CHAIRMAN GREENSPAN & CORPORATE GOVERNANCE
 

     In an address at the Stern School of Business in New York on March 26, 2002 Alan Greenspan, not for the first and hopefully not for the last time, gave the American people a clear and sensible analysis of an important and pressing problem. He was addressing the need to restore public trust in the governance of corporations in the aftermath of Enron and Global Crossing. He suggested that the basis for a reliable system of corporate governance is either, “the current CEO-dominant paradigm” or “the only credible alternative is for large- primarily institutional – shareholders to exert far more control over corporate affairs than they appear to be willing to exercise.”  He chooses the “benevolent despot” – “[I]t seems clear that, if the CEO chooses to govern in the interests of shareholders, he or she can, by example and through oversight, induce corporate colleagues and outside auditors to behave in ways that produce de facto governance that matches the de jure shareholder-led model.”   

     Greenspan is in a unique position. In his seventy-seventh year, the Federal Reserve Board Chairman is seeking no favor from anyone. He is largely immune to the subtle and not so subtle influences of the corpocracy that is Washington, D.C. today. It is hard to name another leader with comparable credibility in matters financial. So it falls on him to expose the convenient lie of governance based on “independent” board members. This fiction has been convenient to everyone – the government can pretend that there is a functional system, until a crisis like Enron shrieks that the Emperor has no clothes. Individual directors are glad to be overpaid and over valued. CEOs are thrilled to be able to function as dictators while having available the myth of accountability to an “independent” board. As Chairman Greenspan puts it from an economist’s perspective, the system has survived – “For the most part, despite providing limited incentives for board members to safeguard shareholder interests, this paradigm has worked well.” The limited incentives have resulted in the board members functioning as creatures of the CEO, so Greenspan prefers to base the public interest on the familiar hope – the “benevolent dictator”. It is ironic that Americans have overwhelmingly rejected this hope in providing a legitimate base of our political systems. 

     If only men were angels. How many splendid creations have been developed from this premise? But, men are not angels, nor are CEOs any exception. Greenspan appears to take the unwillingness of institutions to inform and involve themselves more in corporate affairs as a controlling premise. Why, one might ask, should trustees, of all legal owners, be permitted by simple fiat to purge themselves of tiresome responsibility? Do we allow individuals, flesh and blood owners, unilaterally to disaffirm any responsibility for the impact of their possessions on society as a whole? As Adolph Berle said in addressing this problem some sixty five years ago, “If a horse dies, does not its owner have the obligation to bury it?” Further, it is clear that this disinterest of institutions to act as owner of the companies whose shares are held in trust portfolios is largely based on their conflicts of interest. The institutional owners are preponderantly financial conglomerates whose financing interests with corporations are apparently of greater value than functioning as trustee for their pension plans.  And yet the law of trusts is clear beyond dispute. Any conflict of interest must be resolved in favor of the beneficiary. Government at all levels in the UK and the US has failed to enforce this plain requirement of basic law. 

     The arrangements by which the majority ownership of America and Britain’s publicly traded corporations is held by trust institution was not an ineluctable product of history. The government in its interests in providing retirement income and safety in investing in mutual funds created these institutions. This government characterized the institutions as trusts and, thereby, gave assurance to beneficiaries that they could be confident their assets would be protected by, among other things, freedom from trustee conflict of interests. The unintended consequences of well-intended government action have resulted in the neutering of the majority owners of America’s publicly traded corporations. The “market” of ownership has, thus, been corrupted. Even the most rabid libertarian would not quarrel with the appropriateness of government acting to undo consequences created uniquely by government act. Simply, trust responsibilities must be enforced. The United Kingdom has faced up to this problem through adoption by the Labor Government of the recommendations of the Myners Report. 

     Happily, Chairman Greenspan’s remarks were delivered only days following publication of SEC Chairman Harvey Pitt’s assurance that from his perspective the law would henceforth be enforced. “…[T] he head of the Securities and Exchange Commission has asserted that money managers should view their corporate proxy votes as a fiduciary duty.”[1] In as much as the Department of Labor has long since opined (1985 or 1994, from speech to formal ruling) that Employee Benefit Plan Trustees have an identical obligation, we now have formal government assurance that the institutional reluctance so far as it obtains to pension plans and mutual funds  to which Chairman Greenspan pays such deference will no longer be tolerated.  

     The importance and value of shareholder involvement has been demonstrated dramatically in recent times in the cases of Solomon Brothers and Waste Management. In the first case, “owner” Warren Buffett took direct personal control of the enterprise, successfully negotiated with the government the continued ‘parole” of the company, and ultimately realized substantial profits for all shareholders. In the latter case, “owner” Ralph Whitworth of Relational Investors took on the Chairmanship in order to direct the recovery from the massive accounting frauds that have resulted in huge tort recoveries from Arthur Anderson and SEC initiated criminal proceedings against the principal officers. The continuing shareholders of WMX have profited. Contrast the situation characterized by governance based in “active owners” with the total losses for outsiders in Enron and Global Crossing. 

     Chairman Greenspan has identified the real alternatives. He has politely but firmly repudiated the conventional governance wisdom of the past twenty years. He has given us much to think about.