Senators Elizabeth Warren (D-MA), Bob Menendez (D-NJ), Sherrod Brown (D-OH) and Brian Schatz (D-HI) urged SEC Inspector General Carl W. Hoecker to investigate actions taken by Acting Chair Michael Piwowar during his transitional appointment. In their letter, the Senators ask that Mr. Hoecker “determine whether [Piwowar’s actions] are legally permissible and in keeping with the SEC’s core mission.”
The Senators asserted that:
“[t]here is no evidence that any of these changes in the SEC’s course are desired, or have been sought, by the person nominated to be the next SEC Chair. At his confirmation hearing, SEC Chair-nominee Jay Clayton testified that he had not been consulted about Acting Chairman Piwowar’s change to enforcement policy, did not know enough to know whether it was appropriate to reopen the pay ratio rule, and had no specific plans to revisit any Dodd-Frank-mandated rules.”
The Senators requested that Mr. Hoecker investigate the following “questionable action[s]”:
- January 31, 2017 – a request that SEC staff reconsider the SEC 2014 guidance on the Conflict Minerals Rule (see previous coverage) – a decision, the Senators allege, that Commissioner Piwowar made “based exclusively” on stories he heard while visiting Africa;
- February 6, 2017 – a request for public comment on the Pay Ratio Rule (see previous coverage); and
- February 15, 2017 – “unilateral administrative action to ‘impos[e] fresh curbs on the agency’s enforcement staff, scaling back their powers to initiate subpoenas and conduct investigations of alleged financial misdeeds,'” as reported by The Wall Street Journal.
Lofchie Comment: As to the assertions of Senator Warren and her colleagues, please note:
- Section 4B of the Securities Exchange Act gives the SEC Chair essentially plenary power to direct the activities of SEC staff. There is no distinction in the Statute between the authority of an Acting Chair and a permanent Chair. Therefore, Acting Chair Piwowar has the authority granted to the Chair of the SEC by Section 4B.
- Contrary to the Senators’ concern that Chair Piwowar acted exclusively on the basis of his visit to Africa, Chair Piwower has stated consistently during his tenure at the SEC that the Conflict Minerals Rule diverts the SEC from its primary mission of protecting U.S. investors and strengthening the U.S. economy. Further, there are numerous studies, including studies by the U.S. Government Accountability Office, that suggest the Conflict Minerals rule (however well intentioned) does no good.
- Notwithstanding the Senators’ worry that Chair Piwowar’s action to reduce the subpoena powers of SEC staff reduces the powers of the SEC to conduct investigations, it in no way reduces the SEC’s authority. Rather, it centralizes the authority in more senior officers, which seems completely appropriate, given that the SEC’s issuance of a subpoena can be a material event that is very damaging to the recipient; for example, in the case of an individual, the person may be fired because that individual’s employer does not want the hassle or expense of dealing with the subpoena. Thus, Chair Piwowar acts quite appropriately in limiting the persons who have authority to issue subpoenas.
There is some degree of irony in Senator Warren’s criticism of Acting Chair Piwowar, since Senator Warren was relentlessly critical of former SEC Chair Mary Jo White. In fact, given the Senator’s former criticism of Chair White, a good argument may be made that Chair Piwowar is actually continuing, and not reversing, the policies of the prior Chair.