This SOX: Combating Public Charity Fraud with Sarbanes-Oxley

36 Pages Posted: 22 Jan 2016 Last revised: 22 Jun 2016

See all articles by John Archer

John Archer

University of Mississippi, School of Law, Students

Date Written: January 20, 2016

Abstract

In the wake of the corporate scandals of the Enron era, Congress delivered the Sarbanes-Oxley Act (SOX) to bolster confidence in our nation’s financial system. To save the system and protect the investing public from corporate abusers, Congress created a capable “toolkit” within SOX to fight fraud and enhance disclosure. Sarbanes-Oxley has been effective in stemming the tide of corporate malfeasance. Currently, only for-profit, publicly traded companies are subject to SOX. But corporate fraud does not stop at the door of the nonprofit world. Fraud within nonprofit corporations is a widespread problem, and nonprofits – particularly large public charities – share many similarities (the good and the bad) with their for-profit cousins. By drawing a parallel comparison between large public charities and publicly traded companies, this Article makes the case that the strong governance principles encapsulated by Sarbanes-Oxley should also be imposed on large public charities.

While others have either argued against applying SOX to nonprofits or have cautiously advocated this approach because of the diverse and varying missions of nonprofits, this article particularly singles out large public charities and demonstrates that SOX is an ideal regulator for this group. While state governments and the IRS both engage in nonprofit regulation, the current regime suffers from a lack of resources and enforcement measures to be truly effective. This is where SOX can help. So much of what Sarbanes-Oxley accomplishes is self-reporting and a governance structure that promotes independence and transparency. Because of this, Sarbanes-Oxley is considered best practices for large entities, and is voluntarily followed by many public charities.

Extending SOX would not be as large a leap as previously imagined. The parallel to large public charities is this: there is a disconnect between the stakeholders of a nonprofit and its directors and management. Within this gap lies the great potential for abuse and fraud. The economic impact of the nonprofit sector upon the American economy is no small thing, much less its social impact. To protect this vulnerable system and combat nonprofit abuse, this Article contends that Congress should take notice of the problem and address it using the same “toolkit” it already created when it addressed fraud among publicly traded companies.

Keywords: Sarbanes-Oxley, SOX, public charities, nonprofit fraud, charity fraud

Suggested Citation

Archer, John, This SOX: Combating Public Charity Fraud with Sarbanes-Oxley (January 20, 2016). Mississippi Law Journal, 2016, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2719374 or http://dx.doi.org/10.2139/ssrn.2719374

John Archer (Contact Author)

University of Mississippi, School of Law, Students ( email )

MS 38677
United States

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