Consider this posting a warning to everyone in the corporate governance field. I am not known for being a chicken little and screaming “the sky is falling, the sky is falling.” I tend to be a realist when it comes to politics and corporate governance.
So with this caveat in mind, here is my warning for the future. With the rise of the Chief Compliance Officer, come some important new responsibilities. Not just in a company but in the world of politics. Washington tends to follow rather than lead. In this case, Washington is following the compliance profession and the developments in the profession.
As a result, Washington will (if not already) become “knowledgeable” about the importance of ethics and compliance programs. If we look at the history of corporate governance principles and requirements, we can see that Washington can have a dramatic impact in this area.
Last decade when the economy was rocked by corporate accounting scandals, Washington turned to a familiar solution – mandate auditing requirements, improve internal financial controls and raise the bar on corporate accounting procedures. Sarbanes-Oxley had a dramatic impact on the auditing profession and the rest is history.
More recently, when we suffered our last economic shock from financial misconduct relating to the mortgage and securities industries, Washington reacted yet again with a dramatic Dodd-Frank law that revolutionized SEC regulation of the securities industry by expanding SEC and CFTC jurisdiction, established the whistleblower program, and added pages of regulations and risk management requirements for banks and other financial institutions.
Not that I am a negative person, but I am sure we will suffer future scandals and economic misfortune in the next couple of decades. History is replete with cyclical downturns and scandals and there is nothing to suggest we will avoid another one in the future.
The inevitable result of the next so-called “scandal” involving corporate misconduct will be legislation mandating compliance program requirements. Many may think this prediction is a big ho-hum, but hear me out.
Congress likes to “act” in response to a crisis and ethics and compliance will be its next panacea or solution for a financial crisis centered on corporate misconduct. When Congress acts, they usually have some idea of a concept but become enamored with the “solution” for politically expedient needs. Ethics and compliance is poised to be that next “solution.”
The federal sentencing guidelines set out some basic requirements and standards for an effective compliance program but Congress will legislate beyond that and impose more specific requirements. On the other hand, given the well-established warning that there is no one-size-fits-all solution to compliance, Congress’ ability to legislate a laundry list of specific requirements may be constrained somewhat.
In my view, the Justice Department’s Schedule C requirements for FCPA violators could easily be turned into a legislative requirement for companies big and small. If Congress legislates in this way, companies will have a bigger risk than ever – an ineffective compliance program by itself could constitute a violation of the law. That will be a new day for compliance and for every company.
All of this suggests that the compliance profession needs to begin a greater outreach and education program for Congress and other political leaders. The compliance profession needs to organize and push representation in Washington D.C. for this important purpose; otherwise, compliance officers could see new and unworkable legislative mandates on corporate ethics and compliance programs.
