The Public Company Accounting Oversight Board (or PCAOB) (sometimes called "Peekaboo") is a private-sector, non-profit corporation created by the Sarbanes-Oxley Act, a 2002 United States federal law, to oversee the auditors of public companies. Its stated purpose is to 'protect the interests of investors and further the public interest in the preparation of informative, fair, and independent audit reports'. Although a private entity, the PCAOB has many government-like regulatory functions, making it in some ways similar to the private Self Regulatory Organizations (SROs) that regulate stock markets and other aspects of the financial markets in the United States.
Part of the PCAOB's power to set rules of the auditing industry includes the power to regulate the non-audit services that audit firms may offer their audit clients (such as consulting or tax services). This power was given to the PCAOB as a result of allegations, in cases such as Enron and Worldcom, that auditors' independence from their clients' managers had been compromised because of the large fees that audit firms were earning from these ancillary services.
In addition, as part of the PCAOB's investigative powers, the Board is empowered to require that audit firms, or any person associated with an audit firm, provide testimony or documents in its (or his or her) possession. If the firm or person refuses to provide this testimony or these documents, the PCAOB may suspend or debar that person or entity from the public audit industry. The PCAOB may also seek the SEC's assistance in issuing subpoenas for testimony or documents from individuals or entities not registered with the PCAOB.
The PCAOB was created in response to an ever-increasing number of accounting "restatements" (corrections of past financial statements) by public companies during the 1990s, and a series of high-profile accounting scandals and record-setting bankruptcies by large public companies, notably those in 2002 involving WorldCom and Enron. Prior to the creation of the PCAOB, the audit industry was essentially self-regulated through the Public Oversight Board, a private organization whose members were appointed by the auditing industry. The Public Oversight Board was formally dissolved on March 31, 2002, though its members had resigned en masse in January 2002 to protest then-SEC Chairman Harvey Pitt's proposal for a new private auditor oversight body to regulate the industry (a proposal which would evolve into the PCAOB).
Appointment of first PCAOB chairman
The first chairman of the PCAOB was William H. Webster, a prominent lawyer and former director of both the FBI and CIA. This appointment was controversial, however, for while Webster was widely recognized for his integrity and intellect, two of the SEC's five commissioners believed that SEC Chairman Harvey Pitt had not properly vetted the candidates or consulted with them on the appointment (and, indeed, had previously agreed with them on appointing TIAA-CREF chairman John Biggs as PCAOB chairman). In one of the most contentious SEC public hearings in recent memory, these two commissioners (Harvey Goldschmid and Roel Campos) publicly criticized the process of the appointment (though not Webster himself). Webster nonetheless was approved by the SEC by a 3-2 vote to become the PCAOB's first chairman. An audio recording of this contentious October 25, 2002 SEC public hearing at which Webster's nomination was voted on (and debated) can be listened to here
Just a few weeks after Webster was appointed to the PCAOB, however, another controversy erupted when newspapers reported that Webster had served on the board audit committee of U.S. Technologies, a high-tech company being investigated for accounting irregularities. Pitt, whose tenure as SEC chair had already proven controversial, found himself in an untenable position. One of the claims made by Goldschmid during the rancorous October SEC hearing was that the candidates put forward by Pitt had not been properly vetted. Goldschmid's criticisms seemed prescient, and this, combined with other pressures, led Pitt to announce his resignation from the SEC on election day (November 4, 2002). Webster himself announced his resignation from the PCAOB a week later.
Constitutional challenge to PCAOB
In February 2006, the Free Enterprise Fund and Beckstead and Watts , LLP (a small Nevada-based accounting firm) filed a lawsuit in federal court challenging the constitutionality of the PCAOB. According to the lawsuit, the provision of the Sarbanes-Oxley Act establishing the PCAOB violates the "Appointments Clause" of the U.S. Constitution, since the PCAOB members should be viewed as "officers of the United States" because of the public purposes PCAOB serves, and, as such, must either be appointed by the President of the United States, with the advice and consent of the U.S. Senate, or by the "head" of a "department," whereas PCAOB's board is appointed by the SEC, rather than by the Chairman of the SEC. The lawsuit also challenged the PCAOB as violating the Constitution's separation of powers, since the organization has quasi-executive, -legislative- and -judicial functions.
On August 22, 2008, the U.S Court of Appeals for the District of Columbia Circuit upheld the PCAOB as constitutional. The court found that board members are inferior officers not required to be appointed by the President, and that the President retains sufficient control of the Board via the SEC that the Board does not violate the separation of powers. Lawyers for the plaintiff have said they intend to appeal the decision.
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