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Fixing corporate boards
Shareholder democracy may no longer be an oxymoron -- not a moment too soon.
By Marc Gunther, FORTUNE senior writer

NEW YORK (FORTUNE) - Meaningless elections, where the outcome is decided in advance, fell out of favor after the collapse of the Berlin Wall -- except in corporate America.

While shareholders get to vote every year for directors at the companies they own, their votes haven't meant a thing.

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That's now changing, and not a moment too soon. Under pressure from shareholder activists, more than 100 big companies -- including such industry leaders as Intel, Dell (Research) and United Technologies -- have agreed in the last year to give shareholders the power to vote directors out of a job. More are bound to follow.

"The velocity of change on this issue is tremendous," says Patrick McGurn, executive vice president of Institutional Shareholder Services and a leading expert on corporate governance. "It's definitely spreading quickly."

Next week, shareholders at Hewlett Packard (Research), Ciena and Analog Devices will vote on proxy resolutions that would require those companies to adopt a binding "majority vote" rule. If the resolutions are adopted, directors in future elections at those companies would need to get a majority of votes from shareholders.

All three resolutions were filed by the pension fund of the United Brotherhood of Carpenters and Joiners, a union that began pushing for the "majority" vote provision during the 2004 proxy season.

Ed Durkin, director of corporate affairs for the union, says the union's efforts to promote shareholder democracy are gaining traction. "Once you show that important, thoughtful companies have adopted majority voting, you could prompt a mass movement in that direction," he says.

Finally, a check on CEOs?

Once directors know they can be voted out of office -- not to mention embarrassed -- by disgruntled shareholders, it stands to reason that they will do a better job than they have in the past of representing the interests of corporate owners. Who knows? They might even start to curb runaway CEO pay.

For those who haven't paid attention, here's how the election of corporate directors works at most companies:

  1. Boards nominated directors.
  2. Their names appear on a proxy ballot without opposition.
  3. One vote is enough to win election.

At best, shareholders can withhold votes for a director in the hopes of shaming an unpopular board member into stepping down. When more than 40 percent of shareholders voted against chairman and CEO Michael Eisner at The Walt Disney Co. (Research) in 2004, for example, Eisner agreed to give up his job as chairman, although he stayed on as CEO for another 18 months.

Under the reforms being pushed by the carpenters' union, companies would agree to change their corporate bylaws so that a director would need a majority of the votes cast in order to be elected to the board.

This year, the carpenters and its allies filed more than 140 proxy resolutions calling for that change.

Some companies settled before the resolutions came to a vote, while others have initiated changes on their own. In January, Intel (Research) put a majority vote rule into its corporate bylaws, and announced a policy that addresses the rather complex question of how directors who fail to get a majority of votes will be replaced, without disrupting the governance of the company.

According to ISS, more than 50 companies, including Dell, United Technologies, Motorola, Gannett and SuperValue, have agreed to both a majority-vote rule and a director resignation policy.

Another 50 companies have adopted less stringent, non-binding policies that would request the resignation of a director who fails to receive a majority of the votes cast. This partial reform has been enacted by Pfizer (Research), Disney and Microsoft (Research), among others.

Debate over the details of these proposals can get arcane in a hurry. Critics of majority vote say they are concerned that the rule could disrupt or decapitate boards. The U.S. Chamber of Commerce has opposed majority vote resolutions, saying they could open up boards to pressure from special-interest groups. Institutional investors including Fidelity, Vanguard, Barclays, Putnam and State Street have also opposed them.

Glenn Booraem, who oversees proxy voting at Vanguard, says the company "believes that, as a matter of principle, boards should respond quickly and publicly to any instance in which a director doesn't get a majority vote. Absent a compelling case for retention, the presumption is that such a director would leave the board."

To its credit, Vanguard pays enough attention to its proxy votes so that it withheld votes from about 20 percent of all corporate directors during the 2005 proxy season. The funds did so, most often, when directors served on compensation committees that awarded excessive pay, or on audit committees that spent too heavily on non-audit work by their auditors, or when directors lacked independence under the funds' guidelines, or when they missed too many meetings.

Of course, in the past, those withheld votes meant little. Now voting against a director could have consequences -- especially if more institutional investors can be persuaded to take their oversight responsibilities seriously. Top of page

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