Shareholders Are No Fools--Anymore
By Geoffrey Colvin

(FORTUNE Magazine) – You're a fool and a chump. What other conclusion can we draw? You've bought shares in publicly traded companies, haven't you? Then as far as the rules and regulations are concerned, you're too dumb to deserve any say in how those companies ought to be governed. "The law has regarded shareholders as fools since the 1920s," says Charles Elson, director of the University of Delaware's Weinberg Center for Corporate Governance and a corporate director himself. "Fools who had to be protected from their own foolish ways."

Not, maybe, for much longer. A swirl of events in recent days and weeks suggests that authorities at many levels are realizing that last year's much-hyped governance reforms aren't doing the job.

Amazingly, despite the honeyed assurances that accompanied the Sarbanes-Oxley Act and other measures, they leave shareholders with about as much power to influence governance as a baseball fan has to yank the pitcher. Most significant, the very heart of corporate governance, the election of directors, is still a sham. The shareholder ballots you receive with your proxy materials are just like those Stalin used to distribute. For every position there is exactly one candidate. Please mark your choice.

Actually you can nominate your own candidates. The company just doesn't have to put them on the ballot. Try winning under those rules. Occasionally someone does try, as Oscar Wyatt and Selim Zilkha, zillionaire shareholders of El Paso, just did. They put huge money behind the campaign but lost anyway, which is the usual outcome.

If something seems insanely wrong here, remember that these rules are based on a view of shareholders as a many-headed beast that can't be trusted to behave responsibly. Managers, by contrast, are seen as wise and beneficent stewards who know what's really best for shareholders.

And in some cases that may even be true. But after the scandals of the past 18 months, nobody's buying it. The risk of leaving shareholders powerless against managers and directors who are crooked idiots or, worse, crooked geniuses, is no longer tolerable. The Fastows, Sullivans, Kozlowskis, Rigases, and Scrushys blew it, and one way or another the game is now going to change for everybody.

William Donaldson, the new SEC chairman, has directed his staff to reopen the most central issue of corporate power: whether shareholders should be allowed to nominate director candidates who would appear on the official ballot, right next to the company's nominees. Companies are lobbying furiously against any such change, of course. They want free and open elections about as much as Stalin did. They paint dreadful pictures of chaos--chaos!--if just anyone could nominate director candidates.

But what if not just anyone could? What if only very large shareholders who had owned the stock for some number of years could do it? That's a possibility the SEC is considering. It isn't only theory. It's the new policy at Apria Healthcare, which has recently announced that any shareholder who has held at least 5% of the stock for at least two years may nominate directors starting next year. At a much larger company, MCI, court-appointed overseer (and former SEC chairman) Richard Breeden wants to make a similar change.

There's more. Check a little-noticed working paper by two of the heaviest hitters in corporate governance, chancellor William B. Chandler III and vice chancellor Leo E. Strine Jr. of the Delaware Court of Chancery (Delaware is where most big companies are incorporated). Down on page 66 they drop this targeted munition: "If this philosophy [of independent directors] is so central to our system of corporate governance, one can rightly ask why the current incumbent-biased corporate election process should be perpetuated."

Listen to these guys: If a case about board elections ever gets to court, they will probably hear it. "Incumbent-biased"? That sounds like a bad thing. It's also a quirk of our language that people don't question whether something should be "perpetuated" unless they think it shouldn't be.

The dam is breaking.

The most profound effect of the recent scandals probably won't be found in last year's reforms. It will be in the coming historic shift of corporate power away from incumbent managers and directors, where it rested for decades, and toward owners. It will be the change in the rules to reflect society's now intensely felt view that managers aren't necessarily wise--and shareholders aren't fools.

GEOFFREY COLVIN, the senior editor at large of FORTUNE, can be reached at gcolvin@fortunemail.com. Watch him on Wall $treet Week With FORTUNE, Friday evenings on PBS.