How the SEC Makes Rules by Proxy with Sarbanes-Oxley and COSO 2.0: A Pedagogical Note

Abstract

Current business law textbooks oversimplify instruction of administrative law, giving students a misleading picture of how agency rules are made. This oversimplification mischaracterizes systemic realities that future business leaders need to know. Instructors of business law and accounting courses at the undergraduate and graduate levels can augment textbook material and enhance students’ operational knowledge through the use of a pertinent and relevant administrative law example. The Security and Exchange Commission’s internal control framework requirement for publicly traded companies highlights the real relationship between the US Congress, administrative agencies and the private sector, through a proxy rulemaking process. Therefore, the Security and Exchange Commission’s internal control framework requirement provides an example that will aid students learning administrative law.

The following discussion proceeds in three parts. First, a brief history of the Security and Exchange Commission and the Sarbanes-Oxley Act of 2002 is supplied, and the Security and Exchange Commission’s use of proxy rulemaking introduced. Second, the proxy rulemaking process is illustrated in detail through the Security and Exchange Commission’s adoption of COSO internal control frameworks and the COSO definition of internal control for financial reporting. Third, current textbooks are reviewed, the need for a pertinent and relevant example is established, and an illustrative visual of the relationships between the Security and Exchange Commission, Congress, and the private sector is introduced, relative to the internal control framework / proxy rulemaking example discussed.

Keywords: SEC, Sarbanes-Oxley, internal controls, financial reporting, COSO, Security and Exchange Commission, Treadway Commission, proxy rule-making, administrative agencies, Dodd-Frank, PCAOB