Segment 1 Of 2 Next Hearing Segment(2)
SPEAKERS CONTENTS INSERTS
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THE ENRON COLLAPSE: IMPLICATIONS TO INVESTORS AND THE CAPITAL MARKETS
MONDAY, FEBRUARY 4, 2002
U.S. House of Representatives,
Subcommittee on Capital Markets, Insurance
and Government Sponsored Enterprises,
Committee on Financial Services,
Washington, DC.
The subcommittee met, pursuant to call, at 2:10 p.m., in room 2175, Rayburn House Office Building, Hon. Richard H. Baker, [chairman of the subcommittee], presiding.
Present: Chairman Baker; Representatives Shays, Cox, Paul, Bachus, Castle, Royce, LaTourette, Shadegg, Weldon, Ryun, Biggert, Ose, Ferguson, Oxley, ex officio; Kanjorski, Ackerman, Bentsen, Sandlin, Maloney of Connecticut, S. Jones of Ohio, Sherman, Inslee, Moore, Gonzalez, Lucas of Kentucky, Crowley, Ross, and LaFalce, ex officio.
Also Present: Representatives Leach, Capito, Tiberi, Frank, Watt, and Jackson-Lee.
Chairman BAKER. I would like to call this hearing of the Capital Markets Subcommittee to order. Today's purpose is to continue the subcommittee's work with regard to the matter of Enron.
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In order to prepare for the hearing today, I wish to announce by prior agreement the method by which the subcommittee will proceed with regard to opening statements. After consultation with Mr. Kanjorski and others, we would have a 30-minute block of time for each side, proceeding in regular order, in which Mr. Kanjorski would manage his 30 minutes. I will manage our side, and we would do a similar pattern not only for today's hearing, but for tomorrow as well.
And I make that announcement for those who offer opening statements today; you would not then be subsequently authorized for an additional opening statement tomorrow to give as many Members as is possible the chance to be heard at the outset of today's hearing and tomorrow's hearing. Without objection, that process is adopted for opening statements.
I wish to further acknowledge that Members are in participation today who are not Members of the Capital Markets Subcommittee, but are Members of Financial Services generally; and also to recognize Ms. Jackson-Lee, who is sitting as an additional Member of the panel today to participate as appropriate in the proper order of recognition.
I wish to also announce by way of process for those who will be heard here today with no implication from the citation being sent inappropriately, except as otherwise provided in this section, whoever in any matter within the jurisdiction of the legislative branch of Government knowingly and willfully falsifies, conceals, covers up by any trick, scheme or device a material fact, makes any materially false, fictitious or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement shall be fined under this title or imprisoned for not more than 5 years or both. This is to make clear in the record that non-responsive or misleading answers to questions posed by Members of this panel are indeed serious offenses and will be dealt with appropriately.
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Chairman BAKER. I yield to the gentleman.
Mr. KANJORSKI. Mr. Chairman I understand the Chair is attempting to exercise its prerogative, but under clause 2(k)(8) of Rule 11, the subcommittee's prerogative is to decide whether witnesses should be sworn in at a hearing. It is not the prerogative of the Chair. Under those circumstances, Mr. Chairman, I would like to ask unanimous consent that it be the policy of this hearing and all future hearings that all witnesses be sworn in.
Chairman BAKER. I appreciate the gentleman's perspective. We had discussed how we would proceed in advance of the commencement of the hearing today, and it was my recommendation to the subcommittee that we not swear in witnesses today and that we move appropriately through the course of our inquiry in making a determination as to when that requirement may be imposed.
Mr. KANJORSKI. Mr. Chairman, I understand that, but that is the exercise of a prerogative. As I suggested to you under clause 2(k)(8) of Rule 11, that is not the prerogative of the Chair. I have a motion before the subcommittee to make it a rule that all witnesses before this subcommittee be sworn in.
Chairman BAKER. If the gentleman will restate his motion, is it a unanimous consent request?
Mr. KANJORSKI. I make it in the form of unanimous consent, but if that is not satisfactory to pose it that way, I will make a motion that it is the position of the subcommittee. I ask for a recorded vote that all witnesses appearing in this matter before this subcommittee be subject to being sworn in.
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Chairman BAKER. I understand the gentleman's point. I would object to the unanimous consent resolution, understanding that the gentleman has now placed before the subcommittee a motion which would require the subcommittee to proceed by the swearing in as it relates to consideration of matters relating to the Enron resolution.
That being the question before the subcommittee, the question now occurs—we need to have a clerk at the desk to record the proceedings here. We have to wait momentarily. We have gotten ahead of ourselves.
Is there somebody that wishes to be recognized?
Mr. INSLEE. Yes.
Chairman BAKER. Mr. Inslee.
Mr. INSLEE. May I be heard on the motion briefly?
Chairman BAKER. Yes, certainly.
Mr. INSLEE. Mr. Chairman, we want to have a bipartisan approach to this, and you have always acted in the spirit of that, so we don't want to get off to a partisan—but I'm trying to understand why the Chair would not think it appropriate in this matter of great public moment to swear witnesses, particularly where quite a number of people who will be testifying to us have potential civil and criminal exposure; and it seems to me that when people have that looming over their heads, if Congress really wants to get down to the truth, it might be better to make sure they are under oath.
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Mr. BACHUS. Would the gentleman yield?
Mr. INSLEE. Yes.
Chairman BAKER. If I may respond to the gentleman's question first, and then I will recognize Mr. Bachus, I merely read the statute which acknowledges that it is already inappropriate to misrepresent to a subcommittee of Congress to an extent a 5-year criminal penalty will ensue.
Secondarily with regard to the gentleman, with regard to those individuals who are believed to be participants in the wrongdoing of this matter, I felt it inappropriate where we are getting assistance from others who are not participants—as in the case of the Chairman of the Securities and Exchange Commission, who appears here to help the subcommittee voluntarily and is not a participate in the Enron failure, I felt that that was not an appropriate step in light of the statutory requirements and the distinction between the enforcement of the existing law and the swearing in of a witness.
But that is the answer to the gentleman, and I yield back.
Mr. INSLEE. I will yield to the gentleman.
Mr. BACHUS. I will simply say, bottom line, Chairman Pitt is not under investigation. And the tradition of the House is to swear witnesses in when they or the organization they represent are under investigation, and I don't think at this time that any Member of this subcommittee wants to make a determination or take any action in any regard that indicates that Mr. Pitt is guilty of any wrongdoing. The subcommittee is under——
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Chairman BAKER. It is Mr. Inslee's time.
Mr. INSLEE. I yield to Mr. Kanjorski.
Mr. KANJORSKI. Mr. Chairman, I certainly have the highest regard for Mr. Pitt and for many, many of the witnesses that are here. Quite frankly, I do not know who is responsible for the Enron debacle.
I thought the purpose of this hearing was to find out the facts and circumstances. Quite frankly, I am enraged—enraged—with the rush to judgment of the media and some of the Members of Congress, both in the House and the Senate, that I have observed over the last several weeks.
The purpose for this hearing, as I understand it, is to get to the question of what the facts are. What happened? Was there any public policy, rules, regulations or laws that should have stopped this from happening? Were they inadequate? Were there loopholes that need to be closed? Is there any action that we should take in the legislative form?
We are not a grand jury. We are not a trial court. I can tell you that I have made no judgment. I do not know whether the facts and circumstances will indicate if something went wrong, whether it was wrongdoing, or whether it was criminal or civil liability. I do not know if anything went wrong.
All I want to say is: Anybody who comes in here and gives this subcommittee facts on the record should not, in any way, object to taking an oath. It will assure us that they not only will be subject to the penalties enunciated in the statute that you read from, but they also will be subject to perjury if they do not relate the facts correctly. I think we should implement a policy that everybody coming before this subcommittee will be subjected to an oath, and perhaps even a subpoena if that is necessary. I will support that.
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I think what we want to have is a very bipartisan effort not to rush to judgment or conclusion on any matters. But, to suggest that because someone is an official——
Chairman BAKER. The gentleman's time has expired.
Mr. Ose.
Mr. OSE. Thank you, Mr. Chairman. I am curious. Is there an expectation that Mr. Pitt is not going to tell us the truth?
Mr. KANJORSKI. Not on my part.
Mr. OSE. What is the purpose of swearing him in?
Mr. KANJORSKI. If I may respond, I have no expectations that any particular witness who comes before the Congress of the United States does not intend to tell the truth. But, I have had experience over the last 17 years in the Congress, knowing full well that sometimes witnesses have been brought before Congress whose testimony has been questionable. They unfortunately did not quite fall under the standard and the capacity of enforcement as enunciated in this statute, but could have been prosecuted under perjury. If we are going to decide——
Mr. OSE. If I may reclaim my time, this gentleman has been confirmed by the Senate as the Chairman of the Securities and Exchange Commission. My question remains. Is it the expectation of some that he is not going to tell the truth?
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Mr. KANJORSKI. Is it not the case that the committees of Congress have had Presidents of the United States, who have been elected by all of the people in the United States, testify before Congress under oath?
Mr. BACHUS. Would the gentleman from California yield?
Mr. OSE. I reclaim my time and yield to the gentleman from Alabama.
Mr. BACHUS. Let me say this. This subcommittee has not traditionally, and it is not our normal practice to swear in witnesses who testify before us. If we are going to start doing that today, then we need to swear in every witness at every hearing, and we need to make a decision if we are going to do that. And if we do that, we will be departing from our tradition, and our tradition is to swear people in when they are under investigation, when there was a question that they may have committed wrong.
That is certainly not the case today. Mr. Pitt is not under investigation. If we swear him in, we will be changing our procedure.
Mr. KANJORSKI. Will the gentleman yield?
Mr. BACHUS. Do you acknowledge that?
Chairman BAKER. It is Mr. Ose's time. He would have to answer.
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Mr. OSE. I would be happy to yield to the gentleman from Pennsylvania.
Mr. KANJORSKI. I just want to say I do not know how many Members of the subcommittee have been here as long as I have. Sometimes I have the assumption that everybody has been here as long as I have. But, I went through the Whitewater hearings, and to the best of my recollections, I remember that we did swear in all witnesses regardless of who they were, where they came from, or who were their appointing authorities.
I do not want to, in any way, suggest that I do not expect Mr. Pitt will be truthful. He is an honorable man. He is a lawyer. How could he be anything other than an honorable man?
Mr. OSE. If I could reclaim my time, two out of three isn't bad.
Mr. BACHUS. We swear in witnesses for investigative hearings. This, as such, is not an investigative hearing.
Mr. KANJORSKI. We are not investigating?
Mr. BACHUS. It is not an investigative hearing. It can be, but it is not.
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Mr. KANJORSKI. What type of hearing is this, may I ask? Maybe I prepared incorrectly.
Mr. BACHUS. The House has its definition and rules and this does not fall into that category.
Mr. OSE. If I may reclaim my time.
Chairman BAKER. You have 2 minutes and 15 seconds, if you would be happy to share with me.
Mr. OSE. I would be happy to share with the Chairman.
I would be happy to swear Mr. Pitt in if I have some evidence that he is not going to tell the truth, but if he is going to tell the truth, I am not so sure that I need to swear him in.
Chairman BAKER. Would the gentleman yield?
Mr. OSE. Certainly, I would be happy to yield.
Chairman BAKER. Thank you, Mr. Ose.
To try to get us on point here, this hearing at the outset was to be a solution to the systemic problems created by the Enron failure. It is not, as Mr. Kanjorski noted, a criminal proceeding nor are we in a prosecutorial setting. The gentleman has made the absolute correct observation that we are assuming that people are innocent until they are proved guilty here; and to that end, we are only to require, at my suggestion, those who have some clear, defined role in the events of the Enron failure potentially to the swearing-in requirement.
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In light of the fact there exists a statute which says, if you sit in front of that microphone and say something that is not true, you can go to jail, now, that is pretty clear; so I am hoping that that level of confidence will instill the subcommittee for us to move quickly to resolution, since I have now expired your time, Mr. Ose. And I appreciate your courtesy.
Mrs. JONES. Mr. Chairman.
Chairman BAKER. If I may move next to Mr. LaFalce, and he can decide the time. You are recognized for 5 minutes, sir.
Mr. LAFALCE. I thank the Chair, and I am going to suggest a compromise, because I think it is important that our subcommittee proceed in a very bipartisan fashion. And the Chairman of the subcommittee has exercised his prerogative and the Ranking Member has exercised his prerogative to have it the way he thinks would be best, but what is most important is that we proceed to discern not just the Enron problem, but the systemic problems that gave rise to Enron, and we devise some legislative regulatory scheme that can prevent future Enrons.
A year ago, as you recall, I opposed strongly the reduction in the SEC fees bill, because I thought and called for an increase in the budget of the SEC of some 300 percent. Had we given more time and attention to the systemic problems that I was pointing out at that time, perhaps Enron would not have happened, but that is history.
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What I am going to suggest is that with respect to the Chairman of the SEC, he be asked if he realizes the existence of the law that the Chairman of the subcommittee just read off, and if he realizes that any wrongful testimony would subject him to the laws of perjury just the same as the swearing-in would; and that with respect to private sector parties who might not be as aware of the law, that they be sworn in if their testimony relates to the Enron situation.
So we would distinguish between public officials and private sector parties, so that Mr. Pitt would not have to be sworn in, but he would acknowledge that he understands the law and that any deliberately willful testimony of his would subject him to the laws of perjury; and that all the other future witnesses would be sworn in.
I offer that as I compromise, Mr. Chairman.
Chairman BAKER. I thank the gentleman for his offering.
Does Mr. Kanjorski wish to opine?
Mr. KANJORSKI. May I have some time to respond?
Chairman BAKER. Yes.
Mr. KANJORSKI. I love my Chairman and my Ranking Member. I believe compromise is excellent, but this is not the reason for my asserting the right to have a motion to swear in witnesses that appear before us.
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This individual is among the first witnesses that will appear before this subcommittee over months and months in the future. We do not know who the others will be or what offices or authorities they might come from. It just seems to me that to the maximum extent possible we ought to treat them all uniformly. There is no more reason not to swear in Mr. Pitt than there is reason to swear in Mr. Powers.
Are we suggesting that if you are an expert and dean of a law school that your understanding of the law, or intention to avoid it, is any greater than if you are a public official? I do not believe so. Rather than us making predetermined conclusions as to the veracity of potential witnesses, all we should do is protect ourselves by uniformly making the rule that all witnesses in this matter, who come before the subcommittee to give testimony and will ultimately be publicized across America, be subject to being sworn in.
I think that is the most rational conclusion. Quite frankly, this motion is not intended in any way to be a partisan effort. I am putting this idea forward based on my own experiences. I have gone through the Whitewater hearings, in this committee and the Government Reform Committee, that stretched over 2 1/2 or 3 years. Never did I suggest that a witness in those matters should not have been sworn in. They all were, and properly so.
Moreover, when the Energy and Commerce Committee had hearings on the tobacco matter, it had five or six presidents from some of the major corporations in America. It was very embarrassing, but they were sworn in. I find nothing wrong with that. Ultimately that proved very important that they subjected themselves to an oath, because if they had not, the question of whether or not they could have been prosecuted in that matter would have been compromised.
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So, rather than making this a big to-do, I have made my motion. It is not the prerogative of the Chair to make this decision, but it is the prerogative of the full committee. Mr. Chairman, I suggest we call a vote on the full committee and those who do not want people sworn in, vote against it. I feel very secure in saying to everyone out here and every future witness, I hold no ill-will against anyone. I think you all intend to do the best and tell the truth, but I still like the protections of your testimony under oath.
Chairman BAKER. I thank the gentleman.
Mr. Chairman, Mr. Oxley.
Mr. OXLEY. Thank you, Mr. Chairman.
I would simply point out, when we had the first hearing in the Congress on Enron in December, the witnesses were not sworn in; and that was a joint hearing, if you will recall, between your committee and the Oversight Committee. And if there is ever a committee that probably ought to have the ability to swear witnesses in, it would be the Oversight Committee, as opposed to a Legislative committee.
With that, Mr. Chairman, I move the previous question.
Chairman BAKER. We have a motion for the previous question. Is there objection?
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Mrs. JONES. Yes.
Chairman BAKER. Objection having been heard, now the question occurs on the previous question.
All in favor of moving the question?
All those opposed?
Roll call. I say the ayes have it.
Mrs. JONES. Roll call.
I think that I ought to have an opportunity to be heard, as everybody was, Mr. Chairman; and I raised my hand and asked to be heard, and so that is the only reason I am asking. All I want is a minute-and-a-half, gentlemen and gentleladies.
Chairman BAKER. Without objection, the motion is withdrawn and the gentlelady is recognized for 5 minutes.
Mrs. JONES. Maybe 2.
Chairman BAKER. OK, great, 2.
Mrs. JONES. Thanks, Mr. Chairman, subcommittee Members.
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Because of the importance of this issue to the American public, it seems to me that we are treading on an area that we could very easily erode by allowing all the witnesses to be sworn in. Having served as a judge and prosecutor, I understand the import of having someone take an oath, and it would at least give to the public, who is sitting here on the edge of their seats trying to figure out what exactly happened in this instance, that if we had the witnesses sworn in, at least that would add some additional belief that we, the Members of Congress, are attempting to get to the issues in this case. And I am confident that if you asked Mr. Pitt, he wouldn't care whether we swore in him or not. He would probably voluntarily say, I will be sworn and we could get on.
I yield back the balance of my time.
Chairman BAKER. I thank the gentlelady for yielding.
Mr. Bachus.
Mr. BACHUS. Mr. Chairman, I think we all know and everybody in this room knows that there were illegalities, there was misconduct and there were non-disclosures, but no one has even made a suggestion that this witness is involved in any way whatsoever. To change the rules of this House and to swear in this witness without any discussion, to start this hearing with that is the wrong thing to do.
If anyone on the Democratic side says that there is suggestion of an illegality by the Securities and Exchange Commission that might change my mind.
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Mr. KANJORSKI. Mr. Chairman, will you yield?
Mr. BACHUS. Well, I've said what I have said. Again, I am going to say, bottom line, Chairman Pitt is not under investigation. He's not under investigation.
Mr. KANJORSKI. Will you yield for a response?
Mr. BACHUS. I will yield.
Mr. KANJORSKI. First of all, I want to assure you that I do not suggest he is under investigation for anything that I have remotely heard about. I want to exclude myself from your all-inclusive statement.
This is one Member that does not know whether any illegality occurred at Enron or whether there was any corruption. I do not know what happened at Enron. The reason I came here to this hearing is to begin to find out what happened. What I am suggesting to you is, too many in the Congress and in the public have jumped to conclusions and judgments that may be——
Mr. BACHUS. Let me reclaim my time. I have about 20 seconds, but I don't in any way discount what I said. I will say it again.
There were illegalities in the Enron case, there was misconduct and there were non-disclosures, and if anyone on this panel hasn't figured that out by now, they should have. They should also realize and use discretion that there is no suggestion that this witness is involved in any way whatsoever.
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Chairman BAKER. The gentleman's time has expired.
Mr. ACKERMAN. Mr. Chairman.
Chairman BAKER. Mr. Ackerman.
Mr. ACKERMAN. Thank you.
The remarks of the previous gentlemen are really why I believe we must swear in every witness, because if everybody agrees that the first witness is not guilty of anything and therefore we don't swear him in, then, by inference, everybody we swear in after that is going to be considered guilty because we have made a decision not to swear him in, because that becomes the criterion.
I don't know why this is a partisan issue, and it shouldn't be, and we shouldn't divide this on party lines. I would think everybody here wants to make sure that everybody who testifies before the subcommittee is telling the truth and that they are subject to the full implication of the weight of anything legal we could put on them while they are testifying. Otherwise, it is like saying, let's just swear the guilty people in. And if that is what we are going to do, let's vote ahead of time who is guilty, and then we will swear those people in.
I don't know how you are going to do it if you don't swear everybody in, because you are tainting certain people.
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I will be glad to yield to the gentleman.
Mr. BACHUS. I will just say on many occasions when there has been at least some discussion before a hearing that I have chaired, should we swear someone in, there was holy heck on the other side over the mere suggestion.
So we are changing our procedure today if we start swearing in these witnesses; and there has been at least some suggestion that I have heard from the other side that we ought to start swearing in all witnesses at all hearings. That is a change of policy, and to ambush this subcommittee with such a suggestion without any notice has already delayed this hearing for an hour.
Mr. ACKERMAN. I think the motion before us is just to swear in witnesses with regard to the matter before us on this particular issue, not every issue that comes before us. Those decisions could be made——
Chairman BAKER. Would the gentleman yield?
Mr. ACKERMAN. I would be glad to yield, Mr. Chairman.
Chairman BAKER. I would make the point that the gentleman's motion would be as to the subcommittee activities. It would not preclude at a full hearing of the full Financial Services Committee, after we do the preparatory work, the Chairman's swearing in anyone deemed advisable. I just don't think we are giving away any rights, and I would certainly hope we could bring this matter to conclusion. Even if there are differing opinions, let's try to get it to the point where we close the debate, if we may.
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Mr. ACKERMAN. I just think that it has nothing to do with the full committee or the subcommittee. At the full committee level, that decision could be made upon the recommendation of the Chairman with the prerogatives of the full committee being observed as they are here.
I yield back my time.
Chairman BAKER. The gentleman yields back his time.
Mr. Castle.
Mr. CASTLE. It seems to me that the distinction between what is in the rule and what is being stated here is not that great, and I tend to agree with what the Ranking Member of the full committee, Mr. LaFalce, has suggested.
I think we should resolve this question, so I would move the previous question.
Chairman BAKER. The question has been called for. Is there an objection to the question?
Without objection, the previous question is ordered. Therefore, those who are in favor of the Kanjorski motion, which is to swear in all witnesses appearing before this subcommittee with regard to the Enron matter would vote yes; those opposed to that motion would vote no.
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The clerk will call the roll.
The CLERK. Mr. Ney.
[No response.]
The CLERK. Mr. Shays.
Mr. SHAYS. No.
The CLERK. Mr. Shays, no.
Mr. Cox.
Mr. COX. No.
The CLERK. Mr. Cox, no.
Mr. Gillmor.
[No response.]
The CLERK. Mr. Paul.
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Mr. PAUL. No.
The CLERK. Mr. Paul, no.
Mr. Bachus.
Mr. BACHUS. No.
The CLERK. Mr. Bachus, no.
Mr. Castle.
Mr. CASTLE. No.
The CLERK. Mr. Castle, no.
Mr. Royce.
Mr. ROYCE. No.
The CLERK. Mr. Royce, no.
Mr. Lucas of Oklahoma.
[No response.]
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The CLERK. Mr. Barr of Georgia.
[No response.]
The CLERK. Mr. Jones of North Carolina.
[No response.]
The CLERK. Mr. LaTourette.
Mr. LATOURETTE. No.
The CLERK. Mr. LaTourette, no.
Mr. Shadegg.
[No response.]
The CLERK. Mr. Weldon of Florida.
Mr. WELDON. No.
The CLERK. Mr. Weldon, no.
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Mr. Ryun of Kansas.
Mr. RYUN. No.
The CLERK. Mr. Ryun, no.
Mr. Riley.
[No response.]
The CLERK. Mr. Fossella.
[No response.]
The CLERK. Mrs. Biggert.
Mrs. BIGGERT. No.
The CLERK. Mrs. Biggert, no.
Mr. Gary G. Miller of California.
[No response.]
The CLERK. Mr. Ose.
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Mr. OSE. Aye.
The CLERK. Mr. Ose, aye.
Mr. Toomey.
[No response.]
The CLERK. Mr. Ferguson.
Mr. FERGUSON. No.
The CLERK. Mr. Ferguson, no.
Ms. Hart.
[No response.]
The CLERK. Mr. Rogers of Michigan.
[No response.]
The CLERK. Mr. Oxley.
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Mr. OXLEY. No.
The CLERK. Mr. Oxley, no.
Mr. Kanjorski.
Mr. KANJORSKI. Aye.
The CLERK. Mr. Kanjorski, aye.
Mr. Ackerman.
Mr. ACKERMAN. Aye.
The CLERK. Mr. Ackerman, aye.
Ms. Velázquez.
[No response.]
The CLERK. Mr. Bentsen.
Mr. BENTSEN. Aye.
The CLERK. Mr. Bentsen, aye.
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Mr. Sandlin.
Mr. SANDLIN. Aye.
The CLERK. Mr. Sandlin, aye.
Mr. Maloney of Connecticut.
[No response.]
The CLERK. Ms. Hooley of Oregon.
[No response.]
The CLERK. Mr. Mascara.
[No response.]
The CLERK. Mrs. Jones of Ohio.
Mrs. JONES OF OHIO. Aye.
The CLERK. Mrs. Jones, aye.
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Mr. Capuano.
[No response.]
The CLERK. Mr. Sherman.
Mr. SHERMAN. Aye.
The CLERK. Mr. Sherman, aye.
Mr. Meeks of New York.
[No response.]
The CLERK. Mr. Inslee.
Mr. INSLEE. Aye.
The CLERK. Mr. Inslee, aye.
Mr. Moore.
Mr. MOORE. Aye.
The CLERK. Mr. Moore, aye.
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Mr. Gonzalez.
Mr. GONZALEZ. Aye.
The CLERK. Mr. Gonzalez, aye.
Mr. Ford.
[No response.]
The CLERK. Mr. Hinojosa.
[No response.]
The CLERK. Mr. Lucas of Kentucky.
Mr. LUCAS OF KENTUCKY. Aye.
The CLERK. Mr. Lucas, aye.
Mr. Shows.
[No response.]
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The CLERK. Mr. Crowley.
Mr. CROWLEY. Aye.
The CLERK. Mr. Crowley, aye.
Mr. Israel.
[No response.]
The CLERK. Mr. Ross.
Mr. ROSS. Aye.
The CLERK. Mr. Ross, aye.
Mr. LaFalce.
Mr. LAFALCE. Aye.
The CLERK. Mr. LaFalce, aye.
Mr. Chairman.
Chairman BAKER. No.
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The CLERK. Mr. Chairman, no.
Chairman BAKER. The clerk will report.
The CLERK. Mr. Chairman there are 14 ayes and 13 nays.
Chairman BAKER. The motion prevails. Therefore, the subcommittee will proceed to swear in each witness as they appear in accordance with the subcommittee decision.
I have a further piece of business which I think, or hope, will be received in a bipartisan matter. Given the events of the last 24 hours, the Chair would like to place a motion before the Members of the subcommittee that requires unanimous consent because of Rule 2(b) of the rules requiring prior notice.
I would ask the clerk to report the motion.
The CLERK. A motion offered by Mr. Baker of Louisiana: Mr. Baker of Louisiana moves that the Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises authorize the issuance of a subpoena ad testificandum to Mr. Kenneth Lay for testimony before this subcommittee at a date and time to be determined by the Chairman and Ranking Minority Member.
Chairman BAKER. The Chairman is recognized for as such time as he may consume to explain the motion.
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Under House procedure, we, as a subcommittee, in the effort to subpoena witnesses must do so with the request of the Chairman of the full committee. This motion only permits the Chair to make such request of Mr. Lay should at such time appropriate for committee's work that Mr. Lay be asked to appear before the committee. The decision is not made at this time that he will be subpoenaed, only authority being granted to the Chair.
Is there discussion on the motion?
Mr. Kanjorski.
Mr. KANJORSKI. Mr. Chairman, I am in full support of the Chair's motion.
Chairman BAKER. Is there any further discussion on the motion?
Mr. LAFALCE. As I understand the motion, it is to be determined by the Chairman and the Ranking Minority Member?
Chairman BAKER. That is correct.
Any further comment?
Mr. BENTSEN. Mr. Chairman.
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Chairman BAKER. Mr. Bentsen.
Mr. BENTSEN. So you are saying at this point, it is not necessarily the intent of the Chair or the Ranking Member to issue a subpoena? You just want the authority to do so and will issue it based on how the hearings flow?
Chairman BAKER. The gentleman is correct. This is not an announcement that a subpoena will be issued; only setting in place the proper authority should the Chairman and the Ranking Member concur that his presence is required.
Mr. BENTSEN. I, for one, support the motion and I would predict that as the hearings go on, we will find that it will be necessary to hear from him.
Chairman BAKER. In that event, we will be prepared.
Is there further discussion?
Without objection, the previous question is ordered. Is there any objection to the motion as reported by the clerk?
Without objection, the motion is adopted unanimously. The Chair, for the record, notes the presence of a quorum, and that is important for the issuing of the subpoena.
There being no further business, I wish to move to organizational business, I wish to move to opening statements.
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As I indicated earlier, each side will manage 30 minutes in regular order; and I've got to start the clock on myself.
On December 12, this subcommittee conducted the first congressional hearing concerning the failure of Enron. From that time until now, there have been a series of vital determinations, which have enabled the staff to construct a disturbing picture of events. The misrepresentations, obfuscation and acts of secrecy should certainly warrant full investigation by appropriate enforcement officials to bring those to justice who have violated their fiduciary responsibilities.
Whether the Powers Report is appropriately balanced or not, given the limited information on which the Report is based, it does establish a basis on which to conclude that the corporate financial reporting was intentionally complex and misleading. On further examination, it may be determined that the rules aimed at requiring disclosure were so misused that they were warped into a black bag from which no information was able to escape.
It should be made clear as to the role I envisage for this subcommittee in light of these disturbing revelations. We are not prosecutors. In fact, inflammatory accusation will only inhibit our ability to get to the facts—facts which are essential for us to reconstruct the regulatory environment so that these events will not reoccur. We should carefully assess the record, find how and if the system failed, and enact the appropriate corrective remedies.
It is clear, in Baton Rouge, Louisiana, this afternoon there are employees wondering if their corporation is really telling the true story, pensioners wondering if they are safe, investors worrying about the analyst's report. This singular event has created a crisis of confidence that must be reconciled.
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How is it that the auditors, the analysts, the board members, the investors, the regulators and even the financial press could not find anything to alert the public that Enron was not all it appeared to be? Even if it was the Enron plan to dupe the entire financial marketplace and abscond with millions of dollars for a chosen few, how is it possible for that to occur in our technological society with watchdogs on every corner?
The historical facts may answer that question. It wasn't possible. I direct your attention to a New York Times article published January 27 of this year in which it is described how a German-based energy company balked at a merger with Enron principally over concerns with Enron's accounting practices. These events occurred in 1999, long before anyone had the nerve to suggest that Enron had problems.
I find a quote from the article very instructive: ''consultants from PriceWaterhouseCoopers told Veba that Enron, through complex accounting and deal-making, had swept tens of millions of dollars in debt off its books, making the company's balance sheet look stronger than it really was, according to the people involved in analyzing the failed deal. The consultants drew on public sources like trade publications, securities filings and interviews.''
The story goes on: '' 'We were wondering why this wasn't common knowledge, or why it wasn't discovered by those people whose business it was to discover these things,' said one of the people who worked on analyzing the deal. He agreed to discuss the episode on the condition that his firm remain anonymous.''
I remind you, this occurred in 1999.
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In accordance with full transparency and disclosure standards, I must also acknowledge that the article goes on to point out that the SEC and FASB should have taken more responsibility to intervene to protect the public interest. That is where I feel the subcommittee's attention should be appropriately focused.
If the rules are not clear, if there's any doubt in anyone's mind, I feel we must make it very clear. If in your professional judgment, Mr. Auditor, Mr. Analyst, Mr. Board Member, or any other person in a fiduciary role, if you see it and it doesn't look right, it is your obligation to report it to the appropriate authority. The practice of walking by the accident scene and leaving the victims to their own demise will no longer be an act tolerated by the Congress.
It is the principal obligation of this subcommittee to find out how the system failed and then to act to ensure the system not only works, but to ensure there is redundancy. We must guarantee protection of the shareholders, the employees, and every pensioner whose lifelong savings may be tied to the truthfulness of the required disclosures.
It is clear that some were able to find the truth to protect their own interests. The big question is, why was it impossible for others to see the truth?
To that end, I feel it is an absolute necessity to establish audit independence. The reported numbers should add up properly and tell the true corporate story. I believe there are two very different ways to accomplish this goal.
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One is to require dramatic new standards of responsibility for everyone, from the corporate board to the audit committee to the SEC, to ensure the individual auditor is not intimidated by management.
The other approach, one which would change the culture on Wall Street and across America, is to separate auditing from the corporation entirely by requiring external audits to be paid for by someone other than the corporation. Perhaps, as some have suggested, it is time to have the stock exchanges engage the auditors and report their findings simultaneously to the exchange and the corporation. After all, should we really be surprised when you pay the piper, the piper plays your tune?
I intend to explore these ideas more fully with Chairman Pitt today in the effort to propose the best remedy, if possible, for this problem. But we won't take long to evaluate proposals as this subcommittee will act in days, not months or years.
The simple point is this: In viewing the corporate landscape today, I do not like what I see. Although most corporations are very well run and responsible, it is difficult to accept when a corporation closes its doors due to competitive pressure. But that is an unfortunate consequence of a free market system, losers finally lose.
But it appears there is a new threat in our complicated market that did not seem possible in the slower, contemplative world of typewriters and white out. It is clear now that it is possible for an aberrant corporate manager to take corporate assets, manipulate the books, enrich himself, and leave others to pay the price by making the transaction complicated, convoluted and computerized.
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As a result, faithful employees lose it all. Life savings evaporate, investors are duped, lives are ruined—not in innovative competition, but from dark, sinister manipulation.
We will bring the sunlight in. Whether we just add some really big windows or whether we take the roof completely off, sunlight will shine in the corporate board room. Those who choose to ignore their responsibilities and enrich themselves while bringing harm to others shall have no safe harbor.
Those who labor long, build value, and create opportunity should be rewarded. We should all have confidence that the American dream is within our reach.
[The prepared statement of Hon. Richard H. Baker can be found on page XX in the appendix.]
Chairman BAKER Mr. Kanjorski.
Mr. KANJORSKI. Mr. Chairman, we have learned much since our last hearing in December about the factors contributing to the collapse of Enron. We have, for example, begun to understand how many of the checks and balances, which are supposed to contain excesses in our capital markets, either failed or short-circuited. We have also started to ascertain exactly how Enron's executives, directors, attorneys and auditors contributed to the corporation's demise. We have further discovered more about how the decisions and actions of regulators, stock analysts, credit raters and investment bankers helped to cause Enron's disintegration.
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Additionally, many of my colleagues helped to create the environment that resulted not only in the insolvency of Enron, but also in the bankruptcy of numerous other high-flying companies in recent years. In the 1990s, many of my colleagues successfully pushed for the passage of deregulatory efforts and blocked the development of new regulatory safeguards. As we proceed, we therefore need to reflect on the Congress' own culpability for the current events.
More than a decade ago our committee helped to clean up the savings and loan crisis. Deregulatory efforts contributed significantly to that debacle. Once again, it appears that we may have gone too far in deregulating. Enron's failure and the collapse of other companies may be the revenge of the rush of some to deregulate the securities markets.
In light of recent events, the Private Securities Litigation Reform Act of 1995, which became law despite a Presidential veto, deserves careful review. This statute, part of the so-called Contract with America, was supposed to prevent ''frivolous'' lawsuits. This law, however, has apparently helped businesses to manipulate their financial results. Evidence now indicates that earnings restatements by companies have more than tripled since the early 1990s. This law may also prevent investors from recovering billions of dollars they lost in Enron.
And last year, before examining the resources needed by the Securities and Exchange Commission, many of my colleagues rushed to cut the fees collected on securities transactions. The Commission was and is the regulator with primary responsibility for overseeing Enron, yet it appears that the Commission has failed to review Enron's financial disclosures since 1997. I want to know why that occurred. Moreover, it seems that the Bush Administration has decided to recommend an insufficient increase in the Commission's budget for fiscal 2003. To protect investors from other Enrons, we must significantly increase these resources in the months ahead.
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The financial devastation caused by Enron warrants our thorough investigation. We need to examine quickly and comprehensively the deficiencies in our public policies that contributed to this corporate bankruptcy. We must also determine appropriate ways to reform our Nation's securities laws and regulations.
There are, however, many of my colleagues who want to rush to pass legislation before we uncover the entire set of facts in this case. To each of them, I urge restraint. If we take our time and learn the complete story, we have an opportunity to do something meaningful and responsible on a bipartisan basis. We should ultimately develop strong, effective and appropriate policy to prevent similar debacles in the future, and gathering all the pertinent facts will facilitate attaining this goal.
When we do consider a bill, I have already identified many issues that we should address. In addition to reviewing the consequences of the Private Securities Litigation Reform Act, we must fix the problem of auditor independence. My feeling is that no accounting firm should serve as both auditor and consultant to the same company. Although I applaud the efforts to the industry in recent days to mitigate these conflicts, we may need to pursue further reforms.
We must also improve supervision over the accounting profession. The current oversight system resembles a Rube Goldberg contraption. As a result, we must develop a new regulatory regime that involves genuine public oversight and real accountability. Moreover, we have learned of the excesses of Enron only because it failed. We should take this opportunity to better understand the problem of earnings management and how it affects other companies.
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Many other issues fall firmly within our jurisdiction and demand our examination in the months ahead. We must return to the issue of analyst independence. We must also study the corporate governance systems of public companies. We must further scrutinize the financial disclosure requirements of American businesses. We must additionally analyze the flaws of our accounting standards and the deficiencies of credit rating agencies. Finally, we must review the responsibilities of the Securities and Exchange Commission.
In closing, Mr. Chairman, we must move with diligence to dissect what went wrong first, and then take action to restore faith in our Nation's capital markets.
[The prepared statement of Hon. Paul E. Kanjorski can be found on page XX in the appendix.]
Chairman BAKER. The gentleman yields back the balance of his time.
Chairman Oxley.
Mr. OXLEY. Thank you, Mr. Chairman; and let me first thank our good friend, Chairman John Boehner, for the use of the committee room. As many of you know, our committee room is being renovated and will not be completed until sometime late this month. So we appreciate the hospitality.
Our committee began its work on the Enron collapse with our first hearing over a month-and-a-half ago, in mid-December of 2001. Today and tomorrow, we continue our review of Enron and its impact on investors, employees and the financial markets.
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We on this subcommittee are working to achieve three basic goals; First, making sure that Congress knows how the biggest corporate collapse in American history happened; second, to restore investor confidence in accounting regulators and in rules governing our markets; and third, making sure that the free market system and the regulatory system that underpins it, emerge stronger and better as a result of our work.
This subcommittee oversees the financial and capital markets. We oversee the regulation of those markets, so we have a fundamental responsibility. We take our work very seriously, and we are committed to doing what is right. We are also working hard, but we are not working alone. We are working closely with the major investigators, the Justice Department, the SEC, and Enron's and Andersen's own internal teams. We greatly appreciate their active assistance and cooperation and their insights, and we will make sure that our work complements theirs and does nothing to impede it.
I am also gratified that the President in his State of the Union address told us to make our work here a top priority. The President believes, and I agree, that ''corporate America must be made more accountable to employees and shareholders, and be held to the highest standards of conduct.'' That is exactly where we as a committee are headed.
There has been a lot of talk from a lot of people about what might have happened at Enron, but Congress and the American people deserve to know the facts directly and from those who are most directly involved. That is what is going to happen today and tomorrow.
We have with us three of the people most directly involved, the chief securities regulator, SEC Chairman Harvey Pitt; Enron's chief internal investigator, Mr. William Powers; and the company's outside auditor, Mr. Berardino, CEO of Arthur Andersen, who will be making his second appearance before the subcommittee. We thank them all for being so willing to be here.
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Everyone should know, they all wanted to come here and testify, though these are very difficult circumstances for them. Until last night, we were expecting Mr. Ken Lay, former CEO of Enron.
Chairman BAKER. That is the ghost of Enron, Mr. Chairman.
Mr. OXLEY. I take back that thanking of Chairman Boehner. We don't have strange whistling in our committee room.
At the last minute, we were notified, as you all know, that Mr. Lay would not appear; and I know all the Members join me in saying we are extremely disappointed that he broke his commitment to our subcommittee; and indeed, the unanimous resolution that the subcommittee passed giving Mr. LaFalce and me the ability to issue a subpoena will be acted on forthwith.
Congress' job is different from those of the judges, juries and prosecutors who will deal with the many individual instances of alleged wrongdoing. Our job is not to convict, prosecute or persecute. Our job is to understand what happened, address the problems and make our free market system better and more impregnable than ever before. I think I speak for all my colleagues in saying, we are committed to that goal and we will be working hard together to achieve it in the weeks and months ahead.
I yield back the balance of my time.
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[The prepared statement of Hon. Michael G. Oxley can be found on page XX in the appendix.]
Chairman BAKER. I thank the Chair.
Mr. LaFalce.
Mr. LAFALCE. I thank the Chairman.
First of all, I want to explain that the Chairman of the full committee and I, as Ranking Member, are ex officio Members of all the subcommittees. In previous Congresses, it was as non-voting Members, and in this Congress it is as voting Members, but we had agreed to abstain from voting in subcommittee matters unless the other Members were given notice in advance; and it was only because Mr. Oxley voted that I voted during the course of the subcommittee markup with respect to the issue before us.
In January of 2001, our committee was given jurisdiction over the securities industry, and from that time I began warning that earnings manipulation and deceptive accounting, along with analysts' hype, threatened the integrity of our capital markets. And from early 2001 on, I began calling for a significant increase in the SEC's budget to strengthen its personnel, oversight, and enforcement—not a 2 or 3 percent increase, but a 200 or 300 percent increase before this subcommittee, before the Rules Committee and on the floor of the House of Representatives.
I think that Enron's colossal failure and its devastating impact on investors and the working men and women at Enron have more than justified those concerns.
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Today, we are going to hear from Mr. Powers on what went wrong at Enron and how a culture of corporate arrogance and greed resulted in losses of over $60 billion to investors and employees. The Special Investigative Committee's Report is a devastating indictment of Enron's senior management, its board of directors, its auditors, its lawyers, securities analysts who were supposed to be representing the public, and so forth, all of whom failed to fulfill their responsibilities to Enron shareholders. The safeguards that should have protected investors failed at every level.
But they have also failed at every level for countless other publicly held corporations, a number of whom have had to have their earnings restated in record numbers; and I suspect that there are many, many more to come. But Enron, in particular, has been a wake-up call, because Enron is what it took to challenge investors' faith in the integrity of our capital markets. My hope is that Enron has what it takes to have us do something about it.
We must address the systemic problems that Enron's failure has made all too apparent. We must restore the faith of investors in our capital markets, and we must restore the faith of workers in their employers; but to do so, we must engage in a bipartisan, if possible—collective in any event—rethinking and reformulation of how we oversee our capital markets and our financial disclosure system. We must also give the SEC the resources it needs to do its job.
I was extremely disappointed to learn that the Administration has not seen fit to provide the SEC with any increase in its resources to address these challenges or even to fund pay parity for SEC employees. The budget that I became aware of today apparently calls for a 4 percent nominal increase in the SEC budget. That is grossly inadequate to even fund pay parity for the present employees, much less strengthen the resources that are needed to do the job.
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I have been engaged in what I think have been productive, so far bipartisan, discussions, with both Mr. Oxley and Mr. Baker, along with Mr. Kanjorski, to attempt to craft legislation to deal with the serious policy issues that cases such as Enron give rise to. We are not there yet. We still have serious areas of disagreement, but I hope we will be able to come to some consensus.
But, at a minimum, I believe we must address the following areas: Seriously consider the recommendations that were made by Arthur Levitt, that I strongly supported when he made, to separate the audit and consulting functions to ensure that auditor judgment is not tainted by the fees received for non-audit services.
Data now available under the SEC's disclosure rule on non-audit fees makes clear that for the auditors of many large public companies, audit fees are often a minor percentage of the fees they receive. Even in the absence of Enron, I think that data alone justifies a reexamination.
Some have also suggested that we should consider going beyond that, that in order to improve auditor independence, we should consider term limits for auditors. The suggestions have been made by serious individuals and should at least be considered seriously.
Second, exclusive self-regulation has brought us to where we are today, and I don't think can work in and of itself. We need significantly enhanced public oversight and regulation of both the auditing and securities industries, including a strong new auditing regulator with a full range of powers. I would like to see representatives of working men and women on that regulator. I would like to see representatives of institutional investors on that regulator.
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With respect to the securities industry, we have to hold them to a much higher standard. The fact that in the year 2000, when the market was falling precipitously, only one in 100 recommendations were ''sell'' recommendations gives cause for great concern. The public relies on the securities analysts for counsel and advice, and they have been relying on their advice at their own peril.
Third, we must find a way to provide a massive increase in SEC resources. The President's proposed budget just doesn't do it and given the mechanisms where the SEC has to work in concert with the OMB, we are not going to find out from them what resources are really necessary.
And it is not just the resources of the SEC. It is the FBI resources to work with the SEC; it is the Justice Department resources to work with the SEC.
We offered amendments in committee and when we're considering the totality of the governmental response, we consider not just the SEC, but the FBI and Justice Department amongst others, and our amendments were defeated. That is regrettable. There are a number of other items that I think are extremely important, but with your consent, Mr. Chairman, I would simply ask that the entirety of my statement be included in the record at this time.
[The prepared statement of Hon. John J. LaFalce can be found on page XX in the appendix.]
Chairman BAKER. Without objection, Mr. LaFalce.
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I had a prior discussion with Ranking Member Kanjorski and if I could suggest the following procedure for the remaining time to be allocated. In order to facilitate as many Members being heard as is possible with the remaining 10 minutes per side, we have agreed to recognize each Member for a 2-minute statement, and on the Majority side the five Members who would be recognized to help prepare for that would be Mr. Shays, Mr. Cox, Mr. Paul, Mr. Bachus and Mr. Royce in that order today. On the Minority side it will be Mr. Ackerman, Mr. Bentsen, Mr. Sandlin, Mr. Sherman and Mr. Inslee in that order on the Minority side. Without objection, so ordered.
Mr. Shays, you're recognized for 2 minutes.
Mr. SHAYS. Thank you, Mr. Chairman, for having this hearing.
Enron was a disaster to its employees and stockholders and it has raised tremendous concern among my constituents. How could the seventh largest company in the United States of America nearly evaporate before our eyes? They want to know will standards, regulations and laws be strengthened and will people be held accountable, not just company fines paid.
Enron is a story of risky investments and greed, regulators not regulating, analysts not digging deep enough, auditors not auditing, directors not directing, lenders not checking creditworthiness. It is also a story of cover-up and fraud.
Enron is also a story about big campaign dollars, buying access and influence. Enron has given to both Democrat and Republican parties, raising serious questions about who is setting the agenda in Washington. We need to end the abuse of corporate treasury and union dues contributions and campaigns, and I think Enron is a clear example of that.
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Congress has to also consider, among other issues, separating consulting and accounting work, dividing investment banking from analysts and making disclosure of stock holdings and investment banking ties more prominent in research reports, potentially term limiting auditor contracts for individual companies, requiring outside entities be incorporated into financial disclosure statements so as not to understate liabilities and overstate earnings, and encourage diversity by employees with 401Ks.
There's lots of work to be done. I am eager to participate in all the hearings you may call, Mr. Chairman.
Chairman BAKER. Thank you very much, Mr. Shays.
Mr. Ackerman, you are recognized for 2 minutes.
Mr. ACKERMAN. Thank you, Mr. Chairman, and thank you, Mr. Kanjorski.
I am amazed, confused, bewildered, astonished, and a lot of other adjectives, by the sequence of events that has brought us here today, and the American people are equally outraged and concerned. We have convened this hearing on the Enron debacle to learn what happened and what we might do to make sure that this kind of thing never happens again. It would have been much easier if former Enron CEO Ken Lay had decided to join us.
We are faced with the single largest bankruptcy our Nation has ever seen. We have people who have invested in and/or worked all their lives for Enron only to have their life savings and dreams stolen from them. These employees were sold snake oil, told that the stock their employer was peddling to them was sound even as the Enron bosses were dumping Enron shares left and right. Workers and investors were told stay in ''steerage'', and all the time that was happening the crew was bailing out.
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One of the key failures that has come to light is that the major accounting firms, including Arthur Andersen, have engaged in cozy business relationships with their clients. The accountants would consult with, advise and set up business arrangements for their clients and then turn around and audit the very same companies, thereby providing the imprimatur of sound business practices on the schemes they themselves may have helped to devise. That's absurd. During the night, why do we allow the fox to guard the chicken coop and why are we surprised when the sun comes up that all we're left with are feathers?
The GAO has recognized the problems inherent to the company providing both auditing and non-auditing services to the same client. They have announced this business practice will no longer be allowed when doing business with the Federal Government. Today, I am introducing, and I invite all Members who wish to join me in introducing, legislation to require that the SEC revise its auditor independence rules so they are at least as tough as the GAO practices. If the Federal Government will no longer tolerate this potential for abuse in business practices, why should it be allowed to continue in the private sector?
I am almost afraid to ask what I think is the real question: Is this the tip of the iceberg? How many other corporate giants may have smoking mirror businesses peppered over by prestigious CPA firms?
I am pleased that the subcommittee will have the opportunity today to hear from these witnesses to learn what went wrong and how we work to make sure this type of systemwide failure never happens again. Will these hearings be sufficient? Maybe, maybe not, for too many influential people aren't going to be talking.
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Chairman BAKER. The gentleman's time has expired.
Mr. ACKERMAN. We may need to have a special prosecutor who will be diligent in uncovering the truth. The people broke the law, they should go to jail.
I thank the Chairman for calling the hearing.
Chairman BAKER. Mr. Cox, recognized for 2 minutes.
Mr. COX. Thank you, Mr. Chairman. I want to welcome the Chairman of the Securities and Exchange Commission, and we are very much looking forward to your testimony and that of the board special committee to follow you.
I am also very pleased as we meet here today that as we try and pick up the pieces, as the victims of the Enron debacle try through both civil and ultimately criminal proceedings to gain vindication, that we can rely upon the very pro-shareholder legislation that this Congress enacted some years ago in the form of the Securities Litigation Reform Act, because many of the Members of this subcommittee, given our change in jurisdiction in the Congress——
Chairman BAKER. Pull your mike up.
Mr. COX.——were not present at the birthing and the drafting of that legislation. I just want to bring to the Members' attention some of what it is going to do for the shareholders of Enron who are now seeking vindication. In the old days it used to be that the first lawyers of the courthouse got to represent you in a class action. We ended that abuse. We ended that process and now the court is going to pick the best class representative.
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The Securities Litigation Reform Act gives the court the power to review unconscionable attorneys fees so that the recoveries for abused shareholders will be greater. It imposed new responsibilities on auditors to detect and report illegal acts. It eliminated the professional plaintiffs that used to victimize shareholders in fraudulent and extortionate lawsuits. It strengthened the conflict of interest rules relating to attorneys, ensuring that shareholders are going to get fair representation.
Mr. Chairman, as you know, the Securities Litigation Reform Act broadened the SEC's aiding and abetting enforcement authority, strengthening the ability of the Commission to prosecute those who aid and abet violations of our securities laws.
I also wanted to point out, in conclusion, that far from making it more difficult to bring these kinds of lawsuits, it seems to have advantaged meritorious cases. In the 5 years preceding the enactment of the Securities Litigation Reform Act the average number of securities laws fraud suits filed in our Federal courts was 189. That's increased now 250 percent, so that for 2001 the actual number of cases filed was 486, and the average settlements have gone way up, from an average of—pre-enactment to $18 million post-enactment so that shareholders are getting more as a result of these important reforms.
I think it is very important that we also take a look at the rating agencies, Mr. Chairman, and I am pleased that you have done that in your testimony. You have brought that to our attention. We are going to be looking at the role of the accounting profession and corporate governance and the independence of the auditing committee. Many of these questions your testimony is going to be especially valuable on.
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I thank you for being here this afternoon and thank you, Mr. Chairman.
Chairman BAKER. The gentleman's time has expired.
Mr. Bentsen, you are recognized for 2 minutes.
Mr. BENTSEN. Thank you, Mr. Chairman, for having this second hearing on the collapse of Enron. Mr. Chairman, if this had been just a normal bankruptcy for economic reasons or bad business decisions, we probably wouldn't be having these hearings, but this isn't just a normal bankruptcy.
I want to read a quote from an e-mail that was sent by a person who ought to be here this week and is not here, but I think it is pretty telling. This was done at the end of August, and it says, ''One of my highest priorities is to restore investor confidence in Enron. This should result in a significantly higher stock price.''
This was an e-mail that was sent to one of the many thousands of employees, one of my fellow Houstonians, last fall at the same time that senior executives of Enron were dumping their stock, either through selling it in the open market or selling it back to the company, which in some instances they appeared to use as their own private bank.
The fact is, Mr. Chairman, that a number of my fellow Houstonians were hoping today and tomorrow that the Congress on their behalf would be able to ask questions that they don't have a right to ask, that the Congress would be able to ask questions that they don't have at the table in the bankruptcy court. And before us today in the audience we have a number of former Enron employees who traveled up here because they're looking for some answers. They are trying to find what happened to the company that they put their heart and soul in, what happened to their savings accounts, where are their cash balance accounts, why were some employees given retention bonuses after the company filed bankruptcy. Unfortunately, Mr. Chairman, they are not going to get those answers today, because Kenneth Lay, who agreed to testify after you and the Ranking Member had been exceedingly generous, I think, in trying to structure the hearing, chose to back out in the eleventh hour under the lame excuse that somehow they didn't appreciate comments made by colleagues of ours on the talk shows yesterday. And I think that is truly unfortunate, because what we need to find out is whether or not this was a case of the end of the ''rational exuberance,'' whether or not this is the new form of the savings and loan model that we went through in the 1980s, who was minding the store, what did they know and when did they know it.
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And I appreciate the fact that you and the Chairman of the full committee have taken the authority to issue subpoenas, because we will have many questions to ask and we will need to have these individuals come here, and I appreciate you calling this hearing today.
Chairman BAKER. Mr. Paul, you are recognized for 2 minutes.
Mr. PAUL. Thank you, Mr. Chairman.
I see that there have been two driving forces pushing this Enron story. One has been the politics of it. I find that unfortunate. I wish that politics would be less involved than the policy issues. But the other driving force is the attack on capitalism, which I think is misplaced, and it is driven by those who would like to have a lot more regulations and use this as an example of the failure of capitalism. I see exactly the opposite.
This is an example of the failure of corporatism. We have large corporations who buy influence, and they come up here to get subsidies in the form of corporate welfare. Enron received $1.6 billion worth of corporate welfare from the Eximbank and the Overseas Private Investment Corporation. That is where I see the problem.
Also, we have a responsibility for our monetary system, and yet we do very little to monitor the excessive easy credit system that allows banks to make billions of dollars worth of credit that are uncollateralized. This can only happen in a funny money, fiat paper money system, and we ought to look at that more carefully.
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We have been talking about the accounting, and I think the accounting is a very serious problem. The idea of creating debt and calling it an asset, that is outrageous. That's almost like what Social Security does, what we do here. It looks like they learned some of the lessons from us.
So I find this rather tragic to attack capitalism on this issue. We should not think this is a reason for more regulation in a free market when the market fails and the market takes care of these companies. But what did we do with Long-Term Capital Management? We bailed them out and sent the wrong message. No wonder we have encouraged companies like Enron, and there are a lot more around.
Fraud—you say we have to do this investigation for fraud. Sure, we would like to know about it, but that's never been the prime responsibility of the Federal Government. That is a State issue. In many ways we are connected, but I would like to see us address the subject for which we are directly responsible—the Federal Government's subsidy of corporations like Enron who are created with a monetary system that is illogical that we have seen with the financial bubble.
[The prepared statement of Hon. Ron Paul is found on page XX in the appendix.]
Chairman BAKER. Thank you, Mr. Paul.
Mr. Sandlin is recognized for 2 minutes.
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Mr. SANDLIN. Thank you, Mr. Chairman.
On December 12, the Capital Markets Subcommittee held the first of what I hope are several hearings on the financial implications of the Enron bankruptcy and its auditor, Arthur Andersen. In a remarkable 6-week period, a series of troubling and at times stunning revelations, we have been exposed, highlighting possible corporate malfeasance, testing our faith in self-regulation. Crafting the necessary legislative and regulatory remedies can only occur by identifying the deliberate misdeeds and illegal activities that precipitated this historic meltdown.
Most pertinent to this subcommittee's investigation of Enron's collapse are the numerous questions surrounding the vast arrays of entities and partnerships created by senior Enron officials. With the blessing of Enron's executive committee of the Board of Directors, deceptive and illegal partnerships were created to conceal hundreds of millions of dollars of debts from Enron's balance sheet. I am deeply troubled that the most volatile and complicated partnerships were created by Enron's former Chief Financial Officer, Andrew Fastow, and blessed through the paternal ignorance or sly acquiescence of Enron's former CEO, Ken Lay.
America's securities laws are designed to prevent the creation of stocking horses whose only intent is to deceive investors for the benefit of the company's stock price. I am deeply disappointed that Mr. Lay has canceled his appearance before this subcommittee—please note I change that—Mr. Lay has canceled his appearance before this subcommittee and is taking the fifth amendment by absentia. Americans want to know about the role that senior officers played in engineering and executing the hundreds of special purpose entities that enriched select employees while deceiving shareholders, Federal and State regulators, and Enron employees.
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All of America now knows Enron, to paraphrase a former company vice-president, ''imploded in a wave of accounting scandals,'' as Enron's Arthur Andersen signed off on the veracity of Enron's financial statements, financial statements that Enron admitted overstated its earnings by almost $600 million over 5 years. Further, I believe that the actions taken by Andersen's employees to destroy documents after the company knew of the SEC inquiry into Enron's bankruptcy raises the prospect of criminal penalties and civil liability.
Chairman BAKER. Can you begin to wrap up?
Mr. SANDLIN. I applaud Harvey Pitt for putting forward a very modest proposal. I believe it is only a first step.
Mr. Chairman, we appreciate you calling this hearing today.
Chairman BAKER. Thank you, Mr. Sandlin.
Mr. Bachus is recognized for 2 minutes.
Mr. BACHUS. Mr. Chairman, I would ask unanimous consent to use my 2 minutes at the opening of the Powers testimony because my statement focuses on the 11,000 Enron employees who lost their retirement.
Chairman BAKER. Any objection to Mr. Bachus being recognized for 2 minutes prior to the next witness on this panel? Any objection? Without objection, so ordered.
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Mr. Inslee. I'm sorry. Mr. Sherman, you're next.
Mr. SHERMAN. I join with Mr. Shays in pointing out the need for campaign finance reform. I echo Mr. LaFalce's comments that we need a revved up SEC. We need a SEC staff that will review every financial statement and demand the clarification of every fuzzy footnote. I join with Mr. Ackerman in his fear that there may be more Enrons out there. We need better accounting rules.
As I said in December, it is as if we found a SUV had plowed into schoolchildren driving 101 miles an hour in a school zone. Arthur Andersen should have pulled them over, but then we find out that the posted speed limit in that school zone is 100 miles an hour.
Today's Washington Post indicates the Chewco partnership could have been kept off the books. Even today, if only $4.4 million of capital had been rounded up, over $1 billion of financial statement impact would still be hidden and Enron might still be alive, suckering in more investors.
We need better accounting rules for addressing special purpose entities, addressing derivatives, addressing transactions in the company's own stock and especially addressing derivatives in the company's own stock, including puts and calls and options in the company's own stock. We should explore whether audit firms should be allowed to provide substantial tax and management consulting services. But I would point out that if we shrink these firms to half their present size, which would happen if we did that, then a fee of half the size might still have the same conflict of interest impact.
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Chairman BAKER. Begin to wrap up, sir.
Mr. SHERMAN. I would point out that if Arthur Andersen was just its own auditing department, it would have received a fee of only $25 million from Enron, but that would represent 1 percent of its total revenue.
Finally, we need to explore whether there should be tenure and term limits for auditors so they serve 5 years and then leave. We need new accounting standards and we need to explore new limits on the relationship between auditors and clients.
Chairman BAKER. The gentleman's time has expired.
Mr. Royce, you are recognized for 2 minutes.
Mr. ROYCE. Enron's efforts to disguise its bad investment losses and to increase its earnings by about $1 billion higher than they should have been through financial sleight of hand were intentionally deceptive, and it was a blatant attempt to undermine the fundamental purpose of financial accounting, which is transparency. Corporate executives of publicly held companies have a moral responsibility and a legal responsibility to make their balance sheets representative of the financial reality that exists and to make them understandable to the investing public, and that is one of the things that the SEC needs to address here today. Enron's use of questionable special partnerships clearly runs contra to the principles of consolidation and transparency, upon which our fair and successful free market system is predicated.
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And at the same time, Enron employees involved in the partnerships were enriched by self dealings to the extent of millions of dollars that they should never have received. That should be investigated.
Also Enron's collapse raises the issue of the culpability of the accounting and auditing industry in ensuring that corporations live up to these moral obligations. Emerging behind the scenes accounts of document shredding at Arthur Andersen raise serious concerns about the degree to which Andersen was willing to subjugate its fiduciary responsibility to shareholders in pursuit of lucrative internal auditing and consulting contracts, posing a potential conflict of interest within the industry, and that we must address. And Enron's accounting treatment was determined with structural advice from Arthur Andersen. Arthur Andersen, amazingly enough, billed Enron $5.7 million for the advice in terms of how to set up these partnerships and did that on top of its regular audit fee.
And finally, the fact that those individuals charged with overseeing the auditing community were unable to prevent Enron's collapse casts serious doubt over the efficacy of the peer review process by which accounting firms currently review each other's work. The Public Oversight Board and the peer review process seems untenable in its current form, and that creates the necessity for a new system to ensure that public accountancy is correct, impartial and free of the moral hazard associated with the conflict of interest currently plaguing the auditing process.
[The prepared statement of Hon. Ed Royce can be found on page XX in the appendix.]
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Chairman BAKER. Mr. Inslee, you are recognized for 2 minutes.
Mr. INSLEE. Thank you, Mr. Chair. I think Joe Lewis had the best comment about Mr. Lay's nonappearance when he said ''They can run, but they can't hide.'' And I think if Mr. Lay thinks that he is going to avoid us getting to the bottom of this, he is sadly mistaken. But for us to do that I hope that we have a very broad approach in our subcommittee rather than just a narrow one. And what I mean by that is that it wasn't just investors who are in the tentacles of Enron. It was consumers of electricity, particularly on the West Coast. And for months and months and months last year, Enron and other companies strangled the consumers of the West Coast and the Administration did nothing for months and months and months, and the evidence would suggest at the request of Enron, and Mr. Lay specifically.
Now we need to know if this is true or not. Mr. Lay apparently isn't going to tell us. The Vice President apparently isn't going to share that information with us, but I hope that this subcommittee will get that information for the American people to find out why its Government sat on its hands for almost half a year while the West Coast bled millions of dollars in outrageous electrical prices, 50 percent increases a month and more.
So Mr. Chair, I hope to be working with you on a subpoena, and perhaps we can discuss this tomorrow with Enron as a whole, to obtain this information for the American people that the Vice President has seen fit not to share with the American people. And I hope to have discussions with you and perhaps we can resolve this tomorrow. Thank you.
Chairman BAKER. I thank the gentleman. I think we are at the point now where we can engage our first panel. Chairman Pitt, by a vote of fourteen to thirteen, I wish to welcome you to the subcommittee this afternoon. You may be aware that the subcommittee has decided to take testimony under oath. Do you have objection to testifying under oath?
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Mr. PITT. None at all, sir.
Chairman BAKER. Under the rules of the House and the rules of the subcommittee you are entitled to be advised by counsel. Do you have any desire to be advised by counsel during your testimony today?
Mr. PITT. No, I do not.
Chairman BAKER. In that case, if you would please rise and raise your right hand, I will swear you in.
[Witness sworn.]
Consider yourself under oath. And I wish to sincerely welcome your presence here. I think your leadership and insight will be of value to the subcommittee and to the country.
I point out for the record you assumed your new duty on what date, sir?
Mr. PITT. I was sworn in on August 3, but I actually started at the beginning of September.
Chairman BAKER. And how does that comport with the disclosure of Enron's public demise?
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Mr. PITT. Well, I think that I had been in the service about 2 months when the Enron debacle exploded.
Chairman BAKER. I just thought for the record it would be important for everyone to know your lack of relationship to the events that have unfortunately now unfolded. If you would please proceed, sir. Your testimony will be made part of the record.
Mr. PITT. Thank you, Mr. Chairman. My remarks may extend a bit and I apologize for that, but with the subcommittee's permission and Chair's permission.
Chairman BAKER. We hope you will take all the time needed to give all the explanations that would be informative.
STATEMENT OF HARVEY L. PITT, CHAIRMAN, U.S. SECURITIES AND EXCHANGE COMMISSION
Chairman Baker, Congressman Kanjorski, Members of the subcommittee, I am pleased to appear on behalf of the SEC under oath to testify about possible legislative solutions to abuses and weaknesses that Enron's failure exposed in our disclosure and financial reporting system. I commend you, Mr. Chairman, and Congressman Kanjorski, as well as Chairman Oxley and Congressman LaFalce, for your leadership. These hearings are timely and appropriate.
The Enron debacle is tragic, and too many Americans have felt its consequences. Innocent investors were betrayed by abuses of our system of disclosure and accounting. Most tragic are investors, who entrusted some portion of their life savings to a company that purported to be profitable, placing confidence in the company, its auditors, research analysts, rating agencies and our federally—mandated disclosure system. Equally betrayed are those who held Enron stock in retirement accounts and made life—altering decisions based upon the stock's perceived value, only to find themselves locked into a rapidly sinking investment that ate up years of hard work. The fate of these Americans fuels our markets. They have no lobby, no trade associations. Their interests are and must be paramount, and I am appalled at what happened to them as a result of Enron's collapse. The Commission as an institution and I, both as its Chairman and personally, are committed to doing everything in our power to prevent abuses of our system from happening again.
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Our primary responsibilities, as you know, are to protect public investors and to promote the fairness, effectiveness and efficiency of our capital markets. In the face of Enron's meltdown and tragic consequences, our staff is currently conducting an enforcement investigation to find out if there had been violations of the Federal securities laws and by whom. When Enron began to implode, my fellow commissioners and I immediately—and unanimously—ordered a no-holds-barred investigation, which is still underway. Until the investigation is completed, we cannot fairly assign blame. The public can be confident, however, that our Enforcement Division will conduct a thorough investigation and the SEC will deal with any wrongdoing and wrongdoers swiftly and completely.
Congress wisely permeated the Federal securities laws with a philosophy that investors must be fully informed and confident that our markets are free from fraudulent, deceptive and manipulative conduct. We are tasked with defining and enforcing these laws. Congress has already given us enormous power to do so.
Even prior to Enron, we had been working to improve and modernize our corporate disclosure and financial reporting system to make disclosures in financial reports more meaningful and intelligible to average investors. Investors are entitled to the best regulatory system possible. To reassure investors and restore their confidence, we must address flaws in our current disclosure and accounting systems that have languished for far too long.
I am committed, as is the Commission, to reexamining every assumption, every rule and regulation in light of Enron. There are fundamental and longstanding flaws in our system, and now they are on the table. No one yet knows the final answers, but at the end of the process we will have a better system of corporate disclosure and financial reporting.
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In his State of the Union address, the President appropriately demanded ''stricter accounting standards and tougher disclosure requirements.'' He wants corporate America to ''be made more accountable to employees and shareholders and held to the highest standards of conduct.'' We at the SEC share and embrace these principles, and we are firmly committed to achieving them. We are at work on numerous initiatives to improve and modernize our current disclosure and regulatory system.
These initiatives include, but are no means limited to, the following:
A system of ''current'' disclosure. Investors need current information, not just periodic disclosures, along with clear requirements for public companies to make affirmative disclosures of, and to provide timely updates to, unquestionably material information on a real-time basis.
Public company disclosure of significant current ''trend'' and ''evaluative'' data. Providing current trend and evaluative data would enable investors to assess a company's evolving financial posture. It would also preclude '' wooden'' approaches to disclosure and encourage evaluative disclosures that begin where line item and GAAP disclosures end. This information, upon which corporate executives and bankers already base critical decisions, can be presented without confusing or misleading investors, without prejudicing legitimate corporate interests or exposing companies to unfair assertions of liability.
Financial statements that are clear and informative. Investors and employees concerned with preserving and increasing their savings and retirement funds deserve comprehensive financial reports they can easily and quickly interpret and understand.
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Conscientious identification and assessment by public companies and their auditors of critical accounting principles. Public companies and their advisers should be required to identify the most critical accounting principles upon which a company's financial status depends and which involve the most complex, subjective or ambiguous assessments. Investors should be told concisely and clearly how these principles are applied as well as information about the range of possible effects in differing applications of these principles.
Accounting standard—setting that responds expeditiously, concisely and clearly to current and immediate needs and reflects business realities. Improved standard—setting is a high priority of ours. The FASB, the private standards setting board for accounting principles, is the appropriate place for resolving debate on technical issues, but it must act. For too many years the FASB has been allowed to fail at setting standards for accounting for special purpose entities. In the wake of Enron, it must act and act quickly to give guidance.
An effective and transparent system of private regulation of the accounting profession, subject to our rigorous oversight. We recently initiated discussion of how best to restructure the regulatory system governing the accounting profession. We suggested creating a new Public Accountability Board to assume responsibility for auditor and accountant discipline and quality control. At least a predominant majority of the members of the new disciplinary body we envision must be unaffiliated with the accounting profession. Our proposed oversight body would be funded not by the accounting profession, but from the entire private sector, giving no group the ability to dictate, control or influence their decisions and efforts.
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A system that ensures that those entrusted with the important public responsibility of performing audits of public companies are single-minded in their devotion to the public interest and are not subject to conflicts that might confuse or divert them from their efforts. Those who perform audits must be truly independent and, in particular, must not be subject to the conflict of increasing their own compensation at the risk of ensuring the public's protection. Their fidelity to the cause of full, fair and understandable financial reporting must be ironclad and unequivocal.
More meaningful investor protection by audit committees. Audit committees must be proactive, not merely reactive, to ensure the quality and integrity of corporate financial reports. Especially critical is the need to improve interaction between audit committee members and senior management and outside auditors. Audit committees must understand what and why critical accounting principles were chosen, how they were applied, and have a basis for believing that the end result fairly presents their company's actual status.
Analyst recommendations predicated on financial data they have deciphered and interpreted. This subcommittee, through your leadership, Chairman Baker, and Congressman Kanjorski's and the full committee, led by Chairman Oxley and Congressman LaFalce, brought sadly needed attention to the shortcomings and the conduct of Wall Street analysts. We see these shortcomings again in the Enron situation. Changes here are long overdue. Working with the Congress and the securities industry, we are on the threshold of new self-regulatory rules that will create more transparency for analyst recommendations.
These are just some of the initiatives that we are considering and resolutions we are proposing for consideration. We are committed to making disclosures more meaningful and intelligible to average investors, and toward that end we are soliciting broad input. We will hold our first ever ''Investor Summit'' this May, to solicit investor input on the policy issues that confront us as we begin reforming our disclosure and financial reporting process. We also plan to hold a series of roundtables to discuss significant issues regarding our ideas for reform and the suggestions of others. We must consider the issues, put forward the most responsible proposals we can, and engage in dialogue with all parties willing to participate. This is the process we have begun, and we are committed to following through promptly on this process by taking all steps necessary to reassure the public and preserve confidence in our disclosure and financial reporting process.
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We have the requisite authority to enforce the Federal securities laws vigorously. We also believe that we already have statutory authority to adopt rules that would implement the important improvements that I just mentioned, as well as others necessary to address the problems in our system brought to light so vividly by Enron's collapse. By the same token, if major and sweeping changes are to be made, even by rulemaking, Congress should, and must, be an active participant in the process.
Congress is the body of Government most directly accountable to the people. We intend to work closely with you to ensure that the regulatory framework we ultimately propose meets your view of what is appropriate and in the interests of the public. In our view, any such changes should include provisions broadly reaffirming and enabling the SEC to improve the current disclosure and accounting system.
One area of possible legislation already identified is the need to require corporate insiders to make public their trading activities more quickly than current law requires. Under the current law, which dates back to 1934, the principal provision covering reporting by insiders calls for filing by the tenth day of the month after the month when the trading occurred. That may have been good enough in 1934, but it is not nearly good enough for our markets today.
Our system must be modernized and improved. We are up to the task, but only if we are able to tap our best minds to produce our most creative solutions and only if we are able to discuss these issues openly, honestly and as constructively as possible. The SEC is committed to that end, and we seek participation by everyone with an interest in our capital markets. Together, we can, we must and we will make a difference. That is our vision and our unalterable mission.
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On behalf of the Commission, I appreciate the opportunity to submit our views on legislative solutions, and I am happy to try to respond to any questions the subcommittee Members may have.
[The prepared statement of Hon. Harvey L. Pitt can be found on page XX in the appendix.]
Chairman BAKER. Thank you, Chairman Pitt. We do appreciate very much your appearance here and your insights. I first want to thank you for your work on behalf of the committee over the past months in an announcement which will be made on Thursday relative to recommendations for analyst conduct.
Chairman Oxley, Ranking Members LaFalce and Kanjorski and I have worked together for some time to take a positive immediate step which I think will be very responsive to the circumstances that have been revealed by the Enron matter, but that is not something that happened overnight. It has been a great deal of effort with a number of parties and it will be a meaningful first step.
In looking at the recommendations in your testimony, I certainly agree with all of them and perhaps have additional ideas to consider to perhaps go a bit further. Corporate governance for boards of directors are constructed at the State level, and, audit standards obviously don't recognize State lines. Theoretically boards of directors are to hire the audit team through an audit committee, to remain independent of management interest and to report to the board on behalf of the shareholder.
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It is my view that that practice in business theory is not necessarily the practice in business reality, and there are two ways, I think, to address that problem. One, as you propose, would be to put larger windows on the house so we can see into the boardroom and have more disclosure by virtue of that transparency. And I have other ideas to add to your very good list.
The other would be, as I said in the opening statement, to take the roof off the House and change the way the auditor is reimbursed. Today, the corporation pays the auditor. Some have suggested that another alternative would be to have the exchanges engage the audit and have the report made available to the corporation and to the exchanges, again to the benefit of shareholders since the transactions are engaged through an exchange. I don't know if that makes a great deal of market sense or not, but if you are paying someone to perform a task, there is a great deal of pressure, I think, for you to perform that task to their satisfaction.
Some have suggested simply barring consulting from the audit function might be the advisable remedy. I am not sure. It doesn't seem the pressure is any less to have a $12 million audit and a $12 million consulting contract than it is to have a $24 million audit. You still want to make management happy. What is your view?
Mr. PITT. Well, I believe that the question of independence is a critical question. The place where independence is the most significant is on the front lines with those who are actually doing the auditing. Those individuals could be influenced by an extra $100,000 or $200,000. What we need is a dual approach: First, one that ensures that those who are on the front line do not have any conflict in their loyalty and obligation to the shareholders of the corporation they're auditing.
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And the second is to impose on the firms the ability to supervise and the incentives to make certain that no effort has been spared to produce the highest quality audit. There are many ways in which that can be done. One of the things that I think is critical is that we and this proposed Public Accountability Board should be given authority to remove auditors where the conduct of the auditors is found to be illegal or is found to be unethical or is found to be incompetent or where supervisory problems have created major issues.
The question of who pays for the audit I think, is a fair one to put on the table. I can't tell you that the right answer is necessarily to try to find another entity to select the auditors, but it is worth looking into, and I do believe in any event that no audit should be deemed to be a prerogative or a right. Firms should be susceptible to losing audits if they do not adhere to the public trust.
Chairman BAKER. It is my opinion after consulting with many boards of directors that it is not uncommon today for management to have significant influence on the audit team report. So I am very interested in finding ways to preserve audit integrity and to eliminate any intimidation by management to direct the outcome. To that end I prepared a letter that outlines the specifics of both approaches, and certainly not to exclude any others you might deem appropriate, but for the committee's purpose. I will forward that to you immediately and ask that the agency respond within the next month, as the matter is of extreme urgency, as to the highest and best standards, in addition to what you have recommended today, as to those elements which I have outlined in that correspondence. Is that 30-day window all you have to do a reasonable request of your time at this moment?
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Mr. PITT. Under the circumstances, it is very reasonable. We will respond in 30 days. If it is possible to respond sooner, we will certainly do that.
Chairman BAKER. In looking at the public record, in 1999, an enterprise, a private enterprise, able to surveil the SEC disclosures, newspaper accounts and a handful of interviews, I presume with energy analysts, came to the conclusion that there were off balance sheet indebtedness in the Enron portfolio that was apparently not that visible to others. Having reached that conclusion, that entity withdrew from a proposed merger. Where is it in the structure of the SEC, recognizing that this is before your time, when does the SEC have an obligation, or FASB, to proactively act and intercede with what is obviously an accounting myth that created real dollar losses 3 years later for innocent third parties? Shouldn't FASB, or the SEC in that day, have taken some action to preclude what was obviously a house of cards?
Mr. PITT. Let me respond to that in several ways. First, I think it is impossible to say that we can expect any agency of Government, even one I think as expert as the SEC and even one that might have significant additional resources, to review every single corporate filing and to find problems where they exist before they do damage to the public. It would be nice if that could happen, but I don't think that's possible. What I do think is possible is to have a system that avoids some of the gamesmanship that we have seen, or at least that's been reported. If people cannot read a financial statement and understand it immediately, if they cannot understand dense footnotes in what is being disclosed, then our system is a failure in that regard.
Chairman BAKER. I will make my point this way because I have exhausted my time. Even if FASB identified the problems, they really don't have authority to take any enforcement action.
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Mr. PITT. FASB is not an enforcement agency.
Chairman BAKER. And even when they are standard—setting it, seems to take them a decade or longer to get something set. We do need a much more responsive mechanism to identify and respond to market impropriety where it obviously is publicly identifiable.
Mr. PITT. I agree completely. We need three levels. One is illegality. The SEC always has had that as its responsibility, and I believe we are doing a vigorous job in ferreting out illegality. We want an effective disciplinary process, however, that will extend to unethical practices; that is, practices that may not be illegal, but are unethical as well as practices that reflect incompetence. All of those three pose significant risk to investors, and we believe we can set up a private sector body that will give us not only protection against illegal conduct, but also unethical and incompetent conduct as well.
Chairman BAKER. Mr. Kanjorski.
Mr. KANJORSKI. Thank you, Mr. Chairman. You didn't have any ill effects from taking the oath, did you, Mr. Pitt?
Mr. PITT. I feel perfectly fine.
Mr. KANJORSKI. Mr. Pitt, you have had a chance, of course, to start your targeted investigation of what happened at Enron. But I assume, based on some of the information and allegations and high media hype on Enron, you have seen a potential for systemic problems of accounting analyst effects, and so forth, on other corporations.
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Can you tell us now whether or not there are any other Enrons out there potentially?
Mr. PITT. My concern is not directed to Enron. It existed before Enron, and Enron only exacerbated the circumstances with the outrageous conduct that occurred. I think our system is capable of being gamed. I think it has been capable of being gamed for a long time. We intend to fix it to eliminate any of the gamesmanship. It is my hope that if we do so and do so promptly we will avoid further Enrons, but of course, there can never be a guarantee of that.
Mr. KANJORSKI. In your opinion, are there other Enrons out there?
Mr. PITT. I believe that we are in the process now of investigating a number of financial frauds. The number seems to be a large number, and some of it may be an outgrowth of Enron, but there are over 17,000 public companies. And my sense is that Enron presents a combination of factors. It is my hope that there are not other Enrons out there, but I am not willing to take the chance and rely on hope. We are investigating a number of situations, and we want to change the rules so that we are satisfied that there are no other Enrons out there. But at the present time no one can give you the assurance that you seek.
Mr. KANJORSKI. During the period of ''irrational exuberance,'' I have been struck that average individuals have been buying shares of stock from their employees' pension funds that are sometimes 100 times their profit ratio. With almost abandonment, sometimes the pension funds, with extraordinary Wall Street management, also engaged in these activities. I just want to make sure that we do not have more employees, more investors over the next several months or years doing the same thing, until we close whatever loophole has to be closed or we arm your agency with whatever powers you need. I am convinced that the average investor presently does not have the insight or the capacity to make some of these judgments, which obviously, the most sophisticated Wall Street analysts cannot penetrate. More precisely, one of the things I wanted to look at: Were you aware of the special enterprises?
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Mr. PITT. Special purpose entities.
Mr. KANJORSKI. It would seem to me that if SPEs were listed on the documents of a corporation and you could see the size and the transaction on a cursory read, one might say I do not want to go there, I do not know enough, or I want to spend the time to find out what they are. If SPEs are not listed, they do not appear in accounting reports. It certainly goes to the question of what is accounting all about if not transparency.
One of the things that I have discussed with other Members of the subcommittee—about which I am most disturbed—is that all of this occurred in a private market. This is not a public market. This is not publicly controlled corporations. These are private corporations, completely removed from Government responsibility. And certainly the practice of accounting is the same thing. It is a profession, and if the profession does go awry and it does injure the general public because it influences the markets and how securities are sold and who suffers losses, the Government has some role in this, but our role should be limited to need. I am just a little worried about the baby going out with the bath water here. We obviously have several thousands—17,000, did you say—public corporations. We do not want to authorize a governmental agency to put its imprimatur on their audits. I do not think you could handle enough accountants to do that, and certainly you would not want to. But, we do have to have somebody look these disclosures over.
I just spoke with a major accounting firm in Pennsylvania over the weekend, in the top 50 nationwide. Its entire business is the cost of the audit in the Enron case. That figure represents its entire revenues for a year. We have the five big accounting firms doing these huge audits and consulting. We also have many smaller firms. So we are really talking about a two- or three-tier situation here.
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I met with the Chairman of Andersen, and their revenues per year are in excess of $10 or $12 billion, I think. So the $25 million audit fee or $27 million consulting fee for Enron is really minuscule to him and to his firm. To the rest of us, it is quite substantial.
Our problem is maybe there is a time when certain size public corporations through public trades should fall under a category of special examination or certification by someone, hopefully a private entity. Also, we should look at some of these larger accounting companies and encourage them to go back to the days when the accounting profession was a profession and not a business, and apply the same standards of professionalism.
I do not think our problem goes to all accountants. My experience is you can rely on audits by most accounting firms in this country and that the individuals are not easily persuaded by consulting fees or the price of the audit. They carry on the standard in the profession in a very high order, probably the best in the world. We are wreaking havoc and injury on them to many other well-functioning corporations because of this case.
Do you think that the Congress, running full speed ahead in putting legislation forward to solve some of these problems, superficially may not be too early? Should we instead participate in your summit in May and listen to some of the problems before legislating? Can you also accommodate Members of this subcommittee and Members of the Congress to listen or participate in some way in that event?
Mr. PITT. Yes. I think the answer to your question is unquestionably yes. My view is we need to take action. We need to do it quickly. It is up to Congress to decide whether you want to do it through legislation or whether you want to do it by working with us and making sure that you are comfortable with whatever regulatory approach we finally select. Either way, you have our complete and undivided cooperation and attention. I am committed to solving this problem. It has roots that have gone on for far too long; and, either by legislation or by regulation, I am determined to solve the problem.
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Chairman BAKER. The gentleman's time has expired. Thank you, Mr. Kanjorski. And I want to echo your point with regard to corporate conduct. By and large, the vast majority of individuals and corporations attempt to conduct their business in a professional and responsible manner, and we have an aberrant actor which does not represent a systemic problem.
Chairman Oxley.
Mr. OXLEY. Thank you, Mr. Chairman.
Chairman Pitt, the Chairman of one of the Big Five accounting firms recently suggested that the strength in audit committee independence should be hired and fired by the audit committee of the board of directors, and one auditor suggests that it should be a crime to lie to an outside auditor. Do you have views on those particular positions?
Mr. PITT. Let me say a few things. I think the audit committee should have the power to select and to discharge auditors based on their work with the audit firm and their understanding of their capabilities and competence and performance. I also think, as I indicated before in response to Congressman Kanjorski's question, that the SEC and the Public Accountability Board should have the ability to take away audits where people engage in inappropriate conduct.
With respect to lying to an auditor, there are already provisions in the Securities Exchange Act which make it a crime as well as a civil misdemeanor to prevent an auditor from performing his function in accordance with the law, which should include some of this behavior. It is not a provision that has been widely utilized in the past, but there already is authority in the statute that would enable the SEC to take action against those who obstruct the filing of public reports that would be honest and accurate.
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As to whether or not we need additional legislation, I guess I come back to my original suggestion. If this is something that you would like us to consider, we will work with you closely. It is not an idea we are prepared to reject out of hand. It is a logical suggestion. We want to see where it fits in and make certain that we know what the ramifications of it are, but we are willing to work with you on all sorts of proposals.
Mr. OXLEY. The issue of auditor independence and scope of service within the audit profession has been in the news and the minds of corporations. You have spoken on this topic many times. Your views on this subject change in light of the action of the Big Five firms and several major companies last week, and what are your current views on this subject?
Mr. PITT. I view what the Big Five firms have done to be a very positive step. It is a recognition of public concern, and I commend them for taking that action. It does not have any impact, however, on all the additional changes in our system that we need. If this is an approach that the firms take to assure public confidence, I think we should support it. And in light of Enron, every position that anybody has taken should be subject to careful review. That's the way we can prevent another Enron from occurring.
So I am not adverse to what the firms have done. I support it completely. I just think it's important for everyone to understand there is much, much more that needs to be done and that this recent action alone will not solve the problem.
Mr. OXLEY. Mr. Chairman, in the Enron Report released this weekend, Enron's outside attorneys were criticized for not bringing a stronger, more objective, and more critical voice to the disclosure process. What oversight role and enforcement power does the Commission have with respect to the work of outside attorneys, and should the SEC have additional authority in that area?
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Mr. PITT. The SEC has authority over attorneys who appear in practice before the agency if they engage in conduct which is inimical to the integrity of the system we have. We can take action to prevent them from appearing and practicing before the agency in a representative capacity. In addition, we have the ability to proceed against lawyers whose conduct rises to the level of having either violated the Federal securities laws or aided and abetted or caused a violation. There have been a lot of tensions between the SEC and the private bar, and times when the SEC had been accused of putting its judgment in the place of the private firms. I think the Commission has authority, but the question becomes what the nature of the conduct is that would give rise to the Commission exercising it. Where lawyers are giving good faith advice, the position that the Commission has taken under my predecessors is that the Commission will not take action against those lawyers. That's been the longstanding policy now for about 20-some odd years.
Mr. OXLEY. Thank you.
Mr. Chairman, thank you.
Chairman BAKER. Thank you, Mr. Chairman.
Mr. LaFalce.
Mr. LAFALCE. Thank you very much.
Chairman BAKER. I don't think your mike is on.
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Mr. LAFALCE. Thank you. Thank you, Mr. Chairman.
Mr. Pitt, one of the first cases that I ever handled after I was admitted to the bar in 1964 involved a professional malpractice where I went after an insurance broker for failing to advise a retailer of the desirability, or indeed, necessity of product liability insurance. There's a difference between proceeding in good faith and proceeding in good faith negligence, and so do you have the capacity to go after attorneys or accountants who may have proceeded in good faith or were still violative of the basic principles that lawyers and accountants should hold themselves to, for example were violative of professional malpractice?
Mr. PITT. There is some ambiguity about the Commission's authority to proceed against professionals in cases where the conduct is simply negligent. In my view, the ambiguity——
Mr. LAFALCE. Is that something we could clarify for you legislatively?
Mr. PITT. Those ambiguities could be clarified legislatively. They may also be capable of being clarified by rulemaking. I believe that some of the ambiguities arose from the wording.
Mr. LAFALCE. I am now specifically asking you to consider very clear rules that could be articulated and enforced by the SEC.
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Mr. PITT. I would be, speaking for the Commission, more than willing to consider whether there is a need for that type of either legislation or regulation.
Mr. LAFALCE. All right. My next question is to what extent did the securities legislation that passed the Congress about 5 years or so ago preclude civil actions for the aiding and abetting of inappropriate practices by accountants, lawyers, and so forth, and leave it exclusively in the hands of the SEC?
Mr. PITT. The legislation, which is the Private Securities Litigation Reform Act, did not affect the ability of private parties to bring an action for aiding and abetting. It left in place a decision by the Supreme Court that challenged the existence of a private aiding and abetting cause of action. There was some ambiguity as to whether the SEC might be foreclosed from bringing aiding and abetting actions and the legislation overturned that ambiguity and made it clear that we could sue.
Mr. LAFALCE. By making it clear you could sue and in not dealing with the Supreme Court decision, didn't they, in fact, ratify the Supreme Court decision, and therefore preclude in the eyes of most people civil suits, and shouldn't we at the very least come in with a legislative remedy if we believe that civil litigation is an appropriate recourse to clarify that fact?
Mr. PITT. Well, I believe that case, which is the Central Bank of Denver case, interpreted the laws as they were passed in 1934. I think it would be hard to——
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Mr. LAFALCE. With respect to at least one issue you said is grossly outmoded, and that was the issue.
Mr. PITT. I have said that the statute is outmoded in its regime of financial and reporting and disclosure. With respect to aiding and abetting, one of the things that I think we would need to do is to look at whether any of the conduct that ultimately becomes actionable in the Enron situation is conduct that might be foreclosed from being pursued. I have no problem going back and reconsidering whether there should be a private cause of action for aiding and abetting. I'm just not aware at the moment as to whether there has been a material adverse impact on investor rights. If there has been, that's obviously something we would react to.
Mr. LAFALCE. I think when you rely so much on SROs, you need strong possibilities of civil litigation and if we are going to continue relying on SROs, it would seem imperative to me, but we can pursue that. Let me pursue another issue, and that is the heavy reliance that investors make not on auditors, not on boards of directors, not even on corporate management, but on securities analysts. These securities firms have been around for a long time. They are prestigious worldwide and they have some young 25-year-old kids who have never seen a depression or a recession or a stock go wrong and they hype these stocks unbelievably.
Analyst hype has been significantly responsible for so much of the rise and so much of the precipitous fall. I don't get angry at the fact that Ken Lay is not going to come here. I'm disappointed at that. I get angry at the securities firms, though, who permit their analysts to sucker in individuals across America and across the world, to make investments when they knew or should have known better, at the very least should have known better, and if they didn't know better, then their rights to be analysts should be taken away from them.
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Now, I'm not sure that the SROs are doing a good enough job. I know they want to make improvements. So far, I think the securities SROs are doing a better job than the accounting SROs and trying to get to the point where they should be, but I don't think they are close to getting there yet. And to what extent does the SEC have the authority, to what extent has it exercised it in stripping individuals of the right to hold themselves out as securities analysts for securities firms?
Mr. PITT. We have brought actions in the past against analysts for conduct that violated statutory provisions.
Mr. LAFALCE. Are you talking about conflicts of interests or are you talking about professional competency?
Mr. PITT. Illegality. What we have sought to do is have ethical standards imposed on top of that so that we are not limited to legal violations.
Mr. LAFALCE. That is important, but in the total scheme of things, Mr. Pitt, I don't think that most of the injury that has been experienced by investors has come about because of criminal or unethical behavior, although to be sure, that has been real. I think much more of it has come about because of incompetency, and I'm wondering what ability the SEC has to deal with that issue, the incompetency of securities analysts.
Chairman BAKER. Your time has expired. We will certainly let the gentleman respond and we can move on.
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Mr. PITT. As I believe you're aware, working with the Chairman of the subcommittee and the Ranking Member and working with the Chairman of the full committee, and with you as the Ranking Member, we have facilitated an effort by the self-regulatory bodies in the securities industry to carefully revisit the conduct that was involved. The fact that there were people recommending Enron stock when it was pennies away from total zero is appalling. I don't understand how people could do that. But I don't believe that the problem needs to go unsolved. I believe we have come up with a methodology under the guidance and leadership of this subcommittee to come up with some very rigorous requirements that go well beyond legal requirements and that will be enforced both by the self-regulators, but also by us. If you look at what happened in the CS First Boston case with respect to IPOs, the Commission, for the first time, enforced—in an injunctive action that wound up with a fine and penalty of a $100 million—self-regulatory organization rules.
So if we have proper rules, the SEC will make sure that the self-regulatory bodies enforce it. If they don't, we will enforce it, and we still have the right to inspect for all of those violations as well, which I can assure you, we intend to do.
Chairman BAKER. And Chairman Pitt, on top of that, the subcommittee fully intends to be a full level of supervision over the implementation and compliance aspect of those proposals. So I think we are entering into a new era. Thank you, Mr. Chairman.
Mr. Shays.
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Mr. SHAYS. Thank you, Mr. Chairman.
Mr. Pitt, thank you for being here. I appreciate it and I know you've got quite a task ahead of you. I would like you to comment on Secretary O'Neill's suggestion that penalties should be strengthened for CEOs——
Chairman BAKER. Mr. Shays, if you would pull that mike closer.
Mr. SHAYS. I'm sorry. Thank you. Mr. Pitt, I'd like you to comment on what Secretary O'Neill suggested in the Wall Street Journal today that CEOs who release misleading financial statements, including barring them from using insurance to cover costs of some stockholder lawsuits.
Mr. PITT. I believe very strongly that there needs to be personal exposure on the part of those who manage and oversee public companies. The ability of managers to have their fines paid by their companies or not to suffer personal consequences, in my view, leaves open the necessary deterrent effect. We have been meeting with Secretary O'Neill as part of the President's working group, and we have discussed these proposals, and I believe that there are ways in which we can strengthen the penalties against individuals.
Mr. SHAYS. I have a number of questions, so the bottom line is you want to strengthen them. Several commentators have suggested that the companies be required to change audit firms every few years, and others have suggested at least within a firm, that they rotate the auditors. I mean Enron—excuse me, Arthur Andersen can say that their business with Enron was only 1 percent of their total billings, but it was 100 percent to those Arthur Andersen employees who had the account.
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Mr. PITT. You raise two very good points. The first is that I think we need to deal with conflicts on the front line, those people who are doing the audits in an office, and make sure that they don't have any diversion of their loyalty. With respect to rotation of auditors, that's an idea that has been around. It's something that I think we all have to look at. Way back when, some 20 or so years ago, there was a study and it concluded that a great number of the financial frauds occurred in the first 2 years of an auditor's engagement. One of the things I think we would all want to be sure of is that we aren't creating more problems rather than less, but mandatory rotation is definitely a serious idea worthy of consideration.
Mr. SHAYS. Is it true that in the year 2000, the corporation and finance division of the SEC decided not to perform the regularly scheduled review of Enron's filing with the Commission? I understand the last time they did it, it was 1997, and that they do it every 3 years. One, is this true, and second, why? And if they had done it, is it likely the SEC, taking this review, would have been able to spot the problems at Enron?
Mr. PITT. I can tell you only the information that's been supplied to me, because, obviously, I wasn't there at the time. My understanding is that in 1997, there was a full review. The next scheduled one would have been 2000, but that it was deferred. The expectation was that there were new standards that were coming up and that there would be a greater basis for evaluating the financial statements. I think there was also some suggestion that, because the company was apparently performing so well, there were decisions made that that could be deferred.
One of the first things that I have done in response to the Enron debacle is to direct our staff to review all of the Fortune 500 companies to do an immediate inspection of their financials to see whether there's anything that jumps off the page. The question as to whether, if there had been a review done, it would have uncovered Enron, is unfortunately impossible for anyone to answer. I don't think that it's necessarily the case that had our staff, back in the year 2000, done this, we would be in any different position than we are now. The fact of the matter is, I believe, that there were sound reasons why they didn't do the review at that time, but, of course, all of us wish that they had.
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Mr. SHAYS. Are we going to be well served by going from the big—what used to be the Big Eight, now the Big Five, to the Big Four? I mean, I would think that would be a big concern, not to use the word again, that we just are seeing that number collapse.
Mr. PITT. I share your concern on that, and it's part of the reason why I say solving the conflict issues will not solve the problem. If you had only one audit firm, just one, it would be the most independent audit firm possible, but it would have the least incentives, since there would be no competition, to improve quality control or competence. So as a result, these are two separate issues. I believe that there has been a need for greater capital in the accounting firms, and one of the issues that we have to perceive is how we can avoid dictating to the firms how much income they can generate instead of applying appropriate protections to make sure that there is no allegiance to anyone but public investors. That's the critical element.
Mr. SHAYS. I will.
Chairman BAKER. Your time has expired.
Mr. SHAYS. Thank you. Thank you, Mr. Pitt.
Chairman BAKER. Mr. Ackerman.
Mr. ACKERMAN. If this indeed was a scheme if that's the right word, was this difficult to set up?
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Mr. PITT. I can't answer that. If it was a scheme, my concern is that because it occurred under any set of circumstances, by definition it was too easy to set up. It should not have been possible for this to happen.
Mr. ACKERMAN. It should not have been, but evidently it was easy enough to fly well below the radar.
Mr. PITT. Apparently this was set up and there are a variety of factors that contributed to it. The one thing that I think your question appropriately focuses us on is to fix the flaws in the system that have been allowed to exist that would have permitted this kind of thing to occur. That is what is critical.
Mr. ACKERMAN. I think there's a lot of public concern about transparency, and one of the things that gives the public confidence is when you have a certified public auditing company with some great prestige, especially that they are acting as well in the public's interest, to be the guarantor that everything was, shall we say, kosher, and they certified that somebody's cooking the books was kosher, if that's the right term of art to use.
If a CPA firm is doing that, should the public not be skeptical and come to a conclusion, why are they only doing this with one of their clients, maybe they are doing it with others?
Mr. PITT. I believe that the public, in light of the disclosures and revelations that have come out, has a perfect right to be skeptical. I want to try to remove that skepticism by giving them renewed confidence that our system is the very best, but there is no doubt that if people have done some of the things that have been alleged to have occurred, investors will lose confidence in our markets. And that would be a detriment to all Americans and something that we at the SEC have a sworn oath to avoid.
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Mr. ACKERMAN. I don't know if you addressed this earlier, because I stepped out for a few minutes, but you had previously said that you are not sure as to whether or not anybody is to blame in this episode; is that right?
Mr. PITT. No. What I said was that there is an investigation that is underway in which I am not a participant. Until that investigation is complete, I don't believe that we can reach conclusions about who is to blame and what laws, if any, were violated. Once our investigation is completed, however, I think we will have the facts on which we can make those assessments and judgments.
Mr. ACKERMAN. Could you help the public, in just simple terms, understand the function of your agency?
Mr. PITT. Yes. Our agency is designed to assist investors who buy ''intricate merchandise,'' as this subcommittee's predecessors called it way back in 1933, that is, it is not a car, an automobile where you can kick the tires and see what you're getting. It's something that's much less tangible than that, and so our role is to make sure that the system gives investors all of the information that they need to make a fair judgment as to whether to buy or sell a stock and to understand the information that they are given. We have many other roles, but in the Enron context that's the principal one.
Mr. ACKERMAN. Is it also your function to regulate the auditing companies as well as the corporation itself that's being audited by the auditing company?
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Mr. PITT. I believe that the statutes that we administer give us authority over accounting firms. I would say that the Commission's approach in past years has not been to regulate as much as it has been to rely on private sector entities.
Mr. ACKERMAN. You say it's not as simple as kicking the tires. I guess that's a good analogy as any for people to understand. I think you can kick the tires. Isn't there responsibility to check to make sure that assets are what they are said to be and debts that are written off, if they really exist should not be written off? I mean the salad oil case, I mean, you know, somebody should have looked into the tank to make sure it was salad oil and not water.
Chairman BAKER. And you're out of order, Mr. Ackerman—time, excuse me.
Mr. ACKERMAN. My water has drained.
Chairman BAKER. Would the gentleman yield back.
Mr. ACKERMAN. Can he just answer that?
Chairman BAKER. Sure.
Mr. PITT. I would just say, of course, that's a responsibility, and it's one that we think has to be overseen and enforced by the SEC, but there's no question that the audits of public companies are designed to give investors confidence that the financial statements have been prepared by management in an acceptable and proper way.
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Mr. ACKERMAN. Thank you, Mr. Chairman.
Chairman BAKER. Mr. Cox, you're recognized.
Mr. COX. Thank you, Mr. Chairman.
Chairman Pitt, you mentioned in your formal remarks, your opening presentation, that one of the areas that the SEC is investigating is the role of the rating agencies. The report that we are going to cover with Chairman Powers in just a short while makes fascinating reading. I haven't read anything so scandalously convoluted since the equity funding scandal, but as the report puts it rather simply at the beginning of the 1990s, even before these SPEs were created, Enron had a substantial load of debt and they were looking to acquire assets and build businesses around them without putting new debt on their balance sheet.
And the reason—according to this special report of the board—they didn't want to put new debt on their balance sheet is Enron wanted to present itself more attractively to the rating agencies, particularly in light of the ratios that were favored by the rating agencies. That suggests what is obvious, in any case, that the rating agencies weren't of much help here at getting beneath what was apparent on the surface. Some time ago, when the treasurer of my county where I live in Orange County, California, committed some notorious criminal acts and bankrupted the whole county, and it became the largest municipal bankruptcy in American history, I got very interested in the role of the ratings agencies because they didn't blow the whistle on that in a timely fashion either, and I inferred that perhaps it was something about the inadequacy of municipal disclosure and the fact that the Federal Government doesn't regulate that nearly the way it does corporate disclosure, but now we've got the biggest municipal bankruptcy in American history and the biggest corporate bankruptcy in American industry, and the ratings agencies in both cases were essentially useless. What is the SEC doing by way of looking into the role of the rating agencies in the Enron matter?
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Mr. PITT. One of the things we are doing is taking a much closer look at how the rating agencies perform, what their due diligence is. They have an enormous amount of impact on the stock market and on corporate bond offerings and the like, and yet they are essentially totally unregulated. We believe that we need to understand how they are performing and come back with a recommendation as to whether we need rules or statutes to deal with some of the abuses that some people believe may have occurred in this area.
Mr. COX. Let me ask you also whether or not you think that given that presently there is not much regulation, in addition to potential new regulation, we might give potential new powers to rating agencies to discover information?
Mr. PITT. I think that, again, there's another avenue that if the rating agencies are under an obligation to do the kind of diligence you're talking about, they could provide another safeguard to public investors, and that's something that's worth exploring.
Mr. COX. I thank you very much, Mr. Chairman, for your comments on that subject and I yield back, Mr. Chairman.
Chairman BAKER. I thank the gentleman.
Mr. Bentsen.
Mr. BENTSEN. Thank you, Mr. Chairman and Chairman Pitt.
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Chairman Pitt, in your testimony you talked about legislation that would update the filing period for insiders when they're selling stock to the public, and I think that's the bill that Mrs. Carnahan has introduced in the Senate. I'm looking at more introducing the bill in the House, but there is another factor, and I'm curious your position on that, and that has to do with sales of stock back to the company, whether to pay off loans or what, and how loans are disclosed on the books, and this doesn't just involve Enron. We have seen it with respect to Tyco and other companies, and it appears, in some respects, these companies are being used almost as a private bank. Is that something that you would be supportive of, of having a more efficient disclosure mechanism?
Mr. PITT. I think the answer is that we do need to take a closer look at that and there may be a need for greater disclosure and greater requirements. I think that, in terms of the disclosure issues, we probably have sufficient regulatory authority, but I can understand why Congress might deem it appropriate to legislate here.
Mr. BENTSEN. Maybe you all can go ahead and change the rules, and we won't have to do that. Let me ask you this: There was a story in the New York Times a week or so ago about the partnerships and the Chinese wall conflict between investment banks that were structuring the partnerships, and in effect, doing private placements and the information that they were giving to potential investors in the private placement, and that that information was not being provided with general stockholders, the public stockholders, and whether or not current law would preclude a banker on one end who's underwriting a private placement from providing any information to the brokerage side as it would relate to the stock, and whether or not you believe that maybe trips the wire of Regulation FD, and whether or not that's selective disclosure.
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And furthermore, I would ask, particularly as we look at some of the Chewco and Jedi deals that they were backstopped, as I understand it, with the ability to issue additional Enron shares as a credit enhancement, which would appear to me to be somewhat material, because that would dilute the value of existing shares that were out there. Would that make sense to you that maybe that's something where there was a violation of Regulation FD?
Mr. PITT. Well, I don't know whether it will constitute a violation of Regulation FD or not, but, if the information was material and it was not disclosed to the public, that's a violation of existing law. And that's what our enforcement division is looking into right now. I think if that case can be made they will make it.
Mr. BENTSEN. And then with respect to the Jedi deal based upon the Powers Report, and all it appears in one instance that there really wasn't true ownership, equity ownership, on the part of the purchaser. I mean, these deals all look to me, in some respects, sort of like the old S&Ls where you took bad loans, flipped them, booked a lot of goodwill that didn't exist to buoy your balance sheet, and then you backstopped it with stock and sort of bet, and the stock went south and so did the company.
But, is there a similarity in your mind where you set up a partnership to move this bad asset off your books, book goodwill that may or may not exist, you create a corporation to purchase it, you guarantee the 3 percent so there really isn't a 3 percent equity contribution on the part of the purchaser? I mean, isn't this—and you guarantee in effect to buy it back. This sounds a lot like parking.
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Now, it's not parking per se, because it's not stock and the like, but it sounds very similar to that. Do the existing securities laws take that into account?
Mr. PITT. I believe they do. We have many cases in which companies use devices like window dressing, and right before the end of a quarter, move assets off their books to try to create an impression. The Commission has brought many such cases. So, if there is the equivalent of parking, as you say, and I think that's an excellent analogy, that means there is no economic reality to the transaction. If that's the case, then it's a fraud.
Mr. BENTSEN. Are you able to determine whether or not that may be going on in other companies, public companies, besides Enron at this time?
Mr. PITT. At the present time, we have started to take a very close look at what other companies are doing with respect to off-the-book treatment of liabilities. This is an area where 20 years ago the FASB was asked to give guidance, and with one or two modest exceptions, they have not given any guidance to either the profession or the public. Therefore, it's something that we have demanded and they have agreed they will do prior to the end of this year.
Mr. BENTSEN. Thank you. Thank you, Mr. Chairman.
Chairman BAKER. Thank you, Mr. Bentsen.
Mr. Paul.
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Mr. Bachus.
Mr. BACHUS. Thank you, Mr. Chairman.
Chairman Pitt, I was going to ask you what your plans were and what your proposals were and to outline where we go from here, but you have done an excellent job of doing that in your opening statement, so I am going to refrain from doing that. I do want to say that I'm very glad that it's become evident, I think to all of us, that the dogs of ruin that were unleashed on Enron were done in 1997 and 1998, and you took over in August as Chairman of the SEC, and as I think every Member here said, there's no suggestion that you did anything improper, and I'm glad that that's been made pretty clear. With that, I'm going to yield to the gentlelady from West Virginia, for the balance of my time.
Chairman BAKER. Thank you for that.
Mrs. CAPITO. Thank you, Mr. Chairman. I suppose the most disturbing thing for me has been the fact that executives were allowed to sell their stocks and that company employees were unable to sell their stocks and ended up losing a lifetime of savings. You mentioned in your remark corporate insiders disclosure reform that you would like to have, but my understanding is that insider trading has always been and is illegal. How could this situation be prevented in the future, and what is your SEC oversight on insider trading? And I would like to hear your insights.
Mr. PITT. I think we are talking about two different types of activity. One is insider trading, which is illegal, and the other are trades by insiders, which are not necessarily illegal under current law. But, the point you make is, nonetheless, I think, quite valid that the situation arose where executives were free to sell their stock, as I understand it, while rank and file employees were precluded from doing so. And I consider the notion that that could happen to be outrageous.
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It doesn't necessarily mean that the actual trades by the executives were insider trading, but it does mean that something is terribly wrong with our system if those in power can sell, but those who have worked with their blood and sweat to make the company a better place have no such opportunity. My understanding is that these things are governed by laws regarding pension plans, and the SEC is given no authority with respect to the conduct of pension plans. We are given authority if a pension plan engages in trading that has an illegal impact, but basically it's the Secretary of Labor and the Secretary of the Treasury who, I think, possess the direct authority to deal with pension plan violations.
Mrs. CAPITO. Thank you. I have no further questions. I yield back.
Chairman BAKER. The gentleman yields back the balance of his time?
Mr. BACHUS. I yield back the balance of my time.
Chairman BAKER. Mr. Sandlin.
Mr. SANDLIN. Thank you, Mr. Chairman. I would like to ask a few questions that were begun by Mr. LaFalce and Mr. Bentsen, not particularly dealing with just the accountants or the attorneys for Enron, but having to do with the investment banking. Someone has to underwrite these——
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Mr. PITT. Sorry?
Mr. SANDLIN. Someone has to underwrite these transactions, someone is extending credit. It's being looked at by stock analysts and investment bankers and credit rating agencies, and of course the analysts are making money through the recommendations, and it's tied to bringing in deals to the investment banks. Do you think that the Stock Exchange should require that firms and analysts clearly note all current holdings in an investment relationship with the companies that they themselves rate?
Mr. PITT. Well, I think that the rules should prohibit any potential conflicts without certainly full disclosure of them. There are a number of ways that can be done, but I agree with you that the basic concept is that anyone who has a conflict should have to have to disclose it in plain English so that investors understand that the recommendations they are getting are not unbiased.
Mr. SANDLIN. And is that going to be a part of your investigation and part of the things you look at in making your recommendations in your list of initiatives to try to make corrections?
Mr. PITT. There is no doubt that that's being looked at. I think the SROs and the securities industry recognize the issue and they have moved to take steps to curtail it.
Mr. SANDLIN. Mr. Pitt, in talking about Andersen, I believe the public would be very surprised to learn that Andersen recently passed its triennial peer review. I noted in the press that on January the 2nd, Andersen touted a newly completed peer review that did not identify the systemic failures of Andersen, and it seems that the peer review erroneously gives the public confidence in these audits performed by Andersen, and due to the fact that we have had these fundamental failures of the system, why did the SEC staff stop work on a lengthy report identifying the shortcomings and how the industry regulates itself as was reported recently in the Wall Street Journal?
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Mr. PITT. I'm delighted you asked that question.
Mr. SANDLIN. I only get about 5 minutes.
Mr. PITT. The first I learned about any such report was when a Wall Street Journal reporter called the SEC the day before the article appeared. Somebody thought it was clever to try to tie me into that report, and, as the article in the 27th paragraph indicated, the fact is that I had no idea there was such a report. Moreover, when we've looked at this, we have found that the so-called report was not really a report at all. The former chief accountant of the SEC apparently wanted a report done that would have established all of the things that the Commission did in this area, a kind of a score card. When former Chairman Levitt left, his staff thought that the project was in such a woeful state that it should not be continued. After Chairman Levitt left, apparently the former chief accountant insisted that the report still be worked on from time to time, but kept taking portions of it home and never allowed the report to be finished. It is my understanding, although I have no first-hand knowledge of this, that sometime before I took over, people made a decision that this was a useless exercise. So, that is the explanation of what happened there.
Mr. SANDLIN. Let me ask you this and I'm not trying to assign blame here. I'm not saying that. Obviously, the report was stopped no matter who began it or what the process was. Do you think that that would be a valuable thing to do now or do you think that would not be helpful?
Mr. PITT. What I think is valuable is to devise a system of thorough review and not peer review, and one of the things we have committed to do is exactly that. It has been our position that the current system of peer review is not working. You have firm-on-firm review. It doesn't provide the kind of discipline that we need, and so we have proposed an approach that basically would provide an independent board that would oversee the reviews instead of having firms review each other, and we would do it on a continuing basis, plus we would give them disciplinary powers and the like. That is one of the reasons why we concluded that the existing public oversight board, while an excellent idea and comprised of very capable individuals, was effectively a failure.
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Chairman BAKER. Mr. Sandlin, your time has expired.
Mr. SANDLIN. Thank you, Mr. Chairman. Thank you, Mr. Pitt.
Chairman BAKER. Mr. Castle.
Mr. CASTLE. Thank you very much, Mr. Chairman.
Mr. Pitt, I have before me a chart which I don't expect you to read from there, sir, but I will read it, a little bit of it too, and I think some other Members may have it. It was presented to us, but it's entitled at the top, ''Investor Information Ensnared in Web of Corporate Reporting Conflicts,'' and then it shows Enron Corporation and then it has Arthur Andersen, Auditing, Consulting. It has special purpose entities, it has investment banks, Merrill Lynch, and so forth, lenders, creditors, Citigroup, JP Morgan, research analysts, credit agencies, which were mentioned by Mr. Cox, and I added law firm to it because somehow it seemed to be omitted from it, and it seems to me all of these entities have something very much in common.
All of these entities have a tremendous vested interest in keeping the price of Enron stock as high as they possibly can by whatever means they can, whether it be proper or improper. That's not to suggest that people who work in this business, for the most part, would do anything improper at all, but it does mean the temptation is there when you start to deal with stock options or whatever. I think if you look at these people—I've been thinking about this a little bit. It probably involves about a thousand people total who are really involved in wanting to keep that stock price as high as they possibly could.
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As a matter of fact, if you want to break it down for the House of Representatives, it probably involves about 6 congressional districts, be they in Houston, in New York, in Connecticut, in northern New Jersey, or wherever it may be. Over here on the other side, we have the investors, the employees, and the shareholders, with the exception of the chieftains obviously, who get stock options, whatever it may be.
Employees and investors and shareholders also have that same interest in keeping that stock as high as they possibly can, but they can't do a doggone thing about it, unlike these people who can do all kinds of things about it if they want to, and that is a very serious problem. This side over here actually represents directly probably hundreds of thousands of people. I don't know that, but stockholders, people directly involved, employees or whatever it may be, and indirectly when you look at pension plans and that kind of thing, it involves millions of people in the United States of America and they are all losers by what happened here today from a financial point of view by what happened with Enron in the course of this last year.
Chairman BAKER. Mr. Castle, I'll just help you with your visual aid. That chart up against the wall over there is the large of what you have before the Members to help those following you. I didn't put attribution on it. I circulated that little pile.
Mr. CASTLE. Thank you. I didn't know that, Mr. Chairman. That chart's pretty hard to read too, sir, but I won't get into that. I only have 5 minutes.
You have a huge impact on the economy of the United States of America about all this, and that's why I think all of us are as frustrated and as upset as we are, and we're not frustrated and upset at you. You're trying your very best to resolve these problems. But I want you to understand the intensity of what we are dealing with.
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I saw your proposals which you have outlined here which I think are good, although I think they need to be fleshed out a heck of a lot, and I'd sort of like to get a time line on some of them as well, but these are the kinds of things that we should be doing, and I think you have the right attitude about going about doing these things, but I think most of us feel and a few Members have asked this, are there other Enrons out there? I mean, Andersen was involved with, I think, Sunbeam and a few other corporations that had rather questionable accounting and other practices along the way. Are there others out there? Are we going to look at a whole year of these reports coming out? That question has been sort of been asked, but I'd like to ask you directly, if you have any indications of anything else going on out there that we need to be worried about since, and then I have a couple of other questions along those lines.
Mr. PITT. Let me say two things. One is, I share your sense of outrage. I assure you that this conduct is egregious, it is outrageous, and it is incredibly troublesome for our entire capital market system, which is still the best in the world, but this has undermined a great deal of investor confidence in it. I believe that there are many possible bases for this problem to have arisen, and we have to start working on those that are most apparent and evident and that give us the greatest chance of preventing another one of these from occurring.
What I cannot tell you is whether there are other Enrons out there. I can tell you that there are other companies now that are doing restatements. In the first 2 months that our chief accountant, Bob Herdman, was on the job, not a single public company and not a single accounting firm walked in the door to ask a single question about appropriate accounting treatment. They were so afraid of dealing with the SEC. We put out the word that if they came in in good faith and they took care of investors, we would work with them to get the accounting right, and now his telephone is ringing off the hook. The best way to prevent another Enron is to have people ask the questions they need to ask and have the SEC give guidance to prevent those problems from arising. That's what we are all about, and that's what we're trying to do.
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Mr. CASTLE. Just remember there is a huge amount of self-interest in all this, and keep that in mind as you make decisions on this. Let me ask this question which I don't think has been asked that was written out here and that is—and I think you started to answer it just then, but have you seen indications from whatever filings you're receiving now that these various entities, the auditors, the company management, the attorneys, analysts, credit rating agencies—all the ones we have named, banks, and so forth, are being more diligent and conservative in their filing, not just the questions they are asking you, but are you seeing that thread through this? Because we have to stamp this problem out.
Mr. PITT. Yes. I think there are indications throughout the system that people are reacting and reacting positively, but what I will tell you is I won't rely on that. I think we have to fix what's wrong with the system; but, yes, I think those people are starting to take important measures to prevent these kinds of problems from arising again. It still will require action by the SEC or by the SEC and the Congress in order to make sure they can't do it anymore.
Mr. CASTLE. Thank you, Mr. Pitt. You and the SEC may be the only ones with your finger in the dike right now. So do your job as well as you can. Thank you, sir.
Mr. PITT. Thank you.
Mr. CASTLE. I yield back.
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Chairman BAKER. Thank you, Mr. Castle.
Mr. Sherman.
Mr. SHERMAN. Thank you. I would also say that I agree with the proposals that you've made. I look forward to putting some flesh on those bones. Usually people who administer Government agencies would like to see their budget increased. So perhaps you'll enjoy this question. The President has proposed simply increasing your budget basically by inflation. What is the largest increase that you could imagine that you would need to do everything possible to give us the maximum possible confidence in our financial and capital markets?
Mr. PITT. I'm going to answer what I think the substance of your question is, but I have to start by telling you I don't think there's a number big enough to give us what you're asking. I just don't think it is possible for a Government agency to provide a guarantee of the entire system.
Mr. SHERMAN. Excuse me. I didn't ask for a guarantee. I just said what would it take to do the best job that could be done?
Mr. PITT. We proposed—bear in mind that my approach when I got to the job was to start with the assumption that we would ascertain whether we needed more people and, as a result, we were prepared to have a limited increase in budget as the President's budget provides. But, we also asked for $76 million for pay parity. That pay parity has not been funded. That is a disappointment to me, and it is my hope that we can get that corrected working with OMB and the Congress. With respect to whether we need more people or not, there are a lot of variables. I had wanted to take 2 to 4 months to kind of get a sense of where people are. Unfortunately I have spent my first several months dealing with 9/11, and now Enron, and that has somewhat delayed me. But, I intend to make a very careful study of our manpower needs, and you can be sure that, if we need more people to do the job, we will not be shy about asking for them.
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Mr. SHERMAN. Let me follow up on that. Part of the problem with the Enron financial statements is some truly incomprehensible footnotes, footnotes that just demand clarification, footnotes that beg for additional questions. Now, back in a prior life, I have dealt with the SEC in public offering registrations, initial public offering. You submit a document when you first register a company, they first go public, and you get questions and they insist that you actually—that every paragraph be clear. What would it take for you to provide that kind of read, review, demand clarity, ask questions, review of every quarterly filing and every annual filing by every publicly traded corporation, not just the day they come in the door, but every quarter that they stay up there on the board?
Mr. PITT. I'm willing to answer that question, but I have to state that I couldn't possibly begin to guess at it sitting here. It's a fair question. I'm willing to try and look into the issue. It may be hard to quantify.
Mr. SHERMAN. Rather than answer it now, but perhaps you could get back to us for the record. But I would point out that if only the SEC had read those footnotes and asked questions, we might be in a better position now. I went through a very scary experience at the cost of your agency, 2 hours of the time of your chief accountant and deputy chief accountant, as they explained to me Raptors and Chewco, and what shocked me was how close Enron came to being completely legal. They explained how Enron had failed to meet the standards for these special purpose entities not to have to be consolidated. The whole issue is about consolidation. And for roughly $30 or $40 million of outside capital, they could have adhered to all these rules and kept all their billions of dollars of restatements off their financial statements and their tens of billions of dollars of capital worth, and we might not have seen, heard of Enron, except through their commercials and their funny ''E'' and their impression of the people of the West Coast when it came to their energy prices. What concerns me is what are you proposing to do to make sure that even if you adhere to those rules—because Enron would still be a basket case, it would still be a sham, $30 million isn't going to cure Enron, it's just going to bring them into compliance with the extremely flawed accounting rules that we have.
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Chairman BAKER. The gentleman's time has expired.
Mr. SHERMAN. I would like the witness to be able to respond.
Chairman BAKER. Certainly.
Mr. PITT. You have put your finger on one of the principal problems, and I echo your concerns. What we want is a system in which people don't try to take a very narrow approach and say, ''well, if we can squeeze it in between these two boxes, then we can do almost anything.'' We want the reality of the situation to govern. Even if a company meets the technical requirements of GAAP, if a picture presented of the company is not accurate, then we believe that that is a violation of law. We have to work our disclosure system to make certain that people can't do that.
Chairman BAKER. The gentleman's time has expired. I'd also direct the committee to the 1990 FASB decision with regard to this matter as well.
Mr. PITT. That is correct.
Chairman BAKER. Mr. Royce.
Mr. ROYCE. Thank you, Mr. Chairman.
Chairman Pitt, we had the Chief Accountant of the Securities and Exchange Committee, Mr. Herdman of the Securities and Exchange Commission, here in December, and at that time, I asked him a question which I would like to repeat to you, and I understand that he had a role in creating the 3 percent rule that actually helps keep these special purpose entities off the books, these partnership agreements, when he was on the emerging issues task force. I would caution that that really needs to be revisited in terms of that FASB rule.
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But, let me just repeat the question I just asked him. If fraud is discovered in this investigation with respect to Enron in terms of insider trading, what is the likelihood that the profits made through fraud through that insider trading would then be compelled to be paid back to Enron so the assets and stock held by the employees of Enron and shareholders of Enron who did not have access to this insider information could then at least be partially benefited?
He said: ''That's beyond my personal expertise.'' I don't know about specific remedies the SEC has available. I think this is called disgorgement, and I would ask you for the policy there with respect to the investigation.
Mr. PITT. There are two ways in which moneys could be returned to investors. The first through the SEC comes from something known as disgorgement, which means that if there are ill-gotten gains, those who have made those ill-gotten gains will have to pay those back and those moneys will go to the class of people who are injured by the improper conduct.
The SEC also has the power to levy fines, but that money goes into the U.S. Treasury. It does not go into the pockets of investors.
A second way in which investors can recover is through private litigation, and there have been a number of private lawsuits filed where investors can demonstrate that they have been defrauded. They are entitled to recover damages under the Federal securities laws, and the courts have been quite active in permitting plaintiffs to recover damages where they have made out their case.
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So those are the two essential ways. I suppose there is a third way. Sometimes the Justice Department will require some form of restitution as part of its settlement of a criminal action, so in a sense that and disgorgement are really the same, but that's a third source.
Mr. ROYCE. With respect to the self dealing with the partnership agreements where tens of millions were made by Enron employees, I would assume that arguably that would come under that provision as well.
How about with respect to the accounting firm Arthur Andersen that may or may not—we haven't heard the Andersen side of this, but we know the initial report that came out this weekend with respect to Enron's analysis argues that those partnership agreements were set up with the structural advice of the accounting firm. The accounting firm supposedly was paid $5.7 million to set up those partnership agreements. What's the likelihood that there could be action there with respect to——
Mr. PITT. I think there have been a number of suits already filed against Andersen in the private litigation. And, again, the SEC also can bring action against Andersen.
Mr. ROYCE. Can you do it in a way it doesn't make the beneficiary the Treasury, but makes the beneficiary the victims?
Mr. PITT. Through disgorgement? The answer is yes.
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Disgorgement and prejudgment interest, the answer, it could be done. We have done that in cases where we have found entities to have violated the law.
Mr. ROYCE. The Enron collapse has generated an unprecedented level of media and public attention, but Enron is not the only significant bankruptcy to hit shareholders in recent months. K-Mart and Global Crossing recently filed for bankruptcy protection as well. Global Crossing was the largest bankruptcy filing in the telecom industry and the fifth largest corporate bankruptcy in the U.S. The SEC has recently announced it is investigating Global Crossing's accounting. Are there regulatory and policy issues that are common to these collapses? Are there concerns unique to Global Crossing or K-Mart that the Congress and the public should be hearing about?
Chairman BAKER. Mr. Royce, your time has expired.
Mr. PITT. I think the answer to your question is yes. I think that there may be aspects of this that are unique to the companies. That will have to await an investigation, which I am not involved in. But, as soon as we get the results of that, we will know that. But there are items that are common, and that's why I have talked today, and in the past, in trying to repair a system that has been allowed to languish in need of repair for far too long.
Chairman BAKER. For the record, before recognizing Mr. Inslee, I just have three documents relative to FASB actions relative to the 3 percent investment rule in 1990, 1991 and 1996; and I would like to introduce them into the record for Members' review.
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[The information can be found on page XX in the appendix.]
Chairman BAKER. Mr. Inslee, you are recognized.
Mr. INSLEE. Mr. Pitt, I am down here on your left.
Mr. Pitt, I want to be helpful. I am from the Seattle area, and I represent thousands of people who were victimized by Enron who never bought a single Enron share of stock, but they got hurt because Enron was successful in capturing the energy policy of the United States and making sure that the Federal Government took no action for months and months and months to restrain these very, very injurious electrical price hikes which were benefiting Enron and hurting consumers all up and down the West Coast in the billions of dollars. Now we're told that involved in that decision were secret meetings between Mr. Lay and the Vice President where that issue was discussed.
I can't vouch for the total accuracy, but I have been told on April 17, 2001, Mr. Lay met in a secret meeting with Mr. Cheney and urged the Administration to take no action to restrain these huge price increases. I am told that the next day, on April 18, 2001, the Vice President announced to the Los Angeles Times that the Administration was against taking any action to help the consumers in the West Coast in this regard; and, for months thereafter, the Administration failed to take any action to restrain prices. Finally it did, after essentially, I think, being shamed into what was going on on the West Coast.
Now the question I have, the Vice President has refused to talk about those secret meetings or give any information about them. I would like to know whether the SEC is investigating that situation where Enron was successful in exposing the West Coast to these predatory pricing factors?
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Mr. PITT. One of the things that I have learned in my 6 months in office is that we get very little credit for anything, but we do get blamed for just about everything. I cannot respond to that question because it does not fall within the SEC's jurisdiction. If there is something that relates to securities anywhere in that context, you can be sure that our Enforcement Division will leave no stone unturned. But in terms of general energy policy, that, frankly, is beyond our competence, and I couldn't begin to give you any answer on that.
Mr. INSLEE. Who is investigating how that occurred for the Federal Government?
Mr. PITT. I think there are a variety of investigations that are going on, including in the Congress. There appear to be more investigations than one could throw a stick at. So I assume that somewhere that is being dealt with. It is enough for us to try to deal with the problems that we do have jurisdiction over, and I can assure you that we are making a very concerted effort to deal with those problems in a way that will make both sides of the aisle pleased with our actions.
Mr. INSLEE. Mr. Pitt, we would like to help you in that regard. Many of us would like to make sure you have the resources, the cops on the beat to get this job done. And this is a big, big job. This is a systemic failure that we need your organization to be very aggressive on.
I would ask you a question. There is a disagreement in Congress about resource allocation. Some of us feel that it's a high priority to give you more cops on the beat to work on these issues. Some of us feel that, no, it's more important to repeal the AMT adjusted tax and give Enron over $250 million in a retroactive tax break. What do you think is more important to this country right now, a $250 million tax break to Enron and other corporations or beefing up your security apparatus and giving you more resources to get this job done? If you had to make that call, what do you think is more important?
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Mr. PITT. One of the blessed aspects of this job is that the SEC is an independent regulatory agency. As much as I would like to assist you on that question, I don't have any basis to believe that the SEC would take a position on that.
What I will say is that there is, obviously, a need for the securities laws to be enforced in a way that gives investors the assurance that events that gave rise to Enron are not likely to recur. or me, that is not only my first priority right now, it's my only priority.
Chairman BAKER. Your time has expired, Mr. Inslee.
Mr. INSLEE. Thank you, Mr. Chairman.
Thank you, Mr. Pitt.
Chairman BAKER. Mrs. Biggert.
Mrs. BIGGERT. Thank you for your patience. We appreciate the time you have spent with us.
I understand that the SEC has issued guidance about 2 weeks ago on the special purpose entities and the market-to-market accounting, and I think the third one was related-parties transactions; is that correct?
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Mr. PITT. There was a petition filed, and we put out a release giving interpretative advice with respect to some of those issues. Yes, that's correct.
Mrs. BIGGERT. What I was wondering was whether you received any feedback either from the accounting firms or from corporations, companies on this?
Mr. PITT. I will ask. Our Chief Accountant happens to be here. I know that the request for guidance came from the accounting firms. So my assumption is that either there was no feedback or it was positive. I don't know if we have heard from corporations.
What I am told is that the feedback so far from corporations has been positive. But it's so new that it's still a little early to reach a definitive conclusion.
Mrs. BIGGERT. So is there any deadline or any time period for any feedback, or is this just open-ended?
Mr. PITT. No, it's not open-ended. The interpretative release we put out is effective, and there is no further kick-in period. People will have to start complying with it.
But we have put deadlines on every aspect, including what we have asked FASB to do in terms of coming out with guidance. We have given them a deadline. We are putting deadlines on ourselves.
I must confess that, when I started this, many of the issues were identical. Enron was a poster child for this. I thought we would probably need about 2 years to implement the kind of changes that we're talking about. I no longer believe we have that much time, and we are rethinking our entire timetable.
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Mrs. BIGGERT. Has there been any feedback as far as the cost of compliance? Is there anybody saying that the cost of compliance would be too high?
Mr. PITT. I have not heard that yet, but you raise to me what is a very, very important point. We have a very difficult balance. We do want investors to be fully protected and confident. But if the benefits are outweighed dramatically by the costs, we need to know that, and we need to avoid trying to make the imposition of those things a normal course.
One of the things I am trying to do is hire a Chief Economist who will assist us in making those determinations.
Mrs. BIGGERT. So there really hasn't been any negative feedback?
Mr. PITT. We have not gotten any negative feedback. But I am sure if there's a concern, we will hear it.
Mrs. BIGGERT. Thank you very much. Thank you for being here.
Thank you, Mr. Chairman.
Chairman BAKER. Inquiry has been made as to how the subcommittee will proceed with the next panel. It is my intent to finish this round of questions with Chairman Pitt and then move immediately to Mr. Powers. We have limited opportunity to receive his testimony, so the subcommittee will stay engaged into the early evening if necessary to conclude that work. Nutritional considerations are at the Members' own choosing.
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Mrs. Jones.
Mrs. JONES. Thank you, Mr. Chairman.
Mr. Chairman, good afternoon. You know we only have 5 minutes. I am going to keep my questions short if you keep your answers short for me.
Let me ask you, before you became the Chairman of the SEC, what did you do?
Mr. PITT. I was a lawyer, and before that I worked at the SEC.
Mrs. JONES. What was your practice as a lawyer?
Mr. PITT. General corporate and securities practice.
Mrs. JONES. Did you ever represent any of the five accounting firms that are being discussed in the news?
Mr. PITT. I represented all five of them and the American Institute of Certified Public Accountants.
Mrs. JONES. I used to be a judge, and often litigators would file before the court affidavits of prejudice or ask judges to recuse themselves because of some prior relationship—either they were a lawyer with the firm or some other reason. Do you have any reason to believe as a result of your prior practice that there could be—and you know, in the ethics law they don't say it has to be an impropriety, but an appearance of impropriety. Would you answer that for me?
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Mr. PITT. Sure. I believe that any questions that anyone wants to ask of me are legitimate, and I have an obligation to try and respond to them. I want the Members of this subcommittee and of Congress to have confidence in me. There is not the least bit of concern that I can detect, either legally or from an appearance point of view, with my trying to resolve the very difficult issues of restructuring our system of financial and narrative disclosures. We have made a decision that I will not participate, and am not participating, in any investigation that is specifically focused on an accounting firm. So that is why I have not participated after authorizing the staff to investigate Enron. That's why I have not participated in the investigation.
Mrs. JONES. That deals with the issue that you believe has the appearance of impropriety by you not involving yourself in the investigation.
Mr. PITT. This has been reviewed by the SEC's General Counsel, who predated me at the Commission. There is not any inhibition on my trying to solve generic problems. When I left private practice, I left my clients behind.
Mrs. JONES. I don't mean to offend you, Mr. Pitt. I am really asking these questions on behalf of the public who needs to know just as we are talking about disclosure.
But, I guess the final question I have in this range is then that if as we move along it would appear that there were a situation that you did not sit—sitting as you do today, recall that you gave some advice or counsel to one of these folks, you would then be willing to disclose or step away or whatever was required in that instance? Because it happens to everyone who practices for a considerable period of time that they may not recall that they gave advice or counsel, sir.
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Mr. PITT. It's always possible. And if I became aware of something that I thought created an obligation to step aside, I would.
Mrs. JONES. Thank you very much. I appreciate your response.
Let me ask you, what is Regulation FD dealing with traders trade by insiders as it relates to what we have been discussing with Enron?
Mr. PITT. Regulation FD was a rule that was proposed and adopted by the Commission to require that if a corporation discloses material information to anyone it must disclose it to everyone.
We have proposed a different approach to that issue, although we would not repeal Regulation FD. Our approach is to say the companies should be affirmatively required to disclose material information to everyone.
Regulation FD is an anti-disclosure rule. You can satisfy it by not disclosing anything to anyone. What I want to see is a system in which companies are affirmatively required to tell all material facts to investors.
Mrs. JONES. And that Regulation FD—and I am no securities lawyer by any stretch of the imagination—would allow insiders like the Enron folks to dispose of their stock as long as they had in place a plan for disposal of the stock and there was no information that they had that would not have already been in the public purview.
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Mr. PITT. No. There is Rule 10b5-1, which the Commission adopted again in a previous Administration. It basically says is if you have a pre-existing intent to sell and you can demonstrate it as the rule requires so that you can show that you are not influenced by any additional information you get, then you will be able to continue along that plan as long as it meets all of the requirements of the rule and doesn't reflect any other fraudulent behavior.
Mrs. JONES. So that would be a way in which the Enron folks could claim—and you don't know the facts—but if they could show that they disposed of this property with a plan in place and no further information, they may not have any liability or culpability for selling their own stock; is that correct?
Mr. PITT. That's a possibility.
Chairman BAKER. The gentlelady's time has expired.
Do you want to follow up?
Mr. PITT. I disagree with you that you are not a securities lawyer. You're doing a very good job.
Mrs. JONES. With that, I will say thank you very much.
Chairman BAKER. Mr. Chairman, try using a lot more of that.
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Mr. Ose.
Mr. OSE. I first want to make sure that you receive the plaudits that are due you as you have in the past—for your efforts following September 11 in reestablishing and getting the capital markets opened. You did a remarkable job. And while Enron is a huge, huge issue, it is minuscule in comparison.
Mr. PITT. I appreciate that, and I would make one observation, that all of the techniques we used to solve the 9/11 problem are exactly the same techniques we are using to solve the Enron problem.
Mr. OSE. I want to go on to my questions. I notice in your testimony in the third paragraph that you are effectively saying that this investigation into Enron is under way; is that correct?
Mr. PITT. That is correct.
Mr. OSE. The second question I have is when I'm called and the responsibilities that fall on me as a subcommittee Chairman on Government Reform to inquire about the status of an investigation on the alleged favorable placement of IPO stock to certain elected officials, the response I get is the SEC cannot comment one way or the other as to whether or not an investigation is under way. So here you are in front of the whole world saying that an investigation is under way, and yet when I have called asking about the alleged placement of IPO stock with certain elected officials the response I get is SEC cannot offer any comment. Can you reconcile those two?
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Mr. PITT. I can, but I hope it hasn't been a call you have made to me.
Mr. OSE. You and I have talked about something else.
Mr. PITT. Let me explain it to you. The Commission's policy is neither to admit nor deny the existence of an investigation as a general proposition because the mere fact of investigation does not mean that anybody has done anything wrong. However, in a situation of national importance like Enron where the company itself discloses that it is under investigation, they made the disclosure first, it seems to me pointless for us to deny or not confirm the fact that they are telling the truth, that we are investigating them. And so that is the distinction that we have followed. We have done that in a number of other areas.
Mr. OSE. Let me draw the parallels for you. The Enron investigation talks about alleged inappropriate behavior on the part of corporate officials. This situation I called asking about introduces the concept that perhaps there's inappropriate behavior by elected officials receiving preferential treatment in the place of IPO stock. I don't know of anything that is more important to the body politic in this country than whether or not their elected officials are being improperly rewarded, and I can't find out from SEC whether or not there's an investigation going on. Is there an investigation going on in this issue?
Mr. PITT. Since I am under oath, I can tell you with great confidence I don't know the answer to that question. I don't know whether there is such an investigation. If there is one or isn't one, I don't know. If there isn't one, I don't know why we haven't at least explored whether there are ways we can discuss this. But once we make an exception to our general rule, we undermine the integrity of our investigative process.
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Mr. OSE. My time is waiting here. My only point is that the parallels between the two sets of circumstances are uncannily similar: One is corporate officials; one is Government officials.
Now I want to go to the third question I have, and that has to do with Enron. We have heard a lot of talk how people lost a ton of money because the stock collapsed. But on both sides of the transaction there is a seller and a buyer. If the stock is falling, the seller who might short sell or might buy puts or sell calls makes as much money as they would if the stock were appreciating. Is the SEC investigating what happened to the stock in these various—investigating whether or not people benefited from short selling the stock out of these SPEs?
Mr. PITT. I cannot tell you exactly what our enforcement staff is investigating because I am not involved in it. What I can say is that if there's any reason for them to believe that violative conduct took place in that connection, I am positive they are investigating it.
Mr. OSE. I will commit this avenue of thought to you because I happen to think just intuitively—my instincts tell me something happened of this nature—can't prove it to you yet, but my instincts say something went on here.
Chairman BAKER. The gentleman's time has expired.
Mr. Moore.
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Mr. MOORE. Thank you, Mr. Chairman.
Mr. Pitt, we've heard testimony today about Raptor, Braveheart, Chewco, LJM. You have you heard that testimony, sir?
Mr. PITT. I've read about them.
Mr. MOORE. Do you know those to be limited partnerships?
Mr. PITT. I have read that they are limited partnerships, but I have no direct knowledge about any of them.
Mr. MOORE. Are you aware that Enron had created a number of limited partnerships or have you heard that?
Mr. PITT. I'm sorry. Enron——
Mr. MOORE. That Enron created a number of limited partnerships?
Mr. PITT. I have certainly read that, yes.
Mr. MOORE. You don't have any personal knowledge of this?
Mr. PITT. I am not involved in the investigation.
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Mr. MOORE. Do you have any idea or understanding as Chairman of the SEC why Enron would create limited partnerships?
Mr. PITT. There are reasons why limited partnerships might be created. What I cannot tell you is why the specific types of limited partnerships that appear to have been created here were created. It's just something that I can't address for you.
Mr. MOORE. All right. Is it your understanding that some of the principal officers or officers in Enron were involved in these limited partnerships?
Mr. PITT. That's what I have read, yes.
Mr. MOORE. Do you know William C. Powers, Junior?
Mr. PITT. I don't know him personally, but I know him by reputation and by reference to the report he issued yesterday.
Mr. MOORE. Have you read that report, sir?
Mr. PITT. I have not read the whole report, but I have read the executive summary. I am still wading through the whole report.
Mr. MOORE. In fact, is it your understanding that he served as Chairman of the Special Investigating Committee of the Board of Directors of Enron Corporation?
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Mr. PITT. That is my understanding, yes.
Mr. MOORE. In the executive summary that you read, Mr. Pitt, did you see that Mr. Powers found that CFO Andrew Fastow and other Enron employees involved in these partnerships enriched themselves in the aggregate amount of tens of millions of dollars?
Mr. PITT. I have seen the number $30 million attached to it. That's what I have read.
Mr. MOORE. Do you have any reason to disagree with that?
Mr. PITT. I don't have a reason to agree or disagree. I would assume that they would have checked before they wrote their report, but I have seen a lot of things in writing that don't appear to be accurate.
Mr. MOORE. I have, too. Did you see his conclusion that we found that some transactions were improperly structured? If they had been structured correctly, Enron could have kept assets and liabilities, especially debt, off its balance sheet, but Enron did not follow the accounting rules.
Mr. PITT. That's what I understand to have been their conclusion.
Mr. MOORE. And did you also see his final conclusion, or one of his final conclusions, that there was a systematic and pervasive attempt by Enron's management to misrepresent the company's financial condition?
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Mr. PITT. I believe that was one of the conclusions that is in the report.
Mr. MOORE. Would those conclusions, if they are true, be a concern to you as Chairman of the SEC?
Mr. PITT. They are an enormous concern to me as Chairman of the SEC and as a citizen, and I am outraged if they turn out to be accurate—outraged.
Mr. MOORE. I assume that's part of what you want to do, if in fact any of those conclusions are correct, to try to make sure these things don't happen in the future with regard to other corporations; is that correct, sir?
Mr. PITT. Absolutely. And in some respects, even if they're not illegal, we still have work to do to make sure that investors are fairly and fully informed. We are not responding solely to illegality.
Mr. MOORE. You have detailed a plan or a proposal to try to assure that. What can we do? Can you give us a short summary in the couple of minutes I have left as to what we can do to make sure that investors are not deceived in the future?
Mr. PITT. I don't have a monopoly on ideas, but what we have proposed is a substantial revamping and revision of our disclosure and financial reporting system, a substantial revamping of the way audit committees perform their functions, a substantial and significant improvement in the private discipline and oversight of the accounting profession and the promulgation of accounting standards that make common sense instead of just give people a target to shoot at so they can say they complied with GAAP.
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Mr. MOORE. What kind of accounting standards would we have that would make common sense and give people an understanding of what information is intended to be conveyed?
Chairman BAKER. That would be your last question.
Mr. PITT. My concern is that the FASB has promulgated standards that are too detailed. I think what we need are standards that basically address what the concept is, what are the core principles we want to achieve and then have those articulated so that nobody can try to finesse their way around what the concepts are by relying on the literal language of some detailed provision in paragraph 12(6), which is what happens now.
Chairman BAKER. Thank the gentleman for yielding.
Mr. Leach.
Mr. LEACH. Well, thank you, Mr. Chairman.
There are a lot of public issues that have been raised properly, ranging from 401Ks to campaign reform issues, and I would just like to raise a couple that tie directly to this subcommittee's jurisdiction.
The first is it seems to me that the Enron collapse in the bankruptcy proceedings and following it underscore the need for the Congress to move on to what's called netting reform, whereby when companies go into bankruptcy, there's an automatic netting of financial derivatives contracts, and the Enron example could be very chaotic if this had been a financial company instead of an energy company that had gone bankrupt.
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Second, it seems to me just as there's an issue of SEC resources there's also one of jurisdictional bifurcation; and my sense is that the Enron issue really underscores the need for Congress to review again whether the SEC and CFTC ought to be combined. Also, I think we are going to have to review whether certain derivatives, energy contracts should be outside the realm of regulation.
Third, I am in some ways as concerned with the legal as well as the illegal or possibly illegal acts of Enron. For example, this whole notion that tax shelters in the Cayman Islands can be used to hide tax losses may be legal, but its fairly unconscionable; and likewise the full notion that you have tax shelters in the Caymans—and Enron apparently had 900-some—to shield the company from alleged tax liabilities is equally unconscionable. And I raise this from the perspective of a couple of questions.
One is, as head of the SEC, do you have a position on the netting issue and whether Congress should move on something this subcommittee has twice passed?
Second, given the particularly—this whole problem of derivatives, what is your view on combining of the SEC and CFTC?
Finally, do you think the SEC and, for that matter, the IRS ought to give priority attention to all business schemes which organize offshore to avoid U.S. tax and U.S. regulatory laws? Do you have any recommendations to Congress and what steps you think might be taken in this particular area?
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Mr. PITT. Well, let me try and respond briefly to those.
I have joined Chairman Greenspan in supporting the netting provision change in the bankruptcy laws, and that was a position obviously that was intended to reflect realities that we believed at the time. It is my view, as I have said, that the more we learn about Enron, the more people have to rethink prior positions. It doesn't mean that you'll change those positions, but it means that at least everything has to be fair game and on the table.
As for the combination of the SEC and the CFTC, I think that's a very complicated issue. It is not clear to me that we will enhance the effectiveness of either agency by combining the two.
So, in one sense, I don't start by trying to increase our territorial reach. I think our territorial reach is quite broad, and I think we've in the past neglected some areas. It's something I would certainly be willing to work with this subcommittee on and with you on to consider, but I don't start out by advocating the position of the agencies. We have worked very closely with the CFTC, and I have worked very closely with Jim Newsome, and the President's Working Group on Financial Markets has provided a good forum for us to work collaboratively.
With respect to foreign corporations using foreign tax havens and the like and bank secrecy statutes and the like, I think this has been a problem. Some of it is addressed in the PATRIOT Act, because using foreign jurisdictions is also a way that people can hide terrorist illegal activities and it's something that I think we have to take a very close and hard look at to see whether we are allowing illegality to go undetected.
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Chairman BAKER. The gentleman's time has expired. Thank you, Mr. Leach.
By regular order Mr. Watt would be next, and then you would follow. The gentleman defers.
Ms. Jackson-Lee.
Ms. JACKSON-LEE. Mr. Chairman, I cannot thank you enough for your kindness and indulgence of this subcommittee and the Ranking Member, Mr. Kanjorski, and the full committee, Mr. Oxley and Mr. LaFalce.
Mr. Chairman, you must recognize that many of us who have interacted with some of the bleeding that has occurred, looking at the human face, the ex-Enron employees, many of whom who have traveled here to Washington as well, the pensioners and retirees, many of whom live around Houston, Texas; and of course, the State of Texas, really look at what has occurred as a failing of our system for them. They had great faith, not only in their corporation, but in the structures of laws.
One of the things that they have reminded me of, they look for several elements—objectivity, independence and integrity. That seems to have been a wash in the circumstances of Enron with respect to oversight.
The other thing that we noted was, although it was a cause for great joy, the seemingly meteoric spiraling of stock prices in Enron starting in 1984 was about $5 or $6—it wasn't Enron then—but moved quickly between 1999 and 2000 to a $90 peak.
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Two questions I would like for you to explore for me in light of the pain that so many of these employees are facing. We will hear from them—people who can't get insulin, can't get dialysis, just a huge outpouring of occurrences. Where was our oversight as relates to the independence and objectivity of the auditing firm? Where did the glut of money start rising in the simple stereotype with the accountant with the glasses on and pouring over numbers and coming up with whatever the truth was? How do we get into this business where accounting firms felt obligated to be engaged in consulting on the basis of just needing money? And how quickly can you act to separate out those functions on the regulatory factor?
Then, secondarily, whether or not any red flags at the SEC, knowing that it preceded your timing—I think the peak of the stock price was August 23, 2000, when it went to $90, but there were promises it would go up to $120—aren't those red flags that there ought to have been some intervention, some oversight, more in-depth review of the company at that time?
Mr. PITT. Those are critical questions. And the first one—it is not possible for me to address the specific situation of Enron and how the auditors performed there, but what I can tell you is that the sense of outrage and concern that you very articulately expressed is something that I completely agree with. If there has been a failure by accounting firms in any of these cases, speaking generically, they must first be brought to task to answer for what they have done; and, second, we have to repair the system so that it doesn't happen again.
I am focused at this point in time on trying to repair the system so there aren't any more people in your district or in any other district in this country who suffer what these people have suffered. They were innocent victims, and I grieve for what happened to them. So we have an obligation to do something about those, and we will, and if we conclude that the auditors were derelict in their responsibility, you can be certain that we will take every step within our power to address that.
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With respect to the notion of independence and consulting, let me say that there are two levels. I believe independence is an absolutely critical requirement. It is the bedrock of financial statements in this country. In my view, the first place one has to look is on the front lines. The audit partners who are doing the audits are absolutely required to be above any question and not to be subject to any confusion about where their duties lie.
I think, in terms of the way compensation has existed, there are considerable questions whether that was appropriately handled in the first instance.
For the firms, to me the issue is making certain that the firms fulfill their responsibility to ensure that the people on the front lines do an honest count and an honest audit, just as you're referring to. I am very much concerned that all of the incentives in the system be geared toward getting exactly that result.
How quickly can we respond? Well, in the first instance, it appears that the major accounting firms have suggested that they will voluntarily cleave off some of their consulting efforts that have raised questions in some people's minds. I believe that we have to look at this independence question also, and if there are problems there, we have to act quickly. I believe that we can take action generally within about a 90-to-120-day timeframe once we have concluded that there is something that we should do.
We are going to try our best to make certain that we don't expend any extra time trying to solve these problems, but we do have to give people the opportunity to be heard and to share their views with us and make certain that we are not headed down some wrong path that might create a problem worse than the one we are trying to solve.
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Ms. JACKSON-LEE. I appreciate the time that we have in questioning.
Let me just quickly say, you offered or extended your agency's willingness to collaborate with Congress. I think the voluntary aspect is something that is commendable, but we need laws to change what has happened. I ask you to comment on the red flag—not specifically of the company—but red flag when you see the inflation of stock going up. Is there a time and place to intervene, to be able to look to ask the hard questions, what is happening?
Mr. PITT. In hindsight, it may well be that the rising price could have triggered some questions. What everyone hopes for when they invest in a company, obviously, is that the price will go up. Even though I don't invest in the stock market because of my job, everyday I keep hoping that the Dow Jones will jump dramatically and keep on going upward because that is better for the economy and the country.
I think there's no direct correlation, however. Just because a company's stock price rises doesn't necessarily mean that there was something fraudulent.
On the other hand, I think dramatic movements can sometimes contain the seeds of clues that would raise red flags, and one of the things we do is have a market stock ''watch.'' We have a very sophisticated computer system that kicks out strange movements in stock, but also correlates them to major news stories and looks back to see if people traded before the news came out. I think we can increase the sophistication of what we have, but your essential point is one that I completely agree with. We have to be alert to any signs that something may be amiss in the system.
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Chairman BAKER. The gentlelady's time has expired.
Mr. Chairman, I heard this admonition: ''If it grows like a weed, it probably is one.'' Not bad advice.
Mr. LaTourette.
Mr. LATOURETTE. Mr. Chairman, thank you for your patience both during our discussion on whether or not the witnesses needed to be sworn in and also during the questioning.
When we get about this time of the panel, most of the innovative and thoughtful questions have been asked. I have been troubled and I want to talk about something that is parochial in the last couple of minutes of my time. But, Mr. LaFalce in his opening statement, and I think Mr. Sherman and even the benign Mr. Inslee, talked to you a little bit about your budget, and Mr. LaFalce made the observation that perhaps the President's request wasn't enough. Mr. Sherman threw you a beach ball and asked you to hit it out of the park. As a director of an agency, who wouldn't want more money? And Mr. Inslee asked you to balance alternative minimum tax repeal versus more cops on the beat, which is familiar rhetoric here on Capitol Hill.
Does the President's proposal—and I understood your answer on pay parity, and you're going to have that out with Mr. Daniels at OMB, but does the President's proposal, in terms of what your budget is going to be, cause you any concerns at all that you will not be able to execute the things that you've laid out for us in your testimony today?
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Mr. PITT. It doesn't, or at least let me say it didn't. We were amenable to a very modest budget increase to be consistent with national budget policy. What we had thought was there would be pay parity.
In light of both 9/11 and Enron, obviously I have not had the time to see whether there are deficiencies in our manpower, but don't start by assuming the answer to every problem is more people and more money. I think we should use the people we have efficiently and smartly, and then if we need more, we should come back and make the case.
Mr. LATOURETTE. Watching you for the last 3 hours, you don't strike me as the kind of person, likewise, who would be squeamish about asking for more stuff if you felt you needed it to do your job.
Mr. PITT. Nobody has accused me of being a shrinking violet.
Mr. LATOURETTE. There is a similar problem in other parts of the country that has to do with fraud and neglect, and I just want to ask whether it has come to your attention. Ms. Jones and I are from Cleveland. There's a fellow who worked for Lehman Brothers—in charge of that office, and I understand that this is something that has been repeated in New York and also in Illinois—who for 15 years directed false statements to a post office box and walked away with about $300 million of investors' money, and I ask you is this the first time you have heard of it?
Mr. PITT. I don't know if I have heard of this specific situation. I would like to tell you that I never heard of anything like that, but even in the 6 months I have been on the job, unfortunately, I have seen a lot of comparable things.
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Mr. LATOURETTE. Like in the Enron situation where people have been on the line or over the line, I don't think we are going to have a problem there in that this fellow left a note behind for the FBI. He wrote a letter to his mom saying he would like to turn himself in. So, hopefully, he will turn himself in with the money.
Mr. PITT. I wouldn't take bets on the latter.
Mr. LATOURETTE. I am not, either, but it is of great concern to the people who trusted him for 15 years.
The only thing I'd ask of you is, if we get you the information, can I have your observation that you would give us a hand in trying to help the folks in Chicago and Cleveland out?
Mr. PITT. We would be very anxious to receive the information, and we'll do whatever we can to avoid anybody getting away with that kind of chicanery.
Mr. LATOURETTE. Just so I understood your answer on the 3 percent rule about—I took it to mean that you're going to impose some common sense, rather than just meeting this threshold of 3 percent and then who is in charge and so forth and so on. If I understood Mr. Powers' Report over the weekend correctly, these particular SPEs were designed not to transfer risk or do some laudable objectives, they were designed for the specific purpose of creating a favorable financial statement. What I took you to mean is that you are not going to look at the 3 percent rule. You are going to say there are good 3 percent things and there's bad 3 percent things and we are going to sort of reward or recognize those that have merit and not those that can be used for trickery. Is that a fair summary?
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Mr. PITT. That is fair.
About 40 years ago, there was a criminal case in which it was articulated by the Second Circuit that compliance with generally accepted accounting principles will not save somebody from a fraud action and a criminal conviction if what they have done doesn't make sense and defrauds investors.
Mr. LATOURETTE. Thank you, Mr. Chairman.
Chairman BAKER. Mr. Shadegg.
Mr. SHADEGG. Thank you, Mr. Chairman; and thank you for holding this hearing. It's been useful, and I look forward to it and the continuation tomorrow.
Thank you, Mr. Pitt, for your patience and for your thoughtful answers.
There are many different aspects of this issue we could go into. I want to look, and I think the Chairman has set the tone for this, on what we can do looking forward to try to make this system work. It seems to me there's nothing more important that this Congress can do. If Americans or people around the world don't have faith in our markets, if they don't believe that a company's value is accurately represented and that its stock represents fairly its value, we could have collapse of the entire capital system in the world.
I've read through your recommendations, and I think most are well taken. I want to explore and follow up on Mr. LaTourette's questions about the 3 percent rule, and I kind of want to get down to the basics.
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Throughout the literature and the articles I have been reading these things are called special purpose entities. But for people back home, we in Washington often talk in code language that is not understandable. The term I like better is off-balance sheet entities.
It is a little funny. I want to figure out how my wife and I, who want to borrow some money to build a new home, can create an off-balance sheet entity in which we dump all of our debt for our cars and our current obligations and qualify for a larger loan for our current home.
I don't mean to be flip about that, but I think the average person out in America reading sees SPE and they read it is an off-sheet balance entity and then they discover it was created to hide debt to make a financial statement look a little bit better and they're going, well, wait a minute. Why in the world should they be able to do that?
I would like you to explain to me why we shouldn't have a completely consolidated balance sheet. What is the legitimate reason for letting a company, if there is any, have an off-balance sheet entity to hide debt in?
Then your specific testimony says, refer this issue to FASB, and says, well, for too many years the FASB has failed to set standards for accounting for special purpose entities. Should this Congress allow that duty to remain with FASB or should Congress step in and not allow these things to occur? Because if you can't trust what you're looking at in the report, if there's an off-balance entity in which debt is hidden, I don't think anybody can have confidence in the system.
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Mr. PITT. Let me start with your last question, because it is one of major concern to me. I think that the concept of FASB makes enormous sense. I think having the private sector set standards makes sense. I think what does not make sense is to let FASB languish.
The SEC did not exercise appropriate oversight over FASB for many, many years. That, I can assure you, is going to change. If it doesn't change, we won't recognize FASB. We would change the system.
Mr. SHADEGG. I appreciate that recognition that there is a problem here, that we have not overseen FASB.
Mr. PITT. That's a place where the SEC has a clear duty, and I intend to make sure that the Commission fulfills it.
With respect to off-balance sheet items, first of all, if you and your wife figure out how to do this, without my being flip, I hope you will tell me, because my wife is very anxious for me to figure out how to do the same thing, particularly since I have come to work in the Government. There are many types of ventures in which companies can have relationships with other entities and the questions of consolidation go to whether or not the other entity is independently managed, whether there's any recourse against the public company for satisfying some of the obligations of the off-balance sheet entity.
There are legitimate reasons why people might set up legitimate partnerships to perform a number of special purposes. What is not legitimate is basically to try to use them to siphon off liabilities and put them someplace else. If that is what happened—and certainly Mr. Powers' Report suggests that is what happened—if that is what happened, in my view, that's illegal, and that has to be addressed.
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Mr. SHADEGG. You would agree that the 3 percent rule—just as a standard, if it's 3 percent independently owned, that is sufficient to keep it off the balance sheet, appears now, at least in hindsight, to be a bad rule?
Mr. PITT. You're asking a fair question. I'm not the best person to respond to that because, frankly, the nuances of SPEs and the accounting rules that apply to them are probably beyond my comprehension.
Mr. SHADEGG. I want to ask one related question. It appears from what I can read that in at least one instance the 3 percent rule wasn't honored. But that's not a rule in a sense that violating it is something you can go after and enforce. That's a judgmental standard which in fact there was not a 3 percent operation, and if in fact there was money kicked back so the independent entity had less than 3 percent, that may play into whether or not fraud occurred, but it is not a regulatory violation. Am I correct about that?
Mr. PITT. I don't necessarily agree with that. I'd have to know a lot more.
But I would say that a failure to comply with GAAP for the purpose as alleged here of hiding or secreting liabilities is eminently redressable under our existing authority. That, where I come from, which is Brooklyn, is fraud.
Chairman BAKER. Mr. Shadegg, would you yield for a question?
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In my reading of the events in particular with one SPE, not only was the 3 percent trigger complied with, but Enron advanced the capital to the investor to put up the 3 percent, then advanced the money to the SPE to acquire the debt asset that was purchased by the SPE to get it off the books. So that the entire operation was Enron controlled, Enron funded, and they took the profit from the sale of that debt asset to the SPE and booked it as recurring revenue to the corporation.
There is no explanation, in my judgment, that can justify that conduct.
Mr. PITT. I could not agree more. If that is what occurred, then it makes a mockery of the requirements and, as I say, that would be fraud.
Chairman BAKER. Thank you.
Mr. SHADEGG. That is, in fact, what I had read.
Chairman BAKER. Mr. Chairman, I certainly appreciate, and I speak for the entire committee, your tolerance in this lengthy hearing this evening and your contributions to the overall progress of our committee's work. I do appreciate your willingness to respond to my letter in the most timely manner possible.
Legislative effort is eminent, and I hope that your input can be constructive for the subcommittee in offering the best product possible and again appreciate your generous work and effort in regard to the endless conduct rules which we will be announcing on Thursday of this week. We appreciate your courteous appearance.
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Mr. PITT. Thank you very much. I have said from the outset of my tenure that I believe that Government is a service business, and we want to be of service to this subcommittee and to every individual Member, that if there are things that we can help with, please let us know and we will try to work with you in the public interest.
Chairman BAKER. Thank you for your courtesy.
We would like to now call our next panel, Mr. William C. Powers, Junior, Director of Enron Corporation, who was directed by the board to conduct his own review of the activities within Enron and who is principally responsible for the release of the report which has been the subject of news stories yesterday.
By prior agreement, before I recognize the witness, the panelist for the subcommittee work, Mr. Bachus had reserved his 2-minute statement from the earlier opening prior to this panel. Mr. Bachus, you are recognized for your 2 minutes.
Mr. BACHUS. Thank you, Mr. Chairman.
Mr. Powers, welcome to the subcommittee.
Tragically, 11,000 Enron employees lost their retirement savings under a savings plan that was administered by a committee and trustee, all of which were handpicked by the company. The plan has written rules and guidelines that created duties on the part of the company, the directors and agents of the company to the employees. I have read the plan, takes about 30 minutes to read it. My question is, was this a forgotten document?
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It is apparent to me that, had the plan been followed, those 11,000 employees wouldn't have lost their retirement savings. There are all sorts of illegalities, misconduct and nondisclosures associated with this catastrophe. Aside from all that, there was total disregard of the retirement savings plan, which is similar to the retirement savings plans most Americans participate in. A hundred million Americans or more participate in these 401K plans. My line of questioning will deal with this plan.
It is clear, and I am sure that you will agree, this plan was violated. The plan gave discretion to the committee and to the trustee appointed by the company. The plan mandated, among other things, diversification in investment. It required the company to share all pertinent information with the committee.
Whatever else we have here, we have an old-fashioned, plain vanilla violation of their fiduciary duties under the Enron retirement savings plan by the company's senior executives. How the heck did that happen?
The plan requires that the committee and trustee under the direction of the company and with information supplied by the company shall do certain things, including specifically; ''diversify the plan with investments to avoid large losses.''
How is this plan so utterly disregarded or ignored? Was this a case of everyone being asleep at the switch or was there a willful intention to withhold information? The actions of the company and its agent when reviewed against the backdrop of its fiduciary duties arising under the plan reveal a wealth of violations for Enron. Fiduciary failures are under ERISA which is administered by the Pensions and Welfare Benefits Administration of the U.S. Department of Labor. I will be contacting Labor Secretary Elaine Chao to urge her to launch an investigation of the named fiduciary about the failures of the committee and the trustee and senior executives of the company to comply with Enron's written savings plan.
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This investigation by Congress and any other agencies must be thorough and complete. If violations or improprieties have occurred, let the chips fall where they may. Thank you, Mr. Chairman.
Chairman BAKER. Thank you, Mr. Bachus.
Mr. Powers, by action of the subcommittee earlier today, it is required that all witnesses before the subcommittee take an oath. Do you have any objection to testifying under oath?
Mr. POWERS. None whatsoever.
Chairman BAKER. I also have to ask, do you desire to be advised by counsel during your testimony today?
Mr. POWERS. No, I do not, Mr. Chairman.
Chairman BAKER. In that case, sir, if you would please raise your right hand, I will swear you in.
[Witness sworn.]
Chairman BAKER. Thank you, sir. You may proceed at your leisure. Your statement will be included in the record as presented. You may summarize or proceed at your convenience.
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STATEMENT OF WILLIAM POWERS, JR., CHAIRMAN, ENRON BOARD OF DIRECTORS SPECIAL INVESTIGATIVE COMMITTEE
Mr. POWERS. Thank you very much, Mr. Chairman.
Mr. Chairman, distinguished Members of the subcommittee, my name is William Powers and I'm the Dean of the University of Texas School of Law. For the past 3 months I've served as Chairman of the Special Investigative Committee of the Board of Directors of Enron, and I very much appreciate this opportunity to come before you today and testify.
As you know, during October of last year, questions were being raised about Enron's transactions with partnerships that were controlled by its Chief Financial Officer, Andrew Fastow. In the middle of October, Enron announced that it was taking an after-tax charge of more than $500 million against its earnings, because of transactions with one of those partnerships. Enron also announced a reduction in shareholder equity of more than a billion dollars. At the end of October, the Enron board established a special committee to investigate these matters, and then asked me if I would join the Board for the purpose of chairing that committee and conducting that investigation. With the help of counsel and professional accounting advisors, we've spent the last 3 months, in fact, doing that investigation.
Our committee's report was filed on Saturday. It covers a great deal of ground and it will, I hope, be helpful in providing a starting point for the necessary further investigations by congressional committees, by the Securities and Exchange Commission, and by the Department of Justice. A copy of the executive summary of our report is attached to my statement here.
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Many questions are currently part of the public discussion, such as questions relating to the employees' retirement savings that Congressman Bachus raises, very important questions, and, of course, one of the most tragic consequences of this sad story. The questions such as those related to the retirement savings or other questions related to sales of Enron securities by insiders were beyond the scope of the charge that we were given. These are matters of absolute vital importance. They need to be investigated. They were not part of our charge.
In the 3 months that we had for our investigation, we did not investigate those vital questions. Instead, we were charged with investigating transactions between Enron and partnerships controlled by the Chief Financial Officer or people who worked in his department, and that's what our report discusses.
Frankly, Mr. Chairman and Members, what we found was absolutely appalling. First, we found that Fastow and other employees involved in these partnerships enriched themselves in the aggregate by tens of millions of dollars that they should have never received. Fastow got at least $30 million, Michael Kopper at least $10 million, two others $1 million each, and still two more, amounts that we believe were in the hundreds of thousands of dollars.
Second, we found that some of these transactions were improperly structured. If they'd been structured correctly, Enron could have kept assets and liabilities, especially debt, off of its balance sheet. And that raises significant policy issues in itself. But Enron did not follow those accounting rules.
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But, finally, we found something more troubling than those individual instances of misconduct or failure to follow accounting rules. We found a systematic and pervasive attempt by Enron's management to misrepresent the company's financial condition. Enron management used these partnerships to enter into transactions that it could not, or would not, enter into with unrelated commercial entities. Many of the most significant transactions were not designed to achieve bona fide economic objectives.
As our report demonstrates, these transactions were extremely complex, and I won't try to describe all of them in any detail here, but I do think it would be useful to give just one example. It involves efforts by Enron to hedge against losses on investments that Enron had made.
Enron was not just a pipeline and energy trading company. It also had large investments in other businesses, some of which had appreciated substantially in value. These were volatile investments, and Enron was concerned because it had recognized the gains when those investments went up and it didn't want to recognize the losses when those investments went down.
So Enron purported to enter into certain hedging transactions in order to avoid recognizing the losses from these investments. But the problem was these hedges weren't real. The idea of a hedge is normally to contract with a credit-worthy outside party that's prepared, for a price, to take on the economic risk of the investment. If the value of the investment goes down, that outside company bears the loss. But that's not what happened here. Here, Enron was essentially hedging with itself.
The outside parties to which Enron hedged were these so-called ''Raptors.'' The purported outside investor in them was a Fastow partnership. In reality, these were entities in which only Enron had a real economic interest and whose main assets were Enron's own stock. The notes of Enron's corporate secretary, from a meeting of the finance committee of the board regarding these Raptors, captured the reality of what was going on. Those notes said, quote; ''Does not transfer economic risk, but transfers P+L volatility.''
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If the value of Enron's investments fell at the same time that the value of Enron stock fell, the Raptors would be unable to meet their obligations and the hedges would fail.
This is precisely what happened in late 2000 and early 2001 when two of these Raptor vehicles lacked the ability to pay Enron on the hedges. Even if these hedges had not failed in the sense I just described, the Raptors would still have paid Enron on the hedges with stock that Enron had provided in the first place. In essence, Enron would simply have paid itself back.
By March of 2001, it appeared that Enron would be required to take a charge against earnings of more than $500 million to reflect the inability of these Raptors to pay. Rather than take that loss, Enron compounded the problem by making even more of its own stock available to the Raptors, $800 million worth. It gave the false impression that the Raptors had enough money to pay Enron what the Raptors owed. This transaction was apparently hidden from the board and certainly it was hidden from the public.
Let me say that while there are questions about who understood what information was available to whom concerning many of these very complex transactions, there is no question that virtually everyone, everyone from the board of directors on down, everyone understood that the company was seeking to offset its investment losses with its own stock. That's not the way it's supposed to work. Real earnings are supposed to be compared to real losses.
So, as a result of these transactions, Enron improperly inflated its reported earnings for a 15-month period. That is, from the third quarter of 2000 through the third quarter of 2001 Enron inflated its earnings by more than $1 billion. This means that more than 70 percent of Enron's reported income from this period was not real. It was attributable to these Raptor vehicles.
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Now, how could this have happened? The tragic consequences of the related third-party transactions and the accounting errors were a result of failures at many levels and by many people. It was a flawed idea. There was self-enrichment by employees, inadequately designed controls, poor implementation, inattentive oversight, simple and not-so-simple accounting mistakes, and an overreaching in a culture that appears to have encouraged pushing the limits.
Whenever this many things go wrong, it is not just the action of one or two people. There was misconduct by Fastow and other senior Enron management. There were failures in the performance of Enron's outside advisors, and there was a fundamental default in the leadership of the management. And leadership and management begin at the top with the Chairman and CEO, Ken Lay. In this company, leadership and management depended as well on the Chief Operating Officer, Jeff Skilling. And the board of directors failed in its duty to provide leadership and oversight.
In the end, Mr. Chairman and Members, this is a tragedy that could have and should have been avoided. I hope that our report and the work of this committee will help reduce the danger that it will happen to some other company and its employees and its investors in the future.
Thank you, Mr. Chairman.
[The prepared statement of William Powers Jr. can be found on page XX in the appendix.]
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Chairman BAKER. Thank you very much. I'm not sure that's the appropriate response. I think your report has been one of the most disturbing things I have ever had the misfortune to read. I have never seen such an example of corporate collusion that your report paints, and I have got to show extraordinary restraint to stay focused on the real point at which I believe our work should be aimed. Your report raises many issues which I think will keep this subcommittee busy for some time to come, as I suspect the SEC will be also.
Audit function. Is it your view that members of the board who engaged the audit team stood on the sideline while management managed the audit team?
Mr. POWERS. Much of the audit team was dealt with and initiated by people in the finance group, and we do think there's a lack of oversight by the audit committee. We chastised the audit committee.
Chairman BAKER. Let me be more specific. Is it your view that if an audit function were conducted and it was prepared inappropriately, in the perspective of a managerial member, would that audit be altered before presentation to the board? When an audit work is done and it would be presented to the board as a final report, in your view, is there evidence that before an audit report was finally concluded and handed to the board, that management intervened and restructured those reports so the board would get a different perspective of the audit work?
Mr. POWERS. I'm not aware of a specific instance of that, although there may be. I mean, there is a great deal of information in our——
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Chairman BAKER. I'll come at it a different way. If the auditor came into that business environment and looked at the relationships between the Enron investments and the SPEs, the funding of the interested party who must hold the 3 percent, looked at the purchase requirements between the SPE and Enron wherein the capital to make that acquisition was advanced by Enron, how is it that an auditor conducting his professional responsibility would not red-flag those transactions as either inappropriate or wrong? What happened with that audit inquiry when looking at those specific facts?
Mr. POWERS. These are questions we would like to ask. We did have some access to Anderson's papers, but limited, and we did not in the end have an opportunity to ask Andersen those very questions.
Chairman BAKER. In 1999, a public corporation was engaged in negotiations with Enron for a merger purpose. That corporation surveilled the publicly available documents, news reports, and did interviews and concluded that the off-balance-sheet debt structure was so enormous they would not proceed with the merger.
Mr. POWERS. That's correct.
Chairman BAKER. Given that information, what was the board's response to that public determination not to proceed with the merger way more than 18 months ago, almost 3 years ago? Is there no record of board discussion about these revelations in the public light as to Enron's true financial condition?
Mr. POWERS. We weren't able to ascertain that there was any reaction by the board that then took that, as you pointed out, red flag and investigated further in these transactions.
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Chairman BAKER. In your work in the preparation of this report, did you interview all the board members, or any of the board members?
Mr. POWERS. We interviewed all of the members of the audit committee and we interviewed many other board members. I don't think we interviewed all of the board members.
Chairman BAKER. The members of the audit committee, did they indicate to you they felt that the Andersen work was proceeding in an independent course, or was it their view that the audit report had been manipulated by internal management?
Mr. POWERS. It was their view that Andersen was doing the audit report and it was their position that they were relying on the audit report.
Chairman BAKER. So their position is that Andersen was incompetent and did not prepare the financials in an appropriate manner?
Mr. POWERS. To the extent there are mistakes and errors here, which there are, that's the position of the people on the board that we—the people on the audit committee——
Chairman BAKER. But there's no evidence to indicate that, anytime prior to the public bankruptcy, that the board took any corrective action to dismiss Andersen or otherwise engage other accountants?
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Mr. POWERS. That's correct.
Chairman BAKER. I'm out of time, but I'm not out of gas. I have to relinquish my time.
Mr. Kanjorski.
Mr. KANJORSKI. Thank you.
You are probably the first witness that can give us substance about what happened at Enron. Thank you very much for coming forward and listening to this debate. I agree with Mr. Baker, it is most shocking. But I guess the first thing I am going to ask conceerns hedges. These transactions involve derivatives. Is that correct?
Mr. POWERS. Yes. Not all of the transactions. Some of them involve sale of assets to get them off the books, but many of these involve hedges.
Mr. KANJORSKI. Right. But the normal use of a derivative is that somebody is coming forward with a private insurer with independent assets to insure your risk that you are placing in their hands.
Mr. POWERS. Absolutely.
Mr. KANJORSKI. And a hedge is a good economic tool to prevent exactly what happened here if it is a legitimate derivative. The problem here is they did not have honest and substantial counter-parties.
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Mr. POWERS. Absolutely. There's nothing—not only nothing inappropriate; a legitimate economic hedge is a very useful economic device. The problem here was these structures were structured to look as though they were hedges, and in fact it was Enron hedging with itself.
Mr. KANJORSKI. Instead of being in hedges in the sense of guaranteeing against the fluctuation of the market, Enron created transactions to take bad assets off the books, depreciated assets or lost assets, and make them appear as though they were not part of their company, or they were the counterparties' responsibility. Therefore, they would show the sale of the transactions as a profit, which would inflate their earnings and they would not have an asset that had a negative value on their books.
Mr. POWERS. Well, there are two different transactions. I did describe a hedge. Some of the transactions were sales of property to get them off the books, get the debt off the books. Many of those were bought back. The hedges themselves, the structure was so that the supposed counterparty that is paid on the hedge will owe Enron an obligation on the hedge that Enron could show as income to offset the loss in the investment. So those are two different issues, both of which were affecting the books.
Mr. KANJORSKI. Going to a simple example, because I'm sure the American public is still trying to figure out what this is. Let's say I had a transaction and I wanted to borrow money from a bank, and I had a home worth X and I had a mortgage of X or X-plus on that home. What I could do, under circumstances you use here, is construct a hedge vehicle or derivative and pass over the ownership of the properties of that hedge vehicle. They would pay me an inflated price, and they also would assume the mortgage so that my ultimate profit and loss statement, or balance sheet, would not show the existence of the mortgage, would not show the deflated value of the home, and would make me look rather substantial, when, in fact, I was not.
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Mr. POWERS. I understand. That's correct. Some of these transactions moved debt off of Enron's books so Enron looked like it had less debt than it had.
Mr. KANJORSKI. My question is this: We have had these problems with hedging and derivatives before, and I have to confess they get so complicated that it is hard to understand whether, in fact, there is grave risk or not. But, do you think we have sufficient legislation and authorization to the SEC or other Federal agencies to look into what these derivatives or hedges are? When do they constitute a realistic honest hedge? When are they falsely constructed such as this? Do we have anybody watching over the derivative hen house?
Mr. POWERS. Congressman, you identify a major problem and that is not—these types of instruments were a large cause of what happened with Enron. Now, I must confess I am not a securities lawyer and was not a derivatives expert before I came into this. I helped find out what happened. I was surprised to see the ability to move assets in a way that affected the financial sheets rather than real economic consequences, and it is a problem that I think this subcommittee and committees and other regulatory agencies need to look into.
I'm not sure I'm in a position, not having known a great deal about these entities before I got into this investigation, to give that kind of advice, but it is—you're identifying a very serious problem that needs to be looked into.
Mr. KANJORSKI. I have an honest problem, and we will have the accountants in here, I think tomorrow. I do not even know how you move approximately $800 million off your balance sheet without showing where the transaction happened, why, under what circumstances, what is the deflated value of the remaining stock, and so forth. It strikes me that this is a con, and you do not have to be terribly sophisticated to see that you are not getting anything from your counter-party, because your counter-party has nothing. You have created a false phantom counter-party, and it is all hinged on the stock going up. If everything goes up, if your stock value goes up and the asset transferred to the counter-party goes up, then nobody knows, nobody cares, and we all profit. But, at some point when there is a reversal, it is an implosion. Is that basically what occurred here at Enron?
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Mr. POWERS. I think that's what did occur here.
Mr. KANJORSKI. This transaction is a billion dollars, but we keep hearing that Enron had a capital value of $70 or $80 billion, and most of the employees had investments in the firm. Moreover, Enron's investors were looking at the net worth, or the cap value, of $70 or $80 billion, believing that they would have an ability to retrieve their investment. What happened to that $70 or $80 billion? We did not lose it all on this transaction. This restatement precipitated the company's collapse, and showed the false accounting. Is there any fraud? What happened in that nature? What happened to the other $70 or $80 billion?
Chairman BAKER. That will have to be the gentleman's last question. His time has expired.
Mr. POWERS. The billion dollars to which I referred was not merely a billion dollars in capital value, in equity; it was a billion dollars in earnings. And when the markets lost faith in the earnings reports, that is, Enron wasn't earning what people thought it was earning. Now, I don't think that they knew the details of how that happened, but people started losing faith in the earnings reports, and I think they started losing faith in the credit capacity and a number of other things with Enron's ability to do business as a counterparty. The market lost faith in Enron and then that precipitated the drop in the capital value of the stock.
Mr. KANJORSKI. I ask permission to ask one more question. Is it possible that this situation is systemic and occurring in other corporations in the United States today and that we are not aware of it?
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Mr. POWERS. It's possible that that's occurring. I should say I hope most people in most corporations are doing their jobs in the right way. But it's certainly—these transactions are very complex and they're very hard to sort out and it certainly is possible.
Chairman BAKER. Chairman Oxley.
Mr. OXLEY. Thank you, Mr. Chairman. Let me, before I begin, yield to my good friend from Delaware, Mr. Castle.
Mr. CASTLE. Thank you, Mr. Chairman.
I'm only going to ask one question, Mr. Powers. I note that you're the Dean of a very significant law school in America, in Texas, and I'm sure you teach at that school criminal law, unless it's changed a lot since I went to law school. And you've made some very strong statements—and it is chilling to read your testimony here and to see this report—but, you've made some very strong statements, including ''improperly enriching themselves,'' and so forth. I'd just like to ask you, in your opinion as somebody who is knowledgeable, do you believe that any of these individuals that you have looked into, particularly Enron employees in this case, have committed violations of the law, criminal laws, either in the State of Texas or the Federal Government?
Mr. POWERS. Let me say that we did not focus on that and come to judgments as a matter of the committee. I'm not an expert in securities law violations, and I'm not sure it's appropriate for me. It's rather the SEC and the Justice Department who make those determinations. This is very serious conduct, and I'm sure those entities and agencies and the Justice Department are going to make those determinations, and certainly this warrants close attention.
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Mr. CASTLE. But it's not beyond the realm of possibility.
Mr. POWERS. Certainly.
Mr. CASTLE. Thank you. I yield back. Thank you, Mr. Chairman.
Mr. OXLEY. Pleased to yield to my good friend from Delaware. Let me first of all, Dean Powers, say that this report was both comprehensive and a seminal view of what transpired, and you and Mr. McLucas and the other participants in this deserve a great deal of credit for not only writing this report, but making it quite understandable for myself and the other Members, and really gives us an idea for the first time how we can get our hands around this issue. And you're to be commended for that.
Mr. POWERS. Thank you.
Mr. OXLEY. According to your report, all of the checks built into our system appear to have failed in some way or another—attorneys, accountants, regulators, management, the board, bankers, analysts, and the rating agencies. Were these independent failures or were they interrelated, and was one failure the trigger or critical event leading to the others?
Mr. POWERS. It's an important point that you're raising that this was a systematic failure. It wasn't just one person engaged in misconduct. You would expect the checks and balances to check that individual failure. Within Enron, to which I can make a more direct statement, because that's what we looked at more—we didn't look at the credit agencies; for example, why didn't they see this? Within Enron, the checks and balances simply broke down and the people who were in the finance department, Fastow and others, and frankly in the accounting department, weren't checking each other. The deals were with Fastow, and nobody else around who knew what was going on provided a check and that oversight broke down at the board level, at the senior management level, and in the finance department.
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Mr. OXLEY. Would board oversight of a company, specifically by the audit committee, improve if the board took over the responsibility for retaining and firing the auditors from management?
Mr. POWERS. That's that's not a question that I've given a great deal of thought to. There certainly is a problem. When I came into this, it was surprising to me to see how much, for example, that the auditors had helped design the vehicles and audited the vehicles, and how much management used the audit groups, and then the audit groups would come back and audit the management. It's a very serious problem.
I don't know that I have—what you're suggesting sounds like a very plausible solution. Whether it ends up being the right solution, I don't know.
Mr. OXLEY. But it's worthy of pursuit?
Mr. POWERS. I think it's absolutely worthy of pursuit.
Mr. OXLEY. So your statement really was that the auditors were in on baking the cake here, that they were part and parcel of helping certain people in management essentially craft these partnership arrangements?
Mr. POWERS. The auditors were paid a great deal of money to help design these vehicles, that's correct.
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Mr. OXLEY. And that in and of itself is an aberration? Is that outside of Enron? I mean, I'm trying to understand whether, in fact, the auditor himself concluded that in his job description.
Mr. POWERS. I haven't looked at other companies. My understanding is it's not unique, that aspect is not unique to Enron, that auditors both do what would be called real-time auditing, they're involved in the structuring of the transactions themselves, at least looking at them, and then they do the audit.
Mr. OXLEY. Thank you. Thank you, Mr. Chairman.
Chairman BAKER. Thank you very much, Mr. Chairman. I would concur with your view that they were in the room helping bake the cake. I think the problem is they were eating it, too, is the problem.
Mr. LaFalce.
Mr. LAFALCE. Thank you very much, Mr. Chairman. Dean Powers, over here.
Mr. POWERS. Thank you.
Mr. LAFALCE. Could you tell me, when you're not being Dean, what your area of legal expertise is?
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Mr. POWERS. Torts, products liability, and legal philosophy.
Mr. LAFALCE. OK, good. Could you tell me what you had as part of your job description, as a newly appointed member of the board of Enron, that you think you could have done better had you had greater power such as subpoena powers, and so forth? And second, what do you think entities other than your investigative committee should be doing; that is, what didn't you do that either the SEC or the FBI or the Justice Department or the Congress should be doing?
Mr. POWERS. Well, I think Congress should be looking at the policy ramifications, as this subcommittee is doing, and determine whether changes in the system——
Mr. LAFALCE. With respect to Enron in particular. The policy is much larger than Enron.
Mr. POWERS. As Congressman Bachus indicated, there are issues at Enron that we have not looked into like the 401K plans, and I think it would be appropriate for Congress to look into those.
Mr. LAFALCE. Let me get into some specific issues. It's my experience that very often corporate management decides who's going to be on the board, and they don't select board members on the basis of who's going to be toughest on us, who's going to give us greatest oversight. They select board members very frequently on the basis of who will go along with us more readily than somebody else, and who would it be nice to have as a board member so they will let management do their thing.
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First question I ask you is, how do we deal with that? And, second, so long as management is hiring an auditor or a lawyer or what have you, chances are that professional group is going to want to give management what management wants to hear, if it's at all humanly possible. So they will stay on as basically employees, and they are employees whether they'd like to call themselves that or not. And so how do we deal with that in a policy way, because I personally have believed for a long time that the Enron problem was systemic earlier this year. The first half of the year we had over 260 restatements of earnings that were mandated by the SEC, an absolute record number, and a number of us said at that time that this is the tip of the iceberg. And self-regulatory organizations, whether for accountants or for securities analysts, have not worked; and I question whether they can work, and I'm wondering what your thoughts are on that.
Mr. POWERS. I agree that it is incredibly important that boards have sufficient detachment from management that they can oversee management, and that professionals have sufficiently independent professional——
Mr. LAFALCE. How do you get from here to there, because most often it's management that recommends somebody to the board?
Mr. POWERS. I'm not that familiar with how boards are selected in other companies. Companies that want good advice in oversight ought to have board members who——
Mr. LAFALCE. Those are not the companies we need to be concerned about.
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Mr. POWERS. I agree.
Mr. LAFALCE. It's the companies we need to be concerned about, and I don't think we can count on the officers of those companies or on the board of directors of those companies. There are too many conflicts of interests that I don't think could ever be eradicated. We have to rely, though, on the outside auditors and we have to rely on attorneys doing a better job, and most especially we have to rely on securities analysts, and not only with respect to Enron, but with respect to hundreds and hundreds of companies. They have fallen down on the job. They have been guilty in my judgment of professional malpractice, and the self-regulatory organizations for these so-called independent outside experts simply have not worked and cannot work. And I'm wondering if you have any policy prescriptions you might be inclined to recommend at this juncture.
Mr. POWERS. Well, I recommend that there are problems that the committee and other agencies ought to look into. As I say, this is not my ordinary field of expertise and I don't think I'm in a position to give particularly precise recommendations on them other than, as you suggest, to recognize it as an issue that needs to be addressed.
Mr. LAFALCE. I thank you.
Mr. POWERS. Thank you.
Chairman BAKER. I thank the gentleman.
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Mr. Bachus.
Mr. BACHUS. Thank you, Dean. Dean Powers, 11,000 Enron employees invested in the 401K plan and this is this plan right here, 68 pages, and they lost their life savings. Now, that plan is basically an agreement between the company and the employees. I have read that plan. It takes about 30 or 40 minutes to read it. Did you and the committee read the plan?
Mr. POWERS. No, we didn't.
Mr. BACHUS. Let me go over some of the pertinent parts of it. First of all, the committee—and the administrator of the plan is designated as, quote; ''the committee,'' and the investment manager is designated as the trustee.
Now, in sections 13 and 14, they are both selected with sole discretion of the company and could be removed for any reason at any time by the company. So they have total power in putting this committee together and designating the trustees. Now, that's an awfully important document, isn't it, between the employees and the company?
Mr. POWERS. It's a very important document.
Mr. BACHUS. And the senior executives of the company can't disregard this agreement, can they, legally?
Mr. POWERS. I don't believe they can.
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Mr. BACHUS. That's right. Now, it's been stated in published reports that the company's contributions to the 401K plans were required to be invested in Enron stock, and I just assumed that to be the case until this weekend when I read this plan. And, in fact, that's not really correct. I don't know whether you're aware of that. Let me say, here is Article 15 and that's the fiduciary provisions. Now, you are a professor who teaches torts; so fiduciary duty is a very serious duty that's owed, is it not?
Mr. POWERS. Absolutely.
Mr. BACHUS. And the duties owed—in fact, that article says that the article shall control over any contrary, inconsistent, or ambiguous provisions contained in the plan. So these fiduciary provisions take precedence, and it says in there and it specifically states that the committee and the trustee shall act solely in the interest of the participants—in other words, the employees—in discharging their duties. Not in the best interest of the company, but of the 401K participants, and I will quote the second provision, and this is something I've seen no focus in any of the media on, by, quote: ''diversifying the investments of the plan so as to minimize the risk of large losses.'' Now, they didn't diversify, as we all know, and we all know the result.
Now, it also says in Article 8, ''the company shall supply full and timely information to the committee.'' Now, Dean Powers, do you think that the information Mr. Lay received from Ms. Watkins on August the 15th would have been pertinent and should have been given to the committee as important information about the financial condition of the company?
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Mr. POWERS. Congressman Bachus, I have not gone through these plans, and not because it's not important. As I said earlier, this is one of the greatest tragedies of these whole events, are the employees losing their investments and savings and retirement hopes. I really feel that I'm not in a position to comment.
Mr. BACHUS. I will go on because I don't want to put you on the spot.
Mr. POWERS. Thank you.
Mr. BACHUS. But I think when we start looking at these, it's——
Mr. POWERS. These are very serious issues you raise.
Mr. BACHUS. It absolutely is. It also says one matter of great concern has been the lockdown that occurred on October the 26th that prohibited employees from diversifying the 401K plan. Now, the lockdown was characterized as necessary due to administrative changes; but under this same provision, the committee is required as a named fiduciary to discharge its duty with care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man had.
Now, we know what the senior executives were doing. They were selling their stock. I think they sold $350 million worth of stock during this period of time. But they were supposed to be giving these trustees and this committee the same information that they were acting on to sell their stock, but, in fact, just the opposite happened and they allowed a lockdown of this plan. I believe that that was a violation of the committee's fiduciary duty to the employees and one which basically resulted in them losing their retirement plan.
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And this document, and I think there is one other—well, I guess that's—I think my time is up, but let me simply say to you that I know that wasn't part of your inquiry. I think when you read that, you will see that the company had all sorts of obligations that they failed to do.
Mr. POWERS. And you're raising very important issues here, Congressman.
Mr. BACHUS. Thank you.
Chairman BAKER. Thank you, Mr. Bachus.
Mr. Ackerman.
Mr. ACKERMAN. Thank you very much, Dean Powers. In the 3 short months that you've been in this business, you have basically shaken up the financial world, maybe the legal world, those who watch ethics as well, and covered things that are shocking and amazing, as so many people have said. You yourself have said that you were appalled. And yet when we look at some of these things, it seems if you could uncover them with your small group of investigators in 3 months, that a major accounting firm, with all of the resources that they have, should have been able to uncover and discover this. I mean, it doesn't take long if you stand on the street corner in New York to figure out that somebody has a shell game going or Three Card Monte or a Ponzi scheme, or anything else that you want to call it. And evidently from the looks of this, this has been what is occurring here: absolute world-class thievery. Now, how is it that an accounting firm couldn't figure that out?
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Mr. POWERS. I'm not sure I'm in a position to answer that. As I said earlier, we would have liked to have discussed more fully those issues with the outside accountants. I will say these are extremely complex transactions and I had enormously able help to do this.
Mr. ACKERMAN. I'm sure. But one would think that a major accounting firm would have extremely capable help as well.
Mr. POWERS. Yes.
Mr. ACKERMAN. You're not a securities guy, as you said, or a derivatives guy, as you've told us, and you figured all this out.
Here's a question, I think. If Arthur Andersen was hired to be the outside auditors, and it also appears that they're the inside auditors, that they would have some kind of mandate to advise the company, the board, as to the kind of checks and balances and controls that would have to be in place. Now, isn't there a failure on the part of the auditors as well as the company here?
Mr. POWERS. Our report makes that point, that we do think there's a failure on the advice and oversight of the outside auditors.
Mr. ACKERMAN. Well——
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Mr. POWERS. Absolutely.
Mr. ACKERMAN. One would, you know, come to the conclusion that if that was the case or reasonably assured that that was the case, that some kind of collusion and fraud and conspiracy and all those kinds of words was taking place. And your mandate as you've described it, and as we know, was very narrowly focused on one area, and some of the other areas, as you pointed out, are exceptionally troubling. And one might infer from your report, if not conclude from your report, that there are other areas that bear looking into that was not within your mandate. Do you think that there's enough here to warrant a special prosecutor?
Mr. POWERS. Again, we tried to find out what happened, and I think our report is a start to help others who will have to make the determinations as to whether there ought to be prosecutions, whether there ought to be a special prosecutor and things of that sort. I don't think it's appropriate for me to make the policy as to whether those prosecutions ought to go ahead. We tried to find out. I think we have found out to a large extent what happened. And it wasn't our job to make the determination as to whether to prosecute people.
Mr. ACKERMAN. I guess it's in part our job to make recommendations and to speak out on behalf of those kinds of things, and the report that you have done I think should give reasonably prudent people, hopefully Members of Congress, too, enough to chew on and consider as we make our deliberations. And I thank you and your small group of people for the service you've performed.
Mr. POWERS. Thank you.
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Mr. ACKERMAN. I yield back the balance of my time.
Chairman BAKER. Thank you, Mr. Ackerman.
Mr. Shays.
Mr. SHAYS. Wow, your report blows my mind.
Chairman BAKER. You need to pull your mike a little closer.
Mr. SHAYS. I am absolutely dumbfounded by—I feel like I am in Sin City. I feel like every part was not just asleep, but they were kind of colluding with each other and compromised. I mean you talk about the attorneys, you talk about the accountants, you talk about the regulators, you talk about the management, you talk about the board, you talk about the bankers, you talk about the analysts, you talk about the rating agencies, and nobody looks good. But it's even worse than that, because when I start to go through your report, I just see extraordinary conflicts of interest, and I'd love you to just respond to one of them.
Should the fact that in 2001, Vincent & Elkins received $36 million in fees from Enron, from a variety of legal work, have disqualified them to respond to the accusations of Sharon Watkins, who in August had met with Lay and said, you know, we've got a problem with this company?
Mr. POWERS. Congressman, as I indicate in the report, I did not participate in the final judgments on Vincent & Elkins because they are a——
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Mr. SHAYS. Forget it. Should any firm that basically made $36 million in one year be the one to have been hired by the board to look into the accusations of an employee who said, ''A lot of crooked things are going on here''? Isn't there an inherent conflict of interest?
Mr. POWERS. With all due respect, Congressman, it's hard for me to answer that, other than in the context of Vincent & Elkins, and I didn't focus or look into that part because I felt it was inappropriate given the relationship that Vincent——
Mr. SHAYS. I'm just asking you a general comment. If you're going to be looking at the transactions of a company, does it make sense for you to ask the very group that was involved in the transactions and was hired by the company to decide whether these transactions made sense, to then hire that company? Is there logic to do that?
Mr. POWERS. I can comment on whether it makes sense for Enron to do that. I think it was questionable for Enron to do that. Vincent & Elkins certainly disclosed to Enron what its involvement was, and I don't have an opinion on what they did, but Enron might have looked to somebody else.
Mr. SHAYS. But this was a law firm—I'm just taking this as an example. I could take others. This is a law firm that basically has been involved in some of the SPEs, it earned $36 million. I think because we talk billions, we don't think $36 million is a lot in one year, and yet they are the company that's asked to evaluate. Shouldn't a company simply say, we shouldn't be the ones to look at this because we were involved in some of these transactions? I mean, they are being asked to comment on the very transactions they were involved in.
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Mr. POWERS. I think VE was cognizant of its obligations, and again I haven't looked into that because it was a part that I didn't focus on. But they disclosed all that to Enron, and I'm not in a position——
Mr. SHAYS.They didn't disclose it to Enron. Enron is the one that paid them.
Mr. POWERS. Sure. I'm just saying I'm not in a position——
Mr. SHAYS. You're really saying you don't want to. You are in a position, as a lawyer who's at a law school who deals with ethics, to talk about the merit of a company that does business and has earned $36 million to pass judgment on things that it basically allowed to happen while it was earning their fees. So I mean, it seems——
Mr. POWERS. I agree.
Mr. SHAYS. You don't want to is really the answer; not that you can't.
Mr. POWERS. Well, I will agree with you that I don't want to, but I can say that Enron might have gone somewhere else. I'm not in a position——
Mr. SHAYS. What about the company? You lawyers sometimes, it seems to me, are very willing to protect each other. But the bottom line is here are some lawyers who are basically hired by a company to comment on transactions they were involved in, to say whether they were appropriate or not, so I will let it stand on its merit. Did you interview Arthur Andersen?
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Mr. POWERS. The committee looked at some Arthur Andersen papers. We didn't have access to all of Arthur Andersen's work papers. We talked with Arthur Andersen in order to try to have interviews with them, and there was back and forth. They said they would participate with us. And finally when Enron fired them, they would not participate with us. So we did not end up getting discussions, and we were not able to put in questions to Arthur Andersen as to what their position was.
Mr. SHAYS. Did you interview Vincent & Elkins about their questionable activities?
Mr. POWERS. I didn't because I wasn't part of that part of the investigation. I think the committee talked to people at Vincent & Elkins.
Mr. SHAYS. Extensively?
Mr. POWERS. I will have to check on that.
I'm told we interviewed four or five lawyers at Vincent & Elkins.
Mr. SHAYS. I'm sorry?
Mr. POWERS. I'm told we interviewed four or five lawyers at Vincent & Elkins.
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Mr. SHAYS. Viva was a company that is from Germany; described in the articulate statement of the Chairman, they were able to come in, hire an auditing firm and understand that this company, Enron, was not worth merging with, in fact, their debt was so high. They were able to know back a few years ago the incredibly poor condition of Enron. What does that tell you?
Mr. POWERS. Well, I think they saw risk in Enron because they were unable to figure out its debt structure, and they had red flags that caused them to not want to merge with Enron. That tells me that——
Mr. SHAYS. That it wasn't too difficult to figure out?
Mr. POWERS. That there was risk there; that's correct.
Chairman BAKER. If the gentleman would yield on that point, they actually concluded in the written documents that 75 percent of Enron's equity was encumbered. So that they did actually figure out the level of debt and it was not an indeterminate amount.
Mr. SHAYS. Let me just make a statement, then, because my time is up. I think it says a world about the extraordinary failure of all these different groups that I listed that were in your report, that failed to step up to the plate, that a company from outside this country would hire someone inside PriceWaterhouse and basically exposed this company years ago. And even then nobody caught on, which is mind-boggling.
Chairman BAKER. The gentleman's time has expired. I thank the gentleman.
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Mr. POWERS. Thank you.
Chairman BAKER. Mr. Bentsen.
Mr. BENTSEN. Thank you, Mr. Chairman and Mr. Powers. Mr. Powers, in your statement you say, we found a systematic and pervasive attempt by Enron's management to misrepresent the company's financial condition. Who is Enron's management, or who do you mean by that? Is that the board of directors, is that the CEO, or is that selected individuals?
Mr. POWERS. OK. The best we could ascertain the genesis of the scheme itself, certainly Fastow, there are people in the finance department who know about these transactions. We think people in the accounting department know about these transactions. It has been very difficult to ascertain precisely what people higher up in the management—we are told Skilling knew and was involved in a great deal.
Mr. BENTSEN. Is your investigation finding that this was a situation where basically some people in management were making these non-economic hedges and off-balance-sheet financings and skimming off the top, or is this a situation where the company itself—I mean, from reading your report it sounds like going back to the early 1990s, they started using off-balance-sheet financing a great deal. Not the only company in the world to do that certainly, for a variety of reasons. But, over time, was this a company where the bad bets kept piling up and they were trying to dig out, or was this a case where you had a handful of individuals at the top who were actually looting the company?
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Mr. POWERS. Well, I think there were a handful of individuals, Fastow and others, who were designing these both to manage Enron's financial statements and to enrich themselves.
Mr. BENTSEN. After Skilling resigned last summer, in August or whenever it was, was the board—I guess in your statement you're sort of laying out that the board either was asleep at the switch or really didn't know what was going on; is that sort of correct?
Mr. POWERS. I think on particular facts, the evidence shows that they were misled.
Mr. BENTSEN. That they didn't understand that there's no economic value or these deals were underwater, that they had—I mean, effectively it looks to me like the Raptor deal—and a friend of mine—an analyst, who I know is an analyst or not, highly regarded this committee, but I was talking to—said these were basically naked puts, that they had pledged either stock or the agreement to issue stock.
Now, who has the authority to issue stock for a public corporation? I mean, $800 million worth of stock is a pretty good chunk of stock, even for a company with $60 billion of market value. I mean, does the CFO have that authority, or is it the board of directors that has to make the determination that stock will be issued or that a put will be issued?
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Mr. POWERS. This is actually stock that they had obtained or pre-existing contracts they had with other companies, but the board did approve of using that stock. The board didn't approve the particular hedging transactions.
Mr. BENTSEN. Let's follow the line of thought and let's assume that the board was misled—maybe. And so Skilling resigns in August or whenever it is this summer. Did the board find out at that point in time that the company was in serious trouble or did the board find out at that time that they had a bunch of deals out there that were underwater, whether they had been skimming or whatever?
Mr. POWERS. I think the board was not informed at that time that these vehicles were underwater.
Mr. BENTSEN. When did they find out? Was it not until October? Was it not until November? I guess my question is because during that period of time the employees and the public and the investing public were being told things were never better, the stock was under value. Now obviously, some of that is a game face that you put on and spin, but it kept going on. Options were issued or granted to employees. I mean, was this going on? The board still didn't have any idea what their balance sheet looked like, what their liabilities looked like?
Mr. POWERS. Well, I think the board was not aware that these vehicles were underwater until Lay came back in as the CEO, and then they did restructure them.
Mr. BENTSEN. Lay came back as the CEO after Skilling resigned in August. I have something here where they issued a grant of options on August 27 and Lay says ''one of my highest priorities is restoring investor confidence in Enron.'' This should result in a significantly higher stock price. And as late as September 26, Lay told the employees that the stock was under value, that the company's prospects were never better. At that point in time, did the chairman and CEO, did the board of directors, did the auditing committee of the board understand what the true financial condition of the company was?
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Mr. POWERS. Well, a lot goes under the true financial condition of the company for reasons that were beyond the vehicles we were looking at. We were not able definitively to ascertain how much Lay knew about these individual vehicles and he denies that he did. Skilling, in the interview, denied that he had much involvement with them, and therefore doesn't say that he told Lay. We were not able to ascertain with that precision exactly what Lay or Skilling——
Mr. BENTSEN. Well, my time is up, but Mr. Chairman, it is like three blind mice running around and their fingerprints are all over the place. The board agrees to the parts and everything else. Either nobody was looking at the sum of the parts or everybody was looking the other way.
Mr. POWERS. Well, we would agree that people were not minding the store. I just can't say with certainty what Lay or Skilling knew at that point about the particulars of those transactions.
Mr. BENTSEN. Thank you, Mr. Chairman.
Chairman BAKER. The gentleman's time has expired.
Mr. Royce.
Mr. ROYCE. We have talked a lot about systemic failure. In 1999, an SEC blue ribbon panel commission recommended that audit committees be made up solely of independent directors, each of whom would be financially literate with at least one having either financial expertise or accounting expertise. However, under the rules implemented by the New York Stock Exchange, directors on the company payroll are permitted, former employees and their families are allowed after 3 years, and audit committee members with a significant business relationship are also acceptable if the board determines that their ties won't interfere with their judgment.
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My question to you, based upon your observations, if the SEC's recommendations had been adopted verbatim first, fully half of Enron six-member committee would probably have been barred from service. In your opinion did the close relationship between Enron's audit committee and the company impair or compromise its judgment or its objectivity in any way?
Mr. POWERS. We didn't have reason to believe that the audit committee didn't have objective judgment in the sense that they were complicit in these transactions. But they did understand and approve the overall use of Enron's own stock as a hedge which should have, in our view, raised red flags.
Mr. ROYCE. Did any of those members on the board raise any questions about these off-book dealings? You interviewed them, I take it, and the committee interviewed them. Are there particular individuals who, during these meetings, raised objections or raised questions or did they simply nod and acquiesce?
Mr. POWERS. They did not raise the right questions.
Mr. ROYCE. OK. Do you happen to know how these board members were chosen?
Mr. POWERS. I don't.
Mr. ROYCE. In your opinion, would an additional assertion on the effectiveness of internal accounting controls in the management disclosure and analysis section of the annual report have brought Enron's troubles to the attention of either senior management or the board of directors in a more timely fashion?
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Mr. POWERS. I don't know whether it would or not. I'm sorry.
Mr. ROYCE. Let's go to the question of waivers. Was the board fully informed when it granted waivers to Mr. Fastow in 1999 to engage in these hedging ventures that were very risky with these partnership agreements, or SPEs, as we are calling them, using Enron's own stock and allowing Enron essentially to do business with itself? Do you think the board was fully informed when it granted those waivers or do you think there was information that was withheld from the board that had they known it, they would have been able to exercise a decision here more in keeping?
Mr. POWERS. I think there was clearly information about the nature of those partnerships including Fastow's compensation that was withheld from the board.
Mr. ROYCE. And the board members that you interviewed indicated they simply weren't given full disclosure? Did they ask for more information, do you know?
Mr. POWERS. They were told that it was inappropriate to know about Fastow's compensation because these were supposed to be arms length independent entities and knowing about his compensation would defeat that. They asked about it, were not told and were satisfied with that answer.
Mr. ROYCE. Were the auditors, Arthur Andersen, involved in those discussions at the time that that assertion was made to the board members? Do you know offhand?
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Mr. POWERS. We don't know whether Andersen was present. We have seen some of Andersen's work papers and from what we have seen, it doesn't look like they asked about Fastow's compensation. But again, there may be papers or Andersen may have a different view on that. We have not been able to find that Andersen looked into that.
Mr. ROYCE. My last question is whether you had an opportunity to interview Cliff Baxter at all about the circumstances?
Mr. POWERS. That was a tragic—one of the tragedies that came out of this. The committee interviewed him. I did not personally interview Mr. Baxter.
Mr. ROYCE. I thank you very much for your testimony here today, and Mr. Chairman, thank you.
Chairman BAKER. Mr. Sandlin.
Mr. SANDLIN. Thank you, Mr. Chairman.
Thank you, Dean, for being here. My oldest daughter just began at the University of Texas as a freshman. Hillary should be horrified that I mentioned that here in Congress. It's good to have you here. Appreciate the hard work that you have done in a short period of time under difficult circumstances, and it appears as we go through this and listening to the questions that as usual, if you follow the money, you know what the incentives are and what's happening. I noticed in your report, I was interested in Mr. Fastow that you have been talking about. He received off the partnerships $30 million profit; is that correct?
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Mr. POWERS. That's correct.
Mr. SANDLIN. Mr. Kopper, $10 million; two others got $1 million each; two more got hundreds of thousands of dollars and it was also interesting, Mr. Fastow—he obviously knew that it was something to be hidden. I saw in your report, it says, item 404 of regulation S-K required the disclosure, where practicable, of the amount of his interest in the transactions, and yet management discussed with him the possibility or way to hide that; is that correct?
Mr. POWERS. That's correct. Mr. Fastow did not want to reveal that.
Mr. SANDLIN. And on top of that he knew that it should be revealed and they were trying to find a way not to; is that correct?
Mr. POWERS. That's correct.
Mr. SANDLIN. I was interested in tracking these so-called retention bonuses. I saw Mr. John Lavorato got $5 million for 90 days, and this was after Enron filed for bankruptcy; is that correct?
Mr. POWERS. I think it was in conjunction with Enron filing for bankruptcy trying to keep key employees that Enron thought was necessary to move ahead.
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Mr. SANDLIN. You would have been pretty key if you got $5 million for 90 days work, wouldn't you, especially when you are giving the employees the rank and file $4,500; is that correct?
Mr. POWERS. That's correct.
Mr. SANDLIN. Has demand been made upon those folks to return that money through the bankruptcy court?
Mr. POWERS. I don't know that.
Mr. SANDLIN. I am sure it is being looked at closely. I noticed also that Enron and its advisors, of course, set up these off-the-book partnerships that we have been talking about, and yet 2 days ago, they indicated they had absolutely no information as to who might be the investors. Did you see that?
Mr. POWERS. I have heard that. I didn't actually see it in the papers.
Mr. SANDLIN. That doesn't seem to be very plausible, does it?
Mr. POWERS. We have been unable to get those work papers because the partnerships have not provided them. I think Enron did not look into who the investors were.
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Mr. SANDLIN. You would understand, then, how they can be in such a bad financial situation if they entered into these arrangements with partnerships, and they don't know who their partners are and they don't know what the arrangements are and they don't have the documents. It's pretty clear they are not doing a very good job, isn't it?
Mr. POWERS. They didn't know the limited partners in those and how those limited partners were dividing the profits.
Mr. SANDLIN. They knew who they were doing business with as far as dealing with their own executives and people making $30 million, $10 million and $2 million?
Mr. POWERS. They knew they were doing business with Fastow.
Mr. SANDLIN. I would like to talk a little bit about this. Since we are talking about the lawyers, it seems to me the ultimate obligation and decision is made by the business itself; isn't that correct? Accountants are advisers and attorneys are advisers. In your report, on page 183, on related party disclosures, you say, ''nevertheless, it appears that no one outside of Enron Global Finance, the entity principally responsible for the related party transactions, exercised significant supervision or control over the disclosure process concerning these transactions.'' Isn't that correct?
Mr. POWERS. That's correct.
Mr. SANDLIN. In fact, Enron had several attorneys advising them; is that correct?
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Mr. POWERS. That's my understanding, yes.
Mr. SANDLIN. And although in your report, you said that Andersen did not fulfill its professional responsibilities, you did not make that same finding about, say, for example, Vincent&Elkins; is that correct?
Mr. POWERS. Again, I stayed away from that aspect of the report and I don't remember the exact language that was used. It may be different language than was used with Andersen.
Mr. SANDLIN. You may have seen that V&E told Enron that some of the partnership deals might have been legal from a technical standpoint, but would be portrayed badly—that was a quote by the media—or in the event of the lawsuit. Have you seen those quotes?
Mr. POWERS. I have seen that in our report.
Mr. SANDLIN. Certainly it was portrayed badly, correct?
Mr. POWERS. It was portrayed badly.
Mr. SANDLIN. I think they were correct in that assessment. I think I'm out of time and it's about to blink, so I'll get back to the few remaining seconds I have and say thank you again for coming.
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Chairman BAKER. Thank you, Mr. Sandlin.
Mrs. Biggert.
Mrs. BIGGERT. Thank you, Mr. Chairman.
Did you say that that you determined that LMJ and Enron officials, especially Fastow and Kopper, took deliberate actions to intentionally frustrate the efforts of the audit staff and attorneys?
Mr. POWERS. Well, they certainly did not want their compensation known. And they were effective in not making it known.
Mrs. BIGGERT. Then what about the issue——
Mr. POWERS. And I add that Fastow especially withheld a great deal about these transactions from the board.
Mrs. BIGGERT. One of the questions that was asked earlier was about the fact that the SEC decided not to perform regularly scheduled review of Enron's filings with the Commission. Did that come up in your report or did you look into that?
Mr. POWERS. I don't believe we did look into that, no.
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Mrs. BIGGERT. Do you think with all these things that went on, the lawyers, the accountants, everything seemed to have failed, if the SEC had looked at that, do you think they might have found out about the special entities, or would have brought that to their attention?
Mr. POWERS. Again, these are very complex transactions, and one has to be able to really dig into the papers to find out about them. More people looking at these might have revealed them, but I can't say for sure whether the SEC could have found this.
Mrs. BIGGERT. You didn't check into it?
It all seemed to be so many things that happened; what would have triggered a stop on this so we could have found out. There's been so much in the press and every time we pick up a newspaper, and particularly the financial papers, but also the financial sections of every paper, there seems to be a lot of talking about Enron. Has the financial press helped or hurt or had any impact on your investigation?
Mr. POWERS. I don't think they have had any impact on our investigation. We may have learned a few things from press reports, but most of it was—well, it had a very small impact on our investigation.
Mrs. BIGGERT. Thank you. Thank you, Mr. Chairman.
Chairman BAKER. Thank you, Ms. Biggert.
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Mr. Sherman.
Mr. SHERMAN. Thank you. I am outraged by the retention bonuses, outraged by the self-dealing, but I want to focus on those aspects that are not unique to Enron, but may be systemic problems in the future. American culture says, as long as you adhere to the rules, you can go out and maximize profit. And it's certainly easier to change the rules and make sure that they cause people to adhere to good, socially acceptable standards, than it is going to be to change the culture.
Mr. Ackerman asked a question a lot of us are asking, and I think, Dean Powers, that your statement may serve as the answer, and I would like to get your response. How did they miss this? How did the board not know? The analogy I've used before is that the accounting rules allow the car to go at 100 miles an hour. It's legal. It's wrong, but it's legal. And the only reason that car isn't on the road today moving quickly toward accounting fantasy land is that they went at 101 miles an hour, and that what people didn't focus on was the last mile an hour. They knew the car was going fast. They might have known in a moral sense that it was wrong, that it exposed a lot of people to a lot of risk, but they thought they were adhering to the speed limit.
I see, Dean, you're nodding, and I want to point out particular items in your statement that have kind of led me to this conclusion. You quote the corporate secretary, ''Does not transfer economic risk, but transfers P+L volatility.'' It's as if the corporate secretary thinks wow, we've discovered a road that you're allowed to go 100 miles an hour on. Do I have this right so far?
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Mr. POWERS. I think the corporate secretary is probably—she's taking the minutes. Recording something that happened in the finance committee meeting.
Mr. SHERMAN. And your comment later, is that from the board of directors on down, they understood that the company was seeking to offset its investment losses with its own stock to have transactions that affected the profit and loss statement or insulated the profit and loss statement, but transactions that didn't have any economic reality.
Mr. POWERS. I think they understood that they were setting up instruments that were hedging with their own stock. I am not sure everybody appreciated, because of the complexity of the transactions that therefore they had no economic consequence. We think they had no economic consequence. This was a red flag. But we can't conclude that everyone on the board appreciated that.
Mr. SHERMAN. So they tended to appreciate that they were hedging with their own stock, but they didn't know particular details or enough about accounting rules to know that this thing, which you and I would call wrong, was actually banned by the accounting rules.
Chairman BAKER. That's your last question, your time has expired.
Mr. POWERS. That's correct.
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Mr. SHERMAN. Your statement at the beginning says if these transactions had been structured correctly, Enron could have kept assets and liabilities, especially debt, off its balance sheet. Enron did not follow the accounting rules. You're implying that if they had just slowed down to 99 miles an hour, they'd still be within all the rules and more specifically, I gather if they had just had $20- or $30- or $40-million of real capital at stake from independent investors, these shams would still be legally recognized?
Mr. POWERS. I think you're raising a very crucial issue here, but it's important to distinguish between different transactions. For example, the Chewco transaction was not a hedging transaction. It was buying assets that Enron wanted to keep off the books for the reason of keeping debt off the books and other reasons. That transaction failed because Chewco did not satisfy the 3 percent outside equity at risk requirement, and that was because of Barclays Bank, and so forth, and we outline that in the report.
Chairman BAKER. The gentleman's time has expired.
Mr. SHERMAN. I thank the gentleman for his indulgence.
Chairman BAKER. Mr. Shadegg.
Mr. SHADEGG. Dean Powers, do you want to finish your answer to that last question?
Mr. POWERS. If the committee would like me to. That violation, if corrected, would have permitted that transaction. The hedging transactions, I think, were more fundamentally flawed, because they were using Enron's own stock to hedge the transactions. I don't think that could have been corrected simply by adjusting the transaction to meet the accounting rules.
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Mr. SHADEGG. Dean, as a recovering lawyer, let me ask you some legal questions and see if I can get some background. First of all, what is your background in law? Do you have background in securities law?
Mr. POWERS. No. I teach torts and products liability and legal philosophy. I have taught contracts and some other topics.
Mr. SHADEGG. Torts and contracts ought to help here a little bit. Did you look into how many off-balance-sheet entities there were? I, for example, have read 3,000. I have heard there were 3,500. And I compare that with other major corporations in America where I have heard there are as few as 6.
Mr. POWERS. We did not look at that issue. We looked at the three entities that were engaged in with related parties, that is, with Enron employees.
Mr. SHADEGG. So you did not investigate whether there are literally hundreds of abuses by off-balance-sheet entities, maybe even thousands of them?
Mr. POWERS. That's correct. We did not investigate that.
Mr. SHADEGG. Are you as mystified as I am by the exploitation of off-balance-sheet entities to conceal debt, or is that——
Mr. POWERS. I was certainly appalled by what we looked at in these entities.
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Mr. SHADEGG. Let's go to the issue of the knowledge of these board members. We just went through some questioning that went at the notion that accounting rules allow them to operate at 100 miles an hour. Everybody knows that 100 miles an hour isn't safe, but it was only when they went 101 miles an hour that we got into this trouble. I'm a little troubled. First of all, did you interview all of the members of the board of directors?
Mr. POWERS. No. I think we interviewed nine members.
Mr. SHADEGG. It was just with respect to these 3 peculiar entities that seem to have been abused?
Mr. POWERS. Yes.
Mr. SHADEGG. Did you find that none of the board members were aware of, for example, the compensation packages or the conflicts of interest?
Mr. POWERS. Well, they certainly understood that Fastow was in LJM, and that he was the chief financial officer of the company, and as our report indicates, we think that was a basic flaw in setting up these transactions in the first place.
Mr. SHADEGG. Didn't Fastow have to ask for an ethics exemption to be able to do that, and did you question them about how or why they granted that ethics exemption?
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Mr. POWERS. He had to get a finding by the office of the Chair, granting this not really exemption, but granting these transactions was in the best interest of Enron. That did not need to come to the board, but it did actually come to the board and made that finding.
Mr. SHADEGG. It did come to the board and they were aware of it?
Mr. POWERS. They were aware of it, that's correct.
Mr. SHADEGG. Do you see a need for significant revisions in the ethics rules governing officers and their disclosures to full board members, including things like the extent of their interest in an off-balance-sheet entity?
Mr. POWERS. I think it's questionable whether an officer ought to have an interest in one of these transactions at all. Certainly if a company were to come to the conclusion after this episode, it was worthwhile, you'd certainly want to get detailed information about the compensation that officer was going to get.
Mr. SHADEGG. Let me go to that point. You have written what I think is an invaluable report, which will be a great resource to the Congress as we go forward. Are there specific things that you have concluded in preparing that report or other members of the committee that worked with you that you would recommend to this Congress to make sure that this kind of incident doesn't happen again, that you can't be ignorant of speed limit rules that allow you to go up to the line like this or allow board members to be as in the dark as it appears they were?
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Mr. POWERS. We worked very hard to describe what happened and we—and I don't have the background, and we did not come to conclusions on what ought to be done, though certainly, that's what this subcommittee and other Government bodies will be looking at.
Mr. SHADEGG. I appreciate your contribution to the process and I yield back the balance of my time.
Chairman BAKER. Thank you.
Mr. Inslee.
Mr. INSLEE. Thank you, Dean. We appreciate your efforts. I am interested—I am from the Seattle area, and I am interested in the pricing of electricity issues. And obviously it has become apparent that to keep this house of cards propped up, Enron wanted to keep the electricity on the West Coast as high as possible. We would like to find out what Enron did in that regard, particularly in regard to any of the Executive authorities, the White House included. And I'm wondering if you would send to us any documents pertaining to Enron or their representatives, requests of the Administration including the Vice President's task force, and the reason I asked you because, as you know, the Vice President has been unwilling to share those with us. Would you be willing to provide those documents to the subcommittee?
Mr. POWERS. I don't think our committee has any documents of that sort. As far as providing them, we have cooperated and provided many documents with SEC, would cooperate with the committees. Documents in the company are not mine to send. The company would have to make a decision. I certainly would support every document or bit of information within the company being provided to the Congress.
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Mr. INSLEE. You're a director of the corporation now. You are certainly the closest thing we have here as a representative of the corporation. Would you recommend to the corporation that they honor my request to you to provide all the documents which I am now making to you pertaining to the communication by Enron with the Vice President's energy task force.
Mr. POWERS. Absolutely. I would support that.
Mr. INSLEE. I will communicate with you further to try to facilitate that. And the public is very, very interested in this. They are very concerned, disappointed that this information has not been forthcoming to date. So we will communicate further. Let me ask you, too, about an issue regarding the futures contracts. I am told that back in 1992, the Commodities Futures Trading Commission, then headed by Wendy Graham, honored a request by Enron to exempt the futures contracts that Enron dealt in from regulation by the Commodities Futures Trading Commission. I am told that Ms. Graham, 5 weeks after leaving her position as chair of that board, went on the Enron board, and that following that and since that time, Enron's futures contracts were free of any Government regulation at least by that agency, and that those contracts were the ones that were involved in this ramp-up of costs of electrical prices on the West Coast.
Did you ask Ms. Graham about her role in that regard to any extent?
Mr. POWERS. We didn't investigate that at all.
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Mr. INSLEE. Is the failure to cover these futures contracts by Enron and others, do you think that could have played a part in the problem that Enron experienced and/or the problem that consumers experienced in the West Coast? Do you have any feeling about that?
Mr. POWERS. I really don't know anything about that.
Mr. INSLEE. Given the nature of this loss, do you think it would make sense for Congress to at least reexamine that issue to whether the public should have some regulatory control over these now unregulated futures contracts that at least played a part in these agreements?
Mr. POWERS. Well, certainly Congress should look into those issues and make judgments about what the best policy and what the law is. I myself don't have enough knowledge about those to know whether there's an issue to look into.
Mr. INSLEE. I want to come back to what Mr. Sherman talked about on the issue of the 3 percent rule. And I will quote from your report. You said, ''there's no question that virtually everyone from the board of directors on down understood that the company was seeking to offset its investment losses with its own stock.'' That is not the way it is supposed to work. Real earnings are supposed to be compared to really losses, something I really agree with. Even if we fixed the 3 percent rule, even if we raised it to 6 percent or 10 percent or 15 percent, that still wouldn't solve the problem that you are alluding to; is that right?
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Mr. POWERS. That's absolutely correct. Those are different issues and different problems.
Mr. INSLEE. How would we, in your judgment—what would be the best way to solve that problem other than just tinkering with this percentage equity rule.
Mr. POWERS. It's my understanding that there is a current accounting rule and practice that a company cannot recognize gains in its stock as income, and indirectly, that's what was happening here. So I think there's an accounting rule that prohibits this. The problem was the transactions got so complicated that people really didn't appreciate, or some people may not have appreciated that that's what was going on.
Mr. INSLEE. Just a last question. Obviously, you and many of us are concerned about the accounting aspect of this and the relationship between the auditing firm and management. Do you have any thoughts about—given about what you know about the relationship of management with the auditors, if you were going to pick a solution to that problem right now on a nationwide basis, comparing a requirement that auditors rotate, for instance, so that there be mandatory termination of auditors' duties at some point or a limitation of functions, be it management versus auditing function or a decision that some other third party decides who the auditor is, if you were to pick amongst those types of solutions, what you know about Enron, what would have been most effective?
Chairman BAKER. The gentleman's time has expired. That's your last question. Please respond.
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Mr. POWERS. I am not an accountant and I don't know which of those would be a better solution. I honestly don't know.
Mr. INSLEE. Thank you. And we will talk about these records. Thank you.
Chairman BAKER. Mr. LaTourette.
Mr. LATOURETTE. Thank you, Mr. Chairman. Dean, I just have one question and I will yield the rest of my time to the Chairman. And I want to focus on the conclusion of your report, and I think you've reiterated in your testimony today, that basically, what we find is a culture that has many flaws by many people at many levels. You talked about the management, the board, the outside evaluators auditors and lawyers. And if you read and watch the news, there are also some hints and insinuations that this was helped along by governmental agencies in attention or favors done by people in Government. Did you and the folks that you investigated with find anything to substantiate any of those, or is that something you didn't look into?
Mr. POWERS. We didn't look into it, but we certainly didn't find anything one way or the other on that.
Mr. LATOURETTE. There is nothing in anything that you uncovered from the limited amount of materials that you had available to you that indicated that Enron's failure was anything but this culture that was created in Enron, and sort of these incestuous relationships that existed, perhaps, with their auditors and lawyers and folks like that?
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Mr. POWERS. That's correct.
Mr. LATOURETTE. Thank you very much.
Mr. Chairman, I yield the balance of my time to you.
Chairman BAKER. It appears to me that Mr. LaTourette was on an analysis course that makes a great deal of sense. Tremendous earnings pressures to beat the analysts' written recommendations or expectation earnings, and then there's the whisper numbers and smart management wants to beat the whisper number by 1 penny or 2, not by 3, because then it looks like you knew something that you didn't disclose. So that you manage from month to month to get the earnings target so your stock price continues to rise.
That creates tremendous managerial pressure to use whatever means to keep the revenue stream up so that credit markets don't cut off the credit window in this case, which was rather significant to Enron's continued success. So you had a very smart CFO manipulating revenue streams, hiding debt in order to keep the appearances whole so that they could perhaps see a turnaround in market price, and thereby truly profit.
It's not unlike the S&Ls in the 1980s who were buying broker deposits and giving away toasters. They were hoping that the interest rate market would turn around and everything would be fine. So I think I understand the corporate culture that drove this, but there is something more insidious that bothers me, and that is, all the options granted to the insiders and corporate officials, that if the stock price ran up and you could exercise your option, then if you had to have a restatement position later in driving the price back down again, the official profited from the rising price and exercised a no-cost option because of his employment contract, but then did not have to give anything back when a restatement of earnings occurred because of that official's misconduct or misjudgment.
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Did you examine any of the relationships between options, restatement of earnings and the effect on management?
Mr. POWERS. We did not look into the options and the sales of stock by insiders in this situation. And it wasn't in our charge and we had a lot on our plate.
Chairman BAKER. With regard to what you did find, your statement with regard to Andersen not fulfilling its professional responsibilities, give me your top three complaints.
Mr. POWERS. Well, it's our understanding, using your own stock as a way of, even through a complicated system, to end up reflecting earnings on your balance sheet, is not proper. That's one.
Chairman BAKER. So your target really is that first Andersen should have identified the economic relationship between the parent and the SPE as problematic because of the financial relationships, and in your opinion, they did not.
Mr. POWERS. There were supposedly controls in place that tried to mitigate the danger of that conflict that they did not manage as well.
Chairman BAKER. Andersen's view they reported to the audit committee, and the audit committee determined it was not material to the long-term profitability of the corporation. Help me understand here what is wrong with the Andersen position.
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I'll restate. Andersen reported to the audit committee, and purportedly according to their view of the facts, they had concerns about the structure of the SPEs and their financial relationship too, and they made a determination that these matters were not made of material significance to the profitability of the corporation.
Mr. POWERS. We don't believe Andersen complained to the audit committee on that, and we weren't able to talk to Andersen.
Chairman BAKER. Give me a quick two and I'll come back later. What is your second one on your list?
Mr. POWERS. That would be the second. The first one was using your own stock to collateralize your earnings. That is a more fundamental one. The 3 percent rules and having audit procedures in place to make sure those things are met, is also a problem.
Chairman BAKER. I will try to come back to you later. I have exhausted Mr. LaTourette's time.
Mrs. Jones.
Mrs. JONES. Professor Powers, or Chair Powers, who were the other—you've identified yourself as the Dean of a law school. Who is Raymond—and I can't read this name, Troubh. Who is he? What type of job does he have?
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Mr. POWERS. He's was a lawyer for sometime in New York, and then an investment banker, and now he's on the board of directors of several companies.
Mrs. JONES. And what about Herbert Winokur?
Mr. POWERS. He's the Chairman and CEO of Capricorn Investments. He's a member of the board of directors and has been of Enron.
Mrs. JONES. I noticed that in your responses to a number of the questions you stopped short—what's the name of the law firm that's involved.
Mr. POWERS. Vinson & Elkins.
Mrs. JONES. That you stopped short in saying why you did not do something with regard to the lawyers or investigate any further the lawyers. Can you finish that sentence, we did not because——
Mr. POWERS. The committee did. Vinson & Elkins has been counsel for the law school on major litigation. They are a major supporter. And I thought the report would speak better if I was not involved in the judgments about Vinson & Elkins and let the other members of the committee make those determinations.
Mrs. JONES. So where are the findings with regard to Vinson & Elkins?
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Mr. POWERS. There are some in the executive summary conclusions and some in the disclosure section, I believe, and there may be others throughout—I'm not sure I am pinpointing every one.
Mrs. JONES. I didn't find them so I will have to go through and look through again. And so, did Mr. Winokur have a relationship with Vinson & Elkins as well?
Mr. POWERS. No, other than the fact that Vinson & Elkins was Enron's lawyers.
Mrs. JONES. Tell me, the one transaction or one transaction was with California Public Employee Retirement System; is that correct?
Mr. POWERS. Yes. That's correct.
Mrs. JONES. And do you know what caused the California Employee Retirement System to jump ship and say ''let me us out of this transaction before we're in the process of losing dollars for our retirees as well.'' Was there anything in your findings that told you something?
Mr. POWERS. CalPERS wanted out of an original investment called Jedi I, so they could get into a new investment. Then they got into a new investment.
Mrs. JONES. Did they then lose money in the new investment?
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Mr. POWERS. We don't know the outcome of that.
Mrs. JONES. But it was an investment with the Enron Corporation?
Mr. POWERS. And it was—Enron—originally Jedi was a combined investment fund that was half Enron and half CalPERS.
Mrs. JONES. What I'm asking you is they wanted to get out of that investment and to be able to get into a larger investment. Was the larger investment with Enron?
Mr. POWERS. It was with Chewco, which was this off-balance-sheet entity of Enron.
Mrs. JONES. Did you, in fact, review any securities law violations with regard to the work that you did, sir?
Mr. POWERS. We didn't.
Mrs. JONES. Are you able, based upon the review you've done and the statements you've made about the accountants, able to say whether you would support the restoration of aiding and abetting liability for accountants?
Mr. POWERS. We really have not looked into it, and as I said, accounting and regulation of accounting is not an area that I've looked into. I have tried to find out what happened here, but I really do not have a well-informed opinion.
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Mrs. JONES. You found out that Andersen allegedly assisted Enron in covering up the limited partnerships that were the real losses for the Enron Corporation; is that right?
Mr. POWERS. They were involved in the structuring of these transactions, correct.
Mrs. JONES. Based on that and based on your statement that this is terrible conduct, clearly, wouldn't you think it would be appropriate that accountants be held responsible for aiding and abetting someone for causing them to lose?
Mr. POWERS. I think accountants should be held liable for their misconduct. I don't know enough about the act or how that act works. But I agree there ought to be appropriate liability under appropriate rules for accountant misconduct.
Mrs. JONES. Tell us how many people were involved in the committee other than your three names on your report.
Chairman BAKER. And that will be the last question.
Mr. POWERS. We had 3 members of the committee and then we had lawyers and accountants. I'd say 25 different people helping us.
Mrs. JONES. Mr. Chairman, can I just ask were they firms or were they individual professors?
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Mr. POWERS. They're firms. The lawyers were Wilmer, Cutler and Pickering, and our accountants were Deloitte & Touche.
Chairman BAKER. Mr. Crowley—excuse me, Mr. Moore.
Mr. MOORE. Thank you, Mr. Chairman.
Dean Powers, I am going to give you just about 2 or 3 dates here and some information that I believe is correct, and the record will correct me if I am wrong, but I understand and maybe you found this out during your investigation, August 23 of the year 2000, stock for Enron peaked at $90 a share, does that sound about right to you?
Mr. POWERS. I don't know independently, but that sounds reasonable.
Mr. MOORE. You know in August of 2001, I believe the date was August 14, 2001 that Jeff Skilling resigned and Ken Lay became the CEO of Enron; is that correct?
Mr. POWERS. Yes.
Mr. MOORE. Maybe the record will reflect my information is that the stock at that time was $43 a share. That was a year after the peak at $90 a share. A year later, it's $43 a share. August 21, just 7 days later, after Mr. Lay became CEO, does your information reflect or your investigation reflect that he sent an e-mail, memorandum to employees of Enron that said that he ''had never felt better about the prospects of the company. Our growth has never been more certain.''
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Mr. POWERS. I've seen reference to that.
Mr. MOORE. Is that timeframe approximately, correct, August of 2001?
Mr. POWERS. I don't have any reason to think that's not the right date.
Mr. MOORE. Based upon your investigation, do you believe that was an accurate statement that the prospects for the company had never been better in August, 2001?
Mr. POWERS. In retrospect the prospects of the company were not—the company went down from there.
Mr. MOORE. Is that the best answer you can give me?
Mr. POWERS. As I said earlier——
Mr. MOORE. I am not asking you what was in Mr. Lay's mind. I'm asking that, based upon your investigation, do you believe in August, 2001, that the prospects for the company had never been better based upon—in retrospect right now.
Mr. POWERS. No. I think they had been better. I don't think that was accurate.
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Mr. MOORE. What is the purpose of an audit? I understand you're not an accountant. What is the purpose of an audit as you understand it, sir?
Mr. POWERS. To assure the public the best that the audit process can; that the financial statements of the company are accurate.
Mr. MOORE. And should that audit be ''independent''?
Mr. POWERS. I think that audit ought to be independent.
Mr. MOORE. Did you understand that the auditors gave advice to Enron as to how Enron could exclude losses of several partnerships from its balance sheet?
Mr. POWERS. Yes. I believe that's correct.
Mr. MOORE. Is it your understanding that last year, Enron paid its auditors $25 million for auditing services?
Mr. POWERS. I don't have the exact figures in my head, but very substantial amounts.
Mr. MOORE. Is it your understanding, based upon your investigation, that last year Enron paid its auditors $27 million for consulting services?
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Mr. POWERS. Yes. I believe that's correct.
Mr. MOORE. In addition to the $25 million for auditing services?
Mr. POWERS. Yes.
Mr. MOORE. Does that cause you any concern?
Mr. POWERS. I think one of the things that surprised me was that the accountants were providing both consulting and auditing services at that magnitude.
Mr. MOORE. Why does that surprise you, sir? I want people that are listening or watching this to understand why that should cause concern.
Mr. POWERS. Because we want the audit to be independent of the people that created the transactions.
Mr. MOORE. What would make you to believe or cause you to believe that wouldn't be independent?
Mr. POWERS. If they helped structure the transactions, they already are going to have a view on the transactions.
Chairman BAKER. Mr. Gonzalez, Mr. Kanjorski asked unanimous consent to intervene for one minute.
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Mr. KANJORSKI. I cannot resist, Dean Powers. As the Dean of the University of Texas Law School, we have another matter up here that may have an ancillary effect on this process.
We have pending before us bankruptcy reform legislation, and the present bankruptcy law in Texas and four other States allows for unlimited homestead exemptions. A lot of these folks that came up here and lost their retirements may not understand that anybody in Texas who puts someone else's money in their home and is sued for it, for recovery, can go bankrupt and keep all the assets in their home, sometimes to the tune of $10, $20 and $30 million. It is a peculiar constitutional exemption in the State of Florida, in the State of Texas, and elsewhere. In this case, I am aware of a number of individuals who are parties to the Enron collapse who would have the option of escaping liability if sued.
Could you express an opinion to me, other Members of this subcommittee and to the Congress, whether or not it is about time we remove that homestead exemption from the Federal Bankruptcy Act so that Texans can suffer the same consequences as every other American in bankruptcy?
Mr. POWERS. I understand that Texas has the homestead provision, and I can certainly see the rationale for uniformity throughout the country that it ought to be the same. I am not a bankruptcy expert by any means, but I certainly understand the concern.
Mr. KANJORSKI. Will you help us with the legal community of Texas to change the law properly?
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Chairman BAKER. I think he's yielding back his time.
Mr. Gonzalez.
Mr. GONZALEZ. Dean, let me just help you with this homestead thing. Being from Texas, you know we hold that sacred and we are in a battle with these guys over it, and the few abuses, if there are abuses, but I think in terms of the whole picture and what it means to so many families in Texas and have been able to salvage their homes in the direst times. But you teach torts, you teach products liability and give us a couple more sessions, you won't have those courses anymore. And if you give us enough time, we will take care of legal philosophy.
I really want to touch on, and this is an interesting aspect, I know you have recused yourself from the Vinson & Elkins involvement, and I am going to touch on that, and if you feel uncomfortable about that, then I will understand. But whether you are a officer, director or accountant or lawyer to Enron, to whom do you owe a duty? It's the shareholder, isn't it?
Mr. POWERS. Shareholders and unfortunately now the creditors.
Mr. GONZALEZ. At the time it was the shareholders' interest that should have been paramount. And that's who they owed it to, and you touched on this, sometimes you have conflicts and objectivity goes out the window because you have a vested interest in what you are doing personally and maybe you're not the best person at that point in time. So an officer is doing something they are not supposed to be doing to protect their own vested interest in whatever the entity, SPEs and whatever they are and their stock options, then you hope the board of directors is going to catch it.
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If the board of directors is too busy or if there's a chummy relationship, as Congressman LaFalce portrayed earlier, then the accountants and the lawyers really do loom large, and they should be the most objective of all the parties that owe this duty to the shareholders, wouldn't you agree?
Mr. POWERS. Well, I think the outside professionals need to be objective in their advice to the company.
Mr. GONZALEZ. But more than anyone else, they are probably in the best position to be objective. And they don't have an investment in what's going on with that company to the extent that the directors who are deriving benefits from the stocks, most of them get paid through stock, and of course the officers themselves.
Tomorrow we'll hear from the accountant and you have expressed something we are having difficulties with, they are consultants and they're also the accountants. So I would like to zero in on the lawyers. The lawyers at Vinson & Elkins had as much to do as anybody else in creating these SPEs, partnerships, Raptors, whatever they were, is that a fair statement?
Mr. POWERS. I don't know that.
Mr. GONZALEZ. Well, you were aware to the extent that they had knowledge of a legal—because these things are legal entities that a lawyer had to have his hand in it somewhere.
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Mr. POWERS. My understanding, and I have read through the report, is that the law firm had some involvement in these transactions.
Mr. GONZALEZ. Now Enron had in-house counsel. Did they have general counsel?
Mr. POWERS. Yes.
Mr. GONZALEZ. Who was a former partner at Vinson & Elkins; is that correct?
Mr. POWERS. Yes.
Mr. GONZALEZ. To some extent, you have a relationship that was pre-existing and continues to some extent.
Mr. POWERS. To some extent.
Mr. GONZALEZ. You also had former Vinson & Elkins partners who had an interest in some of these partnerships. Are you aware, and I'm not sure if it was SPE, Raptor or partnership, and I'm thinking of one individual who was a former V&E partner, and then was also the former head of Enron of Mexico.
Mr. POWERS. I am not aware of that.
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Mr. GONZALEZ. Let's just assume what I just stated is factual, and I need to be very careful, because these are all reports and there's triple hearsay, but in fact, you have these pre-existing relationships with the law firm, general counsel, for instance, and they are hiring people from Vinson & Elkins to come and work at Enron. I think that is true. You have some of these individuals who leave the law firm and then become partners in some of these other entities that are somehow aligned with Enron. Do you see a problem with providing objective responsible mature calculated legal advice given these relationships?
Mr. POWERS. I don't know those relationships to exist.
Mr. GONZALEZ. Just assume that they do.
Mr. POWERS. I think people can have—law firms have people leave the firm and go to be in-house counsel.
Mr. GONZALEZ. There's life after Vinson & Elkins, I'm sure.
Mr. POWERS. And still be in a position to give outside professional advice. And it's certainly quite common that people from law firms go to companies as in-house counsel, and people as in-house counsel go back to the law firms.
Mr. GONZALEZ. Is there the potential—and you don't want to limit someone's ability to move onward and upward, but nevertheless, is there any problems in any of these relationships? Do you see if, in fact—and I'm not real sure that any of these Raptors, SPEs, partnerships involved former partners at Vinson & Elkins. But someone said that these were acceptable, legally speaking, and didn't violate any of the duties to the shareholders who are now left holding the bag along with the creditors?
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Mr. POWERS. Again, I didn't focus on that, so I really don't know the answer to your question.
Mr. GONZALEZ. Thank you very much.
Chairman BAKER. Mr. Lucas.
Mr. LUCAS. Thank you, Mr. Chairman.
Dean, I'll be brief, the hour is late and I find your report very enlightening. Just one question. I think I understand conceptually how hedges and derivatives work, and I understand from your report they are being backed up by worthless guarantees in the company. In your view—and I have heard an analogy that this is kind of like to keep it very simplistic, it's like a ticket scalper.
Let's say a ticket scalper has a ticket and he wants to make something more than $50 and he is left holding the bag and the game starts and nobody wants the tickets, and they are now worth $20 or $30 or maybe nothing. In your view, had the market price stayed up where they didn't get in trouble with these worthless guarantees, would the house of cards fallen anyway, or as long as the money stayed there, would this thing have gone on?
Mr. POWERS. In our view, back in with the company's own stock would have still been inappropriate, but if the price of Enron stock had not gone down, I think there's a real likelihood that these would not have come to the attention of the public. I think that's what precipitated the problem. The price of Enron stock going down and that even on its terms meant that the Raptors couldn't honor their obligation and had to be restructured and charges to equity and earnings.
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Mr. LUCAS. So we have a systemic problem, Mr. Chairman, that had the price stayed up, this maybe would have never come to light. So we have, I think, a big problem industry-wide. Thank you.
Chairman BAKER. Mr. Ross.
Mr. ROSS. Thank you, Mr. Chairman, the hour is late and I'll be brief. You know this has had an impact all across America. I represent an area in Arkansas about the southern half of the State, a small business within my congressional district, total retirement plan is roughly $4.5 million. It's a small business. With the collapse of Enron, over a quarter-of-a-million dollars in a very small retirement plan, some $4.5 million.
If they had had access to half the information that's in this report, they would have known that's a stock they didn't need to be in. Unfortunately, they didn't and those employees now are looking at smaller retirements, much smaller retirements. We can't go back and fix what happened at Enron. We can find out who's responsible and punish them and bring about some justice.
Have you given any thought to the many, many employees of Enron who now are left with no retirement or very little retirement or the retirees who counted on that check to assist and subsidize their Social Security payment and the people, like in my congressional district, that have been hit by this through their retirement plan and 401Ks, and so forth and so on? Have you given any thought to that and have any recommendations from your perspective, having lived through this; how we can ensure that something like this doesn't happen in the future to where those people see something similar to this before it's too late?
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Mr. POWERS. Well, I've given a great deal of thought to it in the sense this is a great human tragedy. As far as recommendations, it seems like a simple idea that the financial reporting of a company ought to accurately portray the condition of the company so that people can make judgments about their investments. I don't have a specific recommendation of how to ensure that happens, but that's crucially important, it seems to me.
There are substantial issues that are being raised about 401K plans, and I think those are crucially important to look at. Again, I don't want to sit here and say I have particular insights into how to structure 401K plans. We tried to show what happened, show what happened such that the value of the stock in those 401K plans was destroyed, and I hope we have done that. But I don't have particular recommendations as to how 401K plans should be structured. It's an astonishingly important problem to solve and especially for the people who are victims of—in their retirement plans of the collapse of the Enron stock.
Mr. ROSS. One final question of you, and that is I got up at 3:30 this morning in Arkansas to head up here thinking I was going to hear the former Chair of Enron testify and somewhere between Arkansas and Washington I learned that he was not going to appear before us without a subpoena. Why did you choose to appear and why would you appear and he not?
Mr. POWERS. Well, I was not, I'd like to say, involved when any of these transactions that took place. I was called in to do an investigation. The purpose of that investigation was to bring to light what happened. When I started I never for a moment thought this would be the result of it, but the task of our committee was to find out what happened and tell the story and I think that's what we've done, and if I can be helpful to the committee in helping to explain that story, that's what I'm here to do.
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Mr. ROSS. It's frustrating that, you know, we pick up the paper and we have committee meetings and we learn where papers are shredded and where people refuse to come without a subpoena and appear before us which, you know, in Arkansas when people do things like that we think they have something to hide, and I'm real troubled by the failure of the former Chair of Enron to appear before us today.
I want to thank you for coming and hopefully you've helped us have a greater understanding of what did happen so we can prevent this from happening in the future. Thank you.
Mr. POWERS. Thank you.
Chairman BAKER. Your time has expired, Mr. Ross.
Ms. Jackson-Lee.
Ms. JACKSON-LEE. Again I thank the committee for its kindness. Dean Powers, welcome and thank you very much.
Mr. POWERS. Thank you.
Ms. JACKSON-LEE. This report is quite filled with enormous challenges for what we may have to face prospectively, and I'd like to follow the line of questioning that my colleagues began with respect to the board's assessment. Might I also say that my colleagues I think have very ably suggested that we realize that people are innocent until proven guilty, but there is a lot here, almost insurmountable information, as to what occurred throughout your report.
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What drove the board to develop this committee around 2001? What was the driving force that caused them to do so?
Mr. POWERS. OK. Of course I wasn't on the board when it was formed, but it was my understanding that questions were being raised in the press about some of these entities and the board wanted to investigate them, have outside people come in and investigate them to, I think, from their hope restore confidence that they were proper transactions. That's not what turned out to be the case.
Ms. JACKSON-LEE. Something was bothering them, if you will. I mean, something was awry and they decided to organize this committee, and when did you get involved with the committee?
Mr. POWERS. I was appointed as Chair of the committee and placed on the board on, I believe, the 31st of October.
Ms. JACKSON-LEE. So just a few days after? The committee came about on the 28th and then you came on on the 31st. How large is the board?
Mr. POWERS. I believe the board is, I think, 14 people.
Ms. JACKSON-LEE. And so the audit committee is how many?
Mr. POWERS. Six, I understand.
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Ms. JACKSON-LEE. So a good portion of the board is the audit committee, almost half if its 14. I noticed that the committee noted that it had no power to compel third parties to submit to interviews, produce documents, or otherwise provide information. Do you think that undermined the committee's ability to get more information or find out definitively how these employees were involved?
Mr. POWERS. I think that somebody with subpoena and cross-examination ability will be able to build on this and get more information.
Ms. JACKSON-LEE. So you think that certainly that should occur, that subpoena power should be used and employees should be able to or a former executive should come in under subpoena and be asked more questions? You think that would be helpful?
Mr. POWERS. I think the appropriate committees and Government agencies should continue and build on this investigation by using their subpoena and cross-examination power, absolutely.
Ms. JACKSON-LEE. Was the board aware of the fact, and I think you note here in your page 4, that the combination of two of these SPEs resulted in a billion dollars write-off to a certain extent, that the assets were represented to be a billion dollars more than they were around the third quarter 2001?
Mr. POWERS. Well, there were reports on the financial statements that use the term revenues of—very large sums were being attributed to transactions that can be traced to these Raptor transactions.
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Ms. JACKSON-LEE. And there was a loss, in essence there was a loss of a billion dollars around the third quarter of 2001?
Mr. POWERS. There were several restatements and losses, but the ones attributable to the Raptors, I don't think we know exactly what board members knew as to how much was being attributed to the Raptors at that period of time.
Ms. JACKSON-LEE. With the board organizing this committee, you coming on 3 days later, was there any reason why the board didn't see fit at that time to terminate Arthur Andersen, and then as well as you were investigating and seeing these occurrences, was there not some concern at the board level and were they aware of the $100 million that was being utilized to give to executives to retain them in contrast to the employees getting nothing and, of course, the pensioners as the stock was going down losing everything? Did you all not discuss that we are in an investigation, maybe we should consider granting this large sum of money to executives in contrast to our employees who were then laid off on December 3, 2001?
Mr. POWERS. Right. That was discussed. We were very early on in our investigation and didn't have the information that we now have that we've been able to develop at the time the board made those——
Ms. JACKSON-LEE. Do you think it was ill advised by the managers at the time?
Chairman BAKER. And that will be have to be your last question.
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Ms. JACKSON-LEE. Thank you, Mr. Chairman.
Do you think you were ill-advised?
Mr. POWERS. Absolutely.
Ms. JACKSON-LEE. Thank you.
Chairman BAKER. Thank you, Ms. Jackson-Lee.
Mr. Shays.
Mr. SHAYS. I have what amounts to about 2 minutes worth of questions.
Chairman BAKER. I have about 2 minutes left.
Mr. SHAYS. Do you want to go first?
Chairman BAKER. No. Please, Mr. Shays, proceed.
Mr. SHAYS. My wife thought I should apologize to you; so I will apologize to you.
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Mr. POWERS. There's no need for that.
Mr. SHAYS. I just will say to you that I find your report so amazing, so scathing, and I was just trying to understand just one little part of it, and on your report on the executive summary, in conclusions on page 25, you have a paragraph again dealing with Vinson & Elkins and you say ''Vinson & Elkins, as Enron's longstanding outside counsel, provided advice and prepared documentation in connection with many of the transactions discussed in the report.'' Is ''the report'' making reference to your report?
Mr. POWERS. Yes, I believe it is there.
Mr. SHAYS. And then you go on to say it also assisted Enron with the preparation, and so on, and then at the end of the paragraph say ''it would be inappropriate to fault Vinson & Elkins for accounting matters which are not within its expertise; however, Vinson & Elkins should have brought a stronger, more objective and more critical voice to the disclosure process.''
What I'm interested to know is did you read their report that it was in response to Sherron Watkins' criticism? They were asked to come in and write a report and they basically, on October 15, said the accounting practices do not warrant further investigation, they basically discounted Ms. Watkins and you really substantiated Ms. Watkins. So I'm interested in how you characterized their report.
Mr. POWERS. Again I have——
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Mr. SHAYS. I'm nicer this time.
Mr. POWERS. I understand.
Mr. SHAYS. Let's put it this way. Did their report agree with your findings or did it have 180 degrees diametrically opposite view?
Mr. POWERS. It did not agree with our findings, but I would like to answer, but realizing I will say at the outset I have got Vinson & Elkins as a major supporter. I think Vinson & Elkins saw as its role asking Arthur Andersen about this and some of the people within Vinson & Elkins.
Mr. SHAYS. You can basically answer the question this way and I will be satisfied with the answer if I get an answer, and that is they did a report. Did your report fly totally in disagreement with their finding? Their finding was the accounting practice did not warrant further investigation, and I think your finding is diametrically opposed to that, isn't it?
Mr. POWERS. Yes. But their finding was based on the fact that Arthur Andersen in their report told them the accounting on these was OK. Now, again, I fully agree that's a defensive statement for Vinson & Elkins, and that's the reason I stayed out of that part.
Mr. SHAYS. I really came back to be nicer to you.
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Mr. POWERS. You've been very nice, Congressman.
Mr. SHAYS. Thank you for giving me that opportunity.
Chairman BAKER. I think you need a couple more minutes to work that out.
Mr. Powers, if I may, I appreciate your long suffering willingness to be here. I just have a few more questions with regard to the audit function, and I want to make sure I understand before Mr. Berardino's testimony tomorrow. He has had a rather direct response to the criticism leveled by your report, and I'm trying to get at the essential elements of your findings that we should address with Mr. Berardino, because it is my belief that had we engaged in an independent audit function, everything from the 401K concerns to the function of the SPEs to the mismanagement of revenue streams to the effects of shareholder equity would, to a great extent, if not altogether eliminate it, significantly mitigate it, and my interest in going forward is to try to understand the systemic failure that occurred with regard to the audit function in this case.
Earlier you indicated that you do not believe that Andersen did appear before the audit committee and allege their concerns with regard to the structure of the SPEs.
Mr. POWERS. That's correct. That's our understanding.
Chairman BAKER. Was there anything you found in the course of your work that was a statement of concern by Andersen with regard to any of the financial activities?
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Mr. POWERS. Well, I think we did come across a statement of concern in a meeting Andersen had among its own people.
Chairman BAKER. And the point of that concern in that meeting was what?
Mr. POWERS. Well, my understanding was it was generally a concern about the accounting structure of some of some of these, and I can't be precise here, but other vehicles at Enron.
Chairman BAKER. Is it possible for you to have resources to provide us with that portion of your inquiry in reference to the meeting of the Andersen officials relating to their concerns about whatever the subject was for us for tomorrow morning?
Mr. POWERS. Our understanding of that internal meeting is only what Congress has already released; so we don't have any—we didn't gather any independent information on that.
Chairman BAKER. OK. That information came from an interview with someone or did it come from a document? I'm not understanding how that conclusion was reached.
Mr. POWERS. Our understanding is it's an e-mail that the House Energy Commerce Committee released and it's been reported.
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Chairman BAKER. So it wasn't really a finding of your internal work; it was a matter released in a public forum by another congressional committee?
Mr. POWERS. Yes.
Chairman BAKER. What I'm trying to get us on track here is anything which your group in the course of your work in the preparation of the report we are in receipt, is there anything else that you can tell me—document, interview, e-mail—anything that will help me better understand the concerns about the performance of Andersen in the conduct of their audit work for Enron.
Chairman BAKER.—beyond the general statement that they did not meet their professional responsibility? I want as much detail as you can provide on the failure to meet that professional obligation.
Mr. POWERS. OK. Can I take just a—.
Chairman BAKER. Absolutely. We don't have anything against consultants.
Mr. POWERS. We would be happy to have our counsel talk to your staff after the meeting and give whatever information they have from their investigation.
Chairman BAKER. That would be terrific and very helpful. Our goal here, I believe, is to establish a system in which truly independent audits can be engaged not only to tell shareholders, but employees and everyone else who has a stake in that corporation's future as best we know it the true financial condition at the time of the audit, and it's my opinion based upon your statements, your study, and the work of others that in this case the independence of the audit is called clearly into question and, more importantly, the whole environment in which the audit was conducted appears not to have been in accordance with traditional standard.
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Now, I'm certainly going to explore that in some considerable detail with Mr. Berardino tomorrow, but anything that might be provided to the committee before the 10:00 a.m. hour would be extraordinarily helpful to us in trying to understand our responsibilities.
Mr. POWERS. We'll certainly do our best to help if we can find something that would be of assistance.
Chairman BAKER. You're very kind. Let me for the record include any official record documents forwarded by Mr. Bachus relative to his concerns on the 401K plans. The record will remain open for all Members to include any extraneous material or questions or statements they wish to pose. Obviously, Mr. Powers, as we proceed there may be need to forward additional inquiries to you to get your particular perspectives on resolution of this matter. Our subcommittee will now recess until 10:00 a.m. in the morning at which time we will receive testimony from Mr. Berardino, the CEO of Andersen consulting. We stand in recess. Thank you, sir.
Mr. POWERS. Thank you.
[Whereupon, at 8:29 p.m., the hearing was adjourned.]
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