Rethinking the Structure of Accounting and Auditing Shyam

Rethinking the Structure of Accounting and Auditing Shyam Sunder Yale University Sixth International Conference of IAARF, Kolkata, January 11, 2003 Rethinking Accounting and Auditing

Corporate Governance and the Agency Problem • The Dutch and the British East India Companies chartered as joint stock companies four centuries ago to gather large amounts of capital for trade with the East • The agency problem: money of some people managed by others risks shirking and malfeasance • Recent major corporate failures highlight the imperfections of our governance system • Rethink our system of corporate governance— especially accounting, and auditing 9/15/2020 Rethinking Accounting and Auditing 2

Accounting and Audit Elements of the US Corporate Governance • Accounting rules • Organization to set accounting rules • Audit requirement with oversight of audit quality • Involvement of the board of directors in audit and financial reporting • A fifth related element: executive compensation 9/15/2020 Rethinking Accounting and Auditing 3

Accounting Rules • The law requires publicly held corporations to prepare and publish financial reports • Much of content of format is voluntary • Law requires internal controls and accounting system • Minimum standards of disclosure, detail, definitions, and measurement—collectively referred to as accounting rules 9/15/2020 Rethinking Accounting and Auditing 4

Organization to Set Accounting Rules • The statutory authority lies with the Securities and Exchange Commission (SEC) • The SEC delegates the task to privately finance Financial Accounting Standards Board, retaining the right to overrule the Board • All public corporations are required to comply with these accounting rules • International Accounting Standards Board is knocking at the door—kept out so far 9/15/2020 Rethinking Accounting and Auditing 5

The Audit Requirement • SEC requires the publicly-held corporations to obtain a certificate from a CPA on fair representation of their financial performance and status • Auditors held liable to shareholders and third parties for negligence in certification • American Institute of CPAs’ audit standards • July 2002 law to set up a new oversight board 9/15/2020 Rethinking Accounting and Auditing 6

Directors and Executive Compensation • New York Stock Exchange requires its listed companies to have a majority of the members of the board to be independent • Audit and compensation committees must consist of independent directors • Significant parts of executive compensation are made to be contingent on financial performance as measured by accounting and stock prices, especially stock options 9/15/2020 Rethinking Accounting and Auditing 7

Accounting as a Natural Language • Generally accepted accounting principles as dominant paradigm in accounting till 1972 – Accounting as natural language – Evolution by usage and consensus over time – Multiplicity of meaning and words – Flexibility and limitless variability – Authority derives from acceptance not power – No known natural language designed by man 9/15/2020 Rethinking Accounting and Auditing 8

Accounting as Designed Artifact • Designing rules through deliberation • Replacement of suggestive nature of research bulletins and opinions by standards and the power to punish any deviations • FASB: large budget, staff; no greater wisdom, less modesty in ability to devise better rules • Multiple criteria without aggregation function • Cost of capital missing as a criterion for rules • Consultative process but monopoly deprived it of natural selection necessary for evolution 9/15/2020 Rethinking Accounting and Auditing 9

Standards Become the Targets • FASB and its standards became the excuse for auditors to abandon their judgment, CEOs to demand to see the rule, and for both to demand additional clarifications • Bankers and managers, often with the help from auditors, devised transactions to go around the rules to frustrate their intent • Given time and money, IASB rules will catch up with the FASB rules in their detail 9/15/2020 Rethinking Accounting and Auditing 10

The World Improvises on the US Model • US model has been widely adopted, with adjustments, in various parts of the world • IASB is the most important imitation • A thick rulebook has come to be seen as a sign of advanced financial reporting system • Standard setters have a difficult task – No obvious criteria, trade offs among criteria, and assessment of consequences of a given rule – Receive mostly self-serving advice – Monopoly makes it difficult to gather evidence from the 9/15/2020 field Rethinking Accounting and Auditing 11

Standard Setting Approach • Advantage: Like a fire brigade, the board stands ready to deploy its expert resources to promptly address any reporting abuses • Disadvantages: cannot know the consequences of its proposed “solutions” – Difficult to anticipate the action-reaction sequence and the ultimate result – Poor correspondence between the intent and the consequences – Game theoretic analyses of motives, options and strategies is precluded by its public unacceptability 9/15/2020 Rethinking Accounting and Auditing 12

Permanent Rule Making Establishments • Encourage managers and auditors to demand more clarifications, instead of exercising their best judgment • No rational basis for denying clarifications • A permanent establishment needs demands for clarifications, or go out of business • Judgment about the overall fairness gets buried under the weight of compliance with the letter of detailed rules • No permanent establishment can promote rules over principles 9/15/2020 Rethinking Accounting and Auditing 13

GAAP Regime is Hard Work • Developing and sustaining GAAP requires judgment and discipline from managers, accountants, bankers, lawyers, analysts, etc. • It requires creativity, living with uncertainty • Respect for judgment and expertise, not authority • Natural languages are unmatched as means of communication • Comparison with common law vs. statutory law 9/15/2020 Rethinking Accounting and Auditing 14

Common Law Approach • Development in England through custom, acceptance and judicial precedent • From people, not experts • Their force arises from usage • Progressive replacement of common law by statutory thinking in financial reporting • Time to reconsider the merits of common elements • Would introduction of limited competition among alternative sets of accounting rules help? 9/15/2020 Rethinking Accounting and Auditing 15

Audit Requirement • Legal requirement to get the financial reports certified by an independent auditor • The audit franchise granted exclusively to the members of AICPA • Many corporations furnished audited financial reports before audit was required • Does the legal requirement create a better informed market, or better managed firm? 9/15/2020 Rethinking Accounting and Auditing 16

Voluntary Audit • Benefits: convincing the shareholders, creditors and tax collector of the reliability of representations made in financial reports • Costs: auditor fee, managerial cooperation, potential modifications in reports, even embarrassment, constraints of behavior • Managers and directors commissioned audits when advantages outweighed the costs • Voluntary audit is a valuable signal to outsiders • Contrary to its intent, statutory requirement shuts this signal off, thus leaving the outsiders less informed 9/15/2020 Rethinking Accounting and Auditing 17

Auditor Independence • Recent attention on the infringement of consulting on audit independence • Major audit firms have been forced to divest themselves of their consulting operations • But audit revenues also raise similar questions about auditor independence • Alternatives: audits by federal or state governments or stock exchanges, competition among states or exchanges • Firms choose to be incorporated/listed as an audited or unaudited corporation, letting shareholders discount 9/15/2020 Rethinking Accounting and Auditing 18

Independence and Competition in the Audit Industry • 1970 s: intense scrutiny of competition • Insufficient appreciation of links between competition and independence responsible for at least some of the recent problems • Two levels of analysis of their relationship • At one level, a mechanical relationship – A small number of larger firms are more independent and less competitive – A larger number of small firms are more competitive but less independent of their clients 9/15/2020 Rethinking Accounting and Auditing 19

On Way to Pursuit of Competition • After a quarter century long pursuit of competition, the US audit industry is down to only four major firms and weaker competition, and questionable independence • How did this come about? 9/15/2020 Rethinking Accounting and Auditing 20

A Thumbnail Sketch of the Collapse • Ninety years of antitrust laws and enforcement • These laws were not applied to the professions—including doctors, lawyers, accountants, and dentists • They kept anticompetitive clauses in the “Code of Ethics” of their respective professions 9/15/2020 Rethinking Accounting and Auditing 21

Professional Codes of Ethics • No advertising • No solicitation of competitors’ clients or customers • No solicitation of employees of competitors • Most professions justified such clauses in their rules of membership on the basis that they are necessary for “professional” behavior 9/15/2020 Rethinking Accounting and Auditing 22

Economics of Restrictions on Professional Competition • There were substantive economic arguments to justify restrictions of professional competition – Quality of professional services difficult to see – Customer/client depends on seller’s recommendation about what he/she should buy – Professional must incur time/effort to find out what the customer/client needs, must charge for it – Markets for professional services are prone to failure under free competition – Market for lemons (Ackerlof)—results would be even worse than the consequences of insufficient competition 9/15/2020 Rethinking Accounting and Auditing 23

Theory Makes a Difference • Economic arguments for deregulation • Stigler: robustness of competition paper • Answer to the “market for lemons”: the reputation effect as a counter to the lemons phenomenon • Focus on economic efficiency of the system 9/15/2020 Rethinking Accounting and Auditing 24

Status Quo Till 1977 • This was the status quo of competition in markets for various kinds of professional services in U. S. until the mid-seventies • Then came a decision from the U. S. Supreme Court • In 1977: U. S. Supreme Court ruling on Bates v. State Bar of Arizona, held that the restrictions on lawyer advertising violated the protections given free speech under the First Amendment to the US Constitution 9/15/2020 Rethinking Accounting and Auditing 25

Change in US Policy • The Supreme Court decision led to a change in the U. S. government policy on professional competition • Under pressure from the Department of Justice and the Federal Trade Commission, most professional associations, including the American Institute of CPAs deleted the anticompetitive provisions from their codes of ethics by the end of the seventies 9/15/2020 Rethinking Accounting and Auditing 26

Good Intentions, Bad Decisions • The intent behind this change in the government policy (and the Supreme Court decision) had been to obtain for the public the presumed benefits of competition among professions • The Court accepted the argument that, the risks of failure in the market for professional services are adequately counterbalanced by the tendency of the professionals to develop a reputation for the quality of services they provide • Over time, customer and clients learn about the reputation of the professionals, as the basis of those they choose to patronize • Reputation prevents market failure 9/15/2020 Rethinking Accounting and Auditing 27

Does Reputation Work? • In the case of doctors, at least the patient (or his family) know, after the treatment, whether the patient got better (even survived) • In the case of lawyers, at least the client knows, after the trial, whether the case was won or lost • These ex post observations are reasonably prompt and have at least a proximate correlation with performance They enable the doctors/lawyers to develop a more or less precise reputation with their patients/clients that serve as the basis of their own (and their acquaintances’ future decisions) 9/15/2020 Rethinking Accounting and Auditing 28

Generalizability to Auditors? • Unfortunately, this argument, applicable to lawyers and doctors and many other professionals, does not work for the auditors • The auditors’ customers—the shareholders and other third parties—cannot tell, even after the fact, if the auditor provided quality services for three reasons: – The rate of audit failure is less than 1 percent – The customers never see the auditor do their work – Firm’s decisions on hiring the auditor are made by managers who are the subject of the audit 9/15/2020 Rethinking Accounting and Auditing 29

The Fatal Flaw • Application of the reputation argument as the justification for competition in the market for auditing was fatally flawed • With very low failure rate, and absence of direct contact and observability by the customers, it is not possible for auditors to develop meaningful, and accurate reputation with the shareholders in any reasonable length of time • Under the pressure of free competition, the market for auditing broke down—a market for lemons 9/15/2020 Rethinking Accounting and Auditing 30

Audit Market Breakdown • Clients actively played audit firms against one another to lower their audit fees • The amount and quality of the work done by the auditors was not observable to the clients • Competition for audit services would not sustain a price to make auditing self-supporting • Auditors responded by a new business model to survive in this cut rate environment 9/15/2020 Rethinking Accounting and Auditing 31

Revised Business Model of Audit Firms • Aggressive pricing of audit services • Cut labor intensive substantive testing, and replace it by cheaper analytical reviews • Use audit service as “foot in the clients’ door, ” to sell consulting services • Share consulting revenue with audit partners • Use consulting revenue to pay for any additional audit liability coverage arising from reduced substantive testing • Reduce the pay for fresh graduates 9/15/2020 Rethinking Accounting and Auditing 32

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Consulting: A Consequence, Not the Cause of Failure • In the debate on consulting services over the past decade, they have often been portrayed as the cause of failure of audit market by depriving auditors of their independence • Instead, auditors turned to consulting services to earn a living when they found that they could not do so from audit services 9/15/2020 Rethinking Accounting and Auditing 35

Large Liabilities • The strategy of de-emphasizing substantive testing led to some spectacular audit failures, especially in the savings and loan banking industry in the mideighties • Audit firms paid large court judgments or out-ofcourt settlements • Drop in number and quality of students going into accounting majors • Mid-course correction was needed to restore profitability 9/15/2020 Rethinking Accounting and Auditing 36

Number of Settlements of Claims Against Auditors 9/15/2020 Rethinking Accounting and Auditing 37

Amounts of Settlements Against Auditors 9/15/2020 Rethinking Accounting and Auditing 38

Joint and Several versus Proportional Liability • The auditor liability had been joint and several; if other defendants could not pay, auditors had to pay their share • A political strategy to change the law to proportional liability • Financing of elections as the lawyers and doctors had done for many years to advance their interests • Payoff: Private Securities Litigation Reform Act, 1995 9/15/2020 Rethinking Accounting and Auditing 39

Accountants’ Contributions to Political Campaigns 9/15/2020 Rethinking Accounting and Auditing 40

Accountants’ Contributions to Political Campaigns 9/15/2020 Rethinking Accounting and Auditing 41

Accountants’ Contributions to Political Campaigns Electi on Cycle Ran k† 2002* 27 2000 28 1998 26 1996 21 1994 23 1992 29 1990 27 Total 9/15/2020 27 Total Contribut ions Contributi ons from Individual s Contributi ons from PACs Soft Money Contributi ons Donatio ns to Democr ats Donation s to Republic ans % to De m 27 $7, 8 $2, 2 $3, 3 $2, 2 $2, 1 $5, 6 $14, 8 $7, 0 $5, 1 $2, 6 $5, 7 $4, 5 $1, 4 $3, 6 $5, 0 $4, 7 $1, 5 $4, 6 $2, 6 $3, 6 $6, 3 $3, 2 $2, 4 $0. 5 $3, 1 $1, 3 $1, 7 N/A $59, 7 $24, 9 % 39 % 41 % 50 % 54 % 50 % 41 42 % $9, 4 $11, 2 $6, 9 $3, 4 $0. 6 Rethinking Accounting and Auditing $25, 6 $9, 0 $8, 9 $5, 7 $6, 5 $3, 4 $3, 3 $2, 9 $1, 5 $24, 5 $34, 8 % to Rep ub 72% 61% 59% 46% 50% 58%

1995 Legislation • For auditors: switch from joint and several to proportional liability – Reduced and less uncertain liability • For corporate management: forward looking statements under safe harbor rule – Freedom to issue unverified (unverifiable) information in financial statements as long as it was marked forward looking • The only instance during Clinton’s eight year presidency when his veto was overturned by the Congress (election financing) 9/15/2020 Rethinking Accounting and Auditing 43

New Business Model • The 1995 legislation, with a 1994 Court ruling exempting advisors from liability for aiding and abetting securities fraud, implemented the new business model of auditors – Key elements: intense competition, low audit fees to get in, fast growing high margin consulting business for profits • Audits discarded in favor of “assurance services” • Audit partners pressured to sell consulting services – Many old time auditors quit, instead of selling consulting • Internal reorganization of power and responsibilities – E. g. , Arthur Andersen transferred the final authority on accounting matters from headquarters specialists to the local partners 9/15/2020 Rethinking Accounting and Auditing 44

The Happy Days • In 1999, the Securities and Exchange Commission saw the adverse consequences, but wrongly identified consulting services as the culprit, and tried to stop consulting • Audit industry beat back the effort with political help from the Congress (settled for disclosure of consulting fees) • Extensive failures of corporate audits are the results of this 25 -year chain of events • Auditors had become the perpetrators, the short term beneficiaries and ultimately the victims of the dotcom bubble • The well meaning government policy to encourage competition in Rethinking the industry pushed it to collapse 45 9/15/2020 Accounting and Auditing

Executive Compensation • Aligning the interests of managers with the interests of shareholders is a fundamental challenge of corporate governance • Since managerial contributions to the firm cannot be observed, and managers control the resources and information of the firm, there is ever-present moral hazard • Accounting reports were designed to measure corporate performance to evaluate managers—contingent rewards • But accounting measures have well-known weaknesses • Solution: use market-based measures 9/15/2020 Rethinking Accounting and Auditing 46

Assumptions Behind Market. Based Compensation • Markets are efficient (not subject to manipulation by managers) – In spite of the support it enjoys in accounting academia, the assumption is false • Financial reports are hard, based on unique accounting standards and incorruptible auditing – Again, a false assumption • Governance mechanism to grant equity-based compensation is beyond manipulation – Yet another false assumption 9/15/2020 Rethinking Accounting and Auditing 47

How Did Executive Compensation Soar? • Director’s compensation committees controlled by executives • Annual survey techniques of executive compensation consulting firms • Flexible accounting standards (not bad with vigilant analysts and investors) • Auditor under pressure, controlled by managers • Highly leveraged options, one-sided • Skewed accounting for stock options • Result: top to bottom ratio changed from 40 to 50048 9/15/2020 Rethinking Accounting and Auditing

Incentives to Manipulate • With increased compensation, and increased dependence of compensation on accounting and market measures, incentives to manipulate accounting and stock prices rose • If the governance, accounting and auditing were rock solid links, it would not matter • But they are not beyond manipulation • Attempts to better align manager and shareholder interests also resulted in more manipulation by managers 9/15/2020 Rethinking Accounting and Auditing 49

Accounting Standards • Uniformity and comparability of accounting standards has become sacred • Monopoly of standards in U. S. and many other jurisdictions • Elimination of signaling function of accounting in a world of flexible standards • Standardized financial reports give more information in one sense, but less information in another 9/15/2020 Rethinking Accounting and Auditing 50

Perspective on Events of 2002 • We can choose to view the events of 2002 as bad behavior by some individual managers, auditors, directors, lawyers, investment bankers, politicians, etc. • Alternatively, we can see them as a chain a related events, arising from bad policy • We pushed competition into a market that is not able to sustain competition because of ex ante or ex post unobservability of the quality of service provided 9/15/2020 Rethinking Accounting and Auditing 51

What Are We Doing? • Sarbanes-Oxley Act, 2002: – Creates a Public Company Accounting Oversight Board (there is little reason to think that this regulatory body would not, over time, be captured by the industry it is supposed to regulate) – Prohibits auditors from providing certain non-audit services to their audit clients (the Act incorrectly assumes that such services were the cause, not the consequence, of audit market failure) – Requires audit partner rotation every five years (will rotated partners be more or less vigilant? Collusive? ) 9/15/2020 Rethinking Accounting and Auditing 52

Sarbanes-Oxley Act, 2002 • Auditor reports to the audit committee • Audit committee of independent directors with at least one expert • Corporate responsibility for financial reports • Forfeiture of bonuses/profits • Disclosures of adjustments, OBSF, SPE • Personal loans to executives 9/15/2020 Rethinking Accounting and Auditing 53

The New Act • Disclosure of trades within 2 days (why not advance notice of one week? ) • Conflict of interest rules for financial analysts • Increased appropriations for SEC • Minimum standards for attorneys • Audit work papers for 5 years • Whistle blower protection • White collar crime penalty enhancements • SEC: annual and quarterly reports in 60 -45 days 9/15/2020 Rethinking Accounting and Auditing 54

Effectiveness of New Measures • It is doubtful if any of these measures, aside from the promise of adequate staffing of SEC and enforcement of existing laws, will have any significant impact on the auditing and accounting problems • These ‘fixes” do not deal with the root causes • What are the root causes? 9/15/2020 Rethinking Accounting and Auditing 55

Areas of Concern • Financial reporting standards: monopoly versus competition • Market for audit services: breakdown under pressure of competition • Insurance approach to audit market • Corporate governance and qualifications of directors • Control principle: choose rules to bring expected behavior in line with self interest 9/15/2020 Rethinking Accounting and Auditing 56

Financial Reporting Standards • U. S. monopoly of FASB, spreading to Europe and elsewhere • Difficulty of assessing what is a good rule • Cost of capital criterion • Use market competition among standards to determine which rules lower the cost of capital of the firm empirically 9/15/2020 Rethinking Accounting and Auditing 57

Regulatory Competition in Accounting Rules • Each jurisdiction permits two or three sets of accounting standards • Each firm chooses one set of standards • Pays a fee to the standard-setting body • Standard setting bodies compete like the stock exchanges, university accreditation, and appliance certification bodies do • Will result in better standards which will lower the cost of capital 9/15/2020 Rethinking Accounting and Auditing 58

Market for Audit Services • Cannot bear the burden of full competition • Choose one of two solutions – Allow auditors relief from antitrust laws (no advertising, solicitation, etc. ; politically difficult – Combine audit and insurance into one packet 9/15/2020 Rethinking Accounting and Auditing 59

An Insurance Solution • Each public firm is free to buy (or not buy) any amount of financial misrepresentation insurance, and indicate the amount of coverage bought in its report • The insurer examines the financial reports and charges a premium • The firm adjusts how much insurance to buy • Investors adjust how they process the information based on how much insurance is provided 9/15/2020 Rethinking Accounting and Auditing 60

Pros and Cons of the Insurance Solution • Quality of audit services internalized by the insurance firm • No external regulation necessary to monitor audit quality which is difficult anyway • Will need an accounting court to settle insurance claims—whether the financial reports made a fair representation • Audit will be driven by economic, not regulatory considerations 9/15/2020 Rethinking Accounting and Auditing 61

Corporate Governance and Directors • Recent emphasis on independence • Also need competence, industry knowledge, contacts, and management’s trust • Criteria are often in conflict with one another • How do we find directors who will have all these qualifications • College professors? Unfortunately not 9/15/2020 Rethinking Accounting and Auditing 62

Minority Directors • Instead of framing it as a problem of independence, frame it as directors to represent the minority shareholders • Have separate slate selected only by the minority holders • More nominations than slots to make it a real election • Better information to shareholders about the behavior of directors when they serve on the board 9/15/2020 Rethinking Accounting and Auditing 63

Executive Compensation • Giving incentives to corporate managers to work hard, and aligning their incentives with shareholders does not come for free • It has its own cost • Agency theory: we can only get a second best solution, not the first best solutions • Scale back on incentives towards more fixed pay • Fire those who do not measure up 9/15/2020 Rethinking Accounting and Auditing 64

Summary • The recent collapse of accounting and auditing requires careful analysis of root causes • Bad people or bad policies? • Need to think of alternative solutions, e. g. , – Competition for accounting standards – Reduce competition in audit market or bundle with insurance – Minority directors with real elections and better information for shareholders about directors – Scale back on performance-contingent managerial compensation • Think of even better alternative approaches 9/15/2020 Rethinking Accounting and Auditing 65

Thank You http: //www. som. yale. edu/faculty/sund er/research. html Shyam. sunder@yale. edu Rethinking Accounting and Auditing