Dissenting Statement of Commissioner Daniel M. Gallagher Concerning the Proposal of Rules to Implement the Section 953(b) Pay Ratio Disclosure Provision of the Dodd-Frank Act

Commissioner Daniel M. Gallagher

Washington D.C.

Today, the Commission will vote on proposed rules to implement yet another Dodd-Frank mandate having nothing to do with the SEC’s mission and everything to do with the politics of not letting a serious crisis go to waste. 

The pay ratio computation that the proposed rules would require is sure to cost a lot and teach very little.  Its only conceivable purpose is to name and, presumably in the view of its proponents, shame U.S. issuers and their executives.  This political wish-list mandate represents another page of the Dodd-Frank playbook for special interest groups who seem intent on turning the notion of materiality-based disclosure on its head.

There are no – count them, zero – benefits that our staff have been able to discern.  As the proposal explains, “[T]he lack of a specific market failure identified as motivating the enactment of this provision poses significant challenges in quantifying potential economic benefits, if any, from the pay ratio disclosure[.]”[1]

So much for the benefits.  If you don’t have a good imagination – or a robust political agenda – you simply won’t find any.

*  *  *

It could have been worse, and I commend, as always, our expert staff in the Division of Corporation Finance, under the Chair’s direction, for taking a somewhat more flexible approach to the proposal than many which have been considered.  But the fact that the Commission could have imposed even greater costs does not create some otherwise absent benefit to mitigate the wasteful costs of the proposal.  It merely confirms that there are even more costly ways to accomplish nothing.

So why do this at all?  Simple.  Dodd-Frank says we must.[2]  Crossing one more required rule proposal off our long to-do list of unfinished Dodd-Frank mandates might be the closest thing to a benefit that an objective analysis can squeeze out of today’s proposal. 

It's important not to forget, however, that the pay ratio mandate, unlike so many in Dodd-Frank, carries no congressionally imposed deadline.  We need not act on it now or soon.  It has, nevertheless, jumped to the front of the queue.

We must, therefore, acknowledge as another cost of the rule the decision not to do something else, something more pressing, something that would have yielded discernible benefits – a JOBS Act rulemaking to address the ongoing employment crisis in this country, perhaps, or something – anything – to do with the financial crisis – maybe, for example, the Dodd-Frank section 939A rulemaking that is years overdue.

Given the tremendous strain placed on our resources by Dodd-Frank's seemingly endless stream of mandates as well as our "day job" of doing the blocking-and-tackling work that actually protects investors, maintains fair, orderly, and efficient markets, and facilitates capital formation, today's rulemaking represents a significant and distressing misallocation of time and resources.

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Section 953(b) of Dodd-Frank mandates the application of the pay ratio requirement to “each issuer.”  A flexible approach, designed to reduce costs to issuers, would have defined the word “issuer” simply to mean the registrant itself, thus requiring issuers to include only their own employees in the median employee compensation calculation.  Such an interpretation would also have the benefit of being consistent with the plain language of the statute.  It would have been consistent with the definition of the term “issuer” in both the Securities Act and the Exchange Act, which define the term to mean any person who issues or proposes to issue any security.[3]

This morning’s proposal, however, interprets the term “issuer” by reference to Item 402 of Regulation S-K, which has enterprise-wide applicability and so concludes that in section 953(b) the term “issuer” should likewise have enterprise-wide scope.[4]  This inflexible interpretation has the effect of bringing exponentially more entities – and all of their employees’ compensation – into the pay ratio provision’s costly ambit.

Even more problematically, the proposal would extend the scope of the proposed rules further by requiring the calculation of the median salary and, therefore, the resulting ratio, to be global – that is, applicable not only to the full-time U.S. employees of the issuer and its subsidiaries, but to all of its employees everywhere in the world – including the worldwide employees of its subsidiaries.  And the median calculation must include seasonal, temporary, and part-time employees – assuming they are on the rolls at fiscal year’s end – without, however, requiring annualization of their compensation.[5]

Even from the perspective of the 953(b) supporters, these interpretations of the statute are unnecessary overkill.  Requiring issuers to calculate the median salary based solely on their own full-time employees located in the United States would still have yielded pay ratio figures more than impressive enough to serve the law’s scapegoating and shaming goals. Such a calculation would still have been complex, although much less costly and more in line with our responsibility as regulators to strike an appropriate balance between costs and benefits.

In addition, a more reasonable, literal interpretation of the statutory mandate would have avoided the distortions the chosen method inevitably introduces.  Why, after all, should we require a global calculation, thereby introducing a non-scientific and uninstructive comparison that ignores the variances in the costs of labor and the costs of living in widely disparate economies worldwide?[6]  Of what conceivable use could comparing the pay of workers in developing nations to that of U.S. CEOs be to the investors the SEC is tasked with protecting?  Why include part-time and temporary and seasonal employees?  Why incorporate currency exchange assumptions or pay variations due to governmental social benefits schemes that vary from country to country?  These and other extraneous variables introduce a degree of complexity and obfuscation that renders meaningless what was meant to be a simple ratio. 

The only logical conclusion is that the real point of this exercise is to ensure the most eye-poppingly huge ratios possible.  Gimmicks like these don’t belong in corporate filings.  The agency would sanction issuers who acted so “creatively” in other areas of their 10K or proxy disclosure.

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Finally, I remind the Commission, once again, that the Exchange Act mandates that we consider the effect of what we do on competition,[7] which even the proposal itself acknowledges by noting, “the competitive impact of compliance with the disclosure requirements prescribed by Section 953(b) could disproportionately fall on U.S. companies with large workforces and global operations….”[8]  Notwithstanding this clear mandate, today’s proposal continues a trend of politically motivated new disclosure requirements that impose unnecessary compliance costs on U.S. issuers, reducing their international competitiveness while providing no benefits to investors and political benefits to special interest groups.[9]

*  *  *

Putting the most positive face possible on today’s proposal, then, its benefits are not so much elusive, as illusory.  Indeed, the “benefits” portion of our economists’ evaluation of the proposed rules is really just a discussion of relative costs.  It amounts to this:  Congress told us to do it, and since we could have done it in a more costly way than we did, the result is an implicit net benefit.  I believe this is the best that DERA could do with such a rotten mandate, but none of us should be happy about it.

I cannot see any way to support today’s proposal.  I lament the time wasted on it, and I urge investors, public companies and others directly affected by the proposal to submit detailed, data-heavy comments.

[1]   Release at p. 91 (“Economic Analysis”).

[2]   Note, however, that on June 19, 2013, a bipartisan majority of the House Financial Services Committee reported favorably H.R. 1135, which would repeal Section 953(b).

[3]   Securities Act, sec. 2(a)(4); Exchange Act, sec. 3(a)(8).

[4]   “By directing the Commission to amend Item 402, we believe that Section 953(b) is intended to cover employees on an enterprise-wide basis, including both the registrant and its subsidiaries, which is the same approach as that taken for other Item 402 information” (Release at p. 110), and “we believe it is appropriate to apply the same definition of subsidiary that is used for other disclosure under Item 402” (id. at 111).

[5]   The Release permits annualization for permanent employees, which would include those employed at fiscal year’s end but not for the whole fiscal year, as well as permanent part-time employees.  It does not permit annualization for seasonal or temporary employees employed at year’s end.  Release at 33-34 and 114-15.

[6]   The Release acknowledges that any comparison of registrants’ pay ratios would be uninstructive:  “[W]e do not believe that precise comparability or conformity of disclosure from registrant to registrant is necessarily achievable due to the variety of factors that could cause the ratio to differ…” (Release at 35).

[7]   Exchange Act, sec. 23(a)(2).

[8]   Release at p. 104 (“Economic Analysis”).

[9]   See, e.g., Release No. 34-67716 (“Conflict Minerals”), Aug. 22, 2012, and Rel. No. 34-67717 (“Disclosure of Payments by Resource Extraction Issuers”), Aug. 22, 2012 (subsequently vacated and remanded).

Last Reviewed or Updated: Sept. 18, 2013