California recall offers SEC lesson

Note to the Securities and Exchange Commission: Democracy isn’t such a dangerous thing — just look at what happened in California.

Were the SEC to take the California recall object lesson to heart, it might move more boldly to introduce democracy to America’s corporate boardrooms, where it is badly needed. Unfortunately, the SEC’s latest stab at reforming corporate governance is all but meaningless.

SEC commissioners have put out for public comment a set of proposals to make it easier for shareholders to nominate candidates for corporate directorships — to compete with those put forward by the board members themselves.

It’s critical because directors set corporate policies and hire and fire top executives. Do-nothing directors were at the heart of all the recent corporate scandals.

Currently, it’s practically impossible for unhappy shareholders to elect their own directors, since only the board’s nominees appear on the ballots, or proxies.

The SEC’s proposal offers a very small improvement by allowing a limited number of shareholder nominees to be placed on the ballot — one per election for companies with eight or fewer directors, two for those with nine to 19, three for those with 20 or more.

But before any such outsiders could even be nominated, a “triggering” would have to occur, “providing evidence of shareholder dissatisfaction with the effectiveness of the company’s proxy process,” the SEC said. Shareholder nominees could then get on the ballot the following year.

The trigger would be pulled if more than 35 percent of a company’s shareholders withheld their votes for directors to protest the board’s nominees, or if shareholders who together had held more than 1 percent of the company’s stock for at least a year requested a contested election, and if a majority of shareholders approved the request in a referendum.

Nominations could be made only by groups of shareholders that had owned more than 5 percent of the company’s stock for at least two years.

These hurdles are meant to prevent election of candidates beholden to “special interests,” which presumably refers to folks like environmentalists or union activists. Imagine if there were 20 candidates for each seat — any nut could be elected with a tiny plurality.

That, of course, was one of the big worries in California, where 135 names were on the ballot for governor last week.

But it didn’t happen. The vast majority of votes went to the major candidates. Right or wrong, the voters clearly wanted Arnold Schwarzenegger, and they got him.

If the SEC is truly concerned about splintered votes, there are better ways to assure that candidates must have broad backing to win.

If no candidate for a specific seat received a majority of the vote, there could be a runoff. In an instant runoff system, voters rank each candidate. In effect, that allows them to vote for their next-best choice if their top candidate doesn’t receive a majority. Other systems accomplish this goal by allowing the voter to cast ballots for more than one candidate.

In the end, though, the SEC’s concern about fringe candidates winning seats is overblown. At most companies, shareholders historically approve the board’s nominees and other ballot issues by wide margins, since shareholders assume managers and directors know best.

Small shareholders tend to be passive; large ones such as pension funds and mutual funds know what they’re doing when they vote their proxies. Boardroom anarchy is a nonissue.

What really concerns the SEC is the heavy pressure it is receiving from corporate executives and powerful business groups that oppose true boardroom democracy. Insiders have it good, rewarding themselves extraordinary pay and perks. They don’t want their boat rocked.

But a lot of smart outsiders think it’s time for change. This month, a group of 11 state and local pension-fund officials, who together oversee more than $640 billion in investments, denounced the SEC proposals, stating: “We are troubled that this opportunity for meaningful and lasting reform may be squandered.”

The SEC’s triggering requirements for outside nominations “will create nearly insurmountable barriers to the effective use of proxy access for major institutional shareholders such as ourselves,” the group wrote. “This would create the illusion of access and the appearance of reform without offering actual access or real reform.”

Sean Harrigan, president of the board of CalPERS, one of the country’s largest pension funds, boiled the objections down to the essence: “If we had triggers of the kind being contemplated, we would be getting to nominating new directors for the Enron board two years after the first scandal erupted.”

Moreover, under the SEC proposal to allow only a minority of seats to be contested in each election, it could take shareholders eight or 10 years to replace the entire board.

That’s not change, it’s the status quo.

The SEC needs to overcome its fear of insiders’ ire — and find a better way to let the shareholders who own America’s corporations decide who’s to run them.