Do the Sarbanes-Oxley Act's Investigation Procedures Go Too Far Under the Fifth Amendment?

摘要

The Public Company Accounting Oversight Board (the Board), the nonprofit corporation created by the Sarbanes-Oxley Act to regulate accountants, was given extraordinarily broad powers to investigate and discipline auditors. Any firm seeking to practice public accounting must comply with the Board s rules and procedures or face possible suspension or revocation of its registration to practice. Indeed, the Act goes so far as to provide that an auditor s refusal to testify in connection with a Board investigation is itself a ground for suspension or revocation. As such, the power conferred on the Board to compel testimony appears to go beyond that which has previously been available to government entities. In a variety of settings, in criminal, civil, and administrative proceedings, it is impermissible to compel an individual to testify against himself or herself without violating the Fifth Amendment of the United States Constitution. One question that follows, then, is: since the Board is not a government entity but, rather, a nonprofit corporation, does that status enable it to require testimony from its registrants that would ordinarily be protected by the Fifth Amendment? A further question is: since the Board does not itself have the ability to directly impose criminal penalties on any auditor or firm, would the compelling of testimony by the Board be an acceptable means of avoiding constitutional issues?