[Senate Hearing 108-893]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-893
 
                 CEO COMPENSATION IN THE POST-ENRON ERA

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 20, 2003

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation




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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas              Virginia
OLYMPIA J. SNOWE, Maine              JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas                JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon                 BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois        RON WYDEN, Oregon
JOHN ENSIGN, Nevada                  BARBARA BOXER, California
GEORGE ALLEN, Virginia               BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire        MARIA CANTWELL, Washington
                                     FRANK LAUTENBERG, New Jersey
      Jeanne Bumpus, Republican Staff Director and General Counsel
             Robert W. Chamberlin, Republican Chief Counsel
      Kevin D. Kayes, Democratic Staff Director and Chief Counsel
                Gregg Elias, Democratic General Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 20, 2003.....................................     1
Statement of Senator Allen.......................................     3
    Articles:
      REVIEW & OUTLOOK--Big Labor's Enron, dated August 20, 2002, 
      Wall Street Journal........................................    37
      Teachers Union Scandal in the Nation's Capital, dated March 
      2003, Labor Watch..........................................    39
      DC Teachers' Union Plagued With Scandal, dated January 17, 
      2003, Fox News.............................................    45
Statement of Senator Breaux......................................     2
Statement of Senator Lautenberg..................................    50
    Prepared statement...........................................    52
Statement of Senator McCain......................................     1

                               Witnesses

Bachelder, Joseph E., Founder and Senior Partner, The Bachelder 
  Firm...........................................................    20
    Prepared statement...........................................    22
Clapman, Peter C., Senior Vice President and Chief Counsel, 
  Corporate Governance, TIAA-CREF................................     4
    Prepared statement...........................................     6
Hall, Brian J., Associate Professor, Harvard Business School.....     8
    Prepared statement...........................................    11
Harrigan, Sean, President, Board of Administration, California 
  Public 
  Employees' Retirement System...................................    24
    Prepared statement...........................................    27
Silvers, Damon A., Associate General Counsel, American Federation 
  of Labor and Congress of Industrial Organizations (AFL-CIO)....    15
    Prepared statement...........................................    17


                 CEO COMPENSATION IN THE POST-ENRON ERA

                              ----------                              


                         TUESDAY, MAY 20, 2003

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:33 a.m. in room 
SR-253, Russell Senate Office Building, Hon. John McCain, 
Chairman of the Committee, presiding.

            OPENING STATEMENT OF HON. JOHN McCAIN, 
                   U.S. SENATOR FROM ARIZONA

    The Chairman. Good morning. Thank you all for joining us 
today for this hearing on CEO compensation. Over the past three 
years, shareholders have lost an astonishing $7 trillion in 
stock value. Meanwhile, corporate profits have plummeted 
hundreds of companies have gone bankrupt, and shareholders were 
devastated by these circumstances, but they were not the only 
ones impacted. Since the year 2000, approximately 3 million 
Americans have lost their jobs and our unemployment rate is at 
the highest it has been in a decade.
    Despite these dismal economic statistics, the median pay of 
CEOs has continued to increase and we continue to see many 
examples of enormous pay packages awarded by boards to top 
executives. For example, according to media reports one CEO 
last year made over $100 million in total compensation despite 
the fact that his company was the subject of multiple Federal 
probes. Purportedly, most of his compensation was from stock 
sales made prior to the Federal investigations.
    Another CEO was reportedly paid a million-dollar bonus and 
granted millions of dollars worth of free stock in 2002, the 
same year that his company lost over a billion dollars, 
eliminated thousands of jobs, and saw its stock price collapse. 
That CEO later announced that he was voluntarily reducing his 
compensation significantly, but only after considerable 
pressure from the public and from his company's employees.
    Another CEO reportedly made hundreds of millions of dollars 
from a stock option exercise and sale in 2001. Shortly 
thereafter, the company made a downward revision in its 
financial forecasts and the stock sank sharply.
    There are many other examples of similar CEO compensation 
packages and practices. There appears to be a disconnect 
between CEO pay and performance at many of America's 
corporations. Warren Buffett and many others have pointed to 
excessive CEO compensation as a crucial problem for corporate 
America. Indeed, Mr. Buffett has called executive compensation 
``the acid test for corporate reform.''
    So what do we do about concerns over excessive CEO 
compensation and the popular perception that the corporate 
system seems to have put the interests of top managers above 
those of shareholders employees. My hope is that this hearing 
will begin to answer these questions.
    I should point out that some seem to believe that the 
question of CEO pay is one best left to boards and executives 
negotiating behind closed doors. We invited several CEOs to 
testify at this hearing. Not one accepted the invitation to 
appear today and join us in this important discussion. Private 
discussions may have been appropriate at one time, but today, 
with over half of American households invested in the stock 
market, CEO compensation and other issues of corporate 
governance have become crucial matters of public concern. They 
are issues that must see the light of day to help inform 
individual investors about the very companies that they count 
on to fund their children's education and their retirement.
    Discussing CEO compensation and other matters of corporate 
reform is much more than fair game for public debate. It is an 
essential step towards empowering shareholders and returning 
investor confidence to our equity markets, which are a critical 
component of our vibrant system of capitalism, in which I 
strongly believe.
    I look forward to an informative hearing this morning and 
again thank the witnesses for appearing today. Senator Breaux.

               STATEMENT OF HON. JOHN B. BREAUX, 
                  U.S. SENATOR FROM LOUISIANA

    Senator Breaux. Thank you very much, Mr. Chairman. It is 
really an appropriate and timely hearing, really very 
interesting, too, about what is the Government's responsibility 
to the private sector when they decide to hire people to work 
for them? Is it the Government's responsibility to say that 
something is out of kilter or is it the shareholders who own 
the company who are responsible for running it to wave a red 
flag and say: Wait a minute, something is wrong here.
    It seems to me that there is something wrong when sometimes 
you see corporations which are losing money increasing the 
compensation packages for the people who run the company. It is 
really sort of like Congress passing a tax cut when we have a 
$400 billion deficit. It does not make a lot of sense in the 
private sector. We do the same thing sometimes in the Congress 
with how we manage the country.
    But I think that we argued last week on the floor of the 
Senate about attorney fees and there was an effort for Congress 
to limit privately negotiated attorney fees between plaintiffs 
and defendants, and some of our colleagues said: Well, they are 
getting too much. The response is that this is something that 
was negotiated and approved by the courts.
    The argument here is that compensation packages are 
negotiated between employers and employees and sort of approved 
by the shareholders. Then it is interesting to find out, what 
is the role of the Congress. I am very open to trying to find 
out the extent of the problem and potential solutions to it, 
and I think this hearing can be very helpful.
    Thank you.
    The Chairman. Thank you, Senator Breaux.
    Senator Allen.

                STATEMENT OF HON. GEORGE ALLEN, 
                   U.S. SENATOR FROM VIRGINIA

    Senator Allen. Thank you, Mr. Chairman, and I thank our 
witnesses for coming today and look forward to their testimony.
    One aspect of this debate that I see that might arise has 
to do with stock options and whether or not stock options ought 
to be expensed. I would share with my colleagues, Senator 
McCain and Senator Breaux, that on May 8th Senators Boxer and 
Cantwell and I joined Senator Enzi for a two-hour roundtable 
discussion with CFOs, CEOs, academics, analysts, and also Bob 
Herz, who is Chairman of the Financial Accounting Standards 
Board, on the issue of whether we should mandate the expensing 
of stock options.
    I came away from that discussion feeling, number one, that 
the chairman already had made up his decision that they are 
going to expense stock options. If he were a judge, I think 
people would ask him to recuse himself for having already made 
a determination and only wanted to get on to the sentencing 
phase, already having determined what was going to happen.
    I also came away from that hearing, not only with that 
concern, but the reality that broad-based stock options are 
good. I think it is good for employees in small businesses to 
be able, in start-up companies, to be able to have stock 
options. I think it is good that employees care about the 
future of a company. It helps companies attract officers, 
directors, and also motivate and keep employees.
    So to the extent we get into that issue, I am one who 
thinks that, first of all, there is no proven value that can be 
assigned to, accurate value for stock options, and I will be 
pleased to hear the various comments of individuals, having 
read some of their testimony and some of the statements.
    When you get into executive compensation, it is one thing 
to be concerned about executive compensation, but in the effort 
to curtail executive compensation do not harm the ability of 
small start-up companies, technology companies and others to 
attract officers, directors, and most importantly, do not take 
away this opportunity for employees to own a part of the 
company.
    So I look forward to the testimony and thank you for the 
hearing, Mr. Chairman.
    The Chairman. Thank you, sir.
    Our witnesses are: Mr. Peter Clapman, Senior Vice President 
and Chief Counsel for Corporate Governance, TIAA-CREF; Brian J. 
Hall, Associate Professor at the Harvard Business School; Damon 
Silvers, Associate General Counsel, American Federation of 
Labor and Congress of Industrial Organizations; Joseph E. 
Bachelder, Founder and Senior Partner of the Bachelder Fund--is 
that the proper pronunciation?
    Mr. Bachelder. The Bachelder Firm.
    The Chairman. Bachelder Firm. And Mr. Sean Harrigan, 
President of the Board of Administration of CalPERS.
    We will begin with you, Mr. Clapman, and welcome to all the 
witnesses.

STATEMENT OF PETER C. CLAPMAN, SENIOR VICE PRESIDENT AND CHIEF 
                COUNSEL, CORPORATE GOVERNANCE, 
                           TIAA-CREF

    Mr. Clapman. Thank you very much and good morning. Mr. 
Chairman and Members of the Committee: I am pleased to have 
this opportunity to express TIAA-CREF's views on corporation 
governance issues here today, particularly concerning executive 
compensation practices in the United States. My name is Peter 
Clapman. I am Senior Vice President and Chief Counsel for 
Corporate Governance at TIAA-CREF, a large financial services 
company with approximately $262 billion in assets under 
management serving nearly 3 million education and research 
employees at 15,000 institutions. TIAA-CREF is widely 
recognized as a major voice for shareholder rights and improved 
corporate governance.
    Today I will focus on three key issues: TIAA-CREF's 
approach to corporate governance, problems within the current 
system for determining executive compensation, and suggested 
improvements.
    For many years now, TIAA-CREF has had a proactive corporate 
governance program. We identify and focus on timely critical 
issues affecting all shareholders, be they individual investors 
or large institutional investors like TIAA-CREF. Quiet 
diplomacy is TIAA-CREF's preferred course of action in 
addressing corporate governance concerns at portfolio 
companies. In dialoguing with portfolio company managements, we 
discuss not only the problems but also potential remedies.
    However, when the dialogue is unproductive TIAA-CREF is 
prepared to file shareholder resolutions and in fact we have 
received high votes in favor of our positions, often a 
substantial majority of the issues voted--of the shares voted.
    TIAA-CREF has been a strong advocate for increased director 
independence, greater board accountability, and much higher 
standards of boardroom vitality and effectiveness. This means 
that directors must have the requisite courage and tough-
mindedness to challenge management and to say no when 
necessary, and that brings us directly to the issue of 
executive compensation and the need for reforms.
    TIAA-CREF has long believed that executive compensation is 
in a very real sense a window into the company's broader 
corporate governance character. Executive compensation is an 
important barometer of corporate conduct. Employees, especially 
highly paid individuals, respond to the incentives and 
motivations given or allowed by the system.
    For example, the current system provides great incentives 
focusing on the current short-term share price of a company. Is 
it any wonder that some executives have abused the system by 
cashing out short-term gains from options while at the same 
time encouraging or fostering accounting aggressiveness or even 
fraud to keep earnings high enough to support the high share 
prices at which they cashed out? Regrettably, that is the state 
of affairs today for executive compensation at too many 
companies.
    Currently, the typical option is fixed price and wide. Not 
only do the current accounting rules not impose expensing for 
such options, but, even worse, they require expensing for 
better forms of equity compensation such as performance-based 
options or restricted stock. All of the compensation 
consultants we have heard from say this accounting discrepancy 
is responsible for crowding out these better forms of 
compensation.
    This year TIAA-CREF has filed shareholder resolutions 
calling for performance-based options with a substantial 
holding period for holding stock after exercise. This would 
produce a better alignment between management and shareholders.
    Now I will go to our top priorities for executive 
compensation reforms. First, we need better performance from 
board compensation committees. Under new stock exchange rules, 
only independent directors may serve on compensation 
committees. This is a good first step, but not a panacea. 
Directors must act in a truly independent fashion and be 
sufficiently educated to understand what executive compensation 
is all about and, as I said earlier, have the tough-mindedness 
to say no on occasion.
    Second, it is crucial for independent directors to retain 
truly independent, outside consultants rather than rely on 
consultants selected by management. Consultants will promote 
the interests of whoever hires and pays them. Compensation 
committees must take on that role rather than management.
    Third, compensation committees must reverse the ratcheting 
effect of seeking to position CEO compensation levels between 
the 50th and 75th percentiles, a statistical impossibility if 
all do it.
    Fourth, we must strongly urge the system to stop rewarding 
failure. The public is outraged by excessive severance payments 
to failed CEOs. Individual shareholders and large institutional 
investors alike have registered their anger by supporting 
shareholder resolutions urging shareholder approval of 
compensation payments that exceed reasonable performance-based 
parameters.
    Fifth, we believe that Congress must take care not to 
politicize this issue and it should permit FASB to deal with 
this issue on its intrinsic message--merits.
    In the final analysis, shareholders have been more than 
forebearing, even in the face of stock market losses and 
compensation abuses. However, shareholders want future 
management rewards to be based on real management performance, 
not short-term share prices. Shareholders want management to 
hold real stock as opposed to primarily stock options and thus 
bar the down side risk that shareholders bear, and we cannot 
let them down.
    I have given you a brief overview of TIAA-CREF's approach 
to corporate governance and discussed some of the issues at the 
root of most of the executive compensation excesses. Finally, I 
have suggested some remedies that we hope will lead to improved 
corporate governance best practices and the restoration of 
investor trust and confidence. We assure you that TIAA-CREF 
will continue to press for these reforms.
    Thank you for giving me the opportunity to comment on these 
matters and I will be pleased to answer any questions you might 
have as to my testimony, including some that have been alluded 
to earlier by some of the Senators. Thank you.
    [The prepared statement of Mr. Clapman follows:]

Prepared Statement of Peter C. Clapman, Senior Vice President and Chief 
                Counsel, Corporate Governance, TIAA-CREF

    I am pleased to appear before the Senate Committee on Commerce, 
Science, and Transportation to discuss issues of corporate governance, 
particularly as they apply to current concerns about executive 
compensation practices in the United States. I will focus on TIAA-
CREF's philosophy and approach to corporate governance; executive 
compensation principles; and suggested ways to achieve ``best 
practices'' for corporate governance.

TIAA-CREF Philosophy and Approach
    In my capacity as Senior Vice President & Chief Counsel, Corporate 
Governance, I manage a staff of 6 professionals who are dedicated to 
TIAA-CREF's efforts on behalf of shareholders. TIAA-CREF has been a 
leader in trying to improve corporate governance, both domestically and 
globally for over 20 years. Our organization is a full-service 
financial services provider with approximately $262 billion in assets 
under management. Our main asset base goes to support the pensions of 
nearly 3 million individuals at nearly 15,000 institutions in the 
educational and research field. As such, TIAA-CREF is uniquely 
independent compared with other large institutional investors because 
it works solely for the benefit of its participants.
    TIAA-CREF's broad focus is to seek higher favorable investment 
returns for the millions of stakeholders in the same companies in which 
it invests. The TIAA-CREF investment strategy is long-term buy and 
hold--a significant percentage is quantitatively managed or indexed, 
and for that reason TIAA-CREF does not ``vote with its feet''. In 
addition to its public activities with individual portfolio companies, 
TIAA-CREF works at the policy level with groups such as the Financial 
Accounting Standards Board (FASB), New York Stock Exchange (NYSE), 
National Association of Securities Dealers Automated Quotations 
(NASDAQ), Securities and Exchange Commission (SEC) and internationally 
at the International Accounting Standards Board (IASB).
    Our corporate governance program seeks to enhance our investment 
operations by taking on issues that further the long-term interests of 
shareholders. Although TIAA-CREF is a large shareholder, the interests 
it seeks to advance are those of concern to all long-term investors, 
both large and small.
    TIAA-CREF has an active corporate governance program that 
identifies companies where we see problem areas. We enter into a 
dialogue with these companies in an attempt to correct the situation. 
Although ``quiet diplomacy'' is our preferred course, we are prepared 
to file shareholder resolutions on a number of issues and, in fact, 
have received high votes in favor of our positions, often a substantial 
majority among all votes cast by shareholders.
    We have been strong advocates for more director independence, board 
accountability, and much higher standards of boardroom vitality. As 
shareholders we cannot micromanage our portfolio companies, but must 
rely instead on the directors performing in practice what is their duty 
in legal theory--to be the fiduciaries for the long-term shareholders. 
In actual practice, this means that the directors must be willing to 
oversee and monitor the senior managements of companies, and if 
necessary, be willing to say ``no'' when appropriate.

Executive Compensation Principles
    This brings us directly to the current problems with executive 
compensation in the United States. We have long believed that executive 
compensation in a real sense is a ``window'' into broader corporate 
governance issues at a company. If the directors do not get executive 
compensation right, they probably will fail shareholders in other areas 
as well. Disclosure rules applicable to executive compensation are not 
fully adequate in many respects. For example, disclosure is obscure for 
retirement benefits and executive perquisites. Nevertheless, 
shareholders are able to glean through executive compensation to make 
reasonable assumptions as to how the directors are doing--or not 
doing--their job.
    Executive compensation has its own importance in other ways. 
Individuals respond to the incentives and motivations given by the 
system. If those incentives and motivations are the wrong kind, we 
should not be surprised to find that wrong actions are the result.
    For example, if the current system provides great incentives for 
focusing on the current short-term share price of a company, is it any 
wonder that some executives abused the system by cashing out short term 
gains from options while at the same time encouraging or fostering 
accounting aggressiveness or even fraud to keep earnings high enough to 
support the high share prices at which they cashed out?
    Regrettably, that today is the state of affairs for executive 
compensation at too many companies. The typical option today is fixed-
price, and why? The current accounting rules not only impose no cost of 
compensation for such options, but even worse require expensing for 
other forms of equity compensation such as performance-based options or 
restricted stock. We have heard from all of the compensation 
consultants that this accounting discrepancy is responsible for 
crowding out those forms of compensation that would be better for 
shareholders--more acceptable to shareholders--solely because of the 
accounting rules.
    TIAA-CREF filed shareholder resolutions this year challenging these 
practices, calling for performance-based options with a substantial 
holding period for holding stock after exercising the options. The main 
point argued by proponents of equity compensation is that such 
compensation will produce alignment between management and 
shareholders. The overemphasis on options, however, and our experience 
under that approach, is that the alignment for option holders is only 
with other option holders.

Top Priorities for Executive Compensation Reform
    So what executive compensation reforms are needed, and where will 
they come from? First, we will need better performance from 
compensation committees. Under the new NYSE rules only independent 
directors may serve on compensation committees. This is a good first 
step, but not a panacea. The fact that directors are nominally 
independent does not necessarily equate to their acting independently. 
Will directors become more educated as to what compensation is all 
about--and abide fully by the intent of the new accounting rules?
    Secondly, will directors retain truly independent consultants? In 
the past, all too often directors relied on the consultants selected by 
incumbent management. This has got to change since the entity that 
hires and pays the consultant is the entity that will motivate the 
consultant's advice. That entity has got to become the compensation 
committee and not the management.
    Third, what objective is being sought in executive compensation? We 
see the ratcheting effect of every company seeking to position its CEO 
compensation between the 50-75th percentiles, a statistical 
impossibility.
    Fourth, we must strongly encourage the system to stop rewarding 
failure. The public has seen and is outraged by the high levels of 
severance payments to failed CEOs. Such executives have also received 
service credit for time not served, a semantic twist of words that 
convey total cynicism for the purpose of the grant. This season we have 
seen the response by shareholders as they have supported shareholder 
proposals attempting to introduce some rationality into this process, 
requiring shareholder approval of severance payments that exceed 
reasonable formulas. The question again is how boards could have given 
such contracts if they were truly representing the interests of 
shareholders.
    Fifth, we need to better link compensation with long-term 
performance goals. There are two problem areas with the current system: 
(1) reliance on fixed-price options and (2) absence of substantial 
holding periods for stock after exercise of options. In analyzing the 
situation recently, the Conference Board identified one of the current 
barriers to proper management of these issues--the absence of 
accounting neutrality regarding treatment of different forms of equity 
compensation. Until the properly authorized expert independent 
organization, FASB, acts to correct this problem, many companies will 
hide behind differing earnings treatments and disdain performance-based 
options even while recognizing that they are the better approach to 
executive compensation. Congress should be careful not to politicize 
this issue and should permit FASB to take on this issue on its 
intrinsic merits. The recent support of the FASB by SEC Chairman 
Donaldson is encouraging as to the view at the SEC.
    In the final analysis, shareholders have been more than reasonable 
on this issue. Despite large stock losses, despite revelations about 
executive compensation excess, despite reasonable concerns about board 
performance, shareholders have been patient and understanding. 
Shareholders are willing to support improvements in the process of 
determining executive compensation, believing that the excesses will be 
squeezed out if the process improves.
    The need now is to make the expectations of the new stock exchange 
rules work. The culture in the boardroom must undergo change so that 
the directors are truly accountable to the shareholders and not the 
management. With that change in board culture, the right accounting 
changes, and the generally improved corporate governance practices, 
hopefully the excesses in the system can be corrected. Congress needs 
to strongly support these reforms to restore investor and public 
confidence in the system.

    The Chairman. Thank you very much.
    Mr. Hall, welcome.

   STATEMENT OF BRIAN J. HALL, ASSOCIATE PROFESSOR, HARVARD 
                        BUSINESS SCHOOL

    Mr. Hall. Thank you. Chairman McCain and distinguished 
members of the Committee: Thank you for inviting me to provide 
testimony on this important topic.
    In the recent two decades we have seen dramatic changes in 
the way that American CEOs are paid. There has been about a 
sevenfold increase in the inflation-adjusted median level of 
CEO pay since 1980, which far outstrips the increases seen by 
rank and file workers.
    As important, there has been a dramatic shift in the 
composition of CEO pay. As recently as 1984, the median option 
grant to CEOs of large American companies was zero, which 
implies that fewer than half of the CEOs received any option 
grants at all. In recent years, option grants have represented 
about two-thirds of total CEO pay. Options became the icing on 
the cake for CEOs in the mid-1980s. Today the icing has become 
the cake.
    The option explosion is clearly the central and most 
controversial development in CEO compensation. I will therefore 
focus most of my testimony on what is good and bad about the 
CEO option explosion for the American public. Let us start with 
what is good. In the 1970s and early 1980s, American CEOs 
received very little equity-based pay and as a result had very 
weak ownership stakes in the companies they managed. Although I 
am simplifying a bit, their main financial incentive was to 
increase the size of their companies in terms of revenues, 
assets, and employees, while virtually ignoring the company's 
owners.
    American CEOs were largely protected from shareholders and 
had financial incentives to do something they already enjoyed 
doing, making their companies bigger and expanding their 
empires. They responded in kind. CEO companies became larger, 
but, absent meaningful incentives for top executives to make 
decisions consistent with raising shareholder value, there were 
essentially zero returns to shareholders on an inflation-
adjusted basis for more than a decade.
    The financial incentives facing U.S. executives changed 
dramatically following the shareholder rebellion that began in 
the 1980s. The increase in takeovers removed the inappropriate 
way in which CEOs were insulated from the wishes of company 
owners, while appropriately lessening their job security. 
Moreover, management buyouts, which virtually always led to 
large increases in the ownership stakes for top managers, 
increased dramatically and were typically quite successful in 
raising efficiency, productivity, and profits.
    The use of equity-based pay then began to spread throughout 
corporate America and became mainstream following the rise of 
institutional investor influence and the subsequent 
entrepreneurial wave of the 1990s. Although the move towards 
equity-based pay created new problems and abuse, it had many 
benefits, the most notable being that top executives, who now 
owned significant amounts of stock and options, began to focus 
more on creating value for shareholders and society. Many top 
executives began to think and act like owners, at least 
relative to the period before the option explosion. The 
incentives created by ownership are at the core of a well-
functioning market economy and are fundamental to long-run 
economic prosperity.
    In my view, one of the risks of the recent corporate 
scandals is that they may create an excessive backlash against 
equity-based pay, even though well-designed equity-based 
compensation is the central tool for aligning the incentives of 
owners and managers.
    Now to what is bad. The problem with the option explosion 
is that it has too often led to excess and abuse. In specific 
cases, option plans have been poorly designed, leading to 
perverse incentives and huge payouts to top executives. But 
even for the typical or average CEO, the option explosion may 
have indirectly caused total compensation to become excessive.
    Now, some argue that, even though there are clearly 
specific instances where CEOs seem to have been overpaid, CEO 
is not excessive in general. This argument is based on the 
logic of efficiency of markets: CEOs are simply getting what 
the market will bear. If companies are willing to pay a price 
for CEOs, who is to say that the market price is wrong?
    Unfortunately, a close examination of the pay process for 
CEOs reveals some serious doubts that the CEO labor market is 
particularly well-functioning, one which in my view gives 
weight to the argument that the overall level of top executive 
pay is excessive. The most crucial problem is that boards are 
often too weak and too cozy with top executives. CEOs are quite 
powerful in most American boardrooms. They typically chair the 
board and have a large influence over who is selected on the 
board. In such circumstances most directors feel pressure to 
please the CEO and one of the ways that they do this is by 
providing generous compensation.
    Second, the compensation determination process has become 
dominated by the use of surveys whereby pay is determined by 
benchmarking against other CEOs of comparable size and in 
similar industries. The key problem here is that very few 
boards want to pay their CEOs below the median of this 
distribution, while a very large percentage of boards believe 
that their above-average executive should be paid above-average 
compensation.
    But when boards consistently pay above median levels while 
using peer benchmarking to determine the median, the 
uncompromising laws of mathematics imply pay ratcheting over 
time, and this is precisely what we have observed.
    Finally, the dramatic increase in the use of options led to 
an upward bias in CEO pay, since many boards perceive options 
to be much cheaper than their true economic cost to 
shareholders. Indeed, many boards incorrectly view options to 
be free or costless.
    The false view that options are inexpensive is the result 
of three reinforcing factors: First, the current accounting 
rules allow companies to treat options as free from an 
accounting perspective; second, options require no cash expense 
up front; and third, option valuation is inherently complex, 
leading many people to refer to option costs in terms of the 
number of options, which often seems much smaller than the 
expected dollar cost of options. In my view, these three 
factors have led to upward biases in CEO pay.
    Thus, CEO pay is probably significantly higher than what we 
would see in a well-functioning labor market where well-
informed owners spend their own money to attract, retain, and 
motivate high-quality executives.
    For similar reasons, I have serious doubts that the 
specific design of most CEO pay packages is the optimal result 
of a well-functioning market. The way in which some top 
executives have been able to get huge payouts preceding huge 
declines in stock prices represents the most egregious example 
of poorly designed equity pay plans.
    The solutions to the executive pay problem involve 
strengthening shareholder rights and corporate governance while 
also requiring companies to appropriately account for all 
compensation expenses, including stock options, on their 
accounting statements. More generally, solutions that take the 
form of improving the underlying problem are much preferable to 
trying to micromanage the pay process or pay outcomes through 
Federal legislation. Such legislative micromanagement is likely 
to be ineffective in solving the problem and may well have 
harmful and unintended consequences.
    The best example of this is the 1993 rule aimed at curbing 
executive pay. The so-called million-dollar rule disallowed 
companies from deducting non-performance-related pay above $1 
million for corporate tax purposes. At best, these changes were 
ineffective. At worst, they distorted pay towards options while 
contributing to CEO pay excesses. Indeed, a quick glance at the 
pay trend makes it look as if the 1992-93 changes were passed 
with the intention of accelerating, not curbing, CEO pay 
increases.
    There are many specific ways in which boards can better 
design packages. For example, in my view aligning CEO 
incentives with long-run shareholder value creation would 
require longer vesting periods, stronger and more widespread 
ownership requirements, and automatic clawback of payouts 
following accounting restatements. But such specific changes 
are not easily legislated and if these are good ideas and 
boards become stronger and more empowered they will happen 
naturally.
    Finally, one of the important ways in which Congress can 
act to curb excesses and distortions to executive pay is to 
encourage, rather than to discourage FASB to begin expensing 
options. Much of the current debate regarding the expensing of 
stock options is about whether expensing will help investors 
value companies more accurately. While I agree with many 
opponents of option expensing that this will not improve 
information flows, this largely misses the key point. The main 
problem with the current accounting treatment is that it 
distorts the compensation decisions made by boards and 
executives. Very few boards are willing to design or even 
consider equity pay packages that create an expense on the 
income statement when they can give out free options instead. 
As a result, boards grant options even though options may not 
be the most beneficial form of compensation.
    An example that likely illustrates the distortion created 
by the current accounting rules involves the infrequent use of 
restricted stock. As noted earlier, the main rationale for 
paying executives in the form of equity is to create ownership 
incentives. But since shareholders hold stock, why do boards 
primarily pay executives in options instead of stock? There are 
many good reasons to pay in stock instead, but they are rarely 
considered.
    Despite these advantages, many boards rarely consider stock 
because of the current accounting rules. Requiring an expense 
for options will level the accounting playing field, leading to 
fewer distortions in the way that executives are paid. Combined 
with rules that give shareholders more influence in boardrooms 
will also curb many of the excesses in pay levels, especially 
with regard to many of the large outliers that we have seen.
    To summarize, although we must not forget the large 
benefits of the option explosion, there are good reasons to 
believe that there is an executive pay problem. But the 
executive pay problem is best solved by addressing its 
underlying causes, governance, and accounting, rather than by 
attempting to regulate pay directly.
    In addition to improving the accounting, making managers 
and boards more accountable to shareholders will make the 
executive pay process sounder and less prone to abuse and 
excess. Currently, there are a host of mechanisms that 
disempower shareholders. Poison pills, staggered boards, and 
proxy voting rules serve to weaken the ways in which boards and 
managers are held accountable to the company's owners. Although 
appropriate changes to governance and accounting rules are best 
accomplished through the exchanges, the Delaware courts and 
other courts, and regulatory bodies such as the SEC and FASB, 
Congressional support of these changes would well serve the 
interests of the American public.
    I thank you for this opportunity to provide testimony.
    [The prepared statement of Mr. Hall follows:]

       Prepared Statement of Brian J. Hall, Associate Professor, 
                        Harvard Business School

    Chairman McCain, and distinguished Members of the Committee, thank 
you for inviting me to provide testimony on the topic of CEO 
compensation.
    In the recent two decades, we have seen dramatic changes in the way 
that American CEOs are paid. Although the press and media have often 
sensationalized the issue in ways that misinform the public, there has 
been about a 7-fold increase in the inflation-adjusted median level of 
CEO pay since 1980, which far outstrips the increases seen by rank-and-
file workers. As important, there has been a dramatic shift in the 
composition of CEO pay. As recently as 1984, the median option grant 
(valued at the time of grant by standard option pricing models \1\ ) to 
CEOs of large American companies was zero--which implies that fewer 
than half of the CEOs received any option grant at all. In recent 
years, option grants have been (on average) about twice as large as 
cash-based pay, representing about two-thirds of total CEO pay. Options 
became ``icing on the cake'' for CEOs in the mid 1980s. Today, the 
icing has become the cake. \2\
---------------------------------------------------------------------------
    \1\ Such as Black-Scholes or binomial models.
    \2\ See Figure 1 for details.
---------------------------------------------------------------------------
    The option explosion is clearly the central and most controversial 
development in CEO compensation. It has dramatically affected the level 
of pay, the composition of that pay and, crucially, the incentives that 
top executives face to create or destroy value. As a result, I will 
focus most of the remainder of my testimony on what is good and bad 
about the CEO option explosion for the American public.
    Let's start with what is good. In the 1970s and early 1980s, 
American CEOs received very little equity-based pay and, as a result, 
had a very weak ownership stake in the companies they managed. Although 
I am simplifying a bit, their main financial incentive was to increase 
the size of their companies (in terms of revenues, assets and 
employees) while virtually ignoring the company's owners. American CEOs 
were largely protected from shareholders and had financial incentives 
to do something they already enjoyed doing--making their companies 
bigger and expanding their empires. They responded in kind. U.S. 
companies became larger, but absent meaningful incentives for top 
executives to make decisions consistent with raising shareholder value, 
there were essentially zero returns to shareholders on an inflation-
adjusted basis for more than a decade. \3\
---------------------------------------------------------------------------
    \3\ Of course, macroeconomic and other factors also contributed to 
the poor performance of U.S. companies at this time. But lack of 
meaningful ownership stakes for U.S. executives was likely a major 
factor.
---------------------------------------------------------------------------
    The financial incentives facing U.S. executives changed 
dramatically following the shareholder rebellion that began in the 
1980s. The increase in takeovers (and takeover threats) removed the 
inappropriate way in which CEOs were insulated from the wishes of 
company owners, while appropriately lessening their job security. 
Moreover, management buyouts \4\--which virtually always led to large 
increases in the ownership stakes for top managers--increased 
dramatically and were typically quite successful in raising efficiency, 
productivity and company profits. \5\ The use of equity-based pay then 
began to spread throughout corporate America, and became mainstream 
following the rise of institutional investor influence and the 
subsequent entrepreneurial wave of the 1990s. Although the move toward 
equity-based pay created new problems and abuse, it has had many 
benefits, the most notable being that top executives--who now hold 
significant amounts of stock and options in the companies they manage--
began to focus more on creating value for shareholders and society. 
Many top executives began to think and act like owners, at least 
relative to the period before the option explosion. The incentives 
created by ownership are at the core of well-functioning market 
economies and are fundamental to long-run economic prosperity and 
dynamism. In my view, one of the risks of the recent corporate scandals 
is that they may create an excessive backlash against equity-based pay, 
even though well-designed equity-based compensation is the central tool 
for aligning the incentives of managers and owners.
---------------------------------------------------------------------------
    \4\ These are also called leveraged buyouts, since the transactions 
are often done with high levels of bank and other debt financing.
    \5\ See Palepu (1990) and Kaplan (1989).
---------------------------------------------------------------------------
    The problem with the option explosion is that it has too often led 
to excess and abuse. In specific cases, option plans have been poorly 
designed, leading to perverse incentives and huge payouts to top 
executives following (or preceding) poor performance. But even for the 
typical (or the median) CEO, the option explosion may have indirectly 
caused total compensation to become excessive.
    Some argue that CEO pay is not excessive in general, even though 
there are clearly specific instances where CEOs seem to have been 
overpaid. This view is generally based on the logic of the efficiency 
of markets--CEOs are simply getting what the market will bear. If 
companies are willing to pay a price for CEOs, who is to say that the 
market price is ``wrong''?
    Unfortunately, a close examination of the pay process for CEOs 
reveals some serious doubts that the CEO labor market is not a 
particularly well-functioning one, which, in my view, gives weight to 
the argument that the overall level of top executive pay is excessive. 
\6\ The most crucial problem is that boards are often too weak and too 
cozy with top executives, and as a result, fail to adequately represent 
shareholders when negotiating CEO pay packages. CEOs are quite powerful 
in most American boardrooms. They typically chair the board and have a 
large influence over who is selected to be on the board. In such 
circumstances, most directors (and the compensation consultants 
advising them, who desire to please their client) feel pressure to 
please the CEO and one of the ways that they do this is by providing 
generous compensation, even in relatively well-functioning boardrooms.
---------------------------------------------------------------------------
    \6\ See Bebchuk, et al. (2002).
---------------------------------------------------------------------------
    Second, the compensation determination process has become dominated 
by the use of surveys, whereby pay is determined by benchmarking 
against other CEOs of comparable size and in similar industries. The 
key problem is that very few boards want to pay their CEO below the 
median of this distribution while a very large percentage of boards 
believe that their ``above average'' executive should be paid ``above 
average'' compensation. But when boards consistently pay at above 
median levels while using peer benchmarking to determine the median, 
the uncompromising laws of mathematics imply pay ratcheting over time. 
And this is precisely what we have observed.
    Finally, the dramatic increase in the use of options has led to an 
upward bias in CEO pay since many boards perceive options to be much 
cheaper than their true economic cost to shareholders. \7\ Indeed, many 
boards incorrectly view options to be ``free'' or ``costless.'' The 
false view that options are inexpensive is the result of three 
reinforcing factors. First, the current accounting rules allow 
companies to treat standard options as free from an accounting 
perspective since there is no required expense on the income statement. 
Second, options require no cash expense up-front, even though the 
dilution cost is economically equivalent. Third, option valuation is 
inherently complex, leading many people to refer to option costs in 
terms of the number of options, which often seems much smaller than the 
expected economic dollar cost of options. In my view, these three 
factors--especially in combination--have led to upward biases in CEO 
pay. Thus, CEO pay is probably significantly higher than what we would 
see in a well-functioning labor market where well-informed owners spent 
their own money to attract, retain and motivate high-quality 
executives. For similar reasons, I have serious doubts that the 
specific design of most CEO pay (as opposed to the level of pay) 
packages is the ``optimal'' result of a well-functioning market. The 
way in which some top executives have been able to get huge payouts 
(from selling equity and/or exercising options for a profit) preceding 
huge declines in stock prices represent perhaps the most egregious 
example of poorly designed equity-pay plans.
---------------------------------------------------------------------------
    \7\ Hall and Murphy (2002, 2003).
---------------------------------------------------------------------------
    The ``solutions'' to the executive pay problem involve 
strengthening shareholder rights and corporate governance while also 
requiring companies to appropriately account for all compensation 
expenses (including stock options) on their accounting statements. More 
generally, solutions that take the form of improving the underlying 
problem (involving the incentives of the involved parties and the 
information they have) are much preferable to trying to micromanage the 
pay process or pay outcomes through federal legislation. Such 
legislative micromanagement is likely to be ineffective in solving the 
problem and may well have harmful and unintended consequences. The best 
example of this is the 1993 rule aimed at curbing executive pay. \8\ 
This so-called ``million dollar rule'' disallowed companies from 
deducting non-performance-related-pay above $1 million for corporate 
tax purposes. Around the same time, the SEC passed new regulations 
creating greater executive pay disclosure on company proxy statements. 
At best, these changes were ineffective. At worst, they distorted pay 
towards options (which automatically count as performance-based pay) 
while contributing to CEO pay excesses. Indeed, a quick glance at the 
pay trend in Figure 1 makes it look as if the 1992/1993 changes were 
passed with the intention of accelerating, not curbing, CEO pay 
increases.
---------------------------------------------------------------------------
    \8\ This is section 162 (m) of the Internal Revenue Code.
---------------------------------------------------------------------------
    There are many specific ways in which boards can better design CEO 
pay packages. For example, in my view, aligning CEO incentives with 
long-run shareholder value creation would require longer vesting 
periods, stronger and more widespread ownership requirements (which 
require executives to hold specific amounts of stock) and automatic 
clawback of payouts following accounting restatements (that is, 
executives would be required to pay back any payouts that preceded 
accounting restatements combined with stock price declines). But such 
specific changes are not easily legislated and would happen anyway (if 
they are good ideas) if boards became stronger and more empowered 
representatives of shareholders.
    One of the important ways in which Congress can act to curb 
excesses in, and distortions to, executive pay is to encourage rather 
than discourage FASB to begin expensing options. Much of the current 
debate regarding the expensing of stock options is about whether or not 
expensing will help investors value companies more accurately. While I 
agree with many opponents of option expensing that requiring expensing 
will not significantly improve the information flows to investors, this 
largely misses the key point. The main problem with the current 
accounting treatment is that it distorts the compensation decisions 
made by boards and executives. Very few boards are willing to design 
(or even consider) equity-pay packages that create an expense on the 
income statement when they can give out ``free'' options instead. As a 
result, boards (and managers) grant options, even though options may 
not be the most cost-effective and beneficial form of compensation.
    An example that likely illustrates the distortion created by the 
current accounting rules involves the infrequent use of restricted 
stock (stock that vests slowly) relative to options. As noted earlier, 
the main rationale for paying top executives in the form of equity is 
to create ownership incentives. But since shareholders hold stock, why 
do boards primarily pay executives in options instead of stock? The 
likely answer is the distorted accounting treatment of equity (which 
requires an expense for restricted stock but not options), not the 
inherent superiority of options as a compensation and incentive tool. 
Indeed, there are many advantages to stock relative to options. Stock 
is simpler and easier to value, which helps incentives while also 
curbing abuses. Stock does not have the huge underwater problem that 
plagues options (underwater options undermine ownership incentives, 
create retention problems and lead to perverse pressures to reprice 
options or grant large ``refresher'' grants following stock price 
declines) \9\ since stock cannot fall underwater. Stock also better 
aligns shareholder and executive decisions regarding dividends (and 
sometimes risk-taking \10\).
---------------------------------------------------------------------------
    \9\ See Hall and Knox (2002) for evidence on the significance of 
the underwater options problem.
    \10\ Especially when options fall underwater.
---------------------------------------------------------------------------
    But despite these advantages, many boards rarely consider stock--or 
other types of pay that create an accounting expense--because of the 
current accounting rules. Requiring an expense for options will level 
the accounting playing field, leading to fewer distortions in the way 
that executives are paid. Especially combined with rules that give 
shareholders more influence in board rooms, this will also curb many of 
the excesses in pay levels--especially with regard to many of the large 
outliers paid to CEOs, virtually all of which involved abuses of 
``inexpensive'' and ``hard-to-value'' option grants.
    To summarize, although we must not forget the large benefits of the 
option explosion, there are good reasons to believe that there is an 
executive pay problem. But the executive pay problem is best solved by 
improving governance and accounting, rather than by attempting to solve 
the problem directly without addressing its underlying causes. In 
addition to improving the accounting, making managers and boards more 
accountable to shareholders will make the executive pay process sounder 
and less prone to abuse and excess. Currently, there are a host of 
mechanisms that disempower shareholders including poison pills, 
staggered boards and proxy voting rules that serve to weaken the ways 
in which boards and managers are held accountable to the company's 
owners and other stakeholders. Although appropriate changes to the 
governance and accounting rules are best accomplished through the 
exchanges, the courts (especially the Delaware courts) and regulatory 
bodies such as the SEC and FASB, congressional support of these changes 
would well serve the interests of American public.
    I thank you for this opportunity to provide testimony on this 
important issue.



References
Bebchuk, Lucian, Jesse Fried, and David Walker. 2002. ``Managerial 
    Power and Executive Compensation,'' University of Chicago Law 
    Review 69.
Hall, Brian J. and Thomas A. Knox. 2002. ``Managing Option Fragility,'' 
    NBER Working Paper 9059 (July).
Hall, Brian J. and Jeffrey B. Liebman. 1998. ``Are CEOs Really Paid 
    Like Bureaucrats?'' Quarterly Journal of Economics 113 (3).
Hall, Brian J. and Kevin J. Murphy. 2003. ``The Trouble with Stock 
    Options,'' Journal of Economic Perspectives (forthcoming).
Hall, Brian J. and Kevin J. Murphy. 2002. ``Stock Options for 
    Undiversified Executives,'' Journal of Accounting and Economics. 
    33, pp 3-42.
Kaplan, Steven N. 1989. ``The Effects of Management Buyouts on 
    Operating Performance and Value,'' Journal of Financial Economics 
    24 (October), 217-254.
Palepu, Krishna G. 1990. ``Consequences of Leveraged Buyouts,'' Journal 
    of Financial Economics 27:1-2 (October), 247-262.

    The Chairman. Thank you very much.
    Mr. Silvers.

   STATEMENT OF DAMON A. SILVERS, ASSOCIATE GENERAL COUNSEL, 
               AMERICAN FEDERATION OF LABOR AND 
         CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO)

    Mr. Silvers. Thank you, Mr. Chairman, and good morning. My 
name is Damon Silvers and I am an Associate General Counsel of 
the American Federation of Labor and Congress of Industrial 
Organizations. On behalf of the AFL-CIO, we would like to thank 
you for your leadership on the issue of executive compensation 
and for the opportunity to appear before you today.
    The AFL-CIO is the federation of America's unions, 
representing more than 66 national and international unions and 
their membership of more than 13 million working men and women. 
Of the 1,000 shareholder proposals filed in the 2003 proxy 
season, more than 380 were filed by union members and their 
benefit funds. 75 percent of those 380 proposals dealt with the 
issue of executive compensation. So far, at last 15 of these 
proposals have won majority support from shareholders at major 
companies and at seven additional companies, including GE and 
Verizon, worker funds' shareholder proposals have led to 
agreements to phase out extraordinary executive retirement 
plans.
    Since 1997, the AFL-CIO has sponsored the PayWatch web 
site, www.paywatch.org, where workers and investors can track 
CEO pay at the companies they care about, compare it to their 
own compensation, and take action to reform executive pay 
practices. Over 2 million people have visited PayWatch since 
its launch.
    There are companies where executive pay matters in the 
simplest possible way. It has grown to a level where it is 
materially and directly affecting companies' economic 
performance. But the more common problems involving runaway 
executive pay are that: one, it is structured to create 
perverse incentives; two, it corrodes organizational cultures; 
and three, it is a symptom of an unaccountable CEO and a weak 
board. A couple of examples of each problem.
    First, perverse incentives. As several of my colleagues on 
this panel have mentioned, stock options that can be exercised 
after three years give the CEO an interest in both increased 
share price and increased volatility. If the stock price is 
falling, the CEO begins to develop a rational interest in 
taking risky decisions that shareholders, particularly long-
term shareholders such as our pension funds, do not share. In 
addition, short-term equity-based compensation, whether options 
or stock, creates a strong incentive to manipulate companies' 
stock prices through massaging accounting statements or other 
disclosure manipulations.
    Second, organizational culture. Consider recent events at 
American Airlines. That company was seeking concessions from 
its employees in the name of business survival, including 
cutbacks in retirement benefits. The employees had narrowly 
voted to accept these cutbacks when it was revealed that the 
CEO was secretly increasing his retirement benefits at the same 
time.
    Not only was this grossly unfair, it jeopardized the 
approval of the agreements the company had said were necessary 
to avoid a bankruptcy filing. It shows that treating people 
unfairly has consequences.
    Finally, executive compensation as a symptom. I hope that 
you have seen the previous witness Professor Hall's list of the 
top paid CEOs of 1999 and noticed the overlap with the 
corporate villain list of 2001 and 2002. This strongly suggests 
that when pay is out of control other things are likely to be 
as well.
    But scandalous levels of executive pay are neither a 
permanent feature of the American economy nor a necessary 
byproduct of prosperity. In 1964, at the end of the greatest 
period of economic performance in this country's history, CEO 
pay stood at roughly 25 times that of the average employee, a 
level comparable to that of the other major industrialized 
countries of the time and the other major industrialized 
countries' CEO pay levels today. Of course, in the United 
States today CEO pay stands at over 500 times the pay level of 
the average worker, and the pay of the median CEO continues to 
rise even though by most measures corporate performance is 
falling.
    We believe real change requires the enactment of two 
reforms, reforms that are under discussion at the agencies that 
have the power to enact them, but which face serious political 
opposition. These reforms are the expensing of stock options 
and the democratization of corporate board elections, a 
democratization which is central and really the only way to 
achieve what Professor Hall was talking about in terms of 
strengthening the board's hand in dealing with the CEO.
    I address stock options first. Frankly, the only reason why 
option expensing is an issue at all today is because in the 
mid-1990s, FASB's efforts to require expensing, as the 
professionals at FASB have been urging for as long as they have 
been around, were thwarted by political pressure. Similar 
pressures are now being brought to bear as FASB once again 
tries to do its job.
    The AFL-CIO strongly supports FASB Chairman Bob Herz' 
efforts to restore credibility to GAAP in this area and 
commends the Chairman and Senator Levin for their leadership in 
supporting FASB's independence.
    In our opinion, there is more at stake here than just 
option accounting or executive compensation, if that was not 
enough. Our markets will be damaged if after the events of the 
last two years it appears that our accounting standards are 
still being held hostage to the very political dynamics that 
prevented effective regulation in the 1990s.
    Part of the reason the AFL-CIO supports option expensing is 
that we believe with a level playing field companies will, in 
part due to investor pressure, choose better forms of executive 
compensation such as restricted stock. However, we are 
skeptical of mechanical approaches to executive compensation in 
general. Any mechanism, any one metric, can be gamed. I think 
the history of the 1992 attempts at reform shows that this is 
true in spades.
    A model executive compensation program in our opinion would 
include a thorough evaluation by the board of both quantitative 
and qualitative performance measures aimed at assessment the 
executive's contribution to the long-term health of the 
business. But such a multi-factor approach requires boards that 
are genuinely independent from the CEO and accountable to long-
term investors.
    That is why last week the AFL-CIO filed a rulemaking 
petition with the Securities and Exchange Commission asking the 
commission to democratize the director election process. The 
petition asks the commission to adopt rules giving long-term 
significant investors in public companies the right to have 
short slates of directors they nominate listed on management's 
proxy along with management board candidates and thereby create 
a possibility of moving board of director elections away from 
the North Korean model.
    We suspect that access to the proxy as an option, while it 
will be rarely used, will make dialogue between boards and 
investors much more substantive. In particular, it is only 
through this type of reform that boards will become independent 
enough to really negotiate CEO pay packages.
    The SEC has announced a review of the issue of shareholder 
access to the proxy and in particular shareholder involvement 
in director selection. The staff of the SEC has been asked to 
report to the commission on this issue by July 15th. But the 
reality is that CEOs will oppose this reform as strongly as 
they are opposing option expensing, but without it, it would be 
impossible to prevent further abuses of executive compensation.
    FASB and the SEC have the power and the tools to do 
something about runaway executive pay, to foster precisely the 
kind of private sector fixes that Senator Breaux alluded to in 
his opening remarks. However, both bodies need the support of 
Congress. The AFL-CIO is grateful to this Committee for its 
commitment to this task and we would be pleased to assist the 
Committee in any way as you continue your work in this area.
    Thank you.
    [The prepared statement of Mr. Silvers follows:]

  Prepared Statement of Damon A. Silvers, Associate General Counsel, 
 American Federation of Labor and Congress of Industrial Organizations 
                               (AFL-CIO)

    Good morning Chairman McCain and Senator Hollings. My name is Damon 
Silvers, and I am an Associate General Counsel of the American 
Federation of Labor and Congress of Industrial Organizations. Thank you 
for your leadership on the issue of executive compensation and for the 
opportunity to appear before you today.
    The AFL-CIO is the federation of America's labor unions, 
representing more than 66 national and international unions and their 
membership of more than 13 million working women and men. Union members 
participate in the capital markets as individual investors and through 
a variety of benefit plans. Union members' benefit plans have over $5 
trillion in assets. Union-sponsored pension plans account for over $400 
billion of that amount. Worker-owners and their benefit funds have 
become increasingly active participants in corporate governance in the 
last fifteen years. Of the 1000 shareholder proposals filed in the 2003 
shareholder season, more than 380 were filed by unions. Seventy-five 
percent of these union-sponsored proposals dealt with the issue of 
executive compensation.
    So far, worker fund proposals on executive compensation have won 
majority votes at companies like Alcoa, Apple, Delta (2), Hewlett 
Packard, International Paper, PPG, Raytheon, Sprint, Tyco, Union 
Pacific, U.S. Bancorp (2), Weyerhaeuser, and Whole Foods. At Adobe, 
Airborne, Coca-Cola, Exelon, General Electric (2) and Verizon the AFL-
CIO or an affiliate union recently negotiated agreements to phase out 
extraordinary executive pensions. Of particular note, building trades 
unions' funds have led the fight to get companies to expense stock 
options at dozens of public companies, following up on their success 
last year in winning auditor independence proposals.
    The AFL-CIO has been involved in the effort to reform executive 
compensation since well before the corporate scandals of the last 
several years. Since 1997, the AFL-CIO has sponsored the PayWatch 
website (www.paywatch.org), where workers and investors can track CEO 
pay at the companies they care about, compare it to their own 
compensation, and take action to reform executive pay practices. 
PayWatch is a very popular web site, with over 2 million people 
visiting since its launch and over 400,000 visits in 2002.
    Executive compensation should be a key part of the web of 
relationships that make up the corporate governance process. It should 
contribute toward getting companies to make smart, long term focused 
decisions that lead to sustainable benefits for all who participate in 
the company. Unfortunately, executive compensation has become the best-
known symptom of the breakdown of that process. This year 277 of the 
approximately 1000 proposals filed at companies pertained to reining-in 
executive compensation.
    We believe executive pay matters. Amazingly, there are companies 
where executive pay matters in the simplest possible way--it has grown 
to a level where it is materially and directly affecting companies' 
economic performance. But the more common problems involving runaway 
executive pay are that (1) it is structured to create perverse 
incentives, (2) it corrodes organizational cultures, and (3) it is a 
symptom of an unaccountable CEO and a weak board.
    A couple of examples of each problem. First, perverse incentives. 
Stock options that can be exercised after three years give the CEO an 
interest in both increased share price and increased volatility. If the 
stock price is falling, the CEO begins to develop an interest in taking 
risky decisions that shareholders, particularly long-term shareholders, 
do not share. In addition, equity based compensation, whether options 
or stock, that can be converted to cash during the executive's tenure 
creates a strong incentive to manipulate company stock prices through 
massaging accounting statements or other disclosure manipulations.
    Second, organizational culture. Consider recent events at American 
Airlines. The company was seeking concessions from its employees in the 
name of business survival, including cutbacks in retirement benefits. 
The employees had narrowly voted to accept these cutbacks when it was 
revealed that the CEO was secretly increasing his retirement benefits 
at the same time. Not only was this grossly unfair, it jeopardized the 
approval of the agreements the company had said were necessary to avoid 
a bankruptcy filing. Treating people unfairly has consequences.
    Finally, executive compensation as a symptom. You have seen 
Professor Brian Hall's list of the top paid CEOs of 1999, and noticed 
the overlap with the corporate villain list of 2001-2002. This suggests 
that when pay is out of control, other things are likely to be as well.
    But scandalous levels of executive pay are neither a permanent 
feature of the American economy nor a necessary byproduct of 
prosperity. In 1964, at the end of the greatest period of economic 
performance in this country's history, CEO pay stood at roughly 25 
times that of the average worker, a level comparable to that of the 
other major industrialized countries. Today of course it stands at over 
500 times the pay level of the average worker, and the pay of the 
median CEO continues to rise even though by every measure corporate 
performance is falling.
    Yet, solutions to runaway executive pay have been elusive in more 
recent American history. CEO pay increased throughout the 1980's, to 
the point where in 1992 Congress felt it had to take action to tie pay 
to performance. Then pay really took off. We should learn from these 
experiences that in the absence of effective corporate governance, 
mechanical measures to rein in pay are unlikely to be successful--CEOs 
and their consultants can and will game these rules if they control the 
processes by which their pay is set. For example, today we are seeing 
executives shift from stock options to SERPs and other retirement plans 
as stock options become both controversial and relatively unprofitable.
    So we believe that solutions to the problem of executive pay 
require at a minimum good disclosure to investors and the public and 
real accountability on the part of corporate boards, accountability 
that will result in real bargaining between boards and CEOs.
    Specifically, this requires the enactment of two reforms--reforms 
that are under discussion at the agencies that have the power to enact 
them but which face serious political opposition. These reforms are the 
expensing of stock options and the democratization of corporate board 
elections.
    Stock options need to be expensed so they can be managed and so 
they can be on a level playing field with other types of executive 
compensation that are better suited to aligning executive interests 
with the long-term interests of their companies. There is no good 
reason not to expense options. But there are a number of bad reasons. 
These bad reasons include the spurious assertion that options cannot be 
valued, that options turn up in earnings per share calculations, and 
that options vary in value after they are granted.
    Options can be valued using Black-Scholes and a variety of other 
pricing methods related to Black-Scholes. Though these values are 
estimates, so are the values used for numerous other line items on 
corporate financial statements, including depreciation, amortization, 
and inventory-related adjustments. Options do vary in value after they 
are granted--but so do a variety of payments and agreements made by 
companies--for example payments made in foreign currencies or long-term 
commodity contracts. No one would suggest they should be left off the 
companies' financial statements. Finally, the inclusion of options in 
the creation of the fully diluted earnings per share figure does not 
treat options as a cost, which in fact they clearly are.
    Frankly, the only reason why option expensing is an issue at all is 
because FASB's efforts to require expensing have been thwarted in the 
past by political pressure. Similar pressures are now being brought to 
bear as FASB tries once again to do its job. The AFL-CIO strongly 
supports Bob Herz's efforts to restore credibility to GAAP in this 
area, and commends the Chairman and Senator Levin for their leadership 
in supporting FASB's independence. In our opinion, more is at stake 
here than just option accounting or executive compensation. Our markets 
will be damaged if after the events of the last two years it appears 
that our accounting standards are still being held hostage to the very 
political dynamics that prevented effective regulation in the 1990's.
    Part of the reason the AFL-CIO supports option expensing is that we 
believe that with a level playing field companies will, in part due to 
investor pressure, choose better forms of executive compensation such 
as restricted stock. But we are skeptical frankly of mechanical 
approaches to executive compensation in general. Any mechanism, any one 
metric, can be gamed. A model executive compensation program, in our 
opinion, would include a thorough evaluation by the board of both 
quantitative and qualitative performance measures aimed at assessing 
the executive's contribution to the long term health of the business.
    This kind of process can only work though when the board is 
genuinely independent from the CEO and accountable to long-term 
investors. That is not the reality of today's corporate boards. That is 
why worker pension funds and other institutional investors are looking 
to make long-term investors a real counterbalance to management power 
in the board room. Last week the AFL-CIO filed a rulemaking petition 
with the Securities and Exchange Commission asking the Commission to 
democratize the director election process. The petition asks the 
Commission to adopt rules giving long-term significant investors in 
public companies the right to have short slates of directors they 
nominate listed on management's proxy along with management board 
candidates. This proposal for access to the proxy is designed to give 
long-term institutional investors voice, not to facilitate takeovers. 
We suspect that access to the proxy, while rarely used, by its very 
availability as an option will make dialogue between boards and 
investors much more substantive. In particular, it is only through this 
type of reform that boards will become independent enough to really 
negotiate CEO pay packages.
    The SEC has announced a review of the issue of shareholder access 
to the proxy, and in particular shareholder involvement in director 
selection. The SEC staff has been asked to report to the Commission on 
the issue by July 15. But the reality is that CEOs will oppose this 
reform as strongly as they are opposing option expensing, and that 
without it, it will be impossible to prevent further abuses of 
executive compensation.
    FASB and the SEC have the power and the tools to do something about 
runaway CEO pay. But not if they succumb to Congressional and company 
pressure to continue business as usual. One would think that after the 
last couple of years it would not be necessary to say this.
    Ultimately, the crisis in executive compensation is a microcosm of 
the crisis in corporate governance that brought us Enron and WorldCom 
and HealthSouth and so many others. Only by getting disclosure right 
and giving institutional investors the power to act on what they know 
can we get executive pay under control. But the long term health of our 
economy and the basic principles of fairness demand we do so. The AFL-
CIO is grateful to this Committee for its commitment to this task and 
we would be pleased to assist the Committee in any way as you continue 
your work in this area. Thank you.

    The Chairman. Thank you, Mr. Silvers.
    Mr. Bachelder.

         STATEMENT OF JOSEPH E. BACHELDER, FOUNDER AND 
               SENIOR PARTNER, THE BACHELDER FIRM

    Mr. Bachelder. Mr. Chairman and distinguished Members of 
the Committee: I very much appreciate the opportunity to speak 
with you this morning on the subject of executive compensation 
and in particular the focus of today, CEO pay. I am a founder 
and senior partner of the Bachelder Law Firm in New York City. 
I have concentrated in matters associated with executive 
compensation for over two decades. I have represented many 
prominent chief executive officers and other senior level 
executives of United States corporations. I have also 
represented boards of directors and compensation particulars. I 
write a regular column, ``Executive Compensation,'' which 
provides current commentary on the subject of executive pay for 
the New York Law Journal.
    By way of introduction, I would like to note that a 
recently completed study of 437 companies out of the S&P 500 
shows that, taking into account salary, bonus, and long-term 
incentives, including stock options, the average CEO pay is 
down approximately 24 percent in 2002 from 2001. This same 
survey, based on these 437 companies out of the S&P 500, is 
down by about 10 percent. I think that what goes up does indeed 
come down, and other surveys do indicate that CEO pay in 2002 
is down from 2001.
    I would like to make some observations on CEO pay today. 
First of all, I believe that the market of CEO pay is a free 
market, much in the way that the stock market is a free market 
or the real estate market is a free market. None of these 
markets are perfect, but it is basically that. In order to get 
a CEO to move from company A to company B, for example, company 
B must do what it takes to get him or her to move. If company A 
wants to keep that CEO from accepting the offer from company B, 
it must pay what it takes. It is a bargaining process, much of 
which goes on in other free markets.
    If asked, the vast majority of directors of the 
approximately 15,000 public companies in the United States 
would likely say that the single most important factor to a 
company's success over the next several years is the CEO. This 
is one reason why CEOs have the leverage they command in 
negotiations over their pay.
    For major U.S. corporations, CEO pay represents a very 
small portion of the value of the companies they run. If for 
example Jack Welch received over his career a billion dollars 
of value--and the publicly available information that I have 
reviewed indicates it to be significantly less than that--this 
would be approximately one-quarter of 1 percent of the 
company's total market capitalization as of September 2001 when 
he retired. You will pay more than that as a percentage of most 
transactions to your stockbroker. If you sell your house, you 
will pay something like 6 percent to your real estate broker.
    From a different perspective, Jack Welch's pay for his 
entire career would probably equal less than 10 cents per share 
of GE stock, currently priced at approximately $28 per share, 
with approximately 10 billion shares outstanding.
    CEO salaries and bonuses have increased, but not to an 
egregious degree, over the past 50 years, averaging between 5 
and 6 percent. Adjusted for inflation, this rate is about 2 
percent. In fact, the rate of increase in CEO salaries and 
bonuses trailed the rate of increase in pay of production 
workers during the 1950s, 1960s, and 1970s.
    So why the extra fuss over CEO pay today? To a very 
significant degree, it is due to stock options, and this in 
turn is due in large part to the way we report stock options as 
compensation. For the moment I am addressing the issue of 
reporting CEO pay and not the issue of whether options should 
be expensed for accounting purposes, a very important and 
separate issue, but not the subject of this testimony that I am 
giving.
    Much of the reporting of the huge CEO pay gains in the 
1990s was based on values attributable to the awards of stock 
options using the financial model called Black-Scholes. Black-
Scholes' initial applications were to freely tradable short-
term options, meaning options for periods of less than a year, 
frequently in the range of only three to six months. Applied to 
ten-year executive stock options, Black-Scholes is like 
planning a long drive through traffic by taking a one-time look 
in the rear view mirror.
    Let us compare an executive stock option to one of those 
short-term options traded on the Chicago Board Options 
Exchange. An executive stock option cannot be sold. It usually 
cannot be exercised for a significant period of time. If the 
option is exercised, the sale of the stock may be subject to 
SEC insider restrictions. If the executive quits, the option is 
probably forfeited.
    Even if the executive continues on during the full option 
term, how does one forecast the consequences of wars, 
recessions, and the growth or collapse of particular employers 
over that period?
    To report one dollar of such highly speculative value as 
the equivalent of one dollar of salary paid today is debatable, 
to say the least. Notwithstanding the foregoing, many U.S. 
surveys report side by side dollars of theoretical option value 
with dollars of salary paid as if they were equivalent. These 
surveys then compound the sin by adding the two together.
    Many billions of dollars of supposed option value 
evaporated during and after the 1990s. There are cases of 
executives reported to have received hundreds of millions of 
dollars of option compensation during the past ten years whose 
options are now underwater.
    In a study of CEO pay over an approximately ten-year period 
ending in 2001, the Bachelder Firm found 210 CEOs, out of a 
much larger group of CEOs, who were employed as CEOs by the 
same company for the entire period of approximately ten years. 
The ratio of stock option gains to salary and bonuses for these 
210 executives over the approximately ten years was a little 
over one to one. By option gains, I mean both realized and 
unrealized gains.
    To the vast majority of CEOs in the United States, the 
1990s were a rewarding period, with rewarding results to 
shareholders, but not the bonanza of extravagance suggested by 
the media.
    I have a few suggestions. Let us adopt a consistent 
yardstick for valuing stock options in reporting CEO pay. I am 
speaking of surveys and reports on options, not at this moment 
accounting for options, which, as I said, is a different issue. 
I suggest using gains both realized and unrealized, rather than 
the theoretical Black-Scholes value at the time of option 
grant.
    Second, let us stop focusing on the outliers who attract 
headlines and distort the overall picture of CEO pay and 
instead focus on the average or median CEO pay when discussing 
that subject.
    Third, it would be very helpful if there was at least one 
common database of companies that we all could refer to, like 
the S&P 500. Throughout each proxy season we go from surveys 
that in some cases cover 50 or fewer companies in a limited 
number of industries to surveys concerning much larger numbers 
of companies in many industries. When that is combined with 
differences in valuation methods and differences in the use of 
terminology, it becomes very difficult for the public to get an 
accurate picture of what really is happening to CEO pay.
    Finally, when CEOs and other executives exercise stock 
options it would be reasonable to require that a specified 
percentage of the stock attributable to the spread at time of 
exercise, net of shares needed to pay taxes incurred as a 
result of the exercise, be held for a minimum period of time.
    Thank you very much, Mr. Chairman and members of the 
Committee, for the opportunity to testify today.
    [The prepared statement of Mr. Bachelder follows:]

Prepared Statement of Joseph E. Bachelder, Founder and Senior Partner, 
                           The Bachelder Firm

A. Introduction
    A recently completed study (reported by Equilar, Inc.) of 437 
companies out of the S&P 500 shows that, taking into account salary, 
bonus and long-term incentives including stock options, the average CEO 
pay is down 23.6 percent in 2002 from 2001.
    Looking farther back, over the past fifty years, CEO pay (salary 
and bonus) has grown an average of approximately 5.8 percent a year. 
That compares to the S&P 500 total shareholder return (stock price 
growth plus dividends deemed reinvested) of approximately 12 percent a 
year over the same fifty-year period. It is noteworthy that during the 
1950s, the 1960s and into the 1970s, the rate of increase in CEO pay 
(salary and bonus) trailed the rate of increase in production workers' 
pay.
    Another way of looking at CEO pay is to compare it as a percentage 
of employer revenues over a period of time. Looking at over 230 U.S. 
corporations that are in the current S&P 500 and that were in the same 
index a decade ago, salary and bonus paid to the CEOs of those 
companies represented approximately 0.035 percent of their revenues a 
decade ago and represents approximately 0.029 percent today.
    What about stock options? In the early 1980s, after approximately 
15 years of almost no growth in the stock markets, stock options were 
encouraged as a favored form of long-term incentive award. Consultants, 
investors and academics looked favorably on stock options. Why? Because 
they wanted to tie CEO pay to increase in shareholder wealth. What 
better way to do that than with stock options? If the markets went up, 
the CEO shared in the growth. If the markets went nowhere, the CEO made 
nothing.
    What happened? The stock markets exploded! From the early 1980s to 
the end of the 1990s, the stock markets rose 1400 percent. In a 
September 2002 report, the Conference Board indicated that 
approximately 80 percent of the increase in CEO pay over the period 
1992 to 2000 was attributable to gains in stock options. The stock 
market had its remarkable success in the 1980s and 1990s and so did 
stock options for many CEOs in that same period. In a sense we got what 
we asked for: we tied CEO pay to increasing shareholder wealth and 
shareholder wealth overall increased dramatically.

B. Some Observations on CEO Pay Today

1. Free Market
    First, let's recognize that the market of CEO pay is a free market, 
much in the way the stock market is a free market, or the real estate 
market is a free market. In order to get a CEO to move from Company A 
to Company B, Company B must pay what it takes. If Company A wants to 
keep that CEO from accepting the offer from Company B it must pay what 
it takes. It is a bargaining process, much as goes on in other free 
markets.

2. The Market Value of CEOs
    If asked, the vast majority of directors of the approximately 
15,000 public companies in the United States likely would say that the 
single most important factor in a company's success over the next 
several years is the CEO. This is one reason why CEOs have the leverage 
they command in negotiations over their pay.
    There are not a lot of people who possesses the qualities necessary 
to be a successful CEO. To succeed, they must:

   Master the business operations--most frequently global in 
        scope--of companies with hundred of millions, and in some cases 
        hundreds of billions, of dollars of revenues and market 
        capitalization.

   Have the vision and leadership to keep their companies ahead 
        in developing and marketing new products and services, 
        improving existing products and services, and in marketing 
        those products and services.

   Understand and oversee increasingly complex financial 
        structures (and we all know the tragedies associated with 
        leadership that either, willfully or neglectfully, fails to do 
        this).

   Attract, motivate and retain talented people--frequently 
        tens of thousands and, in some cases, hundreds of thousands.

   Work effectively and productively with multiple 
        constituencies including employees, shareholders, directors, 
        Wall Street analysts, the media, Federal, state and local 
        governments and, frequently, foreign governments as well, and 
        the citizens of the communities of which they are a part.

    Individuals who effectively combine these skills, with the energy, 
commitment and personal sacrifices required, do indeed command a 
premium in today's market.
    Ironically, institutional shareholders criticize CEO pay and yet 
many of them have been a force in increasing CEO pay. Representing some 
of the greatest concentrations of stock wealth in the history of our 
country, institutional shareholders have provided constant pressure for 
increasing stock prices. CEOs respond to this pressure. With or without 
stock options, the pressure would have been there. Did the 1990s 
produce too much in the way of institutional shareholder gains? Where 
were many of the institutional shareholders just a few years ago on the 
subject of Enron? On the subject of Worldcom? I am not sure I would 
look to institutional shareholders as the oracle on CEO pay.

3. CEO Pay Versus the Value of the Companies They Run
    For major U.S. corporations, CEO pay represents a very small 
portion of the value of the companies they run. If, for example, Jack 
Welch received over his career a billion dollars of value, and the 
publicly available information that I have reviewed indicates it to be 
significantly less than that, this would be approximately 0.25 percent 
of the Company's market value as of September 2001 when he retired. You 
will pay more than that as a percentage of most transactions to your 
stockbroker. If you sell your house, you will pay something like 6 
percent to your real estate broker. From a different perspective, Jack 
Welch's pay for his entire career would probably equal less than ten 
cents per share of GE stock currently priced at approximately $28 per 
share, with approximately 10 billion shares outstanding.
C. Stock Option Gains and the Black-Scholes Bugaboo
    As already noted, CEO salaries and bonuses have increased--but not 
to an egregious degree--over the past 50 years. As also already noted, 
the rate of increase in CEO salary and bonus trailed the rate of 
increase in pay of production workers during the 1950s, the 1960s and 
into the 1970s. So why the extra fuss over CEO pay? To a very 
significant degree, it is due to stock options. And this, in turn, is 
due in large part to the way we report stock options as compensation. 
(I am addressing the issue of reporting CEO pay and not the issue of 
whether options should be expensed for accounting purposes, a separate 
issue that is not the subject of this testimony.)
    Much of the reporting of huge CEO pay gains in the 1990s was based 
on values attributed to the awards of stock options using the financial 
model called Black-Scholes. Black-Scholes seeks to value an option 
based on a number of factors, including the current stock price, the 
option exercise price and the historic volatility of the stock to which 
the option applies. Other elements of the model include the term of the 
option, the dividend yield and the risk-free interest rate. Black-
Scholes' initial applications were to freely tradable short-term 
options--meaning options for periods of less than a year, frequently in 
the range of only three to six months. Applied to ten-year executive 
stock options, Black-Scholes is like planning a long drive through 
traffic by taking a one-time look in the rear view mirror.
    Let's compare an executive stock option to one of those short-term 
options traded on the Chicago Board Options Exchange. An executive 
stock option cannot be sold. It usually cannot be exercised for a 
significant period of time (typically it becomes exercisable in 
tranches over several years). If the option is exercised, the sale of 
the stock may be subject to SEC insider restrictions on sale or to 
employer-imposed blackout periods. If the executive quits, the option 
is probably forfeited. If the executive is fired, the option is 
generally forfeited unless it is vested. If the executive dies, the 
post-termination exercise period is generally limited to one year. Even 
if the executive continues on during the full option term, how does one 
forecast the consequences of wars, recessions and the growth or 
collapse of particular employers over that period? To report one 
``dollar'' of such highly speculative value as the equivalent of one 
dollar of salary paid today is debatable, to say the least.
    Notwithstanding the foregoing, many U.S. surveys report--side-by-
side--dollars of theoretical option value with dollars of salary paid 
as if they were equivalent. These surveys then compound their sin by 
adding the two together. Many billions of dollars of supposed option 
value evaporated in the 1990s. There are cases of executives reported 
to have received hundreds of millions of dollars of option compensation 
during the past ten years whose options are now underwater.
    In a study of CEO pay over an approximately ten-year period ending 
in 2001, the Bachelder Firm found 210 CEOs (out of a much larger group 
of CEOs of major public companies) who were employed as CEOs by the 
same company for the entire period of approximately ten years. The 
ratio of stock option gains to salary and annual bonuses for these 210 
executives over the approximately ten years was a little over 1 to 1! 
(By option gains I mean both realized and unrealized gains, the latter 
being represented by the spread in options held at the end of the 
period less the spread at the beginning of the period.) Over half of 
the gains of this group of 210 CEOs was attributable to just 11 
executives (some of whom are founders or co-founders at companies like 
Oracle, Dell and Sun Microsystems). To the vast majority of CEOs in the 
United States, the 1990s were a rewarding period (with rewarding 
results to shareholders) but not the bonanza of extravagance suggested 
by the media.

D. Some Suggestions
    1. Let's adopt a consistent yardstick for valuing stock options in 
reporting CEO pay. (I am speaking of surveys and reports on options, 
not accounting for options, which is a different issue.) I suggest 
using gains, both realized and unrealized, rather than the theoretical 
Black-Scholes value at the time of grant. In this connection, we should 
recognize that when a long-term award pays out or a stock option grant 
is exercised, it normally represents compensation attributable to a 
number of years of service, not compensation for just that one year.

    2. Let's stop focusing on the outliers who attract headlines and 
distort the overall picture of CEO pay and instead focus on the average 
CEO when discussing CEO pay.

    3. It would be very helpful if there was at least one common 
database of companies that we all could refer to--like the S&P 500. 
Standard and Poor's and Equilar, Inc., for example, provide such 
databases. Throughout each proxy season we go from surveys that in some 
cases cover 50 or fewer companies in a limited number of industries to 
surveys concerning much larger numbers of companies in many industries. 
When that is combined with differences in valuation methods and 
differences in the use of terminology, it becomes very difficult for 
the public to get an accurate picture of what really is happening to 
CEO pay.

    4. When CEOs and other executives exercise stock options, it would 
be reasonable to require that a specified percentage of the stock 
attributable to the spread at time of exercise, net of shares needed to 
pay taxes incurred as a result of the exercise, be held for a minimum 
period of time.

    The Chairman. Thank you, Mr. Bachelder.
    Mr. Harrigan, welcome.

        STATEMENT OF SEAN HARRIGAN, PRESIDENT, BOARD OF 
         ADMINISTRATION, CALIFORNIA PUBLIC EMPLOYEES' 
                       RETIREMENT SYSTEM

    Mr. Harrigan. Good morning. Mr. Chairman and Members of the 
Committee: It is my pleasure to be here and provide the 
perspective of an institutional investor in regards to 
executive compensation. I also have some suggestions where 
Congress could take action to help support reform on executive 
compensation.
    I am Sean Harrigan. I am the President of the Board of 
Administration of the California Public Employees' Retirement 
System. CalPERS is the largest public pension fund in the 
United States, with approximately $125 billion in assets. We 
have long been a leading voice in corporate governance and an 
advocate for better alignment of interests between 
shareholders, the owners of companies, and management.
    Executive compensation is a critical issue to investors. 
Compensation is truly a powerful tool that will drive behavior. 
Unfortunately, it can drive the wrong kind of behavior, if 
proper checks and balances are not in place or if the 
compensation schemes are just poorly constructed.
    CalPERS and I believe most investors are not anti-
compensation. In fact, we believe in paying competitive 
salaries for managerial talent and we believe it is an 
important tool to motivate that management. But we feel 
strongly that pay should be linked to long-term sustainable 
performance in a very, very significant manner.
    Something has gone wrong with executive compensation in the 
United States. It is absolutely unconscionable to see that CEO 
pay has swollen to 400 times that of the average production 
worker. If I had to identify one issue that is at the heart of 
the problem with compensation in the United States, I would 
point to accountability, more appropriately perhaps lack of 
accountability. This is an area where we can make reform with 
the support of Congress.
    As public market investors, we rely upon boards of 
directors to represent us, the owners. In the case of 
compensation, the compensation committee is charged with 
representing the shareholders. It is clear to me that a major 
contributing factor to this problem with executive compensation 
is that compensation committees are not accountable to 
shareholders. They obviously do not feel that approving abusive 
compensation packages will cost them their jobs. Rather, it 
appears that not approving what the CEO wants will in fact cost 
them their jobs. This represents the central conflict of 
interests inherent in the problem of executive compensation 
today.
    Unless this fundamental issue is solved, we will continue 
to have widespread abuse in compensation practices. However, 
while the absolute levels of pay are a concern, perhaps the 
most troubling element of executive compensation is the ``heads 
you win--I win, tails you lose'' attitude of corporate 
executives. CalPERS is deeply concerned over what appears to be 
an attitude of entitlement in the executive suite of corporate 
America. Perhaps some of the more offensive entitlements are 
the so-called forms of stealth compensation: lavish severance 
packages complete with perks for life that are absolutely fit 
for a king. The message is that we do not have to respect you 
as owners and we do not feel accountable to you as owners.
    We do, however, feel that there are concrete steps that can 
be taken to help rein in the abuse in executive compensation. 
Shareholders must take a more active role in overseeing 
directors of companies in which we invest, with the goal of 
increasing the absolute level of accountability of the 
directors to the shareholders.
    Executive compensation packages. CalPERS amended its U.S. 
corporate governance core principles and guidelines recently to 
call on companies to formulate executive compensation 
policies--and I repeat, executive compensation policies--and 
seek shareholder approval for those policies. Currently 
compensation particulars issue a statement in the proxy to 
briefly describe the company's compensation philosophy. The 
shareholder's role in this process is relegated to a distant 
back seat.
    We believe it is a completely appropriate role for owners 
of corporations to approve broad policies in relation to 
executive compensation. Perhaps most importantly, it would 
force compensation committees to face shareholders with a plan 
and how they will use it, use it in all forms of compensation 
in terms of managing the corporation. This will help to shift 
the accountability back to where it belongs, to the owners.
    Action item 1: Congress should support these 
recommendations and call upon the SEC and the exchanges to 
consider requirements that shareholders approve executive 
compensation policies. We believe that executive compensation 
policies should provide the following at a minimum: the 
company's desire to a mix of base, bonus, and long-term 
incentive compensation; the company's intended forms of 
incentives and bonus compensation, including what types of 
measures will be used to drive incentive compensation. Again, 
we believe companies should construct incentive plans with a 
significant portion of performance-based components. The 
parameters by which the company will use severance packages, if 
at all, should also be included.
    Quantitative model, web site application as a research 
tool. CalPERS is also dedicating a portion of its web site to 
executive compensation issues. In the near future we will post 
a catalogue of extensive research available in the executive 
compensation arena.
    Greater performance-based metrics is another major effort. 
We are pushing for greater use of performance-based metrics in 
the executive compensation plans. CalPERS recently co-sponsored 
a shareholders' proposal at General Electric calling for the 
company to make a significant portion of their option grants to 
top executives performance-based. The company adamantly opposed 
that resolution. One can only suspect that it was really 
because they do not want to be held to the true measure of 
outperformance to obtain the highest level of incentive 
compensation.
    The Chairman. Did the measure fail?
    Mr. Harrigan. Yes, it did.
    Shareholder approval of executive compensation. CalPERS is 
also lobbying hard to help ensure that shareholders have the 
right to approve any executive-based compensation plan. While 
shareholders have fought the New York Stock Exchange and NASDAQ 
for years over this issue, it has finally come to pass that a 
proposed change to the listing standards includes greater 
shareholder approval of equity-based compensation plans.
    But the fight is not over. Despite the fact that the 
proposed changes to the listing standard were developed last 
summer, the SEC has yet to implement this change. We believe 
this can be the shortest rule the SEC will ever be able to 
issue and it can be stated in a single sentence: Any new 
equity-based compensation plan or material change to the 
existing plan must be shareholder approved.
    Action item 2: Congress could join shareholders in 
supporting shareholder approval of all equity-based 
compensation plans without exception.
    Finally, I would like to mention one remaining reform we 
are advocating and that is shareholder access to the proxy. 
This would provide that shareholders who meet minimum ownership 
thresholds could nominate directors to corporate boards through 
the management's proxy. While this may not appear to be 
particularly relevant to executive compensation at first 
glance, it has everything to do with accountability.
    Action item 3: Congress could join shareholders in seeking 
fair access to the proxy.
    Thank you and I would be glad to answer any of your 
questions.
    [The prepared statement of Mr. Harrigan follows:]

       Prepared Statement of Sean Harrigan, President, Board of 
     Administration, California Public Employees' Retirement System

    Mr. Chairman, Senator Hollings and Members of the Committee, it is 
my pleasure to be here today and to provide the perspective of an 
institutional investor in regards to executive compensation. I also 
have some suggestions where Congress could take action to help support 
reform in executive compensation.
    I am Sean Harrigan, President of the California Public Employees' 
Retirement System (CalPERS) Board of Administration. CalPERS is the 
largest public pension system in the U.S., with approximately $125 
billion in assets. We have long been a leading voice in Corporate 
Governance, and an advocate for better alignment of interests between 
shareholders and management.
    Executive compensation is a critical issue to investors. 
Compensation is a truly powerful tool that will drive behavior. 
Unfortunately, it can drive the wrong behavior if the proper checks and 
balances are not in place, or if the compensation schemes are just 
poorly constructed. CalPERS and I believe most investors are not anti-
compensation. In fact, we believe paying competitive salaries for 
managerial talent is an important motivational tool. But, we feel 
strongly that pay should be linked to long-term sustainable performance 
in a very significant manner.
    Something has gone wrong with executive compensation in the United 
States. It is unconscionable to see that CEO pay has swollen to 400 
times that of the average production worker. It is shocking to see 
example after example of top executives insulating themselves from any 
risk in their own compensation, and ensuring their own financial 
security at the same time employees are being asked to shoulder the 
burden of cuts, and shareholders are losing value.
    At American Airlines shareholders and employees were shocked to 
find out that the company made a $41 million dollar payment to a fund 
designed to protect the pensions of executives if the company filed 
bankruptcy. This fact was not disclosed during negotiations to secure 
$1.8 billion in wage concessions despite the fact that the payment was 
made months before.
    If I had to identify one issue that is at the heart of the problem 
with compensation in the United States, I would point to 
accountability. More appropriately perhaps to a lack of accountability. 
This is an area where we can make reform with the support of Congress.
    As public markets investors we rely upon boards of directors to 
represent us. In the case of compensation, the Compensation Committee 
is charged with representing shareholders. It is clear to me that a 
major contributing factor to the problem with executive compensation is 
that Compensation Committees are not accountable to shareholders. They 
obviously do not feel that approving abusive compensation packages will 
cost them their job. Rather, it appears that not approving what the CEO 
wants is what they feel will cost them their job. This represents the 
central conflict of interest inherent in the problem of executive 
compensation today. Until this fundamental issue is solved, we will 
continue to have widespread abuse in compensation practices.
    In the last five years alone, CEO compensation has doubled 
according to compensation consultants Pearl Meyer & Partners. In 1996, 
the average CEO at the largest 200 companies made about $5.8 million. 
By 2001, that figure jumped to $11.7 million.

  The following table compares the trends in specific components of CEO
        pay to the performance of the S&P 500 for 2001 and 2002.
------------------------------------------------------------------------
                                   2001                    2002
------------------------------------------------------------------------
Median base salary        Up 10.1                 Up 4.2
Median cash bonus         Down 17.6               Up 8.8
Median stock option       Up 43.6                 Down 18.6
 grant
Average restricted stock  Down 21                 Up 1.3
Median overall            Up 26.7                 Down 10.9
 compensation
Total return S&P 500      Down 11.88              Down 22.09 percent
------------------------------------------------------------------------
Source: compensation data--calculated for CalPERS by Equilar (includes
  only CEOs that were in the position for the entire three year period);
  S&P 500 returns--Bloomberg

    We think this shows a disconnect between compensation and 
performance on a broad scale. Part of our concern is that it appears 
companies shifted compensation from cash to options in 2001, then from 
options to cash in 2002--most likely due to the bear market. It is also 
important to note that the value of the option grants declined at least 
in part due to lower overall stock prices. It appears that a similar 
number of options are still being granted (median number of options 
declined only 9 percent in 2002). This was the only factor driving the 
median total compensation down in 2002.
    However, while the absolute levels of pay are a concern, perhaps 
the most troubling element of executive compensation is the heads I 
win, tails you lose attitude of corporate executives. CalPERS is deeply 
concerned over what appears to be an attitude of entitlement in the 
executive suite of corporate America. This attitude manifests itself in 
many forms.
    Perhaps some of the more offensive entitlements are the so called 
forms of ``stealth compensation.'' Lavish severance packages complete 
with perks for life that are fit for a king, guaranteed pension 
benefits far outstripping the value of benefits provided to employees, 
enormous loans to executives that are eventually forgiven, and 
provisions providing that the company shall pay all the taxes due 
(including gross-up provisions) should the executive incur a tax 
liability all send a clear message to shareowners. The message is that 
we do not respect you as owners, and we do not feel accountable to you 
as owners.
    In other examples demonstrating a lack of respect for shareholder's 
capital:

        Delta Airlines, Leo Mullin will be credited with 22 years of 
        service toward his pension upon termination, plus two 
        additional years in a Supplemental Retirement Benefit. The 
        company also put $25.5 million in a protected pension trust for 
        him according to press accounts.

        Home Depot has an employment contract that includes a $10 
        million loan with predetermined criteria for forgiveness in 
        addition to base salary, 2,500,000 stock options (plus annual 
        increments of no less than 450,000 more options), a target 
        bonus of between $3,000,000 and $4,000,000, deferred stock 
        units (750,000 in 2002), pension benefits and change in control 
        provisions that include (if the executive leaves for good 
        reason or for any reason within 12 months) $20,000,000, 
        immediate vesting of options, and immediate forgiveness of any 
        outstanding loans and payment of the gross-up for taxes.

    We do however feel that there are concrete steps that can be taken 
to help reign in abusive executive compensation. Shareholders must take 
a more active role overseeing directors at the companies in which we 
invest with the goal of increasing the absolute level of accountability 
of directors to shareholders must be increased. There are also several 
improvements to the structure of compensation programs that we believe 
can have a dramatic effect on rationalizing executive pay. Let me 
briefly go over the steps CalPERS is taking in the area of executive 
compensation and mention some of the specific proposals we have made to 
improve the alignment of interests.

Executive Compensation Policies
    CalPERS amended its U.S. Corporate Governance Core Principles and 
Guidelines recently to call on companies to formulate executive 
compensation policies and seek shareholder approval for those policies. 
Currently, Compensation Committees issue a statement in the proxy to 
briefly describe the company's compensation philosophy. Shareholders 
role in this process is relegated to a distant back seat. In 
discussions with companies about this issue, they often state 
emphatically that only the board has the right and the expertise to 
manage the affairs of the company and particularly the issue of 
compensation. Companies state that the Compensation Committee must have 
the flexibility to attract and retain executives and that shareholders 
should essentially trust them to do the right thing. Yet the behavior 
of corporate America in regards to executive compensation indicates 
otherwise.
    We believe it is a completely appropriate role for owners of a 
corporation to approve broad policies in relation to executive 
compensation. Perhaps most importantly, it would force Compensation 
Committees to face shareholders with a plan on how they will use 
compensation of all forms in managing the corporation. This will help 
to shift the accountability back to where it belongs, to the owners.
Action item 1: Congress could support these recommendations and call 
        upon the SEC and the exchanges to consider requirements that 
        shareholder approve executive compensation policies.
    We believe that executive compensation policies should provide the 
following, at a minimum:

        The company's desired mix of base, bonus and long-term 
        incentive compensation;

        The company's intended forms of incentive and bonus 
        compensation including what types of measures will be used to 
        drive incentive compensation. Again, we believe companies 
        should construct incentive plans with a significant portion of 
        performance based components;

        The parameters by which the company will use severance 
        packages, if at all.

Quantitative Model--Website Application as a Research Reference Tool
    CalPERS is also dedicating a portion of its website to executive 
compensation issues. In the near future we will post a catalog of 
extensive research available in the executive compensation arena. We 
are also developing a quantitative model that we will apply to our U.S. 
indexed holdings to help identify on a more systematic basis where 
compensation abuses are occurring. The model will be used to identify 
companies where performance and compensation diverge by analyzing peer 
relative and market relative compensation measures along with 
performance data. It is our intent to use our website to highlight 
cases of egregious compensation much in the way we have used public 
means in our Focus List of under-performing companies.

Greater Performance Based Metrics
    In another major effort, we are pushing for greater use of 
performance based metrics in equity compensation plans. Standard at-
the-money fixed price options--those with the strike price set at the 
current market value of the stock on the day of the grant--have been 
used extensively in the United States, and have become the largest 
single component of CEO pay. While fixed price options do have some 
merit as an alignment tool, they are inferior in many ways to 
performance based plans. Yet companies have been reluctant to say the 
least to adopt performance based equity plans. CalPERS recently co-
sponsored a shareholder proposal at General Electric calling for the 
company to make a significant portion of their option grants to top 
executives performance based. The company adamantly opposed the 
resolution, they said because not many companies are using these types 
of equity grants. One can only suspect that it was really because they 
do not want to be held to true measures of outperformance to obtain the 
highest levels of incentive compensation. It is easy to see why 
shareholders and management differ on these issues.

Shareholder Approval of Equity Based Compensation
    CalPERS is also lobbying hard to help ensure that shareholders have 
the right to approve any equity based compensation plan. Under current 
exchange rules, companies are not required in certain circumstances to 
obtain shareholder approval to adopt equity-based compensation plans. 
In other words, companies are allowed to unilaterally dilute the equity 
owners of the corporation. It is ridiculous to think that an owner 
should not have the right to decide if he or she is willing to dilute 
their equity, no matter what the purpose. It is even more ironic when 
you consider the fact that boards and management have a significant 
self interest in adopting equity based compensation plans.
    While shareholders have fought the NYSE and NASDAQ for years over 
this issue, it has finally come to pass that the proposed changes to 
the listing standards include greater shareholder approval of equity 
based compensation plans. But the fight is not over. Despite the fact 
that the proposed changes to the listing standards were developed last 
summer, the SEC has yet to implement this change. Most troubling of 
all, the exchanges are seeking a number of exceptions to shareholder 
approval that would continue to let companies unilaterally dilute 
equity owners. We are opposed to these exceptions. We believe this can 
be the shortest rule the SEC will ever be able to issue, and it can be 
stated in a single sentence: Any new equity based compensation plan or 
material change to an existing plan must be shareholder approved.

Action item 2: Congress could join shareholders in supporting 
        shareholder approval of all equity-based compensation plans 
        without exception.
Shareholder Access to the Proxy
    And finally I would like to mention one remaining reform we are 
advocating, shareholder access to the proxy. This would provide that 
shareholders who meet minimum ownership thresholds could nominate 
directors to corporate boards through management's proxy. While this 
may not appear to be particularly relevant to executive compensation at 
first glance, it has everything to do with accountability. With 
responsible yet meaningful reforms to the SEC rules governing access to 
the proxy, shareholders will be given greater ability to hold directors 
accountable for poor performance. As I mentioned earlier, we believe 
this has a material impact on their behavior and on the quality of 
their representation of shareholder's interests. This has an obvious 
impact on our ability to right the ship when it comes to compensation.

Action item 3: Congress could join shareholders in seeking fair access 
        to the proxy.
    Thank you, I would be glad to answer any questions that you may 
have.

    The Chairman. Thank you, Mr. Harrigan. Would one of the 
reasons why your measure was not approved, was it because of 
proxy voting?
    Mr. Harrigan. Yes, I believe it was.
    The Chairman. One question for the entire panel. Is the 
issue of executive compensation, excessive executive 
compensation, having a negative effect on investor confidence? 
Beginning with you, Mr. Clapman?
    Mr. Clapman. Yes. I started off by saying that executive 
compensation in a sense is a window into broader corporate 
governance issues. I testified before a House Committee last 
year at a time right during the Enron scandals, pre-WorldCom 
scandal, and really strongly advocating reform in the corporate 
governance system of the United States, much of which was 
eventually promulgated in stock exchange rules, which I share 
with my colleagues on this panel the SEC should approve as 
quickly as possible.
    But I put it in the context of investor confidence because 
when investors see, as they have seen, articles from 
responsible business organizations saying you bought, they 
sold, and the whole issue of executive compensation essentially 
communicating to the investing public that in effect you were 
foolish to rely on the markets, you were foolish to think that 
the accounting integrity of the numbers that you relied on was 
something that a prudent person should--so I think broadly 
speaking executive compensation is one component, albeit a very 
major component, in restoring investor confidence in the whole 
corporate governance mechanism in this country, and until we do 
that we are as a large investor--I said earlier 3 million 
people rely on us for their pension benefits and for their 
savings, and we have a fiduciary responsibility to those 
people. That is why we have the proactive corporate governance 
program that we have. And until that confidence is restored, I 
think all of us have a problem, the Congress and all the people 
on this panel.
    The Chairman. Mr. Silvers?
    Mr. Silvers. Mr. Chairman, I think I would certainly agree 
with what Peter just said. I would add to that that executive 
compensation and the pressures that CEOs place on their 
corporate governance structures have proven to be an enduring 
feature of our corporate economy. I think last year and two 
years ago we saw the events at Enron, the events at WorldCom. 
In the last few months we have seen the events I alluded to in 
my testimony at American Airlines, at Sprint, where the whole--
in many of these companies, the whole corporate governance 
structure was warped essentially by CEO pressures to get more 
compensation, frankly. At Sprint----
    The Chairman. And they want Congress to leave that issue 
alone. Yet in the case of the airlines, they will come to 
Congress for billions of dollars in bailout. So there seems to 
be a little bit of double standard here.
    Mr. Silvers. No question about it, Mr. Chairman.
    I would just add that what you are seeing here, for example 
at Sprint, is that the outside audit function was compromised 
at that company by their involvement in creating tax-favored 
executive comp packages. That has consequences for investors' 
perception of the auditor as an independent watchdog, which is 
absolutely at the heart of any investor confidence.
    Finally, as I mentioned in my testimony, to the extent that 
CEO pay and the political dynamics surrounding CEO pay appear 
to be compromising our accounting system, the system of GAAP, 
we run the risk as a financial marketplace of being viewed as 
having a culture of non-transparency and insiderism that is not 
correctable. That perception came to dominate the market's 
views of a number of countries in the late 1990s, much to their 
detriment, countries in East Asia that were viewed as darlings 
of investors, who then the global marketplace viewed as simply 
unable to correct themselves. With the continuation of 
executive comp-driven scandals that impugn auditors and suggest 
that our executives are not accountable and the possibility 
that our accounting system will continue to be influenced by 
the ability of executives and their representatives to 
essentially warp the judgments of accounting professionals, we 
run the risk of being perceived just as those Asian tigers 
were.
    The Chairman. Mr. Hall?
    Mr. Hall. I do not have anything much to add, other than to 
agree with what has been said and add that the silver lining is 
that, even though investor confidence has been--has taken a big 
hit, the good news is that this has also led to an impetus for 
change, particularly in the area of accounting. So I think 
actually investors have reason to be hopeful as long as these 
changes are carried through.
    It is very hard to do anything in a period like 1999 or the 
year 2000. It is just very hard to make changes in a period of 
asset bubbles.
    The Chairman. Mr. Bachelder.
    Mr. Bachelder. CEO pay has not been immune from criticism 
for very long at any time over the----
    The Chairman. My question was: Is the present issue of CEO 
compensation having a negative effect on investor confidence 
today?
    Mr. Bachelder. I doubt that it does, and I doubt that CEO 
criticism over the past 50 years has had much effect on the ups 
and downs of the stock market.
    The Chairman. Thank you.
    Mr. Harrigan. I would agree with my three colleagues to the 
far right, my far right. I think it has had and continues to 
have an impact on investor confidence. I mean, every day you 
read about abuses in the newspaper--American Airlines, 
WorldCom, Global Crossings, etcetera, etcetera. But it is not 
just the abuses we read about in the newspaper. It is the level 
that executive compensation has gotten to, the fact that it has 
increased from 40 times the average pay of a production worker 
in 1980 to over 400 times. Some statistics indicate it is up to 
575 times that of a production worker today, and it continues 
to rise.
    Mr. Bachelder in his comments indicated that executive 
compensation actually dropped in 2002. While that is true on 
the average, at the S&P companies it dropped by 23 percent, 
when you figure out what the median was, because there is a few 
at the very top that dropped, actually the median executive pay 
in the year 2002 rose by 14 percent while the S&P was down 22.1 
percent.
    So this behavior just continues and continues and 
continues. Until compensation committees and boards actually 
become accountable to the owners, to the shareholders of 
companies, I do not see any end in sight and I do not see any 
alleviation of the real breach that has occurred between boards 
and investors.
    The Chairman. Mr. Bachelder, I know you want to respond. 
Let me just say while you do, Mr. William McDonough, the 
President of the New York Federal Reserve Board and newly named 
head of the SEC's Accounting Industry Oversight Board, called 
current CEO pay levels, quote, ``terribly bad social policy and 
perhaps even bad morals.'' That is Mr. William McDonough, who 
is one of the most respected men I know in America, who has 
just received a very significant appointment.
    But I also want you to respond to Mr. Buffett's statement, 
quote: ``One of the arguments was that options are too hard to 
value.'' This is Warren Buffett: ``That is nonsense. I have 
bought and sold options for 40 years.'' So Mr. Buffett is able 
to figure out the value of options. He says: ``I have bought 
and sold options for 40 years and know their pricing to be 
highly sophisticated. It is far more problematic to calculate 
the useful life of machinery, a difficulty that makes the 
annual depreciation charge merely a guess. No one, however, 
argues that this imprecision does away with a company's need to 
record depreciation expense. Believe me, CEOs know what their 
option grants are worth. That is why they fight for them.''
    I would be glad to hear your response to Warren Buffett, 
Alan Greenspan, Paul Volcker, and a broad variety of most 
highly respected men in America, but especially Mr. Buffett, 
who deals with this, who trades, he has bought and sold options 
for 40 years. Go ahead.
    Mr. Bachelder. Mr. Chairman, could I just add one note to 
my prior statement. I think we need to distinguish those 
relatively isolated cases, important and terrible as they are, 
of corruption in major U.S. corporations from the question of 
CEO pay. CEO pay exists and it exists in terms of statistics as 
well as individual cases, and on the whole I do not believe CEO 
pay has grown outrageously, and I think stock options at the 
present time based on Black-Scholes valuation are a very 
misleading factor as to the level of CEO pay.
    With regard to Mr. Buffett and the question as to whether 
or not you can value a stock option, Mr. Buffett was referring 
to having been in the business of trading options. I do not 
disagree that if you are in the business of trading options 
that you can put a value on an option that is freely tradable 
three months, six months out. But try to value an option that 
is out for ten years. It is virtually impossible to forecast 
all the various elements that are going to happen in a decade 
and will impact on that option to put any kind of realistic 
value on it.
    The Chairman. I guess Mr. Buffett's response is it is just 
as hard or harder to calculate the useful life of machinery.
    Go ahead, Mr. Hall, and then I will go to Senator Breaux.
    Mr. Hall. I was just going to say that a standard 
accounting principle is that even when things are hard to 
measure we do not call them zero. We just never do that. There 
are many other things that are hard to value. Another one, for 
example, is stock. Stock is not freely traded, so you cannot 
just use the market value. It may be forfeited because it is 
vested, and it could also fall in value. In fact, it could fall 
all the way to zero if a company goes bankrupt, in which case 
the accounting statements would have been incorrect along the 
way.
    We never seem to use the principle of saying something is 
difficult to measure, therefore we call it zero, and I do not 
see any reason why we should use it here.
    I agree with the points that Senator Allen made earlier 
about options being a fantastic device in many ways for 
corporate America, and the only question is that we should 
account for them correctly, not that we should quit using them.
    The Chairman. Senator Breaux.
    Senator Breaux. Thank you, Mr. Chairman, and thank all the 
panel members for a very informative set of testimony from all 
of you.
    I agree with Mr. Harrigan's last comment that until 
compensation committees and shareholders get involved in what 
is happening in their own companies we are never going to solve 
this problem. I mean, that is their first line of 
responsibility, is making sure the company is being run 
properly and that people are being paid properly. That is their 
job, that is their responsibility. That is why they are what 
they are, and they in many cases are not living up to that 
responsibility.
    Mr. Clapman, you talked about on page 6 of your testimony, 
after you made a number of very helpful recommendations, you 
say: ``Congress should be careful not to politicize this issue 
and should permit FASB to take on this issue on its intrinsic 
merits.'' I guess probably you are speaking of the question of 
expensing options. Are you saying that Congress should stay out 
of it and FASB should do it, or should we be involved from your 
standpoint?
    Mr. Clapman. Senator Breaux, you have it exactly correct. 
As you know, a number of years ago the issue arose, so this is 
not a new issue, the issue of expensing stock options, and at 
that point it became politicized and FASB backed off from 
dealing properly in our eyes with that issue.
    I think people have seen--there is a difference now, 
obviously, between 2003 and 1993 in terms of our experience, 
and I think our experience now tells us that we really are 
trying to analyze this issue in terms of future implementation 
of compensation programs and that is the true relevance of this 
issue. We can all hash out the past and try to explain it, but 
finally our task, all of us here, yours and ours, is to find 
effective means to deal with the issue of executive 
compensation and corporate governance in the future.
    I think the most important point I tried to make is that a 
true alignment between shareholders and management is something 
that relies on performance measures, not just the vagaries of 
short-term stock performance, but long-term alignment, holding 
stock and having performance hurdles. And until FASB or the 
accounting regulators get the issue of expensing right, you 
will crowd out all of the better forms of alignment 
methodologies and rely only on the short-term stock effect. So 
that is why that issue is so critical in terms of what it will 
mean for the future.
    Senator Breaux. Your recommendation, though, is that 
Congress should butt out of it and let them do it?
    Mr. Clapman. Yes.
    Senator Breaux. Mr. Bachelder, you tried to make the point 
in the first page of your testimony, in comparing CEO pay, 
compensation packages, as a percentage of revenues, and that 
you point out that--I guess you are making the argument that 
actually CEO pays and bonuses and salaries are less today than 
they were ten years ago as a percentage of revenues.
    Mr. Bachelder. Yes.
    Senator Breaux. Is that also true of employees as well as 
the CEOs?
    Mr. Bachelder. I think that it is true of employees as well 
as CEOs. I think the point is that the CEO pay relative to the 
growth of U.S. corporations, whether measured by revenues or 
measured by market capitalization, has not been out of line. 
These gentlemen and women who are the CEOs of these 
corporations are custodians and fiduciaries of enormous masses 
of capital and revenues, and the pay relative to those, to that 
capital and those revenues, has not changed significantly.
    Senator Breaux. What do you say when you see CEO 
compensation packages that have actually increased by huge 
amounts by companies that are losing revenues?
    Mr. Bachelder. It depends upon what you mean by the CEO pay 
package. If one is referring to stock options, say an executive 
is a CEO of a company today that is in 2002 losing, has lost 
money. That individual may have stock options dating back ten 
years and those options may be exercised in that year. That 
person may realize substantial gains for having held the 
options for ten years. That is not attributable to the 
performance of the company in 2002.
    Senator Breaux. Yes, but we are also seeing examples where 
CEOs have gotten enormous increases, not in options but in 
salaries and bonuses, for companies that are going in the 
downhill direction.
    Mr. Bachelder. Generally speaking, salaries have a 
consistent rate of increase and over the past 50 years, after 
taking into account inflation, it has been about just under 2 
percent. You are speaking to the bonuses then. Bonuses vary. It 
depends--I do not know of a case where a company has had a 
significant loss for the year in which an executive, a chief 
executive, has received a large bonus unless it was 
contractually bound prior to that year. And in some cases a new 
chief executive officer, such as one going into Tyco or in 
other instances, when they go into the company they may have a 
right for a year or two to have a bonus. That is a guaranteed 
bonus.
    Generally speaking, annual bonuses follow the performance 
of the company.
    Senator Breaux. I am sure Mr. Hall or Mr. Silvers could 
give us some examples of those situations. But I mean, we have 
clearly seen executive compensation packages that seem to me to 
have very little to do with performance. I mean, I think when a 
company does well the employees should do well; when the 
company does bad, the employees, including the CEOs, have to 
participate and not get huge increases.
    Mr. Bachelder. If I might just respond, when you use the 
term ``packages'' that is a very important term of reference, 
because so many spokesmen, so many media commentators and 
others refer to a CEO package which is on different tracks, 
whether it is a salary, annual bonus, long-term incentives, 
stock options, and they put the package together and say this 
person received $50 million this year and the profits went 
down. Well, most of that may well have come from exercising an 
option that that individual had held for years.
    Senator Breaux. My final question. Thank you. Mr. Silvers, 
you talked about the AFL-CIO filing a rulemaking petition with 
the SEC asking commissioners to democratize the director 
election process, and Mr. Harrigan I think talked about the 
fact that directors have got to wake up, particularly people 
who run compensation packages, and it is too much of a 
collusion between the CEOs and the directors and the 
compensation committee members.
    How do we do that? I mean, thou shall pass a law that says 
thou shall have democratically elected boards? What is the 
process here? How do we accomplish this?
    Mr. Silvers. Fortunately, Senator, I do not think it is 
necessary for you to pass a law. The question here is really 
the control of the proxy form itself by management. In a 
company, in a public company of any size, it is prohibitively 
expensive for shareholders who hold small fractions of that 
company to themselves nominate and run a director election 
contest and send out their own proxy. In a large cap company, 
any of the familiar names to the average person, the costs of 
doing so run into the millions of dollars.
    Management is spending corporate treasury money to run its 
slate of candidates. The SEC has the rulemaking authority and 
has used it to require that that proxy that management creates 
include in certain circumstances shareholder proposals. Those 
shareholder proposals, however, are generally not binding.
    It is our opinion that the SEC by rulemaking could require 
in certain circumstances management to include shareholder-
nominated director candidates on that proxy and offer 
shareholders the choice of voting for management's slate or a 
shareholder-nominated slate. We believe it is very important--
we believe, A, that that is very important to be done, that if 
we are going to make boards real there has got to be some 
meaningful way of shareholders affecting what is on the boards.
    However, we do not think that this ought to be done in such 
a way as to essentially subsidize corporate takeovers. If you 
want, someone wants to do a corporate takeover, they should 
have to spend money to do it. The trick is to create a 
mechanism that gives shareholders some voice, and a particular 
kind of shareholder--large, long-term institutional holders 
whose interests are closely aligned with that of the company 
going forward, as corporate law defines the company's 
interests, the long-term interests of the company and its 
shareholders.
    We believe that can be done and our rulemaking petition 
asks for that to be done by requiring companies to place on 
their proxy form shareholder-nominated directors for a minority 
of the seats up for election, what is called a short slate, but 
only to do it if asked by a significant block of shareholders. 
Now, we suggest in our rulemaking petition 3 percent of the 
company's shareholders have to ask. Others have suggested 
higher numbers, 5 percent, 10 percent. Because of the Williams 
Act that governs takeovers and shareholder action, those higher 
thresholds have some complexity, some complex issues associated 
with them.
    But the basic notion is that you have to require a block of 
shareholders that is a real block, not a gadfly, not somebody 
who is doing this for a hobby, but a real block of large 
investors. You require that they have held the stock for some 
time, so this does not become a vehicle for people coming in 
and out of the company and trying to game the system. Also, you 
give them the opportunity to run on an economical basis short 
slate that would give voice to long-term investors on the 
board.
    We believe that if that rulemaking petition were adopted by 
the SEC--once again, it does not require Congressional action; 
the commission can do it by rulemaking--that that would change 
the board's dynamics around executive pay, that it would make 
comp committees much more attentive to the desires of 
shareholders like TIAA-CREF, like CalPERS, like our large 
pension funds, and less deferential to the desires of the CEO.
    Only by doing that can you create a real market. And I 
respectfully disagree with Mr. Bachelder; I do not think in 
general we have a real market here.
    The Chairman. Senator Allen.
    Senator Allen. Thank you, Mr. Chairman.
    I think we all agree, at least I believe we do and I 
certainly believe, that we must continue to enforce the laws, 
we need to improve corporate accountability, and we need to 
provide investors with an accurate depiction of the financial 
condition of corporations, and that is whether it is an 
individual investor or large ones like TIAA-CREF or CalPERS or 
any others.
    I have enjoyed listening to the testimony. I will make a 
few observations and ask a few of you some questions, and some 
are very logical on aspects--the issue of stock options, I 
would say to Mr. Hall, is not so much--it is not an issue of 
expensing, because I do think it is very difficult to determine 
what the value is of a stock that is going to be or the 
exercise of an option ten years down the road. They are not 
traded like the Board of Options. There is only one person, and 
that is the person it is granted to, that can exercise it. It 
is not freely traded. It is really a matter of dilution and how 
you accurately depict that dilution when and if they are 
actually exercised.
    Mr. Harrigan talks about a certainly reasonable 
consideration and that is performance-based compensation. I 
like that concept. That is the way it ought to be. It would 
seem to me, though, that long-term stock options would be a 
method by which that performance long-term--not these three-
month, six-month, which probably ought to be expensed because 
those can be. Those do have a value that you can determine, but 
not something five or ten years down the road.
    Now, in looking at how you--you brought up American 
Airlines and that, Mr. Silvers, in your comment and others. 
Well, that CEOs misdeeds, poor judgment, and egregious 
behavior, there was reaction. The board of directors removed 
him, and so there were consequences, and I applaud the American 
Airlines board for acting.
    The idea that you cannot figure out the cost of options 
because they are inaccurate, but, gosh, there are other 
inaccuracies in determining depreciation of machinery or 
equipment. Well, with machinery and equipment you know what you 
paid for it. Maybe somebody paid $30,000 for some machinery or 
equipment. The IRS says you could depreciate that equipment, 
say it is some types of equipment, three to five years. Others 
are ten to fifteen years. But there is an actual value to it.
    Now, Mr. Silvers, you mentioned in your testimony, written 
testimony, that there is a crisis in executive compensation 
that is a microcosm of the crisis in corporate governance that 
brought us Enron, WorldCom, and HealthSouth and so many others. 
Let me add a couple other names to your list of corporate 
wrongdoers: Union Labor Life Insurance Company, where union 
leaders created a scheme to give themselves $6.5 million while 
costing millions of workers their pension funds they were 
entrusted to and invested in in this Union Labor Life Insurance 
Company. I will put this into the record, an article from the 
Wall Street Journal on that.
    [The information referred to follows:]

                  Wall Street Journal, August 20, 2002

                  REVIEW & OUTLOOK--Big Labor's Enron

    AFL-CIO chief John Sweeney is having a high old time with business 
scandals, condemning ``corporate greed'' and capitalist ``thieves.'' 
Yet his acute moral antennae have somehow missed the shenanigans at 
Union Labor Life Insurance Co., or Ullico, a labor-owned insurance 
company that looks like Big Labor's Enron.
    Last week the National Right to Work Legal Defense Foundation asked 
the National Labor Relations Board to investigate if Ullico's board 
members--all top union officials--profited at the expense of rank-and-
file union members in a dubious stock-selling scheme. A federal grand 
jury and the Labor Department are also probing those stock 
transactions.
    Ullico was founded in 1925 as a way to provide low-cost life and 
health insurance to union members. The insurer is privately held, and 
to ensure labor control it allows only unions, as well as officers and 
directors, to buy its stock. For years a share of Ullico was fixed at 
$25.
    In the go-go 1990s, however, Ullico decided to join the pursuit of 
stock-market riches. In 1997 the company invested $7.6 million in a 
modest little venture known as Global Crossing. By May of 1999, when 
Global Crossing's stock peaked, Ullico's stake was worth $2.1 billion--
almost 10 times what all of Ullico was worth when it first invested.
    As Ullico's investment grew, it decided to cut its stockholders in 
on the windfall. It abandoned its old fixed valuation of $25 a share 
and began adjusting its share price annually, as determined by a year-
end accountant's review. The board would ratify the new price, and then 
Ullico would repurchase shares to allow investors to realize gains. And 
so in May of 1999, the Ullico board ratified a share price of $53.94, 
and went ahead with a plan to buy back as much as $15 million worth of 
shares from investors.
    But here's where things get Enron-esque. In December of 1999 
Ullico's chairman, Robert Georgine, sent a confidential letter to the 
company's senior officers and directors offering to let them buy as 
many as 4,000 Ullico shares at the $53.94 price. But two weeks later, a 
year-end audit pointed to a higher price of $146, which the board 
ratified in May 2000. Those insiders were in effect ratifying nearly a 
tripling in value of their own Ullico investments.
    By then, however, the telecom bubble had begun to burst. By 
November 2000, Ullico's investment had fallen dramatically (Global 
Crossing's shares had dropped below $25 from a high of $64.25), but the 
Ullico directors authorized another stock buyback--and at the same $146 
price.
    That buyback was technically open to all shareholders. But it was 
crafted so that large shareholders--mainly the unions--faced 
restrictions on how much they could sell. Meanwhile, those with small 
holdings--officers and directors--were allowed to sell back all of 
their shares. And the board agreed to extend the sell deadline by five 
months. As a result of prices and buyback rules that they themselves 
had set, a handful of directors made a windfall estimated at $6.5 
million.
    These weren't just any old union members, either. Among those who 
sold back shares were Martin Maddaloni, president of the plumbers 
union; William Bernard, former head of the asbestos-workers; Jacob 
West, former ironworkers' chief; carpenters' president Douglas 
McCarron; and Morton Bahr, president of Communications Workers of 
America.
    So at the same time that the value of Ullico was falling like a 
rock, these insiders made out like, well, Andrew Fastow. These union 
bigshots insist they've done nothing wrong, but that's what Enron 
executives also say. ``These leaders have damaged millions of workers' 
pension funds which were entrusted to and invested in Ullico,'' says 
National Legal and Policy Center President Ken Boehm. Mr. Georgine and 
Ullico decline comment.
    Mr. Sweeney has said that he himself did not sell any shares, and 
he publicly called on Mr. Georgine to appoint an outside investigator. 
(Former Illinois Republican Governor James Thompson is leading the 
probe). But what Mr. Sweeney hasn't done is turn his moral indignation 
loose on his labor peers as he has so often against corporations.
    As long as we're talking about blind eyes, we might also mention 
the quiet in Congress. Perhaps it's a coincidence that Ullico is a big 
political donor, especially to Democrats, and that Ted Kennedy, who 
runs the Senate labor committee, was also an Ullico donee his last re-
election. More alarming is the fact that Iowa Democrat Tom Harkin is 
insisting on language in an appropriations bill that would block 
greater public disclosure by unions. In the wake of the Ullico fiasco, 
that's a scandal in its own right.
    We look forward to the result of the Labor and Thompson probes, 
especially given that 10 of the current Ullico board members also sit 
on the AFL-CIO's executive council. If it turns out there was corporate 
abuse, no doubt Mr. Sweeney will deal appropriately with the 
``thieves.''

    Senator Allen. I would also like to mention another 
corporate scandal, one where the American Federation of 
Teachers failed to maintain oversight of the Washington, DC 
Teachers Union--this is just a recent story--resulting in the 
theft of more than $5 million by union leaders. And I will ask 
that these be put as part of the record.
    [The information referred to follows:]

                        Labor Watch, March 2003

             Teachers Union Scandal in the Nation's Capital

   washington teachers union officials embezzle millions, sully city 
                                politics

                          By Patrick J. Reilly

    Summary: Last month we reported on the Ullico scandal, a major 
embarrassment to AFL-CIO president John Sweeney who had publicly 
ridiculed Enron executives for their ethical lapses. Once again we find 
that a vocal critic of Enron is embarrassed by scandal in her own 
ranks. Sandra Feldman and the American Federation of Teachers failed to 
maintain careful oversight of the Washington Teachers Union, resulting 
in the theft of more than $5 million by union leaders. Here we take a 
look at the unfolding story and the characters who play major roles.
    Sandra Feldman, president of the American Federation of Teachers 
(AFT), thinks the corporate scandal at Enron highlights what's most 
admirable in public education and what's most lacking in private 
schools.
    ``Unlike the private sector, public agencies and their employees 
received systematic monitoring and oversight,'' Feldman told AFT 
delegates to the union's annual convention last summer. ``And that's a 
good thing. Just look at Enron.''
    But when Feldman repeated her rant against Enron in her January 15 
``Where We Stand'' column, a paid advertisement that is placed in 
newspapers nationwide, her hypocrisy was obvious even to AFT members. 
By that time they knew of the major scandal uncovered at AFT's 
affiliate in Washington, DC and caused in part by AFT's failure to 
enforce its own oversight rules.
    The day after Feldman's Enron column appeared, AFT appointed an 
administrator to run the Washington Teachers Union (WTU)--the first 
forcible takeover of a local union since AFT's founding in 1917. It was 
an embarrassment the likes of which AFT has never seen, and the scandal 
just keeps unfolding daily.
Millions Misspent
    WTU officials might still be plundering the union were it not for a 
single mistake made by WTU president Barbara Bullock last April. 
Bullock told District of Columbia finance officials to withhold $160 in 
union dues from special paychecks sent to teachers as part of a newly 
contracted pay raise. But teachers actually owed only $16, resulting in 
an overcharge of more than $700,000.
    No one may ever know whether the overcharge was a mistake or 
intentional. But about the same time, Bullock paid about $700,000 to 
AFT to cover national dues payments that were years late.
    It was then that teachers began to complain about the overcharge, 
prompting AFT to take notice and initiate an internal audit of WTU's 
finances.
    AFT should have known there was a problem years prior to the audit. 
Indeed, AFT rules require affiliates to conduct internal audits every 
two years, but WTU had not done so since 1995. AFT repeatedly requested 
an audit but took no action against the union, which reportedly had not 
even employed an accountant since 1996.
    By last year, WTU was in financial trouble. The union had to settle 
a lawsuit filed by its landlord for failure to pay rent on its downtown 
DC headquarters. Many bills were late or unpaid, including companies 
providing employee health benefits. The dues overcharge only made 
matters worse: recently the union had to take out a $250,000 loan to 
reimburse teachers, saddling the union with repayment of the loan plus 
interest. (AFT later announced that it would pay off the loan.)
    The results of AFT's audit were stunning. Auditors found that at 
least $5 million in union funds had been misappropriated by WTU 
officials, including president Barbara Bullock, her special assistant 
Gwendolyn Hemphill and treasurer James Baxter. The three had boldly 
used union credit cards and cashed checks for thousands of dollars that 
were used for personal expenses.
    A week before Christmas, FBI officials raided the homes of the WTU 
leaders and their family members, seizing business items and an 
astonishing array of personal clothing, jewelry, and household items 
allegedly purchased using WTU credit cards and other funds.
    On December 27, Nathan Saunders, a history teacher at Anacostia 
Senior High School, filed suit in U.S. District Court against WTU and 
AFT claiming fraud and negligence due to the union's failure to conduct 
audits required by AFT. He asked the court to dissolve the WTU's 
executive board and establish an independent body to oversee the union 
and hold new board elections.
    Two other teachers--Alfred Hubbard and Roland Ashby-Rier--also 
filed suit asking the federal judge to ensure that teachers continue to 
have some role in overseeing the union. Last month, another four 
teachers filed suit seeking class-action status on behalf of all DC 
teachers.
    The scandal continues to grow as District and federal investigators 
uncover not only the theft of WTU funds but inappropriate meddling by 
union officials in District politics and city government. The 
allegations are causing major headaches for the District's mayor 
Anthony Williams just as he begins his second term.
    As the scandal unfolds, it's difficult to piece together the story 
of what may be one of the worst cases of union corruption in many 
years. But a review of the major players in the scandal offers a 
glimpse of how far-reaching the investigation has already become.
Barbara A. Bullock
    Barbara Bullock was WTU president for almost a decade, beginning in 
1994. For almost the same period of time, she allegedly stole more than 
$2.1 million from the union's members.
    An FBI search warrant filed in U.S. District Court alleges that 
Bullock charged WTU for personal goods and services worth more than $1 
million, including a $57,000 Tiffany sterling silver set and several 
hundred thousand dollars on expensive clothing and jewelry. But WTU's 
internal audit identifies more than $1.8 million in personal charges to 
the union's American Express account and more than $381,000 in union 
checks applied to personal expenses. The auditors' report also says 
Bullock issued more than $1.5 million in union checks with the 
intention of laundering money. Bullock reportedly admitted to auditors 
that ``most of her charges to the American Express charge account were 
for personal items.''
    Over the span of two weeks in August 2000, Bullock made four 
contributions totaling $9,000 to the Democratic National Committee. The 
final gift of $5,000 was assigned to non-federal campaigns, possibly in 
the District of Columbia. That same year she gave $2,000 to Hillary 
Rodham Clinton's U.S. Senate campaign. All of the payments, according 
to WTU's internal audit, were charged to the union's American Express 
account.
    Labor Watch has also identified a previously unreported 
contribution of $1,000 that Bullock made to the Gore 2000 presidential 
campaign in June 1999. Although the source of the funds is unknown, 
Bullock allegedly was stealing from the union at the time.
    Ironically, Bullock seized the presidency in 1993 because of the 
troubles of then-president Jimmie Jackson. Jackson won reelection that 
year over Bullock, but the AFT declared the count invalid because of 
``many irregularities'' in the voting procedures. Bullock won the 
second election.
    Bullock's emphasis on politics earned her tremendous clout in the 
District. In an internal memo to WTU members dated August 26, 2002, 
Bullock urged them to help Mayor Williams' write-in campaign, noting 
that ``Williams' support was critical in getting your 19 percent raise 
and the prepaid legal plan for which several council members were also 
in line with their support.'' The promise of payback at the polls was 
genuine: all of the WTU-endorsed candidates--including Williams, DC 
Delegate Eleanor Holmes Norton and six members of the DC Council--won 
their races last November.
    The benefits to the union were apparent to all. The prize Bullock 
sought throughout her term as WTU president was a huge increase in 
District teachers' pay to bring it in line with salaries in the 
Maryland and Virginia suburbs. Williams was not shy about publicly 
supporting Bullock's proposal, which she eventually won with a contract 
last year that increased teacher salaries by 19 percent over three 
years. At Bullock's urging Williams pushed for the plan, even though he 
had already forced the District school board to trim its budget by $30 
million, pulling $15 million away from much-needed repairs of the 
city's dilapidated school buildings.
    Even one of Williams' appointees to the school board lamented the 
salary increase as ``a terrible message to be sending to our 
students.''
    ``The price that we are paying for this contract is going to be at 
the expense of our students,'' said board member Laura Gardner to the 
Washington Post. ``And I think that we constantly, constantly send a 
message to our students when we do this that everyone except them is 
worthy of some consideration.''
    But Williams' involvement didn't end there. The school board 
intended to meet its cost-cutting goal partly by eliminating $1.1 
million in personal legal assistance to District teachers, a special 
benefit that was also taken off the bargaining table in contract 
negotiations--or so school officials thought. After WTU and public 
school negotiators shook hands on the contract, Williams' chief of 
staff Kelvin Robinson and deputy chief of staff Gregory McCarthy 
reportedly demanded that school officials write the benefit into the 
formal contract.
Gwendolyn M. Hemphill
    A major player behind Bullock's political success and her scheme to 
steal millions from the union was her special assistant, Gwendolyn 
Hemphill.
    It was in large part because of Hemphill's many years of experience 
as a DC political insider that WTU was able to hold sway over District 
officials. She first got involved in DC politics in 1963, when she 
joined activist Marion Barry--later DC mayor and a disgraced felon--in 
a civil rights demonstration. She later worked for the Federal 
Government and the American Federation of State, County and Municipal 
Employees (AFSCME) before chairing former mayor Walter Washington's 
campaign in 1974. Subsequently Hemphill was Mayor Barry's labor liaison 
for three of his four terms and retired from city service in 1996 to 
assist Bullock at WTU.
    When Anthony Williams became mayor in 1998, Hemphill quickly became 
a key advisor. Williams appointed her to his Finance Committee and 
Employee Appeals Board, and she became executive director of the DC 
Democratic State Committee. In 2001, Hemphill hosted a lavish party at 
her home to welcome Williams' new chief of staff Kelvin Robinson.
    Stories of Hemphill's influence in DC politics are numerous. Mayor 
Williams allegedly instructed Mark Jones, then his chief of staff, to 
hire Hemphill's husband, Lawrence Hemphill, as director of the DC 
Office of the Public Advocate and later director of the Office on 
Community Outreach. (Williams fired him in January because of the WTU 
scandal.) Jones also says the mayor told him to prevent the firing of 
Michael Bonds, a community service representative who worked with 
Lawrence Hemphill, noting that ``Barbara [Bullock] and Gwen [Hemphill] 
don't want him fired.'' Jones is currently suing Williams over his 
firing after he allegedly solicited money from nonprofit organizations 
for Williams' reelection campaign.
    In hindsight, Hemphill's spending beyond her means and her repeated 
proximity to scandal might have indicated that problems were brewing. 
The same woman who threw lavish parties already had a history of 
financial trouble, including bankruptcy in 1986 and a 1984 appeal to 
the District's emergency mortgage assistance fund. Federal 
investigators are now asking why Hemphill used a WTU credit card to pay 
$20,000 to the caterer for her 2001 party in honor of Kelvin Robinson, 
just the beginning of a long list of alleged misuses of WTU funds.
    According to WTU's internal audit, Hemphill made unauthorized 
personal charges to the union's American Express account exceeding 
$311,000 and wrote checks for unauthorized expenses totaling $181,000. 
She allegedly used the funds to purchase a $13,000 plasma television 
and other luxuries for herself and family members.
    Like Bullock, Hemphill made political donations during the period 
of embezzlement, but the source of funds is unknown. Labor Watch has 
discovered a $250 contribution last year to EMILY's List, a political 
action committee that supports female abortion-rights political 
candidates. Hemphill and her husband Lawrence also gave $1,000 to Al 
Gore's presidential campaign in May 2000.
    Hemphill was co-chairman of Williams' reelection campaign last 
year, overseeing most day-to-day operations during a period when the 
campaign collected hundreds of fraudulent signatures, a scandal that 
kept Williams' name off the Democratic primary ballot and forced him to 
fight for reelection with a write-in campaign. Hemphill resigned from 
the campaign soon after the scandal became public, and although she was 
called to testify before the DC Board of Elections and Ethics, no 
charge of impropriety was ever filed against her.
    But the DC inspector general is reportedly investigating Hemphill's 
use of WTU funds to pay for expenses incurred last year by William's 
reelection campaign. Hemphill claims that she acted under the 
impression that Kelvin Robinson, the mayor's chief of staff, wanted the 
union to cover the $2,000 bill when he told her to ``take care of'' it. 
But Robinson says he expected Hemphill to use campaign funds to pay for 
the DC voting rights t-shirts and other items distributed at the 
Democratic National Convention in Los Angeles.
    The Washington Post also cites an anonymous former employee in 
Williams' office who claims Hemphill gave the mayor a $5,000 check in 
2000. The check drawn from WTU funds was allegedly used to sponsor 
Christmas parties organized by For the Children, a nonprofit charity. 
The DC Office of Campaign Finance has ruled that the mayor's office 
violated city rules by soliciting money for the organization and not 
disclosing the gifts. Also, funds intended for children's parties were 
allegedly diverted to pay for a reception for Williams' supporters.
    In January, the DC Office of Campaign Finance opened a new 
investigation to determine whether the Williams campaign failed to 
report contributions from WTU. The campaign did not report use of WTU's 
telephone banks to get out voters as an in-kind contribution. Also 
under scrutiny is Hemphill's work for the campaign while a full-time 
employee of WTU, an arrangement that would ordinarily be considered an 
in-kind contribution from the union. WTU's alleged $5,000 donation for 
the For the Kids Christmas parties will also be investigated, as will 
two Williams fundraisers hosted by WTU attorney Curtis Lewis in 1998 
and 2002 for which expenses were allegedly charged to a WTU credit 
card. The Williams campaign has turned over to federal prosecutors 
copies of checks totaling $33,025 that Hemphill allegedly failed to 
deposit for several months, far beyond the five-day limit imposed by 
city election laws.
    Hemphill is implicated in an incident disclosed on January 17 by 
Philip Pannell, Democratic chairman for the District's Ward 8, to 
shocked listeners of a WAMU radio talk show. Pannell claims Hemphill 
talked to him in August 2001 about arranging for funds to support his 
reelection campaign. On the day of the vote, Pannell says a car pulled 
up, and he was handed an envelope filled with $2,500 in cash--just as 
Hemphill had promised, he says. Hemphill denies Pannell's account, 
which he presumably disclosed out of concern that he might have spent 
WTU funds on his campaign.
    Despite her resignation from WTU and the DC Employee Appeals Board, 
Hemphill remained executive director of the DC Democratic State 
Committee until December. Even after submitting her resignation letter 
to committee chairman Norman Neverson, he kept the letter secret and 
allowed committee members to debate Hemphill's fate for three weeks 
before announcing her departure. Neverson seemed to be searching for a 
way to keep Hemphill on board, telling the Washington Times, ``The 
party would be extremely impoverished without Gwen's outreach'' and 
``We would be shortsighted to ask her to step down.''
    Local reporters seemed at a loss to explain Neverson's actions, but 
they may be just another example of a Hemphill attempt to benefit from 
her vast network of cronies. Hemphill and Neverson are close neighbors 
and have been friends for 35 years. In 1998, Hemphill convinced 
Neverson to return from retirement and help elect Williams mayor, an 
effort that landed Neverson the chairmanship of the DC Democratic State 
Committee.
    Vice chairman Pat Elwood has requested an audit of the committee's 
finances, and Neverson has agreed. Although party officials say they 
don't expect the audit to turn up any irregularities, former committee 
treasurer Robert Artisst told the Washington Times that he had some 
concerns about the committee's use of a separate series of checks of 
which he had no knowledge. Artisst said he had noticed some checks that 
were not dually signed by the treasurer and another executive committee 
member.

Leroy Holmes
    Bullock's chauffeur Leroy Holmes is perhaps the most colorful 
player in the WTU scandal. For his trouble driving Bullock on her 
shopping trips and collecting union cash from the bank, Holmes was 
awarded a salary of $105,000 and more than $7,000 toward expenses for 
his Cadillac, about four times more than a typical driver's salary in 
the nation's capital. He has now pleaded guilty to a federal charge of 
conspiracy to launder proceeds of an unlawful activity.
    Holmes reportedly told WTU auditors that he routinely went to 
Independence Federal Bank in the District and cashed union checks made 
out to him, allegedly totaling more than $1 million from 1997 to 2002. 
The amounts were usually just under $10,000, the minimum required for 
currency transaction reports, but sometimes more. He allegedly would 
often call ahead to ensure that sufficient cash was available, cash a 
check, then stuff his pockets full of bills as he walked out the bank. 
Most of the cash would be handed over to Bullock or Hemphill--some he 
deposited directly in Bullock's personal account--and he would keep the 
rest for himself to the tune of about $100,000 a year, according to 
prosecutors.

James O. Baxter III
    Asked in October to resign from WTU with Bullock and Hemphill, the 
union's treasurer James Baxter has not been the focus of much media 
attention. But his unauthorized charges to the union exceed Hemphill's, 
according to WTU auditors. Baxter is accused of charging more than 
$311,000 to the union's American Express account and writing union 
checks for $270,000 for personal use.
    Court documents cite evidence that Baxter failed to accurately 
report his union income to the IRS and the Labor Department. He 
allegedly joined with Bullock and Hemphill to hire an accountant to 
help them hide their misconduct.
    In 1997, Baxter was hired by Mayor Marion Barry to serve as 
director of the DC Office of Labor Relations and Collective Bargaining 
while also serving as WTU's treasurer. Although the dual role was a 
conflict of interest in violation of District law, Baxter remained in 
that post for 16 months after Williams took office in 1999. Baxter was 
fired by Williams in spring 2000 because of the violation, but only 
after Bullock and Hemphill reportedly used their clout to frustrate 
several attempts to remove him.

Anthony A. Williams
    DC Mayor Anthony Williams was confronted with the WTU scandal just 
weeks after his reelection campaign struggled its way to victory 
despite submitting fraudulent signatures to the elections board and 
failing to get on the Democratic ballot.
    During Williams' first run for office in 1998, the WTU stood by 
Williams when every other city labor organization shunned him. 
Williams, a former chief financial officer for the District, had fired 
more than 200 city workers during his tenure, acts not easily forgiven 
by union leaders. But WTU's Bullock made a shrewd calculation that 
supporting Williams, who had little experience with DC schools and 
needed the union's help, could significantly increase the union's clout 
if he defeated DC Council member Kevin Chavous. WTU's endorsement is 
credited with solidifying Williams' victory, just as the union had 
ushered the infamous Marion Barry to the board of education in 1971 and 
the mayor's seat in 1979.
    The endorsement was particularly important because Chavous was the 
city council's education committee chairman and an early favorite to 
win the race. Chavous later said WTU ``gave the mayor momentum at the 
time because I was the education chair . . . It cut into what should 
have been my base. I think the mayor always felt he owed them 
politically.''
    William's close relationship with Bullock and Hemphill is now 
costing him dearly. He has responded testily to questions about the 
scandals and has attempted to distance himself from WTU.

Curtis Lewis
    Last September, the former director of the DC Office of Human 
Rights filed a $55 million lawsuit against Mayor Williams, claiming 
that he was fired for refusing to violate DC contract-procurement laws. 
Charles Holman said WTU president Bullock pressured him in 2001 to 
award a $296,500 contract for handling human rights filings to the law 
firm Curtis Lewis & Associates. Although Holman initially refused, he 
says William's acting chief of staff Joy Arnold pushed the contract 
through. The city says Holman was fired because of worker complaints 
including accusations of racial discrimination.
    What makes this especially interesting is that Curtis Lewis is 
James Baxter's brother. His firm was hired by Bullock to handle the 
union's legal affairs. According to WTU's internal audit, the union 
made ``large payments to and improper health insurance premium payments 
of approximately $55,000'' to Lewis' firm.
    The Washington Post reports that an anonymous former official of 
the DC Office of Boards and Commissions says Hemphill provided Mayor 
Williams a list of nominees for various boards, many of whom were 
appointed. The official says Hemphill recommended Lewis to chair the DC 
Alcohol Beverage Control Board and was outraged when the official told 
her that Lewis was not qualified for the position.
    In a January 16 editorial, Washington Post editors suggest that 
Lewis was also the reason for Mayor Williams' alleged insistence last 
year that DC school officials award free or low-cost legal assistance 
to teachers as a $1.1 million benefit--after contract negotiations had 
already ended.
    ``But why would the mayor intervene in a negotiation that had 
already given union members handsome pay increases totaling 19 percent 
over three years?'' the editors ask. They suggest that Curtis Lewis & 
Associates, then representing WTU, would have also represented union 
members and would have collected the $1.1 million. Given union leaders' 
close relationship with the firm, they may have lobbied for the benefit 
partly to enrich Baxter's brother.

Michael & Cheryl Martin
    Hemphill's daughter Cheryl Martin and her husband Michael Martin, 
operations manager at the DC Health Department's HIV/AIDS office, also 
have been named in court documents as participants in the WTU 
embezzlement scheme. Their home and Michael's office were raided by FBI 
agents in December.
    The FBI has filed court documents alleging Martin personally 
received more than $20,000 in WTU checks signed by Bullock and Baxter. 
The union also allegedly paid more than $400,000 to Expressions 
Unlimited, a company owned and operated by Martin and business partner 
Errol Alderman, who also works in the District's HIV/AIDS office. The 
FBI says there is ``probable cause'' that Martin's business did not 
provide many of the services for which it was paid. Court documents 
suggest that funds from the Expressions Unlimited account were paid to 
Bullock and Hemphill.
    On January 23, the DC inspector general announced a review of 
millions of dollars spent by the District HIV/AIDS office to ensure 
that Martin and Alderman did not misappropriate the funds.
    Cheryl Martin reportedly was temporarily hired by Esther Hankerson, 
general vice president under Bullock, and received a union paycheck. 
Details of the employment have not been reported.

Gwendolyn Clark
    Bullock's sister Gwendolyn Clark has been identified in court 
documents as a co-conspirator in the looting of WTU, but her exact role 
is not yet known. Her home was among those raided by the FBI in 
December.

Independence Federal Savings Bank
    One of the nation's largest minority-owned thrifts with assets of 
$260 million, Independence Federal Savings Bank is suffering serious 
problems, now much worse in the wake of the WTU scandal.
    Now the U.S. Attorney's Office is considering charges against the 
bank for aiding the fraud at WTU by cashing forged checks and violating 
the Bank Secrecy Act by failing to report suspicious transactions. The 
WTU's internal audit suggests that three of the bank's employees 
colluded with union officials. Last month federal prosecutors 
subpoenaed account records from the bank.
    WTU, Mayor Williams' 2002 reelection campaign, and the DC 
Democratic State Committee all have bank accounts at Independence 
Federal.
    Often the original names on the checks cashed by the chauffeur 
Holmes were scratched out and replaced with Holmes' name. The bank 
accepted the checks because the changes appeared to be initialed by the 
check signer--usually Bullock or Baxter--but auditors say the 
handwriting does not appear to match that of the signers. WTU auditors 
say bank personnel failed to file suspicious activity reports although 
most of the checks cashed were just under $10,000, the minimum required 
for currency transaction reports. Even more suspicious, the bank has 
not turned over any transaction reports for four checks over $10,000, 
auditors say. They also accused bank officials of failing to cooperate 
with the investigation.

Esther S. Hankerson
    Esther Hankerson, WTU's general vice president since 1994 under 
Bullock, automatically assumed the union presidency when Bullock 
resigned last October. The union's bylaws require that the general vice 
president fill the vacancy until members elect a new president.
    But members raised concerns that Hankerson should have known about 
the illegal activity. More than 150 teachers gathered at a District 
school on January 13 for an unsanctioned emergency meeting at which 
they voted no confidence in Hankerson and WTU's 21-member executive 
board. Hankerson didn't last long enough for the members to oust her at 
a monthly meeting scheduled for January 27--the AFT took control of the 
union on January 22, suspended the union's constitution, canceled the 
membership meeting and assigned a temporary administrator.
    Although Hankerson is not mentioned in FBI court filings, she is 
reportedly under investigation for improper use of her union credit 
card. Hankerson has admitted reviewing her own expenses after the 
scandal broke and finding at least one inappropriate expense to cover 
her granddaughter's plane travel--a charge that Hankerson says was a 
mistake made by her assistant. The card also was charged for meals that 
Hankerson cannot account for, so she says that she voluntarily 
reimbursed the union about $1,500.
    More serious questions linger concerning the extent to which 
Hankerson knew about the looting of WTU. In 1997, the Independence 
Federal Savings Bank notified Hankerson that her signature had been 
forged on an $8,000 check payable to Bullock, according to auditors. 
Hankerson reportedly confronted Bullock, who admitted the forgery and 
said she needed the money and would repay it. Auditors say Hankerson 
never reported the incident to other WTU officials and the check was 
never repaid.
    Hankerson also should have known about missing contributions to 
employees' pension funds. For the past two years, WTU's executive board 
approved pension fund contributions equal to 11 percent of staff 
salaries, but much of that money reportedly was never deposited to the 
funds. Hankerson was a member of the executive board that approved the 
contributions, and in her dual role as a union employee, she should 
have received routine statements showing the status of the pension 
funds. She claims that she never knew of a problem.
    Nevertheless, Hankerson's dual role as an executive board member 
and WTU employee seems to have violated the union's constitution. 
Hankerson received a salary throughout her eight-year tenure as general 
vice president--$90,000 a year before her promotion to president in 
October. But except for the president and treasurer, the union's bylaws 
prohibit payments to members of the executive board to avoid conflicts 
of interest.

Implications for DC Schools
    The actions of WTU's leaders will have a harmful impact on DC 
public schools for many years to come. Had Bullock and her team focused 
their energies on teacher development and quality, the future for many 
DC children might not be so bleak.
    But bleak it is. Only six percent of the District's eight graders 
perform math at grade level, according to the 2000 National Assessment 
of Educational Progress (NAEP). The 1998 NAEP found that 10 percent of 
the District's fourth graders read at grade level. Yet DC public 
schools spent $10,477 per pupil in 2000-2001, far above the national 
average of $7,483, and only 43 percent of the system's 11,000 employees 
teach.
    If lawmakers take note of DC's plight, it may be an opportunity for 
reform. Syndicated columnist Walter Williams, an economics professor at 
George Mason University in Fairfax, Virginia, has seized on the WTU 
scandal as yet another reason why the District of Columbia should 
embrace vouchers that allow children to escape to private or other 
public schools. Vouchers would empower teachers to establish their own 
schools and would break unions' stranglehold over education.
    ``Teachers, rather than administrators and union officials, would 
be in control and set the agenda,'' Williams wrote in his January 12 
column. ``Parents would be empowered through choice. Students would get 
a much better education. Finally, taxpayers would be less burdened.''
    A few days following Williams' column, Scripps Howard columnist 
Deroy Murdock also called for more public support for President George 
W. Bush's plan to fund voucher experiments in Washington, DC and other 
cities.
    ``It's hard to imagine a place that more urgently needs school 
choice than the District of Columbia Public Schools,'' Murdock wrote.
    Other school policy proposals may have a better chance of approval 
with a weakened teachers union. In her inaugural address on January 7, 
DC board of education president Peggy Cooper Cafritz called for 
literacy tests for all teacher's aides and competency tests for all new 
teachers. Perhaps emboldened by WTU's problems, she dismissed the 
union's opposition to any form of testing teachers, saying ``I would 
much rather offend an adult than damage a child.''
    Such positive reforms would be an appropriate response to the WTU 
scandals. But absent school reform and serious change at WTU and city 
hall, Washington, DC will remain what Washington Post columnist Colbert 
King has dubbed ``The District of Corruption.''

                                 ______
                                 

                       Fox News, January 17, 2003

                DC Teachers' Union Plagued With Scandal

                            By Liza Porteus

    A 46-page audit released Thursday night at the request of parent 
group the American Federation of Teachers alleges that three former 
union officers looted more than $5 million over the last seven years 
and used the money to buy items such as flat-screen TVs, fur coats and 
silver.
    ``The massive misappropriation of union funds and the betrayal of 
the members that are outlined in our audit are reprehensible and 
sickening,'' said AFT president Sandra Feldman. ``The individuals 
responsible must be held accountable, and the AFT will do everything in 
its power to see that these funds are returned to the WTU and its 
members.''
    With audit in hand, the AFT filed a lawsuit in Federal District 
Court in Washington under the Racketeer Influenced Corrupt 
Organizations Act and other federal and state statutes. The group is 
seeking restitution on behalf of the nearly 5,000 members of the WTU 
for the misuse, misappropriation and conversion of union funds.
    The lawsuit alleges that eight individuals, including former WTU 
President Barbara Bullock, elected union president in 1994; James 
Baxter, the WTU's former treasurer; and Gwendolyn Hemphill, former 
assistant to Bullock, ``in their positions as union officers, agents, 
representatives and employees, or through their relationships with 
union officers, agents, representatives and employees, aided and 
abetted, participated in, and used the union as part of their 
conspiracy to embezzle and convert funds of the union.''
    The lawsuit and audit detail a scheme to defraud the union and its 
members, embezzle WTU funds and convert those funds for personal use. 
The complaint charges that defendants defrauded the union by forging 
checks, illegally converting them or using checks without authorization 
and that some of the individuals made ``substantial unauthorized 
purchases'' with union credit cards.
    ``In summary, due in large part to the deliberate override of the 
system of internal controls at the WTU, Bullock, Hemphill and Baxter 
appear to have systematically diverted millions of dollars in WTU funds 
to themselves, family members, and others for personal benefit,'' the 
forensic examination states.
    A WTU receptionist on Friday told Foxnews.com that he was not aware 
of any lawsuit and no one was available to discuss the charges. An open 
letter from interim WTU President Esther S. Hankerson in December said 
she was ``shocked and angered'' by the allegations leveled against 
Bullock, Baxter and Hemphill.
    ``It is very upsetting to see the worst of our fears possibly 
coming true, and to realize that perhaps those in whom we placed our 
confidence have violated their trust, abandoned their personal and 
professional responsibilities and severely abused their position of 
authority,'' she wrote nearly a month before the charges were filed.
    Auditors began scouring two years of the local union's books in 
July after the AFT was alerted by a WTU member to an overcharge of 
union dues. What they found was a long trail of forged signatures and 
altered checks, as well as $1.5 million in ``inappropriate'' personal 
charges on a WTU credit card. Another $948,000 is labeled 
``questionable.'' The audit also unearthed nearly $700,000 in 
``undocumented expense reimbursements.''
    While union rent and utility bills often went unpaid and union 
teachers allegedly weren't receiving promised services, the AFT 
investigation concludes that Bullock wrote $381,000 in checks to 
herself, Hemphill diverted at least $492,000 through unauthorized 
credit-card charges or unauthorized checks and Baxter diverted at least 
$537,000 to buy himself art, clothing and sports tickets.
    The three also allegedly made $12,000 in political contributions--
charged to the WTU's American Express credit card--to the Democratic 
National Committee and to the 2000 senatorial campaign of Hillary 
Clinton, D-N.Y. Other political donations charged to that account 
totaled $4,200, made to groups including the National Political 
Congress of Black Women and the (former DC) Mayor Marion Barry 
Constituent Services Fund.
    Both the DNC and Clinton's campaign have since reimbursed AFT with 
the funds.
    Then there's the $1.2 million allegedly paid to the Bullock's 
chauffer, Leroy Holmes. Auditors say he kept some of that cash and gave 
the rest to Bullock or Hemphill, who also co-chaired District of 
Columbia Mayor Anthony Williams' re-election campaign. Holmes said he 
thought his 2001 salary was $105,000, but $150,000 was noted on his tax 
forms. Holmes said the WTU also paid for expenses related to his three 
Cadillacs.
    The Washington Post reports that Washington's Office of Campaign 
Finance this week began investigating whether Williams' re-election 
campaign failed to report in-kind contributions from the union. The 
mayor and his staff have denied any wrongdoing.
    ``This is a perfect example of why workers need to have the freedom 
to choose for themselves when it comes to union membership,'' said Dan 
Cronin, legal director for the National Right to Work Foundation.
    Cronin's group argues that this kind of union corruption could be 
minimized if workers weren't forced to pay union dues in order to get 
jobs.
    Included in the WTU's bylaws is a section saying the District of 
Columbia Board of Education recognizes the WTU as the ``sole and 
exclusive bargaining representative'' in negotiating for teachers' 
wages, rights and other job-related issues.
    ``If workers have the freedom to leave the union and stand on their 
own . . . then you would be forced to be more responsive to the 
workers,'' Cronin said. ``Compulsory unionism breeds corruption--they 
go hand and hand.''
    The Post reports that the AFT is considering placing the 5,000-
member WTU in an ``administratorship,'' which would dissolve local 
leadership for as long as 18 months. A two-member, AFT-appointed panel 
held a hearing Thursday with the local union's executive board and AFT 
could vote on a takeover, the Post reported.

    Senator Allen. Now, Mr. Silvers, two Rutgers University 
professors testified on May 8th at the roundtable on stock 
options that expensing will do nothing to constrain executive 
pay, which is the general purpose here and stock options kind 
of get blasted in the midst of it. Indeed, their research 
indicates that researching stock options will lead to the 
concentration of stock options among the most senior executives 
and, more importantly--and this is what I care most about, is 
the elimination of broad-based plans which distribute options 
to rank and file workers, whether they are secretaries or 
wherever they may be in that company.
    So the point is expensing stock options will not solve the 
executive pay problem, but it will harm rank and file workers, 
who lose out when broad-based plans are reduced. Now, is that a 
result, Mr. Silvers, that you would support?
    Mr. Silvers. Senator, let me begin in response to your 
questions by talking about ULLICO. You correctly identified 
that there were a number of insiders that profited at ULLICO 
and that ULLICO, the Union Labor Life Insurance Company's 
parent, is owned by union pension funds.
    The president of the AFL-CIO demanded an investigation into 
that matter a year ago. He resigned from the board when that 
investigation was not followed. He led the majority of 
shareholders two weeks ago, together with President Terry 
O'Sullivan of the Laborers Union, in a successful effort to 
throw out both the CEO who led that effort and the board 
majority that supported it. The incoming CEO, Terry O'Sullivan, 
led a board majority that voted to demand that the money be 
repaid and that the independent investigation be complied with. 
That vote occurred last week.
    The management, the new incoming management of ULLICO, is 
currently investigating each and every aspect of executive pay 
at that company. Key aspects of executive pay at that company 
that have been the focus of this issue have been frozen. The 
current CEO of ULLICO is serving without pay.
    I defy you to find a single example in all the annals of 
corporate America of any significant repayment to the 
shareholders absent Government action, in fact any significant 
repayment at all. The only thing I can think of, frankly, is 
the WorldCom settlement announced yesterday. There is no 
example that I know of, of significant repayment absent 
government action in corporate America, and no example, really 
with the exception of American Airlines that you mentioned, of 
action being taken to remove people.
    The labor movement stands by its record in responding to 
what went wrong at ULLICO and stands by President Sweeney's 
statement at the beginning of this matter that we intended to 
hold ULLICO to the same standards that we held corporate 
America to. We said we would do it and we did it.
    With respect to the two Rutgers professors, the issue of 
stock options in the non-executive context is a significantly 
different issue than the issue in the executive context. The 
reason for that is because the perverse incentives I alluded to 
in my testimony are rather difficult to act on for the average 
employee. Therefore, we view as investors options as an 
inferior way of compensating executives and would prefer to see 
them replaced by restricted stock.
    We view options as a somewhat inferior way of compensating 
employees as well, but for a different reason, which is that 
they create risks when they are part of an employee's base pay 
package which the typical employee is ill-suited to bear. The 
typical CEO, whose base compensation--Mr. Bachelder could tell 
us the exact numbers since he is very focused on the base--the 
base compensation is in the millions of dollars, has an ability 
to absorb risk that the typical employee does not. When options 
become a central feature of the average employee's pay package, 
that employee often, as I said, is taking a risk they cannot 
afford to take.
    That being said, we do not think that options are sort of a 
non-starter for the typical employee. However, there is just no 
getting around the fact that options are a real cost. You are 
paying with a right to the profits of the company and the 
returns on equity for labor. Frankly, the bizarre accounting 
treatment, that is the result of a political distortion of the 
accounting standards-setting process, has led to distortions in 
terms of the use of stock options both for executives and for 
line employees, in ways that have harmed the average working 
person because they are being paid in essentially a debased 
currency because companies like to pay in debased currency 
because they do not have to expense it.
    But we are not going to take the position, which we could 
be inconsistent. We could say we would like to see executive 
stock options expensed, but do not expense everyone else's. 
That might be kind of convenient in away. But there is just no 
getting around the fact these are expenses of the company. They 
should be expensed and they can be valued.
    This talk about Black-Scholes not applying far in the 
future is frankly unpersuasive to me. At least where I learned 
finance, Black-Scholes was applied to options of any duration. 
There is, of course--everything becomes more uncertain as you 
go far into the future, every accounting measure becomes more 
uncertain.
    The Chairman. Mr. Silvers, you have got to shorten your 
answer, please.
    Mr. Silvers. I am finished.
    The Chairman. Go ahead, take a couple more minutes, please.
    Senator Allen. All right. Thank you, Mr. Chairman.
    The point I was trying to make is that if you require the 
expensing of stock options it will be the end of broad-based 
stock options. Yes, they probably will have the restricted 
stock and all sorts of different things for the executives. And 
for the investors here, whether CalPERS or TIAA-CREF, Mr. 
Clapman, Mr. Harrigan, you undoubtedly have invested in 
companies over the last ten years that use stock options. Some 
of them are these start-ups, innovative companies. Some of them 
are no longer with us. Others are still with us.
    Now, in the event--just look back. Just look back in the 
last ten years. Using the Black-Scholes method, how many of 
those--using the Black-Scholes method of expensing, how many of 
those would have been accurate or not, and what impact would 
that have had on those, especially the start-up companies? And 
I like ESOPs as well. I like employee stock ownership. But I 
like the idea of employees caring about the long-term future of 
a company. It helps keep people with them.
    What would be the impacts, Mr. Clapman, on some of the 
companies that undoubtedly TIAA-CREF have invested in in the 
last decade?
    Mr. Clapman. Senator Allen, we did not include in your 
materials the TIAA-CREF policy statement on corporate 
governance, which has our voting guidelines on management 
option plans, but it is accessible. We can send it to you. It 
is also accessible on our web site.
    But what we do in there is have variable standards for when 
we will vote in favor of option plans, taking into account just 
the issue you are addressing of the broad-based plans. So that 
we would for younger companies have much higher guidelines for 
when we will support such plans, and we have different 
standards for more mature companies.
    So we certainly agree that a certain amount of 
discretionary analysis about that, to recognize that there are 
certain companies where it is much more important in terms of 
compensation.
    But in terms--I mean, basically the Black-Scholes or a 
similar methodology, which means effectively you value 
something at grant, as opposed to valuing something in terms of 
whether it made money or lost money, frankly is something that 
corporate America will be supportive of more than the 
alternative of valuing depending on subsequent stock movement. 
The reason for that is that earnings will be much more volatile 
if you do not do it at grant, and you will recall that about 
250 companies have agreed to expensing, and they do it on a 
grant basis because it will have less impact on their 
accounting statement, and their earnings record, than if they 
chose some other methodology.
    But that is again only part of it. You said earlier you 
were supportive of performance-based options as a better way to 
go. The problem in America today is that compensation 
committees disregard performance-based options because they are 
expensed and they have been expensed for a long period of time. 
So it is the crowding out of something that is a far better 
compensation alignment between management and shareholders that 
is the dilemma of the current system. So that is why expensing 
of all options will put matters on par.
    One final thing about----
    Senator Allen. But do you not think expensing of all 
options would reduce the number of options granted broad-based 
to employees?
    Mr. Clapman. We do not think so. We do not think it will be 
a reduction.
    Senator Allen. Have you listened to many companies that use 
this that say this will be the death knell of broad-based stock 
options, because they will not feel comfortable even signing as 
a CFO, signing, here is the figure, which is an estimate--even 
by those who are advocates, it is an estimate--and then five 
years, ten years down the road, that shows to be somehow wrong?
    Mr. Clapman. Candidly, we think, Senator, a lot of the 
people that want to preserve the current system are trying to 
use scare tactics in terms of the effect of expensing. Just one 
final word on that. The footnote----
    Senator Allen. It is their business, though.
    Mr. Clapman. I realize it is their business. But currently 
if you look at the footnotes of any company, you will see the 
effect of expensing there. So that sophisticated institutional 
investors can get the effect even of fixed price options today. 
The people what are not the beneficiaries of that kind of 
analysis are individual shareholders who rely on what the 
reported earnings in the financial sheets are. But investors 
can do their own expensing calculations even today, and I would 
say that most significant sophisticated investors are already 
taking into account the true cost of those options even before 
expensing, and it is only the general public that is being 
misled on that issue.
    Senator Allen. Let me ask, Mr. Bachelder, what is your view 
of the impact of mandatory expensing on the use of broad-based 
stock option plans?
    Mr. Bachelder. I think it would curtail it. I think it 
would curtail it not only on a broad-based basis, but I think 
the lifeline of American business are the young, new businesses 
that are started up all the time, just as we saw in the age of 
the development of Internet and high tech companies. Whether it 
is Silicon Valley or Route 128 or other locations in other 
industries, these young companies need to have the opportunity 
to grant options without having them a charge against earnings.
    In fact, I think a very good argument can be made that 
those companies, if not other larger companies, in fact are 
transferring to those who receive the options the opportunity 
to acquire equity in the company, and that is a transfer of 
capital. Legitimate arguments can be made that this is a 
transfer of capital and not an expense.
    Senator Allen. Thank you, Mr. Chairman. I know I went over. 
Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Allen. Thank you, gentlemen.
    The Chairman. Could I just quote again from Mr. Buffett: 
``Why then require cash compensation to be recorded as an 
expense, given that it too penalizes earnings of young, 
promising executives? Why not have cash compensation as a 
footnote? Indeed, why not have these companies issue options in 
place of cash for utility and rent payments and then pretend 
that these expenses as well do not exist? Berkshire will be 
happy to receive options in lieu of cash for many of the goods 
and services that we sell corporate America.''
    Senator Lautenberg.
    Senator Allen. Mr. Chairman, can I----
    Senator Lautenberg. Very good, Mr. Chairman. Excellent 
meeting, if I may----
    The Chairman. Go ahead.
    Senator Allen. The very reason someone would not take a 
stock option for payment of electricity or anything else is 
because they have no idea of what it is worth.
    The Chairman. Mr. Buffett says he knows what it is worth 
and he would take it. So perhaps you and Mr. Buffett have a 
different opinion. I think I would go with his record versus 
yours.
    Senator Lautenberg.
    Senator Allen. I think he is talking about--I think he is 
looking at a different kind of option.

              STATEMENT OF HON. FRANK LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. Thank you very much, if I might, if the 
Senator from Virginia--you have run several very good, 
interesting Committee hearings, Mr. Chairman. I want to commend 
you.
    The Chairman. We have made a lot of friends, too, have we 
not?
    Senator Lautenberg. I think that this panel is a very, very 
good one. It demonstrates the attitude that we ought to be 
looking at. I came here 20 years ago and I had been one of the 
founders and CEO of a company called ADP. We started with 
nothing and I am going to wind up with nothing if I spend a few 
more years here.
    But the fact of the matter is that I came in and I think I 
took the trophy for having given up the highest compensation 
package to come to the Senate, which before me was held by 
Percy from Illinois. I guess it was Bell and Howell that was 
his company. My compensation was about 450,000, which at the 
time was pretty rich. But now when we look at things, we see it 
quite different. That was on $60 million worth of after-tax 
earnings. Now it looks like an executive can get $60 million 
worth of compensation for $450,000 worth of revenues. There has 
been a huge reversal out there.
    [Laughter.]
    Senator Lautenberg. But I want to say, I think we have an 
attitudinal crisis here in terms of corporate governance. I am 
on the board of the Columbia Business School. Mr. Hall, you are 
perhaps one of your leaders in the field, but we are talking 
about competitive schools in a way. And I just gave a chair in 
corporate governance to Columbia Business School because I 
think that there is a lot of things that are so wrong, that 
have created attitudes supported by incredible greed out there.
    Mr. Bachelder, with all due respect and I liked hearing 
from you, when I look at Jack Welch and you compared the growth 
of the company's value to his compensation, he does not own the 
company. One of the things, the mistake we made here--and I am 
sorry the Senator from Virginia has left the room. He said: Who 
are the owners? Well, who are the owners are not simply the guy 
sitting at the top reaping the harvest from a lot of people's 
efforts, from a lot of people's ideas.
    I am a member of the Information Processing Hall of Fame. 
That entitles me to nothing except the fact that I have seen 
lots of companies started with good ideas, that had sudden 
stock value bursts, took their packages, and went home like a 
ballplayer. The problem is that there is not enough long-term 
obligation. This is now the seduction of CEOs. Bring someone in 
who has got a good record and give them a pretty fat package, 
and if he is there three years, what the hell, he makes $30 
million or $50 million, and so things did not work out quite 
the way they were supposed to.
    The most egregious example, not just those companies that 
we have seen go down the tubes, but those that are negotiating 
for bankruptcy proceedings and taking out huge packages of 
compensation and asking--and discharging employees and asking 
those that are there to take less in pay. What has happened in 
America?
    When I see Mr. Welch--and I hardly know him, but I have 
read an awful lot about him--and to see that in the final 
insult to corporate opportunity was the fine wines and the 
dinners that had to be included on top of it, I think it was 
about a $300 million retirement package, after hundreds of 
millions had already been paid in compensation. He got paid 
amply for his work. He is not running a casino and if you hit 
he gets more money.
    I think it is time we started looking at the--it is not as 
much in my view the CEOs, but it is the board of directors who 
are conspirators in these things. It has got to be changed. And 
American confidence--your question, Mr. Chairman, was an 
excellent one: Are these things destroying American confidence 
in these companies? Absolutely, absolutely.
    First of all, there is, in my view, there is an attempt to 
conceal lots of things. I do not know how the term ``EBIDTA'' 
came up or when it came up, but, boy, if that is not a 
smokescreen. It is earnings before taxes, interest, and 
depreciation. What is the significance of that? I hear now 
people comparing their companies. You have to pay your taxes, 
you have got to pay interest on the loans that you have got, 
and the depreciation. If the equipment that you are using to 
make a product is wearing out, why should you not account for 
the fact that you are going to have to replace it one day?
    I am sorry, Mr. Chairman. Please excuse the lengthy 
introduction. I want to put my statement in the record as if 
read, my opening statement.
    The Chairman. Without objection.
    [The prepared statement of Senator Lautenberg follows:]

             Prepared Statement of Hon. Frank Lautenberg, 
                      U.S. Senator from New Jersey

    Mr. Chairman,
    I commend you for holding today's hearing on executive 
compensation. It's a subject I happen to know something about. At the 
time of my election to the United States Senate in 1982, I was the 
highest paid CEO to cross over to the public sector. The year that I 
was first elected, ADP--the company I helped to found with two friends 
in 1949--had 750 million dollars in revenues and posted 60 million 
dollars in profit. I made 450,000 dollars.
    Today, it seems that some companies are making 450,000 dollars in 
profit and paying their CEOs 60 million dollars!
    Executive compensation is out of whack. Too many CEOS and other top 
executives see their pay go up and up while their companies' stock goes 
down and down. Too many CEOs and other top executives are insulated 
from poor performance and even bankruptcy while employees and share-
holders lose their jobs, their pensions, and their retirement savings.
    The system for determining executive pay is broken: greedy CEOs 
appoint each other to their boards so they get to determine each 
other's compensation. I don't know whether to call that a ``conflict-
of-interest'' or a ``confluence-of-interest'' but either way, it 
stinks.
    The Congressional Research Service (CRS) has issued a report 
comparing the total compensation of top executives to the average 
earnings of non-managerial private sector employees. According to the 
report, which is based on Business Week surveys, top executives made 45 
times as much as workers in 1960. In 2000, they made 531 times as much.
    The ratio has come back down; now, top executives are ``only'' 
making 282 times as much as their employees--largely because so much 
executive compensation takes the form of restricted stock and stock 
options, and the stock market has plunged. But the gap is still much 
too wide.
    Supporters of the status quo will argue that this changing ratio is 
proof that the executive compensation ``market'' is undergoing a self-
correction. That's true.
    They will further argue that attempts to legislate on the issue 
will fail and cause unintended consequences. That's true, too.
    But I do think there is something useful that Congress can do in 
this realm of private contracts: mandate that total compensation for 
the CEOs and other top executives of publicly-held companies be made 
public in annual reports in a way that is comprehensive, transparent, 
and understandable.
    As Supreme Court Justice Louis Brandeis said, ``Sunlight is the 
best disinfectant.'' Give share-holders all of the information they 
need to determine whether executive compensation is reasonable. 
Companies that bury the true cost of such compensation in dense text 
spread throughout obscure parts of an annual report obviously feel they 
have something to hide.
    The only way to assess whether CEOs and other top executives are 
doing their job is to know how much they are being compensated--no more 
``stealth wealth.''
    Right now, public confidence in our markets has been shattered--
with good reason. People need to have faith in financial statements. 
People need to have faith that analysts are objective. People need to 
have faith that brokers are looking out for them. People need to have 
faith that the Securities and Exchange Commission is up to the job. And 
people need to have faith that top executives are running companies to 
meet sound, long-term objectives.
    If we want to encourage the resurrection and expansion of the 
``investor class,'' we have to restore the public's confidence that our 
markets are on the ``up and up,'' and not just a game that's rigged to 
benefit the very few. It's going to take a lot of work to rebuild that 
confidence but our economic prosperity depends on it.
    Thank you, Mr. Chairman.

    Senator Lautenberg. I want to ask a couple of questions. 
What would happen--first of all, I think that we have to--when 
people are hired at the top of these companies, there has to be 
a longer term commitment. One of the things that I worried 
about as we discussed the dividend debate here was whether or 
not a CEO would look at the company and say: Hey, if I pay 
dividends and they are tax-free, it inures to the stock value, 
it gets to my pocket; what do I care about ten years from here? 
I have a chance to make 100 million bucks in the next few 
years. Why do I want to fool around with plant and machinery 
and running the risk of building new terminals or things of 
that nature? Let me boost the earnings for now and let the 
devil take the hindmost.
    What would be wrong--that is Lautenberg's view. Forgive me. 
I want to bring you up to date with ADP. It is a company I 
started with two other guys, two other fellows. Their father 
and my father worked in the silk mills in Paterson. It was 
common labor. We started with nothing. We started a long time 
ago, over 50 years ago.
    The company this last year did $7 billion, had $7 billion 
in revenues and $1.1 billion after tax and paid taxes of about 
30 percent or 40 percent on that. Pretty good performance. That 
CEO now gets about $7 million and took a decrease in 
compensation because we did not grow at the 10 percent that we 
had grown for the first 41 years that we were listed on the 
exchange.
    What would be wrong to encourage the CEOs, the senior 
executives in the company, to say your vesting period and 
exercise period is deferred for a long time? So you know, even 
if you leave the company if things have not gone right, you 
have got a package out there, but the work you have done will 
help this company deliver its value, deliver its product, for 
lots of years to come. Anything wrong with that, Mr. Clapman?
    Mr. Clapman. Well, as starters the TIAA-CREF shareholder 
resolution in the area of equity compensation not only calls 
for performance-based options, but substantial long-term 
holding periods for holding stock. That is why--and I believe 
other members of this panel had a similar view--that stock is 
really a far superior linkage of shareholder concerns, 
interests, and management interests.
    Hitting exactly the point that you are raising, it is the 
short-term pervasive way that stock option cashing out can be 
manipulated in the current system that is one of the root 
causes of the problem. The long-term holding of stock, our 
resolution really did not--and we thought we were giving 
deference to management on this, to say that you should have a 
substantial holding period, for a substantial period of holding 
your stock, and even that was opposed by most managements that 
we came into contact with. So we would agree certainly on your 
basic thrust, that long-term holdings, perhaps for a senior top 
executive not to be able to cash out until they leave the 
company. This is all really getting to the heart of the 
difference between the long-term and the short-term in terms of 
incentives.
    Senator Lautenberg. Anybody else? Mr. Harrigan?
    Mr. Harrigan. I think that would also be consistent with 
CalPERS policy. We obviously think at least a great portion of 
executive compensation should be based on long-term, 
sustainable performance, and that ties right into the comments 
that you made. So that seems to be--in terms of designing an 
executive compensation program, your suggestion certainly would 
make sense to CalPERS in terms of a component of that.
    Mr. Hall. I would just add that I too think it is a great 
idea. The one thing we have to ask is, why does it not happen? 
The answer comes back to corporate governance. You know, when 
Joe Bachelder, who is a very effective negotiator, goes and 
negotiates a package for a CEO, typically they want something 
shorter; Joe gets it for them. They want to have cliff vesting 
at the time that they leave; Joe gets that for them, too. And 
then all of a sudden we have very short vesting.
    So fundamentally, assuming Congress is not going to begin 
passing rules about the vesting periods of restricted stock or 
something like that, fundamentally what we have to do is reform 
corporate governance and give shareholders a greater say.
    I just want to point out how remarkable it is that the AFL-
CIO is supporting a proxy--a set of ideas that are so 
shareholder friendly in terms of making--enabling shareholders 
to actually get their potential candidates on the board. That 
would be a dramatic change in corporate governance, and people 
who believe in stronger shareholder rights, as I do, in 
academia have been making arguments like this for a long time. 
I just find it pretty remarkable that this issue could actually 
bridge a very wide political spectrum, in large part because 
the members of the AFL-CIO hold lots of assets in their 
pensions and so they become very concerned about this.
    The Chairman. We should let Joe, I think. Since your name 
was mentioned freely, you want to respond there?
    Mr. Bachelder. Right, right. I think that the problem with 
delayed vesting and delayed exercisability, meritorious as it 
is, is the very fact that we do have relatively speaking a free 
market in compensation, and if you do at company A decide that 
we are going to delay the exercisability on our options and 
make it five years cliff or six, seven, eight years, and then 
you are trying to attract a new executive from another company 
and in order to get that executive, where that company does not 
have a wait of five, six, seven, or eight years, what do you 
do? I certainly think----
    Senator Lautenberg. Give them cash. The expense--in all due 
deference, Mr. Bachelder, the expense has to be recorded and 
that is the problem. It is the dishonesty that we see where the 
greed takes over, clouds the judgment on what you do to run a 
business, and suddenly now we are figuring out all kinds of 
ways to make sure that our calf is fat and the devil with the 
rest of them.
    I think if all of these things start to get recorded it 
will be a little different transition. But CEOs are not 
ballplayers. They do not have a limited life of five years or 
eight years or something like that to fill the stands. It is a 
different world out there, and we have lost sight of what the 
CEOs responsibility is.
    Mr. Bachelder. Senator, I do believe that, in further 
response, that we seek to have the companies of this country 
led by CEOs who will seek to develop new ideas, new products, 
to maximize profits, to maximize growth. The individuals who 
make up the senior levels of management in this country are 
people that are driving for that goal, which we all want, to 
increase the profitability of our corporations and to enhance 
the value of the investments of the institutional investors of 
this country.
    You do not have people who are doing that who are not going 
to be trying to drive to improve their own compensation 
packages. I agree that boards of directors need to take an 
objective look at any CEO proposal. But I do believe that there 
is more of an objective look at CEO pay than we are giving 
credit to.
    The Chairman. Senator Breaux had a comment if that is all 
right.
    Senator Breaux. I would just make a comment that I think 
fits in with what Senator Lautenberg is saying and also Mr. 
Bachelder. The argument is made that you have to really 
compensate CEOs in large companies in order to get the very 
best and the very brightest to do the very best job. I have got 
a list of the CEO compensation, the top 100 compensation 
packages for CEOs of large revenue companies in the United 
States in the last year. Honeywell, the CEO was compensated at 
over $68 million when the stock of the company's value was 
going down 27 percent.
    I look over the top 100. The largest company in the world, 
Wal-Mart, is not even in the top 100. I mean, there is a real 
fallacy and a breakdown in this argument that somehow you have 
to be compensated millions and millions of dollars regardless 
of the performance of the company in order to have a good 
company. The facts do not bear that out.
    Senator Lautenberg. There is a mythology out there. In 
order to have a decent CEO. You look at the brown company, 
United Parcel, and see, they have got a CEO there that has come 
out of the worker ranks. I am not advocating that the CEO must 
come from the worker ranks, but the fact is that there is a 
very modest compensation package there for a huge company, and 
lots of companies do it.
    My old company, with its $1.1 billion of profit after tax, 
probably paid with any bonuses, etcetera, about $15 million to 
the CEO. The fact that he was hand-picked by me 20 years ago--
he was the number two guy. But that is the way we regard the 
company as having an obligation to its shareholders. We try to 
make it very clear what it is about what we are doing.
    Now, if you look at the proxy statements, you can hardly 
wade your way through it. You cannot get enough people to 
understand what it is they are looking at to want to be excited 
about voting their proxy. It is not beguiling, there is no 
interest at all there.
    Mr. Clapman, you must have views on these things, or Mr. 
Silvers, about what ought to be in a proxy statement beside the 
very strict recitation of what the expenses are and what they 
are going to be?
    Mr. Clapman. Well, in my written comments, Senator 
Lautenberg, I indicated that current disclosure rules are 
inadequate to really understand fully about executive 
compensation. We are partly an insurance company and when we 
look at the what is called supplemental employee retirement 
whatever--SERP's is the acronym for them--and try to value 
them, even with actuaries we cannot do it.
    It took a divorce proceeding to disclose fully the Jack 
Welch retirement package. It was not disclosed in any proxy 
statement, which I guess shows the benefit of long-term 
marriages to avoid having that problem to deal with.
    Senator Lautenberg. A deferred expense.
    Mr. Clapman. But I agree fully with your point that 
disclosure is inadequate. In fact, you raised an earlier 
accounting issue which, just to make a brief reply to: 
Institutional investors have a pretty sophisticated investment 
analysis process. We do all our own investment management. We 
do not hire outside managers. We look at, ``pro forma 
earnings'' or reported earnings with great skepticism in terms 
of how we value stocks. We have our own methodologies for all 
of that, and that is a commentary on the state of disclosure in 
general at the present time, and it is something clearly the 
SEC has got to address.
    It is a problem in executive compensation, but it is a 
problem in the much broader securities analysis area as well. 
So I agree with your point. We could start very--first of all, 
the SEC had a project a couple of years ago to get better 
disclosure on executive compensation. Unfortunately, it did not 
go far enough.
    Mr. Silvers. Senator, I will make two points that I hope 
you will find responsive. First, there is a kind of--there are 
two sort of fallacies that have been floating around in this 
discussion that go to this question of whether disclosure is 
adequate and whether investors and the general public really 
understand what is going on.
    I will give you one example. It has been raised in this 
discussion that some of these annual pay numbers that seem so 
large are in fact not, are in fact misleading, that some of it 
is just the sale of stock into the marketplace, that it was 
accumulated in the past. Well, it may be that--whether or not 
you want to count that as annual compensation, the fact that 
that is a major component of executive comp should be very, 
very disturbing, because what you are essentially seeing when 
you see executives selling into the market built-up options, 
exercising and then selling the underlying stock into the 
market while their stock price is declining and the corporate 
performance is declining is that essentially that executive is 
betting against themselves. They are saying: I know something 
that is not in the marketplace that tells me I ought to dump 
right now and, by the way, I am not going to tell you, the rest 
of you, what that is; I am just going to exercise it.
    It is in fact worse than simply paying them for bad 
performance. It is you are watching somebody gaming the system.
    Secondly, the argument has been made here that American 
executives are people that are trying to do their best by their 
companies. I would not necessarily disagree with that as a 
generalization. I think my sense is that is generally true of 
most of us, that we are trying to do the best in the roles we 
find ourselves in life.
    But that does not entitle any of us to infinite 
compensation for that effort. If you talk to a construction 
worker or a Government employee or a driver at UPS and say to 
them--you know, if that person comes to work one day and says, 
you know, I work very hard, I produce a lot of value for this 
company, I would like $100 million, please, because my net 
contribution to this company is positive, that is the end of 
that person's career. It also ought to be the end of an 
executive's career who does the same.
    Senator Lautenberg. I will conclude, Mr. Chairman, with 
just two quick things. One is, since our distinguished Chairman 
quoted Warren Buffett so frequently, I will quote him once 
more. He says; ``The more taxes I pay, the more I have left 
over.'' So I think that is probably a good end.
    Lastly, you know what I think as I am listening to the 
discussion? You are a very good panel and, Mr. Bachelder, I 
include you. That is that we ought to--the proxy statement, the 
first thing on the first page beside the name of the company 
ought to be what the executives sold in terms of shares in the 
past year, to give you some flavor as to where this company is 
going.
    Thank you, Mr. Chairman. Excellent, excellent idea for 
this.
    The Chairman. Thank you. Thank you, Senator Lautenberg, and 
thank you for the benefit of your experience.
    It seems to me that this hearing reinforces the argument 
that we need greater stockholder involvement and we need 
greater transparency, and I am not sure you can have one 
without the other.
    I am not sure that Congress is prepared to act 
legislatively at this time. Maybe around the edges--we have got 
a new SEC head and we have got a new man, Mr. McDonough, and 
Mr. Donaldson and others, so perhaps we need to exercise some 
patience here.
    But I am convinced--I am looking at the report from some 
time ago that the Tyco CEO spent $6,000 for a shower curtain. 
He did not pay for that, it was paid for by the stockholders of 
Tyco. Then I am intrigued to see that the new CEO of Tyco is 
compensated $62 million. Was that really--in order to get a 
replacement for Mr. Kozlowski you had to pay compensation of 
$62 million, Mr. Bachelder? They could not find somebody who 
could do the job without, especially with the track record of 
the flagrant expenditure of stockholders' money, including $11 
million for antiques, $18 million for a Fifth Avenue duplex, $2 
million trip to the Italian island of Sardinia? All that was 
not paid for by Mr. Kozlowski. It was paid for by the 
stockholders of Tyco.
    So then we see Tyco hiring a new CEO and we cannot get 
somebody for less than $62 million annual payment?
    Senator Lautenberg. They could have gotten me. I would have 
stopped in.
    [Laughter.]
    The Chairman. I am sure they did not know you were 
available.
    Senator Lautenberg. I did not know it either until I heard 
$60 million.
    The Chairman. Life is anecdotal. It is anecdotal about 
politicians and our misdeeds and our misdemeanors. Life is 
anecdotal about $6,000 shower curtains. I get a laugh at every 
speech that I give where I say; ``I would like to have gone 
over there and taken a shower; I have never seen a $6,000 
shower curtain.'' But you laugh and you cry, and a lot of the 
audiences I speak to have seen their 401(k)s decimated while 
this kind of excessive pay, benefits, retirement.
    Mr. Bachelder, I think you only made one mistake in your 
testimony today, bringing up Mr. Welch's package, because no 
one understands that retirement, those benefits on retirement. 
No one can understand that, that even flowers are paid for. 
Maybe you can, but I do not think many other people can believe 
that when someone is no longer performing they should get that 
kind of benefit.
    As Mr. Clapman pointed out, if it had not been for his 
divorce we would have never known about it. And I am a great 
admirer of Mr. Welch and the outstanding job that he did 
leading this corporation.
    So I guess my conclusion is that we will be looking at this 
issue and looking at and seeing what happens with the SEC and 
other oversight agencies. But I also think you may reach, 
depending on what happens to the economy, some kind of a 
critical point here and then Congress does act, and I am not 
sure that Congress always acts in the wisest fashion. That is 
why I have always been reluctant to see Congress act.
    But these kind of excesses are making a lot of Americans 
angry. They certainly are in my State and the places where I go 
and speak.
    You all have helped a lot today. It would have helped, 
frankly, in this hearing if at least one of the many CEOs we 
invited to come and testify would have accepted our invitation. 
And that is hard to understand, why people who are doing such 
great work would not come before this Committee and justify the 
compensation they receive for it.
    So I thank the panel and I would like to ask if you have 
one more comment, closing comment, advice and counsel for us, 
beginning with you, Mr. Clapman?
    Mr. Clapman. Again, the focus should be on the future and 
not just to try to explain the past, and to really get it right 
for the future. Certainly TIAA-CREF as a shareholder, a 
proponent of shareholder rights and better corporate 
governance, is going to be pressing compensation committees, 
pressing on board independence.
    But I think it is essential to let FASB do its job properly 
on the issue of expensing, because it is not just this value 
and that value. I think too often we focus too much on that. 
The real issue is it crowds out better forms of equity 
compensation and true performance and long-term shareholding, 
and it is only that will finally get it right.
    The Chairman. Mr. Silvers?
    Mr. Silvers. I will just echo what Peter said and again 
commend you for your leadership on the stock option issue. I 
think it is the central place where this matter is really being 
fought right now. Again, Congressional action is not needed, 
frankly. The regulators have the powers to fix this, both on 
the accounting side and on the corporate governance side. They 
need to be given the space to do it.
    My last comment, and I am sorry Senator Allen is not still 
with us, is that I know that some of his constituents feel that 
the large option packages they have received cannot be valued. 
Anyone who truly believes that, I have ten dollars for them; I 
would like their options.
    The Chairman. Thank you, Mr. Silvers. I will relay that to 
him.
    Mr. Hall. Thank you, Senator. I guess I would just like to 
conclude by saying that the argument about broad-based option 
plans probably going away is overstated, but it probably is 
correct that broad-based option plans would be decreased if we 
expensed options.
    The Chairman. What has been the experience of the 
corporations that have already announced that they are now 
expensing stock options?
    Mr. Hall. Unfortunately, the vast majority of those 
corporations give very little stock options.
    The Chairman. So we have no lessons to learn yet.
    Mr. Hall. There are no profiles in courage there for much 
data to be gleaned.
    But I guess what I would say in response to that is, if we 
are giving stock options to lower level workers in broad-based 
plans because of the distorted accounting, we should not be 
doing it. So in some cases they will do it because it was a 
good reason to start with and the accounting will not get in 
the way, and in other cases they will stop giving stock options 
and they will give stock or other things that employees like, 
like cash. So I really do not think the argument for broad-
based option plans going away is a very good one.
    Thank you for letting me testify.
    The Chairman. Thank you.
    Mr. Bachelder. I think that I would strongly endorse the 
point of view that this is not an area where legislation will 
provide the answer. I think we found that in connection with 
the excise tax on change of control agreements and with the $1 
million cap in the tax code. I do believe that encouraging 
transparency and more active shareholder participation in the 
process would all be positive encouragements.
    The Chairman. Thank you.
    Mr. Harrigan. Yes. First of all, I want to begin by 
thanking you for asking me on behalf of CalPERS to be here.
    I think this whole issue about executive compensation, 
executive compensation is a serious problem and does have an 
impact on investor confidence in the markets in this country. 
But it is really about transparency and accountability, and the 
comments that I made really focused on those issues. It is 
about really having independent board members and independent 
compensation committees who really are accountable, not to the 
CEO but the owners of the company.
    The only way that that is going to occur is if compensation 
plans are required to be submitted to the shareholders for 
approval and the shareholder votes are binding. It is only 
going to happen if compensation committees are truly 
accountable to the owners, meaning that shareholders have 
access to the proxy as was discussed by Mr. Silvers earlier.
    The problems that we face in terms of the lack of 
confidence in our markets and corporate America today I think 
really are, the fundamental basis of that is just a lack of 
transparency and a lack of accountability. CalPERS, I think 
along with TIAA-CREF and the AFL-CIO, will continue to be 
active in the area of corporate governance and try to bring 
more accountability and transparency. But we need your 
leadership and the leadership of members of this Committee to 
make sure that the regulatory agencies act and act properly.
    Thank you very much.
    The Chairman. Thank you and I thank the witnesses.
    This hearing is adjourned. *
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    * The HR Policy Association, submitted a paper entitled, Restoring 
Reasonableness to the Sarbanes-Oxley Loan Ban. The paper has been 
retained in Committee files.
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    [Whereupon, at 11:39 a.m., the Committee was adjourned.]

                                  
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