence perhaps it would make no significant difference. A couple of questions here about that. Because they 

do go with the accounting. One of the—I am very much persuaded 

by the very extensive work that is done by the Professors Bedrick 

and Freed and Grinstein and others that mechanisms for—that 

CEO pay is largely self-determined. That there are ineffective constraints, and it does look like, if you hire a consulting company, 

you get more money, because the consulting companies, not wanting to annoy the people who decide whether or not to hire them, 

tend to give them more. 

And there is also this apparent view on a corporation that if you 

are not paying your CEO above the average, then you must have 

a below average CEO. And, as everybody tries to get continuously 

above average, that, in and of itself, is a significant inflationary 

factor. It is the opposite of where I go with regard to businesses 

in general in America. 

Actually, it is an interesting economic rule, that we have every 

business in America operating on a constantly downward sloping 

playing field. That is, every business in America that has ever testified on a committee where I have been sitting has announced that 

they are on an unlevel playing field and that the competitors have 

an advantage. And it is striking to me that the universe consists 

entirely of companies that are at a disadvantage to other companies. I mean, I have never met a company that was at an advantage to any other. 

They should get a prize if they come forward. But the main check 

on executive compensation that gets too high, that it is unrelated 

to performance, that simply becomes an economic problem, the 

main constraint is publicity. 

Mr. FRANK. In that case, let me ask you, Mr. McDonough, one 

of the suggestions we have had in the law of unintended consequences, Congress passed a law a few years ago that said if you 

pay the executive a salary that was way disproportionate to the average worker, that wasn’t deductible. And we have encouraged people to get into other forms of compensation not covered by that. 

And particularly one of these we are told—well, there are two that 

trouble me. 

One is pension arrangements, and those involved in Fannie Mae. 

The pension arrangements—we had the CEO of Fannie Mae at the 

time tell us that if there were accounting problems, he would be 

accountable. At least I thought that is what he said. Apparently, 

he said his benefits would be uncountable. I didn’t hear him right. 

And they consisted of what seemed to me to be widely excessive 

pension benefits. 

You have the jurisdiction. What is the transparency of pension 

benefits? I think we are running into a little problem. 

And let me ask you, Mr. Donaldson, too. When we have these 

pension arrangements that kick in—and I appreciate the extra 

time, and I will try to wrap it up—but this combines with what I 

18

think is a perverse incentive effect. We have had a couple of mergers in Boston lately where very successful major enterprises in Boston sold themselves to other enterprises. But, in both cases, the 

CEOs made well over $100 million solely because of the sale, and 

that can’t be irrelevant. It cannot be that the ability to make over 

$100 million has no effect on whether or not you make the sale, 

but it shouldn’t be by any rational economic standards. And the 

problem is that those tie in, because very often the benefits are 

triggered by that kind of a sale. 

Let me ask both of you, finally, of the extent to which current 

accounting rules make all of the compensation arrangements, including the contingent ones in case of sale, fully transparent and 

is that something that maybe we could give some more attention 

to. 

Mr. DONALDSON. Let me try to give you an answer on that over 

the short haul and over the long haul. 

Over the short haul, I think the first step in the whole issue of 

executive compensation should be based and addressed by the independence of the compensation committee. As mandated in Sarbanes-Oxley, as instituted by the stock exchange, we now have 

independent compensation committees, number one. 

Number two is those committees have the authority to hire the 

outside experts themselves, as opposed to corporate management 

hiring the compensation advisors. Now the Committees can bring 

in their own advisors and give those advisors the instructions they 

want to give them. 

Beyond that, I believe there needs to be a fundamental change 

in the management or rather the boards’ and the compensation 

committee’s understanding of exactly what performance is, exactly 

what are we rewarding people for. 

My own view on that is that we are way over too far onto the 

earnings per share and quarterly results and the numerical measures, if you will, of success in a corporation as opposed to the qualitative judgments on what is good performance, what do you mean 

by that, over what period of time, quality of products, et cetera, et 

cetera, et cetera. 

Now, having said that, we are taking steps now to increase the 

transparency of the total compensation package. Alan Beller in our 

Corporation Finance Division is hard at work now in developing a 

better way of displaying what the total compensation package is. 

And, again, you have to be a forensic accountant practically to understand in a current disclosure document exactly what the total 

package is that a corporate executive is getting in terms of not only 

salary, bonus and so forth, but post-employment bonuses, benefits 

and so forth. We will come up with a way of displaying this that 

we hope that will open the whole process up to the sunlight. 

Beyond that, I think it is important to note that we have felt 

that it was not the SEC’s role to dictate compensation measures. 

It is our role to make each company disclose exactly what they are 

doing. And of course, I believe—and this is a longer answer than 

you wanted—I believe that sunlight will have its effect. 

Mr. FRANK. It is very much the answer I wanted. I agree with 

you. This is not a case for us to act, but make sure the information 

is there. 

19

Mr. McDonough. 

Mr. MCDONOUGH. As you may remember, Mr. Frank, I think I 

was the first public official to speak out describing the excessive 

compensation when I was honored to give the anniversary of 9/11 

speech at Trinity church at the foot of Wall Street. 

Mr. FRANK. Your survival has emboldened me. 

Mr. MCDONOUGH. It is a matter of considerable concern to me 

because I live in some fear that since, in addition to your cogent 

remarks on the subject, I always describe the present level of executive compensation as morally outrageous, which I think it is, I 

think there is no question that none of us can figure out a way that 

you could have a law or a regulation that would control executive 

compensation. My friends at the SEC bringing it out more into the 

sunshine will help, but mainly what we need is the leadership of 

the American business community, for to get it through its head 

that the responsibility that they have to the American people as 

members of a single society is that this level of executive compensation is nuts. It has no economic theory behind it except one 

called greed, and it is time for it to get changed. 

The CHAIRMAN. Gentleman’s time has expired. 

The gentleman from Louisiana, Mr. Baker. 

Mr. BAKER. I thank the chairman. 

I wish to commend you both for taking on the administration of 

this Act in an aggressive and appropriate manner. I think it has 

brought about a heightened level of responsibility by those who 

govern public corporations. 

I do share the view that the compensation matter is one that 

should be brought to public light and we should examine ways to 

make sure the shareholders fully understand the scope of packages, 

but I think that is as far as one can comfortably go until some person within either of your organizations figures out a logical way to 

provide a remedy. However, there are elements to this that I think 

are pervasive in the system. 

CEOs and CFOs have a great responsibility to meet or beat the 

street every 90 days; and if they don’t, they are fired. I think that 

is an insidious force in perverting compliance with the accounting 

rules and perhaps making ill-advised business judgments. 

If someone spends the money on Section 404 compliance because 

the law requires it and people are going to look, did that cause us 

a hit on our earnings, and the only defense you will have is the 

law made me do it, if by contrast you had spent the same amount 

of money on internal data processing in order to facilitate that 

knowledge and not be required by law and take a hit, he would 

perhaps be in some trouble. We have to incent corporate America 

to invest for the long haul, just like we try to incent our individual 

constituents to invest in the markets for decades not days; and I 

think that is an overhaul task of some immense proportion. 

With regard to Section 404 compliance, Chairman Donaldson, 

there is another way I would like to come at the problem of cost, 

particularly for moderate to small business enterprises, not necessarily changing the compliance requirements of Section 404 but 

rather the trigger that brings you into compliance with SarbanesOxley in the first place. 

20

As I understand it, it is a shareholder number or an asset size 

that brings you into the pot; and that shareholder number is fairly 

small, at least in my view. Is there any review ongoing as to 

whether those thresholds which trigger the compliance, because 

that is the group from which we get the largest complaint, that the 

compliance costs versus their operating budget is out of whack? Is 

that an approach that might merit some consideration? 

Mr. DONALDSON. As a result of our concern on just that, we 

formed the Small Business Advisory Committee. That is made up 

of sitting CEOs and accountants and everybody that is involved in 

this issue, and they met last week. It is an outstanding committee. 

One of the first agenda items for them has been the definition 

of what is a small business, how do you define. We have had traditional market cap numbers, if you will, but those are misleading 

in terms of a true definition of what we are talking about when we 

talk about a small business. And I think you will see, as a result 

of the work they are doing and their advice to us, we will come up 

with some better definitions than we have now. 

Mr. BAKER. I don’t expect a response this morning, your answer 

to the chairman on the Fair Fund administration to identify for us 

any operational concerns that going forward we might address and 

some more detailed status of the operations of the Fair Fund administration today. It would be helpful. Thank you for your good 

work. 

Chairman McDonough, I want to jump quickly, going forward, 

the Section 404 compliance issue, I understand that May 16 of this 

year there will be additional guidance issued. Is it inappropriate to 

ask where we might be going or is that something that should be 

subject to later disclosure? 

Mr. MCDONOUGH. Here is what we are working on first, Mr. 

Chairman. On May 16, we will come out with all the guidance we 

can possibly bring to bear on telling auditors it is not a one-sizefits-all, you are supposed to use judgment. 

When the people in the issuing companies say, here is the internal controls we have in mind, what do you think, you are not supposed to say, I can’t talk about that, but, rather, that there be a 

relationship between the auditor, very much with the audit committee involved and the issuer that is for the benefit of the growth 

in our society. 

We have a Standing Advisory Group on our audit standards 

which meets on June 8 and 9. That entire meeting will be dedicated to additional thinking on guidance we bring to bear. The 

more we can get down to the nuts and bolts so we can tell people, 

here is the way to go about doing it, we can reach a point where 

we say here is a checklist— 

Mr. BAKER. One of the little elements in the list, would that also 

apply to the subject of audit independence and tax advice? 

Mr. MCDONOUGH. We have a proposed rule. The comment period 

has ended. We have, I believe, 1,200 pages of comment; and I 

would hope that say within the next month we will be able to finalize that rule. Then it goes the SEC, and they put it out. 

Essentially, what we have in that rule, which I believe strongly 

in, we want to get auditors out of the business of giving tax advice 

of how you can pay, you know, take a little risk and pay less tax 

21

to Uncle Sam. That is terrible. They never should have been doing 

that, and we forbid it in this proposed rule. 

We also tell them they can’t do the individual tax returns for 

senior executives, especially in the line of financial reporting. 

The other, more traditional work that audit firms have done for 

their issuers, we believe they should be allowed to continue to do. 

It is much more cost efficient for the issuer, and I think it is just 

a better way of trying to get as much cost benefit thinking as we 

can into the American economy and, at the same time, carry out 

the clear mandates of Sarbanes-Oxley. 

The CHAIRMAN. Gentleman’s time has expired. 

Gentleman from Pennsylvania. 

Mr. KANJORSKI. Thank you, Mr. Chairman. 

Gentlemen, let me congratulate you on your operations thus far. 

I can assure—I don’t know if I can speak for all the members of 

the Committee, but I sleep a lot better knowing that both of you 

are there. You have taken on a tremendous task, and you have 

been terribly successful to date. So we don’t have a tendency to 

congratulate you as nearly as often. 

I am going to take the opportunity to get into two little areas 

that are really off the record. One is going back to the vaccine 

question. I have the largest manufacturer of injectable vaccines in 

my district, Sanofi pasteur. We have been working closely with 

HHS and the Securities and Exchange Commission; and I would 

appreciate, Mr. Donaldson, if you could reach down in your organization—and I don’t want to put you on the spot to discuss it, but 

in the omnibus bill we had required a study to be completed by 

HHS in 90 days, and that has expired on March 15, and that study 

is not completed by HHS since they did not communicate with your 

organization until sometime in the middle of February. Just superficially, it appears there may be a tennis match of where the ball 

is and in whose court. 

I think it demands high-level executive talent to make sure that 

we resolve this issue. Because we are completing, one, to maintain 

these manufacturers in the United States; and, two, we certainly 

want to encourage inventories. If there is some accounting problem 

or it is a contract problem, I really don’t care. I am interested in 

making sure we have the stockpile. So if you could attend to that. 

Now the second thing, and I bring it up with a lack of knowledge 

with all the ramifications, but yesterday we had the announcement 

of the possible privatization of the New York Stock Exchange. 

Quite frankly, I am very concerned, first and foremost, that the institution existed so well as a not-for-profit organization now moving 

into the realm of a for-profit corporation—certainly they have the 

right to do that and may be the right thing to do. It may enhance 

the equity action of the whole country, and that may be good. 

I am concerned about two things, the self-regulatory organization 

of the exchange—it seems to me both the Congress and the SEC 

have some work to do here, and I don’t want to put you on the spot 

because I am sure we are going to be passing on this transaction. 

But as you are passing on this transaction, I would hope that you 

would listen to some of these concerns and think about it. 

The second concern, which I had detailed discussions with the 

leadership of the exchange on, is my concern of the national secuVerDate 0ct 09 2002 10:05 Sep 14, 2005 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 G:\DOCS\23133.TXT FIN1 PsN: MICAH
22

rity issue, which I think privatization has not taken into consideration. Now we have for the first time the capacity of foreign corporations or foreign countries being the equity owners of the largest equity market in the United States; and if for some perverse 

reason profit was not their motive but in fact some devious purpose 

to accomplish some end, they would have in their vital control 80 

percent of the equity of this economy at their disposal. 

Under normal circumstances, the SEC is a reactive organization 

to pass on what has happened. But suddenly now, with little investment, maybe a half a million or a billion dollars, a foreign 

power or combo could control the largest equity market in the 

United States and not worry about their investment but be more 

worried about the advantages of attacking us economically. They 

could utilize this exchange for horrendous purposes. 

When I look at the normal protections that we have against subversion in our economy, profit has so much to do with keeping people on the correct road. But when you have the opportunity with 

little amount of equity to extraordinarily impact or affect an economy as large as that of the United States, this is sort—I don’t 

know what protection— 

I know other exchanges have gone into privatization. I have 

raised that issue with them. They usually look at me and say, well, 

we never really thought of that. And they will say, we will know 

who owns this. But we all know you could own huge amounts of 

equity in this country in blind trusts or unidentifiable trusts. It is 

going to be very difficult to pierce this veil and get the transparency. 

It seems to me with the hook of self-regulatory control under the 

auspices of the Securities and Exchange Commission you may have 

the ability to structure something here and invariably have to work 

for Congress to establish wherever that regulatory organization 

will—ultimately may be. But certainly to examine that we are not 

at a national security risk here, not that it would happen now 

under the present administration of the exchange or even with 

countries, but some devious character out there sitting in some foreign land with an awful lot of oil money—I didn’t mean that—could 

think about having a real impact on the American economy in a 

very cheap way, a lot less expensive than nuclear weaponry. So if 

you would pay attention that, I would appreciate it. And within the 

constraints of a regulator, if you would like to give us any of your 

feelings on that matter, I would appreciate it. 

Mr. DONALDSON. Let me begin by saying that I don’t and cannot 

comment on the specifics of the proposal as was just put forward, 

since it will ultimately come under our jurisdiction, but let me try 

to answer a couple of your questions. 

First of all, on the SRO issue and the whole regulatory side of 

the exchanges, we have been, as you know, concerned by trying to 

isolate the regulatory side of the exchanges from the business side, 

if you will, and we have had a proposal out there for comment, if 

you will, on just how in the future the regulatory aspect of exchange organization can be isolated from the business aspect. 

In the case of New York Stock Exchange, they have a model that 

has the regulatory side under the purview of independent directors 

23

and totally out of the chain of command, if you will. So we have 

been very concerned with that problem. 

We have also been concerned with how the financing of the independent regulatory oversight would take place, the precedents, if 

you will, of the revenues of the exchange going to the regulatory 

side. 

As far as the national security aspect, again, we have been thinking about this, and we have been working on it. Because it seemed 

to us that it was inevitable that the issue of public ownership was 

going to become more and more in the public view. Obviously, the 

NASDAQ situation is publicly held now; and we have been concerned about the constraints that we can put on, the reassurances 

we can put on the overall structure to make sure that what you 

just talked about doesn’t happen. We will be incorporating in our—

and, again, I am not referring to the present situation—we will be 

incorporating in our SRO governance standards our conclusions, if 

you will, on just how to do that. 

I might also say that the competition now between the marketplaces is happening just as it should. We have increased competition between the markets and the bringing together, if you will, of 

the New York Stock Exchange and the new structure illustrates 

that competition. It also illustrates the rising importance of electronic execution, if you will. 

It also brings forward, in my view, the importance of our recent 

national market system rulings in terms of individual investor protection. It is very important as we move toward electronic trading 

that we protect the individual investor, and it is very important 

that we have rules that are consistent across the marketplace. 

That is why that was such an important part of Reg NMS, the extension of the rules to not only the New York Stock Exchange but 

NASDAQ. 

The CHAIRMAN. Gentleman’s time has expired. 

The gentleman from Alabama. 

Mr. BACHUS. I thank the Chairman. 

Before I go into a more general line of questioning, I have got 

a bank-related question I want to ask Chairman McDonough. Some 

audit firms are beginning to require dispute resolution provisions 

in their engagement letters with the companies they audit, and 

these provisions prohibit the companies from suing the auditing 

firm. They require arbitration; and, even more importantly to me, 

they require the location of those arbitration proceedings. I know 

the banks have expressed concerns to us and also I think the bank 

regulators are concerned about possible safety and soundness 

issues related to this. Has the oversight board focused on this issue 

and have you had conversations with the bank regulators? 

Mr. MCDONOUGH. Mr. Bachus, my understanding is that the 

SEC has taken a position that when an accountant enters into an 

indemnity agreement with its audit client that provides the accountant immunity from liability it can jeopardize the accountant’s 

independence. Now, under Sarbanes-Oxley, we now share responsibility for auditor independence with the SEC. We have—at the 

staff level, but also in our case involving me personally, we have 

been in discussions at the SEC and the PCAOB with the Federal 

banking regulators on this issue; and I think I can speak for all 

24

of us involved in these discussions by saying we are all concerned 

about that practice. We understand that the bank regulators intend 

to issue guidance on this issue in the near future, which I certainly 

like to see. We will monitor that practice very, very closely. 

Mr. BACHUS. I want to focus on the bigger issues. Of the 2,500 

companies that filed by March, 8 percent of them reported material 

weaknesses in their internal controls. I think that alone tells you 

that Section 404 was necessary and validates the legislation and 

the need for internal control audits and reports. I think—I hope 

you agree that will result in a more accurate reporting and enhanced investor confidence. I know that one or two of my colleagues have said these are just a few bad apples, but 8 percent 

is a pretty surprising figure. Would you all agree? 

Mr. DONALDSON. I think it is an important statistic, and it illustrates the positive impact that the whole Section 404 approach 

takes. I do believe in our conversations with corporate executives 

that many of them, after they get done complaining about the 

costs, talk about the improved management oversight they have 

now and welcome this exercise they have gone through to identify 

their own weaknesses. So I think it has been positive. 

Mr. BACHUS. Let me say this, and I wanted to say that first, that 

I think that it is necessary. I think it is positive. I think it has led 

to better confidence by investors, more accurate reporting. 

That being said, I think the main concern expressed on Sarbanes-Oxley is focused on Section 404; and I think the main criticism has been on the disproportionate costs to the smaller firms. 

One figure I saw was that the cost of these internal audit reports 

to companies of over $5 billion in revenue was $0.06 out of every 

dollar. But to companies of $100 million in revenue, the cost was 

$2.50, which is obviously disproportionate. I have read estimates I 

think from the oversight board and others that that cost ought to 

drop about 50 percent in the second year. 

Having said that, and I know you have forms—and a lot of the 

criticism is the duplication between the internal audits and external audits, maybe extending the deadlines. I think another criticism is the need for risk-based audits. 

Would you like to comment on maybe ways we can lessen the 

costs on these smaller firms? 

Mr. MCDONOUGH. I think it is absolutely essential that we do so. 

I was a central banker five times longer than I have been an 

audit overseer, so maybe it is the central banker in me that says 

small- and medium-sized companies create all the increase in jobs 

in our economy. They are absolutely vital to the functioning of the 

American economy and therefore serve the interests of our people. 

There is no question that there are ways to reduce the cost. The 

use of the work of others was put right into our auditing standards. 

You may recall when I was here a year ago I said that we invented that cost benefit, thinking it isn’t, in fact, in the statute, 

and Chairman Oxley was nice enough to say that he was glad that 

we had done so. 

I think we are going to be able to say that in our May 16 guidance, that the audit plan should indicate exactly what work needs 

to be done. That has to be more thoughtfully done by the auditor, 

figure out how much work can be done by the work of others, espeVerDate 0ct 09 2002 10:05 Sep 14, 2005 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 G:\DOCS\23133.TXT FIN1 PsN: MICAH
25

cially reward a good internal audit capability by taking more advantage of it. At the end of the day, the auditor has to say, I know 

enough by my own work to be able to make a judgment. 

But taking advantage of the work of others is certainly, in my 

view, encouraged and, heaven knows, not precluded. We will then 

continue to work throughout—well, for the indefinite future. But 

we want to work at it really fast, because the more guidance we 

get out quicker, the more we improve the 2005 audit season so that 

some of this unnecessary expense that took place in the last year 

won’t be repeated. Will we get beat out all of the unnecessary expense in 2005? I hope so, but I doubt it. 

So this is going to be a project where we have to keep working 

with the audit firms. That is why our inspections are so valuable. 

We made it very clear to the auditors that, yes, we would be critical if you didn’t do enough work on internal control, but we will 

also be critical if we have the view that you did too much. Whether 

it is inspired by fear, as has been suggested earlier in my answer 

to the chairman, or even if it is a less attractive motivation, which 

is to run up the hours and the fees, we have to get a much better 

cost benefit equation into this necessary work to protect investors. 

Mr. DONALDSON. Could I add two comments to that? 

Number one, I think on the smaller end of the scale, because of 

the delay and that coming under the implementation, if you will, 

there has been a learning curve out there as a result of what is 

going on to date. That learning curve is not only in the companies 

themselves but with the auditors themselves. I think we will see 

a natural improvement in the efficiency of the process simply having been through it once. 

The CHAIRMAN. Gentleman’s time has expired. 

The gentleman from Illinois, Mr. Gutierrez. 

Mr. GUTIERREZ. Thank you very much, Mr. Chairman. 

Chairman McDonough, in response to Ranking Member Frank, 

you referenced your previous remarks where you predicted that 

Congress would take action to rein in executive pay; and you also 

called the gap in pay between executives and workers, quote, grossly immoral. You said, quote, the American dream is in danger. The 

loss of confidence in private sector leaders by the American people 

can be restored only if we convince them once again that the private sector at the top is not a closed club of people guided by their 

own selfishness and agreed, unquote. I thank you for that insightful observation, Mr. Chairman. 

As you know, my colleague, Mr. Frank, began and indicated that 

the first step regarding these obscene salary packages should involve clear disclosure so the shareholders and the public can follow 

the trail and discover the total compensation packages of these 

CEOs. I think the real solution is that shareholders should be able 

to directly decide their CEO’s pay package. After all, it is their 

money footing the bill. What would you think, Mr. Chairman, of 

this type of proposal where there would be a direct linkage between 

shareholders and determining the package, pay package of a CEO? 

Mr. MCDONOUGH. Well, Congressman Gutierrez, you will recall 

that I am a native of Chicago, so thank you. I do stand by those 

remarks that you quoted for me. 

26

Actually, the shareholders do direct the compensation, because 

the directors of the company are supposed to represent the shareholders. I think if we say that shareholders are not being well protected if CEO compensation is too high that we have to say that 

the directors of public companies—not all public companies, some 

public companies—are actually improving their situation by coming 

up with a methodology which you and I and any other member of 

the American society can look at and say, well, that makes sense. 

But in many, many other cases, you look at the methodology and, 

essentially, it is what the Ranking Minority Member described as, 

you bring in an executive compensation consultant and the executive compensation consultant says, no, McDonough, you are a genius because you hired me. Of course, that is why he knows I am 

a genius; and, therefore, you should be in the top quartile of executive compensation and we will compare you just by chance with a 

group of companies that happen to pay a lot. That actually is what 

was happening. That is not a caricature, but, unfortunately, that 

is the truth. That shouldn’t be happening if the directors of public 

companies are doing their jobs properly. 

Mr. GUTIERREZ. In the instances—because you are from Chicago, 

I thought you were going to give me that answer and go back to 

the board of directors. So I am happy that we are on the same 

page. 

Having said that, then what about the shareholders being able 

to veto a mistake made by the board of directors in terms of an excessive package of wages? Let us say the board of directors does 

something and the shareholders feel, God, look at all that money. 

What do you think of that instance? A veto process? They don’t like 

it. Is there a procedure in which they should be able to get involved? 

In order to seriously address the issue of competence, because as 

you and Mr. Donaldson have expressed, we are beginning to make 

inroads after the lack of competence which ensued at the end of the 

last decade and the beginning of this one, but there are still stories 

that may continue to unfold. And as you declared, and I agree with 

you totally and I am happy you stand by those words, grossly immoral. What do you think of that? 

Mr. MCDONOUGH. I would be really trampling on the turf if I answered that question of my colleague and friend, Mr. Donaldson, 

because it has to do with the governance of corporations, which is 

the SEC area. 

I will make the comment, at the present time, a shareholder only 

has one choice, and that is to sell the shares. That doesn’t impress 

me as the only choice that ought to be available. 

Mr. GUTIERREZ. I will take that as an answer. 

I would like to ask a question of Chairman Donaldson. You were 

quoted in Forbes magazine in 2003 where you referred to a, quote, 

disconnect between executive compensation and performance. You 

expressed fear that the business was slow to heed the public’s outrage, quote. In my view—this is Chairman Donaldson—such cynicism is a major threat to the long-term growth and health of our 

economy. 

You added, without the confidence and participation of mainstream America—I thought that was the shareholders—our marVerDate 0ct 09 2002 10:05 Sep 14, 2005 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 G:\DOCS\23133.TXT FIN1 PsN: MICAH
27

kets cannot resume their rightful and necessary place as the engine of American prosperity, end quote. 

Company directors must create, according to Mr. Donaldson’s 

quote in the Forbes magazine, a corporate culture based on a philosophy of high ethical standards and accountability. And you said 

this culture must be engrained in the company’s moral DNA, following up on Mr. McDonough talking about morality. 

Obviously, there is a serious ethical moral question, as both of 

you have been so widely quoted about the morality or lack of morality. However, you have CEOs like Robert Allbritton, who presided over Riggs Bank, an institution that systemically failed to 

comply with Bank Secrecy Act requirements and facilitated transactions for General Pinochet for years before these actions were finally acknowledged by the regulator, the OCC. In addition to his 

generous salary and sizeable stock options, which he exercised just 

before his resignation as chairman, earning him $5.7 million in a 

single day, here is somebody who violated the OCC, and we will let 

them continue to look at the things. 

The CHAIRMAN. Gentleman’s time has expired. Could we hear the 

answer? 

Mr. GUTIERREZ. Could you just speak to that issue momentarily 

before the chairman cuts you off? 

Mr. DONALDSON. Well, I think that the issue of compensation has 

to do—as I tried to say earlier, has to do with an appraisal of what 

good management is and what effect that has on the performance 

of the company; and I think it needs to be measured over a longer 

period of time than is currently there. I think there is a danger 

that if we somehow do not reward really good performance with 

really good rewards—and I believe the marketplace must be the determination of that, and that comes from a complete disclosure of 

just what these rewards are, and then the shareholders can make 

their own judgment as to whether the rewards they are getting in 

the marketplace are being fairly compensated. I think the problem 

is that there are rewards that are not disclosed and if disclosed 

would excite some shareholders. 

Mr. GUTIERREZ. Thank you very much. If I could submit some 

questions in writing to the two chairmen. 

The CHAIRMAN. The Gentleman from Texas. 

Mr. HENSARLING. Thank you, Mr. Chairman. Let me add my 

voice to the chorus of those congratulating you for your leadership 

on Sarbanes-Oxley, a critical piece of legislation at a critical time 

in our Nation’s history. Clearly, accounting firms and executives 

are held to higher standards, and we have our financial controls 

strengthened and more transparency, and investor confidence is 

up. Clearly, that is all the good. 

But sometimes when I hear from constituents about the application of Sarbanes-Oxley, it reminds me of some of these miracle 

drugs we see advertised on TV: Take the green pill. It is 97 percent 

effective, but side effects include premature baldness, bad breath 

and nausea. I think to some extent in my 5 minutes I could say 

that Sarbanes-Oxley is 97 percent effective in curing what ails us, 

and I want to spend a little time talking about some of these possible side effects. 

28

I represent a Dallas, Texas, based congressional district; and I 

have seen an uptick in small public companies deciding to go private. Just a couple of examples. 

A company named Bestway, a rent-to-own company, they had a net income of $366,000 last year, and they spent almost $600,000 

on their Section 404 compliance, and they decided to go private. Calloways, which is a nursery, had a $4.3 million loss in ’03, $113,000 profit in ’04, and they are saying that they have to spend 

an extra half a million dollars a year to meet all the public filing 

requirements. They have decided to go private as well. 

I have a twofold question. Number one, do you have any evidence 

that this is a trend that increasingly small public companies are 

choosing to go private because of the compliance costs? And if you 

do see a trend, what are the implications to the investor community and the economy? Chairman Donaldson? 

Mr. DONALDSON. First of all, I think you have to put it in context 

relative to the numbers of small companies or relative to the number of companies out there. Those that have gone private are quite 

small. Nonetheless, they are more than they were in the past. 

I think you have to relate that to the public ownership boom, if 

you will, that took place during the escalating markets in the 

1990s. There are a number of companies who never should have 

gone public, who were not ready for it and were not ready to accept 

the burdens of public ownership. There are obligations for liquidity 

and capital raising that comes from public ownership. There are 

burdens of regulation. 

Having said that, it is, I believe a natural process here where 

there are going to be some companies who are going to decide that 

the burdens and responsibilities are too great and would rather be 

a private company. And I think for the great majority of companies, there has been—the very reason for Sarbanes-Oxley, there 

has been inadequate attention to the expenses, the justified expenses of being public. 

Mr. HENSARLING. You don’t necessarily see a trend, but if you do 

see a trend you don’t see a worrisome trend? 

Mr. DONALDSON. I see an increase in companies going private. I 

think the rhetoric is a little ahead of the actual numbers. I mean, 

the numbers are very small relative to the thousands of companies 

that are public. 

Mr. HENSARLING. Continuing to focus on the burden on smaller 

public companies, you get a lot of studies and anecdotal evidence 

crossing your desk. I happened to pick up a USA Today the other 

day flying back to Dallas, and they just mentioned a few companies. Priority Health Care, a pharmacy distributor, has 491 percent 

higher audit fees. Aaron Marantz, audit-related fees up 287 percent. A lumber company, Daletech Timber, 243 percent rise in their 

audit fees. 

Do you have some way to get your arms around all this as far 

as the size of magnitude, as far as the cost compliance for these 

smaller companies? Do you have any studies that you believe are 

valid and worthy of bringing to our attention? 

Mr. DONALDSON. We are very concerned about the small company end of the economy. Obviously, that is the engine of growth 

in our economy, has been and will continue to be. We are very conVerDate 0ct 09 2002 10:05 Sep 14, 2005 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 G:\DOCS\23133.TXT FIN1 PsN: MICAH
29

cerned about any sort of disadvantages that come from a one-sizefits-all application of Sarbanes-Oxley, and that is why we formed 

this advisory committee. And we are going to pay particular attention to smaller companies and the burdens on smaller companies, 

we are concerned about it and we are concerned about seeing if we 

can’t cut away some of the chaff, if you will, in terms of the implementation of Sarbanes-Oxley. 

The CHAIRMAN. Gentleman’s time has expired. 

The gentleman from Georgia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

First, to you, Chairman Donaldson, I would like to ask you about 

the New York Stock Exchange and their move of going public. Is 

it your opinion it is a good move? I think from your earlier comments I think you were saying it would promote greater choice. 

Transparency might be better for faster transactions. Is that a fair 

assessment? 

Mr. DONALDSON. Again, I am reluctant to comment publicly since 

we do have to pass, if you will, ultimately on the stock exchange 

proposal. 

Let me say two things. Number one is that I believe the proposal 

is reflective of the increasing competition between markets; and I 

think that is very healthy. It is very healthy not only domestically 

but as we emerge in a world order, if you will, to make the U.S. 

markets even more competitive on a worldwide basis. 

Mr. SCOTT. Let me ask you this. Now it has gone public, it comes 

under the purview of Sarbanes-Oxley. How do you feel that Sarbanes-Oxley would fall into this? Particularly given the past recent 

culture of the New York Stock Exchange, the recent scandals, the 

recent settlement of the $257 million, of the cheating of investors, 

some of the fallout from the Glasgow situation, how do you feel 

Sarbanes-Oxley will fit into this? How do you envision that? 

Mr. DONALDSON. Clearly, in terms of the independence of the 

regulatory oversight at the New York Stock Exchange, I think a 

significant improvement has been made. You are referring now to 

things that happened before the structure was changed, the fines 

that we have given, and I would say that we have been very tough 

in enforcement. 

Mr. SCOTT. The culture has improved. 

Mr. DONALDSON. And I believe the structure now and the personnel that has been brought in on the regulatory side is just what 

the SRO concept of oversight is all about. 

Mr. SCOTT. Mr. McDonough, let me go to you; and, incidentally, 

I want to thank you for stopping by my office. I thought we had 

a delightful visit. 

I want to talk about Section 404. Recently, PriceWaterhouse, 

KPMG and Ernst & Ernst and I think it was Deloitte Touche did 

a study, a survey, and in that survey it came out that there was 

an average uniform cost of $7.8 million for compliance with Section 

404 and that the bulk of this was one-time costs. Do you have any 

breakdown on what these one-time costs were? 

Secondly, it appears to be quite a bit. Do you foresee the costs 

or expenses going down? 

Mr. MCDONOUGH. Yes, Congressman Scott, I think they will go 

down. How much they go down will vary a lot by company. If the 

30

company had a lot of deferred maintenance, if they had to document internal controls, that was very expensive. That should be a 

one-time expense, and then they would have a big drop from year 

to year. If you had a company that had better-developed internal 

controls, the past year’s costs would be lower and, therefore, the 

likelihood of a big drop would be less. 

I think what we have to do—these conglomerate numbers are all 

very interesting, but they don’t tell you much. You have to go in 

company by company and auditor by auditor and really see if they 

have the level of internal controls that really make sense for the 

nature of the issuing company. Some of them, in my view, clearly 

have more bells and whistles than they need, and that expense is 

inappropriate. 

There is no question that there is enough anecdotal evidence to 

figure out that some of the auditors have been overdoing it and 

how much work that they have required. We wished through the 

guidance through our standards group and then through our inspection process to make sure that that conduct gets improved as 

well. 

Here is one where I think that you really go at it issuer by issuer 

and audit engagement by audit engagement and try to drive down 

the unnecessary cost. We still have to protect the investors. That 

is what Sarbanes-Oxley is all about. But we have to do it where 

it is most cost effective with the special concern for the small- and 

medium-sized companies, that they are not spending money that 

they really don’t need to be spending. 

The CHAIRMAN. The gentleman’s time has expired. 

The gentleman from South Carolina. 

Mr. BARRETT OF SOUTH CAROLINA. Thank you, Mr. Chairman. 

Thank you, gentlemen, for being here today. Travel light and hit 

hard. 

Got two questions, real quick. Let us turn our attention to Section 404, the SEC-issued guidance to the accounting industry on 

certain treatment of the lease accounting practices. I have gotten 

several letters. I have gotten one from the Retail Leaders Industry 

Association, the National Restaurant Association, even the Chamber. They have expressed concern that retroactively applying these 

interpretations could have a tremendous adverse effect on the economy. Why did SEC insist on the interpretation being applied retroactively in the ninth inning for the form 10-K? 

Mr. DONALDSON. On February 7, our chief accountant issued a 

response to the AICPA in which he clarified the staff’s understanding regarding several lease accounting practices that were not 

compliant with pre-existing and long-standing accounting rules. 

These issues were initially identified by a few companies and their 

auditors who had already concluded without our staff involvement 

that certain leases had been accounted for in error based upon 

long-standing GAAP accounting. 

So, basically, the restatement raises the issue of whether a material weakness in internal controls exists for Section 404 reporting. 

The issue of whether a restatement constitutes a material weakness in a particular instance is a matter to be resolved through discussions between a company’s management and its auditors. It 

would be very difficult for us to categorically conclude that a parVerDate 0ct 09 2002 10:05 Sep 14, 2005 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 G:\DOCS\23133.TXT FIN1 PsN: MICAH
31

ticular type of restatement is never a material weakness. But the 

issue here was us trying to face up to this inconsistency as quickly 

as we could, particularly as the Section 404 compliance measures 

were coming. 

Mr. BARRETT OF SOUTH CAROLINA. I guess this leads into my second question. When you are talking about material weakness, due 

to some of the timings on these things, a lot of these companies are 

having reports written about them that they do have material 

weakness. My question is, how do I separate a company like that 

from the Enrons out there that have some serious material weaknesses? How do I differentiate between those two? 

Mr. DONALDSON. Well, I think—and Chairman McDonough may 

want to answer this. I think the material weakness is an accounting concept, and it is something that must be arrived at with the 

accounting profession according to auditing standards. Beyond 

that, I mean, it is a matter of some judgment here as between the 

auditors and the company itself and the company’s financial officials. I think the real issue here is the correction of the material 

weaknesses; and, again, I think we are going to see corrections 

coming quite rapidly. 

Did you want to add to that. 

Mr. MCDONOUGH. The decision of whether something is a significant deficiency or material weakness has to be done case by case. 

Let us assume that the decision is made by the issuer and the 

auditor it is a material weakness. The important thing is that 

there be disclosure, disclosure, disclosure, disclosure. Say exactly 

what happened, why it happened, what you plan to do about it; 

and then the auditor should also opine that, yes, we think that it 

is fixable in this way. 

We have just brought out a proposed standard, Congressman, 

that would say that if in the course of the year following a fiscal 

year in which an issuer has a material weakness the issuer says, 

I fixed the material weakness, and the issuer says, but I think I 

better get my auditor to agree with me, we are creating a methodology through a new rule that will establish how the auditor goes 

about that. 

In the real world, there are material weaknesses and material 

weaknesses. Some of them would probably make any sensible investor say, this is not a good company to be investing in. Others 

you would say, okay, they made a mistake, they admit it, and they 

are saying how they are going to fix it, and I have confidence they 

will fix it. 

The interesting thing is the securities market, if you watch the 

stock market performance, some companies come out and state a 

material weakness of the kind I described and explain it well; stock 

market reaction is not detectable. On the other hand, if they say 

that they have serious problems, the stock market reaction is indeed predictable; it is down. I think it is an indication that markets 

work. 

Mr. DONALDSON. As a former security analyst, one man’s or 

woman’s material weakness may not be another’s. There is an accounting concept here, and then there is the marketplace. As 

Chairman McDonough says, the marketplace will evaluate whether 

32

an accountant’s concept of material weakness is really significant; 

and that will play out in the price of the stock. 

The CHAIRMAN. Gentleman’s time has expired. 

Gentleman from New York, Mr. Meeks. 

Mr. MEEKS. Thank you, Mr. Chairman. 

First, I want to thank Chairman McDonough for taking the time 

to visit me in my office and establishing a relationship when he 

first became the chairman of PCAOB; and I want to thank you and 

your staff for arranging to have a meeting in your offices, particularly Mary Hamlick. I want to thank you also for your frankness 

and your testimony, a frankness that is not often heard at this 

committee today. 

Let me ask you a couple of quick questions, given that I have 

heard the bells. 

Mr. McDonough, in response to Chairman Oxley a short while 

ago, you mentioned that more firms could be involved in auditing 

if more issuers used auditing firms that match their size instead 

of large firms. I was wondering, is there a way that regulators or 

Congress can encourage this to happen? Because one of my 

thoughts was there is only four firms that are doing all of the auditing and to increase the number of firms that are involved here, 

do you think there is any way that we could encourage this to happen? 

Mr. MCDONOUGH. I think we are actually doing it in this dialogue and the one I had earlier with the chairman. 

I think when the chairman of the PCAOB says that a smallersized company or a community bank really ought to have an auditor that is more appropriate to its size, that rather says to that 

community bank or small company, well, if the chairman of the 

PCAOB and Congressman Meeks agree that that is appropriate, it 

kind of tells them it is okay. It isn’t necessary to have some big 

fancy auditing firm if it really doesn’t make a whole lot of sense 

for you. 

Mr. MCDONOUGH. So I think that we are both using the bully 

pulpit to get that message across. 

Another thing I think that these smaller firms can do, and this 

is a conversation we had with that very nice group that came to 

see us at your arrangement. We want, because we think it is most 

cost efficient, that you have an audit, which is an audit of both the 

financial statement and of internal controls. But a lot of companies 

actually need expert advice in establishing internal controls, and 

that is something that a smaller auditing firm could develop a real 

expertise at and be able to get a nice flow of income by being an 

expert adviser on people getting up good internal control mechanisms. And we at that meeting, and now, I am really encouraging 

that development. 

Mr. MEEKS. What about, do you think they would bring down the 

cost of Section 404 by having the primary auditor subcontract out 

to smaller firms? Do you think that that would be a possibility, or 

do you believe that the regs are written in such a way that subcontractor joint ventures are not viable? 

Mr. MCDONOUGH. I don’t think that would work. I was just turning to Laura Phillips, whom we call Miss Internal Control, and is 

my expert on this subject. The integrated audit we think is really 

33

the way to go, and therefore to subcontract part of the work, I just 

don’t think it works. That is why I like the idea better that the 

issue were, say, if we really need some help in designing the internal controls, first of all, they ought to hire another firm. Their 

auditor shouldn’t do that because you destroy independence in the 

process. So I think that is how we can bring some new business 

to the smaller firm as an expert adviser on the creation of internal 

controls. 

Now, I do recognize that that is probably a one-time proposition, 

but at least it brings them into the picture in as constructive a way 

as I think I can figure out. 

Mr. MEEKS. Let me just ask this question. What are your 

thoughts on mandatory auditor rotation? And should the SEC or 

PCAOB have the authority to demand a change in auditors for a 

company where they suspect the relationship may be too cozy or 

where certain legal violations may have occurred? 

Mr. MCDONOUGH. I believe that the SEC could order an issue or 

two to change audit firms. So they have that authority. The larger 

question, should we have a general requirement for rotation of 

audit firms, unfortunately, I don’t think it works because if you 

look at the large number of larger companies that deal with one 

of the big four audit firms, they would have a real problem in moving to one of the others because of the independence issue as we 

currently define it. If they have used one of the other three firms—

and the chances are pretty high they have probably used all three 

of them for some kind of a consulting project, that new firm to 

which they might think of moving would flunk the independence 

test. It is one of the reasons that, since we have only four very 

large firms, I have a sincere continuing belief that we continue to 

have four very large firms and that no accident will come along 

which would present us with the enormous public policy challenge 

of what would we do if we had three. 

The CHAIRMAN. The gentleman’s time has expired. 

The Chair would indicate that because we have three 15-minute 

votes pending on the floor of the House, which is somewhat unprecedented, at least lately, and I have also been informed that we 

would have to pay Mr. McDonough overtime— Since you are paid 

by the taxpayers as I am, we would still retain the same amount 

of pay, but Mr. McDonough is in a different category. Having said 

that, we will plan to adjourn the hearing. 

Let me first thank both of you again for an excellent hearing and 

excellent contributions, as usual, and indicate that some members 

may have additional questions for the panel which they may wish 

to submit in writing. Without objection, the hearing record will remain open for 30 days for members to submit written questions to 

those witnesses and to place their responses in the record. And, 

without objection, correspondence from the American Bankers Association regarding the implementation of the Sarbanes-Oxley Act 

will be made part of the record. 

[The following information can be found on page 90 in the appendix.] 

The CHAIRMAN. No further business coming before the Committee, the Committee stands adjourned. 

[Whereupon, at 12:05 p.m., the Committee was adjourned.] 

(35)

A P P E N D I X

April 21, 2005

36


23133.001
37


23133.002
38


23133.005
39


23133.006
40


23133.007
41


23133.003
42


23133.004
43


23133.008
44


23133.009
45


23133.010
46


23133.011
47


23133.012
48


23133.013
49


23133.014
50


23133.015
51


23133.016
52


23133.017
53


23133.018
54


23133.019
55


23133.020
56


23133.021
57


23133.022
58


23133.023
59


23133.024
60


23133.025
61


23133.026
62


23133.027
63


23133.028
64


23133.029
65


23133.030
66


23133.031
67


23133.032
68


23133.033
69


23133.034
70


23133.035
71


23133.036
72


23133.037
73


23133.038
74


23133.039
75


23133.040
76


23133.041
77


23133.042
78


23133.043
79


23133.044
80


23133.045
81


23133.046
82


23133.047
83


23133.048
84


23133.049
85


23133.050
86


23133.051
87


23133.052
88


23133.053
89


23133.054
90


23133.055
91


23133.056
92


23133.057
93


23133.058
94


23133.059
95


23133.060
96


23133.061
97


23133.062
98


23133.063
99


23133.064
100


23133.065
101


23133.066
102


23133.067
103


23133.068
104


23133.069
105


23133.070
106


23133.071
107


23133.072
108


23133.073
109


23133.074
110


23133.075
111


23133.076
112


23133.077
113


23133.078
114


23133.079
115


23133.080
116


23133.081
117


23133.082
118


23133.083
119


23133.084
120


23133.085
121


23133.086
122


23133.087
123


23133.088
124


23133.089
125


23133.090
126


23133.091
127


23133.092
128


23133.093
129


23133.094
130


23133.095
131


23133.096
132


23133.097
133


23133.098
134


23133.099
135


23133.100
136


23133.101
137


23133.102
138


23133.103
139


23133.104
140


23133.105
141


23133.106
142


23133.107