Five Post-Election Points for CCOs to Ponder
Well, the American people, in their endless wisdom or lack thereof, elected Donald Trump to the White House and gave us a Congress even more deeply divided than before.
The post-mortems on what happened last night and what it means for the country will be many, and last for months. Compliance officers can get started with a few items that should be on your radar screen today.
Key lawmakers are gone, or busy
The most ardent opponent of regulation relevant to compliance officers (Sarbanes-Oxley rules, PCAOB powers, SEC disclosure efforts, and so forth) was Scott Garrett, a New Jersey Republican who sat on the Financial Services Committee and chaired the Sub-committee on Capital Markets. Garrett lost last night. What’s more, the vice-chair of the sub-committee is retiring—so we don’t know who might lead that panel just yet.
The chair of the House Financial Services Committee itself, Jeb Hensarling, is also a foe of all things regulatory. But Hensarling typically has gone after other targets, such as reforming Fannie Mae and Freddie Mac, or trying to kill the Export-Import Bank. Hensarling may try to push his Financial CHOICE Act during the lame-duck session. That legislation tries to curtail Dodd-Frank stress tests and to reform the structure of the Consumer Financial Protection Bureau.
Given the general dysfunction of Congress, however, and more pressing needs like agreeing to a budget, this bill is likely to go nowhere. So it all starts anew in 2017 under a presumed Trump Administration and new House leadership.
Remember the SEC nominees
We still have two nominations pending for the Securities & Exchange Commission: Lisa Fairfax, a Democrat; and Hester Peirce, a Republican. They were endorsed by the Senate Banking Committee last spring and have been in limbo ever since, held hostage as part of a larger Senate fight over corporate disclosure of political spending and other SEC-related issues.
Could the Senate now approve Fairfax and Peirce in the lame-duck session? Maybe, but the fights that left them in limbo still exist. If the Democrats who originally started this spat (by putting a hold on Peirce’s nomination) get spooked at whom a Trump Administration might nominate, that could break the logjam. Or Republicans might kill the nominations now and wait for new nominees in 2017.
Remember the SEC chairman, too
For a while people speculated that SEC Chair Mary Jo White might remain on the job into a Clinton Administration, mostly since the Senate might refuse to confirm anyone Hillary Clinton named as a replacement. OK, that scenario has passed—so who might Donald Trump nominate?
Honestly, nobody outside Trump circles has any idea. The next chairman needs to deal with Trump on the executive side and the liberal firebrand Sen. Elizabeth Warren on the Senate side. I can’t imagine anyone with the temperament to handle both people on a regular basis. I can’t imagine anyone intelligent enough to run the SEC would actually want the job under those circumstances.
CFPB, PCAOB remain in limbo
The SEC chairman also gets to decide the fate of the chair of the Public Company Accounting Oversight Commission. Let’s remember, PCAOB chairman James Doty has only been acting chair for a year now. His term formally expired last October. Mary Jo White decided to leave Doty in his job until the SEC is back to full complement of five commissioners—and lord knows when that might happen.
So Doty remains in his job either until he leaves the job on his own, or until a new SEC chairman names someone else to replace him. On a practical level that means the PCAOB will keep on doing what it’s doing, pressuring audit firms to be more skeptical during audits. Remember that next time you’re gathering evidence for SOX control effectiveness.
Meanwhile, Hensarling and others in Congress want to reform the CFPB so it has a bipartisan, five-person oversight commission like the SEC and other agencies. They also want to curb its rulemaking ability and its enforcement power. That might become more difficult now that the CFPB scored its high-profile win against Wells Fargo, but don’t put anything past Congress—especially infighting that breeds uncertainty but accomplishes nothing else.
None of this will matter any time soon
The plain truth is that Donald Trump isn’t qualified to be president. He is erratic and impulsive, and can’t focus his attention long enough to articulate a genuine policy framework like Corporate America needs to function in today’s economy. His slogans sound great, but that’s all he has.
That reality dictates a few consequences right away. First, he will need more time to pull together an administrative bureaucracy, since more people will be afraid to work for him. All those section chiefs, deputy assistant secretaries for policy, and the like—maybe smart people will eventually come to his team, but not at the beginning. Even Chris Christie, his alleged transition team director, just saw two top aides found guilty in a corruption trial.
Second, Trump will have other battles to fight, personally and politically. Let’s remember, our president-elect is facing a civil fraud trial less than three weeks. He may face more. Allegedly he’s under IRS audit, although if you believe that you need your head examined. He also promised to sue the women who say he sexually assaulted them.
We might also tumble into recession, thanks to the sharp market turmoil we’ll see this week and companies across America tapping the brakes on business plans while they wait to see what a Trump Administration does. And then will come the inevitable foreign policy crisis, as leaders elsewhere try to push Trump to see what they can get away with.
All of this means that the concerns of compliance officers, regardless of your political leanings, are so far on the back burner they might as well be in the deep freeze. The executive branch won’t be able to move on any concerns you have in a substantive way for quite some time. Look to the legislative branch first, but given the dysfunction we’ve seen there, don’t hold your breath.
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