Enhanced Enforcement
“The first proposal establishes a new ethics enforcement policy that would allow the PEEC to ‘automatically’ sanction an AICPA member without an investigation if the member has been disciplined by governmental agencies or other organizations that have been granted the authority to regulate accountants, such as the Securities and Exchange Commission (‘SEC’)…”
I have a problem with the SEC determining guilt. I do wonder about false accusations discrediting a good name in a misunderstanding without an proper investigation or sloppy one done by another agency and accepted by the AICPA. I am concerned that an accusation by the SEC will in fact become a sentence. Will the AICPA sanction an individual that is “under investigation” by the SEC? I am willing to bet that the AICPA would impose sanctions.
Additionally, I am totally lacking in faith about the government’s ability to do any good… I think that many government agencies have the same attitude of King John when he said that his mouth was the law. Let me give an example.
BABBIT v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREATER OREGON, 515 U.S. 687 (1995)
I studied this case in a law class. The Endangered Species Act of 1973 gives the Secretary of the Interior the power to designate species that he considers threatened or endangered. The Secretary of the Interior, Babbit, interpreted the word “harm” to include “indirectly injuring endangered animals through habitat modification and degradation.” The plaintiff alleged that the Secretary harmed them economically by improperly defining the word “harm” in the Endangered Species Act.
The Secretary’s regulation prohibited the habitat modification and degradation of the red-cockaded woodpecker and the northern spotted owl. The landowners, companies, and families of employees in the Pacific Northwest and Southeast rely on the forest for their livelihood. These people could not harvest the forest to earn a living. The Secretary’s regulation prevented the cutting of a tree, or the draining of a pond.
The Secretary of the Interior, Babbit, won the case. The court’s reasoning was:
Code:
1. An ordinary understanding of the word “harm” supports Babbit’s interpretation as reasonable.
2. The Act contained sweeping changes against the taking of endangered species that supported the Secretary’s decision to extend protection against activities that cause harm.
3. Congress authorized the Secretary to prohibit indirect as well as indirect takings.
Correct me if I am wrong. Congress gave Babbit the power to broadly define the word, “harm.” Congress also gave Babbit the power to prosecute the landowners for breaking the law. Is there something wrong with this line of reasoning? Judge Thomas Wiseman said, “Congress is not yet an infallible body incapable of passing tyrannical laws (Conrad, 1999).” Adam Smith and Thomas Jefferson believed that the role of government is an umpire, not a participant (Friedman, 1990).
Those who seek salvation by law from a strong government may not be aware of the law of unintended consequences. Milton Friedman (1990), winner of the Nobel Prize in economics, said it best. “An individual who intends only to serve the public interest by fostering government intervention is ‘led by an invisible hand to promote’ private interests, ‘which was no part of his intention.’”
The accused should have some rights, especially if the AICPA adopts this proposal. If the SEC charges a citizen with a crime, I think that a citizen should have the right to request a trail by jury. Trial by jury may have a sobering effect on SEC tactics. I also support a constitutional amendment to inform all jurors of their Constitutional right to nullify laws, especially government agency laws.
References
Conrad, C. S. (1999, November). Jury nullification: Jurors flex their muscles. USA Today.
Friedman, M., & Friedman, R. D. (1990). Free to Choose. New York: Harcourt, Inc.